Steicke v Repatriation Commission
[2005] FMCA 126
•16 February 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| STEICKE v REPATRIATION COMMISSION | [2005] FMCA 126 |
| ADMINISTRATIVE LAW – Appeal from Administrative Appeals Tribunal – Veterans Affairs – whether error of law – whether failure to provide adequate reasons. |
Veterans' Entitlements Act 1986, ss.9, 120B
| Applicant: | WALTER MORRIS STEICKE |
| Respondent: | REPATRIATION COMMISSION |
| File No: | MLG 298 of 2004 |
| Delivered on: | 16 February 2005 |
| Delivered at: | Melbourne |
| Hearing Date: | 6 October 2004 |
| Judgment of: | McInnis FM |
REPRESENTATION
| Solicitor for the Applicant: | Mr D De Marchi |
| Solicitors for the Applicant: | De Marchi & Associates |
| Counsel for the Respondent: | Ms A McMahon |
| Solicitors for the Respondent: | Australian Government Solicitor |
ORDERS
The Application be dismissed.
The Applicant shall pay the Respondent’s costs.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLG 298 of 2004
| WALTER MORRIS STEICKE |
Applicant
and
| REPATRIATION COMMISSION |
Respondent
REASONS FOR JUDGMENT
In this matter Walter Morris Steicke (the applicant) filed a Notice of Appeal on 12 January 2004 seeking to appeal a decision of the Administrative Appeals Tribunal (the AAT) delivered on 12 December 2003. The appeal pursuant to s.44 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) seeks to appeal from an AAT decision which had affirmed a decision under review made by the Veteran’s Review Board (the VRB) on 20 February 2001. The VRB had affirmed a decision of the Respondent dated 10 August 1999 the effect of which was to:-
·
Accept the Applicant’s claim for bilateral sensorineural hearing loss and bilateral tinnitus as war-caused. A disability pension was payable at 60% of the General Rate with effect from
4 December 1998;
·Refuse the Applicant’s claim for Malignant Neoplasm of Spinal Cord, Spondylolisthesis and Spondylosis, Neurogenic Bladder and Neurasthenia as war-caused;
·The claim for Peripheral Vascular Disease was refused because the diagnosis could not be confirmed.
In the Notice of Appeal the Applicant sets out the grounds of appeal in paragraph 4 as follows:-
“4.GROUNDS
4.1The Tribunal was wrong in law in linking the evidence of Dr Hall with the requirements of factor 5(f) of Statement of Principles 16 of 1997. Satisfaction of the Statement of Principles was not dependent on the opinion of Dr Hall.
4.2The Tribunal was wrong in law in determining that factor 5(g) of Statement of Principles 47 of 2002 was not met by the applicant.
4.3The Tribunal was wrong in law in confusing the requirement of a causal connection pursuant to section 9 of the Veterans’ Entitlements Act and the Statement of Principles for lumbar spondylosis, and spondylolisthesis and spondylosis.
4.4The Tribunal was wrong in law in failing to provide adequate and sufficient reasons for its decision.
4.5The Tribunal was wrong in law in the methodology utilized for the application of the facts of the case to the relevant Statement of Principles.
4.6The Tribunal was wrong in law in the application of section 9 and 120B of the Veterans’ Entitlement Act.”
Relevant legislation
The relevant legislation under the VE Act is relevantly set out as follows in the Respondent’s submissions:-
·Section 13(1) of the VE Act renders the Commonwealth liable to pay a pension to the veteran where the veteran has become incapacitated from a war-caused injury or disease.
·Section 9 of the VE Act prescribes the circumstances in which a veteran’s injury or disease shall be taken to be war-caused, including where the injury or disease arose out of, or was attributable to, any eligible war service rendered by the veteran – s.9(1)(b). This requires a causal link.
·Section 7 defines ‘eligible war service’. The Applicant had eligible war service from 7 January 1942 to 30 October 1943. The Applicant did not have ‘operational service’ as defined in s.6 of the VE Act.
