Williams and Repatriation Commission
[2000] AATA 892
•12 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 892
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1998/1389
VETERANS' APPEALS DIVISION )
Re FREDRICK GEORGE WILLIAMS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms G Ettinger, Senior Member Dr M E C Thorpe, Member
Date 12 October 2000
PlaceSydney
Decision The Administrative Appeals Tribunal sets aside the decision of the Repatriation Commission of 21 November 1997 as affirmed by the Veterans Review Board on 19 August 1998, which refused the claim that Mr Williams' conditions of lumbar spondylosis and hypertension were war-caused. In substitution therefor, the Administrative Appeals Tribunal finds that the Veteran's conditions of lumbar spondylosis and hypertension were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
..............................................
Ms G Ettinger
Senior Member
CATCHWORDS
VETERANS AFFAIRS – whether hypertension and lumbar spondylosis were war-caused; relevant SOPs - Keeley issue; adjourned for written submissions – conditions found to be war-caused
LEGISLATION
Veterans' Entitlements Act 1986 s 9, 120(1), 120(3) and 120A.
STATEMENTS OF PRINCIPLES
Statement of Principles Instrument No.165 of 1996 concerning Lumbar Spondylosis
Statement of Principles Instrument No.83 of 1995 concerning Hypertension
Statement of Principles Instrument No.5 of 1994 concerning Psychoactive Substance Abuse or Dependence
CASE LAW
Byrnes v Repatriation Commission (1993) 177 CLR 564
Deledio v Repatriation Commission (1997) 47 ALD 261
Harris and Repatriation Commission [2000] FCA 873
Huszco v Repatriation Commission (1999) AATA 1027
McKenna v Repatriation Commission [1999] FCA 323
Mitchell and Repatriation Commission (1999) AATA 501
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Keeley (2000) 31 AAR 150
Rose v Repatriation Commission (1999) AATA 105
REASONS FOR DECISION
12 October 2000 Ms G Ettinger, Senior Member Dr M E C Thorpe, Member
The issue before the Administrative Appeals Tribunal ("the Tribunal") was the decision of the Repatriation Commission of 21 November 1997 (T2), as affirmed by the Veterans' Review Board on 19 August 1998 (T27), to refuse the claim of the Applicant, Mr Frederick George Williams, that his hypertension and lumbar spondylosis were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
The appeal to the Tribunal by the Applicant was received on 30 September 1998, with a hearing taking place on 28 September 1999. Due to the uncertainty regarding applicability of various SoPs, the matter was adjourned to await the decision of the Full Court of the Federal Court of Australia ("Federal Court") in the matter of Repatriation Commission v Keeley (2000) 31 AAR 150. This matter was then finalised by way of written submissions, which were received on 8 August 2000.
The Applicant was represented by Ms L Sadleir, solicitor of the Legal Aid Commission and the Respondent, Repatriation Commission by its advocate, Mr R Wallis.
ISSUE BEFORE THE TRIBUNALThe issue before the Tribunal was whether Mr Williams' claimed conditions of hypertension and lumbar spondylosis were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986 ("the Act").
LEGISLATIVE FRAMEWORKThe relevant legislation in this matter is the Veterans' Entitlements Act 1986, in particular sections 9, 120(1), 120(3). Section 9 provides:
Section 9 provides:
"9 War-caused injuries or diseases
(1)Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
…"
The standard of proof for the operational service given to his country by the Applicant between 19 September 1939 to 2 January 1949 is that of the reasonable hypothesis, applying sections 120(1) and 120(3) of the Veterans' Act.
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…..
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
(b)that the disease was a war-caused disease or a defence-caused disease; or
(c)that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.…"
In the review of Mr Williams' application, the Tribunal was bound to apply section 120A of the Veterans' Act because his application was lodged after 1 June 1994. Hence, the Repatriation Medical Authority ("RMA"), Statements of Principles ("SoPs") produced pursuant to section 196B of the Veterans' Act applied.
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the operational service rendered by a veteran;
(b)a claim under Part IV that relates to:
(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B (2) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B (2) or (11); or
(b)a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B (2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a)the kind of injury suffered by the person; or
(b)the kind of disease contracted by the person; or
(c)the kind of death met by the person;
as the case may be."
