Wright and Repatriation Commission
[2000] AATA 714
•21 July 2000
DECISION AND REASONS FOR DECISION [2000] AATA 714
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/622
VETERANS' APPEALS DIVISION )
Re MARK HAMLYN WRIGHT
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen Dr j r Vallentine, Member
Date21 July 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/622
)
veterans' appeals DIVISION )
Re: MARK HAMLYN WRIGHT
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Dr J R Vallentine, Member
Date 21 July 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely:
THAT the Applicant, Mark Wright, is entitled to pension, pursuant to the Veterans' Entitlements Act 1986, for the Defence-caused diseases of scoliosis, thoracic spondylosis and lumbar spondylosis as and from the 17 day of December 1975;
AND THAT this matter is remitted to the Respondent in order that it might assess the rate of pension to be paid for all Defence-caused injuries and diseases suffered by the Applicant.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Whether congenital condition made worse by Naval Service. Inferences to be drawn from sequence of events. Enlisted with condition unobservable and asymptomatic. Later during service condition both observable and symptomatic.
Veterans' Entitlements Act 1986
Repatriation Commission v Smith (M J) 15 FCR 327
Repatriation Commission v Keeley [2000] FCA 532
Casarotto v Australian Postal Commission 86 ALR 399
Adelaide Stevedoring Company and Forst 64 CLR 538
Treloar v Australian Telecommunications Commission 26 FCR 31
Repatriation Commission v Law 36 ALR 411
Walsh v Rother District Council (1978) 1 All ER 510
REASONS FOR DECISION
Senior Member M D Allen
Dr J R Vallentine, Member
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Kwai-Ling Wong
....................................................................................Associate
Date of Hearing 21 July 2000
Date of Decision 21 July 2000Solicitor for Applicant Mr T McCombe, Vietnam Veterans' Association
Advocate for Respondent Ms M Doggett, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N19/622
By SENIOR MEMBER MR M.D. ALLEN
And MEMBER DR J.R. VALLENTINE
WRIGHT and repatriation department
SYDNEY, FRIDAY, 21 JULY 2000MR ALLEN: By application received 28 April 1999 the applicant seeks review of a determination by the respondent Repatriation Commission made 24 November 1995 and affirmed by a Veterans' Review Board on 2 March 1999, that the conditions of scoliosis, thoracic spondylosis and lumbar spondylosis are not attributable to his defence service.
The applicant served in the Royal Australian Navy from 7 January 1979 to 17 June 1986 and as such constitutes Defence Service as that term is defined in the Veterans' Entitlements Act 1986 (as amended). So far as any onus of proof is concerned in this matter, pursuant to subsection (4) of section 120 of the said Act the Tribunal has to be satisfied of the connection between the conditions claimed and the applicant's defence service to its reasonable satisfaction.
In Repatriation Commission v Smith (M J) 15 FCR 327 the Full Court of the Federal Court equated the term "reasonable satisfaction" to the civil standard of proof, that is to say on the balance of probabilities. As the applicant's claim was received after 1 June 1994 the Tribunal's reasonable satisfaction is to be assessed by reference to certain so-called Statements of Principles.
There were at the time the original decision maker made its decision no Statement of Principles in force in relation to scoliosis. Consequently there are no Statements of Principles which apply before this Tribunal (see the decision of his Honour Madgwick J in Thompson v Repatriation Commission [2000] FCA 939). However, there were in force certain Statements of Principles in relation to both lumbar and thoracic scoliosis and pursuant to the decision of the Full Court of the Federal Court in Repatriation Commission v Keeley [2000] FCA 532, it is those Statements of Principles which were in force on 24 November 1995 which must be applied by this Tribunal.
Those particular Statements of Principles are, in relation to lumbar spondylosis, Instruments Number 106 of 1995, 335 of 1995 and 359 of 1995. So far as relates to thoracic spondylosis the instruments are 104 of 1995, 333 of 1995 and 357 of 1995.
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©Auscript Pty Ltd 2000Paragraph 70(5)(d)(ii) of the Veterans' Entitlements Act 1986 reads inter alia:
Where an incapacity is alleged to be Defence caused it is so caused if the said incapacity was suffered or contracted before the commencement of Defence service but not during such period of service and the injury or disease was contributed to in a material degree by or was aggravated by any Defence service rendered by the member, being service after the member suffered the injury or contracted the disease.
