Wheat and Repatriation Commission
[2003] AATA 1050
•17 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1050
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W2002/110
VETERANS' APPEALS DIVISION ) Re GARY ROBERT WHEAT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Brigadier R D F Lloyd, Member Date17 October 2003
PlacePerth
Decision Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(a) to set aside the VRB decision under review of 13 February 2002 in so far as thoraco-lumbar spondylosis and localised osteoarthrosis right knee are concerned, and to accept these two conditions as being war-caused with effect from 7 December 1999;
(b) to remit the matter of assessment of incapacity from these two conditions together with all previously accepted conditions to the Repatriation Commission;
(c) to affirm that part of the VRB decision under review refusing acceptance of cervical spondylosis and osteoarthrosis right shoulder as being war-caused.
...........(sgd R D F Lloyd)....................
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – Australian Army (National Service) – Infantryman – Operational service Vietnam – claim for Cervical spondylosis, Thoraco-lumbar spondylosis, Localised Osteoarthrosis Right Knee, Osteoarthrosis Right Shoulder rejected by VRB as war-caused and review of assessment of disability pension – whether applicant meets the requirements of the relevant Statements of Principle – does so for Thoraco-lumbar and Right Knee conditions based on weight bearing/lifting loads on eligible service period sufficient to make relevant material contribution remainder not war-caused – decision under review in part set aside – assessment of disability pension remitted to respondent
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A
Re Repatriation Commission v Deledio [1998] 83 FCR 82
Kattenberg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION
17 October 2003 Brigadier R D F Lloyd, Member 1. This is an application before the Administrative Appeals Tribunal (“the Tribunal”) by Gary Robert Wheat (“the applicant”) for a review of a decision of the Veterans’ Review Board (“the VRB”) dated 13 February 2002 in so far as:
(a)it affirmed that part of the decision of 31 October 2000 by the Repatriation Commission (“the respondent”) which refused acceptance of cervical spondylosis, thoraco-lumbar spondylosis, localised osteoarthrosis right knee and osteoarthrosis right shoulder as being war caused conditions; and
(b)that it set aside the same respondent’s decision in so far as it related to assessment of pension and instead decided that disability pension be at 90 per cent of the General Rate with effect 7 December 1999, but then be reduced to 80 per cent with effect 8 October 2000.
2. In the same VRB decision it affirmed the respondent’s determination of 31 October 2000 that the applicant’s claim for acceptance of the condition of peptic ulcer was refused on the basis of it having healed and hence no disability found. The applicant is not seeking review of that aspect of the VRB’s decision.
3. The applicant attended the hearing, together with his wife. He was assisted by his advocate, Mr P Lofdahl and the respondent was represented by Mr C Ponnuthurai. The Tribunal had before it the documents filed pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 (‘the T documents”). In addition, the following documents were taken into evidence at the request of the applicant:
· Exhibit A1: Witness statement by G R Wheat (the applicant) dated 23 July 2002;
· Exhibit A2: Summary of applicant’s relevant activity whilst on operational service – titled “The Veterans’ Operational Service” (prepared by the applicant and his advocate) – signed by P Lofdahl and dated 30 September 2003;
· Exhibit A3: Extract from “Vietnam – the Australian Experience” of 2 pages (the cover and one other page entitled “Fire Power”);
· Exhibit A4: Extract from “Combat Battalion – The Eighth Battalion in Vietnam” of 4 pages.
No additional documentary evidence was handed up by the respondent, nor were any respondent witnesses called to give evidence at the hearing. The applicant gave oral evidence, was questioned by the Tribunal and cross-examined by the respondent. The Tribunal as a result regards him as an apparently honest and forthright witness and as reliable in his accuracy as one would expect in recollecting matters dating back over 30 years ago.
