Small and Repatriation Commission
[2000] AATA 295
•17 April 2000
CATCHWORDS – VETERANS' AFFAIRS – pension – whether applicant's cervical spondylosis war-caused – whether headaches caused by cervical spondylosis or accepted PTSD -–whether applicant entitled to pension at Special Rate – decision varied.
Veterans' Entitlements Act 1986 – ss 5(AB), 6, 7, 8, 9, 13, 24, 70, 120, 120A, 196B,
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1
Byrnes v Repatriation Commission (1993) 116 ALR 210; (1993) 177 CLR 564; (1993 67 ALJR 805; (1993) 18 AAR 1; (1993) 30 ALD 1
Deledio v Repatriation Commission (1997) 47 ALD 261; (1997) 25 AAR 396
Ogston and Repatriation Commission, unreported, 1 April, 1999, NG 773 of 1998
Repatriation Commission v Deledio (1998) 27 AAR 144; (1998) 49 ALD 193
Repatriation Commission v McLean (1998) 50 ALD 149; (1998) 27 AAR 144
Re Keeley and Repatriation Commission [1999] AATA 178
Re Ogston and Repatriation Commission (1998) 27 AAR 176
DECISION AND REASONS FOR DECISION [2000] AATA 295
ADMINISTRATIVE APPEALS TRIBUNAL )
) Q1998/848
VETERANS' APPEALS DIVISION )
Re NORMAN McLEOD SMALL
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Miss S A Forgie (Deputy President)
Brigadier I R W Brumfield (Member)
Dr D J Cull (Member)
Date 17 April, 2000
Place Brisbane
Decision The Tribunal:
1.sets aside that part of the decision of the respondent which relates to assessment of pension dated 15 October, 1997 as varied by a decision of the Veterans' Review Board dated 14 July, 1998;
2.substitutes a decision that the applicant is entitled to be paid a pension at the Special Rate with effect from 16 February, 1997; and
3.otherwise affirms the decision under review.
S A FORGIE
Deputy President
REASONS FOR DECISION
On 1 September, 1998, the applicant, Mr Norman McLeod Small, applied for review of a decision of a delegate of the respondent, the Repatriation Commission ("Commission") dated 15 October, 1997 as varied by a decision of the Veterans' Review Board ("VRB") dated 14 July, 1998. The substantive effect of the decisions was that Mr Small's claim for cervical spondylosis and headaches was refused and his pension was assessed at 50% of the General Rate.
At the hearing, Mr Small was represented by Mr O'Gorman of counsel and the Commission was represented by its advocate, Mr Dobbie. The documents lodged pursuant to s. 37 of the Administrative Appeals Tribunal Act 1975 ("T documents") were admitted in evidence together with a report by Dr Buckley dated 27 November, 1999, statements by Mr Small dated 25 March, 1999 and 26 November, 1999 and Dr White's report dated 30 March, 1999. Oral evidence was given by Mr Small in support of his case together with Dr Chittenden and Dr White. Dr Grant gave evidence on behalf of the Commission.
THE ISSUES
There are two issues in this case. The first is whether Mr Small's conditions of cervical spondylosis and headaches are war-caused within the meaning of s. 9 of the Veterans' Entitlements Act 1986 ("the VE Act"). The second is whether he is entitled to be paid pension at the special rate pursuant to s. 24 of the VE Act.
BACKGROUND
We find that Mr Small, who was born on 16 February, 1942, enlisted in the Australian Army on 3 March, 1959 when he was 17 years of age. After completing his basic training, he worked as a driver for some eight years and, on his discharge, had attained the rank of Sergeant. He served in Malaya in the Far East Strategic Reserve from 14 November, 1961 to 27 May, 1963 and in Vietnam from 22 April, 1966 to 3 March, 1967. Both periods of service are eligible war service, and so operational service, for the purposes of the VE Act. While in Vung Tau in Vietnam in 1966 and in the course of his operational service, Mr Small had an accident. At the time, he was practising embarking on, and disembarking from, helicopters.
Since his discharge from the Army on 2 March, 1968, we find that he has worked in a number of jobs but all have engaged him in driving. Mr Small suffers from the conditions of major depression, peptic ulcer disease, post traumatic stress disorder ("PTSD") and capsular strain right knee, which have been accepted as war-caused within the meaning of the VE Act.
THE EVIDENCE
Mr Small
In giving evidence, Mr Small said that he had struck his face on a car door at Holsworthy in 1965. In doing so, he had lacerated his cheek and had compressed a tooth socket. He did not hurt his neck at the time.
In his statement dated 25 March, 1999, Mr Small described the accident in Vietnam in 1966. He said that the helicopter was coming down to land and he was one of four men positioned on its skids. The helicopter lurched when it was 10 to 12 feet above the ground. Mr Small lost his footing and fell backwards. He said that he landed on his back. His head then whipped back and struck the ground while his rifle hit his knee. Mr Small was not wearing a helmet.
After the fall, Mr Small said, he was in a great deal of pain, saw stars and was groggy and nauseous. The orderlies from the Regimental Aid Post ("RAP") placed him on a stretcher, carried him to a vehicle and drove him to the RAP. Mr Small said that he did not recall being examined by a doctor and did not know whether there were any doctors at the camp at the time. Mr Small thought that a RAP Sergeant had looked at him. No X-rays were taken but he was given pain killers and his knee was bandaged with crepe bandage.
