Worden and Repatriation Commission

[2005] AATA 1269

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 1269

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No S2005/100

VETERANS' APPEALS DIVISION		)
Re		GRAHAM ROY WORDEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date20 December 2005

PlaceAdelaide

Decision The Tribunal affirms the decision under review.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS AFFAIRS – veterans' entitlements – operational service – claim that lumbar spondylosis is war-caused – consideration of Statement of Principles – fall from ladder – decision under review affirmed

Veterans’ Entitlements Act 1986 ss 6, 9, 20, 120(1), 120(3), 120A, 196, 196A and 196B

Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 66 ALD 271
Hardman v Repatriation Commission (2004) 82 ALD 433
Elliott v Repatriation Commission (2002) 73 ALD 377
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Gorton (2001) 65 ALD 609
Lees v Repatriation Commission (2002) 125 FCR 331

Statement of Principles Instrument No 37 of 2005

REASONS FOR DECISION

20 December 2005   Mr J G Short (Member)     

1.      Mr Graham Worden was engaged in operational service in Vietnam on HMAS Sydney during the following periods:

·17 November 1969 to 5 December 1969

·16 February 1970 to 5 March 1970

·21 October 1970 to 12 November 1970

·15 February 1971 to 4 March 1971

·26 March 1971 to 8 April 1971

·13 May 1971 to 1 June 1971

2.      Mr Worden also performed eligible defence service from 7 December 1972 until 10 January 1974.  On 19 January 2000 Mr Worden lodged a claim for pension in respect of emotional and behavioural disorder; hearing loss and tinnitus; skin disorder and lumbar spondylosis.  Claims for these conditions were rejected by the respondent (the Commission) save and except for the claim in respect of hearing loss.

3.      Mr Worden lodged an appeal to this Tribunal on 20 April 2005 in respect of “rejection of conditions including low back injury”.  Mr Worden’s counsel, Mr S Ower, indicated in his opening address that the only condition in respect of which Mr Worden sought review was lumbar spondylosis and that if there were any other conditions in respect of which Mr Worden has made a claim and which have not been determined then the application to this Tribunal in respect of any such other conditions is discontinued.

issue before the tribunal

4.      The issue before me is whether Mr Worden’s lumbar spondylosis is war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act). Both parties accept lumbar spondylosis as an appropriate diagnosis of Mr Worden’s condition.

5. It is common ground that if Mr Worden is successful in his claim, the earliest date of effect pursuant to s 20 of the VE Act would be 19 October 1999.

background

6.      Mr Worden was born on 25 September 1948.  He served in the Royal Australian Navy (the Navy) from 11 March 1967 until 10 January 1974.  His operational service extended during various periods set out in paragraph 1 between 17 November 1969 and 1 June 1971.  His eligible defence service was from 7 December 1972 until 10 January 1974.  There is no suggestion that Mr Worden’s lumbar spondylosis was in any way related to his period of eligible defence service.

7.      Mr Worden asserts in the present proceedings, in essence, that a fall or stumble of about one and a half metres down a steel ladder on board HMAS Sydney while that ship was entering Vung Tau Harbour produced symptoms which meet factor 6(g) of Statement of Principles Instrument No 37 of 2005 relating to lumbar spondylosis.

legislative background

8. Section 9 of the VE Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:

“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;

(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran; …”

9. As Mr Worden has performed operational service, as defined in s 6 of the VE Act, the determination of whether his asserted condition is war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide relevantly as follows:

“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.”

10. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority (RMA) has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:

“(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.”

Subsection (4) of s 120A excludes the operation of subsection (3) in certain circumstances which are not relevant to the present proceedings.

11. Section 196A of the VE Act provides for the establishment of the RMA. Section 196B of the VE Act provides, in effect, that if the RMA is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to operational service rendered by veterans, the RMA must determine a SoP in respect of that kind of injury, disease or death setting out the factors that must as a minimum exist, and which of those factors must be related to service rendered by a person, before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of the veteran’s service. The reference in s 196B(2) to a particular kind of injury, disease or death being “related to service” is expounded in s 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.

consideration

12. The claimed condition of lumbar spondylosis is the subject of SoPs. I have set out the relevant provisions of the SoPs at paragraph 18 of this document. I note that where a SoP exists I must apply the test prescribed by s 120A(3) of the VE Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 at [97] in the following way:

“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 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.”

