Glynn and Repatriation Commission [2002] AATA 59 (1 February 2002)

Last Updated: 22 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 59

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/634

VETERANS' APPEALS DIVISION )

Re Walter Edward Glynn

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date 1 February 2002

Place Sydney

Decision The Tribunal affirms the decision under review.

.

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

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - claim for Disability Pension - tinnitus and lumbar spondylosis - claim for bilateral sensorineural hearing loss with tinnitus accepted as war caused - back injury whilst on operational service - subsequent lumbar spondylosis found not to be war caused

Repatriation Commission v Gorton (2001) 33 AAR 370

Repatriation Commission v Williams [2001] FCA 1195

Repatriation Commission v Deledio (1998) 49 ALD 193, 206

Harris v Repatriation Commission (2000) 62 ALD 174

Arnott v Repatriation Commission (2001) 32 AAR 445

Veterans' Entitlements Act 1986 - sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), 120A(1), (3), 196B(1), (2), 196D.

Statement of Principles, No. 27/1999 concerning lumbar spondylosis

REASONS FOR DECISION

1 February 2002 M J Sassella, Senior Member

History of the application

1. On 3 June 1998 Walter Edward Glynn ("the Applicant") lodged a formal claim form with the Department of Veterans' Affairs ("the DVA") for Disability Pension in respect of tinnitus and lumbar spondylosis (T4). It was his contention that these conditions were caused by his army service.

2. On 26 October 1998 the Repatriation Commission ("the Respondent") accepted the Applicant's claim for bilateral sensorineural hearing loss ("BSHL") with tinnitus but refused the claim for lumbar spondylosis (T6). The Respondent found no evidence of trauma to the lumbar spine that may have caused this latter condition and no history of lumbar intervertebral disc prolapse. There were no other factors that met the minimum requirements of the relevant Statement of Principles ("SoP"). The Applicant was granted a Disability Pension at 30% of the general rate with date of effect being 3 March 1998.

3. On 17 November 1998 the Applicant lodged an application for review of this decision with the Veterans' Review Board ("the VRB") (T9).

4. On 5 January 1999 the DVA wrote to the Applicant informing him that it had decided not to conduct a review of his case pursuant to s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T12). It was noted that the Applicant's only period of operational service was from 8 October 1955 to 31 August 1957 in Malaya. The Applicant was also notified that eligible service as defined by the Act cannot commence before 7 December 1972.

The decision under review

5. On 8 March 2000 the VRB affirmed the decision under review, refusing to accept that the Applicant's lumbar spondylosis was service-related (T14). It was the Applicant's contention that the he had suffered trauma to the lumbar spine when he fell 10-15 feet to the ground while in Malaya on operational service. The Applicant stated that it had taken about four to five days for his back to show any signs of improvement and that after 10 days it did not greatly worry him. The VRB noted that the Applicant did not seek any medical treatment for his back while in the army. He first sought treatment for the injury some four months after leaving the service and 20 years after the injury occurred. There was other medical evidence before the VRB that the Applicant was treated for a range of conditions while in the army, but never for a back injury or back pain.

6. Further, the VRB noted that on the original claim form the Applicant had identified the cause of the condition as being the lifting of heavy loads, including mortar parts and Bren guns. The Applicant first mentioned the falling incident in a letter dated 9 November 1998. The VRB was ultimately satisfied beyond a reasonable doubt that the trauma arising from the injury did not meet the requirements of the SoP, in particular because the pain did not last for seven days.

7. The Applicant lodged an application for review of this decision with the Administrative Appeals Tribunal ("the Tribunal") on 27 April 2000 (T1)

Relevant legislation

8. The relevant provisions from the Act are: sections 6C(1), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), 120A(1), (3), 196B(1), (2), 196D.

Veterans' Entitlement Act 1986

...

6C Operational service - post World War 2 service in operational areas

(1) Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:

(a) a member who was allotted for duty in that area; or

(b) a member of a unit of the Defence Force that was allotted for duty in that area;

is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.

...

7 Eligible war service

(1) Subject to subsection (2), for the purposes of this Act:

(a) a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and

...

9 War-caused injuries or diseases

(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;

...

Part II - Pensions, Other than Service Pensions, for Veterans and their Dependants

Division 1 - Interpretation

Table of Provisions

...

Division 2 - Eligibility for pension

13 Eligibility for pension

(1) Where:

...

(b) a veteran has become incapacitated from a war-caused injury or a war-caused disease;

the Commonwealth is, subject to this Act, liable to pay:

...

(d) in the case of the incapacity of the veteran--pension by way of compensation to the veteran;

in accordance with this Act.

...

14 Claim for pension

(1) Subject to subsection (2), a veteran, or a dependant of a deceased veteran other than a reinstated pensioner, may make a claim for a pension in accordance with subsection (3).