Mr Small recalled suffering severe symptoms for at least three to four weeks. His eyes were very puffy and both were black. He said that he could not blow his nose because he felt that his "eyes would pop out" (Exhibit B, paragraph 11). His neck and shoulders were very sore and stiff, he suffered from recurring headaches and he was limping. Mr Small said that he could barely remember the first two or three days after the accident. During the following three or four weeks, he was unable to undertake his normal duties and was confined to a desk job where he allocated vehicles for tasks. He was able to delegate duties to Lance Corporals and take frequent rests.
Mr Small said that he has suffered from headaches ever since the accident and has also encountered difficulties in completing any task that required him to raise his arms above his head. He has also complained on numerous occasions of problems with his neck. At times during the last ten years, he has been unable to lift his head from his pillow without using his hands for support. Mr Small takes panamax for pain and has had physiotherapy on and off for years.
Mr Small said that he was involved in a car accident at Holsworthy in early 1968. He had been conducting courses for Army drivers. Mr Small said that he was a passenger in a vehicle driven by a student driver when it overturned. At the time, it was not being driven very quickly at all but was engaged in cross country driving. The vehicle was driven up a steep incline and it rolled sideways. Mr Small was not wearing a seat belt at the time. The other driver landed on top of him. Mr Small suffered a blow to the head but was not rendered unconscious. The vehicle was righted and they drove back to camp. On returning to camp, Mr Small did not feel well and reported that he was ill. He was taken to hospital. His neck was not injured at that time. Mr Small said that he did not injure himself in that accident and just went to the hospital for a precautionary check up.
Mr Small described the headaches from which he suffers as starting in his neck up behind his left ear. They become worse when he feels tenderness in his neck and shoulder area. Physiotherapy helps the soreness in his head and neck and the headaches wane for a while after he has had that treatment. He said that he had suffered headaches for many years while driving and had lived for many years on Bex. He also suffered from pain in the arms and had to drive with his arms as low as he could. Spasmodically, he gets an ache down his left arm. He believed that he first suffered from pain in his arms in Vietnam.
In his statement of work history, Mr Small set out his various positions and his reasons for changing his employment in the following terms:
"3. I worked for SG Manning in Parramatta as a truck driver between 1968 and 1970. I left this job because climbing in and out of the tray of the truck became too much for my right knee. I also found that I had poor concentration and this caused me to suffer stress.
4.Between 1970 and 1972 I worked for PF Grahams in Penrith driving tip trucks. I found this job to be very stressful. I left this employment after a conflict with my supervisors. They told me I was inept in my ability to communicate with fellow workmates.
5.I drove semi-trailers for Linfox between 1972 and 1974. Again I found that I had poor concentration, found the job stressful and left this job.
6.To avoid the difficulties I was having dealing with workmates and supervisors, I bought a truck and drove for myself. I did this between 1974 and 1992. Unfortunately the running of the business became too much for me and I suffered from anxiety, lack of concentration, an inability to comprehend and confusion of the mind. I decided to again try working for someone else.
7.Between 1993 and 1994 I drove buses for Western Bus Company. I left this job because I could not cope with the contact I had to have with people. I experienced anxiety with a whole busload of people behind me. I could not handle the stress.
8.I worked for PF Formation at Emu Plains as a truck driver between 1994 and 1995. I did not have the confidence to cope with complex deliveries and found the job too stressful to manage.
9.I (sic) 1996 worked as a casual detailer for Surfside Ford for about a month. I found the job very stressful and found it difficult relating to my workmates. As a result I suffered extreme anxiety and could not perform the tasks required of me. My employment was terminated as I could not keep up with the work rate.
10.Although I had tried my best to stay in the workforce, I realised in 1996 that my state of mind was not good enough to keep going. I have not sought work since 1996.
11.I also acknowledge that the problems with my neck have been a difficulty at work." (Exhibit C)
In cross-examination, Mr Small said that he worked for 18-20 hours each day when he drove his own truck. That continued for a period of 5 years. When he worked for others, he worked normal 8 hour shifts and, occasionally worked overtime. He was not involved in lifting in his employment as his truck would be loaded by other people using forklifts.
Mr Small said that he looked for work in 1996 but did not do so after that time. He did not do so as he could not cope with it.
Service Records
Mr Small's Record of Service shows that he was allotted to duty in Vietnam on 22 April, 1966 and disembarked on 4 May, 1966. There is a six month period between 10 December, 1965 and 7 May, 1966 when no entries appear in his records. It would be expected that his Record of Service would show that he had received a medal for service in Vietnam but it does not. We are satisfied that there are discrepancies in the records relating to Mr Small.
In the record of the Final Medical Board before his discharge, Mr Small was asked about the disabilities, wounds or injuries he had suffered during his service. He noted on 13 February, 1968 that he had a sprained right ankle at Holdsworthy on 6 December, 1965 and RE otitis media on entering Vietnam on 23 November, 1966 (T documents, page 1). The report of the medical officer gave further details about both of these conditions. Only the former is relevant and the medical officer wrote:
"Sprained rt. ankle. Was Xrayed. No report available but was only off duty for 7 days so was probably N.A.O. No subsequent or present disability." (T documents, page 2)
In giving his oral evidence, Mr Small said that he had not mentioned the helicopter incident at the time of his discharge as he was never asked any questions about that and had not been diagnosed as having a problem with his back and his neck.