As to what constitutes an aggravation, we would refer to the decision of his Honour Hill J in Casarotto v Australian Postal Commission 86 ALR 399 at 405. His Honour said:
In the Darling Island Stevedoring and Lighterage Co Ltd v Hankinson (19967) 117 CLR 19, again in the context of the New South Wales legislation, Barwick CJ said of the words "aggravation, acceleration, exacerbation or deterioration: (AT 26):
"The words in this collocation may overlap in their denotation but none the less they connote different consequences of work in the employment upon pre-existing non-employment disease. In my opinion, the expression 'acceleration of the disease' cannot be treated as connoting no more than the approximation of the incapacitating effect of the disease. In my opinion, the expression refers to the acceleration of the progress of the disease itself. No doubt in this sense it at least overlaps the significance of the expression 'aggravation of the disease' but is none the less distinct from it. I can conceive that a disease may increase the tempo of its progression and thereby produce a result of a kind which a lesser progression may not have produced at all: or it may thereby produce a more extensive result, or it may produce sooner the same result as that which without the acceleration of its progression the disease might have produced; nor to these instances exhaust the possibilities."
His Honour went on to say:
Finally, in Johnston v Commonwealth (1982) 43 ALR 559 at 564; 56 Windeyer J had said in Ogden Industries and Federal Broom and said:
"There is some force in the comment of his Honour in Lucas that 'aggravation' signifies 'making worse' rather than 'becoming worse', a comment reflected in the remarks of
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Brennan J in the Federal Court in the present case. However, the comment has rather more force when applied to the transitive verb 'aggravate' than when it is applied to the noun 'aggravation', especially when it is used in a passive sense in the expression 'suffers an aggravation'. 'Aggravation' may mean 'an increasing … in gravity or seriousness' as well as 'being increased, in gravity or seriousness'."
Having ended the quote hill J continued:
These quotations illustrate what appears in any event from the ordinary English meaning of the words "aggravation and acceleration", namely that "aggravation" connotes the disease becoming more severe and acceleration connotes the hastening of the normal underlying disease, which, if not invariably, will usually in any event be a progressive one. However, in the ordinary usage of the words it is clear that the two words are not mutually exclusive so that the consequence of hastening the development of an underlying progressive disease may be to increase or make worse the severity of that disease.
The Statement of Principles for lumbar spondylosis state in factor 1(c):
having a malalignment of the relevant joint before the clinical onset of lumbar spondylosis;
similarly Instrument 104 of 1995, para 1(c) refers to thoracic spondylosis as:
having a malalignment of the relevant joint before the clinical onset of thoracic spondylosis;"
There is no doubt that the applicant was enlisted into the Royal Australian Navy at the age of 16 years as a naval apprentice with an existing but undiagnosed scoliosis. In evidence before the Tribunal today he gave details of his naval service and in particular how both as a naval apprentice and then as an able bodied seaman he was required to lift heavy weights and also perform vigorous physical activity. This evidence was not really challenged by the respondent and in any event is corroborated by the various medical reports. The applicant's case is also stated in the section 37 documents, and I refer to page 57 thereof, in that he simply says:
As an apprentice in the Navy I was required to do a lot of manual labour such as lifting lathe chucks, metal stock, garbage bins, engine heads and other heavy machinery. …
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The physical training programme was rigorous and I was often called to attempt up to 210 push ups and repeated sit ups, chin ups and running with a chair held out at arms length.
He states, he did not, to his knowledge, have a scoliosis on entry into the Royal Australian Navy, he was diagnosed with such a condition in 1980. His evidence was today that in 1980 he attended at the sick bay at HMAS Nirimba complaining of back pain. As a result of investigations he was forwarded to a Professor Taylor, orthopaedic surgeon, a recognised expert in scoliosis. Professor Taylor's initial report is found in exhibit R1, page 13 thereof. In that report he states:
The outward deformity is slight but these curves have a potential to increase in the late teens even though he is skeletally mature.
Under the heading of recommendation, he went on to add:
He is considered unfit for heavy manual work such as he indicates would be involved in his job as a Marine Engineer. He should seek a more sedentary occupation and this may be possible within the Navy.
Later, whilst stationed at HMAS Cerberus, Victoria, he was operated upon by surgeon, Dr Hooper, and a rod placed in his spine. Evidence was that although he was supposed to be on restricted duties after the diagnosis of this condition and certainly after the insertion of the rod in his spine that was not fully adhered to by the Navy. Part of his problem arose later that the rod inserted into his spine by Mr Hooper, the orthopaedic surgeon, broke whilst he was playing hockey for the Navy.
