Barrett and Repatriation Commission [1999] AATA 509 (13 July 1999)

Last Updated: 20 July 1999

DECISION AND REASONS FOR DECISION [1999] AATA 509

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N98/475

GENERAL ADMINISTRATIVE DIVISION )

Re CHARLES BARRETT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr R P Handley, Senior Member Dr M E C Thorpe, Member

Date 13 July 1999

Place Sydney

Decision 1. The Tribunal sets aside the decision under review and substitutes a decision that the Applicant's lumbar spondylosis is war-caused. 2. The Tribunal remits the matter to the Respondent to determine the degree of the Applicant's incapacity caused by his lumbar spondylosis and the rate of pension payable to the Applicant.

(Sgd) R P Handley

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

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - Veterans' entitlements - disability pensions - operational service - reasonable hypothesis - lumbar spondylosis - Statement of Principles - whether the applicant had suffered a discrete injury to his lumbar spine

Veterans' Entitlements Act 1986 - ss 9, 120A, 120B

Re Ablett and Repatriation Commission (AAT 12210, 12 September 1997)

Re Leech and Repatriation Commission (AAT 12770, 3 April 1998)

Re Sandiford and repatriation Commission (1998) 27 AAR 210

Re Donnelly and Repatriation Commission (AAT 13046, 2 July 1998)

Ogston v Repatriation Commission [1999] FCA 342

Deledio v Repatriation Commission (1997) 47 ALD 261

Repatriation Commission v Deledio (1998) 49 ALD 193

Byrnes v Repatriation Commission (1993) 177 CLR 564

REASONS FOR DECISION

13 July 1999 Mr R P Handley, Senior Member Dr M E C Thorpe, Member

1. This is an application by Charles Barrett ("the Applicant") for a review of a decision of the Veterans' Review Board ("the VRB") made on 9 February 1998 which affirmed a decision of a delegate of the Repatriation Commission ("the Respondent") made on 19 July 1996 to refuse the Applicant's claim for lumbar spondylosis on the basis that the condition was not war caused.

2. At the hearing, the Applicant was represented by John Armfield, of counsel, and the Respondent was represented by John Sylvestre of the Department of Veterans' Affairs. The evidence before the Tribunal comprised the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents") together with exhibits tendered by the parties. The Applicant gave oral evidence.

Background

3. The Applicant, who was born on 3 May 1923 and is aged 76, served in the Australian Army from 4 February 1942 to 6 June 1946. There is no dispute that this period constituted "operational service" for the purposes of the Act. The Applicant served as a "gun layer" and claims that this involved heavy lifting which caused damage to his lower back. After the Second World War and the Applicant's discharge from the Army, he worked as a clerical officer for the Bank of New South Wales until his retirement in 1977.

4. On 17 May 1996, the Applicant lodged a claim for "Disability Pension and Medical Treatment" (T5) claiming to have suffered a back injury, hearing loss and skin cancers as a result of his war service. On 19 July 1996, the Respondent accepted the Applicant's claim in respect of bilateral sensorineural hearing loss and chronic solar skin damage, but refused his claim in respect of lumbar spondylosis. The Applicant was granted a Disability Pension at 40 per cent of the General Rate with effect from 15 February 1996 (T10).

5. The Applicant sought a review of the decision to reject his claim for lumbar spondylosis (T11). On 9 February 1998, the VRB decided to affirm the Respondent's decision (T13), and, on 28 April 1998, the Applicant lodged an application for a review by the Tribunal.

Applicable Legislation

6. A war-caused injury or disease is defined in s 9(1) of the Veterans' Entitlements Act 1986 ("the Act"). This states, relevantly:

9(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;

...

(e) the injury suffered, or disease contracted, by the veteran:

(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

but not otherwise.

7. Section 13(1) of the Act provides that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.

8. Section 21A provides for the Respondent to "determine the degree of incapacity of a veteran from war-caused injury or war-caused disease, or both, according to the provisions of the approved Guide to the Assessment of Rates of Veterans' Pensions", which is currently in its fifth edition ("GARP V").

9. There is no dispute that the Applicant's service from 4 February 1942 to 6 June 1946 is "operational service" as defined in s 6. The standard of proof to be applied in respect of the Applicant's "operational service" is that provided for in ss 120(1) and (3) of the Act. Pursuant to these provisions, if the injury or disease relates to operational service, the Commission shall determine that the injury or disease was war-caused unless is it satisfied beyond reasonable doubt that the material before it does not raise a reasonable hypothesis connecting the injury or disease with the circumstances of the person's service.

