Picken and Repatriation Commission [2000] AATA 12 (14 January 2000)

Last Updated: 21 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 12

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV1998/1108

VETERANS APPEALS DIVISION ) V1998/1322

Re BRUCE PICKEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date 14 January 2000

Place Melbourne

Decision The decisions under review are set aside and in substitution IT IS DECIDED- i) the back injury of the applicant be described as 'intervertebral disc lesion' & ii) a reasonable hypothesis exists connecting this injury with service & iii) at all times relevant the applicant has had an entitlement to special rate pension.

........Sgd. Mr J. Handley........

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - back injury - diagnosis as intervertebral disc prolapse or intervertebral disc lesion - whether war-caused - special rate pension - capacity for work - decisions set aside.

Veterans' Entitlements Act 1986 ss.24, 28 and 120.

Statement of Principle Instrument No. 130 of 1996

REASONS FOR DECISION

14 January 2000 Mr J. Handley, Senior Member

1. On 25 March 1997 and 30 January 1998 the respondent made decisions with respect to the acceptance of various injuries and the rate of pension payable to Mr Picken. On 30 July 1998 the Veterans' Review Board ("VRB") affirmed some of the decisions previously made by the respondent but varied a decision made by the respondent with respect to entitlement to general rate pension.

2. The appeal to this Tribunal was confined only to two decision of the VRB, namely-

i) a decision to vary a diagnosis of "sprain or strain of the back region" and substitute a diagnosis of "intervertebral disc prolapse" and affirm this latter injury as not war-caused and

ii) a decision to grant pension at 60% of the general rate.

3. The applicant sought, in these proceedings, to have the back injury accepted as war-caused and be entitled to pension at the special rate.

4. Upon the hearing Mr Hyde appeared on behalf of Mr Picken and Mr Hall appeared on behalf of the respondent.

5. An application made by Mr Hall to adjourn the hearing was refused. Mr Hall submitted that he had not had the opportunity to obtain consultant medico-legal opinion. This issue in part was dealt with at a Directions Hearing with Deputy President Forrest in October 1999. I was mindful, when denying the respondent's application for an adjournment, that this application had been fixed for hearing for many weeks, the applicant had travelled to Melbourne from Colac for the hearing and there had been no indication by the respondent between the date of the Directions made by Deputy President Forrest and the date of hearing that it was intending to request the proceedings be adjourned.

Back Injury

6. With respect to the applicant's back injury the issue to be determined was whether the injury was war-caused and if it was, whether it be described as "intervertebral disc prolapse" for which there is a Statement of Principle, or "intervertebral disc lesion" for which there is no Statement of Principle.

7. Statement of Principle Instrument Number 130 of 1996 defines intervertebral disc prolapse as meaning-

"...protrusion, herniation or rupture of an intervertebral disc of the cervical, thoracic or lumbar spine, causing local pain and stiffness, and/or pain and paraesthesia radiating into the upper limbs, in the case of cervical disc prolapse, or into the lower limbs, in the case of lumbar disc prolapse...."

8. The applicant is presently 52 years of age having been born on 11 March 1947. Mr Picken is a married man with teenage children and lives in Colac, a rural town approximately 2 and a half hours west of Melbourne.

9. Prior to National Service in Vietnam, Mr Picken completed a five year electrical apprenticeship. Two days after completion of the apprenticeship he commenced training at Puckapunyal and Singleton. In May 1971 he was posted to Vietnam, where he was a member of a unit engaged in assault combat, demolition of mines and building bunkers and fences.

10. On 12 June 1971 Mr Picken was engaged in "Operation Overload" where he and others were lifted by helicopter into a "contact" area. Mr Picken referred to this event as being a "hot insertion". He said the landing area was not fully cleared and there was very high savannah grass. The area was apparently vulnerable to enemy fire and the helicopter pilot decided that it was too dangerous to land. He and others were then directed to jump from the helicopter to the ground. He estimated he jumped between 4 and 6 feet. He was carrying a five day pack, which he estimated to weigh 70 pounds and which comprised full battle gear, ammunition, a rifle, bedding, water and food rations.

