TREVOR MARSH and REPATRIATION COMMISSION
[2009] AATA 542
•21 July 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 542
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/4263
VETERANS' APPEALS DIVISION ) Re TREVOR MARSH Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date21 July 2009
PlaceSydney
Decision The decision under review is affirmed. .................[sgd].............................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service - claim for lumbar spondylosis – whether war-caused – consideration of Statement of Principles – whether lumbar spondylosis related to service – medical evidence considered – held not related to service – decision affirmed
Administrative Appeals Tribunal Act 1975, s 37
Veterans’ Entitlements Act 1986, ss 9, 13, 120(1), 120(3), 120A, 155, 196A, 196B
Statement of Principles concerning Lumbar Spondylosis (No 37 of 2005), cll 5, 6, 9
Bull v Repatriation Commission (2001) 66 ALD 271
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Elliott v Repatriation Commission (2002) 73 ALD 377
Hardman v Repatriation Commission (2004) 82 ALD 433
Lees v Repatriation Commission (2002) 125 FCR 331
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill (2002) 69 ALD 581
Repatriation Commission v McKenna (1999) 86 FCR 144
REASONS FOR DECISION
21 July 2009 Ms N Isenberg, Senior Member Background
1. Mr Trevor Marsh served in the Australian Army from 5 July 1965 to 4 July 1971. He has eligible war service which was “operational service” as defined in the Veterans’ Entitlement Act 1986 (“the VE Act”) from 5 December 1967 to 10 December 1968.
2. Mr Marsh contends that his claimed condition of lumbar spondylosis either arose out of, or was materially contributed to, by his operational service.
3. Mr Marsh seeks review of the decision of the Repatriation Commission dated 24 April 2007, as affirmed by the Veterans’ Review Board (“the VRB”) on 15 July 2008, that refused his claim that his lumbar spondylosis was related to service.
Issue before the Tribunal
4. There was no dispute that Mr Marsh suffers from lumbar spondylosis.
5. Therefore, the issue is whether his lumbar spondylosis is related to his service.
Legislative background
6. Section 9 of the VE Act provides, among other things, that an injury is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to, that service.
7. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
8. As the veteran had operational service, the determination of whether his claimed condition is war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those subsections require me to find that the veteran’s condition was war‑caused unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that finding.
9. The Repatriation Medical Authority (“RMA”) was established under section 196A of the VE Act. If the RMA is of the view that there is sound medical-scientific evidence that indicates that if a condition can be related to veterans’ service, the RMA must determine a Statement of Principles (“SoP”) (section 196B). The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in section 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in section 196B(14) of the VE Act, which provides, relevantly:
(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a) it resulted from an occurrence that happened while the person was rendering that service; or
(b) it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f) in the case of a factor causing, or contributing to, a disease--it would not have occurred:
(i) but for the rendering of that service by the person; or
(ii) but for changes in the person's environment consequent upon his or her having rendered that service; or
…
Evidence
10. I had before me the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered at the hearing:
(a)A medical report from Professor Sambrook, consultant rheumatologist, dated 28 Janaury 2009;
(b)A medical report from Dr Millons, orthopaedic surgeon, dated 19 Janaury 2009;
(c)An extract from the Australian Defence Force Health Records – Army, between July 1965 and September 1967; and
(d)Two black and white photographs (one a photocopy) of Mr Marsh performing cartographer duties in Vietnam.
Mr marsh’s evidence
11. Mr Marsh gave the following oral evidence. After leaving school in about 1963, he worked as a draftsman. He joined the Army in 1965 and, after initial training, became a cartographer. When he was deployed in December 1967 he continued working as a cartographer in Vietnam. He continued in that role throughout his army career, until he was discharged in July 1971. Although he had a number of different jobs after leaving the Army he worked as a draftsman, in all, for over 30 years.
12. After a couple of months working as a cartographer in Vietnam he first became aware of back pain. He was working mainly at a bench about 1.5 metres in height, doing overlays of existing maps to show where operations were being conducted or doing sketches for future operations. He would spend about 6 hours a day working at the bench on these maps. Because of the Tet offensive (which commenced in February 1968) he sometimes worked 12 or even 14-hour days. Mr Marsh produced two photographs of himself (one a photocopy) at work in Vietnam, sitting on a stool at a workbench. I observe that he told the VRB that sometimes he would work at an angled drawing board.
13. Sometimes when there was insufficient survey work he would perform other duties such as filling sand bags for the defences at Nui Dat and loading and unloading heavy stores. This could occur 2-3 times a week and last for 4-5 hours a day. He would feel stiff during this activity.
