Shaw and Repatriation Commission

[2003] AATA 315

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 315

ADMINISTRATIVE APPEALS TRIBUNAL        Nº V2002/370

VETERANS’     APPEALS        DIVISION

Re:         ALEXANDER FRANCIS SHAW

Applicant

And:       REPATRIATION COMMISSION

Respondent

DECISION

Tribunal:       G.D. Friedman, Member

Date:             4 April 2003

Place:            Melbourne

Decision:The Tribunal sets aside the decision under review and substitutes a decision that sleep apnoea suffered by the applicant was war-caused with effect from 31 October 2000.  In all other respects the Tribunal affirms the decision under review.

(sgd) G.D. Friedman

Member

VETERANS' AFFAIRS - veterans’ entitlements - lumbar spondylosis - sleep apnoea - obesity - whether war-caused - date of clinical onset 

Veterans’ Entitlements Act 1986 ss7, 120(4), 120B

Falconer v Repatriation Commission (2002) 36 AAR 171
Lees v Repatriation Commission [2002] FCAFC 398
McKenna v Repatriation Commission (1999) 86 FCR 144
Re Barrett and Repatriation Commission (1999) 29 AAR 542
Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Cornelius [2002] FCA 750

REASONS FOR DECISION

4 April 2003  G.D. Friedman, Member

1.      This is an application by Alexander Francis Shaw (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 18 January 2002.  The VRB affirmed a decision of a delegate of the Repatriation Commission (the respondent) dated 9 April 2001, to refuse a claim for disability pension for lumbar spondylosis with spinal canal stenosis, L1 and L2 crush fracture, spondylolisthesis, spondylolysis and sleep apnoea because the conditions were not war-caused.  The respondent has accepted as war-caused the applicant’s disabilities of bilateral sensineural hearing loss, peptic ulcer disease and ventral hernia.

2.      At the hearing of this matter on 18 March 2003 Ms A. Malpas of counsel represented the applicant and Mr K. Rudge, an advocate with the Department of Veterans’ Affairs, represented the respondent.

3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (T1-T16), together with two exhibits (Exhibits A1 and A2) lodged by the applicant and four exhibits (Exhibits R1-R4) lodged by the respondent.

BACKGROUND

4. The applicant was born in Wonthaggi on 22 January 1925. At the age of fifteen he left school and spent one year at a technical college before finding work as a junior draughtsman in a factory. He enlisted in the Royal Australian Air Force (RAAF) on 20 April 1944, and after basic training he was selected for aircrew training in New South Wales. Upon completion of the training he joined ground staff and later moved to cypher training at Point Cook in Victoria. He was discharged on 5 March 1946. In accordance with s7 of the Veterans’ Entitlements Act 1986 (the Act), this period of service was eligible service.

5.      After the war the applicant worked in the Government Printing Office for three months before undertaking a painting and decorating course.  He worked in this field for four years until he left to become a store tradesman.  In 1957 he joined Ajax Insurance Company as an inspector.  In 1963 he became an agent with the TAB, where he remained until his retirement in 1993.  In the mid-1960s he gained considerable weight and sought medical treatment for the worsening of an abdominal hernia.  In 1996 he attended his local doctor about low back pain, which became worse in about 1999 or 2000, when he collapsed several times.  He was diagnosed with lumbar spondylosis with spinal canal stenosis, and his hernia was evident in the abdominal wall.

6.      On 16 April 2002 the applicant sought review of the VRB decision by the Tribunal. 

EVIDENCE

7.      The applicant gave oral evidence that during a training exercise in 1944 he was running up a slope carrying a Thompson sub-machine gun when he slipped on a wet track (the gun incident).  He said that he fell forwards onto the butt of the gun, injuring his stomach, whilst the barrel dug into the ground.  He stated that he fell backwards onto rocks, causing pain to his lower back, and he was winded for a short period.  The applicant told the Tribunal that he did not seek medical attention, as he did not want to lose his place as a trainee pilot, and continued with the training.  He said that the following day he and his fellow trainees went to the gymnasium and took part in exercises.  He stated that five-km runs had been suspended six months before the gun incident because a trainee was involved in a fatal accident.  