13.     In considering whether there is an hypothesis connecting Mr Worden’s lumbar spondylosis with his war service, and in applying the relevant Deledio (supra) steps to that end, I must consider all of the material before me, whether or not that material supports the hypothesis, as required by such cases as Bull v Repatriation Commission (2001) 66 ALD 27 at [21], the decision of Hill J in Hardman v Repatriation Commission (2004) 82 ALD 433 at [39] to [41], and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, at [25], likened the decision-maker’s task to striking out a statement of claim as failing to disclose a cause of action, where no consideration is given to whether the facts pleaded can be substantiated.

14.     An hypothesis that (once again, after taking into account all of the material before me) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bull (supra) at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). I refer also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.

15.     As regards the first step in Deledio, I am satisfied that the material before me points to an hypothesis connecting the claimed condition with Mr Worden’s operational service.  That hypothesis is that Mr Worden’s fall resulted in him suffering lumbar spondylosis, and that accordingly the condition is war-caused.

16. SoPs have been determined by the RMA pursuant to s 196(2) of the VE Act in respect of lumbar spondylosis. The current SoP is Instrument No 37 of 2005, being Exhibit A2. I must apply this SoP notwithstanding that it was not in force at the time when the claim for pension was lodged: Repatriation Commission v Gorton (2001) 65 ALD 609. It has not been suggested that the earlier SoP in force at the time of the original decision by the Commission was more beneficial to Mr Worden, and that SoP (being Instrument No 27 of 1999) is therefore not relevant. I point out at this stage that having considered the earlier SoP in relation to lumbar spondylosis, I am satisfied that the current SoP, Instrument No 37 of 2005 is, in the circumstances asserted by Mr Worden, at least as beneficial to Mr Worden’s contention as the earlier SoPs. In these circumstances I find steps 1 and 2 of Deledio satisfied.

17.      I now turn to the third step as enunciated in Deledio.  This entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs.  This step involves considering all of the material before me, but without making any findings of fact at this stage of the process.  The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose:  Lees v Repatriation Commission (2002) 125 FCR 331.

18.     Under clause 5 of the lumbar spondylosis SoP, at least one of the factors set out in clause 6 must be related to the relevant service, in this case operational service performed by the Mr Worden.  Clause 6 then relevantly provides as follows:

“Factors

6.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person’s relevant service is …

(g)having a trauma to the lumbar spine before the clinical onset of lumbar spondylosis.

…”

19.     Paragraph 9 of Instrument No 37 of 2005 defines “trauma to the lumbar spine” as meaning:

“… 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.”

20.     In his opening address, Mr Ower said that the only factor relied upon by the applicant in this case was factor 6(g) of the relevant SoP.  General Surgeon, Mr Peter Byrne, gave evidence to the effect that in addition to lumbar spondylosis, Mr Worden suffers from spondylolysis, involving the fifth lumbar vertebrae, and from spondylolisthesis.  Both of these two last mentioned conditions were confirmed by x-rays dated 14 November 1972.  Mr Worden’s counsel did not suggest that either of these conditions were relevantly related to the claimed condition of lumbar spondylosis.  I note in passing that a condition of spondylolisthesis has been a condition rejected by the Commission.

the fall

21.      Mr Worden provided evidence to the effect that on one of two trips to South Vietnam in 1970 on HMAS Sydney and while that ship was entering Vung Tau Harbour he was called to take up his duties in the radar room and that in travelling to that destination he fell or stumbled down a ladder, approximately one and a half metres, to a steel deck.  Mr Worden said that he cannot recall where he was coming from.  He said that he landed on his backside and felt “sore and silly”.  He said that he felt pain in his hip area and bottom.  He said that he had “a couple of scratches and a sore elbow”.  Mr Worden said that after the fall he went to the sick bay and that an attendant gave him “a couple of pills”.  He said that he was then able to attend his duty station and perform his duty for 4-6 hours.  He said that he could not recall what the pills were, but that they eased the pain.  Mr Worden told the Tribunal that while performing his duty he was sitting down and consequently the effects of the fall “didn’t bother me”.  He later attempted to clarify the position by saying that the pain he felt in his lower back was similar to the pain he felt today.  He referred to a sharp pain which can last all day.  He may then be fine for a week.  He said that he could not now remember whether he was still in pain at the end of his duty shift.  He said that he probably rested in his cabin for perhaps 8 hours.  He said that the next day his back was “fairly annoying” from time to time.  Mr Worden said that he did not have much memory of the days after his fall.  He said that he just recalled shooting pains from his back to his groin.  He said he recalls being able to work through it.  Mr Worden said that he could not recall any other treatment in the days or weeks following his fall.