14. At the workbench he felt pain and stiffness in his back and would also get episodes of spasm intermittently every one to two weeks but he did not report it because he had not specifically injured himself. Two or 3 times during the year he may have obtained aspirin from the Regiment Aid Post (RAP) and taken them for about a month. In cross-examination his attention was invited to his statement of 8 June 2006 in which he wrote that he had injury to his back and that he had reported it. He thought this may have been correct but, as there was no record, he was probably referring to having gone to the RAP.
15. In the statement of 8 June 2006, Mr Marsh attributed his lumbar spondylosis to lifting more than 120,000 kgs. He wrote that, in addition to his normal cartographer duties, he was also lifting 35 kgs sandbags and 60 kgs rolls of barbed wire, various survey equipment weighing 30 kgs to 50 kgs, and occasional moving survey tables weighing 100kgs. On 5 March 2007, Mr Marsh completed 3 ‘Claimant Reports’. In a ‘Claimant Report – Carrying or Lifting Loads Osteoarthritis Affecting Both Knees’, he wrote of having lifted sandbags and loaded trucks 7 days a week and of using equipment weighing more than 25 kg. In a ‘Claimant Report – Ascending or Decending Stairs or Rungs of a Ladder – Osteoarthritis Affecting Both Knees’, he wrote of doing office work in Vietnam 5 days a week and that he had also climbed hills and rough ground. In a ‘Claimant Report – Kneeling or Squatting Osteoarthritis’ also of the same date, he wrote that he did survey work involved a lot of kneeling and squatting.
16. After Mr Marsh left the Army in 1971, he moved to New Zealand where he again worked as a cartographer, although there, the furniture was adjustable and, although he felt more comfortable he continued to experience back pain and spasms. By about 1977 the pain had gradually worsened and, on one occasion, he was ‘laid up for days’. Prior to that, he had just consulted his local GP for episodes of pain and had usually been prescribed Voltaren. Following the 1977 episode of acute back pain and spasm, which radiated down his left leg, he was treated with a steroid injection. He experienced further intermittent episodes of more severe back pain every 4-5 months, sometimes with left sided sciatica. His back pain has continued over the years.
Medical evidence
17. A chest x-ray performed on 30 July 1965 (prior to his operational service in Vietnam) showed minor thoracic scoliosis. Scoliosis is a congenital lateral curvature of the spine.. X-rays of the lumbo sacral spine, were performed on 18 January 1977, and showed a moderately severe concave scoliosis on the right and degenerative changes. X-rays of the lumbar spine, performed on 12 November 1987, again showed the lumbar scoliosis concave to the right. The disc narrowing at L5/S1 was more severe than in 1977. X-rays of the lumbar spine, performed on 12 August 1993, again showed a scoliosis concave to the right with marked disc narrowing at L5/S1 and lesser degenerative changes seen elsewhere in the lumbar spine.
18. There was no dispute that lumbar spondylosis was first diagnosed on 18 January 1977. Dr Millons agreed in his report, though, that its clinical onset may have been a few years before that time. Professor Sambrook said the disc degeneration at L5/S1 would have evolved “over a number of years”. I note findings on clinical onset are not really necessary as it was not disputed that Mr Marsh suffered scoloisis before the lumbar spondylosis, and neither party suggested the lumbar spondylosis predated his operational service.
19. Professor Sambrook provided a report and gave oral evidence, as did Dr Millons, orthopaedic surgeon. Referring to the 30 July 1965 X-ray, both doctors were satisfied that Mr Marsh had thoracic scoliosis and that, as usually occurs, he probably had a secondary, compensatory lumbar scoliosis as well at that stage, and those conditions were almost certainly developmental in origin.
20. Professor Sambrook, having previously been shown only one of the photographs, described Mr Marsh as working ‘hunched forward over a work bench’ for about six hours a day and considered this not an activity one would normally recommend to a person with a known scoliosis. He thought that maintenance of that posture for long periods could make Mr Marsh’s back condition symptomatic and contributed to the development of lumbar spondylosis.
21. He acknowledged that the second (photocopy) photograph showed Mr Marsh in a different posture. Another person was in yet another posture, apparently doing the same type of work. All persons though were in positions where there was some flexion. He agreed that, given the large size of the workbench, a person working at the bench would have to move around to reach the entire map.
22. The Professor considered scoliosis to be a condition that progresses over time, but agreed there was no evidence that Mr Marsh’s scoliosis had worsened.
23. Professor Sambrook was unaware from the history he had taken that Mr Marsh had, by the time of his operational service, already been performing a similar role for several years, and that he also continued in that role until he left the Army, although he was aware that he had done similar work in New Zealand up until the time his lumbar spondylosis was diagnosed.