Service
4. The applicant served in the Australian Army from 1 May 1968 to 30 April 1970, having been called up under the National Service Scheme. He was an infantryman and served overseas with 8th Battalion Royal Australian Regiment (8RAR) as follows:
(a)Malaysia: 18 October 1968 to 2 May 1969
(b)Vietnam: 17 November 1969 to 11 February 1970
The Law – Entitlement to Claimed Conditions
5. This matter is to be decided under the provisions of the Veterans’ Entitlements Act 1986 (“the Act”). The applicant’s eligible service under the Act is limited to his Vietnam Service which is defined as operational service. The remainder of his time in the Army is outside the prescribed period defined for eligible defence service under the Act.
6. The applicant having had operational service, in relation to his entitlement claims, s 120(1) and s 120(3) of the Act apply and the Tribunal is required to find that the applicant’s claimed conditions are war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for doing so. Additionally, as the claim was lodged after 1 June 1994, by virtue of s 120A of the Act, the Tribunal is required to have regard to any relevant Statement of Principle (“SoP”) issued by the Repatriation Medical Authority (“RMA”) concerning the condition(s) suffered by the applicant.
7. The Tribunal’s consideration of the applicant’s claim for acceptance of the four conditions involved in this matter follows the process set out in Repatriation Commission v Deledio [1998] 83 FCR 82.
Diagnosis of Claimed Conditions
8. As the initial step in the review process, the Tribunal must be relevantly satisfied (ie. on the balance of probabilities) as to the appropriateness of the diagnosis and description of the claimed conditions.
9. In this instance the medical opinion evidence establishes that the four conditions involved are in fact cervical spondylosis, thoraco-lumbar spondylosis, localised osteoarthrosis right knee and osteoarthrosis right shoulder. This is common ground for both applicant and respondent and the Tribunal is reasonably satisfied from the material before it that these are the correct descriptions of the conditions suffered by the applicant and which he now claims were war-caused.
Applicant’s Contentions Concerning Claimed Conditions
10. The applicant’s contention is that all four conditions were caused, or were contributed to in a material degree, by his operational service in Vietnam. During this time he was a member of a section of a platoon in a rifle company of his battalion (8RAR) and for most of the time he was second-in-command (2ic) of the section. Prior to that Vietnam service he had been in Malaysia in a similar capacity. Although this was not eligible service, it involved vigorous training and activities in preparation for the Vietnam deployment.
11. The Vietnam activities referred to by the applicant as part of his contention, in general involved traumas to his back and limbs resulting from jumping and falling incidents/injuries. In addition there were the results, on his knees and back in particular, of carrying/lifting of heavy loads on a frequent basis.
12. The Tribunal first considered the relevant material before it in relation to this overall contention concerning all four claimed conditions from the documentary evidence, including Exhibits A1 to A4. Without initially making findings of fact in this regard, the Tribunal is satisfied that the material adequately points to a hypothesis, connecting each of the conditions with the applicant’s war service.
Statements of Principle
13. There are SoPs in force, determined by the RMA, dealing with all four conditions. These are as follows:
(a)Cervical spondylosis: the current SoP is Instrument 50 of 2002, as amended by 81 of 2002. As at the time of the respondent’s October 2000 decision it was Instrument 31 of 1999.
(b)Thoracic Spondylosis: the current SoP is Instrument 48 of 2002, as amended by 79 of 2002. As at the time of the respondent’s October 2000 decision it was Instrument 29 of 1999.
(c)Lumbar spondylosis: the current SoP is Instrument 46 of 2002, as amended by 79 of 2002. As at the time of the respondent’s October 2000 decision it was Instrument 27 of 1999.
(d)Osteoarthrosis: the current SoP is Instrument 81 of 2001, as amended by 77 of 2002. As at the time of the respondent’s October 2000 decision it was 41 of 1998, as amended by 19 of 1999.
14. The Tribunal is required, in the first instance, to assess the matter using the SoPs now current. Should it not find in favour of the applicant as a result, then the applicant has an accrued right for the matter to be assessed using the SoPs current at the time of the respondent’s decision.
