Skinner and Repatriation Commission (Veterans' entitlements)

Skinner and Repatriation Commission (Veterans' entitlements) [2020] AATA 865 (16 April 2020)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2018/7334
Re:Gregory Skinner
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Katter

Date:16 April 2020
Place:Brisbane

The decision that lumbar spondylosis is not related to service dated 5 October 2017 is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the finding that the Applicant’s lumbar spondylosis is defence-caused in accordance with the Veterans’ Entitlements Act 1986 (Cth)
…........[SGD]..............
Senior Member Katter
Catchwords
VETERANS’ AFFAIRS – claim for defence-caused conditions – claim for disability pension – standard of proof – relevant Statement of Principles – lumbar spondylosis – decision under review remitted for reconsideration
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
SECONDARY MATERIALS
Statement of Principles concerning lumbar spondylosis No. 63 of 2014
REASONS FOR DECISION
Senior Member Katter
16 April 2020
APPLICATION

The Applicant seeks a review of the decision as to lumbar spondylosis[1] not being related to service for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
[1] Transcript, 22 November 2019, P-10, line 31.
BACKGROUND
The Applicant served in the Royal Australian Navy[2] from 7 December 1972 to 9 January 1980[3].
[2] Exhibit 1, T-documents, T6, page 12.
[3] Exhibit 1, T-documents, page 1.
On 1 August 2017[4] the Applicant lodged a claim for disability pension and/or application for increase in disability pension dated 27 July 2017[5]. At Part E of that form the Applicant stated[6]:
[4]           Exhibit 1, T-documents, T5, page 8.
[5]           Exhibit 1, T-documents, T6, page 20.
[6]           Exhibit 1, T-documents, T6, page 13.
“20 List the disabilities you are now claiming and describe the signs and     symptoms.
Please provide the diagnosis of the disability, if you know what it is. …      Disability 1 Back Problems
Signs and symptoms
Difficulty bending, lifting and carrying, resting back pain.
How do you believe your service caused, contributed to, or aggravated this disability?
Repetitive lifting and carry [sic] loads whilst working as a cook particularly in         confined spaces during submarine duty.
When did you first become aware of the signs and symptoms of the disability, or aggravation of the disability? (approx. date if known)
2000 … ”
At Part E of that form a medical practitioner, Dr Chauhan, stated[7]:
“Medical diagnosis … degenerative disc disease / disc prolapse
Basis for diagnosis scan …
When did the veteran first consult you for this condition? 23/11/2015 … ”
[7] Exhibit 1, T-documents, T6, pages 13 and 14.
On 5 October 2017 a delegate of the Respondent decided that lumbar spondylosis ‘is not related to service’[8]. The Reasons for Decision of the Delegate dated 5 October 2017 stated relevantly[9]:
[8]           Exhibit 1, T-documents, T5, page 6.
[9]           Exhibit 1, T-documents, T5, pages 8 and 9.
“ … I am satisfied that the appropriate medical diagnosis for the claimed condition           is lumbar spondylosis. …
For the purposes of determining this claim I find that Mr Skinner had eligible         service as a Member of the Defence Forces during the period 7 December 1972 to      9 January 1980.
Under the Act, where there is eligible service, I can only accept the claim if I am satisfied on the balance of probabilities that the claimed condition is related to that service. …
Mr Skinner has contended that his lumbar spondylosis was caused by repetitive lifting and carrying loads whilst working as a cook particularly in confined spaces        during submarine duty.
I have determined lumbar spondylosis using statement of Principles, Instrument              number 63 of 2014, which sets out the factors known to contribute to this        condition.
Carrying or lifting loads while bearing weight