In a medical history sheet dated 27 May, 1969, Mr Small claimed his right leg injury was due to his war service. He described his symptoms to the medical officer as:
"Sore occasionally worse if jarred ? formation large lump inner aspect upper part of lower leg." (T documents, page 17)
He had first noticed these symptoms in 1966 in Vietnam when he was injured.
The medical officer wrote in the clinical history he took:
"… Jumping from a helicopter during training in Vietnam apparently sprained R leg. Untreated at the time although reported. Pain is in inner aspect R knee joint & makes walking difficult. Xrayed joint at own expense April 1969 – worse at that state & swelled for 1st time.
Painful [with] slight swelling when orig injured. …" (T documents, page 17)
Medical evidence
X Rays taken on 30 April, 1997 showed marked changes of degenerative spondylosis at C5/6 where there is disc narrowing with marginal osteophyte spurring and narrowing of the adjacent intervertebral foramina. The report also showed minor spondylotic changes at C3/4 and there are osteoarthritic changes in the apophyseal joints in the upper cervical region. (T documents, page 40)
Dr John Buckley has been Mr Small's medical practitioner since May, 1998. In a letter dated 27 November, 1999, he wrote that, for some considerable time, Mr Small has been unable to participate in the workforce because of PTSD and cervical spondylosis. These affect him in the following way:
"His post-traumatic stress disorder is a feature that has troubled him for many years and this makes him uncomfortable and anxious when working with others and handling new situations. He is constantly tense and wound up. He exhibits symptoms of anxiety including shaking and dizziness and at times has problems with his concentration. Other symptoms of post-traumatic stress disorder include sleep disorders, nightmares and flashbacks.
This is the major contributing factor to his unemployment. The second major factor that contributes to his unemployment is cervical spondylosis.
His cervical spondylosis causes him, basically, pain and limitations of movement. His neck and shoulder girdle pain is aggravated by lifting and rotatory movements of the cervical spine. Previous occupation involving truck driving involve substantial amounts of this sort of activity." (Exhibit A)
In Dr Buckley's view, there were no other significant medical conditions that prevented him from working. Mr Small does suffer from a capsular strain in his right knee. That prevents him from carrying loads of 10kg or more. In his view, Mr Small's headaches are unlikely to contribute to his inability to work. In the 18 months he had treated him, Mr Small had barely mentioned headaches to him.
Dr Judith Chittenden is a specialist in psychological medicine. She has treated Mr Small since January, 1998 and, by the time of the hearing, had seen him on some 10 occasions. In her report dated 11 March, 1998, she set out Mr Small's history of service. She made particular reference to the stresses of his service but it is not relevant to this case to set those out in any detail. Her personality and psychological assessment is, however, relevant and we will set that out. After describing his close relationship with his future wife and his initial enjoyment of Army life, Dr Chittenden continued:
"However, after the Vietnam war, he appeared to have considerable psychological difficulties which he coped with fairly well in the work situation as he chose lonely, isolated type (sic) of occupations, where he would meet as few people as possible, but when he did, he was often rude, abrasive and difficult to get on with. This particularly occurred within the family setting, where Mr Small seemed to resent any people coming around to the home whilst he was there. This affected his wife and children quite considerably, as they felt that they could not mix with friends, relatives, or any other people comfortably.
Mr Small was obviously a competent worker, continuing to drive trucks for most of his working life. He was a reliable man, a good worker, but known as a loner. After Vietnam, Mr Small's involvement with his family became less and less, and although his wife was very loyal and supportive, she found life very difficult at times. Since having lost his job, Mr Small finds his psychological problems becoming worse, which is probably due to the fact that he has more time to think, and he has much less to do.
He feels upset, distressed and shamed by the fact that he is not working, and has obviously tried his best to obtain work, but he also accepts the fact that his psychological disability militates against him being employed again. Mr Small's present history has only become known through being involved with veterans' counsellors, who have gradually helped him understand that his psychological disability probably was acquired during his war years. This has enabled Mr Small to talk more about his experiences, and therefore to come to terms with some of it.
Mr Small's present symptoms include feeling miserable and sad, lethargic, weepy, he has lost interest in previous occupations and interests, he is more irritable over the years, he gets very anxious and tense, and he also has panic attacks. He gets headaches recurrently, which he previously put down to having had a fractured skull, but possibly may be due to tension. He gets palpitations, and finds it extremely difficult to get out of the house on his own. He is totally unable to mix with crowds and has great difficulty meeting new people.
He feels constantly scared and frightened, but he is not sure of what, and he feels very tense and wound up. He does not find it easy to do the things he used to, he feels unable to have a good time and that everything is an effort. He has poor concentration, difficulty in making decisions, and constantly feels 'down in the dumps'. He hates meeting people and avoids it whenever he can. Mr Small has a number of physical symptoms which are neck pains, headaches, trembling and shaking, palpitations, dizziness, which could be attributable to his anxiety state.