In considering the matter, and the relevant SoP to apply, the Tribunal was bound by the recent Federal Court decision in Repatriation Commission v Keeley (2000) 31 AAR 150, and was required to take into account Mr Williams' accrued rights. The Tribunal noted that the relevant SoPs for Mr Williams' claimed conditions of lumbar spondylosis and hypertension current at the time of the Repatriation Commission decision on 21 November 1997 were as follows:
Lumbar Spondylosis: Instrument No.165 of 1996;
Hypertension: Instrument No.83 of 1995
In respect of the Applicant's claim for hypertension, the Tribunal noted the submissions of Mr Wallis for the Respondent that in order to satisfy the relevant factor in the SoP Instrument No.83 of 1995 concerning hypertension, the Applicant had first to satisfy the relevant SoP Instrument No.5 of 1994 concerning Psychoactive Substance Abuse or Dependence, current at the time of the Repatriation Commission decision on 21 November 1997. The Tribunal accepted the argument, and held that Instrument No.5 of 1994 was applicable to the Applicant's claim for hypertension (McKenna v Repatriation Commission [1999] FCA 323).
For the purposes of Mr Williams' claim, Instrument No.165 of 1996 defines lumbar spondylosis as follows:
"… degenerative changes affecting the lumbar vertebrae and/or invertebral discs, causing local pain and stiffness and/or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression, attracting ICD code 721.3, 721.42 or 722.52."
Instrument No.83 of 1995 defines hypertension as:
"(a)a usual blood pressure reading where the systolic reading is greater than or equal to 140 mmHg and/or where the diastolic reading is greater than or equal to 90 mmHg; or
(b)where treatment for hypertension is being administered,
attracting an ICD code in the range of 401 to 405;"
The parties agreed, and the Tribunal accepted, that if the Applicant were successful, the earliest date of effect in this matter was 23 September 1997.
EVIDENCE BEFORE THE TRIBUNALThe Tribunal had before it documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975, and the following documents:
ITEM DATE NAME
Statement of Frederick Williams 16 February 1999 Exhibit A1
Statement of Frederick Williams 27 September 1999 Exhibit A2
T-Documents Exhibit R1
Medical Report of Professor P Sambrook 20 July 1999 Exhibit R2
Oral evidence was given by Mr Williams and Professor P Sambrook, Rheumatologist.
evidence of the applicant mr frederick george williamsMr Williams, whose statements of 16 February 1999 and 27 September 1999 were before the Tribunal at Exhibit A1 and A2 respectively, gave oral evidence. He told the Tribunal that his date of birth was 7 February 1922 and that he had enlisted at the age of 17 years and six months. The Tribunal noted that Mr Williams served on operational service from 19 September 1939 to 2 January 1949.
Mr Williams said that on joining the Australian Navy, he did a course as a junior rating and on seamanship before attending communications school at Flinders Naval Depot until March 1940. He then went to sea on a posting on HMAS Adelaide, as an ordinary signalman. The ship was on coast patrol he said, and the job included watch-keeping and some office duties. Mr Williams said that as part of his duties, he was required to deliver a message to another part of the ship, down a gangway, down irons stairs into the mess deck. Of his subsequent fall, he said:
"The steps were steel, a steel ladder of approximately about 13 ... treads and they were uncovered, bare steel ...
it was while going down the gangway, the stairs ... into the mess deck that I slipped and slipped on the second-last tread, from memory and I finished up bouncing off the bottom tread on my lower back and then onto the deck."Mr Williams said he was assisted by mess mates and lay down on a long stool for a few hours to ease the pain. He knew he had to get back to the signal distributing office, so he was assisted and staggered back. He said that his buttocks were very tender and painful, and he had pain across his hips and down his right leg. Mr Williams said that he was told to take it easy, and he declined to go to the sick bay.
Mr Williams said that the next day he was "pretty bruised and still sore..", and on the second day following the incident that he was "… very stiff and still stiff and .. the pain was still there." Mr Williams told the Tribunal that at the end of seven days he was feeling much better, but also indicated the duration of the pain may have been more than seven days. He said that he borrowed liniment from a mess mate to rub on the sore areas, and stated that his mobility was a bit "stumbly" that week.
When asked whether he had any back problems before his service, Mr Williams said that he didn't know of any as he had engaged in running, jumping and swimming during the early days of his service. He said that later on he had recurring back problems with periods of stiffness and soreness.
The Applicant said that he did not seek treatment for his back until after he had had another bump in early 1942. There had been air attacks and his ship had been bombed. Mr Williams said that whilst aboard HMAS Nizam, the ship's mate had given him a nasty push in the back apparently to move him out of a trouble zone, and he had collided with the ship's super structure. He told the Tribunal that he had bumped his right hip and right leg and injured his knee. He said that the treatment was the same as it was previously. Being on the ship was a harrowing experience at the time, and although he complained to the sick bay attendant who was on duty going round the ship, he just put up with the problems and applied liniment as before.
