Winterson and Repatriation Commission

[2004] AATA 491

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 491

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No Q2003/566

VETERANS' APPEALS  DIVISION		)
Re		GORDON WINTERSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member McCabe

Date2 March 2004

PlaceBrisbane

Decision For reasons given orally at the hearing the Tribunal affirms the decision under review. 

................Sgd......................

Senior Member

CATCHWORDS

VETERANS AAFAIRS – pensions and benefits – whether applicant’s service made a material contribution to injury or illness – decision affirmed

Veterans’ Entitlements Act 1986

Repatriation Commission v Deledio (1998) 83 FCR 82

Kattenberg v Repatriation Commission [2002] FCA 412

REASONS FOR DECISION

2 March 2004 Senior Member McCabe    

1.      This is an application for review of a decision of the Veterans’ Review Board made on 1 March 2002, which affirmed an earlier decision made by the Repatriation Commission on 9 September 1999.  The Commission decided to refuse disability support pension for lumbar spondylosis and cervical spondylosis.

2. The matter was heard on 2 March 2004. The applicant represented himself. The respondent was represented by Mr Stoner, a departmental advocate. Before the Tribunal were the documents lodged pursuant to s37 Administrative Appeals Tribunal Act 1975 (“the T-documents”). The respondent also submitted a report of Dr McCloskey dated 23 September 2002, and an extract from the applicant’s in-patient record from the Royal Australian Navy (RAN) Hospital Cerberus dated 2 September 1969.

3.      The Tribunal decided to affirm the decision under review.  Oral reasons were provided at the conclusion of the hearing.  The applicant has now requested a written statement of reasons.  The reasons are set out below.

Facts

4.      The applicant was a sailor in the Royal Australian Navy.  He rendered operational service in Vietnam during three periods in 1970-71, aboard HMAS Sydney.  Those periods were as follows:

1.) 31 October 1970 – 12 November 1970;

2.) 15 February 1971 – 4 March 1971;

3.) 26 March 1971 – 5 April 1971.

5.      The applicant was in a serious motor vehicle accident in 1969.  He said he lost consciousness in the accident.  He was transferred to a naval hospital but he says he continued to suffer difficulty in walking and turning.  The motor vehicle accident and the applicant’s admission to hospital is referred to in the in-patient record submitted by the respondent (exhibit 3).

6.      It seems likely the motor vehicle accident was the cause of the applicant’s lumbar and cervical spondylosis conditions.  The motor accident did not occur while the applicant was on eligible or defence service.

7.      The applicant says during his period of eligible service on HMAS Sydney he was involved in a lot of heavy lifting work.  His job required him to lift and move electrical motors and other heavy objects on board ship.  The applicant says there was a clinical worsening of his lumbar spondylosis as a result of his heavy lifting while on eligible service. 

8.      In the course of the hearing the applicant decided to abandon his claim in relation to cervical spondylosis.

The Law and Application

9.      In Repatriation Commission v Deledio (1998) 83 FCR 82 the Federal Court laid out the approach which must be followed in these cases. Firstly I must determine whether the material before me gives rise to a hypothesis connecting the injury with the service rendered. This test has a very low threshold. I am satisfied there is a hypothesis connecting the applicant’s lumbar spondylosis with his service on board the Sydney.

10.     There is a SOP in force for lumbar spondylosis:  number 46 of 2002.

11.     The third step mandated by Deledio is to determine whether the hypothesis raised ‘fits’ the SOP.  If it does, the hypothesis is reasonable.

Does the Hypothesis fit the SOP?

12.     There are two arguments the applicant might raise in order to fit the hypothesis with the SOP.  First, the applicant’s heavy lifting on board the Sydney during his eligible service caused his lumbar spondylosis.  This is covered by factor (j) of the SOP.  The applicant may also argue the heavy lifting caused the clinical worsening of the lumbar spondylosis.  This is covered by factor (w) of the SOP.

13.     Factors (j) and (w) say:

The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis…with the circumstances of a person’s relevant service are:

(j) 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 lumbar spondylosis;…

(w) 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 worsening of lumbar spondylosis.

14.     It is appropriate here to consider the decision of the Federal Court in Kattenberg v Repatriation Commission [2002] FCA 412. In that case the decision of the Administrative Appeals Tribunal was partially overturned. Emmet J criticised the reasoning of the Administrative Appeals Tribunal because

The Tribunal construed the SoP as requiring that the smoking of at least thirty pack years of cigarettes be wholly attributable to the service.  The Tribunal did not examine the possibility that the smoking of the requisite number of cigarettes was contributed to in a material degree by the service or that it would not have occurred but for the rendering of the service.

15.     If the eligible service makes a material contribution (where a factor requires a specific amount of something to be ingested or lifted or done or used), then unless the contribution by eligible service is insignificant the Tribunal must find the relevant condition is connected to the service.

16. Did the applicant’s lifting during his eligible service period of contribute to a material degree to his lumbar spondylosis? I do not think it did. His period of eligible service was 39 days (f8 T3 of the T-documents). I accept he was working very hard during this period. But I do not accept that (even if the applicant can show he lifted the requisite amount in a ten year period) 39 days of lifting constitutes a material contribution to the development or clinical worsening of the applicant’s lumbar spondylosis.

Conclusion

17.     The applicant’s lumbar spondylosis cannot be connected to his service. The decision under review must be affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member McCabe

Signed:         .....................................................................................
  Associate:  Thomas Ritchie

Date/s of Hearing: 2 March 2004
Date of Decision: 2 March 2004
The Applicant represented himself.
The Respondent was represented by Mr Stoner, a departmental advocate.