Mr Small also has stomach pains and stomach fullness, and he did say that he had symptoms of a peptic ulcer for the (sic) about the last 20 to 25 years, which he felt initially started in Vietnam, as the first six months they had dehydrated foods only and no fresh food or vegetables. Mr Small is afraid that he may have a fatal illness such as cancer, and often he feels that life is not worth living. He has quite a severe sleeping disturbance, he has difficulty getting off to sleep, is restless and often wakes early or in the middle of the night when he often gets up and sits in a chair. He has nightmares occasionally, and this often involves bodies and burials and chaotic situations. He also has memories of his friend who died when he was with him in Vietnam, which still distress (sic) him considerably.
Since Mr Small has not been employed, many of his symptoms have become worse, which is fairly typical of that of chronic Post Traumatic Stress Disorder, which has been in the background for years, but has now become more intrusive due to this generally psychological disabilities (social avoidance and lack of physical activity) and also because he feels that he has no meaningful activity at present. He has too much time to think, and too many unpleasant memories to put into the void.
As a result of his mental attitude, his cigarette consumption has been high over the years and now he has forty to forty-five cigarettes a day on a 'roll your own' basis. He drinks over the accepted amount of alcohol for a man of his age, and he admits that he has drunk far more heavily in the past, particularly while he was in the Army. He feels he cannot stop either his drinking or smoking due to the fact that he has so much anxiety at present. " (T documents, pages 66-67)
In giving oral evidence, Dr Chittenden said that Mr Small's condition waxes and wanes. He suffered difficulties immediately after his Vietnam experiences but, at first, he managed well. Over the years, he has decompensated and his condition is now very severe. If PTSD were his only condition, he would not be able to work at all. That follows from the fact that he is quite unable to keep his mind on any work at all. He is extremely anxious and has a lot of intrusive memories. Mr Small suffers from pervasive anxiety and depressive symptoms as well as being virtually isolated in his house because of his anxieties and because he is suicidal. Apart from his wife, whom he regards as his only friend, Mr Small is isolated from his family and just cannot cope with being with them.
Mr Small suffers from psychosomatic headaches. It can be difficult to work out whether they are the result of PTSD or cervical spondylosis but, in Dr Chittenden's opinion, they are tension headaches.
Dr Chittenden said that Mr Small had improved a lot since she first saw him in 1998 but he is still severely incapacitated. He is just maintaining his balance and she did not expect that he would get any better. He is quite incapacitated for employment.
Dr David White is an orthopaedic surgeon who, at the time of the hearing, had seen Mr Small on one occasion. In his report dated 30 March, 1999, Dr White set out Mr Small's history in terms similar to Mr Small's evidence to us. Mr Small had complained to him of headaches that started in the back of his skull towards the left side and radiate forward to a point behind his ear when his neck is bad. He also complained of problems with his left arm since his accident in Vietnam and, over the previous 12 months, had suffered from persistent pain that radiated down his arm to his elbow. At times, he experiences pins and needles in his left middle, ring and little fingers which go to sleep.
After considering Mr Small's symptoms, the X Rays taken on 30 May, 1997 and the results of his examination, Dr White concluded that his symptoms were consistent with a long-standing cervical injury that had resulted in disc disruption, accelerated degenerative change and nerve root impingement. Radiological evidence showed cervical spondylosis with foraminal encroachment by osteophytes. In Dr White's opinion, Mr Small's clinical and radiological picture were consistent with the type of trauma he had described in Vietnam. Headaches of the type described by Mr Small are consistent with the flexion/extension or whiplash injuries and the subsequent development of cervical spondylosis. He disclaimed having any expertise in the diagnosis of headaches related to stress and other intra-cranial causes.
In Dr White's opinion, Mr Small suffers from cervical spondylosis within the meaning of paragraph 2(b) of the Statement of Principles Instrument No. 56 of 1998 ("SoP 56"). Its onset is consistent with the factors set out in paragraph 5(h) of that SoP. According to Table 3.1 of the Guide to the Assessment of the Rates of Veterans' Pensions ("GARP"), his permanent impairment was 10%.
At the conclusion of the hearing, we raised with Mr O'Gorman and Mr Dobbie some gaps in the evidence. Dr White was subsequently asked three questions. He felt that he was qualified to comment only upon the first two which were:
"1. Do you consider that Mr Small's cervical spondylosis (which has not been accepted as war caused), would have contributed to his cessation of remuneration employment or his inability to continue in remunerative employment? If so, to what degree?
2.Is Mr Small's cervical spondylosis a substantial cause of his inability to undertake remunerative work?."
In a letter dated 19 January, 2000, Dr White answered these questions:
"This man's cervical spondylosis would not, in itself, prevent him from engaging in gainful employment.
He would however have significant pain performing those duties requiring heavy physical labour or maintenance of the head and neck in fixed positions for extended periods of time.
His cervical spondylosis is significant but it has been well established and reported in the orthopaedic literature that there is no significant correlation between the radiological appearance of degenerative change, pain and employment.
In this regard I refer you to the authoritative text book on the subject 'Macnab's Backache', Third Edition, 1997, Page 217 where a survey of middle-aged heavy workers were radiologically assessed in relation to the absence of low back pain.
It was found in this survey that many with radiological evidence of severe degenerative change denied even a 'twinge' of back pain."
Dr Peter Grant is the Senior Medical Officer at the Department. He had assessed Mr Small's impairment due to cervical spondylosis on the papers according to GARP.
