Bignell and Repatriation Commission [2000] AATA 249 (31 March 2000)

Last Updated: 14 April 2000

DECISION AND REASONS FOR DECISION [2000] AATA 249

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/229

VETERANS' APPEALS DIVISION )

Re MURRAY ROSS BIGNELL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member M D Allen

Date 31 March 2000

Place Sydney

Decision The decision under review is set aside and this matter remitted to the Repatriation Commission with the following directions, namely: 1. That the Applicant, Murray Ross Bignell, suffers from the war-caused diseases of hypertension and lumbar spondylosis. 2. Pension is to be paid to the said Murray Ross Bignell for incapacity occasioned by all war-caused injuries and diseases at 100% of the General Rate as and from 28 January 1997 up to and including 18 August 1999, and thereafter at the Intermediate Rate specified by section 23 of the Veterans' Entitlements Act 1986.

(Sgd) M D ALLEN

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

Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS - Application for pension for hypertension and lumbar spondylosis. Applicability of relevant SOPs. Whether evidence sufficient to justify an hypothesis that initiating trauma led to later disc prolapse and subsequent lumbar spondylosis. Assessment of rate of pension. Activity on one's own account even if otherwise unemployable can amount to remunerative work.

Veterans' Entitlements Act 1986 - s6C, subss120(1), (3), (6), s120A

Repatriation Commission v Deledio 83 FCR 82

McKenna v Repatriation Commission 86 FCR 144

East v Repatriation Commission 16 FCR 517

Repatriation Commission and Owens 70 ALJR 904

Sheehy v Repatriation Commission 41 ALD 205 distinguished

REASONS FOR DECISION

31 March 2000 Senior Member M D Allen

1. By application lodged 16 February 1999 the Applicant sought review of a determination by the Respondent made 12 September 1997 which determination inter alia refused his claim to have the diseases of hypertension, lumbar spondylosis and chronic airflow limitation recognised as being war-caused diseases. The decision of the Repatriation Commission as relates to the said diseases was appealed to a Veterans' Review Board and that Board on 26 October 1998 affirmed the decision under review.

2. When this matter came on for hearing before me on 21 March 2000 the Respondent conceded that the Applicant's hypertension was a war-caused disease and the Applicant's counsel did not address any submissions regarding chronic airflow limitation. The only matters before the Tribunal were therefore the Applicant's lumbar spondylosis and the rate at which pension should be paid.

3. As the Applicant had operational service as that term is defined in s6C of the Veterans' Entitlements Act 1986 (the VEA) being service in the Republic of South Vietnam between 8 February 1969 and 3 September 1969 inclusive, the more favourable standards of proof as set forth in subs120(1) and subs120(3) of the VEA apply to this matter. Those subsections read inter alia:

"(1) Where a claim under part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

(3) In applying subsection (1) ... in respect of the incapacity of a person from injury or disease, ... related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) ...

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person."

4. Subsection 120(6) of the VEA provides that no onus of proof in any matter is imposed upon either of the parties to a review.

5. As the Applicant's application to the Respondent was lodged after 1 June 1994, namely on 28 April 1997, s120A applies to the determination of his claim. That section provides inter alia that for an hypothesis, as referred to in subs120(3), to be reasonable it must conform to a Statement of Principles (SOP) issued by the Repatriation Medical Authority pursuant to subs196B(2) of the VEA.

6. The manner in which the Tribunal should approach its task in determining a claim where an SOP has been issued was set forth by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82 at 97, namely:

"1. The Tribunal must consider all the material which is before it 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). ....

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 at this 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."

7. In considering whether the material does raise an hypothesis, nothing in Deledio supra nor the decision of the Full Federal Court in Repatriation Commission v Bey 79 FCR 364 detracts from the force of what was said in East v Repatriation Commission 16 FCR 517, namely that in ascertaining whether a reasonable hypothesis exists, the Tribunal is not required to choose between competing medical theories. However, as was pointed out by the High Court in Repatriation Commission and Owens 70 ALJR 904, whether material raises a "reasonable hypothesis" for the purposes of s120(3) is a question of fact for it involves no more than a determination whether an hypothesis of connection is reasonable. As pointed out above, however, the insertion of s196B and s120A into the VEA affects the determination of whether an hypothesis is reasonable or not.