24. Professor Sambrook could not specify why he “had a sense” that Mr Marsh’s Vietnam work was more intensive than the rest of his 30-year career as a ”draughtsman”. Because of his “sense” of Mr Marsh’s activities, and after referring to the legislative scheme, he could not say that Mr Marsh’s service in Vietnam was not a contributory factor in the development of lumbar spondylosis. However he was not prepared to say that, but for Mr Marsh’s operational service, he would not have developed lumbar spondylosis.
25. Dr Millons explained that scoliosis is a condition that increases until a person reaches skeletal maturity, and after that time, does not worsen.
26. When shown the photographs Dr Millons observed that in the first photograph Mr Marsh was leaning to the left with both elbows on the table – a position he regarded as normal for a right-handed person, and one that supports the back. He agreed that 12 or 14-hour days might produce some aching if that position were held the entire time, as might intensive duties with some sand bag filling. In the second (photocopy) photograph there was no flexion of the thoracic spine, only the head. He rejected Professor Sambrook’s description of any of the positions depicted as “hunched”. In noting that Mr Marsh had been a draftsman for many years Dr Millons considered the effect of his year in Vietnam to have been minimized.
27. Dr Millons said in cross-examination that sandbagging was more significant in respect of Mr Marsh’s back than the deskwork. In his report Professor Sambrook referred only to Mr Marsh’s “draughtsman” duties as affecting his scoliosis, although he had taken a history of the sandbagging duties.
Consideration
28. Where a SoP exists I must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 in the following way:
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.
…
Steps 1 and 2: is there a hypothesis and is there a SoP?
29. The hypothesis advanced on behalf of Mr Marsh was that the intensity of Mr Marsh’s drafting activities because of the Tet offensive, requiring him to be hunched forward over a work bench for hours, and the prolonged maintenance of an abnormal posture, together with his sandbagging and lifting activities, made a material contribution to the development of his lumbar spondylosis in the context of someone with scoliosis.
30. It was not in dispute that the current SoP relevant to the veteran’s claim is:
§Statement of Principles concerning Lumbar Spondylosis (No 37 of 2005) (the SoP).
31. This was also the SOP in force at the date the veteran’s claim was first decided.
Step 3: does the hypothesis conform to the template in the SoP?
32. Under clause 5 of the SoP at least one of the factors set out in clause 6 must be related to the veteran’s relevant service (being in this case, operational service).
33. The veteran’s hypothesis ultimately relied on factor 6(e) of the SoP as follows:
having a condition of the lumbar spine from the specified list of spinal conditions before the clinical onset of lumbar spondylosis; or
….
34. Scoliosis is a condition in the specified list of spinal conditions in cl 9 of the SoP.
35. This step entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. This step involves considering all of the material before us, “but without making any findings of fact at this stage of the process”. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
36. At this stage I must consider all of the material before me, whether or not that material supports the hypothesis: Bull v Repatriation Commission (2001) 66 ALD 271, Hardman v Repatriation Commission (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In Elliott Stone J, likened the decision-maker’s task to striking out a statement of claim as failing to disclose a course of action, where no consideration is given to whether the facts pleaded can be substantiated.
37. The question for me at this stage whether there is there material pointing to each element of the factor? A hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: Repatriation Commission v Hill (2002) 69 ALD 581.
38. There was no dispute that Mr Marsh’s lumbar spondylosis was first diagnosed in 1977 and that his scoliosis predated the lumbar spondylosis. (A more detailed finding as to the date of clinical onset is not required by the factor).
39. I am satisfied, without making a find of fact, that every essential element of the hypothesis is pointed to by the material before me. A reasonable hypothesis therefore is raised.
Step 4: can i be satisfied beyond reasonable doubt that mr marsh’s lumbar spondylosis was not war-caused?
40. This step involves making findings of fact from the material before me. Section 120(1) of the VE Act provides that the claim will succeed, unless I am satisfied beyond reasonable doubt that there are no sufficient grounds for determining that the veteran’s condition was war-caused. If I am not so satisfied, Mr claim must succeed: section 120(1) of the VE Act. In examining this question, I note that there is no onus of proof: section 120(6) of the VE Act, and Bushell v Repatriation Commission (1992) 175 CLR 408.
41. In accordance with the decision the decision of the Full Court of Federal Court in Repatriation Commission v McKenna (1999) 86 FCR 144, it is necessary to consider whether there was a link between the veteran’s scoliosis and his service.
42. No SoP has been issued by the RMA, nor has there been any relevant determinations or declarations under the Act in respect of scoliosis. The proper approach to be adopted by decision-makers in these circumstances, was determined by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408:
…
§the material will raise a reasonable hypothesis within the meaning of subsection 120(3) if the material points to some fact or facts (“the raised facts”) which support the hypothesis and if the hypothesis can be regarded as reasonable if the raised facts are true;
§the case must be rare where it can be said that a hypothesis, based on the raised facts, is unreasonable when it is put forward by a medical practitioner who is eminent in the relevant field of knowledge - conflict with other medical opinions is not sufficient to reject a hypothesis as unreasonable;
§a hypothesis cannot be reasonable if it is contrary to proved scientific facts or to the known phenomena of nature, or if it is obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous; and
§the decision‑maker will be satisfied beyond reasonable doubt within the meaning of subsection 120(1) if it is satisfied beyond reasonable doubt that it cannot accept the raised facts or so many of them as are necessary to support the hypothesis.