·As the Applicant had ‘eligible war service’ but not operational service, the Applicant’s eligibility for pension was to be determined in accordance with the standard of proof in s.120(4) of the VE Act. The claim was to be decided on the ‘reasonable satisfaction’ standard.
·When a claim is made on or after 1 June 1994, under Part II of the VE Act for a pension that relates to eligible war service rendered by the veteran, the operation of s.120(4) ‘is affected’ by s.120B of the VE Act – s.120B91).
As the Applicant’s claim was made after 1 June 1994 it was to be determined by reference to ss.120(4) and 120B of the VE Act.
Section 120B(3) of the VE Act provides that for the purposes of s.120(4), the Commission is to be reasonably satisfied that any injury or disease is war caused only if:
The material raises a connection between injury or disease and some particular service rendered by the person; and
There is in force a SoP that upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.
·SoPs are made by the Repatriation Medical Authority (the RMA) under s.196B of the VE Act in respect of particular kinds of injury, disease or death.
The function of a SoP made under s.196B of the VE Act is, according to that subsection, to prescribe those factors that must exist and which of those factors must be related to service before it can be said that on the balance of probabilities, an injury or disease of that kind is connected to the circumstances of the service.
The concept of ‘related to service’ is elaborated in s.196B(14) of the VE Act. In substance, the subsection replicates the casual relationships that are found in s.9(1).
As Heerey J said in Deledio v Repatriation Commission (endorsed by the Full Court in Repatriation Commission v Deledio) the SoP is a statute backed declaration of what is proved or known scientific fact. It prescribes a medical scientific template, which the claim must fit.
I accept that that is an accurate summary of the relevant legislation and describes how it applies to an application of the present kind.
The issues before the AAT
The Applicant had withdrawn claims in relation to malignant neoplasm of the spinal cord, neurogenic bladder and neurosthenia and proceeded instead with claims for lumbar spondylosis and lumbar spondylolisthesis. In support of the claim for lumbar spondylosis reliance was placed upon the following:-
·Engaging in heavy manual labour for a period of seven months building a camp at Alice Springs.
·Some time after performing the duties at Alice Springs the Applicant undertook further training at Kapooka. He allegedly suffered two falls while parachuting in an obstacle course during the training and those falls caused trauma to his lumbar spine.
There was no issue before the Tribunal that the Applicant at the time of hearing suffered from the condition of lumbar spondylosis.
Relevant SoPs
SoP No 47 of 2002
Factor 5(g) of this SoP for lumbar spondylosis provides “suffering a trauma to the lumbar spine within 25 years immediately before the clinical onset of lumbar spondylosis”.
Clause 8 of this SoP defines “trauma to lumbar spine” as:
“a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least 10 days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either;
(a)immobilization of the lumbar spine by splinning, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c)surgery to the lumbar spine.”
Factor 5(1) of this SoP provides “manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168,000 kg within any 10 year period, before the clinical onset of lumbar spondylosis, and where such physical activity has ceased, the clinical onset of lumbar spondylosis has occurred within 25 years immediately following such activity”.
SoP No 16 of 1997
Factor 5(f) for spondylolisthesis provides:
“suffering from lumbar spondylosis affecting the facet joints at the involved intervertebral level at the time of clinical onset of degenerative lumbar spondylolisthesis”.
Clause 8 of this SoP provides the following definitions:-
(a)‘lumbar spondylosis’ as ‘degenerative changes affecting the lumbar vertebra and/or intervertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD code 721.3, 721.42 or 722.52’.
(b)‘Degenerative lumbar spondylolisthesis’ as ‘forward displacement of a lumbar vertebra, in the presence of osteoarthrosis of the facet joints formed by the involved vertebra and the subjacent one, and in the absence of a defect or fracture through the pars interarticularis of the involved vertebra’.
The Respondent had conceded that the Applicant had lifted a cumulative total of 168,000 kgs as required by factor 5(1) of SoP No 47 of 2002.
The issues
The issues before the AAT and this Court are as follows:-
·The date of clinical onset of lumbar spondylosis given that the Applicant had been discharged on 14 October 1943 the Applicant would need to establish the date of clinical onset of lumbar spondylosis before 14 October 1968.