LEGISLATIVE FRAMEWORK
Section 13(1) of the VE Act provides that, subject to the VE Act, the Commonwealth is liable to pay a pension by way of compensation to a veteran if his or her injury or disease was war-caused. The amount of that pension and the terms under which it is payable are determined by the VE Act. Pursuant to s. 70(1), the Commonwealth is liable to pay pension by way of compensation to a member of the Forces if he or she has become incapacitated from a defence-caused injury or defence-caused disease.
Provisions relevant to a consideration of whether the conditions are war-caused
A veteran's injury or disease is taken to have been "war-caused" if it meets one of the criteria specified in s. 9. In so far as this case is concerned, only
s. 9(1)(b) is relevant. It provides that:
"… for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) …
(b)the injury suffered, or disease contracted by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;"
The standard of proof which must be used in determining whether or not a veteran's injury or disease is taken to be war-caused is set out in s. 120. That section sets out two standards and which of those two is applicable depends upon whether the injury or disease is said to relate to a veteran's operational service or otherwise. Both are relevant in this case as Mr Small has both operational service and defence service and he has related his conditions to one or both of them.
In so far as his claim relates to his operational service, s. 120(1) is relevant. It provides:
"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."
Section 120(3) deals with the situation in which the Commission must be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining, among other matters, that the disease was war-caused. It provides:
"In applying subsection (1) ... 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."
Section 120(3) must be read with s. 120A of the Act. In so far as it is relevant, it provides that:
"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) ...;
(b)...
that upholds the hypothesis." (s. 120A(3))
Section 120A(4) provides that s. 120A(3) does not apply if the Repatriation Medical Authority ("RMA") has neither determined a SoP under s. 196B(2) nor declared that it does not propose to make such a SoP in respect of the particular death or injury in issue.
The RMA must prepare a SoP in situations prescribed in the Act. In respect of cases to which ss. 120(1) and (3) apply, it has the following role:
"If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a) operational service rendered by veterans; or
(b)peacekeeping service rendered by members of Peacekeeping Forces; or
(c)hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service." s. 196B(2))
Section 196B(14) defines the concept of "related to service" in terms consistent with those used in s. 9 for the definitions of "war-caused injury" and "war-caused disease" and of "war-caused death" in s. 8. In so far as this case is concerned, only s. 196B(14)(b) is relevant. It provides that:
"A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(b)it arose out of, or was attributable to that service;"
"Sound medical evidence" has the meaning given in s. 5AB(2)
(s. 5 AB(1)):
"Information about a particular kind of injury, disease or death is taken to be sound medical-scientific evidence if:
(a)the information:
(i)is consistent with material relating to medical science that has been published in a medical or scientific publication and has been, in the opinion of the Repatriation Medical Authority, subjected to a peer review process; or
(ii)in accordance with generally accepted medical practice, would serve as the basis for the diagnosis and management of a medical condition; and
(b)in the case of information about how that kind of injury, disease or death may be caused - meets the applicable criteria for assessing causation currently applied in the field of epidemiology."
The manner in which the provisions of ss. 120(1) and (3) inter-related prior to the introduction of SoPs was considered by the High Court in the cases of Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrnes v Repatriation Commission (1993) 116 ALR 210. In Byrnes, Mason CJ, Gaudron and McHugh JJ summarised the approach to be adopted in applying those sub-sections:
"The position may be summarised as follows:
(1)First, subs(3) of s120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point.
(2)If a reasonable hypothesis is established, sub-s. (1) of s.120 is applied The claim will succeed unless:
(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
(b)the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt,
thus disproving, beyond reasonable doubt, the hypothesis." (page 215)
In relation to the first step, their Honours had earlier said:
"The statement in Bushell that the material must point to some fact or facts which support the hypothesis means no more than that the material before the commission must raise some fact or facts which give rise to the hypothesis. When that fact or those facts have been identified, the question for determination is whether the hypothesis is reasonable. In Bushell, Mason CJ, Deane and McHugh JJ said:
'… a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature." [Commissioner for Government Transport v Adamcik (1961) 106 CLR 292, at 306] Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous'.
