Smith and Repatriation Commission [1999] AATA 969 (1 December 1999)

Last Updated: 21 December 1999

DECISION AND REASONS FOR DECISION [1999] AATA 969

ADMINISTRATIVE APPEALS TRIBUNAL )

) No D1999/17

VETERANS' APPEALS DIVISION )

Re TREVOR DONALD SMITH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr. D.W. Muller, Senior Member

Date 1 December 1999

Place Darwin

Decision The Tribunal sets aside the decision under review and in substitution therefor determines that the cervical spondylosis suffered by Trevor Donald Smith is war-caused with effect from 22 January 1997. The matter is remitted to the respondent for assessment.

..............(Signed)................................

Senior Member

CATCHWORDS

Veterans' Affairs - disability pension - cervical spondylosis - statement of principle - credibility of applicant .

REASONS FOR DECISION

1 December 1999 Mr. D.W. Muller, Senior Member

1. This is an application to review a decision to reject a claim for cervical spondylosis as being war caused.

2. The applicant, Trevor Donald Smith, was born on 15 February 1946. He served in the Australian Army including operational service in Vietnam between 22 April 1966 and 11 May 1967.

3. It is common ground that Mr. Smith suffers from cervical spondylosis. Mr. Smith first noticed symptoms of cervical spondylosis in about 1996. He went to a local doctor and eventually had his neck x-rayed on 8 April 1997. The x-ray revealed that he had long standing degenerative disc changes present at the C3/4 and C5/6 levels. There were also early bilateral encroachments on the exit neural foramen on each side. The degenerative changes, according to the x-ray report, had been present for many years. The x-ray report also revealed that the other cervical discs appeared to be normal and no destructive lesions were seen in the visualised bones.

4. The fact that early degeneration was present in two discs but not in the rest of the cervical spine led to an enquiry as to whether or not there had been a specific injury to the spine. There is a medical report at page 40 of the T documents dated 18 April 1997 in which the question of injury is raised. The report provides the opinion that the early degeneration was probably related to an injury suffered by the applicant in Vietnam in 1996.

5. Mr. Smith gave evidence to the Tribunal that on no occasion in his entire life has he sustained an injury to his neck other than an injury which occurred on 21 June 1966 in Vietnam. He told the Tribunal that on that day he was filling 20 litre plastic jerry cans with water. The cans were then being lifted to a level higher than that on which he was filling them. The empty cans were being thrown back down to him. On an occasion during that day, the person above threw an empty can before he was ready to catch it and the base of the can hit him on the head. His evidence was that he felt dizzy but that he recovered and continued to work. He did not go to the RAP because it did not operate in the afternoon. He thought it would probably be alright. The following morning, 22 June 1966, his neck was very sore. He was in pain. He was not a person who normally went to the RAP for any small reason (the records corrroborate that), but on this occasion he was suffering pain and went to the RAP.

6. Army records show that he visited a doctor on 22 June 1966. The record is to the effect that he was diagnosed as having a strained left shoulder and that the treatment should be Dencorub. Mr. Smith explained to the Tribunal that he had complained of a sore neck but for some reason the doctor recorded that he was complaining of shoulder pain. In any event he took the Dencorub and used it, but it did not have any effect. He took the pain killers but the pain lasted for two to three weeks. The pain eventually went away.

7. On discharge Mr. Smith was medically examined for hearing loss in February 1971. At that interview he also mentioned that he was hit on the head by a jerry can while on service but suffered no continuing ill effects from it.

8. The proposition as to whether or not the incident in 1966 could have caused the degeneration which became apparent in 1996, but which had been present for a long time, was put to Dr. R. Olsen, an orthopaedic specialist, on 19 January 1999. He said that the long standing degeneration in C3/4 and C5/6 discs "are most likely related to the injury he sustained and reported in Vietnam in 1966". Dr. Olsen clearly saw nothing outrageous about such a claim.

9. The question comes down to whether or not Mr. Smith's account of the jerry can incident should be accepted. Mr. Smith seems to me to be a decent, honest, straight-forward person. His account is corroborated by the Army records. I accept that he suffered a trauma to his neck in 1966, while serving in Vietnam and that he has never had any other trauma to his neck.

10. The further question arises as to whether or not what the applicant suffered was indeed a trauma sufficient to satisfy the Statement of Principle relating to those factors which must be present before cervical spondylosis can be accepted as being war caused. The Statement of Principle relevant in this case is the suffering of trauma to the cervical spine before the clinical onset of cervical spondylosis. The suffering of a "trauma to the cervical spine means an injury to the cervical spine caused by the force of an extraneous physical or mechanical agent that causes the development within 24 hours of the injury being sustained of acute symptoms and signs of pain, tenderness and altered mobility..... where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs...."

11. In my view, his trauma to the cervical spine meets the Statement of Principle. He was experiencing pain within 24 hours, in fact the following morning when he went to the doctor and suffered symptoms for some two to three weeks after the injury occurred.

12. I find that there is a reasonable hypothesis linking the applicant's service in Vietnam with the cervical spondylosis from which he now suffers. I could not be satisfied beyond reasonable doubt that there is no link. I find that the applicant's cervical spondylosis is war caused with date of effect from 22 January 1997.

13. The decision under review is set aside.

14. The matter is remitted to the respondent for assessment.

I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein ofMr. D.W. Muller, Senior Member

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

R. Loftus, Associate

Date/s of Hearing 1 December 1999

Date of Decision 1 December 1999

Solicitor for Applicant Mr.B.L. Johns

Solicitor for the Respondent Mr. G. Doube