There is a history of carrying or lifting loads of at least 35 kg while bearing            weight through the lumbar spine to a cumulative total of 168,000 kg within a     10 year period before the clinical onset of lumbar spondylosis. However, it       is a requirement of the Statement of Principles in eligible service cases that            the clinical onset of lumbar spondylosis must have occurred within the 25 years immediately after this 10 year period. The clinical onset of lumbar      spondylosis can         be dated to 14 April 2016, where it describes that Mr Skinner has mild    degenerative changes through his lumbar spine. Therefore, I am            satisfied that    the onset of lumbar spondylosis was not within 25 years of completion of the lifting            and carrying heavy weights factor. I am satisfied that this requirement is not        met, therefore this activity has not caused lumbar spondylosis.
Lumbar intervertebral disc prolapse
There is no history of an intervertebral disc prolapse of the lumbar spine.
Trauma to the lumbar spine
The Statement of Principles requires that in order to contribute to lumbar spondylosis, trauma to the lumbar spine must have resulted in 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.            There is no history of any trauma to the lumbar spine which caused such symptoms.
Other factors
The evidence before me indicates that the other factors contained in the Statement         of Principles do not apply in Mr Skinner’s case.
The Other factors involve:
Inflammatory joint disease; infection of the affected joint; intra-articular fracture of            the lumbar spine; spinal condition affecting the lumbar spine; leg length inequality;      dispositional joint disease in the lumbar spine; trauma to the lumbar spine; being      obese; flying in a powered aircraft as operational aircrew; extreme forward flexion         of the lumbar spine; acromegaly; Paget’s disease; or inability to obtain appropriate      clinical management for lumbar spondylosis.
I have considered all relevant evidence and am reasonably satisfied that lumbar spondylosis is not related to Mr Skinner’s eligible service.”
The Applicant made a request under sections 31 and 136 of the Act to review the decision dated 5 October 2017 refusing the claim for lumbar spondylosis, stating the following grounds[10]:
“Onset date: The attached letters from Dr Thevathasan and Dr Yenson-Chu, Rheumatologists, reporting to Mr Skinners GP at the time, indicate the onset date for his back problems to be April 2001, with further consultations in February and November 2002.”
[10] Exhibit 1, T-documents, T3, page 1.
On 26 November 2018 the Veterans’ Review Board affirmed the decision under review[11].
[11] Exhibit 1, T-documents, T2, page B2.
The Applicant filed an Application for Review of a decision in this Tribunal dated 11 December 2018, stating the following reasons for the application[12]:
“The Veterans’ Review Board made a determination of clinical onset without due consideration of the medical evidence provided.
Further their failure to properly investigate the claim before giving a negative        decision by not generating a section 152 under VE Act to clarify clinical onset of a medical condition as requested by the Advocate.
Noting: That clinical onset should only be determined by an expert in the field.    Not by the Board, The advocate or the Applicant.”
[12]          Exhibit 1, T-documents, T1, page A4.
EVIDENCE
The Applicant gave oral evidence at the hearing[13].
[13] Transcript, 22 November 2019, P-20-38.
The Applicant stated that he enlisted in the Royal Australian Navy at the age of 15 and served about five years in general service ships and five years in submarines[14]. The Applicant stated he was a chef[15], serving on HMAS Melbourne for four years, before training for submarines in 1975[16]. The Applicant identified that he had secondary duties in the submarine service, including a watch in the auxiliary room and crew room and assisting with the loading of torpedoes[17].