8. In this matter the Applicant claimed for the condition of lumbar spondylosis. At the time he lodged his claim with the Repatriation Commission the SOP in force regarding lumbar spondylosis was Instrument No 165 of 1996. Subsequent to the determination of the Applicant's claim by the Repatriation Commission on 12 September 1997 and a new instrument, namely No 27 of 1999, was issued and that instrument is still in force. During the course of this matter, however, it was necessary to consider the SOPs relating to intervertebral disc prolapse. At the time of the original decision, intervertebral disc prolapse was covered by Instrument No 130 of 1996. That SOP was amended by Instrument No 92 of 1997 which is dated 14 November 1997. That is to say, the amending instrument was issued after the determination of the Applicant's claim by the primary decision-maker.

9. In Keeley v Repatriation Commission Heerey J determined that when the Administrative Appeals Tribunal considered a matter on "appeal" from the Veterans' Review Board, the SOP to be applied was that SOP in force at the time of the Applicant's original application to the Repatriation Commission. In this matter therefore if Keeley correctly states the law, the only SOPs to which I have to have regard are Instruments No 130 of 1996, so far as relates to intervertebral disc prolapse, and No 165 of 1996 relating to lumbar spondylosis. Keeley is, however, on appeal to the Full Court of the Federal Court. In McKenna v Repatriation Commission 86 FCR 144, the Federal Court decided that an hypothesis may be upheld by more than one Statement of Principle and, if it is necessary, to have regard to what was termed a "sub-hypothesis" in order to maintain the hypothesis connecting the injury or disease with the circumstances of the Applicant's service, then it is necessary that both hypothesis and sub-hypothesis conform to the relevant SOPs.

10. In the instant case it means that if an hypothesis connecting the Applicant's lumbar spondylosis with his service was founded upon an intervertebral disc prolapse then both the SOPs relating to lumbar spondylosis and intervertebral disc prolapse must be met. In this matter, however, for the view I take of the evidence before me, I do not consider it necessary to reserve my decision until the handing down of the judgment in the appeal from Keeley v Repatriation Commission supra.

11. The Applicant was conscripted into the Army on 4 October 1967. On 3 February 1969 he departed Australia for South Vietnam where he served until 3 September 1969 when he was evacuated as a casualty having suffered multiple fragment wounds.

12. The incidents giving rise to the ultimate claim for lumbar spondylosis occurred shortly after the Applicant's arrival in South Vietnam. He was travelling in an armoured personnel carrier (APC) and, as he was the section machine gunner, he was standing in an open hatch of the APC facing towards the rear and manning his machine gun. The APC hit a stump or some other obstruction and came to a rapid stop. The Applicant was slammed forwards, hurting his back on the front portion of the open hatch. He was not the only soldier injured in this incident; his Platoon Sergeant suffered head injuries and was medically evacuated by helicopter.

13. Immediately after the accident, the Applicant felt pain in his back and was treated by the Platoon Medic. It was noted that he had suffered bad bruising and lacerations but as his unit was on active operations he had, as he put it, "simply to get on with it".

14. In evidence the Applicant stated that he had back pain definitely for two days, including numbness in his legs, but he could not remember the pain lasting longer than the two days, but his memory is unclear and his unit continued on active operations for another two to three weeks before returning to the Task Force Base at Nui Dat.

15. The Applicant did state that his back was sore after returning to the base and he was unable to indulge in any sporting activities on that return.

16. In evaluating the Applicant's evidence, I note that he also has recognised as a war-caused disease a post traumatic stress disorder which has in turn led to a dependence on alcohol. He stated that his memory is not "real good" and his memory loss was attested to by Dr M Geoffrey Miller, Consultant Physician, who examined the Applicant.