…
43. In Byrnes v Repatriation Commission (1993) 177 CLR 564, the High Court said, in effect, that the claim will succeed unless:
§one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or
§the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt.
44. The submission on behalf of Mr Marsh, noted in paragraph [29] above, did not address how it was contended that the scoliosis was connected with Mr Marsh’s service, only that it provided the “context” in which he developed lumbar spondylosis. As I discussed at the hearing, given that the medical evidence was consistently that scoliosis is a congenital condition, any connection with service would have to demonstrate a resulting or contributing worsening of that condition. Were it otherwise, every veteran with congenital scoliosis who subsequently developed lumbar spondylosis would be entitled to attribute his lumbar spondylosis to his service, without further enquiry. Notwithstanding the beneficial nature of the VE Act, I do not think this was the intention of the legislation.
45. The 1965 chest X-ray performed prior to Mr Marsh’s operational service showed minor thoracic scoliosis. Both specialists agreed that it was likely Mr Marsh, at that time, had a secondary, compensatory lumbar scoliosis as well. I accept this to be the case.
46. Dr Millons said that scoliosis is a condition that does not worsen after a person reaches skeletal maturity, and Professor Sambrook found no evidence of worsening. I therefore find that a hypothesis that Mr Marsh’s operational service worsened or aggravated his scoliosis, is not a reasonable one.
47. Even if I were to accept the submission in relation to the scoliosis being ‘context’ in which Mr Marsh’s lumbar spondylosis had arisen, I prefer the evidence of Dr Millons, given his specialty relating to skeletal problems, rather than Professor Sambrook, a rheumatologist, notwithstanding his evidence that he is currently treating 2 patients with lumbar spondylosis and scoliosis. Professor Sambrook had proceeded on the basis that Mr Marsh had worked in one position only “hunched forward over a work bench” for about six hours a day. Dr Millons observed that the position was normal for a right handed person, and that it was one which supports the back. Professor Sambrook was also unaware that Mr Marsh had already been performing a similar role for several years before his operational service, and that he also continued in that role until he left the Army. He was unable to specify why he ‘had a sense’ that Mr Marsh’s Vietnam work was more intensive than the rest of his 30 year career as a draftsman.
48. Mr Marsh’s evidence was of working up to 14 hours a day at his desk, 7 days a week. He also said he worked 2-3 days a week doing sandbagging and other lifting duties 4-5 hours a day. His earlier contention was that his lumbar spondylosis was a result of lifting more than 120,000 kgs: lifting sandbags and loading trucks 7 days a week. Taken together his evidence provides a somewhat confused account of his duties. In his report, Professor Sambrook referred only to Mr Marsh’s “draughtsman” duties as affecting his scoliosis, although he had taken a history of Mr Marsh’s sandbagging duties. Dr Millons said that sandbagging was probably a more significant consideration than desk work. The evidence, however, was confused as to the amount of sandbagging and lifting Mr Marsh might have actually undertaken. The medical evidence does not point to a connection between Mr Marsh’s sandbagging and lifting and any aggravation or worsening of his scoliosis. Further, the medical evidence does not support a finding that the draftsman duties and sandbagging and lifting duties worsened or aggravated his scoliosis.
49. As to whether Mr Marsh’s operational service may have materially contributed to his scoliosis, I note that he had worked prior to his operational service for 2 years as a draftsman, and for 3 years in the Army after his operational service. He worked as a draftsman for another 6 years before his lumbar spondylosis was diagnosed in 1977. Applying Kattenberg v Repatriation Commission (2002) 73 ALD 365, I find that Mr Marsh’s scoliosis, and consequently his lumbar spondylosis, was not contributed to in a material degree by his service, and is therefore not related to his service: sections 9 and 196B(14) of the VE Act and cl 5 of the SoP.
Conclusion
50. In all of the circumstances, I am satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that Mr Marsh’s lumbar spondylosis is relevantly war-caused.
Decision
51. I affirm the decision under review.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member.
Signed: ……[sgd]…………….
Steven Mulipola, Associate
Date of Hearing 3 July 2009
Date of Decision: 21 July 2009
Solicitor for the Applicant: Mr B WinshipAdvocate for the Respondent: Mr T O’Reilly, Advocacy Section, Department of Veterans’ Affairs
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