Mr Williams said that after he left the Navy, he rejoined and was with the naval dockyard police for five years (from 1952 – 1957) in an administrative capacity. He said that during this period he thought that any back pain he had was muscular.
After leaving the Navy in 1957, Mr Williams retrained for four years as a carpenter and joiner and became self employed in the building trade from approximately 1961 to 1973. He said that throughout that period he thought his back pain was muscular and simply used liniment on it, and occasionally sought some relaxation or quiet activity to rest it. Mr Williams explained in cross-examination that he was trying to re-establish in civilian life and therefore, had put that ahead of other considerations. Adjusting to civilian life post-war had difficulties he explained.
Mr Williams said that during this period, he would finish work at 5 pm and have a "few casual beers" on the way home. He said that the availability of liquor was a problem in that period. He said that he also did some home brewing at that time.
Ms Sadleir then questioned Mr Williams about his drinking habits. Mr Williams told the Tribunal that he did not drink until he went overseas with the Navy. He said, however, that when he joined HMAS Nizam which left England for the Mediterranean, "they were dreadful, hectic times… the times for drinking were few and far between." Mr Williams said that when he went ashore on leave, drinking and smoking were a form of relaxation and a way to de-stress. He said that supplies of alcohol were limited but he drank as much as he could, and usually returned to the ship drunk.
Mr Williams said that although he had been married since 1949, he would please himself as far as drinking went, and as alcohol became more plentiful, he drank more. He said that he drank every day after work.
Ms Sadleir drew Mr Williams' attention to the report of Dr G Robinson, psychiatrist at T29/101, where the doctor had recorded: "In terms of alcohol, he admits he became a heavy drinker during the war, and this escalated to half a dozen schooners a day, on top of which he would have half a 750ml bottle of whisky on a daily basis." The Applicant said that he agreed with the statement saying that this described his pattern mid-way through the 1960s when he started having real problems with his back. Mr Williams said that his health was deteriorating, and his drinking became worse. He said that he was aggressive and had troubles with both his wife and his children.
Mr Williams said that during the 1960s when it was easier to obtain alcohol, he was often drunk when he came home at night, and sometimes drank all night and did not come home. He did say that he did not think he had been "a complete alcoholic… and it wasn't every day of the week."
Mr Williams gave evidence that he was self employed as a builder until 1973, and then joined TAFE as a teacher from 1974 for the next ten years. When cross-examined, he accepted that his drinking had affected his teaching at TAFE. He said that he retired due to ill health, anxiety, back and knee problems in particular.
Ms Sadleir drew attention to T4/20, where a doctor had in 1965 recorded: "Spondylitis, Hypertension … Smoker .. Alcohol at week ends…" Mr Williams said that whatever he told the doctor at that time would not have fully reflected what was going on. Mr Williams said that insufficient investigation was done and that for example, although his hypertension was recorded as commencing in 1965, it had been present well before that date.
Mr Williams said that he first found out about his lumbar spondylosis in approximately 1959 when he made a claim to the Respondent with regard to his back. However, when cross-examined as to when his back problems caused him "real trouble", Mr Williams said that:
"During service that I had, I'd probably say I – it was there most – and I thought it was purely a muscular thing that, coming and going, that I'd, I could get over it until I retired. But then seeing my GP I sort of tipped that it was more than, more than muscular, there was something more so wrong."
When questioned about his current habits, Mr Williams said that he had rehabilitated himself and now neither smoked nor drank alcohol. He said however that he was still drinking heavily when he retired in 1984.
MEDICAL EVIDENCE
evidence of professor p sambrook rheumatologistProfessor Sambrook, whose report of 20 July 1999 (Exhibit R2) was before the Tribunal, gave oral evidence. Professor Sambrook opined that the genesis of Mr Williams' lumbar spondylosis was largely accounted for by his congenital spondylolisthesis. He said that Mr Williams had:
"a defect of the L5-S1 junction in the bones called the pars, and this, in a way, represents a predisposition to developing spondylosis at a later date by abnormal movement and other mechanisms."
Professor Sambrook said that he was aware of the trauma suffered as described by Mr Williams, and opined that the fall aboard HMAS Adelaide was probably a significant aggravation to the malalignment then present.
The Tribunal noted that trauma to the lumbar spine was defined in Instrument No.165 of 1996 as:
"an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (for example splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;"
When questioned about the severity of the trauma that Mr Williams suffered, Professor Sambrook opined that the definition in the SoP (Instrument No.165 of 1996) envisaged a "fairly severe trauma" whereas his understanding of Mr Williams' fall and its consequences was that the Veteran was able to continue work, and alleviate the effects of his injury by massage and rubbing liniment on the inflamed areas. He said, however, that it was a matter of degree and if one were very stoical and the duties very light, then one might cope even after a severe trauma. Professor Sambrook explained that a doctor's opinion was derived from the symptoms of pain as related by the patient, and signs such as tenderness, altered mobility or range of movement as found by the doctor on examination. In Mr Williams' case, he said there was only a report of the symptoms because there had been no documentation of the objective signs.