17. The Applicant's version of how he came to injure his back in South Vietnam was not really disputed by the Respondent and, in any event, it is confirmed by his Section Commander at the time, Mr Hinchey, in a statement which is contained at Document T21 in the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal 1975.

18. After return to Australia and discharge from the Army, the Applicant returned to his pre-enlistment occupation as a bread carter for two and a half years, and then returned to the family dairy farm. He has continued to run that farm and other farms which he has purchased since that date.

19. Although the Applicant did play some sport after he returned from South Vietnam, he commenced to have back pains relatively soon after his discharge. His wife, in a statement (T25), states that "His back problems began early in our married life", and the evidence is that the Applicant was married in 1970.

20. At a time which the Applicant places between 1979 or 1984, he cannot be more precise, the Applicant, whilst chasing a cow, suffered debilitating back pain, as he put it "his back just went" and he fell over. He was taken to hospital in Taree by his wife and spent three days with bed rest. The hospital told him that he had a "back problem". After discharge from the hospital, his back was not a problem until three to four years later when, again for no reason known to him, he suffered severe back pain plus pins and needles. Following this he was confined to bed for one month with weights on his feet. A CT scan was viewed by the Applicant's physiotherapist and the physiotherapist said to the Applicant that a disc had ruptured, although the physiotherapist did not say when.

21. The Applicant was examined by Dr Michael Prowse, Rheumatologist, on behalf of the Respondent and Dr Prowse's report dated 16 July 1997 is at Document T11. Dr Prowse states:

"In summary this man has a lumbar disc degeneration at the L4/5 level. He is getting episodic low back pain. It could have been related to the incident during his Vietnam services (sic) described above."

The incident referred to is the incident with the APC.

22. For the purposes of these proceedings, the Applicant was examined by Professor Sambrook, Rheumatologist, on behalf of the Respondent. In his report of 20 July 1999 (Exhibit R4) Professor Sambrook diagnoses the Applicant as suffering from lumbar spondylosis, a diagnosis which he adhered to in his oral evidence.

23. In his report Professor Sambrook concentrated on the Statement of Principles for lumbar spondylosis and determined that the Applicant did not meet the criteria on the bases that his symptoms only lasted a couple of days.

24. In evidence to the Tribunal Professor Sambrook stated that there was evidence of a disc prolapse, so that the issue became, when did that occur? Professor Sambrook was unsure when this might have occurred, stating that when a prolapse occurs there will be immediate onset of pain but over time the symptoms will settle down. It was not impossible that the Applicant suffered a prolapse in South Vietnam and then a relapse in the incident chasing a cow, and he could not be dogmatic about it.

25. Dr Miller is a consultant physician and he took a comprehensive history from the Applicant. He noted that the Applicant told him that he first suffered back symptoms in 1970. He also took a history that the Applicant had pain on moving his back for at least two weeks and after his return to Nui Dat he was still in such discomfort that he had to avoid sports between operations. I have noted elsewhere that Dr Miller diagnosed the Applicant as suffering impaired memory because of his alcohol intake. Dr Miller spent some time with the Applicant and took a complete history in great detail. As Dr Miller pointed out, he is familiar with the Veterans' area and the necessity for a comprehensive history. I am therefore not prepared to dismiss the statements to Dr Miller that the Applicant had pain on moving his back for at least two weeks after the incident in the APC, and refrained from playing sport on return to Nui Dat. It is quite conceivable that under Dr Miller's gentle probing, the Applicant remembered matters which he could not remember in the stress of a hearing before the Tribunal.

26. I should also add that Dr Miller stated that in his opinion the Applicant does suffer from chronic bronchitis and chronic airflow limitation but cannot bring himself within the SOPs relating to these diseases.