·Whether the Applicant suffered ‘trauma to the lumbar spine’ as defined in clause 8 of SoP No 47 of 2002.
·Whether the Applicant suffered degenerative lumbar spondylolisthesis.
·The date of clinical onset of degenerative lumbar spondylolisthesis.
It is noted that in its decision the AAT had incorrectly referred to the onset of lumbar spondylosis not occurring “before 1963”. This should be on the chronology “1968” though in the circumstances of this application that error is not one which would result in the appeal being upheld as it is clear the chronology was otherwise accurately referred to by the AAT in consideration of the issues before it.
Considering the issues the AAT had the benefit of the Applicant’s evidence and was able to refer to service and medical records. It was noted that in his original claim the Applicant asserted that he first became aware of disability in his back in 1960. There was evidence that he had undergone surgery in 1960 for the removal of a spinal chordoma which a primary bone tumour arising from the remnants of embryonic notochord. Medical evidence was given including evidence of Dr Hall who provided a report for and on behalf of the Respondent and gave oral evidence before the AAT.
In considering the issues the AAT in its decision when dealing with the clinical onset of lumbar spondylosis correctly referred to the meaning of “clinical onset” in the following passage:-
“17. The words "clinical onset" are not defined by the Instrument but have been interpreted on a number of occasions by the Tribunal in the cases of Frederick Ian McLeod-Dryden and Repatriation Commission [1998] AATA 819 and Kathleen Robertson & Repatriation Commission[1998 AATA 127 and Repatriation Commission v Cornelius [2002] FCA 750. In Cornelius, Branson J recited part of the decision in Robertson namely:
..... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present...”
The AAT then concluded that, “on the evidence of Dr Hall, Mr Steicke does now suffer from lumbar spondylosis”. It then went on to consider whether the Applicant suffered lumbar spondylosis before 1968 and it is relevant to set out the following paragraph in relation to that issue:-
“43. Even accepting the history given to him by Mr De Marchi in evidence, Dr Hall said that the very highest of which the applicant's case could be put was no greater than a possibility that there is a connection between service and lumbar spondylosis. A "possibility" does not convert to a probability, which must exist in the present case. Further, the opinion of Dr Hall was based on the fact that the events at Kapooka did occur. I have considerable doubt on the service records and medical histories whether Mr Steicke ever did serve or train at Kapooka. If he did, there is no medical records of any fall or treatment for any fall. The period of ten days of incapacity put to Dr Hall was upon the basis that it followed back injury or was the consequence of back pain associated with a fall. The only period of incapacity referred to in the T-documents was of 12 days and it was as a consequence of having suffered measles in Alice Springs (T-documents, page 2,4).”
A further issue considered by the AAT was whether the Applicant had suffered “trauma to the lumbar spine” as defined in clause 8 of SoP No 47 of 2002. In relation to that issue it states the following:-
“47. To the extent that the applicant sought to rely on factor 5(g), I cannot be satisfied on the evidence heard or read that he did suffer a trauma to the lumbar spine as defined. There is nothing in the material, or from the evidence of the applicant, that he suffered a discrete injury to the lumbar spine causing the development, within 24 hours of that injury, of symptoms and signs of pain and tenderness and either altered mobility or range of movement which symptoms and signs lasted of at least ten days.”
Reasoning
In my view a critical issue in the determination of this matter was the finding by the AAT that the clinical onset of lumbar spondylosis did not occur before 1968. The finding was made on the basis of the material before the tribunal and I can see no error of law arising from that finding. In relation to the evidence of Dr Hall it was open to the tribunal to accept his evidence that factor 5(f) of SoP No 16 of 1997 could not apply as the Applicant did not have degenerative lumbar spondylolisthesis.
