Webber and Repatriation Commission

[2004] AATA 502

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 502

ADMINISTRATIVE APPEALS TRIBUNAL      )

)              No.  N2001/1926

VETERANS’ APPEALS DIVISION )

Re PETER BROOK WEBBER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen;
Dr M E C Thorpe, Member

Date1 March 2004

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL      )          No.  N2001/1926    

)  

VETERANS’ APPEALS DIVISION )            

Re PETER BROOK WEBBER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal              Senior Member M D Allen;
  Dr M E C Thorpe, Member

Date  1 March 2004

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd) M.D. ALLEN
  ..................................................
  Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS – Applicant injured in two Motor Vehicle Accidents in 1973 – only the latter MVA gave entitlement under the Veterans’ Entitlements Act – not satisfied that SoP for Cerival Spondylosis met given contemporaneous medical reports following second MVA – decision denying liability affirmed.

Veterans’ Entitlements Act 1986 – ss70(5)(b), 120(4), 120B

REASONS FOR DECISION

1 March 2004

  Senior Member M D Allen;

  Dr M E C Thorpe, Member            

1. 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 Act1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.

2.      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.

3.        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;
  Dr M E C Thorpe, Member

Signed:           (K. Wong)       
          ..................................................................................……………

Associate

Date of Hearing  1 March 2004    
Date of Decision  1 March 2004
Counsel for Applicant  Mr C Colborne

Representative for Respondent       Mr M Huthnance, Department of Veterans’ Affairs

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
N01/1926

By  MR M.D. ALLEN, Senior Member

DR M. THORPE, Member
WEBBER and REPATRIATION COMMISSION
SYDNEY, MONDAY, 1 MARCH, 2004

MR ALLEN: By an application made the 14th day of December 2001, the applicant sought review of a previous determination by the respondent that rejected his claim for cervical spondylosis. The said matter came on hearing for this Tribunal today. At that hearing there were taken in as Tribunal documents, the documents produced for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 together with statements of facts and contentions by both the applicant and respondent, an x-ray report dated the 30th April 1973, (exhibit A3), a report of neurosurgeon Dr Michael Biggs dated 16 October 2003 (exhibit A4), the bundle of documents being the applicant's service medical records (exhibit R2) and the RAAF personnel file in respect of the applicant (exhibit R3).

The facts of the matter are not really in dispute, that is to say that the applicant on 16 November 1973 whilst proceeding from his place of duty was involved in a motor vehicle accident. Therefore, pursuant to section 70(5)(b) of the Veterans Entitlements Act 1986 as amended, the respondent is liable for any injury as a result of events during that journey from his place of duty. A claim pursuant to that section is subject to the onus of proof provisions provided by subsection (4) of section 120 of the Veterans’ Entitlements Act which states inter alia that the Commission, and hence this Tribunal, in making any decision, shall decide the matter to its reasonable satisfaction. As was pointed out in Repatriation Commission v Smith 15 FCR 327, the term reasonable satisfaction equates to the civil standard of proof, that is to say proof in the balance of probabilities.

Subsection (4) of section 120 is also subject to the provisions of section 120B of the Veterans Entitlements Act which provides inter alia that an injury or disease shall be defence caused only if there is in force a statement of principles and the material before the Tribunal conforms with the said statement of principles. In this matter the particular Instrument is Instrument No 51 of 2002 as amended by Instruments 64 and 82 of 2002 entitled Cervical Spondylosis. In that instrument paragraph S of section 5 under the heading of Factors reads:

“Suffering a trauma to the cervical spine within the 25 years immediately      before the clinical worsening of cervical spondylosis, ‘trauma to the cervical spine is defined in the said Instrument as meaning’ a discrete injury to the cervical spine that causes the development within 24 hours of the injury being sustained symptoms and signs of pain and tenderness and either altered mobility or range of movement of the cervical spine.  

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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 cervical spine has occurred where that medical intervention involved either (a) immobilisation of the cervical spine by splinting or similar external agent or (b) injection of cortico steroids or local anaesthetics into the cervical spine or (c) surgery to the cervical spine.” 

The events relating to the applicant are that earlier in 1973,  around the period of Easter that year, he was driving a motor vehicle with his family after returning from a period of leave when he was involved in a motor vehicle accident. 

In that motor vehicle accident he injured his neck.  He underwent treatment by service medical authorities for those injuries and obtained both physiotherapy and treatment by a chiropractor, the Applicant said in evidence, and we have no reason to disbelieve him, that he was beginning to get better just prior to the second motor vehicle accident which, as stated earlier, occurred when he was travelling home from his place of duty.  The first motor vehicle accident is not subject to the Veterans’ Entitlements Act as the applicant was not on duty at that time and was not travelling directly to his place of duty.  As said earlier, it was during a period of leave.  The second motor vehicle accident is however subject to the Act pursuant to section 70(5)(b). 

The question for the Tribunal is whether we are satisfied that the applicant suffered a trauma to the cervical spine as that is defined in the said statement of principles.  The applicant says that he did and the effect of any such trauma is in a sense problematical.  For example, Dr Michael Hunter, orthopaedic surgeon, in a report dated 30th of August 2001 to the respondent, says:

I do not have enough detail to determine whether the first motor vehicle accident was significant enough to cause trauma but it certainly sounds like the second motor vehicle accident was significant since he recalls being trapped in the car for two hours afterwards.  

Dr Hunter however concludes his report by stating:

It is always difficult to be sure that the pain experienced presently as a result of spondylosis is as a result of the motor vehicle accidents.  What we do know however is that the motor vehicle accidents were significant enough to result in injuries with resultant damage to the cartilage which could lead to the spondylosis experienced presently.  Mr Webber states that the pain he experiences today dates back to the first motor vehicle accident.  

A report by Dr Michael Biggs dated 16 October 2003 concludes by stating:

Clearly Mr Webber injured his cervical spine in the accident of 22 April 1973.  Possibly this cervical spine injury was exacerbated in the motor

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vehicle accident of 16.11.1973.  

It is therefore important to have regard as to what were the contemporaneous records relating to the second motor vehicle accident. There has been some reference to an account given by the applicant in an undated document currently forwarded to the respondent which occurs at page 64 of the section 37 documents.

In that document the applicant writes:

Contact between these two vehicles occurred between the front of the other car and left-hand front door hinge of the Ford car.  The subsequent damage to our car was such that the dashboard collapsed forward and down on to my legs, between my knees and my thighs.  Subsequently, I was pinned down in this painful position until cut free and released for some considerable time.

Although, as pointed out by counsel for the applicant, this is an account of the accident per se, we do find it significant that at that time the applicant did not, as he did in evidence today, say that he suffered pain to his neck as a result of the accident. 

At page 7 of the section 37 documents is a record by a RAAF medical officer when the applicant reported to him on the 19 November 1973. The applicant had previously seen his own general practitioner on the day following the second motor vehicle accident and he states that that GP examined him, said there was no significant damage and gave him analgesics. He did not recommend any x-ray. The notes of the RAAF medical officer read:

MCA 16 November. Attended own doctor, no treatment given.  Sore left         shoulder, slight abrasions left knee, left elbow.  Bruise right knee -  medial. 

There is no reference in those contemporaneous notes to any injury to the neck and contrary to the applicant's submission.  We see no reason to consider that those contemporaneous medical records overlooked any complaint by the applicant.  It is, of course, significant as well that no notation is made of any further investigations regarding the neck.  On balance therefore, applying the standard of balance of probability, we are not satisfied that the applicant suffered a trauma to his cervical spine in the second motor vehicle accident consistent with the statement of principle and the decision under review is affirmed.

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