[14]          Transcript, 22 November 2019, P-20, lines 22-25.
[15]          Transcript, 22 November 2019, P-20, line 31.
[16]          Transcript, 22 November 2019, P-20, lines 33-34.
[17]          Transcript, 22 November 2019, P-20, lines 38-40.
The Applicant stated that he started identifying problems with his back when storing 30-40 kilogram boxes in submarines, putting those boxes in the control room or freezer space and bending over into a freezer[18]. The Applicant recalled that he was noticing problems with his back for the 5 years he was in submarines[19]. The Applicant confirmed that there was “strictly back pain” with no other pain during service[20].
[18]          Transcript, 22 November 2019, P-21, lines 11-17.
[19]          Transcript, 22 November 2019, P-21, lines 11 and 19-20.
[20]          Transcript, 22 November 2019, P-24, line 19-24.
After concluding service, in about 1991, the Applicant started noticing that his back was “really starting to ache and get sore, so [he] started seeing chiropractors and physios and get[ting] back massages”[21]. The Applicant stated that the first chiropractic appointment was on 9 August 1994[22], with that appointment being to “relieve his lower back pain and try and fix it”[23]. The Applicant indicated that he would go to the chiropractor about once every fortnight[24]. The Applicant stated that the attendances with the chiropractor were not by referral from a general practitioner[25].
[21]          Transcript, 22 November 2019, P-21, lines 22-25.
[22]          Transcript, 22 November 2019, P-21, line 32.
[23]          Transcript, 22 November 2019, P-23, line 23-25. See also P-27, line 24.
[24]          Transcript, 22 November 2019, P-23, line 33.
[25]          Transcript, 22 November 2019, P-27, line 14.
There is a letter from Dr Yenson-Chu dated 31 January 2002 to Dr Bowman which states as to the Applicant[26]:
“He has had pain in the left paraspinal region for about six months. He thinks this may have been precipitated by splitting some firewood. He’s tried seeing three physiotherapists, chiropractors, had massage and acupuncture as well as trialled [sic] Vioxx”.
[26] Transcript, 22 November 2019, P-33, lines 37-42.
The Applicant stated that that attendance on 31 January 2002 had “nothing to do with the [Applicant’s] neck”[27]. The Applicant referred to x-rays in 2002 when seeing Dr Thevathansan[28]. On 27 November 2002, Dr Thevathasan wrote to Dr Bowman stating as to the Applicant, that[29]: “He has probably got a facet joint strain as there was little to find on examination today”. The Applicant stated that he did not see Dr Thevathasan again[30], that he was advised to swim[31] and there was a suggestion, but not a prescription, as to the use of a back brace[32].
[27]          Transcript, 22 November 2019, P-37, lines 39-47 and P-38, lines 1-16.
[28]          Transcript, 22 November 2019, P-28, lines 27-28.
[29]          Transcript, 22 November 2019, P-35, lines 18-22.
[30]          Transcript, 22 November 2019, P-35, lines 40-41.
[31]          Transcript, 22 November 2019, P-35, line 35.
[32]          Transcript, 22 November 2019, P-36, lines 4-7.
There is a note by Dr S. Mililli of 27 August 2003, which states[33]: “sore base of right side neck > right trapezius. no initial injury. PH low back pain? diagnosed as Ank spondylitis by M.” The Applicant did not recall that attendance or discussing that[34].
[33] Exhibit 1, T-documents, T14, page 60.
[34] Transcript, 22 November 2019, P-31, line 44.
The Applicant stated that he has been on medication since 2002[35]. The Applicant stated that he has no other musculoskeletal conditions[36], with the only one being his lower back[37]. The Applicant stated that he had treatment for plantar fasciitis for which there was attendances on 6 February 1997[38] and 18 September 1997[39]. The Applicant did refer to treatment for his cervical spine on 3 October 2003[40].