27. Professor Ehrlich has specialist qualifications both as a surgeon and as a physician, particularly in the field of rehabilitation medicine. In the opinion of Professor Ehrlich, the Applicant gave a clear cut history of back injury whilst in Vietnam and, even on plain x-ray, he was able to make a diagnosis of lumbar spondylosis at the L4/5 level. As Professor Ehrlich commented, in his report of 4 January 2000 (Exhibit A4), referring to lumbar spondylosis:

"This is a condition which can affect extensive areas of the spine but if it is confined to a single level or is particularly conspicuous at a particular level, then the radiological spondylotic changes should be ascribed to the consequence of localised disc pathology or some other mechanical disruption of the relevant joint."

As Professor Ehrlich explained in evidence, the damage to a specific area of the lumbar spine is indicative of damage to that site rather than a degenerative disease.

28. Professor Ehrlich, in his evidence, raised the hypothesis that the Applicant did in fact suffer an injury to the L4/5 disc in the APC incident. That injury being a tear to the annulus. Having had this tear, although the disc did not then suffer an actual prolapse, it was likely to prolapse because of the tear and this in fact happened in the cow chasing incident. Following the prolapse, the Applicant developed lumbar spondylosis. This hypothesis then fits with Factor 5(h) of the 1996 SOP for lumbar spondylosis and with Factor 5(j) in the 1999 SOP, both of which read:

"suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse"

29. Not only is the hypothesis advanced by Professor Ehrlich an hypothesis stated by a respected medical practitioner, it accords with evidence I have noted in other matters before the Tribunal. See, for example, the decision in McManus and Comcare (AAT 13403, 28 October 1998).

30. Alternatively, if one accepts the evidence of Dr Miller, which I do, that the Applicant had pain for two weeks and still had pain on his return to the Task Force Base at Nui Dat such that he could not play sport, then Factor 5(a) in SOP130 of 1996, as amended by SOP No 92 of 1997, is fulfilled and a reasonable hypothesis exists on this basis only. As was pointed out by Senior Member J Handley in Sandiford and Repatriation Commission (AAT 12832, 24 April 1998), there is no warrant for concluding that symptoms must continuously exist for the nominated period. The perception of symptoms must also be judged against the exigencies of active service.

31. As Factor 5(a) of SOP 130 of 1996 re intervertebral disc prolapse exists, then an hypothesis is raised by Factor 5(h) of Instrument Nos 165 of 1996 and Factor 5(j) of Instrument No 27 of 1999.

32. On the material outlined above, there does exist a reasonable hypothesis connecting the Applicant's lumbar spondylosis with the circumstances of his service and that hypothesis conforms with the template in the SOPs relating to lumbar spondylosis. There is nothing in the evidence before me which would justify my being satisfied beyond reasonable doubt that there was sufficient ground for not determining that the disease was war-caused. Therefore the decision of the Respondent is set aside as relates to both lumbar spondylosis and hypertension.

33. Extensive evidence was led both from the Applicant and from Dr Miller and Dr Roderick McEwin relating to the effect that the Applicant's war-caused incapacities have upon him and, in particular, upon his ability to work.

34. The Applicant is in partnership with his wife running a dairy farming property. Because of his war-caused incapacities, he has had to employ workers to carry out work he can no longer manage.

35. In evidence the Applicant's wife stated that he cannot work on the farm full-time because of his back and also he has a marked lack of interest. In a report to the Respondent dated 13 December 1999 (Exhibit R2) Dr Lee, Psychiatrist, noted that the Applicant was becoming more anxious and experienced panic attacks, and found he could not make simple decisions any more because of doubts.

36. At the end of the submissions by the Applicant's counsel, the Respondent, by its advocate, conceded that if the Applicant's lumbar spondylosis was accepted as war-caused, then his incapacity from all war-caused injuries and diseases (including hypertension) would qualify the Applicant for pension at 100% of the General Rate.

37. The Applicant, however, contended that he was entitled to pension at either the Special Rate or the Intermediate Rate of pension.