When questioned about the evidence Mr Williams gave that the symptoms lasted for a period of over ten days, Professor Sambrook opined that each person's interpretation of pain was different, as also his or her perception of whether complete resolution of symptoms or only a marked reduction in symptoms had occurred.
In cross-examination, Professor Sambrook was asked about how he came to consider the severity of an event related to the definition of trauma in the SoP. Professor Sambrook replied that he considered severity in relation to the acute aspect of the injury, and said that his medical dictionaries indicated to him that severity in relation to acuteness impacted on the level and duration of symptoms. He agreed that the effects of a lesser, rather than more severe injury, would not last a week. He also characterised "acute" as being the opposite of "chronic". He added that he would assess the severity of an injury by basing his assessment of symptoms, physical findings and other investigations.
A final question to Professor Sambrook was as follows:
"If we accept the trauma, and the trauma caused some level of pain which was not treated because of the culture of the time or whatever, and caused some degeneration earlier than might have otherwise been expected, is that the lumbar spondylitis we are talking about?
Professor Sambrook replied:
"Yes, the manifestation of that degeneration is the lumbar spondylitis, yes."
MEDICAL REPORT OF DR G ROBINSON, PSYCHIATRIST
Dr Robinson, whose report dated 9 September 1998 was before the Tribunal at T29, documented the Applicant's drinking history as follows:
"In terms of alcohol, he admits he became a heavy drinker during the war, and this escalated to half a dozen schooners a day, on top of which he would have half a 750ml bottle of whisky on a daily basis. He only stopped this in the 80's when he was so riddled with osteoarthritis that he could not walk anymore. The alcohol contributed to the upset in the homelife causing many fights in the family as the children were growing up …"
Following three sessions with the Applicant, Dr Robinson opined that he suffered from "chronic Post Traumatic Stress Disorder" as a result of his service experiences during the Second World War and the years thereafter. Dr Robinson further opined that:
"He has clearly had secondary alcoholism, which he has managed to resolve by himself …"
SUBMISSIONS AND CONCLUSIONS
The Tribunal must take into account the evidence, submissions, case law and relevant SoPs to make the correct and preferable decision regarding whether Mr Williams' conditions of lumbar spondylosis and hypertension were war-caused within the terms of the legislation.
The Tribunal noted that Mr Williams served his country on operational service from 19 September 1939 to 2 January 1949. It was therefore appropriate in considering whether Mr Williams' claimed conditions were war-caused, to apply the principles enunciated by Heerey J in Deledio v Repatriation Commission (1997) 47 ALD 261, and approved and summarised by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
application of principles in repatriation commission v deledio (1998) 83 fcr 82The Full Federal Court in Repatriation Commission v Deledio (supra) held that:
"…the course which the tribunal is to take in a case, such as the present, (ie one involving a claim to be decided after the 1994 amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person [is] as follows:
1The 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.
2If 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). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3If 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.
4The 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.
With respect to determining when an hypothesis was reasonable, the Tribunal noted Heerey J's approach which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564 and approved in Repatriation Commission v Deledio (supra):
Do the facts raised by the claimant give rise to a reasonable hypothesis? Proof of facts is not in issue at this point. The hypothesis will not be reasonable if it is:
(i) contrary to proved or known scientific facts,
(ii)obviously fanciful, impossible, incredible, absurd, ridiculous, not tenable, too remote or too tenuous; or
(iii) (since 1994) inconsistent with (not upheld by) an applicable SoP.
If the hypothesis is reasonable the claim will succeed unless:
(iv)one or more facts necessary to support it are disproved beyond reasonable doubt; or
(v)the truth of a fact inconsistent with the hypothesis is proved beyond reasonable doubt.
The Tribunal turned then to decide whether applying the principles set out above, the material raised an hypothesis connecting Mr Williams' lumbar spondylosis and his hypertension with his war service.
Notwithstanding the lack of documentary evidence or recording of the injury by the Respondent, the Tribunal was prepared to accept Mr Williams' account of the incident of slipping on the steel steps or steel ladder on HMAS Adelaide while going down the gangway into the mess deck to deliver a message. The Tribunal accepted his account that he slipped on what was probably the second-last tread and finished up bouncing off the bottom tread onto his lower back and then onto the deck.