In some cases, the hypothesis may assume the occurrence or existence of a 'fact'. That itself does not make the hypothesis unreasonable. So, in the present case, the appellant's hypothesis is not unreasonable simply because it assumes that the appellant sustained a severe injury when he dived into a swimming pool in Townsville, notwithstanding that the materials before the commission did not reveal the extent of the injury which he then suffered." (page 214)
The SoPs were introduced after the High Court's judgement had been handed down. The manner in which ss. 120(3) and (4) inter-relate with the provisions of a SoP was considered by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261. An appeal from his judgement was dismissed by the Full Court of the Federal Court (Repatriation Commission v Deledio (1998) 27 AAR 144, Beaumont, Hill and O'Connor JJ). After considering the structure of the Act and its various amendments and the judgements of the High Court in Bushell v Repatriation Commission CLR 408 and Byrnes v Repatriation Commission, his Honour concluded:
"Therefore when s 196B(2) says a factor 'must ... exist' and 'must be related to service', it is not interfering with the functions of ss120(3) and 120(1). On the contrary, the RMA is to identify the minimum factors which can connect the particular kind of injury etc with the circumstances of the particular kind of service (operational etc). If there is more than one factor the RMA is to determine which of them (or whether all of them) must be related to the circumstances of the service (see above). The particular claim then has to fit the template laid down in the SoP. The Byrnes methodology is applied. Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii)since (1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
At no stage is there an onus of proof on the claimant. If one of the disputed facts happens also to be a component of an SoP then the commission must disprove that fact beyond reasonable doubt, just like any other relevant fact. For example, in the present case the factors in the SoP include 70 gm/day consumption for at least 20 years. As it happens there was no dispute in the present case that the veteran's intake in fact was of this order. But if the commission were to deny this, then s 120(1) requires the commission to prove beyond reasonable doubt that the veteran's intake was in fact less than the SoP level. Put another way, the SoP system does not have the effect that some of the facts relevant to a claim, viz those facts which coincide with factors set out in an SoP, have to be proved by the claimant. Such a view would be inconsistent with the retention of ss 120(1) and 120(3) in the face of the Baume committee's in the face of the Baume committee's recommendations [in its report entitled "A Fair Go: Report on Compensation for Veterans and War Widows"]. Still less do the 1994 amendments have the effect, as happened in the present case, that the claimant has to prove all the facts raised by the hypothesis." (page 275)
In its judgement on appeal, the Full Court of the Federal Court summarised the course that must be followed in a case involving a SoP. It said:
"… we would restate the course which the Tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 Amendments) 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 that person as follows:
1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11) of the 1986 Act. If no such SoP is in force, the hypothesis will be taken not be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the 'template' to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by s 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not be 'reasonable' and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved." (pages 159-160)
Statements of Principle
Since Mr Small lodged his claim on 14 May, 1997 in respect of cervical spondylosis, the relevant SoP has changed. At the time of his claim and up to and including the review by the VRB, the relevant SoP was SoP 161 of 1996. On 3 September, 1998 and after Mr Small had lodged his application for review in the Tribunal, that SoP had been replaced by SoP 56 of 1998. On 25 February, 1999 and by the time of the hearing, SoP 56 had, in turn, been replaced by SoP 31 of 1999.
There has been some question in the past as to the SoP that should be followed in such cases. The question was raised in Repatriation Commission v McLean (1998) 50 ALD 149 but Davies J, who noted that there was conflicting authority, declined to answer it (page 155). The then President of the Tribunal, Mathews J, considered a related question in Re Ogston and Repatriation Commission (1998) 27 AAR 176. In that case, Mrs Ogston had claimed a war widow's pension after 1 June, 1994 but before a SoP had been made in relation to the disease from which her husband had died. A SoP was subsequently made and the Commission applied it in refusing her claim. Mathews J decided that the Commission was bound to apply the SoP in those circumstances. An appeal against her decision was dismissed (Ogston and Repatriation Commission, unreported, 1 April, 1999, NG 773 of 1998). The High Court refused an application for special leave in late November, 1999.
In Re Keeley and Repatriation Commission ([1999] AATA 178), the Tribunal decided to apply the later SoP. An appeal to the Federal Court was allowed by Heerey J who distinguished Ogston ([1999] FCA 1103). An appeal from his decision to the Full Court has been heard and reserved.
Rather than considering further the existing state of the authorities and, in view of them, reaching our own decision as to the appropriate SoPs to apply, we have considered Mr Small's claim in respect of each SoP. As it turns out, the factor upon which he relies is the same in each. That is factor 5(g) in SOP 161 of 1996 and factor 5(h) in SoPs 56 of 1998 and 31 of 1999 and they each read:
"The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting cervical spondylosis or death from cervical spondylosis with the circumstances of a person's relevant service are:
……suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis;
…"
Each of the SoPs defines the expression "trauma to the cervical spine" but there are variations in those definitions. SoP 161 of 1996 defines it as:
"'trauma to the cervical spine' means an injury to the cervical 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 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;"
The definition in SoP 31 of 1999 is in substantively the same terms although differently set out. That in SoP 56 of 1998 makes no reference to medical treatment.
Provisions relating to assessment of the rate of pension
Section 21A of the VE Act provides that the Commission shall determine a veteran's degree of incapacity from a war-caused injury or war-caused disease according to the Guide to the Assessment of Rates of Veterans' Pensions ("GARP").
Section 24 provides for the payment of a pension at the Special Rate. It only applies if Mr Small made his claim under s. 15 for an increase in the rate of the pension that he or she is receiving and had not turned 65 at that time (ss. 24(aa) and (aab)). As he was only 55 years of age at the time, he meets those criteria.
Section 24(1)(a)-(c) go on to provide, in so far as they are relevant, that the section applies to a veteran if:
"(a) either:
(i)the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force;
(ii)or
(ii)…
(b)the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
(c)the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity."
Section 24(1)(c) is qualified by ss. 24(2)(a) and (b) which provide:
"For the purposes of paragraph (1)(c):
(a)a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
(b)where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking."
CONSIDERATION
On the basis of Dr White's evidence, we are satisfied that Mr Small suffers from cervical spondylosis. Mr Small claims that this condition is war-caused because, in falling from the helicopter in 1966 in Vietnam while on operational service, he suffered a trauma to his cervical spine that trauma led, in turn, to his developing cervical spondylosis. Having regard to the written and oral evidence, there is material that points to that hypothesis and that hypothesis would connect his cervical spondylosis with the circumstances of his service. That material comes from Mr Small's own evidence and is also based on the material of Dr White, who formulated his opinion on the basis of Mr Small's evidence.