Note 1: some dependants do not have to make a claim (see section 13A).

Note 2: if it is uncertain whether a person is a dependant and as a result a pension is not payable to the person under section 13A, the person may make a claim for the pension under section 14. The Commission will determine whether the person is entitled to be granted a pension (see subsection 19 (3)).

...

(3) A claim for a pension:

(a) shall be in writing and in accordance with a form approved by the Commission;

(b) shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and

(c) shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).

(4) Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.

...

20 Dates of effect that may be specified in respect of grant of claim for pension

(1) Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, specify as a date that a determination under subsection 19(3) takes effect in respect of the claim, a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.

...

120 Standard of proof

(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.

Note: This subsection is affected by section 120A.

...

(3) In applying subsection (1) or (2) 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 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) that the death was war-caused or defence-caused;

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.

Note: This subsection is affected by section 120A.

...

120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles

(1) This section applies to any of the following claims made on or after 1 June 1994:

(a) a claim under Part II that relates to the operational service rendered by a veteran;

(b) a claim under Part IV that relates to:

(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or

(ii) the hazardous service rendered by a member of the Forces.

Note 1: Subsections 120 (1), (2) and (3) are relevant to these claims.

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

...

(3) For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a) a Statement of Principles determined under subsection 196B (2) or (11); or

(b) a determination of the Commission under subsection 180A (2);

that upholds the hypothesis.

Note: See subsection (4) about the application of this subsection.

...

196B Functions of Authority

(1) This section sets out the functions of the Repatriation Medical Authority.

Determination of Statement of Principles

(2) If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:

(a) operational service rendered by veterans; or

(b) peacekeeping service rendered by members of Peacekeeping Forces; or

(c) hazardous service rendered by members of the Forces;

the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:

(d) the factors that must as a minimum exist; and

(e) which of those factors must be related to service rendered by a person;

before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.

Note 1: For sound medical-scientific evidence see subsection 5AB (2).

Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q (1A).

Note 3: For factor related to service see subsection (14).

196D Disallowable instrument

A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.

...

Statement of Principles concerning LUMBAR SPONDYLOSIS (No. 27/1999)

ICD-9-CM CODES: 721.3, 721.42, 722.52

...

Kind of injury, disease or death

2. (a) This Statement of Principles is about lumbar spondylosis and

death from lumbar spondylosis.

(b) For the purposes of this Statement of Principles, "lumbar

spondylosis" means degenerative changes affecting the lumbar

vertebrae and/or intervertebral discs, causing local pain and

stiffness and/or symptoms and signs of lumbar cord, cauda equina

or lumbosacral nerve root compression, attracting ICD-9-CM code

721.3, 721.42 or 722.52.

...

Factors that must be related to service

4. Subject to clause 6, at least one of the factors set out in clause 5 must be

related to any relevant service rendered by the person.

Factors

5. The factors that must as a minimum exist before it can be said that a

reasonable hypothesis has been raised connecting lumbar spondylosis or

death from lumbar spondylosis with the circumstances of a person's

relevant service are:

...

(h) suffering a trauma to the lumbar spine before the clinical onset of

lumbar spondylosis; or

...

8. For the purposes of this Statement of Principles:

...

"ICD-9-CM code" means a number assigned to a particular kind of injury

or disease in the Australian Version of The International Classification of

Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date

of 1 July 1996, copyrighted by the National Coding Centre, Faculty of

Health Sciences, University of Sydney, NSW, and having ISBN 0 642

24447 2;

...

"relevant service" means:

(a) operational service; or

(b) peacekeeping service; or

(c) hazardous service;

...

"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.

Application

9. This Instrument applies to all matters to which section 120A of the Act

applies.

Dated this Twenty-fifth day of February 1999

Background

9. The Applicant was born on 27 December 1933.

10. The Applicant served in the Australian army from 19 February 1954 to 14 May 1978. He rendered operational service from 8 October 1955 to 31 August 1957 in Malaya. He also rendered eligible defence service from 7 December 1972 to 14 May 1978 (T14).

11. After his discharge from the army the Applicant worked for eight years as a training manager at Mercke Sharpe and Dohme, a pharmaceutical company. The Applicant subsequently worked at the Sydney Teachers' College between 1979 and 1994. He then worked for two years as a teacher and since 1997 has worked as a casual lecturer at the University of New South Wales and the University of Sydney (Ex R1).

Documentary medical and other evidence

12. The Tribunal notes that there is no issue as to diagnosis in this matter. The Applicant suffers from lumbar spondylosis (Ex A4; Ex R5). Therefore the Tribunal will not concentrate on materials addressing and confirming a diagnosis, but will attempt to restrict itself in this matter to the probable cause and effects of this condition.