15. It is common ground and agreed by the Tribunal that the relevant factor common to all the current statements is that relating to suffering a trauma. It was also agreed that the current SoPs for thoracic and lumbar spondylosis, and for osteoarthrosis of weight bearing joints (which includes the knee), have criteria relating to the lifting of weights of at least 25 kg to a total of 120,000kg within any 10 year period – prior to the clinical onset of the condition.
16. It is also common ground that the current SoPs are more beneficial to the applicant. Hence it was agreed that it would be pointless to pursue the matter using the previous SoPs should the Tribunal not find in favour of the applicant using the current statements.
Evidence
17. In regard to relevant traumas suffered by the applicant during his operational service in Vietnam he states there were essentially three significant incidents/injuries that he can recall. These were:
(a)When being extracted out of an operation by helicopter he fell out as it was lifting off and would have fallen from a considerable height had he not been grabbed by the helicopter’s side gunner taking a hold on his pack. The applicant says he suffered a severe jolt in the process to his neck, back and shoulders. He was eventually pulled back inside the helicopter as it flew. On reaching base his neck and shoulders in particular were sore for several weeks but he suffered no loss of mobility. He had some pain and obtained Panadol (or equivalent) from the RAP to help. He states he was not off duty as a result and was able to perform normal activities.
(b)When being transported by truck to Vung Tau he states he fell out of the back when it unexpectedly accelerated. He landed on his backside and elbows which hurt sufficiently for him not to spend his 2-3 days rest going into town and doing other such like activity but as a result he stayed around the Vung Tau base. He states he did go to the RAP where he was given some sort of pills to help. On return to his battalion he resumed normal duties and patrolling without any significant restriction or difficulty.
(c)At night on a particular “stand to” alert he fell in the dark into a weapon pit twisting his right knee. After the alert he was assisted out of the weapon pit back to his lines. In the morning his knee was swollen and remained so for 4-6 days, and it was quite sore for about 2 weeks. He obtained some pain relief pills from the platoon medic rather than go to the RAP. He maintains he was able to manage all the normal tasks in his section following this incident despite the soreness and swelling of his knee.
18. In all three trauma incidents the applicant maintains that the injury suffered would, under normal circumstances have resulted in being put on “no duty” or “light duty”.. However he says on active service you were expected to downplay the physical disabilities and get on with the job. This he says he did despite the pain and restrictions he felt on each occasion.
19. On discharge, at his Final Medical Examination, he is recorded as stating that he had not suffered a knee, back or joint injury during his service (T4 page 39). And there is no indication that the examining doctor found any such problem at that time.
20. In regard to the contention that lifting/carrying heavy loads (other than on his head) was a causal factor, it was maintained that this was relevant to the claimed thoraco-lumbar and right knee conditions only. The evidence in this respect comes principally from the material provided by the applicant in Exhibit A1, and more particularly Exhibit A2 together with his oral evidence.
21. With some modifications to the applicant’s evidence, which then becomes common ground, it was agreed that the carrying/lifting of heavy load evidence in the end result was:
(a)on board HMAS Sydney (on route to Vietnam) – which is included as operational service:
12 days x 2 lifts per day x 27 kg = 648 kg
(b)“Operational Days” in Vietnam:
48 days x 10 lifts per day x 45 kg = 21,600 kg
(c)“Working Party Type Days” in Vietnam:
Sandbag lifting and carrying –
40 sandbags x 35 kgs x 27 days = 37,800 kg
Other items (eg. jerry cans of water etc) –
20 loads x 25 kg x 27 days = 13,500 kg
Total= 51,300 kg
The total weight carrying/lifting for the applicant’s period of operational service was therefore stated to be:
648 + 21,600 + 51,300 = 73,548 kg
22. Whilst the applicant’s service in Malaysia is not eligible service under the Act, it was put to the Tribunal that similar weights were involved during his 18 weeks of relevant activity there. These calculations were common ground and amounted to:
6 x 21 day patrols x 10 lifts/pickups per day x 50 kg load (pack, M60 weapon, water etc) = 63,000 kg
If theoretically added together with his operational service figure this amounts to a total of 73,548 + 63,000 which equals 136,500 kg approximately. It should be noted that in stating this figure the Tribunal has in the process corrected the mathematical errors made by the parties in the hearing.
