Stanley and Repatriation Commission
[2001] AATA 279
•5 March 2001
DECISION AND REASONS FOR DECISION [2001] AATA 279
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/317
VETERANS' APPEALS DIVISION )
Re robert michael stanley
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date5 March 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/317
)
VETERANS' APPEALS DIVISION )
Re: ROBERT MICHAEL STANLEY
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 5 March 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE AND THE Tribunal substitutes in lieu thereof its decision, namely
THAT the Applicant is entitled to pension for the war-caused disease of Lumbar Spondylosis as and from 26th day of July 1998
AND THAT the Applicant is entitled to be paid pension for incapacity caused by all war-caused injuries and diseases at the Special Rate of pension as per section 24 of the Veterans' Entitlements Act 1986 as and from the 26th day of July 1998.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – operational service – need for Tribunal to be satisfied beyond reasonable doubt events deposed to by Applicant did not occur – danger in attempting to explain the phrase beyond reasonable doubt.
Veterans' Entitlements Act 1986 – subss120(1) and (3), s120A
Repatriation Commission v Keeley [2000] FCA 532
Repatriation Commission v Deledio 83 FCR 82
Dixon v Repatriation Commission 29 AAR 235
Green v Queen 126 CLR 28
Cavell v Repatriation Commission 9 AAR 534
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed:
..................................................................................……………………………….Associate
Date of Hearing 5 March 2001
Date of Decision 5 March 2001
Counsel for Applicant Mr D PriceSolicitor Applicant R L Whyburn & Associates
Advocate for Respondent Mr P Godwin, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/317
STANLEY and REPATRIATION COMMISSION
M. D. Allen, Senior Member
SYDNEY 5 MARCH 2001SENIOR MEMBER: In this matter, the applicant, pursuant to an application lodged with the Tribunal on the 29th day of February 2000, sought review of a decision by the respondent on 20 November 1998 refusing his claim for lumbar spondylosis and continuing payment of disability pension at 70 per cent of the general rate. That particular decision was affirmed by a Veterans' Review Board on the 11th day January 2000. The applicant's claim in this matter was made to the respondent on 26 October 1998. The claim relates to service in the Republic of South Vietnam and as such constitutes operational service as that term is defined in the Veterans' Entitlements Act 1986, that being so, the standard of proof in this matter is that prescribed by section 120 subsections (1) and (3) of the said Act. Those particular subsections state inter alia that:
Where a claim under Part II for a pension in respect of the incapacity from injury or disease 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 … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Subsection (3) of section 120 provides that the Tribunal shall be so satisfied if:
… 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 … with the circumstances of the particular service rendered by the person.
Section 120A of the Veterans' Entitlements Act then goes on to provide that an hypothesis connecting an injury or disease with the circumstance of any particular service is reasonable only if it conforms with the so-called Statement of Principles upholding the hypothesis.
In this matter, there is a Statement of Principles being number 52 of 1998. In passing, I would mention that it has been made clear by the decision of the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532 that the Statement of Principles to be applied is that which was in force at the time the respondent made its original decision. The manner in which the Tribunal should then approach the reasonable hypothesis standard and the fact that a claim can only be refused if the
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©Auscript Pty Ltd 2001Tribunal is satisfied beyond reasonable doubt that it is not war-caused and the so-called Statement of Principles was discussed by the Full Court at the Federal Court in Repatriation Commission v Deledio 83 FCR 82. At page 87 the court said that the course the Tribunal must take is:
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). …
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 ss 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 to 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.
The matter was further discussed by Wilcox J in Dixon v Repatriation Commission 29 AAR 235. At page 242-43 his Honour said:
Once the decision-maker identifies a relevant Statement of Principles (step 2 in the Deledio summary) the decision-maker must 'form the opinion whether the hypothesis raised is a reasonable one'. It will be a reasonable one if (and only if) it contains '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'. However, at this stage the decision-maker is not concerned with the accuracy of the
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©Auscript Pty Ltd 2001material giving rise to the hypothesis; the decision-maker is still working under s 120(3). The two steps additional to those identified in Byrnes – that is, steps 2 and 3 in the Deledio formulation – are simply limitations on the result that may be obtained in connection with the first of the two Byrnes steps. As the Full Court said in Deledio, it is only at the step 4 stage of the process 'that the Tribunal will be required to find facts from the material before it'…
His Honour then went on to say:
The question whether a decision-maker reaches a conclusion adverse to a claimant at the step 3 stage or the step 4 stage is not a mere technicality.