13. On 3 April 1978 a medical board examination record noted the Applicant's spine as "normal" (T3/8).

14. On the formal claim form dated 3 June 1998 (T4) the Applicant stated that his "disc degeneration" was "caused by lifting and carrying heavy loads including 3 inch mortar components and machine guns. Aggravated by age." He further stated that the sciatica caused by his back problems "created difficulties [at work] until [he] learned to control the problem with drugs."

15. On 6 May 1998 Dr Bentivoglio, orthopaedic surgeon, reported on the Applicant (T4/44). He noted the Applicant's history of low back pain and that there was also pain radiating down his left lower limb to the calf region. Dr Bentivoglio further noted a "good range of movement in his low back region" however a CT scan revealed the presence of degenerative changes in the lumbar spine. Symptoms would continue "both in the near and distant future."

16. On 28 July 1998 Dr Patroulias, a general practitioner, completed a medical DVA medical impairment assessment form in relation to the Applicant's lumbar spondylosis (T5). He noted that the Applicant has to sit down after 10 minutes of standing otherwise the pain becomes intolerable. Dr Patroulias further noted a minor loss of range of movement in the Applicant's thoracolumbar spine. The Applicant suffered sciatica, mostly in the left leg.

17. On 9 November 1998 the Applicant wrote a letter to the Respondent in support of his application for Disability Pension (T7). He felt that his back condition was directly attributable to his service as a soldier, specifically due to having to carry heavy equipment such as Bren guns and 2 inch mortars during his service in Malaya. He stated that, "if one had a sore back, you did not 'whinge' about it, you took a couple of aspirin and got on with the job." The Applicant first noticed his back problem four months after his retirement from the army. He was forced from work because of back pain. Further he stated:

"My contention is that this degeneration [of the lumbar spine] occurred as a direct result of my military service and did not manifest itself until after I had left the service. It would not be possible for the discs to degenerate in the short period between the conclusion of my military service and four months from the date. I was only 44 years of age when I resigned my commission."

18. On 6 November 1998 Dr Harry Haber, general practitioner, reported that the Applicant had been seeing him between 1980 and 1994 for lumbar sacral pain (T7/56). The Applicant was suffering with L3, L4/5 irritation. Dr Haber concluded his brief report:

"I feel that his duties in the army would be a major factor in causing damage to the back. He was carrying heavy mortar and other load carrying materials."

19. On 9 November 1998 the Applicant again wrote to the Respondent with more information in support of his application to have his lumbar spondylosis accepted as a service-related condition (T8). The Applicant recalled two episodes in Malaya where he injured his back. The first occurred in November 1995 when he fell down a steep slope and suffered "some trauma to my back. The injury did not appear to be serious." The Applicant was placed on light duties for several days. The second incident occurred when a platoon from Support Company became involved with a group of 40 terrorists, resulting in the death of two Australian soldiers and the wounding of another. The Applicant was flown into the area by helicopter but, there being nowhere for the helicopters to land, the Applicant and the other soldiers in his shooting team were lowered down into the jungle on ropes. The ropes only extended to within 10-15 feet of the ground, the soldiers having to jump that distance with a rifle and a 60-pound pack on their backs. The Applicant stated that he fell awkwardly and injured his back, but at the time "there was no alternative [but] to continue the operation without any medical assistance." He was in pain for about ten days however the pain gradually eased. The Applicant stated that he has had "twinges" in his back for forty years but never had the need to seek medical attention during his service in the army.

20. On 6 December 1998 Major B J Sullivan (RL) wrote a statement in support of the Applicant's evidence of back problems (T11/62). Major Sullivan had served with the Applicant and stated that it was common knowledge that the Applicant had severe back problems caused by the fall from a rope into the jungle. After being posted, with the Applicant, to Depot Company Infantry Centre in 1962, Major Sullivan noticed that the Applicant "experienced severe back pain after prolonged physical activities."

21. On 24 April 1999 the Applicant wrote to the VRB, again describing the helicopter rope incident (T13). He stated that he did not report the incident because by the time the LZ (landing zone) had been constructed the pain in the lower back had subsided to a manageable level.

22. On 26 May 2000 the Applicant wrote another statement detailing the helicopter incident (Ex A1). He stated that none of the soldiers had been trained in "roping down" from a helicopter and that it was very difficult to do with a 60-pound pack and a rifle. The Applicant did not have any faith in the orderly and therefore did not report his injury. It was his opinion that in spite of the difficulties he was experiencing he should continue to pull his weight as part of a team.