10. Because the Applicant's claim was lodged after 1 June 1994, the provisions of ss 120A and 120B must also be applied. These provisions require that where the Repatriation Medical Authority has determined a Statement of Principles ("SoP") in respect of a particular kind of injury or disease, the Respondent (and therefore the Tribunal) must have reference to that SoP.

Applicant's Evidence

11. The Applicant adopted his statement dated 31 March 1999 (A2). He said he left school at the aged of 16 and started work as a clerical officer for the Bank of New South Wales, where he worked for about two years. At the age of 19, he enlisted in the Army with three friends from the country town where he was brought up. At school, he had played the usual team sports and, after leaving school, had played tennis and golf. He never experienced any back problems before joining the Army.

12. On enlistment, the Applicant and his friends were drafted into the artillery and sent to Williamtown for initial training, and then training as a gun crew. The Applicant said that one night, on his way to the latrine, he fell into a slit trench. Following this, he felt pain in his lumbar spine for two to three days. The pain was quite severe but did not stop him walking. They were at Williamtown for about two months and were then transferred to Darwin. In Darwin, they undertook gun drill, on a minimum of three to four days per week.

13. In the Applicant's battery, there were four guns, each with a crew of four. The Applicant's job was that of gun layer. On reaching a destination, a gun would be unhitched from the truck towing it and positioned. The gun, which weighed about 17 cwt, had to be lifted off its two wheels so that its legs rested on the ground. This was performed one wheel at a time, the gun layer lifting one side of the gun using a long pipe, and the gun loader taking off the 18 inch wheel, which was larger than the 14 inch wheel of an average car.

14. The Applicant said that in performing gun drill, a gun might be moved 20 or 30 times a day with the same procedure being followed on each occasion. Sometimes, the gun crew would also have to dig a gun emplacement or trenches which, if on hard ground, might involve the use of jackhammers.

15. In January 1943, the Applicant underwent a hernia operation in Darwin. He remained in hospital for the usual three week convalescent period and a further few weeks because he was complaining of back pain. For a long time, because the back pain started after the hernia operation, the Applicant thought this pain was the result of the nine unsuccessful attempts by the medical orderly, pre-surgery, to inject the Applicant's spine with anaesthetic. These attempts were painful and, in the end, the surgeon administered a general anaesthetic. The back pain, which was in the lumbar area and quite severe, started to improve about four weeks after the operation.

16. After discharge from hospital, the Applicant was on light duties for about six weeks, for example performing orderly room duties, or driving a utility truck. After the period of light duties, the Applicant returned to his normal duties as a gun layer. From then on, he experienced pain in the lumbar region on each occasion that they performed gun drill and for at least seven to ten days after a drill. Because there was gun drill on at least three to four days a week, he had quite severe continuing pain almost daily during his time in Darwin, although not so as to affect his walking. The pain would only ease after a period of performing light duties. The Applicant said, to his knowledge, he was the only gun layer in his battery (of four guns) seeking medical assistance for his back. The Applicant pointed out that, unlike some of the other men, he was only 19 when he enlisted, and slightly built.

17. After each day of gun drill, the Applicant would attend the first aid post where the sergeant would massage the Applicant's back with liniment and give him analgesics. The sergeant wanted the Applicant to attend the Casualty Clearing Station to have his back pain investigated but the Applicant resisted this because he wanted to stick with his mates. The Applicant believed that attending the Casualty Clearing Station might involve being away from his unit for three weeks or more, with the possibility of his being transferred to another lighter duty unit.

18. The Applicant continued to suffer the same pain for the rest of the two years he spent in Darwin. From Darwin, they were transferred to the Atherton Tablelands for jungle training, for six to eight weeks before embarking for New Guinea. There was no gun drill during this period and the Applicant does not recall suffering back pain.

19. After the Applicant was discharged from the Army on 6 June 1946, he returned to work as a clerical officer for the bank. He worked for the bank until his retirement in 1977, having risen to the level of branch manager. In 1947, the Applicant went to see one of the Respondent's doctors about his back pain. He was shown into the doctor's surgery. The doctor asked what was wrong with him and the Applicant told the doctor he had back pain. The doctor said "You blokes with headaches and back aches are all bludgers". The Applicant said he had never been accused of being a bludger before, so he got up and left, and never went back.

20. After his discharge from the Army, the Applicant said he always suffered back pain in the form of a constant dull pain. The pain would become worse if he attempted any heavy work such as mattocking in the garden. In the last ten years, the pain has steadily become worse. He now finds it too painful to even lean over and weed in the garden. Currently, he has severe pain on waking every morning - this eases if he applies heat and takes analgesics.

