Westley and Repatriation Commission (Veterans' entitlements)

[2017] AATA 1988

Westley and Repatriation Commission (Veterans' entitlements) [2017] AATA 1988 (29 September 2017)

Division:                  VETERANS' APPEALS DIVISION

File Number:           2015/4923

Re:Arnold Westley

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member N A Manetta
Member R Ormston

Date:29 September 2017

Date of written reasons:        20 October 2017

Place:Adelaide

For the reasons given orally at the conclusion of the Hearing, the Tribunal affirms the decision under review.

....................[Sgd]........................

Senior Member N A Manetta

CATCHWORDS

VETERANS' AFFAIRS – whether there is a connection between the injury of the veteran and his service – whether reasonable hypothesis has been raised – whether Applicant meets the Statement of Principles – decision under review affirmed.

LEGISLATION

Veterans' Entitlements Act 1986 (Cth)

WRITTEN REASONS FOR ORAL DECISION

Senior Member N A Manetta
Member R Ormston

20 October 2017

1. At the conclusion of the hearing of this matter, the applicant requested written reasons for our decision, which we now provide.

2. This is an application by Mr Arnold Westley for a review of the determination of the respondent in respect of his admitted condition of a prolapsed intervertebral disc at L4 to L5.

3. At the hearing, Mr Westley was represented by Mr Duthie; the respondent, by Mr Schatz.

4. Our decision is to affirm the determination under review.  We now proceed to set out our findings and reasons.

   FINDINGS

5. Mr Westley, who gave oral evidence before us, joined the RAAF on 28 August 1987.  He left the RAAF on 27 August 1991, four years later. The history of his service is also described by him in a statement he prepared and which was received in evidence by the Tribunal.[1]  We are prepared to decide the case on the basis that the statement is accurate in the main.

   [1] Exhibit A6.

6. We now set out the salient features of his service.

7. Mr Westley finished his initial training on 5 November 1987 and was posted shortly thereafter to Laverton RAAF base (in Victoria).  He first undertook a motor transport driving course for some four weeks from 9 November to 9 December 1987.  (We understand this part of his training took place in Wagga).  The first week was taken up with theoretical instruction and the remaining three weeks involved full-time driving.  Mr Westley’s evidence was that the course comprised 40-hour weeks.

8. In Laverton, from 9 December 1987 onwards, Mr Westley worked as a driver.  His duties included driving the support command bus, acting as a driver for medical couriers, doing x-ray and supply runs, driving specialist vehicles, and serving as a duty driver, duty tanker driver, and aircraft refueller.  He also served as a duty ambulance driver and was, in addition, required to ferry military personnel to and from medical and other appointments.

9. In short, his experience at Laverton was varied and involved considerable driving.

10. Mr Westley left Laverton on 15 May 1989 (or thereabouts) and was then posted to the RAAF base at Amberley, in Queensland.  At Amberley, Mr Westley undertook a military police course.  Given his previous experience as a qualified driver, his skills were utilised from time to time by his superiors at a frequency of about five hours per week.  He was also utilised for additional driving during the pilots’ strike.  He did not give evidence of the additional hours that would have been involved in these additional duties but we do not believe they were significant.

11. After graduation from the military police course, Mr Westley was posted to RAAF base Tindal on 9 October 1989 where he carried out mobile patrols and various other military police duties.

12. Before detailing his driving service at Tindal, we refer to an incident that occurred at Amberley.  Mr Westley gave evidence that he had to complete physical training as part of his military police course at Amberley.  As part of that training, Mr Westley, along with others, had to carry a strainer post between two points on a particular day.

13. In all, four recruits were involved in the exercise.  The post was mishandled and dropped by the other three recruits.  Mr Westley gave evidence that his back “went crack”, “like a pop”.  He asked to go to the medical centre but was denied permission by the supervising corporal.  He “nursed his way through the rest of the course and took it quite easy”, he said.

14. Mr Westley did not seek medical assistance at the time of the incident or at any time thereafter in respect of any back injury he may have suffered.  In respect of the denial of permission to attend the medical centre, we find that the effect of the conversation between Mr Westley and the supervising corporal was that the corporal denied Mr Westley permission to go to the medical centre, told him to stretch out his back instead, and gave him exercises to do in that regard.  We do not find that he was formally forbidden by the corporal to seek medical attention.