Prior to that, his Honour had out as is the crux in the matter:
If the Tribunal had been satisfied beyond reasonable doubt that Mr Dixon did not undergo the experiences he claimed, or that any experiences he did undergo did not cause the generalised anxiety disorder he claimed to suffer, this would have been a proper basis for achieving the satisfaction mentioned in s 120(1) and dismissing his appeal.
The only other matter to be noted here is, of course, that sub section (6) of section 120 provides that there is no onus of proof upon either party to this review. The applicant's evidence today is that whilst serving in South Vietnam as a maintenance carpenter at 1 Australian Field Hospital he was on a Sunday, being a day off, playing a game of rugby against another Australian unit. The match apparently had been organised by Colonel Norton, the commanding officer of the hospital. The applicant who was playing hooker was injured when a scrum collapsed. He said when the scrum collapsed his leg and buttocks remained static whilst his upper body was pushed back and over the second row resulting in a shearing effect. He added in a statement he made:
One thing that is very clear in my mind today is the pain in my back at the time the scrum collapsed.
He said today he was helped from the field and lay down. He later went back to his unit by landrover. He then went to his hub, took some Codeine tablets which were readily available, the unit being a hospital, and then simply rested in bed. Later he went about his duties as a maintenance carpenter and as he was in effect his own boss he was able to place himself on light duties as he said he was able to keep a low profile and not do any heavy work until he felt able to do it. He was asked how long that went on for and said that the pain diminished over a couple of weeks. He did have
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©Auscript Pty Ltd 2001difficulty walking and his main treatment was by self administered Codeine tablets. He mentioned that he dragged his feet.
In the proceedings today, the applicant's evidence was challenged on two bases. First, the fact of the very occurrence of the injury to which he gave evidence and, secondly, as to the degree of any injury which followed. As to conformity with the Statement of Principles, I would refer, first of all, to the reports of Professor Sambrook to the Respondent. In the first of his reports dated 22 June 2000 which became exhibit R2 Professor Sambrook took the following history:
Mr Stanley told me he first developed back pain whilst performing the jungle training course at Canungra when he had to perform an exercise of carrying another soldier on his back. He also recalled developing pain in his back when jumping out of trucks, jarring his back. During his service in South Vietnam, he played rugby and recalled that whilst playing as a hooker on one particular occasion a scrum collapsed. He told me his back was 'in agony' for some days after this and he could remember this episode quite distinctly.
He first began to develop clinical back pain in the late 1970s …
Professor Sambrook notes that a CT scan performed on 10 August 1992 showed advanced degenerative changes with disc herniations at L3/4, L4/5 and L5/S1. He then states:
Although Mr Stanley had some episodes of back pain in Canungra and South Vietnam, the true clinical onset of his lumbar spondylosis is in the late 1970s when he first came to medical attention.
Then under the heading of Statement of Principles, Professor Sambrook stated:
I have reviewed instrument 52 of 1998 in regard to lumbar spondylosis and give my opinion on the basis that the clinical onset of lumbar spondylosis was in the late 1970s. Factors that are worthy of consideration include 5(e), (h) and (j).
He then adds:
The main issue therefore for consideration is whether the episode in 1970s when the scrum collapsed can be regarded as one of trauma. Mr Stanley has indicated in a statement that this pain lasted for some days afterwards, up to possibly a week and it is certainly a discrete episode of trauma. … but if the injury as described by Mr Stanley is accepted as a true record of what happened, then nominally it meets some of the elements of a definition of trauma. These are that it was a discrete episode of acute onset with altered movement most likely, as
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©Auscript Pty Ltd 2001well as pain lasting for possibly up to seven days. … if this episode is considered as indeed as having had occurred, then I could not exclude him satisfying factor 5(h) using the reasonable hypothesis test.
In a report dated 29 november 2000, exhibit R3, Professor Sambrook concluded by saying:
Accordingly I still consider it less probable than not there is relationship between his lumbar spondylosis and the scrum injury.
Dr Giblin is an orthopaedic surgeon and on 25 June 2000 he made a report to the applicant's solicitors. That report became exhibit A3. The report was criticised by the respondent on the basis that the history given to Dr Giblin was a history which has only developed more recently but, putting that to one side, Dr Giblin in his report states:
This gentleman gives a reasonable history of disco genic mechanical back pain, commencing by virtue of trauma, at about H20, during his war service years.
His history is consistent with the radiological findings, the first ones being available to me today being in 1987.
The degree of radiological change on these 1987 x-rays, would be consistent with long standing progressive posttraumatic degenerative changes as you would expect to occur over a period of twenty years. As such, these 1987 x-rays, show that these long standing changes would be consistent with history as given.