The hypothesis is not contrary to any proved or known scientific facts. Is it consistent with the applicable SoP? That is to say, is it consistent with the factor expressed in each of the SoPs that Mr Small must not only have suffered an injury but must, within 24 hours, have developed acute symptoms and signs of pain, tenderness and altered mobility or range of movement which lasted for at least 7 days? In so far as the material points to his having suffered such symptoms, it is material that relies solely upon Mr Small's memory. There is no material in the service records that supports Mr Small's memory. There is nothing in those records that refers either to his fall from the helicopter or to his having suffered injuries. Certainly, there appear to be inaccuracies in the records in that, for example, there is no record of the service medals to which he was entitled. The records relating to his discharge do not refer to an injury to his neck. They do show that he told the medical officer about his sprained right ankle and ear infection.
When all of the material is considered, we consider that the hypothesis proposed on behalf of Mr Small is too remote or too tenuous. That is not to say that we consider Mr Small to be dishonest. On the contrary, we consider that he is an honest person who related events as he recalled them. Due to the stresses he has suffered since his service in Vietnam and simply because of the passage of time, his memory has become clouded. It is too clouded to be able to be regarded as having reliability and so to be able to be regarded as material that can point to the hypothesis. In view of this, we have concluded that the hypothesis which is sought to link Mr Small's cervical spondylosis with his war service is too remote or too tenuous. It follows that we do not consider that the material points to a reasonable hypothesis connecting Mr Small's cervical spondylosis with the circumstances of his service.
That leads us next to an assessment of Mr Small's pension. Those of his conditions that have been accepted as war-caused are major depression, peptic ulcer disease, PTSD and capsular strain right knee. On the basis of the evidence of Dr Buckley, we find that Mr Small does not suffer from bicuspid aortic valve disease and suffers from no symptoms relating to aortic valve pathology.
We do find that he suffers from headaches but we find that the headaches are due to his major depression and PTSD rather than to his cervical spondylosis. We have reached that conclusion in the first instance on the basis of the evidence of Dr Chittenden. The headaches Mr Small described were, in her opinion, consistent with that cause. That is not, of course, determinative of the matter for Dr White said that they were equally consistent with cervical spondylosis. We prefer Dr Chittenden's evidence on this occasion as Mr Small has no ongoing history of headaches. His general practitioner, Dr Buckley said that headaches had been barely mentioned and he was familiar with Mr Small's history. His statement of 26 November, 1999, when read with Dr White's most recent report and in light of Dr Chittenden's evidence, leads us to find that Mr Small's cervical spondylosis has caused him very little difficulty over the years. Except for difficulties caused by his right knee between 1968 and 1970, the difficulties which he described as occurring in the workplace focused upon his anxiety, lack of concentration, confusion and conflict with others. There is no reference to any difficulties caused by his cervical spondylosis in Mr Small's statement. Dr Chittenden's evidence painted a person who is easily confused and we consider that he has become confused about the cause of his difficulties.
In considering the assessment, we have had regard to the evidence to which we have referred and also to the Lifestyle questionnaire completed by Mr Small on 26 November, 1999, Dr Buckley's report dated 11 March, 1999 and Dr Grant's combined impairment worksheet.
In relation to Mr Small's capsular strain right knee, we are satisfied, on the evidence, that he has not suffered any loss of movement. There is no impairment rating under Table 3.2.1. Mr Small is unable to stand for long periods and cannot walk long distances without resting. His impairment rating is 5 pursuant to Table 3.2.2 and, after being adjusted for his age according to Table 3.6.1, his rating remains 5.
With regard to his major depression and PTSD, we must rate him according to Tables 4.1 to 4.8. We are satisfied that Mr Small should be rated as 10 impairment points under Table 4.1 as he suffers from very frequent symptoms causing him moderate distress. At times, he is caused considerable distress. Often, he is unable to distract himself from his distress even with a high level of support such as that provided by his wife and his medical practitioners. That distress and pre-occupation is obvious to observers and even persons unfamiliar with him. As Dr Buckley said, he has "flatness of affect", fidgets a lot, breaks down in tears and is irritable. Pursuant to Table 4.2, his impairment rating is 10.
Pursuant to Table 4.3, he has a rating of 6. That is so as we are satisfied that his distress is apparent. His preoccupation with his symptoms is noticeable to his family. Dr Chittenden describes a person whose condition waxes and wanes but who, apart from the company of his wife, is isolated in every sense. As we are satisfied that he is unable to work because of his PTSD and major depression, we find that he has an impairment rating of 8 under Table 4.4. Apart from that with his wife, his relationships with the members of his family, including his children, are broken. Divorce would be a likelihood if it were not for the extraordinary perseverance and devotion of his wife. His family functioning is deteriorating and the bonds between him and his children are already broken. The appropriate rating is 6 under Table 4.5. As we find that Mr Small has withdrawn from all social contact other than that with his wife and a handful of Vietnam veterans, we find that the appropriate rating under Table 4.6 is 6.
On the basis of Dr Buckley's report, we find that he has abandoned golf because of his inability to interact with others. He has not abandoned it because of his cervical spondylosis. We prefer Dr Buckley's evidence to that of Mr Small's own statement attached to his lifestyle questionnaire. As we have noted earlier, Mr Small's condition has led him to become confused as to what is causing his difficulties. The appropriate rating under Table 4.7 is 6. Under Table 4.8, the appropriate rating is 3 as there is evidence that Mr Small requires psychiatric treatment in the form of medication or psychotherapy and requires regular supportive therapy. There is no evidence that he has required in-patient hospital care.