15. We find also that Mr Westley did not say to the corporal that he was in such real pain that he needed to seek medical assistance immediately.  We find that in the days after the incident Mr Westley did not seek medical assistance in his own spare time either on or off base.  Our conclusion in respect of the evidence is that while the incident involving the strainer post did cause initial back pain to Mr Westley, it did not cause him such prolonged pain or discomfort that he was unable to go on with the military police course nor did it cause him such prolonged pain or discomfort that he thought it necessary or desirable to seek medical advice.

16. In the circumstances, in the absence of pain or discomfort of a greater degree, we are not satisfied that the strainer-post incident could have caused the prolapsed disc at L4 to L5.

17. In addition, we have no medical opinion before us which would link the prolapsed disc to the strainer post incident.  In this connection, we would note that Mr Westley did not avail himself of the opportunity given to him through an adjournment to seek and adduce supporting medical evidence.  We do not criticise Mr Westley for not adducing that evidence, and we do not draw any inference adverse to Mr Westley.  We simply wish to record that the opportunity was given to Mr Westley to seek supporting medical evidence and none was adduced in the event.

18. Mr Westley did not suggest any difficulties in his relationship with the physical training corporal at Amberley.  (By way of contrast, he accept that he enjoyed a poor relationship with his supervising sergeant at Tindal).  We appreciate that there may well have been in the armed services at the time a general culture of disapproval of injured service personnel.  They may have been labelled “malingerers”.  We do not think, however, that any such general culture explains Mr Westley’s decision not to seek medical assistance at Amberley in his spare time.  Mr Westley had been in the RAAF for some time when the strainer post incident occurred and we do not believe he would have felt unable to seek that advice.

19. We now turn to Mr Westley’s service at Tindal.  Mr Westley was posted to Tindal RAAF base on 9 October 1989.  He carried out mobile patrols and other military police duties including administrative tasks in the police HQ.  He served in this capacity at Tindal until his discharge in late August 1991.

20. For the purposes of deciding the application, we are prepared to proceed on the basis of fact that is most favourable to Mr Westley; namely, that on weekdays he would drive two hours per morning shift; six hours per afternoon shift; and seven hours per night shift.  On weekends shifts were seven hours long.

21. The evidence from Mr Westley suggests he was rostered to serve two day-shifts followed by two afternoon-shifts followed by two night-shifts followed by four days off (in all a ten-day rotation).  

22. A table was prepared by Mr Schatz as an aid to the Tribunal and which Mr Duthie did not dispute.  The table demonstrated that a cycle would occupy 70 days before it began again.  Over the cycle (equalling 10 weeks), Mr Westley averaged 23.4 hours per week of driving.

23. We would also note another factor that is of importance.  Other evidence before the Tribunal from those involved in these police duties[2] suggested that Mr Westley and his colleagues were largely free to decide how many mobile patrols were conducted (as opposed to foot patrols) after hours and, indeed, how many patrols of either variety were conducted.

    [2] See, for example, Exhibit A1 at [7].

24. There was no order or protocol in place directing the number of patrols or mandating patrols of one type or another.  In addition, there was no rule directing personnel as to how they should divide their time between administrative tasks in the office and patrol work.  We find that Mr Westley elected to spend considerable amounts of time driving and certainly more time than that spent by some of his colleagues.

25. From this evidence, we would infer that driving did not cause Mr Westley any undue discomfort or pain; otherwise, he would have reduced his after-hours mobile patrols and either elected to perform some of those patrols on foot or not to do them at all (that is, he would have elected to spend more time in the office attending to paper work or waiting for calls).

26. We now return to Mr Westley’s work history after discharge.  In 1991, he secured work as a welder with Perry Engineering and remained with the firm until he was retrenched in 1996.  The cessation of his employment was not brought about by inadequate performance or injury: rather, he was simply made redundant.

27. His evidence to the Tribunal, which we accept, was that the welding work he was required to do did not involve heavy lifting, but we find it must have involved prolonged periods of sitting and some working at awkward angles.

28. It would appear that in May 1996 X-rays that were taken revealed that Mr Westley had an intervertebral disc bulge at the L4-L5 level.  It was causing him severe pain.  An epidural, and other treatments, failed to alleviate the pain.

29. In respect of the pain caused by the disc bulge, we note that Dr Tomlinson, an orthopaedic surgeon, records in her letter of 1997 that Mr Westley had presented to her as a man with a “14 month history of low back pain”[3] who was “unable to recall any precipitating event for this pain”.  We regard that record as of relevance in determining whether the Amberley incident and the driving at Tindal were the cause of the disc bulge.  The report offers no support for the hypothesis that the disc bulge is linked to Mr Westley’s service.