There is a conflict in the medical evidence as to the effect the heavy work performed by the applicant whilst in the Navy had upon his scoliosis. Dr Lennan's report is at page 102 of the T documents. In that report he states inter alia:
He … had been examined medically for entrance on the 3.7.78 and apparently his spine was noted as "normal at the age of 16 years".
At page 6 of his report, Dr Lennan states:
The progression was simply due to the normal progression of scoliosis the rate of progression of course unpredictable.
At page 7 he states:
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I certainly agree with Dr. Charles New that with any such extensive surgery the patient should have been immediately medically discharged and not continued in his service until 1986 and certainly not service at sea categorised from Category 7 to Category 4 to do so.
It is indeed difficult to imagine at induction into the Navy that such thoraco-lumbar scoliotic curve was not demonstrated at medical examination although then at 15 and 16 years of age and apparently diagnosed at 18 years of age.
Mr Hooper, surgeon, states at page 112:
… any progression of this man's curves are due to the natural progression of this idiopathic scoliosis he had and would be little influenced by his activities in the Navy.
To me it is also incredulous that he was accepted into the Navy with a double primary curve such as this that should have been picked up on initial examination."
Dr Taylor in a report dated 6 November 1998, starting at page 114 says:
Hence the increase in the curvature which took place is simply an expression of the natural history of the curvature. It cannot in any way be linked with activities the patient undertook whilst in the Navy.
Exhibit R3 is a report by Professor Sambrook, a rheumatologist. In that report Professor Sambrook says:
As noted above, Professor Taylor also considered heavy physical work was contraindicated following surgery as well as body contact sports including hockey.
He adds on the same page, "These records", referring to medical documents which have been made available to him:
These records seem to confirm Mr Wright's assertion that there was at least passive encouragement by the Navy to allow him to not comply with some of the restrictions recommended by his treating doctors.
At page 7 of his report Professor Sambrook says:
The only question that is therefore relevant is whether there has been aggravation or contribution by Mr Wright's eligible service. Professor Taylor has stated that it is normal for this type of
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scoliosis to progress relatively late and that the change in angles of Mr Wright's scoliosis is within the natural history of the condition. That may well be so, but the fact Professor Taylor also indicated in his various reports that Mr Wright was unfit for heavy manual work and should avoid hockey does mean consideration of such factors, which were not adhered to, need to be made.
It is my opinion that the limitations imposed upon Mr Wright regarding heavy lifting and contact sport was appropriate but were not strictly adhered to. Whether he should have been discharged immediately on diagnosis is a moot point but in retrospect I think it would have been appropriate. … there is nevertheless nothing in the history that points to this activity as having materially aggravated or contributed to the progression of scoliosis and as a consequence, the spondylosis.
This opinion is disputed by Dr Ellis, orthopaedic surgeon. In evidence Dr Ellis opined the applicant's scoliosis had been made worse than it otherwise would have been had he not been engaged in heavy work and strenuous activity during his naval service. Dr Ellis was cross-examined regarding the opinions of Dr Taylor et al and though he respects Professor Taylor on this particular occasion, he differs and adheres to his opinion that the applicant's scoliosis was made worse by the incidents of his naval service. Dr New, orthopaedic surgeon and spinal surgeon, reviewed the applicant on 28 November 1997 and his report is at document T12. In that report Dr New states:
In 1980 he was diagnosed as having a scoliosis of the magnitude of 40o. It is interesting that on his original induction papers no mention was made of the scoliosis and indeed a curve of that size would be clinically appreciable.
He stated, although I do not have an x-ray report, that it was noticed on a chest x-ray. Up until that time he had not had any significant problems with his back and was able to continue his apprenticeship on an unrestricted basis. Dr New continued, the second page of his report:
It now appears that the Navy has stated that this is a congenital condition and has not been affected by his military service. Again I find this difficult to believe, in that this has substantially impacted upon this gentleman's ability to carry out of activities of daily living and although this is a congenital condition he was declared fit on induction.
The comment by Dr New that the Navy has stated his condition has not been affected by service is not strictly correct.
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©Auscript Pty Ltd 2000During his service the applicant attended various medical boards and the naval surgeons were satisfied that his condition had been aggravated by naval service, see exhibit R1, page 21, for example. There is a note by the Naval Medical Board that the condition was aggravated by naval service and a percentage incapacity attributed to naval service was 50 per cent.