38. As stated above, the Applicant and his wife gave evidence that because of the Applicant's injuries, in particular his back, labour had to be hired to do work around the farm which otherwise the Applicant would have done. This being so, I consider that there is a loss of remunerative activity. It may well be if it was the partnership that had to pay out the wages but by paying wages there was a loss of return to the partnership and hence a loss of return to the Applicant from partnership profits.

39. Currently the Applicant does do some 10 hours work a week on the farm. This consists of milking on weekends when the hired labour is not present. Otherwise he does no work activity and I am satisfied, on the evidence before me, that the reason for this is his lumbar spondylosis together with a lethargy induced by his post traumatic stress disorder.

40. It was submitted by the Respondent that the Applicant does have other non-accepted disabilities which interfere with his ability to work. The Applicant does have what he referred to as "spurs" on his shoulders and has received an opinion that they can be removed surgically which will improve his condition. On the evidence before me I am not satisfied that they interfere with his ability to work nor is that condition permanent. The Applicant has also claimed for a left knee condition which has not been accepted by the Respondent but, again, I do not believe that this condition of itself affects the Applicant's ability to work, likewise his chronic bronchitis.

41. The criteria for both the Special Rate pension and the Intermediate Rate pension require that the inability to engage in remunerative work should be caused by an Applicant's accepted disabilities "alone". As to the so-called "alone" test, Burchett J in Cavell v Repatriation Commission 9 AAR 534 at 534 said that the true task of the Tribunal was:

"... to make a practical decision whether the veteran's loss of remunerative work is attributable to his service-related incapacities, and not to something else as well. It is a decision that should not be made upon nice philosophical distinctions, but with an eye to reality, and as a matter in respect of which common sense is the proper guide."

42. Having regard to that test, as formulated by Burchett J, I am reasonably satisfied that the reason this Applicant is not doing more work around his farm is because of his accepted disabilities alone.

43. Dr McEwan, in his evidence, stated that in effect the Applicant was unemployable. I agree that if he had to seek for work he would not find an employer who was willing to employ him, the reason being his lumbar spondylosis and post traumatic stress disorder.

44. It was urged upon me by the Applicant's counsel that this demonstrated a lack of ability to engage in remunerative work and he cited the case of Sheehy v Repatriation Commission 41 ALD 205. In my opinion, Sheehy supra can be distinguished in that it relates to a veteran who was seeking work from an employer. The present Applicant is self-employed and it seems to me that if I accept that he has suffered a loss of remuneration by the necessity of the partnership to employ labour then any labour which he does, and for which the partnership does not have to incur outlays, is in reality remunerative work.

45. In a document lodged with the Respondent on 19 August 1999 the Applicant stated that he was working six hours per week. In document T26, which is dated 9 September 1998, the Applicant stated that he was working approximately 24 hours per week on his farm.

46. Doing the best I can on the material before me therefore, I consider that the Applicant is entitled to pension at the Intermediate Rate of pension in that he is incapable of working more than 20 hours per week but is capable of working more than eight hours per week and that this inability to engage in remunerative work dates from 19 August 1999.

47. The decision under review will therefore be set aside and this matter remitted to the Respondent with the direction that:

1. the Applicant's diseases of hypertension and lumbar spondylosis are war-caused diseases; and

2. the Applicant is entitled to pension for incapacity occasioned by all war-caused injuries and diseases suffered by him at the rate of 100% of the General Rate as and from 28 January 1997 up to and including the 18 August 1999 and thereafter at the Intermediate Rate prescribed by s23 of the Veterans' Entitlements Act 1986.

48.

I certify that the 44 preceding paragraphs are a true copy of the reasons for the decision herein of:

Senior Member M D Allen

Signed: Ivanka Mamic

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

Associate

Date of Hearing 21 March 2000

Date of Decision 31 March 2000

Counsel for the Applicant Mr C Colborne

Solicitor for the Applicant Vardanega Roberts

Advocate for the Respondent Mr P Godwin,

Department of Veterans' Affairs