    [3] Exhibit A7.

30. Finally, we note for the sake of completeness that Mr Westley lodged a disability pension claim on 29 January 2002.  His application included claims for lumbar spondylosis, intervertebral disc prolapse, and an adjustment disorder.  All three of these conditions were initially rejected.  In June 2005, it would appear that Mr Westley claimed again a pension for lumbar spondylosis and was successful.  For present purposes it is sufficient to note that through an oversight Mr Westley’s claim in respect of his disc prolapse was overlooked but the error was rectified in the Commission’s decision of November 2013 when the claim was finally considered but rejected.  It is that decision which is before us.

    REASONS

31. We now turn to consider the applicable law.

32. First, we note the Tribunal is directed by the Veterans Entitlements Act 1986 to decide Mr Westley’s application on the basis of “reasonable satisfaction”: s 120(4).  In applying that statutory standard, the Tribunal (standing in the shoes of the Commission) is

    ·first, directed to be satisfied that the material before it raises a connection between the injury of the veteran and his or her service; and

    ·secondly, it is directed to consider the relevant Statement of Principles. 

33. We accept the respondent’s contention that these two questions must be answered favourably to Mr Westley if he is to be successful.

34. We accept the respondent’s contention that in this case there is no demonstrated connection between Mr Westley’s service and the prolapsed disc on the material before us.  The prolapsed disc was first diagnosed in 1996, some years after Mr Westley’s discharge.  We note our finding that the prolapsed disc was not caused by the incident at Amberley involving the strainer post.  We note further that on his evidence Mr Westley was able to perform very long hours of driving approximating some 24 hours per week whilst at Tindal.  He had an option to choose to drive fewer hours as some of his colleagues had elected to do but he chose not to.  This suggests strongly to us that driving at Tindal did not cause the prolapsed disc or indeed that it aggravated any existing prolapse.

35. In addition, we note that for some years after discharge Mr Westley worked as a welder.  The onset of back pain first appears in his treating doctor’s notes in 1996, some years after Mr Westley’s discharge.

36. We are not satisfied in these circumstances that there is any demonstrated connection between Mr Westley’s service and his prolapsed disc.  Were we required to determine the issue, we would find that it is more likely that Mr Westley’s disc problems were caused by his subsequent work post-discharge as a welder but we note that we are not required to decide that issue.  It is sufficient for us to decide that we are not satisfied that there is any demonstrated connection between Mr Westley’s service and his prolapsed disc.

37. This conclusion is sufficient to require the Tribunal to decide the matter against Mr Westley.

38. However, we shall consider the question of the Statement of Principles as well.  In respect of a prolapsed disc, the only potentially relevant principle requires the driving of a vehicle for an average of 30 hours per week for a period of at least two years within the 10 years before the clinical onset of the disc prolapse.[4]

    [4] SOP concerning Intervertebral Disc Prolapse (Balance of Probabilities), subsection 9(5).

39. We note that as the case was argued before us, Mr Westley maintains that his prolapsed disc was initially caused by the strainer-post incident and aggravated by driving. 

40. However, the period of driving at Tindal was not two years in duration, and we have also referred to the fact that an average of 30 hours per week was not achieved by Mr Westley on the most favourable view of the evidence during his period of service at Tindal in any event.  It follows in our opinion that Mr Westley’s claim must fail in this regard as well.

41. Finally, we refer to an argument that was put forward by Mr Duthie that the prolapsed disc should be considered part and parcel of the condition of lumbar spondylosis that was accepted many years ago.  We do not think it is appropriate to reason in this fashion.  The two conditions (that is, the conditions of lumbar spondylosis and the prolapsed disc) are to be assessed separately.  Mr Westley’s claim before the Commission and in this Tribunal has raised the prolapsed disc as a separate condition entitling him to compensation in accordance with the statutory requirements.

42. For the reasons we have given we have found that Mr Westley’s prolapsed disc has not been demonstrated to be service-related.

    DECISION

43. The formal decision of the Tribunal will to be affirm the decision under review.

I certify that the preceding 43 (forty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member N A Manetta, Member R Ormston

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Administrative Assistant

Dated: 20 October 2017

Date(s) of hearing:	29 May 2017, 21 August 2017, 8 & 29 September 2017
Advocate for the Applicant:	Mr R Duthie
Counsel for the Respondent:	Mr A Schatz
Advocate for the Respondent:	Ms N McGowan
Solicitors for the Respondent:	Australian Government Solicitor