[35]          Transcript, 22 November 2019, P-23, line 40.
[36]          Transcript, 22 November 2019, P-22, line 5.
[37]          Transcript, 22 November 2019, P-22, line 7.
[38]          Transcript, 22 November 2019, P-30, lines 4-11.
[39]          Transcript, 22 November 2019, P-30, lines 15-25.
[40]          Transcript, 22 November 2019, P-29, lines 21-38.
The Applicant stated that since in or about 2015 he has woken up in the morning with stiffness in his back[41]. The Applicant stated as at the date of the hearing that he has great difficulty bending over, with the first bend of the day being alright, but the circumstance becomes more difficult as the day goes on[42]. The Applicant stated that he had a problem standing for 10 minutes at a time[43]. The Applicant stated that the medications that he was taking at the time of the hearing were “masking pain and stiffness”[44] and they “definitely would help his range of movement”[45].
[41]          Transcript, 22 November 2019, P-24, line 5-15.
[42]          Transcript, 22 November 2019, P-24, lines 29-33.
[43]          Transcript, 22 November 2019, P-24, line 32.
[44]          Transcript, 22 November 2019, P-26, line 5.
[45]          Transcript, 22 November 2019, P-26, lines 10-11.
During the hearing, the Applicant was taken to the record of an MRI of 14 April 2016, which the Applicant stated resulted from painting his house with a roller brush[46].
[46] Transcript, 22 November 2019, P-36, lines 18-27.
The Applicant stated that he has not, to his recollection, ever had a diagnosis as to his cervical spine, which has been sore and which at times prevented him from lifting his shoulders up too high[47].
[47] Transcript, 22 November 2019, P-37, lines 17-26.
Dr Vecchio
Dr Vecchio, a rheumatologist, gave oral evidence[48]. Dr Vecchio stated his “interest in all fields’ of rheumatology, both inflammatory and musculoskeletal”[49].
[48] Transcript, 22 November 2019, P-38, line 35.
[49] Transcript, 22 November 2019, P-39, lines 1-3.
Dr Vecchio saw the Applicant on 12 May 2018[50]. Dr Vecchio stated that the Applicant did not have ankylosing spondylitis, having regard to clinical examination, where the pain was of a mechanical, not an inflammatory nature[51]. Dr Vecchio stated that his opinion was that the Applicant had lumbar spondylosis, in that the Applicant has historical mechanical back pain, which worsens with loading and/or movement and that there is radiological evidence of spondylosis because there is facet arthritis, particularly in the lower elements[52]. Dr Vecchio stated that the Applicant fits the diagnostic criteria of a degenerative problem, which fits with the clinical and historical situation as to lumbar spondylosis[53].
[50]          Transcript, 22 November 2019, P-39, lines 25-28.
[51]          Transcript, 22 November 2019, P-39, lines 35-38.
[52]          Transcript, 22 November 2019, P-39, lines 42-47.
[53]          Transcript, 22 November 2019, P-40, lines 1-5.
Dr Vecchio referred to an MRI of the lumbar spine dated 16 April 2014[54] and an x-ray report dated 2 December 2002[55].
[54] Transcript, 22 November 2019, P-41, line 45.
[55] Transcript, 22 November 2019, P-41, lines 46 and P-42, line 1.
Dr Vecchio was “100% sure” that the Applicant did not have ankylosing spondylitis and that he is not sure that Dr Thevathansan, also a rheumatologist, in 2002 was pronouncing a diagnosis or alluding to the possibility of a diagnosis[56]. Dr Vecchio stated that there was a facet joint issue as well, which is a mechanical issue not a spondylitis issue, at the time when Dr Thevathansan was seeing the Applicant[57]. Dr Vecchio found that the Applicant had clinical onset in the late 1990’s according to the Applicant’s history at the time[58]. Dr Vecchio stated that in 2002 there was some evidence of spondylosis in the x-ray at that stage from the x-ray report from the radiologist Dr Pointer[59]. Dr Vecchio stated:
“ … a young person exposed to repetitive load bearing and/or confined spaces may be exposed to micro trauma, which does some cartilage damage over a period of time, and that may allude to the diagnosis of osteoarthritis in future years and that’s what lumbar spondylosis is”[60].
[56]          Transcript, 22 November 2019, P-42, lines 38-42.
[57]          Transcript, 22 November 2019, P-43, lines 14-19.
[58]          Transcript, 22 November 2019, P-44, lines 30-33.
[59]          Transcript, 22 November 2019, P-44, lines 35-39.
[60]          Transcript, 22 November 2019, P-46, lines 26-30.
As to the x-ray report of 2 December 2002, Dr Vecchio stated that the report demonstrates that the facet joints are degenerative, not the vertical discs and that the sacroiliac joints demonstrate some degeneration as well[61]. Dr Vecchio stated that the
[61]          Transcript, 22 November 2019, P-47, lines 4-9.
[62]          Transcript, 22 November 2019, P-47, lines 11-12.
[63]          Transcript, 22 November 2019, P-47, lines 14-19.
[64]          Transcript, 22 November 2019, P-47, lines 15-16. See also P-49, lines 5-9.
[65]          Transcript, 22 November 2019, P-47, lines 32-46.
[66]          Transcript, 22 November 2019, P-49, lines 26-29.
x-ray report did not refer to disc space narrowing[62] or osteophytes[63], but that they probably are there[64]. Dr Vecchio also stated that the report doesn’t refer to diffuse idiopathic skeletal hyperostosis, Scheuermann’s kyphosis or an intervertebral disc[65]. Dr Vecchio stated that there is no doubt that there is lumbar spondylosis[66].
Dr Robinson
Dr Robinson, an orthopedic surgeon, gave oral evidence[67].
[67] Transcript, 22 November 2019, P-50, line 35.
Dr Robinson stated that the Applicant has symptoms of low back pain[68], with no radiation of the pain;[69] it is the sort of back pain developed over a period of time[70]. Dr Robinson stated that the Applicant has pain when he bends forward or when any prolonged stress is applied to the spine, just as would occur with aging[71].
[68]          Transcript, 22 November 2019, P-51, line 20.
[69]          Transcript, 22 November 2019, P-51, line 26.
[70]          Transcript, 22 November 2019, P-51, lines 20, 26 and 29.
[71]          Transcript, 22 November 2019, P-52, lines 15-17.
Dr Robinson stated that the MRI report of 14 April 2016 confirms that there is spondylosis there[72]. That is, that the Applicant had imaging evidence of degenerative change, including disc space narrowing or osteophytes in 2016[73].
[72] Transcript, 22 November 2019, P-52, lines 35-41.
[73] Transcript, 22 November 2019, P-54, lines 8-10.
As to the CT scan of 28 December 2001, Dr Robinson stated that the scan doesn’t satisfy the criteria for spondylosis, with the Applicant having “probably some early degenerative change”[74].
[74] Transcript, 22 November 2019, P-54, lines 38-44.
As to the x-ray report of 2 December 2002, Dr Robinson stated that the osteoarthritic changes could lead to osteophytes. Dr Robinson stated that osteophytes are spurs that develop in response to abnormal mechanical problems[75]. Dr Robinson stated that the condition that the Applicant “has thereof [is] a fusion [which is] hereditary or congenital in nature … [and] it’s nothing to do with wear and tear”[76]. Dr Robinson stated that any arthritis associated with that is the result of the normal tethering of that bone and not related to wear and tear and is hereditary[77]. Dr Robinson stated that the report of 2 December 2002 didn’t mention disc degeneration. Dr Robinson stated that facet joints have nothing to do with the discs[78].
[75]          Transcript, 22 November 2019, P-58, lines 5-7.
[76]          Transcript, 22 November 2019, P-58, lines 6-10.
[77]          Transcript, 22 November 2019, P-58, lines 10-13.
[78]          Transcript, 22 November 2019, P-62, lines 31-37.
LEGISLATION