In terms of the statement of principle concerning lumbar spondylosis, it would be my view, that he satisfies factor 5H.
As stated, that report was criticised as being one created post the commencement of litigation. However, even given that at page 3 of his report Dr Giblin does discuss the x-rays and investigations. Under that heading he says:
Plain x-rays of his lumbar spine taking 1987 when he was 40 years old, show quite a degree of wide spread arthritic changes from L3 down to S1, with slightly short pedicles at L4 and L5.
A CT scan of 1992 shows a moderately large left side disc protrusion at L45 going into the left L45 for the foramin.
X-rays dated the 31st May 1999 show tendency towards orientation of his facet joints with wide spread multi level disc disease throughout the lumbar spine.
MRI scan of the lumbar spine 22nd June 1999 revealed wide spread degenerative changes right through out the lumbar spine, with post surgical changes being apparent.
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©Auscript Pty Ltd 2001I refer to those reports because Dr Giblin, as stated, has seen them and discussed them and, in his view, are consistent with the history given by the applicant. At document T15 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 is a report by Dr McManus, neurologist, dated 30 June 1999. In that report, Dr McManus states:
It is my considered opinion that the left L5 nerve root lesion, recently documented on EMG studies, is more likely to be the result of an injury to the lumbar spine than the result of degenerative changes within the spine related to age or the accumulated changes resulting from years of hard work. This opinion is based on the fact that the L5 radiculopathy is unusually severe and that it is isolated, without evidence of involvement of other lumbosacral nerve roots.
That report is in contradistinction to a report by a radiologist shortly before the report of Dr McManus which referred to evidence of degeneration. In any event, even if it is argued that the applicant's work as a carpenter led to age related changes that is not to say that the trauma such that there be in Vietnam did not make a material contribution thereto. As stated previously in the fourth stage of the Deledio process is the stage at which the facts are to be considered. On the material before me there has certainly been raised an hypothesis namely that an injury occasioned when a scrum collapsed whilst on active service caused or contributed to the applicant's lumbar spondylosis and the report of Dr Giblin and Professor Sambrook make it clear that the hypothesis conforms with the Statement of Principles number 52 of 1998.
There is no record of this back injury having occurred in the applicant's service documents. Before the Veterans' Review Board, the question was raised as to why he'd reported some other injuries but not this one. As I understand the applicant it was a case that he didn't consider it necessary to report this particular accident as he could obtain medication from the hospital where he worked and he could, as it were, arrange his own rate of work so as to cope with his injury pain. In particular too I would also make reference to section 119 of the Veterans' Entitlements Act where the Tribunal must take into account difficulties that lie in the way of ascertaining the existence of any fact or matter including reasons attributable to the effects of the passage of time including the effect of the passage of time on the availability of witnesses and any absence or deficiency in official records.
I mention that on the basis that there is before the Tribunal a report by a Mr Ducker who has apparently contacted members of 1 Australian Field Hospital seeking information which they may or may not have had regarding the applicant's injury. Suffice it to say that as regarding the CO of 1 Australian Field Hospital, Colonel Norton I would imagine that as the
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©Auscript Pty Ltd 2001commanding officer of a field hospital on active service he had more on his mind than remembering how many scrums collapsed in a rugby match. Similarly, other persons who were there at the time say they don't remember the matter but that is not to say after this length of time that the matter did not in fact occur. All that can be said about Mr Ducker's report is that there is nothing in it which corroborates the applicant's evidence.
Much is made too of the fact that the applicant did not report his injury upon a pre discharge medical. Well, he explained that away by saying that he was more interested in getting out of the army and I notice that in the same document he did not report any skin diseases or venereal disease he suffered from. I think it is quite understandable that a young man having completed his period of national service is more concerned with getting out of the army and if it is not causing acute signs and symptoms at the time then the fact that a back injury may come against him in later years would not be to the forefront of his attention.
I have dealt previously with the history taken by Professor Sambrook but there is also material relevant to the applicant's claim in the clinical notes of his general practitioner, Dr Mackay. A copy of those notes became exhibit R5 in these proceedings. We start with those notes, the first document is a report by Dr Subhas, a psychiatrist dated 6 November 1992. In that report which is 1992 there is the cryptic statement, "It was in Vietnam that he hurt his back, but he's never sought any help". I only mention that Dr Subhas diagnosed the applicant as suffering from a post traumatic stress disorder and that particular condition has been accepted by the respondent. Dr Subhas refers to the post traumatic stress disorder and to problems with alcohol and I'll deal with those later in the report of Dr Miller.