11. Upon landing Mr Picken recalled that he immediately fell backwards onto his pack and felt excruciating pain across his lower back. He also recalled that he was stunned. Because of the high possibility of enemy presence he and others were required to evacuate the area as quick as possible. He was also aware that 11 other persons had been killed in this district a short time before he jumped from the helicopter.

12. There was no medic attached to his unit and the first opportunity to report the event was some 24 hours later when he and others were resting. Mr Picken recalled that most other persons in the unit were complaining of aches and pains and were all anxious. It was the first experience that his unit had had of combat. Mr Picken recalled that the complaints of aches and pains was assumed to be normal conversation following a military operation. Over the next two weeks Mr Picken recalled that his back pain "plateaued". Thereafter the pain commenced to settle but remained present. He completed a tour of Vietnam over the next 6 months and then returned to Australia.

13. Subsequently he has suffered recurring episodes of back pain and on occasion's back pain in higher regions of his spine.

14. In 1980 Mr Picken attended Mr Richard McArthur, an orthopaedic surgeon in Geelong. At that stage Mr Picken was self-employed as an electrician, contracting to the Ford Motor Company in Geelong. He attended Mr R McArthur at the request of his income and accident insurer. The applicant said that he explained to Mr R McArthur that he felt back pain after an episode of bending over at work to lift a bag of tools. In approximately 1982 Mr Picken recalled that his lower back pain became so severe that he negotiated with Ford Motor Company to perform light maintenance work only because he was unable to cope with the physical demands of his former work.

15. By 1995 Mr Picken was unable to work at all as an electrician but was able to secure a light job with a local undertaker working 6 hours per week. Eventually Mr Picken could not perform that work, however, over the last 12 months he has worked as a volunteer at the adult day activity centre which is annexed to the Colac Hospital.

16. In cross-examination Mr Picken said that there were no medical officers available immediately after the episode when he jumped from the helicopter in Vietnam. He said only stretcher-bearers were available and it was many days until he first spoke with a medic.

17. Mr Picken said that when he landed onto his feet he immediately fell backwards across his pack. He said he felt pain in his lower back. He also said that he felt the pain at the time that he landed across his pack.

18. Immediately after the event Mr Picken said that he waited in the savanah grass for approximately half an hour and then travelled 20 or 30 yards on foot. He then completed patrol duties for the remainder of the day, wearing his backpack. He recalled the presence of pain. He did not give this history to Mr R McArthur in 1980 because he attended Mr R McArthur only by reason of the back pain associated with lifting the bag of tools at work. Mr Picken did not then associate the back pain with the episode in Vietnam.

19. On 11 October 1968 Mr Picken attended Dr Hugh Seward who was then his general practitioner in Geelong. The notes of Mr Seward were received into evidence and record at that date

"L side back ache - sometimes about level of SP of T-12 L-1.

Radiates at times to back of L thigh and behind knee.

Bending now causes back ache (illegible) lifting.

On and off 10/12 since lifted a stove - 4 days RIB with back ache."

20. Mr Picken was asked to comment upon whether the symptoms then complained of were similar to the symptoms that he complained of to Mr R McArthur. Mr Picken said he could not recall attending Dr Seward on this occasion, however he said that he had received some treatment for "juvenile osteochrondrosis" which he understood to be "growing pains".

21. Mr Picken was referred in June 1999 by his solicitors to Mr John McArthur, an orthopaedic surgeon in Melbourne, for the purposes of these proceedings. Mr J McArthur has a history of the applicant's back pain commencing from service in Vietnam. Mr Picken was asked to explain why he did not refer to the 1968 episode when he attended Dr Seward and he replied that the earliest back pain he could recall was as a result of the episode in Vietnam when he jumped from a helicopter.