8.      The applicant said that after the gun incident he suffered rectal bleeding, which cleared up after about a fortnight.  There was also some bruising on his back.  He stated that a small hernia in his central abdomen resulted from the incident, and that slight back discomfort or nagging ache, rather than pain, has persisted since then. 

9.      He described his work as an insurance inspector between 1955 and 1962 as sedentary, as he spent most of his time in his motor vehicle, and consequently his weight increased by several kilograms.  He said that in about 1963 he joined the Bentleigh Club and began to use the gymnasium on a regular basis.  The applicant explained that on one occasion he noticed that the hernia had split and stretched to his navel.  His stomach started to bulge, and within two years his weight increased by about twenty kilograms.  He stated that at this time his back pain became worse because of the strain caused by the increased weight, although the doctors he consulted recommended against surgery for the hernia.

10.     The applicant stated that he had been a heavy snorer since about 1963, and that this had affected his breathing.  He recalled his daughter commenting a number of years ago on his disturbed sleeping and interrupted breathing patterns.  In 1996 he consulted his local general practitioner, who referred him to a respiratory and sleep physician (Dr A. Garfield).  He said that at night he now uses a device that pumps air through his nose to assist his breathing.

11.     Under cross-examination the applicant agreed that he had not mentioned back pain when undertaking his medical examination for the purpose of discharge from the RAAF, or when describing the incident to the VRB.  He also agreed that when lodging his claim for disability pension on 13 July 1995 (Exhibit R2) he listed seven disabilities, but did not include a back condition because his back discomfort was only a niggle not worth worrying about, and only became a problem in 1999 or 2000.  The applicant said that he was reasonably active until about 1999, playing golf three times each week, when the severe back pain and problems with his leg forced him to stop this and other physical activities.  He said that he is restricted to using an exercise bicycle at home and cannot bend or walk properly.

12.     In a written report dated 15 October 2002 (Exhibit A2) Mr R. Westh, orthopaedic surgeon, stated that x-ray and CT scans showed advanced degenerative changes consistent with lumbar spondylosis and spinal canal stenosis, but no evidence of any crush fractures.  He noted a history given by the applicant that during the gun incident the applicant …fell heavily on to his back, sustaining an injury to his lower lumbar spine.  He said that following this injury his back was always sore and he was never free of pain.  Mr Westh concluded:

In my opinion on the balance of probabilities, the claimed conditions, particularly lumbar spondylosis, can be linked to his war service, particularly utilising Factor 5(g) of the Statement of Principles concerning lumbar spondylosis, Instrument No.28 of 1999, i.e, suffering a trauma to the lumbar spine within the twenty-five years immediately before the clinical onset of lumbar spondylosis.  

Mr Shaw suffered a back injury during service and also developed a ventral hernia.  He aggravated the ventral hernia in 1963 and he was unable to exercise, this has placed increasing strain on his back with resultant lumbar spondylosis and eventual development of canal stenosis due to worsening of the degenerative changes in his lumbar spine.

13.     In a written report dated 8 October 2002 (Exhibit A1) Dr Garfield stated that he did not meet the applicant until 1996.  Without objective evidence he was unable to make any confident statement regarding the presence or absence of sleep apnoea at the time the applicant had documented weight increase from 1963 until 1965.  The presence of snoring was insufficient for a diagnosis.  Dr Garfield stated:

Certainly sleep apnoea would be most unlikely to have been present in an otherwise active healthy 20 year-old of normal weight, at the time he entered, and completed his War service.