At page 39 of Dr Mackay's notes, there is a report by neurosurgeon, Mr Sheehy, dated 28 August 1992. In that report, it is stated:
He told me of the low back pain which has been a problem for him for some years …
He works as a self-employed builder. He works alone and performs a lot of heavy duties involving cement lifting and other types of heavy work.
…
I am sure that this degenerative change occurred as a consequence of this heavy work …
That report, of course, can be contrasted with the report of Professor Sambrook who although he noted degenerative changes disc herniation implicated factor 5H namely initiation by trauma. Orthopaedic surgeon, Mr McDonald, in a report dated 31 May '94 referred to the insidious onset of back pain and that, of course, again appears to be in contrast with the
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applicant's evidence that he continued to have back pain since the late 1970s. At page 13 of exhibit R5 there is a report by Dr New, orthopaedic spinal surgeon. In that report, Dr New Says:The history given to me today is certainly consistent with his low back problems, and the types of injuries, albeit minor, that he had in Vietnam would lead me to suggest that the natural history of the pain he currently has can be related to his occupational injuries during the Vietnam conflict.
Interestingly enough, Dr New notes that this letter was dictated in the presence of the patient at the time of consultation. Then, at page 18 of exhibit R5, a further report by Dr New dated 10 July 1999 he says:
… he often had occasion to be involved in heavy lifting and bending as well as working in confined spaces which resulted in multiple exacerbations of minor low back ache during that time.
Referring back to his time in Vietnam. Then Dr New adds:
Also noted is his sporting interest in Vietnam in that he was the hooker for the Field Hospital rugby team and it was there that he had numerous instances of low back ache following collapsing scrums and rucks which resulted in ongoing lumbar spine symptoms.
Again, that letter was dictated in the presence of the applicant but what is interesting is that it refers to numerous collapsing scrums and rucks without implicating any particular occasion. This matter before the Tribunal today is not the first time the applicant has claimed for back injury. On 6 January 1993, his first claim was made to the respondent and at document T22 at page 100 in a statement by the applicant he said:
… I believe I injured my back while mounting & dismounting from high vehicles.
Similarly, on 21 December 1992 the applicant had written a statement saying:
Injured lower back in Vietnam jumping off high trucks.
As was pointed out, those particular statements are in direct contrast with the evidence he gave here today. Asked to explain that the applicant did state that in the past he had been advised to give that evidence as it would be more favourable to him than stating he hurt his back playing football. At pages 138, 139 and 140 of the section 37 documents, are reports from when the applicant notified injuries to the unit regimental aid post including injury to a thumb. I would only say about those that they are injuries which are
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©Auscript Pty Ltd 2001susceptible of some form of intervention particularly the non specific urinary disease and can be contrasted with an injured back where pain killers and rest are effective or more effective treatments.
In connection, it would seem, with his first claim, the applicant consulted Dr Miller, a consultant physician. His report of 25 June 1996 is document T9. Interestingly, at page 4 of his report, Dr Miller notes:
He suffers a loss of concentration and has difficulty in reading.
And at page 5 notes:
His memory has been progressively deteriorating over the last ten years, he cannot remember appointments and has to make notes.
Again, I have previously referred to the applicant's post traumatic stress disorder and habituation to alcohol and these are matters which obviously must be taken into account when assessing his evidence. Dr Miller then says at page 5 of his report:
He also suffered a rugby injury when he was playing rugby in South Vietnam and was the hooker. The scrum collapsed and he developed severe backache and was unable to carry on the game, although the pain settled within a few days and he was able to return to playing rugby.
Again, it is a different history to what the applicant has given here. It may well be that Dr Miller in some way misunderstood the applicant, I don't know. Dr Miller was not called but suffice it to say that even in 1996, that is to say before this particular claim was made the applicant was referring to an injury suffered playing rugby when a scrum collapsed. Dr Miller, however, in making an assessment of the applicant's injury implicated at page 7 of his report the repetitive trauma of jumping out of a truck 30 to 40 times. At page 8, Dr Miller again says, "He also has a mild loss of neurological function: cognition". On 21 October 1998 the applicant made a statutory declaration in support of his current claim and, again, in that referred to the scrum injury stating:
It was like a hot poker thrust into my lower back. …
I took Codeine tablets for quite a few days after the incident to relieve the pain.
It wasn't for 2 weeks that the pain eased.