Submissions

* The Applicant

21. Mr Armfield, for the Applicant, submitted that there are two principal issues the Tribunal should address: first, whether there is a reasonable hypothesis connecting the Applicant's lumbar spondylosis with his war service, and, second, if there is such a hypothesis, whether the hypothesis satisfies the SoP concerning Lumbar Spondylosis (Instrument No 27 of 1999).

22. Mr Armfield said that in making its decision, the Tribunal should be mindful of s 119(1)(h) of the Act which provides that the Respondent shall take into account any difficulties in obtaining evidence as a result of the passage of time.

23. With regard to the first issue, Mr Armfield said the Applicant had no problem with his back on enlistment and, after discharge from the Army, his employment involved light, clerical work. However, during his time in the Army, the Applicant had worked for much of the time as a gun layer involving heavy, repeated lifting. Mr Armfield submitted that the Williamtown incident was probably of no consequence. It was only after the hernia operation that the Applicant began experiencing continuous back pain when he was working as a gun layer. He experienced acute pain which continued for seven to ten days after gun laying drill.

24. Mr Armfield said the Applicant's hernia operation was documented in his medical records. The Applicant's complaint of lumbo-sacral pain is recorded in the Applicant's Medical Report on Discharge (T3, p 9), and in post-discharge medical reports (T4, pp 22, 23, 24, 26, 27). Mr Armfield acknowledged that the x-ray reports in February 1947 appeared to be conflicting. Dr Armstrong reports on 3 February 1947 that x-rays suggest chronic inflammation in the inter-articular joints, and, on 4 February 1947, that x-rays confirm chronic arthritis of lumbar inter-articular joints (T4, pp 26, 27). However, an x-ray report dated 5 February 1947 (T4, p 28) states: "No abnormality detected in the thoracic spine, lumbar spine or sacroilac joints". These differences cannot be explained, but were noted by Dr Hopkins in his report dated 27 November 1998 (A1).

25. In addition to the contemporaneous evidence of the Applicant's complaints of lumbo-sacral pain in 1946 and 1947, Mr Armfield noted the Applicant had also given evidence that the pain had gradually worsened over time. Moreover, in his report, Dr Hopkins states the changes in the Applicant's spine are significantly severe and "are more than simply the result of the aging process". Dr Hopkins concluded that the Applicant's lumbar spondylosis, including the degenerative lumbar spondylosis at L4/5:

has at least been contributed to, if not caused by, his activities in the artillery in his war service in the absence of any other provocative cause in a man who has spent his working life in effect in an office.

26. With regard to the second issue, whether the hypothesis satisfies the SoP, Mr Armfield referred the Tribunal to the relevant factor in the Applicant's case - paragraph 5(h) "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis", and the definition of "trauma to the lumbar spine" in paragraph 8. This definition requires "a discrete injury to the lumbar spine" and the development of acute symptoms within 24 hours, which must last for a period of at least seven days.

27. Mr Armfield submitted that the term "discrete injury" can include a series of discrete injuries. In the Applicant's case, there had been a series of discrete incidents over a period of about two and a half years when the Applicant had undertaken gun laying duties. Each occasion of gun laying had caused trauma to the Applicant's back. Acute symptoms had manifested themselves within 24 hours and lasted for seven to ten days.

28. Mr Armfield referred to four recent Tribunal decisions. In Re Ablett and Repatriation Commission (AAT 12210, 12 September 1997), the Tribunal said (at paragraph 58):

There is nothing to suggest that only one injury is permitted and I am satisfied that a number of repeated injuries can constitute "a trauma".

In Re Leech and Repatriation Commission (AAT 12770, 3 April 1998), the applicant could not recall any specific lifting incident that first gave rise to back pain (see especially paragraphs 37 and 58).

In Re Sandiford and Repatriation Commission (1998) 27 AAR 210, the Tribunal, at paragraph 29, said it was

satisfied that the applicant's complaints of back pain throughout service associated with the lifting and manoeuvring of patients constituted, then, an "injury". There is nothing in my view to support the proposition that injury must be by a frank trauma only. That is to say I can find nothing within the SoP which prohibits injury manifesting by reasons of a number of similar and repeated heavy exertive episodes.

