William Henry Walker and Repatriation Commission
[2012] AATA 630
•20 September 2012
[2012] AATA 630
| Division | VETERANS' APPEALS DIVISION |
| File Number | 2012/0191 |
| Re | William Henry Walker |
| APPLICANT | |
| And | Repatriation Commission |
| RESPONDENT |
DECISION
| Tribunal | G. D. Friedman, Senior Member |
| Date | 20 September 2012 |
| Place | Melbourne |
The Tribunal affirms the decision under review.
............................[sgd]............................................
G. D. Friedman, Senior Member
VETERANS' AFFAIRS – veterans’ entitlements – lumbar spondylosis and lumbar spondylolisthesis – entering and exiting aircraft – whether war-caused
Veterans' Entitlements Act 1986 ss 9, 119(1)(h), 120(1), 120(3)
Bushell v Repatriation Commission [1992] HCA 47
East v Repatriation Commission (1987) 16 FCR 517
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hill [2002] FCAFC 192
Repatriation Commission v Owens (1996) 70 ALJR 904
REASONS FOR DECISION
G. D. Friedman, Senior Member
20 September 2012
William Walker served in the Australian Army (Army) from 23 April 1942 to 7 December 1943 and in the Royal Australian Air Force (RAAF) from 8 December 1943 to 4 October 1945. His service constitutes operational service under the Veterans' Entitlements Act 1986 (the Act).
Mr Walker is in receipt of a disability pension at 90 per cent of the general rate as a result of the following war-caused medical conditions: sensorineural hearing loss, tinnitus and chronic obstructive airways disease. On 12 November 2010 he lodged a claim for incapacity from lumbar spondylosis (diagnosed as lumbar spondylosis with spinal canal stenosis and spondylolisthesis L5-S1). His claim was refused by the respondent and the Veterans' Review Board (VRB). Mr Walker is seeking review of the decision.
LEGAL FRAMEWORK
Section 9 of the Act provides that where an injury or disease results from an occurrence that happened while the veteran was rendering operational service or where it arose out of, or was attributable to that service, the injury or disease will be taken as being war-caused. Causation questions such as these, where a veteran has rendered operational service, are addressed by applying the standard of proof in s 120(1) and s 120(3) of the Act. That requires decision-makers to determine that an injury or disease is war-caused unless satisfied beyond reasonable doubt that there is no sufficient ground for making that determination.
In the circumstances of this case, where Mr Walker has rendered operational service, the issue of whether the diagnosed condition was caused by operational service is to be decided by reference to the four-step process identified by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98:
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 [Statement of Principles] determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
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.
ISSUE
There is no dispute that Mr Walker suffers from lumbar spondylosis with spinal canal stenosis and spondylolisthesis. The issue before the Tribunal is whether the condition is war-caused, which involves consideration of whether Mr Walker satisfies the four steps in Deledio.
In respect of the first step from Deledio, after considering the material provided by Mr Walker, the Tribunal determines that the material points to a hypothesis connecting the condition with the circumstances of the particular service rendered by him. Therefore Mr Walker satisfies the first step.
In respect of the second step from Deledio, there is an SoP in force, being SoP Nº 37 of 2005 (as amended by SoP Nº 78 of 2008 and SoP Nº 36 of 2010) concerning lumbar spondylosis. Factor 6 states:
(e) having a condition of the lumbar spine from the specified list of spinal conditions before the clinical onset of lumbar spondylosis; or
…
(g) having a trauma to the lumbar spine before the clinical onset of lumbar spondylosis;
Paragraph 9 of SoP No. 37 of 2005 states:
“the specified list of spinal conditions” means:
…
(b) spondylolisthesis;
…
“trauma to the lumbar spine” means a discrete injury, including G force-induced injury, to the lumbar spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar 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 lumbar spine has occurred and that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.
Therefore Mr Walker satisfies the second step.
In respect of the third step from Deledio, Mr Walker told the Tribunal that he first developed back pain when he served in the RAAF as a rear gunner in Liberator aircraft in 1944. He said he was required to enter the aircraft feet first in order to climb into his position in the gun turret, which was secured in position by a pin which came into contact with his back upon entry. He said he suffered pain immediately and also suffered additional damage to his back after coming into contact with the pin on subsequent occasions. He said he endured the symptoms for some time before eventually reporting them. He said that he was told that he had an infected pilonidal cyst on his lower back (near his buttocks) for which he was admitted to hospital and underwent surgery on 6 September 1945 before his discharge on 4 October 1945. He explained that to the best of his recollection there was no investigation of any other underlying back problem at that stage.