John McArthur

22. Mr J McArthur examined the applicant at the request of his solicitor on 21 June 1999 and provided a report dated 23 June 1999. Mr J McArthur has been in practice as a surgeon for 46 years and was previously a senior visiting specialist in surgery to the Department of Veterans' Affairs for a period of 30 years. Mr J McArthur noted that both he and Mr R McArthur (no relation) use the term "prolapse" and "lesion" throughout their reports. Mr McArthur said that the term "lesion" described a more general diagnosis with respect to a disc condition or injury. The term "prolapse" was more specific and was a better description of a particular disc injury. He said a disc could be injured by rupture, herniation, bulge, protrusion or prolapse. Any of these consequences could be determined upon CT scan or MRI scan. The term "lesion", he said, is used by doctors in the absence of a complete clinical picture (including radiological films). The applicant has not ever had a CT or MRI scan.

23. When he was shown the definition of "disc prolapse" as it appears in the Statement of Principle, Mr McArthur said he would have applied that definition to a "disc lesion".

24. Nonetheless the absence of a complete clinical picture and certainty by radiological findings did not effect a patient's treatment or their symptoms. Indeed he said that a CT scan or an MRI scan was not in the circumstances justified because in his opinion the applicant had been and continues to be adequately treated. He said radiological intervention in the present circumstances would only be of assistance for the applicant's litigation against the respondent.

25. It was his opinion, based on many patients that he has seen - including veterans - that when a person falls from a height onto their feet a complex series of "longitudinal forces" emerge, commencing in a person's feet radiating to their hips and then into their spine, often producing fractures, dislocation or compression type injuries. In the case of Mr Picken, Mr J McArthur noted that he was wearing a pack estimated to weigh in the vicinity of 70 pounds. He said this would have had a far greater consequence upon the applicant's spine than jumping without it and would be the equivalent of someone jumping from a greater height than 4 to 6 feet without wearing a pack. He said it was common in his experience for persons who have been exposed to a similar event to have suffered an intervertebral disc prolapse or intervertebral disc lesion. The typical symptoms he said were commencement of low back pain, restricted movement, leg pain, (with or without pins and needles) and eventually some remission from pain but thereafter constant nagging pain.

26. Mr J McArthur noted that the applicant had been referred to doctors before Vietnam for back pain at T-12 - L1, which he said was at a higher level than L5 - S1, being the site of the applicant's present pain. In those circumstances he said the back injury from Vietnam may be distinguished from the site of back pain previously experienced. Additionally he said that in his experience low back injuries are aggravated by lifting or repeated bending or lifting and bending together.

27. It was his opinion that if the Tribunal were to decide, as a fact, that the applicant did suffer from an "intervertebral disc prolapse", that the definition of "trauma" within the applicable Statement of Principle had been satisfied. Alternatively, if the Tribunal were to decide as a fact that the applicant suffered from an intervertebral disc lesion he would be satisfied that a reasonable hypothesis exists connecting the applicant's service in Vietnam with the injury.

28. In cross-examination Mr J McArthur was challenged upon his opinion that the applicant's injury arose by reason of him falling onto his feet and suffering the consequences of longitudinal forces. Mr J McArthur was told by Mr Hall that the applicant's evidence was that he felt pain as he fell across his pack. Mr J McArthur said this was of no consequence. He said that the applicant would be unlikely to be able to distinguish in the period of time between falling onto his feet and falling onto his pack as to when the back pain commenced. In any event Mr J McArthur was impressed by the applicant being exposed to a sudden violent movement of his spine either by falling onto his feet or falling across his pack or a combination of both. He was satisfied that the applicant had suffered a "trauma" within the meaning of the Statement of Principle. When he learnt that the applicant said in evidence that he had undertaken patrol duties while carrying his pack on the same day as the above episode, Mr J McArthur said that the injury would be regarded as being within the "middle range of severity". He concluded that on this history the "trauma" was probably not severe enough to have caused a disc rupture but may have been sufficient to cause a herniation.