On the question of whether the applicant’s sleep apnoea would have developed in 1965, as a result of being unable to exercise properly due to the development of his ventral hernia, as claimed by the applicant, Dr Garfield expressed the view that in 1965 the applicant:

…would have been 40 years old at the time, overweight, snoring, and with some comment by his daughter about interrupted breathing, and sleep apnoea may indeed have been present, but one cannot make any confident statement re its presence, or degree of severity/significance, certainly, I strongly doubt its presence up until that time.

14.     In a written report dated 17 December 2002 (Exhibit R1) Dr S. Hall, Associate Professor of Medicine, stated that the applicant displays evidence of lumbar spondylosis with spinal canal stenosis, and said that the applicant has a spondylolisthesis without spondylolysis.  Dr Hall stated that he did not believe that the applicant experienced any injury in the gun incident, of a type which would satisfy any of the relevant Statements of Principles; or that the applicant’s back condition was caused by his fall on the machine gun.  Dr Hall expressed an opinion that:

Mr Shaw’s enthusiasm to continue with his training notwithstanding, I would find it impossible to accept that the incident in which he was struck in the belly by the butt of his submachine gun was of sufficient magnitude to represent such trauma while still allowing him to run 5km the very next day.

…

I believe that his condition is constitutional and it is of significance that he has only become symptomatic in his 70s with his symptoms becoming markedly worse in his late 70s.

15.     In a written report dated 13 September 2001 (T15) Mr R. McArthur, orthopaedic surgeon, attributed the applicant’s low back complaint to degenerative disc disease at the L4-5 level which he stated was presumably a consequence of a lumbar intervertebral disc prolapse, after which spondylosis developed over the subsequent thirty-five years both in the intervertebral and facet joints, resulting in a degenerative spondylolisthesis with associated spinal canal stenosis.  Dr McArthur concluded:

The question arises as to whether the traumatic episode in 1944, which occurred when Mr Shaw fell onto a gun butt initiated the degenerative process.  On the balance of probabilities it would appear unlikely that this was the case and therefore there did not appear to be any connection between Mr Shaw’s war service and the lumbar spondylosis.

CONSIDERATION OF THE ISSUES

16. Ms Malpas noted that there was no dispute between the parties that the veteran had rendered eligible service, so that s120(4) and s120B of the Act apply, and the Tribunal must decide the matter to its reasonable satisfaction. In determining whether the conditions suffered by the applicant were war‑caused, the Tribunal must first consider all the material before it and decide whether that material points to a contention connecting the conditions with the existence of medical factors that are in turn linked to the circumstances of the particular service rendered by the applicant.

17.     The Tribunal is then required to ascertain whether there is a relevant Statement of Principles (SoP) in force.  The applicable SoP for lumbar spondylosis is Nº 47 of 2002 (as amended by Nº 78 of 2002), replacing Nº 28 of 1999, which was applicable at the time of the primary decision.  Risk factor 5(g) provides:

…

suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis;

In paragraph 8 of the SoP:

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.

18.     If a relevant SoP is in force, the Tribunal must form an opinion whether the contention fits within, that is to say, is consistent with the template to be found in the SoP.  If the contention fails to fit within the template, the claim will fail.  Ms Malpas submitted that the contention fits within the template. 

19.     Ms Malpas said that the evidence given by the applicant was plausible and believable, and was consistent with the history given by him to various medical practitioners.  She said that the back injury suffered by the applicant in the incident comes within the definition of trauma.  She referred to Re Barrett and Repatriation Commission [1999] AATA 509 in which the Tribunal found that on each day that the applicant undertook duties as a gun layer he suffered a discrete injury to the lumbar spine..  She emphasised that the report from Mr Westh and the x-ray and other material was consistent with the development of lumbar spondylosis over a long period.  She said that, for these reasons, trauma to the lumbar spine occurred within twenty-five years immediately before the clinical onset of lumbar spondylosis.  She urged the Tribunal to give little weight to the findings of Dr Hall because his conclusions were based on an inaccurate recording of the history given by the applicant regarding a five-km run allegedly undertaken by the applicant on the day after the incident.