The Tribunal accepted the unrebutted evidence of Mr Williams which was that after the fall on HMAS Adelaide, he was assisted by mess mates and lay down on a long stool for a few hours to ease the pain before staggering back with buttocks that were very tender and painful, and pain across his hips and down his right leg. The Tribunal accepted Mr Williams' account that the symptoms felt by him after the fall were immediate and acute. The Tribunal also accepted that Mr Williams was quite bruised, stiff and sore on the next day as a result, and that the effects of the fall lasted for seven or more days. Bearing this in mind, the Tribunal found that there existed an hypothesis connecting the fall causing injury aboard HMAS Adelaide with Mr Williams' service. The Tribunal noted further Mr Williams' account of further aggravation of his back when he was pushed during concern for his safety during action, aboard HMAS Nizam in 1942.
The Tribunal noted that in applying the relevant SoP, Instrument No.165 of 1996 concerning Lumbar Spondylosis, the Applicant must satisfy one or more of the factors in Clause 5 before it could be said that a reasonable hypothesis had been raised connecting Mr Williams' lumbar spondylosis with which the SoP is concerned, and his war service.
Ms Sadleir referring to Keeley (supra), submitted that the Applicant satisfied Factor 5(g) of Instrument No.165 of 1996: "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis", or in the alternative, Factor 5(a). It appeared clear from the rest of the submission that Ms Sadleir intended to have the Tribunal consider Factor 5(d), "having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis," and not Factor 5(a), and Factor 5(d) is what the Tribunal has considered.
The Tribunal moved then to first consider the submissions and decide whether Mr Williams satisfied Factor 5(g) of Instrument No.165 of 1996. To do so, it had to consider the trauma as described by Mr Williams in his evidence and the opinions of the doctors contained in the medical evidence. The Tribunal noted that trauma to the lumbar spine pertaining to Factor 5(g) was defined in Instrument No.165 of 1996 as:
"… an injury to the lumbar spine caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of that part of the spine, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred…."
Ms Sadleir made submissions regarding what she said was the acute nature of the injury suffered by Mr Williams. The Tribunal noted the definition of acute in the Shorter Oxford Dictionary (1998), being: "coming sharply to a crisis, not chronic…" She also referred the Tribunal to Rose v Repatriation Commission (1999) AATA 105.Ms Sadleir submitted that in Mitchell and Repatriation Commission (1999) AATA 501, the definition used was to extend "acute" to include "severe". She submitted that the Tribunal should favour following Deputy President McDonald (as he then was), in Rose (supra), and Senior Member Allen in Huszco v Repatriation Commission (1999) AATA 1027.
The Tribunal was mindful also of Mr Wallis' submissions on this point, and Professor Sambrook's opinion that the SoP envisaged a "fairly severe trauma," whereas his understanding of Mr Williams' situation was that the Veteran was able to continue work after the fall, and alleviate the effects of his injury by massage and rubbing liniment on the inflamed areas. The Tribunal was mindful however, that Professor Sambrook further opined that it was a matter of degree, and if one were very stoical and the duties very light, then one might cope even after a severe trauma. Professor Sambrook explained that from a doctor's point of view, it was a matter of symptoms of pain as related by the patient, and signs such as tenderness, altered mobility or range of movement as found by the doctor on examination. In Mr Williams' case, he observed, there was only a report of the symptoms because no-one had documented any objective signs. The Tribunal was mindful of Ms Sadleir's submission with regard to the Federal Court's findings in Harris and Repatriation Commission [2000] FCA 873 indicating that the Court there had reviewed the definition of "trauma" and accepted that to satisfy the definition of trauma there had to be "signs and symptoms of pain and tenderness and altered mobility." Ms Sadleir submitted that accordingly, Mr Williams' injury met the definition of trauma.
Mr Wallis submitted that to satisfy the definition of trauma in the relevant SoP, the situation had to involve more than the manifestation of bruising and soreness for a period of seven days. He submitted that the inclusion of description of the types of medical intervention was indicative of the nature and degree of trauma. The Tribunal noted that he was referring to the definition of trauma in Instrument No.165 of 1996 where the examples given for the medical intervention included splinting, corticosteroid injection and surgery. Mr Wallis submitted that;
"… the episode of trauma relied upon by the Applicant though distressing does not satisfy the criteria of the definition. We note further that it is not enough to demonstrate signs and symptoms over a seven day period immediately following the episode of trauma. The definition requires that the signs and symptoms be acute in severity and when considered together with the examples of medical treatment where such medical intervention has occurred we submit that the ongoing symptoms allegedly suffered by the Applicant were not of such severity."