That in many ways summarises the evidence which has been given in this matter. He was questioned also about these matters before the Veterans' Review Board and I think there is a lot of logic in one of his replies where he said that he didn't understand minute details because, "I really cannot but you know it happened years ago. I guess people say that to you but you
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don't recall every day's actions sort of things". One action he did recall was being in strife with his regimental sergeant major when he was found not carrying his own personal weapon. He stated he was doing that because of the pain from his back that he could not do his job as a carpenter and carry his weapon because of that back pain.
As I have pointed out earlier, the requirement under the Act is that in order to refuse the applicant's claim I must be satisfied beyond reasonable doubt that there is no sufficient ground for making a decision in his favour. In this case, it simply boils down to saying under Deledio that I have to be satisfied beyond reasonable doubt that the facts deposed to by the applicant did not happen, that is to say that either the collapsing rugby scrum did not occur or if it did occur then the pain altered gait etcetera by the applicant did not extend for the period he said it did. It is dangerous, of course, to state what may or may not be a reasonable doubt, that much was pointed out by the High Court in Green v Queen 126 CLR 28 in particular I'd refer to the discussion at page 33 where the court, Barwick CJ, McTiernan and Owen JJ said:
… the judge can properly instruct the jury that fantastic and unreal possibilities ought not to be regarded by them as the source of reasonable doubt.
After having said earlier on the same page the jurymen themselves set the standard of what is reasonable in the circumstances. Perhaps another way of putting it is that a reasonable doubt is not a foolish or fantastic doubt or one that is conjured up in order to make a particular decision but it is a doubt which on all the circumstances can be classified as a reasonable one. In this matter, I have pondered at some length. I consider that the applicant's claim has very strong inferences of a recent invention. It is interesting that it is only relatively recently that the specific trauma has been raised. On the other hand, however, it is quite certain that the collapsing rugby scrum was referred to Dr Miller in June 1996, that is to say before these current proceedings were on foot.
On all the material before me, if this was a matter where I had to be satisfied on the balance of probabilities, I would have rejected the applicant's claim but at the end of the day I find that I cannot say that I am satisfied beyond reasonable doubt that the incidents to which he gave sworn evidence here this morning did not happen. Therefore, the decision under review so far as relates to lumbar spondylosis will be set aside. There then is the matter of the assessment of pension. There are two relevant reports before me. The first of those is by Dr Baz. Dr Baz is an occupational physician. She is well known to this Tribunal and has what may be regarded as a particular expertise in veterans' matters. She concludes her report of 11 October 2000 which is exhibit A4 in the following way:
In my opinion Mr Stanley's accepted disabilities combined with the lumbar spondylosis renders him unfit for his usual work of 8 or more hours duration weekly.
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I do not consider the currently accepted disabilities cause him to be unfit for work.
I do not consider other disabilities would preclude him from work.
The applicant has accepted post traumatic stress disorder, chronic bronchitis and irritable bowel syndrome. Following today's decision he will also have his lumbar spondylosis accepted. The test for pension at the Special Rate is set out in section 24 of the Veterans' Entitlements Act and this applicant has not yet attained 65 years of age. The primary test, of course, is that it has to be incapacity from war caused injuries or diseases alone which results in the applicant being unable to engage in remunerative work. The matter has more recently been discussed by Nicholson J in Forbes v Repatriation Commission 58 ALD 394. In particular, his Honour referred back to the classic statement of the alone test by Burchett J in Cavell v Repatriation Commission.
In that case, Cavell v Repatriation Commission 9 AAR 534 at 539 Burchett J said that the word "alone" should not have substituted for it other words in the absence of ambiguity. The word "alone" requires:
… a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide.
In this matter, the applicant is already receiving a service pension on the grounds of his permanent unemployability. He was examined on 15 December 1997 by a Dr Bell, a medical adviser to Health Services Australia. In other words, by a government medical officer. That doctor defined again post traumatic stress disorder, alcohol dependency, lumbar spondylosis and plantar fascitis. He concluded his report by saying:
He has recently developed symptoms of planter fascittis in the left heel which is likely to improve. All his other problems are longstanding and permanent. …
He remains unable to work because of his memory impairment, ongoing high levels of alcohol use, and limited physical capacity due to back pain.
The other reports make it clear that the alcohol abuse and memory problems stem from the post traumatic stress disorder and it would seem to me that the reports of Dr Baz and Dr Bell make it clear that thee reason the applicant is unable to work is because of incapacity from war caused injuries and diseases alone. The decision will be therefore not only that the decision under review relating to lumbar spondylosis is set aside but also that the applicant is entitled to claim a pension at the Special Rate pursuant to section 24 of the Veterans' Entitlements Act as and from 26 July 1998, the date of acceptance of his lumbar spondylosis.
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