20.     Ms Malpas referred to SoP Nº 16 of 1997 concerning spondylolisthesis and spondylolysis.  Risk factor 5(f) provides:

…

suffering from lumbar spondylosis affecting the facet joints at the involved intervertebral level at the time of the clinical onset of degenerative lumbar spondylolisthesis;

She submitted that if the Tribunal finds that lumbar spondylosis was war-caused then this factor would be satisfied.  

21.     Mr Rudge submitted that the Tribunal should prefer the evidence of Dr Hall, even if the Tribunal accepted that the history recorded by him contained an inaccuracy.  Mr Rudge referred to the x-rays and CT scans and suggested that the condition of lumbar spondylosis was degenerative and became symptomatic when the applicant was in his seventies.  He said that on the medical and other evidence the back injury sustained in the gun incident did not satisfy each element of the definition of trauma in the SoP.  At most it was a niggling ache that did not affect the applicant’s mobility and his ability to continue with his training. 

22.     On the question of clinical onset Mr Rudge submitted that lumbar spondylosis is a degenerative condition that was identified in x-rays and CT scans carried out on the applicant in 2000.  He said that the back injury sustained during the gun incident as described in the applicant’s evidence might have been a soft tissue or other injury, and that there was no evidence that clinical onset occurred during within twenty-five years of the gun incident.  Mr Rudge submitted that the claims for lumbar spondylosis, and therefore spondylolisthesis and spondylolysis, must fail.

23.     Ms Malpas referred to SoP Nº 40 of 1997 concerning sleep apnoea.  Risk factors 5(b) and (k) provide:

…

(b)being obese at the time of the clinical onset of sleep apnoea;

…

(k)       being obese at the time of the clinical worsening of sleep apnoea;

She referred to Falconer v Repatriation Commission [2002] FCA 1336 concerning factors causing obesity, and submitted that the applicant’s accepted condition of ventral hernia caused a restriction in physical activity which in turn led to significant weight gain and obesity in the 1960s which worsened in the 1990s. Ms Malpas relied on the applicant’s evidence of snoring and his daughter’s observation of breathing difficulties. She noted that Dr Garfield acknowledged in his report that sleep apnoea only became recognised in the 1980s with the advent of specific therapy.

24.     Mr Rudge submitted that the applicant cannot satisfy risk factor 5(k) of the SoP because paragraph 6 of the SoP specifies that risk factors 5(j) to (s) apply only where sleep apnoea has been contracted before or during service, and there is no evidence that the applicant suffered from sleep apnoea before or during service.  

25.     In relation to factor 5(b), Mr Rudge referred to the applicant’s evidence to the VRB that by the completion of his employment as an insurance inspector in 1962 his weight was about 15 stone..  Mr Rudge said that this would place him within the definition of obese, and occurred before the effects of the split hernia on his physical activity.  Mr Rudge also submitted that the evidence did not support the proposition that any war-caused factor led to obesity.

26.     In reaching its decision the Tribunal takes into account the written and oral evidence and submissions made at the hearing.  The Tribunal finds that the applicant gave evidence in a frank and honest manner and did his best to recall events that occurred many years ago. 

27.     With respect to lumbar spondylosis, the Tribunal notes the circumstances of the gun incident as described by the applicant to medical practitioners, the VRB and in oral evidence, and finds that in 1944 the applicant suffered back pain that did not require medical treatment, did not prevent the continuation of his training and which persisted as a minor ache or discomfort.  In Re Robertson and Repatriation Commission (1998) 50 ALD 668 (cited with approval in the Federal Court decisions of Repatriation Commission v Cornelius [2002] FCA 750 and Lees v Repatriation Commission [2002] FCAFC 398) the Tribunal stated, in relation to clinical onset:

…we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom 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 at that time.