23. The applicant indicated in his evidence that despite the indications in his discharge medical document, he had on-going problems with his neck, back, shoulder and knee post discharge. The question of clinical onset of all conditions can not be precisely assessed but it was put to the Tribunal that it was clearly after his eligible period of service and not before, and that that is what matters as far as the relevant SoPs are concerned.
Requirements of the Relevant SoPs
24. Cervical spondylosis (SoP Instrument 50 of 2002 as amended). The only factor relevant to the hypothesis raised is factor 5(h). This states as follows:
“suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis; or”
The term “trauma to the cervical spine” is defined in the same SoP in paragraph 8 as follows:
“trauma to the cervical spine” means a discrete injury to the cervical 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 cervical spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred, where that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.”
25. Osteoarthrosis of right shoulder (SoP Instrument 81 of 2001 as amended). The only factor relevant to the hypothesis raised is factor 5(j). This states as follows:
“suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint.”
The term “trauma to the affected joint” is defined in similar terms as that stated in paragraph 24 above.
26. Osteoarthrosis of right knee (SoP Instrument 81 of 2001 as amended). The only factor relevant to the hypothesis raised is factor 5(k). This states as follows:
“for osteoarthrosis of a hip or knee joint, lifting loads of at least 25 kg while weight bearing to a cumulative total of 120,000 kg within any 10 year period, before the clinical onset of osteoarthrosis of that joint; or”
The term “weight bearing” is defined in the same SoP at paragraph 8 as follows:
“weight bearing” means weight loading the affected joint.”
27. Thoracic and lumbar spondylosis (SoP Instrument 48 of 2002 as amended, and Instrument 46 of 2002 as amended). The only relevant factor relevant to the hypothesis for the condition of thoraco-lumbar spondylosis is 5(j) – as contained in both SoPs. This is the same in each and states as follows:
“manually lifting or carrying loads of at least 25 kg while weight bearing to a cumulative total of 120,000 kg within any 10 year period, before the clinical onset of thoracic [or lumbar] spondylosis; or”
The term “weight bearing” is not defined in either of these SoPs.
Tribunal Conclusions and Findings
28. The Tribunal finds from the evidence before it that the four claimed conditions are appropriately diagnosed and correctly described as cervical spondylosis, thoraco-lumbar spondylosis, localised osteoarthrosis right knee and osteoarthrosis right shoulder (paragraph 9 above refers).
29. In regard to the clinical onset of these conditions the Tribunal finds from the facts presented that the onset dates are not readily assessable. However the Tribunal is relevantly satisfied that the clinical onset of each was post the applicant’s discharge from the Army. Therefore, in terms of the relevant SoPs it was after the activities/injuries which are described as occurring on operational service and which are contended to be causal factors.
30. This Tribunal, in particular, as would be appreciated fully accepts from its own experience the evidence indicating that the applicant – as an infantry soldier in a rifle platoon of an infantry battalion on active service in Vietnam – would have been engaged in strenuous physical activity, manual labour, significant stress and exposed to frequent danger. The Tribunal makes this as a finding of fact. In general terms the same finding applies to the evidence concerning the sort of weight lifting and carrying, as estimated and described. The preciseness and accuracy of the figures presented is difficult to be certain about, however the Tribunal is satisfied from its own experience and the supporting evidence before it that the end result figures for these activities as stated in paragraphs 21 and 22 above are reasonable. The Tribunal thus finds that they provide as accurate a calculation as is possible under the very imprecise circumstances involved.