The Tribunal noted also Professor Sambrook's opinion that severity in relation to acuteness of injury determined the level and duration of symptoms. He had agreed in giving his evidence that the effects of a lesser, rather than more severe injury, would not continue for a week.
Ms Sadleir also submitted on behalf of the Applicant that the Federal Court in Harris (supra) addressed the definition of the term "acute" in relation to trauma, stating that for it to be satisfied there had to be "significant manifestations, variously of pain, of tenderness and of altered mobility." Further the pain had to be "sharp … act keenly on the senses." She added that the Court contemplated a significant injury defined by the New Shorter Oxford English Dictionary as "important, notable, consequential." Relating the Court's definitions to Mr Williams, Ms Sadleir submitted that his fall represented a significant injury because it was the start of his back problems and contributed to his lumbar spondylosis diagnosed in 1959 when the Applicant was 37 years old.
The Tribunal noted that when questioned about the evidence Mr Williams gave that his symptoms after the fall lasted for a period of seven or more days, Professor Sambrook opined that each person's interpretation of pain was different, including his or her perception of whether complete resolution of symptoms or only a marked reduction in symptoms had occurred over a period of time such as a week or ten days.
The Tribunal considered Mr Williams' evidence regarding the fall on board HMAS Adelaide and took into account the culture of the time regarding the stoic behaviour expected of men. The Tribunal also took into account Professor Sambrook's comments regarding individual and subjective differences in interpretation of pain and healing times. Having considered Mr Williams' evidence and the submissions of both representatives, the Tribunal preferred the submissions of the Applicant's representative, and was satisfied to the requisite standard that Mr Williams' fall on HMAS Adelaide had indeed caused an acute and significant trauma and injury, and that he suffered signs and symptoms which lasted for more than seven days, in satisfaction of Factor 5(g) of the relevant SoP. This was sufficient then for the Tribunal to find that a reasonable hypothesis had been raised connecting his injury with the circumstances of the service rendered by Mr Williams. The Tribunal considered that the hypothesis could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
The Tribunal proceeded then to consider section 120(3) of the Veterans' Act, deciding that the reasonable hypothesis had been raised linking Mr Williams' lumbar spondylosis to his operational war service because on consideration of the whole of the material before the Tribunal, and as detailed above, the situation fitted the template in SoP Instrument No.165 of 1996. The Tribunal decided that Mr Williams' satisfied the conditions as set down in Factor 5(g) of the Veterans' Act. Thus the Tribunal could not be satisfied beyond reasonable doubt that Mr Williams' lumbar spondylosis did not arise from a war–caused injury (section 120(1) of the Veterans' Act). He therefore had to succeed and it was established to the Tribunal's satisfaction that Mr Williams' lumbar spondylosis was war-caused.
In Ms Sadleir's written submission, she submitted in the alternative, that the Tribunal should find Mr Williams satisfied the conditions pursuant to Factor 5(a) of Instrument No.165 of 1996 (Paragraph 8). As she stated that this meant having "a malalignment of the lumbar spine, before the clinical onset of lumbar spondylosis", it was clear there was a typographical error in the submission, and that what she intended was Factor 5(d), as also stated in Paragraph 17. The Tribunal proceeded on that basis.
Malalignment was defined in the Instrument No.165 of 1996 as: "… displacement out of line resulting as the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length."
Ms Sadleir submitted that Professor Sambrook had opined that Mr Williams had a spondylolisthesis and that this was aggravated by the fall on board HMAS Adelaide, described in his evidence above, which took place during operational service. Mr Wallis in his submission also relied on Professor Sambrook to indicate that Mr Williams suffered a congenital spondylolisthesis. The Tribunal accepted from the evidence before it that Mr Williams had a congenital spondylolisthesis.
Ms Sadleir submitted for the Applicant that the Tribunal, relying on this medical opinion, should find a reasonable hypothesis connecting Mr Williams' condition which arose as a result of his fall on HMAS Adelaide, with his service. Ms Sadleir submitted further that Mr Williams first complained of his back problems in 1965, and that Professor Sambrook had opined the Veteran was too young to have developed age-related disc degeneration in his early forties.
Mr Wallis, however, moved on to refer to Factor 5(f), and referring to the Applicant's fall, submitted that it might superficially satisfy the definition of trauma, but that the Applicant was unable to satisfy on the history before the Tribunal, the characterisation of "regular recurrence of episodes of pain and/or tenderness affecting the lumbar spine" as defined in Factor 5(f) of the relevant SoP. The Tribunal noted that Factor 5(f) reads: "suffering a trauma to the lumbar spine which has resulted in permanent ligamentous instability before the clinical onset of lumbar spondylosis."