Mr Walker said that after the surgery he continued to suffer pain in his tail-bone (which he said was at the lowest part of his spine, or the coccyx). He stated that after discharge he returned to work on his parents’ farm and his back pain caused difficulty in coping with some of his duties. He said that over the years he has obtained ongoing treatment from chiropractors and osteopaths, although he said he was reluctant to divulge this to his general practitioner, whom he believed would not approve. In 1955 he was allocated a block of land and left his parents’ farm to set up his own sheep farm. He sold the farm in the 1970s because of his back pain and worked as a stock agent until his retirement in about 2000. Mr Walker told the Tribunal that the pain has persisted to the present day.
Under cross-examination Mr Walker agreed that the records of his medical examination prior to discharge show that the only injury mentioned by him or the medical officer was the pilonidal cyst and his treatment for that condition. There was no reference to any lumbar spine problem, nor did Mr Walker mention any back pain at the time. He also agreed that he told the VRB that he did not have any back problems prior to the surgery for the pilonidal cyst, and that after he was released from hospital following the surgery he was discharged from the RAAF and returned to his parents’ farm. He told the VRB:
…I went home and then I got into trouble with my back but I never thought I could ever do anything about it. I was, you know, young and stupid I suppose.
Mr Walker said that he gave evidence to the VRB by telephone and must have misunderstood or misheard some of the questions.
Mr Walker agreed that he told the VRB that when he resumed working on the farm after discharge from the RAAF he was doing:
…a bit of everything; driving with horses, ploughing, harvesting and everything else. Whatever went on the farm like and-but I don't know whether-what-what happened. Why it went wrong, I don't know…
When asked by the VRB when he first went to a chiropractor after discharge he said:
Oh, well, I don't know whether it would be 12 months after I came home or what it was. I-I don't remember, really.
Mr Walker agreed that the first time a doctor recommended X-rays for his back pain was in about 2010.
Mr Walker agreed that he told the VRB that each time he entered or exited the aircraft he hurt his tail-bone on the turret pin. When asked whether at any time after experiencing this pain he had to seek medical attention, he stated:
Well, yes. That's when, well, it was nearly the end of the war and I – I - it sort of come up. It come up on - on the tail bone like a - a bit of, well, a boil or something like that.
He agreed that this was the pilonidal cyst, and that he could not recall any time during his service, either in the Army or the RAAF, when he had hurt his lower back. He said that the only reference to back pain was in Progress Notes made on 15 September 1945 during his stay in hospital for the surgery: - Pain in both hips and back relieved by changing position -.
Mr Walker acknowledged that, in a Claimant Report – Trauma Lumbar Spondylosis dated 12 January 2011 and lodged with the Department of Veterans’ Affairs, he stated in answers to questions that the symptoms of lumbar spondylosis were first noticed in September 1945 and that the injury possibly occurred 6 to 9 months before it was first noticed as a consequence of getting in and out of the rear gun turret of a Liberator aircraft, with the symptoms lasting …until I had the operation on my back. At the hearing he said that some of these answers were incorrect, and that the advocate who prepared them on his behalf may have misunderstood his instructions.
Mr G Walker, son of Mr Walker, told the Tribunal that, for as long as he could recall, his father has suffered from chronic lower back pain, which often required attendance at a chiropractor. He said that Mr Walker usually recovered reasonably quickly from acute bouts of back pain but had to be careful when undertaking farm activities. Mr Walker recalled that family members and neighbouring farmers helped his father with heavier tasks from time to time.
In a report dated 24 April 2012 Mr G Grossbard, orthopaedic surgeon, stated that Mr Walker has had a developmental spondylolysthesis at the lumbo-sacral level which became an issue when climbing into gun turrets. He said that the development of the cyst was not relevant and has confused the situation regarding Mr Walker's back pain. He said that while the lumbo-sacral spondylolysthesis has been present from early years and was probably the site of most of Mr Walker's pain during war service, there has been the development of an L4-5 spondylolysthesis of a secondary and degenerative nature. Mr Grossbard said he also believes that Mr Walker has a spondylosis at the lumbo-sacral level which had become symptomatic in war service and has remained symptomatic ever since. He said that, on balance, he believed that Mr Walker's current back symptoms are secondary to spondylitis with associated spondylolisthesis and were aggravated and made symptomatic by the war service.
In a further report dated 21 June 2012 Mr Grossbard explained that Mr Walker has two conditions: a long-standing L5-S1 spondylolysis with a secondary spondylolisthesis. There is also a spondylolisthesis secondary to spondylosis at the L4-5 level. He stated that the back pain could relate to either the L4-5 or the L5-S1 levels, although most of the current symptoms are probably from the L4-5 level. This suggests that Mr Walker suffers from a lumbar spondylosis at the L4-5 level in addition to the spondylolysis and spondylolisthesis at the lumbo-sacral level. With regard to the presence of trauma, Mr Grossbard acknowledged that the episodes of pain experienced by Mr Walker when sliding in and out of the gun turret may have been confused with the pilonidal cyst as the cause of the pain.