It is not in contention between the parties that the matter was to be determined on “reasonable satisfaction”, pursuant to sub-section 120(4) of the Act[79]:
“(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
[79] Exhibit 17, Respondent’s post-hearing Outline of Submission, paragraph 4.1.
Section 120B of the Act states:
Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
…
(b)a claim under Part IV that relates to the defence service … rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
…
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was … defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
… ”
CONSIDERATION
It is not in contention between the parties that the Applicant has eligible defence service for the purposes of the Act[80].
[80] Exhibit 17, Respondent’s post-hearing Outline of Submissions, paragraph 2.1.
The material does raise a connection between the injury, disease or death of the Applicant and some particular service rendered by the Applicant. As referred to above, the evidence is that the Applicant has lumbar spondylosis[81] and a “young person exposed to repetitive load bearing and/or confined spaces may be exposed to micro trauma which does some cartilage damage over a period of time and that may allude to the diagnosis of osteoarthritis in future years and that’s what lumbar spondylosis is”[82]. Further, that the Applicant stated that when in submarines he would be storing 30-40 kilogram boxes in the submarine, putting those boxes in a freezer space and bending over into the freezer[83]. The Applicant stated that he was noticing problems with his back for the five years he was in submarines[84].
[81]          Transcript, 22 November 2019, P-39, lines 42-47.
[82]          Transcript, 22 November 2019, P-46, lines 26-30.
[83]          Transcript, 22 November 2019, P-21, lines 11-17.
[84]          Transcript, 22 November 2019, P-21, lines 11 and 19-20.
There is a Statement of Principles determined under s 196B of the Act: Statement of Principles concerning lumbar spondylosis No. 63 of 2014 (“the Statement of Principles”).
Paragraph 3 of the Statement of Principles relevantly states:
“(b)     For the purposes of this Statement of Principles, “lumbar spondylosis”   means a degenerative joint disorder affecting the lumbar vertebrae or   intervertebral discs with:
(i)        clinical manifestations of local pain and stiffness, or symptoms and   signs of lumbar cord, cauda equina or lumbrosacral nerve root   compression; and
(ii)       imaging evidence of degenerative change, including disc space   narrowing or osteophytes.
Other commonly associated features include facet joint arthritis, bone   hypotrophy and spinal stenosis. This definition excludes diffuse idiopathic   skeletal hyperostosis, Scheuermann’s kyphosis and bulging of an   intervertebral disc in the absence of      other signs of disc degeneration.   Lumbar spondylosis includes spondylosis at the lumbrosacral junction.
…
(d)       In the application of this Statement of Principles, the definition of “lumbar   spondylosis” is that given at paragraph 3(b) above.”
As to whether, in accordance with sub-paragraph 3(b) of the Statement of Principles, the Applicant has a degenerative joint disorder affecting the lumbar vertebrae or intervertebral discs, Dr Vecchio referred to the Applicant having a degenerative problem[85] and Dr Robinson stated that the Applicant had evidence of degenerative change[86].
[85] Transcript, 22 November 2019, P-40, lines 1-5.
[86] Transcript, 22 November 2019, P-54, lines 7-10.
As to whether there are clinical manifestations of local pain and stiffness, Dr Vecchio referred to his clinical examination and to pain of a mechanical nature[87] and Dr Robinson stated that the Applicant has symptoms of low back pain[88].
[87] Transcript, 22 November 2019, P-39, lines 35-38.
[88] Transcript, 22 November 2019, P-51, line 20.
There is imaging evidence of degenerative change, including disc space narrowing or osteophytes in the MRI report of 14 April 2016, as stated by Dr Robinson[89]. As to the CT scan of 28 December 2001, Dr Robinson stated that there was probably some early degenerative change with the Applicant[90]. As to the x-ray report dated 2 December 2002, Dr Vecchio stated that there was some degeneration but that the report did not refer to disc space narrowing or osteophytes[91]. As to osteophytes, Dr Vecchio stated that the report of 2 December 2002 doesn’t refer to them, but stated that “they are probably there”[92]. Dr Robinson stated that osteoarthritic changes could lead to osteophytes[93]. Dr Robinson also stated that the report of 2 December 2002 doesn’t mention disc degeneration[94].
[89]          Transcript, 22 November 2019, P-54, lines 7-10.
[90]          Transcript, 22 November 2019, P-54, lines 38-44.
[91]          Transcript, 22 November 2019, P-47, lines 4-19.
[92]          Transcript, 22 November 2019, P-47, lines 15-16. See also P-49, lines 5-9.
[93]          Transcript, 22 November 2019, P-58, lines 5-6.
[94]          Transcript, 22 November 2019, P-62, lines 31-37.
In the report of the CT scan of 28 December 2001 it was stated that the “disc spaces are well maintained in width” and that the L4-5 level has a “minor disc bulging with disc material making contact with the thecal sack but not deforming it. This is of doubtful clinical significance. No focal disc protrusion is seen at other levels”[95]. Paragraph 3(b) of the Statement of Principles, specifically excludes bulging of an intervertebral disc in the absence of other signs of disc degeneration. The report of 2 December 2002 as to the x-ray is imaging evidence of degenerative change, but does not indicate any disc space narrowing or osteophytes, as stated in paragraph 3(b)(ii) of the Statement of Principles. As to whether there would be osteophytes in 2002, Dr Vecchio stated that he would need to see the films to confirm[96].