29. Mr J McArthur was adamant that the applicant's presentation to Dr Seward in 1968 was completely unrelated to the episode in Vietnam. He said the injury in 1968 was concerned with the lower end of the applicant's thoracic spine and was a separate and distinct injury from the lumbar injury suffered in Vietnam. He said the level of the injury in 1968 and the level of the injury from the 1971 episode could not be mistaken.

30. With respect to the presentation to Mr R McArthur in Geelong in 1980 Mr J McArthur said that the history of bending and lifting is commonly seen in persons with a pre-existing low back injury and in his opinion the episode then caused a temporary aggravation of the pre-existing lumbar injury.

Conclusion - Back Injury

31. From the evidence heard and from the documents read I am unable to find, on the balance of probabilities, that the applicant does suffer from an intervertebral disc prolapse.

32. I note that the term "prolapse" and "lesion" has been used by both Mr R McArthur and Mr J McArthur. Whilst I am impressed with the description of these terms given by Mr J McArthur and the likely occasions when those terms would be used in clinical practice, I can detect nothing from the report of Mr R McArthur (who was not called to give evidence) which would permit me to find on the probabilities that the applicant suffered from a prolapse.

33. Additionally, in the absence of any contemporary or adequate radiological findings or film it is not possible to be given any assistance as to whether the applicant suffers from a prolapse, disc rupture, herniation, protrusion or bulge. In the absence of radiologic data, a finding of the specific injury of 'prolapse' is not warranted and a more appropriate description of the injury would be 'lesion' (refer evidence of Mr J. McArthur at paragraph 22).

34. I am therefore satisfied on the balance of probabilities that this term should be applied to the applicant's low back injury. I am satisfied that the material before the Tribunal points to a hypothesis connecting the injury of interverterbal disc lesion with the applicant's service in Vietnam, particularly having regard to the episode described where the applicant jumped from a helicopter wearing a 70 pound pack. I am satisfied that the connection between service and the injury of intervertebral disc lesion is a hypothesis which in all of the circumstances is reasonable.

35. It follows therefore that the decision under review insofar as it applied to the applicant's back injury should be set aside and in substitution it is decided that the back injury be described as "intervertebral disc lesion" and at all relevant times a connection exists as a reasonable hypothesis between the applicant's service in Vietnam and the occurrence of that injury.

36. I am satisfied also for the purposes of s.120(1) of the Veterans' Entitlements Act 1986 ("the Act") that the applicant's intervertebral disc lesion should be determined as a war-caused injury because I cannot be satisfied, beyond reasonable doubt, that there is no sufficient ground for making this determination.

37. These conclusions have been reached under provisions of s.120 of the Act because as I referred to earlier there is no Statement of Principle with respect to the condition of "intervertebral disc lesion".

General Rate Pension

38. The decision of the VRB insofar as it decided that general rate pension should be increased to 60% was also the subject of the review before this Tribunal.

39. However, subsequent to the appeal hearing before the VRB, the applicant has ceased all forms of employment and undertakes activity now only as a volunteer on a part time basis at an adult day centre annexed to the Colac Hospital.

40. Ms Jill Crookes, a psychologist in Geelong, has been treating Mr Picken. She provided reports dated 31 October 1997, (found within the documents lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975), and 20 July 1999.

41. Ms Crookes concluded in her most recent report-

"Mr Picken continues to experience severe psychological and emotional problems which impact significantly on his occupational functioning. He is unable to work more than 8 hours per week, as he is clearly experiencing difficulties working 2 hours per week in a voluntary capacity. I do not anticipate that this will alter in the foreseeable future. Mr Picken's emotional health and well-being has essentially plateaued in the last 18 months."

42. Mr Picken was examined by Dr W Cooper at the request of the respondent on 13 May 1999. In a report of the same date Dr Cooper concluded-

"If the intervertebral disc prolapse is accepted as a war caused disability then he would not be able to work for more than 8 hours unless the following physical restrictions were available to him or put in place with future employment. These are:

* Part sedentary work facilities so that he may sit or stand at will and by varying his posture alleviate episodes of aggravation of his intervertebral disc prolapse.