28.     The Tribunal takes into account that the applicant did not seek treatment for back pain until he attended his family doctor in 1996.  Prior to this visit he did not attend any doctor, physiotherapist, chiropractor, masseur or other professional because the pain was slight.  For these reasons, and noting the results of x-rays and a CT scan in 2000, the Tribunal accepts the evidence from Dr McArthur that, on the balance of probabilities, lumbar spondylosis developed gradually after the lumbar disc prolapse arose from the increase in the ventral hernia in the mid-1990s.

29.     The Tribunal also accepts Dr Hall's evidence that the applicant became symptomatic in his seventies and that lumbar spondylosis was constitutional.  The Tribunal accepts the submission from Mr Rudge that the only evidence about the extent of the back injury was from the applicant, and there was no persuasive evidence that the clinical onset occurred in the 1960s when the applicant stated the back pain became worse, or before the initial medical consultation in 1996.  Therefore, the Tribunal does not accept the conclusion by Mr Westh, that the aggravation of the applicant’s hernia in 1963 and later weight gain leading to lumbar spondylosis means that the condition can be linked to war service, not that the factor requiring clinical onset within 25 years can be met.

30.     For these reasons, the Tribunal finds that, on the balance of probabilities, the clinical onset of lumbar spondylosis did not occur within twenty-five years of the incident in 1944, so the applicant cannot satisfy factor 5(g) of SoP Nº 47 of 2002.  The Tribunal finds that lumbar spondylosis was not war-caused, and as a consequence, the Tribunal finds that the applicant cannot satisfy factor 5(f) of the SoP for spondylolisthesis and spondylolysis and the Tribunal finds that these conditions were not war-caused.

31.     With respect to sleep apnoea the Tribunal accepts the submission from Mr Rudge that there was no evidence that the applicant contracted or suffered from sleep apnoea before or during service, so he cannot satisfy factor 5(k) of SoP Nº 40 of 1997. 

32.     In relation to factor 5(b), the Tribunal accepts the evidence from the applicant that he gained several kilograms in weight during the period 1955-62 while working as an insurance inspector.  However, the Tribunal finds that, notwithstanding his evidence to the VRB that in 1962 his weight was about 15 stone, on the balance of probabilities, his increase of twenty kilograms in weight occurred during the period 1963-1965 when the ventral hernia split, and that from the period 1963-1965 onwards the applicant has been overweight to a degree that satisfies the definition of being obese in the SoP.  Therefore, the Tribunal finds that the applicant was obese from about 1965, and on the basis that clinical onset occurred from 1965 at least, he was obese at the time of clinical onset of sleep apnoea, and satisfies factor 5(b) of the SoP.

33.     In relating obesity to eligible service, the Tribunal notes that in McKenna v Repatriation Commission (1999) 86 FCR 144 the Federal Court held that a reasonable hypothesis may include a sub-hypothesis. The Tribunal takes into account that there is no SoP for ventral hernia or obesity. Having accepted that the applicant satisfies the definition of obesity, and accepting the evidence from Dr Garfield concerning the connection between obesity and the problems related to the ventral hernia, the Tribunal is reasonably satisfied that the war-caused condition of ventral hernia led to obesity, which in turn contributed to the condition of sleep apnoea.

34.      For these reasons the Tribunal finds that sleep apnoea was war-caused for the purposes of the Act.

35.     Based on the medical reports there is insufficient material to support a finding that crush fractures were war-caused.

DECISION

36.     The Tribunal sets aside the decision under review and substitutes a decision that sleep apnoea suffered by the applicant was war-caused with effect from 31 October 2000.  In all other respects the Tribunal affirms the decision under review.

I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Member

(sgd)       Catherine Thomas

Clerk

Date of hearing:  18 March 2003

Date of decision:  4 April 2003
Counsel for applicant:                  Ms A. Malpas
Solicitor for applicant:                  Campbell & Shaw

Advocate for respondent:            Mr K. Rudge, Department of Veterans’ Affairs