The Tribunal noted that Mr Wallis was referring to the definition:
""trauma to the lumbar spine which has resulted in permanent ligamentous instability" means abnormal mobility and instability of the lumbar spine due to ligamentous injury caused by the force of an extraneous physical or mechanical agent, and is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the lumbar spine."
Ms Sadleir submitted that the Tribunal could not be satisfied beyond reasonable doubt that the injury Mr Williams had suffered was not connected with his operational service, and that he must therefore succeed with regard to Factor 5(d) of Instrument No.165 of 1996 in his claim before the Tribunal.
Having considered Factors 5(d) and 5(f), the Tribunal found that in the alternative, Mr Williams satisfied the requirements Factor 5(d) as the Tribunal was satisfied he had a malalignment before the clinical onset of lumbar spondylosis which was caused by the fall suffered on HMAS Adelaide. Applying sections 120(3) and 120(1), the Tribunal could not be convinced beyond reasonable doubt that the fall aboard HMAS Adelaide as described was not the cause of Mr Williams' lumbar spondylosis as required by Factor 5(d) of the relevant SoP.
The Tribunal was not convinced to the requisite standard that Mr Williams satisfied the requirements of Factor 5(f) of the SoP Instrument 165 of 1996, but having decided that he satisfied the requirements of Factor 5(d) and, in the alternative, Factor 5(g), it was not necessary to further pursue his entitlement under Factor 5(f).
For the reasons given above, the Tribunal preferred the submissions of Ms Sadleir and applying sections 120(3) and 120(1) of the Veterans' Act, found that Mr Williams condition of lumbar spondylosis was war-caused pursuant to section 9 of the Veterans' Act.
application of sop instrument no.83 of 1995 concerning hypertension and/or instrument no.5 of 1994 concerning psychoactive substance abuse of dependenceThe Tribunal moved then to consider Mr Williams' claim that his hypertension was a war-caused condition. A document, T7 before the Tribunal, indicated a diagnosis of Mr Williams' as suffering hypertension on 24 August 1965. Mr Williams told the Tribunal that he had had hypertension "well and truly" before 1965.
Ms Sadleir submitted that the Tribunal could be satisfied from the evidence before it, and with regard to Factor 1(b) in Instrument No.83 of 1995, that a hypothesis could be raised that Mr Williams' hypertension was war-caused.
The Tribunal noted that Factor 1(b) reads as follows:
"suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension;"
Psychoactive substance abuse or dependence is defined both in Instrument No.83 of 1995 and No.5 of 1994 as follows:
"psychoactive substance abuse or dependence" means a maladaptive pattern of use, as derived from DSM-IV, attracting ICD code 303 or 304, that is indicated by either:
(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or
(b) recurrent use of the substance when use is physically hazardous (for example, driving when intoxicated);"The Tribunal noted the concession made by Mr Wallis on behalf of the Respondent at the hearing, namely:
"I would like the opportunity to obtain further instructions on the question of hypertension because I have a personal belief that the argument along the lines of alcohol dependence is actually made out on the evidence but I have got to put it directly before my instructor."
However, later in his written submissions dated 18 July 2000, Mr Wallis submitted that the Respondent relied on McKenna (supra):
"… to support the proposition that every step in the chain of causation required to establish a connection between the circumstances of the Applicant's service and the factor relied upon by the Applicant in the current Statement of Principles must be made out by the Applicant and where such a step is defined by a further Statement of Principles then the further Statement of Principles must be satisfied before the later (sic) Statement of Principles can be satisfied."
Mr Wallis submitted that to satisfy Factor 1(b) in Instrument No.83 of 1995 as claimed, Mr Williams had to also satisfy the SoP Instrument No.5 of 1994 concerning Psychoactive Substance Abuse or Dependence. That involved he submitted, the Applicant suffering from psychoactive substance abuse involving daily consumption of alcohol before and continuing at least until the accurate determination of hypertension, which he submitted Mr Williams did not.
Ms Sadleir drew the attention of the Tribunal to the acceptance of the Applicant's Post Traumatic Stress Disorder as war-caused, indicating that Psychiatrist Dr G Robinson, in his report of 9 September 1998 at T29/102, diagnosed Mr Williams as having had alcoholism secondary to chronic Post Traumatic Stress Disorder. She submitted that the drinking history as recorded by Dr Robinson was consistent with that before the Tribunal.