At page 43 is another medical board which is dated 5 December 1983 and under the heading, aggravated by naval service, yes. Under the heading, present percentage of incapacity naval 50 per cent and that Naval Board was presided over by a Surgeon Commander. Again at page 47, on 12 July 1984 a Naval Medical Board presided over by a Surgeon Commander stated that the disability was considered due to naval service and aggravated by naval service and attributed 70 per cent capacity naval service. In Adelaide Stevedoring Company and Forst 64 CLR 538, Rich ACJ said in a well known passage commencing at page 563"
I do not see why a court should not begin its investigation, i.e., before hearing any medical testimony, from the standpoint of the presumptive inference which this sequence of events would naturally inspire in the mind of any common-sense person uninstructed in pathology.
He continued:
From this standpoint the investigation of physiological and pathological opinion shows no more than the current medical views find insufficient reason for connecting coronary thrombosis with effort. Be it so. That to my mind is not enough to overturn or rebut the presumption which flows from the observed sequence of events.
Here there is an observed sequence of events. A young man is enlisted into the Navy with no demonstrable scoliosis. Later he reports with pain and a diagnosis made of a congenital condition. That congenital condition would, it is true, have followed its own path, however, from an unobservable and asymptomatic condition it has become over a very short period during which the applicant has been performing heavy physical work observable and symptomatic.
Medical opinion is that he should have thereupon been removed from a position which he was performing heavy physical activity, he was not. Surgical procedures were carried out but a rod inserted in his spine broke whilst undergoing sport encouraged by the Navy. As pointed out by Professor Sambrook in a report to the respondent the
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©Auscript Pty Ltd 2000limitations imposed upon the applicant regarding heavy lifting etcetera were appropriate but not strictly adhered to.
In these circumstances we are more persuaded by Drs New and Ellis and the earlier Medical Boards that the applicant's scoliosis was rendered more severe than it otherwise would have been because of his naval service. In determining this it must be remembered that a material contribution is all that is required. In Treloar v Australian Telecommunications Commission 26 FCR 316 at 323 the Court pointed out:
… once it is established that an employee in the doing of his work was exposed to "a state of affairs to which he would otherwise not have been exposed" or to "some characteristic of or condition in which the work was to be performed" and that such exposure was in truth a "contributing" factor to the condition in respect of which he seeks compensation then it matters not whether the contribution was of any particular size or degree. The same applies, where the complaint is not one of initiation of the condition but of its aggravation, in the sense of making it worse, or its acceleration in the sense of speeding up the progress of a progressive disease. In all cases the question is whether there has been a "contribution". Consistently with what was said by Windeyer J, "contribution" does not require that the contributing factor be a causa sine qua non; the "but for" test is not appropriate nor is the causa causans or "real effective cause" or "proximate cause" formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not "contribute".
The use of the word, "material", in conjunction with the words, "contributing factor", in the legislation where it has occurred in the expositions of the section in other cases clearly is not intended to add to the section any significance which is not already to be found in the words used by the legislature. It is served only to emphasise that the section is not brought into play unless it be established by evidence the features of the employment did in fact and in truth contribute to the condition complained of
The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established however it matters not that the contribution be large or small. As stated we consider having regard to the reports of Drs Ellis and New that there is a material contribution. That the condition
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then must of course be attributable to his naval service as to what contributable refers to, we refer to the decision of the High Court in Repatriation Commission v Law in the unofficial version at 36 ALR 411 at p420 where Aitkin J said referring to the decision of the Full Federal Court:
They also took the view that the expression "attributable to" involved some element of causation, but that it was sufficient if the cause was one of a number of causes provided that it was a contributing cause in the sense of contributing to the death.
That passage being referred to with approval. It was only mentioned in passing but one of the cases relied on by the Full Court of the Federal Court was Walsh v Rother District Council (1978) 1 All ER 510 where at page 514 the court said, referring to the word, attributable and attribute:
Suffice it to say that these are plain English words involving some causal connection between the loss of employment and that to which the loss is said to be attributable. However, this connection need not be that of a sole, dominant, direct or proximate cause and effect. A contributory causal connection is
Now, in this case the Statements of Principles relating to lumbar and thoracic spondylosis require a mal alignment of the relevant joint before the clinical onset of the spondylosis. It was stated and not challenged by Dr Ellis that scoliosis is a mal alignment. We have stated that we prefer the opinions of those doctors who consider that the applicant's scoliosis has been aggravated in the sense of making worse than it otherwise would have been by the incidents of his naval service.
It therefore seemed to us clear on all the material before us and we are reasonably satisfied that the applicant's condition of scoliosis, thoracic spondylosis and lumbar spondylosis are attributable to his defence service. The decision under review will, therefore, be set aside and this matter remitted to the respondent in order that it may assess the degree of pension to be paid for those conditions and any other defence condition suffered by the applicant. The date of effect will be 17 December 1995.
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