Kopacz and Repatriation Commission [1999] AATA 8 (12 January 1999)

Last Updated: 29 January 1999

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [1999] AATA 8

ADMINISTRATIVE APPEALS TRIBUNAL )

) N o Q96/650

VETERANS' APPEALS DIVISION )

Re ANTHONY JOHN KOPACZ

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Deputy President DP Breen, Presidential Member

Date 12 January 1999

Place Brisbane

Decision The Tribunal affirms the decision under review.

(Sgd) DP BREEN

PRESIDENTIAL MEMBER

CATCHWORDS

VETERANS' AFFAIRS - entitlement - whether applicant's condition is war-caused - whether pre-service training is part of operational service.

Veterans' Entitlements Act 1986 ss 6C(3), 9(1)(e)

Repatriation Commission v Hawkins (1993) 117 ALR 225

REASONS FOR DECISION

12 January 1999 Deputy President DP Breen

1. This is a review of a decision of the Repatriation Commission dated 28 June 1995 as affirmed by the Veterans' Review Board on 21 March 1996 which rejected the applicant's claim that a medical condition which she suffers, namely, thoracic spondylosis, was war-caused within the meaning of the Veterans' Entitlements Act 1986.

2. This matter was heard in Cairns on 5 August 1998. The applicant was represented by Mr C Jensen of Counsel instructed by Messrs MacDonnells, Solicitors and the respondent by Mr J Stoner, Departmental Advocate.

3. The following documents were tendered as exhibits before the Tribunal.

* Exhibit 1 "T" Documents

* Exhibit 2 Photographs of type of backpack used in Army

4. The applicant, Mr Anthony John Kopacz was born on 17 December 1949. When he left school the applicant worked as a carpet layer for two years until he was called up for service. His first experience of the Army was basic training in the Puckapunyal Catering Corps and then, with one or two deviations along the way, he moved on to Canungra for the jungle training course.

5. The applicant's preparation for the Vietnamese theatre of war was gruelling. He was required to participate in exercises and manoeuvres conducted to improve the fitness of outgoing troops. During these marches, the applicant was required to carry very heavy backpacks of approximately 30 kilograms in weight and, moreover, being one of the tallest men in his group, he was required to carry the ammunition box on top of this.

6. The applicant recalls that with all this on his back, he had to run up steep hills and crawl around. He said during this training period of approximately twelve weeks he would be wearing the pack and the ammunition box for about five or six hours per day, every day.

7. The applicant estimated that for half the time he was on his jungle training course, he would have been wearing the pack. He said that towards the end some of the exercises lasted for three or four days.

8. The applicant stated in his evidence that the problems caused by the pack were not due to any rubbing or "pressing in" but rather due to the sheer weight of it and the amount of time for which it had to be worn. In his evidence the applicant was certain that his injury was not caused or aggravated by his actual service in Vietnam rendered between 29 January 1971 and 4 November 1971 with the Catering Corps. Rather, his evidence before this Tribunal and the Veterans' Review Board was that his injury was caused whilst training at Canungra.

9. The applicant also gave evidence that he enrolled in the Catering Corps so that he would not be required to carry a backpack or an ammunition box whilst in Vietnam. Furthermore, the applicant said that when he reached Vietnam he could still feel the straps on his back from the pack.

10. The medical evidence at the hearing favoured the view that the applicant does indeed suffer from the condition of thoracic spondylosis. The report of Dr Mark Lloyd found at Folio 35 of the "T" Documents is as follows:

"This is to state that Mr Tony Kopacz has suffered with a major degree of discomfort in relation to his cervical and thoracic spine for several years and the condition would appear to be worsening.

X-ray's were performed at the Stawell Hospital in June of 1995 and a copy of these results is included with this letter. As stated in the report the appearance was consistent with juvenile discogenic disease.

However it should be noted that Tony served in Vietnam as a soldier and was required to carry large amounts of ammunition weighing many kilograms on his back for long periods of time. I believe that this may well have been a contributing factor to the condition that he now finds himself in, and I believe that review of his case is warranted. If his Vietnam service has not been the major cause of his back problems, I feel that it has been a very major aggravating factor."

11. However, the difficulty with the applicant's case is not medical or factual but rather legal. The applicant's injury, according to his own evidence, is not referrable to events occurring during his operational service but rather during his preparation for that service while he was still in Australia.

12. The relevant factor in the Statement of Principles for Thoracic Spondylosis is most likely factor (k) which requires that the person suffered a trauma to the thoracic spine before the clinical worsening of thoracic spondylosis. As a result of the operation of Clause 6 of the Statement of Principles, factor (k) applies only to material contribution to or aggravation of thoracic spondylosis where the person's thoracic spondylosis was suffered or contracted before or during (but not arising out of) the person's relevant service.

13. The Statement of Principles refers us to subsection 9(1)(e) of the Veterans' Entitlements Act 1986 which provides that an injury or disease is war-caused if:

"(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;"

14. As a result of this provision, the applicant's condition can only be war-caused if it was aggravated by his eligible war service regardless of whether it was contracted before or during that service.

15. Unfortunately, the applicant's eligible war service did not commence until he was deployed to Vietnam. The delineation of operational service post World War II is a function of Section 6C of the Act and in particular subsection (3) is relevant for our purposes.

"(3) For the purposes of subsection (1), a member of the Defence Force is, subject to subsection (4), taken to have rendered continuous full-time service in an operational area during the period commencing on:

(a) if the member was in Australia on the day (relevant day) from which the member, or the unit of the member, was allotted for duty in that area - on the day on which the member left the last port of call in Australia for that service; or

(b) if the member was outside Australia on the relevant day - on that day;"

16. The applicant's Counsel brought to my attention the case of Repatriation Commission v Hawkins (1993) 117 ALR 225, a Full Federal Court judgment which determined that the applicant's smoking habit, which commenced on his journey to Vietnam, arose out of his service because the voyage to Vietnam was inseparably bound to the operational service rendered in Vietnam.

17. Similarly, in this case Mr Jensen of Counsel has submitted that the applicant's training for Vietnam, in particular the jungle training at Canungra, was an inevitable and therefore related part of his operational service in Vietnam. Whilst this view accords with commonsense, I am prevented by the amendments in the Act since the decision in Hawkin's case, in particular by the provision of Section 6C(3), from applying a more liberal approach to the case.

18. Therefore, I must conclude that the applicant's thoracic spondylosis, although a condition undoubtedly contributed to by his training in Canungra, is not a war-caused condition under Section 9 of the Act.

19. For the reasons given above, the Tribunal affirms the decision under review.

I certify that this and the 5 preceding pages are a true copy of the decision and reasons for decision herein of Deputy President DP Breen.

Signed: Susan Gray

Associate

Date/s of Hearing 5.8.98

Date of Decision 12.1.99

Counsel for the Applicant Mr C Jensen

Solicitor for Applicant Messrs MacDonnells

Counsel for the Respondent Mr J Stoner, Departmental Advocate

Solicitor for the Respondent