The Tribunal was mindful of the history of drinking as detailed in the Applicant's evidence. He had told the Tribunal that in his early service days he had been a non-drinker and had begun smoking and drinking at age 18 overseas to cope with the stress and anxiety of the war. He told the Tribunal that on shore leave in Egypt, he would drink as much as possible and mainly return "in an inebriated state." Later at the Naval Dockyard in the 1950s, he said that he had a few drinks on the way home every day. Mr Williams said that because of the shortage of beer, he started home brewing. He said that his wife frowned on his drinking but that he continued regardless. Mr Williams explained that when he left the Navy in 1952 he became affiliated with some service clubs, and was involved with their construction, his contribution to community service. With that connection, liquor was easier to obtain. He said that he continued to drink daily, perhaps five or six schooners daily from 1957 onwards into the 1960s. Mr Williams also stated that he also drank a 750 ml bottle of whisky a day from the mid 1960s through to the 1970s. He said that he became aggressive and developed anxiety. The Tribunal accepted Mr Williams' account of his drinking including his under-reporting of drinking to his doctors to the extent that at T4/20 and T5/23, the doctors had recorded week-end and moderate drinking. The Tribunal accepted the evidence Mr Williams gave of a very stressful home life in that period, as well as evidence of problems drinking created with regard to his financial situation and his work at TAFE. The Tribunal noted that notwithstanding, he was able to remain self-employed and conduct his business over the years 1961-1973. Mr Williams said he had eventually stopped smoking and drinking in 1987 due to ill health, but that on retirement in 1984, he had still been drinking heavily.
The Tribunal was satisfied from the evidence before it that Mr Williams' behaviour came within the definition of psychoactive substance abuse or dependence in that he continued use of alcohol despite knowledge of having a persistent social, occupational, psychological and physical problem caused or exacerbated by the use of alcohol. The evidence before the Tribunal was that the Williams family suffered from the dysfunctional behaviour of their father, that the children left home, that Mr Williams' anxiety and his physical medical problems were exacerbated, and that his work at TAFE and financial situation were affected.
The Tribunal was satisfied from the evidence before it of Mr Williams' drinking patterns that he suffered psychoactive substance abuse involving daily consumption of alcohol before and for quite a period (ceasing in 1987), after the accurate determination of hypertension in 1965. In fact, the Applicant gave evidence that his alcoholism continued from the 1950s through to the 1980s, the history of which was also documented by Dr Robinson at T29/101.
The Tribunal therefore found that the reasonable hypothesis was raised connecting Mr Williams' alcohol consumption to his hypertension in satisfaction of Factor 1(b) of Instrument No.83 of 1995. In addition, and in consideration of the Respondent's submissions regarding McKenna (supra), the Tribunal considered the definition of psychoactive substance abuse and found the Applicant satisfied the conditions for that in both Instrument No.5 of 1994 and No.83 of 1995.
As the Tribunal was satisfied that Mr Williams suffered from psychoactive substance abuse involving daily consumption of alcohol before and continuing well past the accurate determination of hypertension, it was sufficient for the Tribunal to find that a reasonable hypothesis had been raised connecting alcoholism leading to hypertension with the circumstances of the service rendered by Mr Williams. The Tribunal considered that the hypothesis could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.
The Tribunal proceeded then to consider section 120(3) of the Veterans' Act, deciding that the reasonable hypothesis had been raised linking Mr Williams' alcoholism and hypertension to his operational war service because on consideration of the whole of the material before the Tribunal, and as detailed above, the situation fitted the template in SoP Instrument No.83 of 1995 and Instrument No.5 of 1994.
Applying sections 120(3) and 120(1), the Tribunal could not be convinced beyond reasonable doubt that the evidence regarding psychoactive substance abuse as described was not the cause of Mr Williams' hypertension as required by Factor 1(b) of the relevant SoP.
The Tribunal was therefore satisfied that Mr Williams' hypertension was war-caused within the terms of the legislation and that his claim should succeed.
DECISIONThe Tribunal sets aside the decision of the Repatriation Commission of 21 November 1997 as affirmed by the Veterans Review Board on 19 August 1998, which refused the claim that Mr Williams' conditions of lumbar spondylosis and hypertension were war-caused.
In substitution therefor, the Tribunal finds that the Veteran's conditions of lumbar spondylosis and hypertension were war-caused pursuant to section 9 of the Veterans' Entitlements Act 1986.
I certify that the 88 preceding paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr MEC Thorpe, Member
Signed: .....................................................................................
AssociateDate/s of Hearing 28 September 1999;
Written Submissions - 8 August 2000
Date of Decision 12 October 2000
Counsel for the Applicant N/A
Solicitor for the Applicant Ms E Sadleir
Counsel for the Respondent N/A
Solicitor for the Respondent Mr R Wallis
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