The finding of fact by the AAT claimed to be wrong in law in determining that factor 5(g) of SoP No 47 of 2002 was not met cannot be challenged in my view. The factual matrix presented to the AAT permitted it to make findings in circumstances where there was no evidence that the Applicant was at Kapooka undergoing training where he claimed he had suffered two falls and no evidence of other symptomology which may lead to a different conclusion at the relevant time. Further, there was a lack of corroboration from contemporary records to support the assertions of the Applicant. These were all factual matters to be explored by the AAT.
It follows from the foregoing that grounds 4.1 and 4.2 should fail.
In considering ground 4.3 where it is asserted the AAT was wrong in law in confusing the requirement of a causal connection pursuant to s.9 of the VE Act and the SoP for lumbar spondylosis and spondylolisthesis and spondylosis, I can see no error of law. I accept the submission by the Respondent that the AAT had correctly considered the requirement of a causal connection between the claimed conditions and the circumstances of the Applicant’s service. A causal link is required pursuant to s.9 of the VE Act and the relevant SoP provides those factors which must exist and which must be related to service before it can be claimed on the balance of probabilities that the conditions are connected with the circumstances of the person’s relevant service. Ground 4.3 therefore fails.
In relation to ground 4.4 where it is claimed that the AAT failed to provide adequate and sufficient reasons for its decision, it is my view that on a proper reading of the AAT’s reasons it is clear that it has made findings on material questions of fact and further it is clear to me that it has quite properly included detailed reference to the material upon which the findings were based. The objective of s.43(2A) of the AAT Act is to ensure that the reader of a decision can properly understand the reasoning process of the tribunal and determine on the proper reading the basis upon which material questions of fact have been found. I can see no error of law in the reasoning provided by the AAT and in my view it has properly complied with the requirements of s.43(2A) of AAT Act and hence ground 4.4 fails.
In considering ground 4.5 as I indicated earlier key findings in the consideration of the application of the facts to the case of a relevant SoP is the finding which I regard as open to the AAT in this instance that it was not satisfied that clinical onset of the applicant’s spondylosis occurred before 1968. Having made that finding which was reasonably open to it on the balance of probabilities as distinct from a mere possibility, the AAT has correctly approached its task and I do not accept that it has erred in law in its methodology. Hence, ground 4.5 should fail.
Ground 4.6 claims the AAT was wrong in law in the application of s.9 and 120B of the VE Act. In written submissions reference to s.9 seemed to be linked to ground 4.3 though specific reference was made to the failure to consider s.9(1)(e)(ii) which provides that an injury suffered by a veteran should be taken to be war-caused if the injury was suffered before the commencement of the period or last period of eligible war service rendered by the veteran but not while the veteran was rendering eligible war service and if the injury was contributed to in a material degree or was aggravated by any eligible war service rendered by the veteran being service rendered after the veteran suffered that injury. If that was the point of the submission then the Respondent claims this was a new matter not raised earlier and should not be allowed. However as I understood the submissions by the Applicant the criticism was not the failure of the AAT to consider issues arising under s.9(1)(e)(ii) but rather the failure to consider s.9(2) dealing with the change of the Applicant’s environment consequent upon rendering eligible war service as well as the concept of the condition being contracted prior to commencement of service and being aggravated by the service as provided by s.9(1)(e)(ii).
In any event having regard to the findings of the AAT on the substantive issues to which reference has been made and given it accepted the medical evidence reasonably open to it to accept, I do not see any basis upon which ground 4.6 can be upheld regardless of whether it seeks to raise a new point or otherwise. There seemed little or no evidence of aggravation and to agitate that issue now would be inappropriate when the opportunity to do so was already given to the Applicant at the AAT hearing. Perhaps not surprisingly the issue was not agitated at that stage due to lack of evidence. In all the circumstances it is not appropriate to permit the Applicant to now seek to raise this issue in circumstances where it not raised directly before the AAT and in any event where there does not appear to be any or any sufficient which would have justified the AAT examining this issue. Hence, I do accept that there has been an error of law arising out of this ground of appeal.
Conclusion
For the foregoing reasons it follows the application should be dismissed with costs.
I certify that the preceding twenty-seven (27) paragraphs are a true copy of the reasons for judgment of McInnis FM
Associate:
Date: 16 February 2005