According to GARP, we add the impairment ratings from Tables 4.1 (10) and 4.2 (10) and the three highest ratings from Tables 4.3 to 4.8 (8, 6 and 6). This leads to a total of 40 impairment points.
Mr Small's peptic ulcer is, on the basis of Dr Buckley's evidence, controlled by medication. It does not, pursuant to Table 6.1.6, attract an impairment rating. We have combined Mr Small's impairment ratings according to Table 18.1 and have determined that he has a combined impairment rating of 43. As that rating must be rounded up, Mr Small's impairment rating is 45.
That brings us to lifestyle effects which are the subject of Chapter 22 of GARP. Mr Small originally chose to self assess, which is one of the three options permitted by GARP. We are required to take into account the latest option chosen by Mr Small (GARP, page 263). Mr Small has completed a Lifestyle Questionnaire on 26 November, 1999. We have taken into account his answers in that questionnaire and in the annexure as well as the evidence given at the hearing.
Table 22.1 is concerned with personal relationships. A rating of 5 is applicable as we find that he has lost the society of almost all of his family and friends. He is able to relate only to his wife and with a few Vietnam veterans. His relationships are severely affected. Mr Small is unable to use public transport because his anxiety prevents him from doing so. His headaches affect his ability to drive but there is no evidence of any restrictions on his mobility due to his war-caused conditions. A rating of 1 is appropriate under Table 22.2.
Table 22.3 is concerned with recreational and community activities. On the basis of Mr Small's evidence and that of Dr Chittenden, we are satisfied that he has grave difficulties in forming relationships or having any social interaction apart from those limited relationships he already has. Mr Small attributed his not playing golf to his knee and neck problems but, quite apart from those problems, we are satisfied that his other difficulties would prevent him from playing golf with anyone other than himself. While it is true that every golfer plays the course and so plays alone, the reality is that golf is generally a recreational activity enjoyed (be it at a social or competitive level) in the company of others. Mr Small's psychiatric conditions prevent him from enjoying it in that way. He is able to pursue such activities as reading, watching television or listening to music a little each day. An impairment rating of 4 is appropriate.
Table 22.4 is concerned with domestic activities. In so far as his war-caused conditions are concerned, we find that his domestic activities are not altered. His rating is nil.
An impairment rating of 5 is appropriate under Table 22.5. We accept the evidence of Dr Chittenden that Mr Small is unable to work due to his major depression and his PTSD.
In accordance with Table 22, we must now add together the ratings we have assessed in accordance with Tables 22.1, 22.2 and 22.3 (i.e. 5, 1 and 4) and the higher of Tables 22.4 and 22.5 (i.e. 5). The total of 15 must be divided by 4 (i.e. 3.75) As the answer must be rounded up, Mr Small's lifestyle rating is 4.
Taking Mr Small's impairment rating of 45 with his lifestyle rating of 4 leads to the conclusion that his degree of incapacity is 80%. This means that we must now look to whether he is entitled to a pension at the Special Rate. Our assessment of his incapacity means that he meets s. 24(1)(a) of the Act. On the basis of the evidence of Dr Chittenden and in view of our findings as to the real (and much reduced) significance of Mr Small's cervical spondylosis, we are satisfied that Mr Small's incapacity from his major depression and PTSD is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week.
That brings us to s. 24(1)(c). Is Mr Small, by reason of his incapacity from his major depression and PTSD alone, prevented from continuing to undertake remunerative work that he was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity? Did he cease to engage in remunerative work for reasons other than that incapacity or was he incapacitated, or prevented, from engaging in remunerative work for some other reason? Mr Small has the condition of cervical spondylosis but, for the reasons we have given earlier in these reasons, we are satisfied that this condition played no part in his decision to stop working. The only time that his cervical spondylosis had any effect upon his decision to change his employment was in 1970. Mr Small's statement reveals that every decision made after that date, including his decision to stop working altogether, was based on the functional difficulties caused by his major depression and PTSD. In view of that, we are satisfied that he ceased to engage in remunerative work solely because of the incapacity from his war-caused conditions. There was no question raised at the hearing that Mr Small has suffered a loss of salary, wages or earnings by reason of his ceasing to engage in remunerative work and we accept that he has. It follows that we are satisfied that Mr Small meets the criteria prescribed by s. 24(1)(c) and that he is qualified for a pension at the special rate.
For the reasons we have given, we:
1.set aside that part of the decision of the respondent which relates to assessment of pension dated 15 October, 1997 as varied by a decision of the Veterans' Review Board dated 14 July, 1998;
2.substitute a decision that the applicant is entitled to be paid a pension at the Special Rate with effect from 16 February, 1997;
3.otherwise affirm the decision under review.
I certify that the seventy seven preceding paragraphs are a true copy of the reasons for the decision herein of Miss S A Forgie (Deputy President), Brigadier I R W Brumfield (Member) and Dr D J Cull (Member)
Signed: ......................................………
S Thomson Personal AssistantDate of Hearing 3 December, 1999
Date of Decision 17 April, 2000
Counsel for the Applicant Mr D O'Gorman
Solicitor for the Applicant Price & Roobottom
Advocate for the Respondent Mr J Dobbie
0
5
0