Sullivan and Repatriation Commission (Veterans’ entitlements)

[2015] AATA 1015

Sullivan and Repatriation Commission (Veterans’ entitlements) [2015] AATA 1015 (23 December 2015)

Division	VETERANS' APPEALS DIVISION
File Number(s)	2015/2427
Re	Errol Sullivan
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Senior Member McCabe
Date	23 December 2015
Place	Brisbane

The decision under review is affirmed.

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Senior Member McCabe

Catchwords

VETERANS AFFAIRS – benefits and entitlements – cervical spondylosis – whether Applicant’s cervical spondylosis is service related – Applicant does not meet factor 6(h) – decision under review affirmed

Legislation

Veterans’ Entitlements Act 1986 (Cth)

Statement of Principles concerning cervical spondylosis No. 67 of 2014

REASONS FOR DECISION

Senior Member McCabe

23 December 2015

1. Mr Errol Sullivan has developed cervical spondylosis. He attributes the development of that condition to his peace-time service in the Royal Australian Air Force (RAAF). He is currently paid a disability pension under the Veterans’ Entitlements Act 1986 (Cth) (‘the Act’) at 60% of the general rate because he suffers from a number of other accepted conditions. He wants the Commission (or this Tribunal on review) to accept his neck condition is also linked to his service.

2. In order to decide Mr Sullivan’s claim, I must consider whether he is able to meet the requirements set out in the statement of principles concerning cervical spondylosis which is published by the Repatriation Medical Authority. The statement of principles in question is No 67 of 2014. Factor 6(h) refers to the applicant lifting particular loads over a defined period.

3. Mr Sullivan served in the RAAF between 1965 and 1985. The present claim arises out of activities he said he was undertaking at an RAAF depot in suburban Melbourne between 1973 and 1978. He has made two unsuccessful claims in the past in respect of cervical spondylosis. The first was rejected in 1986. The second claim was rejected in 2004.

4. I am not satisfied there is a causal link. The decision under review must be affirmed. I explain my reasons below.

   Mr Sullivan’s medical condition

5. There is no doubt Mr Sullivan suffers from cervical spondylosis. He says he recalled experiencing neck pain in early 1978 and sought medical help. Imaging studies showed he was experiencing degenerative change. The Commission accepts the date of clinical onset of the condition for present purposes is in April 1978.

   The statement of principles

6. I must have regard to the relevant statement of principles in order to determine whether I am reasonably satisfied there is a causal connection between the circumstances of the applicant’s service and his medical condition. I have already noted the relevant statement is No 67 of 2014. The applicant relies on factor 6(h), which reads:

   carrying loads of at least 25 kilograms on the head while upright to a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of cervical spondylosis, and where the clinical onset of cervical spondylosis occurs within the 25 years following that period…

   What happened?

7. Mr Sullivan was posted to a unit based in Tottenham in suburban Melbourne in 1973. He was a corporal at the time, and he worked in stores. He was promoted to sergeant in 1975 and became the warden of the airmen’s barracks. That much is agreed. Much of the remainder of the evidence depends on the recollection of Mr Sullivan which is not corroborated by contemporaneous documents.

8. The applicant said there were three accommodation blocks at the depot where airmen resided. Shortly after he arrived at the post, he undertook a quick stocktake. He said he wanted to check whether all of the items of bedding and furniture (including bed frames, mattresses and drawers) were in the barracks where they were supposed to be. After he completed his audit, he realised up to 70 mattresses were missing. Mr Sullivan’s supervisors decided to take extraordinary measures to stop the mattress drain. They decided half of the bedframes and mattresses would be removed from the barracks and placed in storage. The beds would thereafter be issued to airmen for the duration of their posting to the unit, and returned to storage after periods of use.

9. Mr Sullivan explained at the hearing that he headed up a team of three which moved the surplus beds into storage. They faced a logistical difficulty: the buildings were two and three stories, and there was no lift – just ‘L’ shaped stairwells. Mr Sullivan said he quickly realised the safest and most efficient way to move the beds up and down the stairs was to balance the tubular steel frame on his head. He wore a beret to protect his scalp, and he used his arms to steady the load. The latex mattress was placed flat on the surface of the bedframe. He said it made sense to load the mattress on top because a mattress was bulky but flexible; if you carried it on your head, it would droop. He demonstrated the way he carried the bed in a recent photograph (exhibit 3). In the photo, he reconstructed his carrying style for the camera. He was standing vertically with the bed poised on his head and his arms were outstretched. He was not carrying any part of the weight on his shoulders, or the side of his neck. He indicated that carrying the mattress on the bed frame also saved time. In any event, the working party carried the beds from the building, loaded them onto trucks and drove them to the storage facility where they were unloaded and placed in storage.

10. Thereafter, a new regime was implemented. When an airman arrived at the post, the man would produce his paperwork and be allocated bedding and bed furniture from the stores. Mr Sullivan said he would go the store himself, select a bed and mattress and load the ensemble onto a truck. He said he sometimes had the assistance of a driver or assistant who would help with this aspect of the task. The vehicle would drive the ensemble the short distance to the barracks where it would be unloaded. Mr Sullivan said he would then pick up the bed and mattress and carry the ensemble on his head to the barracks. He said he did this unassisted. He also said he continued to do the work even after he was promoted to sergeant in 1975 and became warden of the barracks. He said he preferred to be seen as a ‘hands-on’ manager – and added there was a personnel shortage in any event.