Dr G Markov, rheumatologist, stated in a report dated 9 May 2012 based on documents provided to him, that the spondylolisthesis suffered by Mr Walker is a degenerative one. He said that Mr Walker seems to have associated the pilonidal cyst with the lower back pain, when in fact the cyst occurred in the coccyx area at the base of the spine, which is a number of centimetres lower than the lumbar spine. Dr Markov stated that all of the lumbar spine conditions arose in a gradual fashion spontaneously and simultaneously. He said that this is consistent with the lumbar spondylolisthesis condition being degenerative in nature.
In a further report dated 5 September 2012 Dr Markov said that he had examined the reports by Mr Grossbard and the statement by Mr Walker's son. He suggested that the only way to test objectively Mr Walker's contention that back pain developed during operational service is to look at contemporaneous documents. Dr Markov noted that in the medical documents there is no reference to anything other than the infected pilonidal cyst, and that lumbar pain is not mentioned either at the time of treatment for the cyst or at the medical examination prior to discharge. There is no record of treatment for any spinal injury during service. With regard to the injury described by Mr Walker getting into and out of the aircraft, Dr Markov said that Mr Walker may have abraded (scraped or rubbed) the skin around the coccyx. He said that to suggest that the mechanism of this injury might lead to a lumbar spinal injury of any significance is an exaggeration. He added that there is no medical evidence to support such an injury, nor is there anything to suggest a trauma. Dr Markov concluded that he has no reason to believe that Mr Walker injured his spine or suffered any injury other than that involving the skin around his coccyx leading to the infected cyst.
Dr Markov disagreed with Mr Grossbard’s view that the coccyx pain arose in 1945 due to two concurrent pathologies: the infected pilonidal cyst and the lumbar spine injuries. Dr Markov noted that the cyst component of the pain resolved with surgery while the lumbar spine component (which Mr Grossbard said caused the coccyx pain) did not. Dr Markov said that lumbar spine injuries invariably cause pain in the lumbar spine in addition to other anatomical regions such as the legs. He said that he does not agree with Mr Grossbard’s assertion that Mr Walker had pain from the spine (or coccyx) that was not relieved by the pilonidal cyst surgery. He said that the service medical documents do not support such a contention. Dr Markov said that, in addition, Mr Walker had engaged in a physically strenuous occupation for decades after discharge, and that any pain did not prevent him from working in that capacity. Dr Markov emphasised that degenerative spinal disease is common in the elderly population and there is no need to refer to a prior injury to explain its occurrence.
In Repatriation Commission v Owens (1996) 70 ALJR 904 the High Court of Australia held that the question of whether a reasonable hypothesis is raised is to be determined by considering the whole of the material before the decision maker.
The majority in the High Court of Australia held in Bushell v Repatriation Commission [1992] HCA 47 at [8]:
The material will raise a reasonable hypothesis within the meaning of s.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. Clearly enough, a relevant consideration in forming an opinion whether a particular hypothesis is reasonable is whether, as a matter of common or medical experience, the occurrence of an injury etc. of the kind sustained by the veteran is commonly accompanied by or associated with the occurrence of raised facts of the kind which constitute the relevant incidents of the service of the veteran…
The majority stated at [9]:
However, a hypothesis cannot be reasonable if it is "contrary to proved scientific facts or to the known phenomena of nature"… Nor can it be reasonable if it is "obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous" …East v. Repatriation Commission [1987] FCA 242…
This was reiterated in Repatriation Commission v Hill [2002] FCAFC 192.
The Full Federal Court in Repatriation Commission v Bey (1997) 79 FCR 364 stated at 372-3:
A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities.
Section 119(1)(h) of the Act requires the Tribunal to consider the difficulties attributable to the passage of time and the absence or deficiency of relevant records resulting from the fact that an occurrence was not reported to appropriate authorities. In Mason v Repatriation Commission [2000] FCA 1409 Weinberg J stated at [76]:
… The role of s 119 is not to invent evidence which may serve to establish that connection. Inevitably cases of this type will involve problems of remembering details of events, and s 119(1)(h) is designed to ensure that those matters are taken into account. Those matters are not, however, to prevail over the structure and text of the remaining provisions of the VE Act.