In Re Donnelly and Repatriation Commission (AAT 13046, 2 July 1998) at paragraph 37, the Tribunal referred to the decisions in Re Leech (supra), and Re Sandiford (supra) where:

the applicants were medical orderlies whose service had entailed the repeated lifting of patients and who subsequently developed lumbar spondylosis. Both were found to have satisfied the definition of "trauma to the lumbar spine" in incidents arising from these conditions of service. The Tribunal is satisfied that to exclude back injury arising out of lifting incidents from the definition of "trauma" would be contrary both to common sense and to the beneficial spirit of the legislation, since such kind of injury is commonly known to account for a significant number of later back problems.

29. Mr Armfield acknowledged that the wording of the current SoP concerning Lumbar Spondylosis, No 27 of 1999, is slightly different from that of the SoPs applicable in the Tribunal decisions cited above. In particular the addition of the word "discrete" before the term "injury" in the first line of the definition of "trauma to the lumbar spine". Mr Armfield submitted that this addition makes no difference to the Applicant's case: the meaning of "discrete injury" can still include a series of discrete injuries. Mr Armfield concluded that the reasonable hypothesis raised in the Applicant's case satisfies the SoP concerning Lumbar Spondylosis, and that the Applicant's lumbar spondylosis should be accepted as "war-caused".

* The Respondent

30. Mr Sylvestre, for the Respondent, submitted that the authorities cited by Mr Armfield were not persuasive because the applicable SoPs in those cases have since been amended. Following Ogston v Repatriation Commission [1999] FCA 342, it is clear that person's claim must be determined "by reference to the law in operation on that day" (paragraph 15). Thus, the applicable SoP is that current on the date of determination. The applicable SoP in the Applicant's case, Instrument No 27 of 1999, requires a "discrete injury" to the lumbar spine. The word "discrete" was not included in the former version.

31. Mr Sylvestre referred to Dr Hopkins' report where he stated:

The defect of the pars interarticularis is known as a spondylolysis and does not exist in this man's case.

Mr Sylvestre submitted that this means Dr Armstrong's comments in 1947 (T4, p 26) suggesting chronic inflammation in the lumbar inter-articular joints were incorrect and that the x-ray report of 5 February 1947 (T4, p 28) recording "No abnormality detected in the thoracic spine, lumbar spine or sacroilac joints" is correct.

32. Mr Sylvestre contended that no spinal abnormality was detected at the time of the Applicant's discharge from the Army. Thus, it cannot be demonstrated that during his Army Service, the Applicant suffered the trauma to his lumbar spine that led to the degree of disability of which the Applicant now complains.

Consideration of Law and Findings

33. The approach to be adopted in cases involving operational, peacekeeping or hazardous service was set out 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) 49 ALD 193 at 206:

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:

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 that his 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.

34. With respect to the third step, determining when a hypothesis is reasonable, the Tribunal notes Heerey J's approach (at 275), which followed the "reasonableness" test approved in Byrnes v Repatriation Commission (1993) 177 CLR 564:

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.

35. In determining the Applicant's claim that his lumbar spondylosis is "war-caused", the first step, therefore, is to decide whether the material before the Tribunal points to a hypothesis connecting the Applicant's lumbar spondylosis with his war service. No fact finding arises at this stage, nor is the reasonableness of the hypothesis at issue. In the Tribunal's opinion, the contemporaneous evidence in the T Documents, in particular the Applicant's recorded complaints of lumbar pain, together with the Applicant's oral evidence and the report of Dr Hopkins (A1) that the Applicant's lumbar spondylosis "has at least been, if not caused by, his activities in the artillery in his war service", all point to a hypothesis connecting the Applicant's lumbar spondylosis with his war service.

36. The second step, following the approach set out in Deledio (1998), is to establish whether there is an SoP in force. In the Applicant's case, the relevant SoP concerning Lumbar Spondylosis is, following Ogston (supra), Instrument No 27 of 1999.

37. The third step is for the Tribunal to decide whether the hypothesis is reasonable by considering whether the Applicant's lumbar spondylosis is consistent with the "template" in the SoP. In particular, is one of the factors set out in paragraph 5 of the SoP related to the Applicant's war service? Mr Armfield contended that the relevant factor is paragraph 5(h) "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". In paragraph 8, "trauma to the lumbar spine" is defined as follows:

"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute 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, where 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.

38. The Tribunal notes the inclusion of the word "discrete" qualifying the word "injury", and that this inclusion postdates the Tribunal decisions cited by Mr Armfield above. "Discrete" is defined in the New Shorter Oxford English Dictionary (1993 edition) as meaning "Separate, detached from others; individually distinct; not continuous or coalescent", and in the Macquarie Dictionary (third edition, 1987) as "1. detached from others; separate; distinct. 2. consisting of or characterised by distinct or individual parts; discontinuous".