22.     In cross-examination various statements were put to Mr Worden.  It was suggested to Mr Worden that as the operations room (his point of duty for the day in question) was in the Conning Tower it was impossible for him to have had to travel down stairs in order to attend at the operations room.  Mr Worden said that he cannot recall where he was travelling from and that it may have been that in order to ascend stairs leading to the Conning Tower area he had to travel down other stairs.

23.     It was also put to Mr Worden that on a number of occasions, including his statement dated 20 February 2000, he had stated:

“… I got to my feet and felt this pain in my lower-back.  There was know [sic] time to go to the sic- bay.  A couple of hours later I felt OK apart from a bit of bruising.  For a long time after that whenever I slightly twisted my body (loading stores onto the ship or working in the magazine area loading shells) I could feel a sharp stabbing pain in my back and groin. …”

24.     Mr Worden said that he now recalls visiting the sick bay and being given pain killers.  He said that he cannot recall whether this was after or before he performed his duty.  It was put to Mr Worden that he was specific in his statement dated 20 February 2000 that he did not have time to go to the sick bay.  Mr Worden indicated that he had given it more thought since making the statement dated 20 February 2000.  He said that he now remembers receiving medication from someone.  Mr Worden went on to say that he was in a “damn lot of pain and would have done something about it”.

25.     A statement recorded by Mr Byrne in his report of 24 September 2001 recording a history provided by Mr Worden at that time included the following comment:

“… He was capable of getting to his feet but noticed acute pain in the area of the lumbar spine.  There was evidently no time for him to go to the sick bay.

He managed to get to his operations room for duty and after about 2-3 hours the acute low back pain settled somewhat.  Evidently there was some local bruising.

From that time onwards, with vigorous activity, Mr Worden has noticed recurrent low back pain. …”

Mr Worden said that he could not now recall telling Mr Byrne that there was no time for him to go to the sick bay.

26.     Mr Worden had told the Tribunal that after performing his duty he probably went to the mess area to rest.  It was put to Mr Worden that this is inconsistent with his statement to a Veterans’ Review Board on 9 April 2001, the accuracy of which is recorded to have been confirmed by Mr Worden to a Veterans’ Review Board on 27 January 2005.  The statement was to the effect that there was no time to go to the sick bay following his fall.  “A couple of hours later I felt OK, apart from a bit of bruising.”  Mr Worden responded to the assertion of having provided inconsistent evidence by saying that he currently experiences pain from time to time and then it stops.  He said this is probably also what happened when the injury first occurred.  He said that he does not really recall, but it was probably, “on and off” for a few days at a time after the injury.

27.     The next asserted inconsistency put to Mr Worden was a history recorded by Dr H Selvey on 8 November 1972.  This history was recorded after Mr Worden was referred to Dr Selvey for opinion.  The document (T4/83) includes the following comment “For the last six months he has had recurrent attacks of low back ache which seem to be precipitated by heavy lifting”.  This document dated 8 November 1972 would put the first occurrence of recurrent attacks of low back pain at about May 1972, that is during a period of ineligible service.  Mr Worden said that he could not explain the reference in November 1972 to low back pain having existed for the last 6 months.  The evidence Mr Worden provided to this Tribunal was to the effect that he had experienced low back pain since the fall in 1970.  Mr Worden also said that he could not explain why the fall was not recorded in the history taken by Dr Selvey in late 1972.