[95] Transcript, 22 November 2019, P-54, lines 20-35.
[96] Transcript, 22 November 2019, P-49, lines 6-8.
The Applicant submits that there is a combination between the notes of Dr Mililli of 3 June 2004 and of the x-ray report of 2 December 2002, such that they combine as to a diagnosis of lumbar spondylosis[97]. The Applicant submits that section 119[98] of the Act is relevant to the inability to source the actual x-rays from 2 December 2002, due to the passage of time[99].
[97] Exhibit 16, Applicant’s post-hearing Summary, page 4.
[98] Section 119 of the Act states that in considering, hearing or determining and in making a decision the Commission: (f) is not bound to act in a formal manner and is not bound by any rules of evidence, but may inform itself on any matter in such manner as it thinks just; (g) shall act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities; and (h) without limiting the generality of the foregoing, shall take into account any difficulties that, for any reason, lie in the way of ascertaining the existence of any fact, matter, cause or circumstance, including any reason attributable to: (i) the effects of the passage of time, including the effect of the passage of time on the availability of witnesses.
[99] Exhibit 16, Applicant’s post-hearing Summary, page 6.
Paragraph 6 of the Statement of Principles states factors that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis is connected with the circumstances of a person’s relevant service:
“(i)       lifting loads of at least 20 kilograms while bearing weight through the   lumbar spine:
(i)        to a cumulative total of at least 150,000 kilograms within any   ten year period before the clinical onset of lumbar spondylosis;   and
(ii)       where the clinical onset of lumbar spondylosis occurs within the 25   years following that period; or
(j)        carrying loads of at least 20 kilograms while bearing weight through the   lumbar spine:
(i)        to a cumulative total of at least 3, 800 hours within any   ten year period before the clinical onset of lumbar   spondylosis; and
(ii)       where the clinical onset of lumbar spondylosis occurs within the 25   years following that period … ”.
The Applicant submitted that there is sufficient evidence as to factor 6(i)(i) as to the lifting of loads to a cumulative total[100] and factor (j)(i) as to the carrying of loads to a cumulative total[101]. The Respondent did not contend specifically against[102] the evidence as to factor 6(i)(i) as to the lifting of loads to a cumulative total[103] and factor (j)(i) as to the carrying of loads to a cumulative total[104].
[100]         Exhibit 1, T-documents, T-14, pages 52, 53, 55, and 56.
[101]         Exhibit 1, T-documents, T-9, page 24 and T-14, page 54.
[102]         Exhibit 17, Respondent’s post-hearing Outline of Submissions, paragraph 5.4. See also Exhibit 16,             Applicant’s post-hearing Summary, page 2.
[103]         Exhibit 1, T-documents, T-14, pages 52, 53, 55 and 56.
[104]         Exhibit 1, T-documents, T-9, page 24 and T-14, page 54.
The Applicant, as referred to above, served until 9 January 1980. Dr Vecchio stated that the osteophytes are probably on the 2 December 2002 x-rays and Dr Robinson stated as to the same report that “it could lead to osteophytes”. Further to factors 6(i)(ii) and (j)(ii) of the Statement of Principles, there was clinical onset of lumbar spondylosis occurring within the 25 years following 9 January 1980, in that there was, for the purposes of the Statement of Principles, a degenerative joint disorder with clinical manifestations of local pain and stiffness and imaging evidence of degenerative change, with osteophytes.
In that there are factors that exist in accordance with the Statement of Principles, it can be said on the balance of probabilities that lumbar spondylosis is connected with the circumstances of the Applicant’s relevant service. Therefore, the statement of Principles upholds the contention of the Applicant that the lumbar spondylosis is, on the balance of probabilities, connected with the Applicant’s service. There is, therefore, a reasonable satisfaction that the lumbar spondylosis is defence-caused in accordance with section 120B of the Act.
DECISION
The decision that lumbar spondylosis is not related to service dated 5 October 2017 is set aside and the matter is remitted to the Respondent for reconsideration in accordance with the finding that the Applicant’s lumbar spondylosis is defence-caused in accordance with the Act.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

.....................[SGD]............................
Associate
Dated: 17 April 2020

Date of hearing: 22 November 2019

Date final submissions received: 25 February 2020

Advocate for the Applicant: Mr A. Hornby

Advocate for the Respondent:

Mr B. Williams

[2020] AATA 865

16 April 2020

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Standing

Statutory Construction

Remedies

Procedural Fairness

Date of hearing:	22 November 2019
Date final submissions received:	25 February 2020
Advocate for the Applicant:	Mr A. Hornby
Advocate for the Respondent:	Mr B. Williams