11. At the hearing, Mr Sullivan estimated each ensemble weighted around 33 kilograms. It is difficult to be precise about these figures. Nobody now knows for sure how heavy the bed frames or mattresses were in the barracks. He explained he based his estimates on comparisons with his more recent experience of carrying bags of cement and bags of salt. He also provided evidence of visiting a second-hand shop where he found steel-frame beds which were similar to the bed frames he recollected from the RAAF. He established those frames weighed between 13-15 kilograms. He also provided an email from a bedding manufacturer who estimated a latex mattress could weigh between 30-50 kilograms.

12. It is difficult to be sure of the weight of the bed ensembles some forty years after the events in question. It is also difficult to be sure how much of the weight was borne on the applicant’s head. It is possible he used his arms to support the load (although not necessarily: Mr Cullen, who appeared for the applicant, suggested the arms might have applied pressure in the course of balancing the ensemble which might have actually served to increase the load being transmitted down the neck). The Veterans’ Review Board referred to material filed in support of the earlier claims suggesting the loads might have been 25-40 kilograms in weight: exhibit one at B6.

13. I am prepared to accept the ensembles weighed around 33 kilograms, and certainly in excess of 25 kilograms. The weight of the steel framed beds the applicant found in the second hand store and a conservative view of the estimate provided by the mattress manufacturer provide an adequate basis for that finding of fact. I also accept the applicant was expected to manhandle heavy furniture like the ensembles: that much is clear from the statement of Mr Cudahy in exhibit one at pp 146ff. Mr Cudahy confirmed he saw Mr Sullivan carting furniture down stairs at the barracks during the period in question. Mr Cudahy also recalled seeing Mr Sullivan carrying beds on his head. Mr Cudahy said he was not surprised Mr Sullivan was doing the work unassisted, notwithstanding his rank. There were personnel shortages at the time, he recalled.

14. While I accept the applicant did cart loads in excess of 25 kilograms on his head while upright, it is less clear whether he meets the cumulative total of 120,000 kilograms over the period between 1973 and 1978.

15. At the hearing, the applicant said he carted beds on 12 occasions each week (apart from annual leave periods) for five years. On its face, that evidence suggests the applicant lifted 33 kilogram loads on 12 occasions each week over a 48 week year for five years. By my calculation, that amounts to a total of 95,040 kilograms. That is not enough.

16. Mr Williams, who appeared for the Commission, pointed out the applicant had provided evidence in 2014 (exhibit one at p 108) suggesting he carted loads on only six occasions each week – but that he also had ‘bulk’ jobs to complete in connection with courses where a large number of beds were moved around to cope with an influx of temporary personnel. Mr Sullivan said the figure of six lifts per week was wrong, even though he supplied the same assessment of six lifts per week when he made a claim in 2005. He also denied that he received any assistance when he did the bulk work of moving large numbers of beds around in a short time frame.

17. Mr Sullivan did not give a satisfactory explanation for the change in his evidence from the earlier estimates. Indeed, given the passage of time, the earlier evidence which appeared to be the product of careful deliberation is preferable. I do not think I can accept he engaged in these heavy lifting activities 12 times each week as he now claims. I am satisfied he lifted no more than about 47,000 kilograms in weight, which is the approximate figure one reaches if one assumes he only manhandled furniture on six occasions each week during the period in question.

18. I also have difficulty accepting the applicant was not provided with assistance when undertaking the bulk transfers of beds when courses were held at the depot. He was certainly provided with assistance when the first mass-transfer of beds occurred in 1973. It is also unclear at this distance whether the influx of numbers for courses or special events would require the transport of bed ensembles for every person. On his own evidence, beds were not necessarily removed into storage when an airman left the barracks if a new occupant were available. Added to that is the fact the applicant was promoted to the rank of sergeant. While I can accept he moved beds on his own when new airmen presented to the barracks individually, it would be surprising if a senior NCO were left to his own devices to undertake a mass transfer of beds when participants in a course had to be accommodated. Mr Sullivan estimated (exhibit one at p 108) he lifted over 60,000 kilograms during the period in bulk moves. I do not accept he is able to count all of the lifting that occurred on these occasions. I would substantially reduce the amount he can count on the assumption he was assisted (although I note he would fall short of a total of 120,000 kilograms even if I accepted he did all the lifting on these occasions himself).

19. I am not reasonably satisfied the applicant lifted a total of 120,000 kilograms of bedding ensembles between 1973 and 1978. It follows he is unable to satisfy factor 6(h) in the statement of principles.

    Conclusion

20. The decision under review is affirmed.

21.     I certify that the preceding 20 (twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe.

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Associate

Dated 23 December 2015

Date of hearing	14 December 2015
Advocates for the Applicant	Mr N Cullen and Ms S Baker, RSL Redcliffe Sub-branch Inc
Advocate for the Respondent	Mr B Williams, Department of Veterans’ Affairs