31. Thoraco-lumbar spondylosis and osteoarthrosis right knee. The figures show that during operational service, the applicant lifted/carried loads of 25 kg or more to a cumulative total of some 73,500 kg. This is less than the required amount of 120,000kg prescribed in the relevant SoPs for the conditions of thoraco-lumbar spondylosis and osteoarthrosis right knee. However it should be noted that the Tribunal also finds that the applicant’s similar activity in Malaysia of weight/load bearing resulted in a further total of some 63,000 kg. Although this is not within his eligible service it does show that during his total Army service more than 120,000 kg was involved (ie. 136,500 kg). Furthermore the war service activity involved occurred in a 3 month period and is therefore well within the 10 year period required by the SoPs.
32. As emphasised in Kattenberg v Repatriation Commission [2002] FCA 412 by Emmett J, the question to be answered as in this case is: does the applicant’s operational service activity in weight/load bearing represent a contribution, to a material degree, toward the onset of the two conditions of thoraco-lumbar spondylosis and osteoarthrosis right knee? That is, in numerical terms, does the 73,500 kg worth of activity represent a material contribution toward the required total of 120,000 kg? The Tribunal is relevantly satisfied that it does and that the hypothesis raised for these two conditions fits the template of the relevant SoPs, and as a consequence is deemed to be reasonable.
33. Having reached that conclusion in relation to the conditions of thoraco-lumbar spondylosis and osteoarthrosis right knee, and in pursuance of s 120(1) of the Act, the Tribunal is satisfied beyond reasonable doubt, based on all the material before it, that there is no sufficient ground for concluding that these two conditions were not contributed to, in a material degree, by the applicant’s operational service. Therefore, in accordance with the provisions of the Act, they are both war-caused. The effective date is 7 December 1999.
34. Osteoarthrosis right shoulder and cervical spondylosis. In relation to these two conditions and the trauma incidents contended to be causal, the Tribunal is of the opinion that the factor in the SoPs requires that the traumas be significant. The evidence before the Tribunal shows that the applicant’s injuries were not sufficient for his mobility to be relevantly affected, and the resultant pain was not sufficient to prevent or significantly restrict his duties or activity level. The Tribunal is of the opinion that the hypothesis raised in relation to these two conditions fails to fit the template of the relevant SoPs. As a consequence the hypotheses are deemed not to be reasonable in terms of the Act. The claim for these two conditions as being war-caused therefore must fail and the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for accepting them.
Assessment of Pension
35. The respondent’s representative raised the matter of the VRB having inappropriately designated an effective date in the decision under review for the reduction in disability pension decided. Be that as it may, the Tribunal is of the opinion that it does not have sufficient current evidence before it to adequately assess the applicant’s rate of pension taking into account both the previously accepted disabilities and the two conditions now accepted. This must be done whether the outcome is a percentage of the General Rate, or as the applicant contends – it justifies the Special Rate.
36. As a consequence, the Tribunal finds it necessary to remit the matter of assessment to the respondent for consideration and determination, taking into account all disabilities now accepted as service related. Both parties acknowledged the Tribunal’s intention in this regard and raised no objection.
Decision
37. For the above reasons and pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal decides:
(a)to set aside the VRB decision under review of 13 February 2002 in so far as thoraco-lumbar spondylosis and localised osteoarthrosis right knee are concerned, and to accept these two conditions as being war-caused with effect from 7 December 1999;
(b)to remit the matter of assessment of incapacity from these two conditions together with all previously accepted conditions to the Repatriation Commission;
(c)to affirm that part of the VRB decision under review refusing acceptance of cervical spondylosis and osteoarthrosis right shoulder as being war-caused.
I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Brigadier R D F Lloyd, Member
Signed: ..............(sgd V Wong).................................
AssociateDate/s of Hearing 1 October 2003
Date of Decision 17 October 2003
Counsel for the Applicant Mr P Lofdahl
Counsel for the Respondent Mr C Ponnuthurai
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