28.     Mr Worden was also referred to a claim for compensation in respect of an injury to his back recorded in a statement from Captain PJ Strickland to the Medical Director General, Navy Office, Victoria Barracks, Melbourne dated 18 March 1974 and found at T4/99.  This statement recorded Mr Worden as having “alledgedly [sic] injured his back in June 1973”.  In relation to the same claim there is a reference at T4/102 to Mr Worden having “injured his back in June 1973 whilst lifting a box”.  Mr Worden said that he could not recall an injury in 1973.

29.     General Surgeon Mr Peter Byrne provided evidence to the effect that a possible cause of Mr Worden’s lumbar spondylosis was the fall described by Mr Worden as having occurred in 1970.  Mr Byrne said however that there were other things affecting the condition, including wear and tear over the years and a congenital defect which resulted in the two conditions discussed at paragraph 20 hereof and mentioned in the x-ray report in 1972.  Nevertheless Mr Byrne expressed the opinion that the history provided by Mr Worden, if accurate, would satisfy the relevant SoP, particularly factor 6(g) “having a trauma to the lumbar spine before the clinical onset of lumbar spondylosis”.  Mr Byrne had provided four reports, all contained in the T documents.  He expressed the view that the clinical onset of lumbar spondylosis was probably sometime between 1975 and 1977.  Mr Byrne was referred to the first paragraph on page 2 of his report dated 19 November 2004.  This paragraph reads as follows:  “Evidently the pain lasted for some days and he continued to put up with it”.  Mr Byrne was asked whether Mr Worden had told him that the pain lasted for at least 7 days.  Mr Byrne said that he simply assumed that it may have.  Mr Byrne also confirmed that Mr Worden had provided the history recorded on page 1 of his report dated 24 September 2001 (T13/190) to the effect that there was no time for Mr Worden to go to the sick bay after his fall and that after 2-3 hours in the operations room “the pain settled somewhat”.  He confirmed having been told by Mr Worden that “From that time onwards, with vigorous activity, Mr Worden has noticed recurrent low back pain”.  Mr Byrne said that he could not recall having read the report in relation to x-rays taken in 1972 to the effect that Mr Worden had experienced pain for the last 6 months. 

30.     I am aware that statements made to a medical practitioner may form the basis of an hypothesis.  I am also aware that in considering the third step of Deledio I am not to make findings of fact.  I have had regard to all of the material before me.  Mr Worden’s account of events in 1970, provided to the Tribunal, was generally that he had little or no recollection of the period during which pain or restricted movement lasted, if any, after his fall in 1970.  The material does indicate, and here I am referring to Mr Worden’s statement dated 20 February 2000, that a couple of hours after the fall he felt okay, apart from a bit of bruising.  In my view this does not meet the definition of “trauma to the lumbar spine” as defined in the relevant SoP.

31. For the above reasons I consider that the hypothesis raised by the material before me is not consistent with factor 6(g) or indeed any of the other factors in the lumbar spondylosis SoP. The SoP does not uphold the asserted hypothesis connecting Mr Worden’s lumbar spondylosis with the circumstances of his operational service. As a result the hypothesis is not reasonable, by virtue of s 120(3) of the VE Act I must find beyond reasonable doubt that there is no sufficient ground for determining that the claimed condition was war-caused and as a result Mr Worden’s claim must fail.

32.     If I am wrong in my conclusion in relation to the third step of Deledio, then noting the inconsistent evidence provided by Mr Worden, particularly the inconsistencies between his evidence at hearing and his statement made on 20 February 2000 to the effect that there was no time to go to the sick bay and that a couple of hours later he felt okay, and further noting Mr Worden’s lack of reference to a fall during his exit medical or when providing a history to Dr Selvey on 8 November 1972 of low back pain for the last 6 months and the absence of any reference to a 1970 fall in a claim for compensation for an injury occurring while lifting in 1973 (T4/102) I would find myself satisfied beyond reasonable doubt that any fall experienced by Mr Worden in 1970 was not of such a nature as to meet the definition of “trauma to the lumbar spine”. 

33.     For the above reasons I affirm the decision under review.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

Signed:         ............J Coulthard ..........................................
  Associate

Dates of Hearing  21/22 November 2005
Date of Decision  20 December 2005
Counsel for the Applicant         Mr S Ower
Solicitor for the Applicant          Tindall Gask Bentley
Counsel for the Respondent     Mr G Doube
Solicitor for the Respondent     DVA