39. Mr Armfield argued that a series of discrete injuries would still fall within the definition of "trauma to the lumbar spine" and cited Re Ablett (supra) where the Tribunal said that "a number of repeated injuries can constitute "a trauma"" (paragraph 58). Mr Sylvestre countered that this decision, because it concerned the application of a former version of the SoP, is not persuasive. In the Tribunal's view, as a general proposition, if the Applicant can establish a number of "discrete" injuries which meet the other components of the definition, then the definition will be satisfied. The Tribunal notes two other components of the definition: first, that the discrete injury must cause the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine; and second, these acute symptoms and signs must last for a period of at least seven days following their onset (subject to an exception which is not relevant in this case).

40. The Applicant claims that his lumbar spondylosis was caused by the continual trauma sustained by his back during his service as a gun layer. The Tribunal accepts his evidence that his duties as a gun layer involved continual heavy lifting - specifically lifting each side of the gun carriage off the ground while the gun loader removed the wheels, so that the legs of the gun carriage could rest on the ground in readiness for the firing of the gun. The gun weighed about 17 cwt, and, while only one side of the gun carriage was lifted off the ground at a time, the Tribunal accepts that this was a significant weight for the Applicant, a slightly built man, to handle. The gun carriage was taken off and put back on its wheels about 20 to 30 times a day, on a minimum of three to four days a week while the gun crew were training in Darwin. In addition to gun laying, the Applicant was required to perform other heavy work including digging gun emplacements and slit trenches, sometimes using a jack hammer.

41. The Tribunal notes the Applicant's evidence that after each day of gun drill, he would attend the first aid post where the sergeant would massage the Applicant's back with liniment and provide him with analgesics. The Applicant said that by the end of each day's drill, he was experiencing quite severe pain. In his statement dated 31 March 1999 (A2), the Applicant said pain, tenderness and lack of mobility were constantly present. He also recalled a period of two weeks leave when his back was constantly stiff and causing pain. The Applicant said that even if there had not been any gun drill in the days following, the pain caused by one day's drill would have continued for at least seven to ten days before easing. The Tribunal notes that the Applicant continued performing this painful work because he did not want to be separated from his mates in the gun crew, all of whom were from the same country town and who had enlisted together.

42. As suggested by Mr Armfield, the Tribunal was mindful of s 119(1)(h) of the Act which provides that the Respondent shall take into account any difficulties in obtaining evidence as a result of the passage of time. The incidents in question happened over 50 years ago. The Tribunal was also mindful of s 119(1)(g) which requires the Respondent to "act according to substantial justice and the substantial merits of the case, without regard to legal form and technicalities".

43. The Tribunal finds that the Applicant did suffer a "discrete injury to the lumbar spine" on each day that he undertook duties as a gun layer. After each day's drill, the Applicant had acute symptoms and signs of pain and tenderness with altered mobility for which he sought massage and analgesics from the sergeant at the first aid post. The signs and symptoms referrable to each day's gun laying would endure for at least seven to ten days before easing.

44. Thus, the Tribunal decided that the Applicant satisfies the definition of "trauma to the lumbar spine" in paragraph 8 of the SoP. He also satisfies paragraph 5(h) of the SoP, namely "suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". It follows that the Applicant has met the template for lumbar spondylosis set out in the SoP, and, in accordance with the third step in Deledio (1998), the hypothesis raised is a reasonable one.

45. The fourth and final step required by Deledio (1998) is for the Tribunal to consider, under s 120(1), whether it is satisfied beyond reasonable doubt that the Applicant's incapacity did not arise from a war-caused injury. The Tribunal finds that the Applicant suffered trauma to his lumbar spine during his service as a gun layer in the Army. Thus, the Tribunal is not satisfied beyond reasonable doubt that the Applicant's incapacity did not arise from a war-caused injury. The Tribunal therefore accepts the Applicant's claim for lumbar spondylosis as a war-caused injury or disease.

46. The Tribunal decided to remit the matter to the Respondent to determine, in accordance with GARP V, the degree of incapacity suffered by the Applicant as a result of his lumbar spondylosis, for the purpose of assessing the rate of pension payable to the Applicant.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Senior Member and Dr MEC Thorpe, Member.

Signed: .....................................................................................

Associate

Date of Hearing 8 June 1999

Date of Decision 13 July 1999

Counsel for the Applicant John Armfield

Solicitor for Applicant Dibbs, Crowther & Osborne

Advocate for the Respondent John Sylvestre, Department of Veterans' Affairs