The Tribunal takes into account that at the time of the hearing Mr Walker was aged nearly 90 years, and that an accurate recollection of events that occurred in the 1940s and the years following his operational service was difficult because of the passage of time. Nevertheless medical records for the relevant period of his service are available. These contemporaneous records demonstrate that at his medical examinations on entering the Army in 1942; the RAAF in 1943; and for the purposes of discharge in 1945, Mr Walker answered No to all questions asking for a history of injuries or illnesses and made no mention of any back pain. Although Mr Walker may not have wished to divulge certain injuries or disabilities during medical examinations to enter service with the Army or the RAAF because he was keen to pass the tests, the situation would be expected to be different in a medical examination prior to discharge. He stated on 2 October 1945 that he had no ailments other than the pilonidal cyst that had been treated prior to discharge.
This is consistent with his evidence to the VRB that he did not have any back problems prior to the surgery for the pilonidal cyst. Although he said at the Tribunal’s hearing that he must have misunderstood some of the questions posed by members of the VRB, at no time before the Tribunal’s hearing did Mr Walker or his legal representatives suggest to the Tribunal that his evidence to the VRB was inaccurate. The medical records are also consistent with Mr Walker’s evidence to the VRB that after discharge from the RAAF he was working on his parents’ farm doing active manual labour and could not remember when he first went to a chiropractor, although he suggested it might have been 12 months after discharge. The Tribunal notes that X-rays for his back were first suggested by his doctor as recently as 2010.
The Tribunal takes into account that Mr Walker told the VRB that each time he entered or exited the aircraft he hurt his tail-bone, which is consistent with pain to his coccyx rather than his lumbar spine, and that the pain resembled a boil, which is consistent with the pain emanating from his pilonidal cyst which to Mr Walker may have appeared somewhat similar to a boil.
Mr Walker's evidence to the VRB is consistent with the answers he gave in the Claimant Report – Trauma Lumbar Spondylosis that symptoms of lumbar spondylosis were first noticed in September 1945 (about the time of the surgery) and that the injury possibly occurred 6 to 9 months before it was first noticed as a consequence of entering and exiting the gun turret, with the symptoms lasting until the surgery in September 1945. This is consistent with successful surgery to remove the cyst. Although Mr Walker said at the Tribunal’s hearing that some of his answers in the Claimant Report were incorrect, there is no material before the Tribunal to suggest that at any time before or at the VRB hearing or before the Tribunal's hearing the answers in the Claimant Report were incorrect or that the person preparing the answers on Mr Walker's behalf had misunderstood his instructions.
Mr Walker's evidence to the VRB and to the Tribunal is consistent with Dr Markov’s conclusion that Mr Walker seems to have associated the pilonidal cyst with lower back pain, when in fact the cyst was located in the area of the coccyx which is at the base of the spine and in a region of the body some centimetres from the lumbar spine. Although the entry in the Progress Notes for 15 September 1945 refers to pain in both hips and back, this is in the context of Mr Walker's hospitalisation for the surgery to remove the cyst, and the notation that the pain was …relieved by changing position suggests that the pain may have been caused not by any lumbar spine condition but by discomfort arising from immobilisation after surgery.
Mr Walker's evidence about his back pain during service is also consistent with the suggestion by Dr Markov that Mr Walker may have abraded the skin around his coccyx in entering or exiting the aircraft, and with Dr Markov’s conclusion that to suggest that the this injury might lead to a lumbar spine injury of any significance was an exaggeration.
The Tribunal prefers Dr Markov’s evidence to the evidence by Mr Grossbard that the back pain experienced by Mr Walker in the area of his coccyx resulted from pain referred from his lumbar spine. This is supported by an acknowledgement by Mr Grossbard that the episodes of pain experienced by Mr Walker when sliding in and out of the gun turret may have been confused with the pilonidal cyst as the cause of the pain. It is also consistent with Mr Walker's evidence and the medical records.
After considering the material as a whole the Tribunal makes no finding of fact, but forms the opinion that the hypothesis raised connecting Mr Walker’s condition of lumbar spondylosis with spinal canal stenosis and spondylolisthesis L5-S1 with the circumstances of his service is not tenable, is too remote or too tenuous. It is not pointed to by the raised facts, even though not proved upon the balance of probabilities. Therefore the hypothesis does not fit the template and is not a reasonable one. Consequently Mr Walker does not satisfy the third step from Deledio and the Tribunal determines beyond reasonable doubt that the condition is not war-caused, and his application fails.
DECISION
The Tribunal affirms the decision under review.
| I certify that the preceding 34 (thirty- four) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. |
......................[sgd]............................
Associate
Dated 20 September 2012
| Dates of hearing | 7 and 11 September 2012 |
| Counsel for the Applicant | Ms F Spencer |
| Solicitors for the Applicant | Williams Winter |
| Solicitors for the Respondent | Mr K Rudge, Department of Veterans' Affairs |
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