* No work below waist level (also to prevent aggravation).

* Material handling not to exceed 5 kgs by lifting pushing or pulling (to avoid this weight being transmitted through his spinal column and so aggravate his current lumbago and sciatica)."

43. Mr Picken was examined by Dr Barry Kenny, psychiatrist, at the request of the respondent on 4 June 1999. In a report dated 23 June 1999 Dr Kenny did not specifically refer to the capacity of the applicant to undertake more than 8 hours work per week but he did conclude that-

"I have no doubt but that its caused him some difficulties in terms of his work capability, but I wouldn't see him as completely unfit for work because of his post-traumatic stress disorder."

44. The relevance of considering the applicant's entitlement, if any, to special rate pension, is set against the background of the decision made by the VRB with respect to general rate pension and having regard also to the acceptance by the respondent of the applicant's condition of post-traumatic stress disorder as war-caused by reason of his service in Vietnam.

45. Ms Crookes was not called to give evidence as the respondent was prepared to accept the contents of her report. Dr Kenny was not called by the respondent but the reasons for this were not given. Dr Cooper was not called (I presume because his opinion with respect to the applicant's capacity for work was dependent upon a finding as to whether the lumbar injury was war-caused).

46. Mr Hall conceded that if the applicant's lumbar injury was accepted as war-caused, then the veteran would be assessed at no less than 70% incapacity within the meaning of s.24(1)(a) of the Act. Mr Hall also conceded that by reason of any incapacity the applicant has suffered loss of remunerative income.

47. Having regard to the evidence heard from the applicant, having observed him give his evidence and having regard also to the medical reports filed and read, I am satisfied that the applicant does qualify for special rate pension. I am impressed by the applicant's work history and note that despite an inability to continue to be engaged in self employment the applicant did attempt lighter employment and secured the position of maintenance electrician with the Ford Motor Company in Geelong. He worked in this position for many years until he reached a stage where the extent of pain and absence of mobility prevented him from undertaking further salaried employment. Despite the continuing presence of pain, the applicant sought and obtained casual or part-time employment with an undertaker in Colac for an average of 6 hours per week. The activity in that employment was eventually beyond the applicant and he has in recent times worked as a volunteer for approximately 2 hours per week at an adult day centre annexed to the Colac Hospital.

48. Despite the qualifications to the opinion expressed by Dr Cooper, I am satisfied - having regard to the provisions of s.28 of the Act, that the applicant should be regarded as totally and permanently incapacitated within the meaning of s.24(1)(b) of the Act.

49. In closing submissions Mr Hall referred to the clinical notes of Dr Nice, who has treated the applicant since 1984. Mr Hall referred to an entry of 27 March 1987, where the applicant presented with "sharp pain in lower back" as a result of having "slipped at work". I assume that Mr Hall referred to this event to demonstrate that the applicant could not satisfy his incapacity for work as being "alone" by reason of war-caused injury. I am not prepared to have regard to the notes of Dr Nice because they were not put to the applicant in cross-examination. In any event it would appear from the notes that Dr Nice recommended to the applicant that he work light duties for two weeks and it would appear also that the presenting pain was found at T-11 - T-12, being a site unrelated to the war-caused lumbar injury. There is nothing in the notes which would indicate that the applicant has suffered any further incapacity or indeed that that episode was responsible for the incapacity of the applicant.

50. In all of the circumstances I am satisfied that the decision under review insofar as it concerned general rate pension should be set aside and in substitution I am satisfied that at all times material the applicant has been entitled to pension at the special rate.

I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member

Signed: .........Carolyn Irons ........................................

Secretary

Date/s of Hearing 13 December 1999

Date of Decision 14 January 2000

Counsel for the Applicant Mr Hyde

Solicitor for the Applicant

Counsel for the Respondent Mr Hall

Solicitor for the Respondent