23. On 23 August 2000 Professor Sambrook, rheumatologist, reported on the Applicant at the request of the Respondent (Ex R1). He noted the Applicant's stated history of incidents and occurrences that caused injuries to his back. Professor Sambrook also noted an episode when the Applicant's back "went on him", whilst working at Sydney Teachers' College. He assessed the Applicant as having an impairment rating of 10 because he had a loss of about one-quarter of the normal range of movement. Professor Sambrook stated that the clinical onset of the condition was around 1979 but also noted that the Applicant was "troubled intermittently over the years prior to that..." He found that the episode where the Applicant fell from a rope would satisfy factor 5(h) of the SoP, but reiterated that clinical onset of the condition was not until 1979. It was stated that the Applicant would not satisfy any other of the SoP factors.

24. On 12 September 2000 Mr C H Ducker, military researcher, provided a report on the Applicant's army service (Ex R2). Mr Ducker stated that the Applicant's claim that he served as a mortarman in Malaya could not be confirmed by his platoon commander. The commander "seemed to recall that the claimant worked in the Spt Coy orderly room for much of his service in Malaya. If true such an appointment would mainly involve clerical duties." However there was no confirmation that the Applicant worked in this area either. Further, Mr Ducker's inquiries as to the Applicant's whereabouts around the time of the helicopter rope back injury were not conclusive. The Applicant in his statement of 26 May 2000 (EX A1) mentioned the two fatalities and one casualty of 24 June 1957. He stated that he was, with the company shooting team, required to construct a rudimentary landing field. Also, it was recalled by the platoon sergeant that the Applicant was present at the beginning of the tour but he was then moved elsewhere. In relation to the rope incident Mr Ducker discovered from sources present at the time that the LZ was constructed without any "group being inserted by rope from a helicopter." Further he stated:

"The key personnel in the MG Pl and the Mor Pl were sure that the claimant was not present with Spt Coy elements (including their respective platoons) at the time of the incidents on 24-26 Jun 1957 when they were involved with evacuating the casualties from their hastily constructed LZ."

25. However Mr Ducker found evidence in the official history of the tour that in the days immediately after 24 June 1957, the date on which the fatalities occurred, four patrols, including "elements of the rifle team", were involved in operations where they were indeed lowered by rope from helicopters into a suitable LZ site. An officer in charge of one of these patrols confirmed the Applicant's version of events whereby the soldiers had to jump to the ground with full packs. However this officer mentioned a distance of "several feet" between the rope and the ground, not the 10-15 feet claimed by the Applicant. Mr Ducker confirmed that soldiers carried packs weighing up to 80 pounds. He also confirmed that it was quite normal for personnel involved in military operations not to report an injury because on a 14-day operation there would be no available medical documentation.

26. On 16 January 2001 Dr Bentivoglio reported on the Applicant (Ex R4). He noted a "good range of movement present in his low back region" and detected no motor nor reflex abnormalities in the lower limbs. Dr Bentivoglio confirmed the presence of marked degenerative changes, but did not feel that "aggressive forms of treatment were indicated for this gentleman." It was considered that the Applicant should continue with his exercise program.

Hearing and appearances

27. The Tribunal convened a hearing on 2 March 2001. The Applicant was represented at the hearing by Mr Halstead of the Legal Aid Commission, the Respondent by Mr Godwin from the advocacy section of the DVA. The following documentary materials were taken into evidence at the hearing:

* Exhibit TD1 - documents prepared pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.

* Exhibit A1 - Letter from the Applicant to Ms J Buchanan dated 26 May 2000.

* Exhibit A2 - Letter from the Applicant to Mr A Halstead dated 11 October 2000.

* Exhibit A3 - Photograph of the medal won by the Applicant in Malaya in 1956.

* Exhibit R1 - Report of Professor Sambrook, rheumatologist, dated 23 August 2000.

* Exhibit R2 - Report of C H Ducker, historian, dated 12 September 2000.

* Exhibit R3 - Transcript of the VRB hearing dated 8 March 2000.

* Exhibit R4 - Report of Dr Bentivoglio, orthopaedic surgeon, dated 16 January 2001.

Findings on material questions of fact with reference to the evidence and other materials in support of those findings

28. The Tribunal makes the following uncontentious findings:

* The Applicant's date of birth was 27 December 1933 (T3/9).

* The Applicant served in the army from 19 February 1954 until 14 May 1978 (T3/13-24). He rendered operational service from 8 October 1955 until 31 August 1957 (T2).

* He lodged a valid claim for Disability Pension on 3 June 1998 (T4).

* The date of effect of any decision favourable to the Applicant will be 3 March 1998 (s 20(1) of the Act).

* The standard of proof is the reasonable hypothesis standard in view of the Applicant's operational service (s 120(1) of the Act).

* The relevant SoP is prima facie SoP 27/99 concerning lumbar spondylosis which is currently in force. Should the Applicant fail in his application because of that SoP the Tribunal can refer to SoP 52/98 which was in force when the Respondent made the primary decision to see whether the Applicant fares better under that SoP. He can then have the advantage of the earlier instrument. This follows from the full Federal Court decisions in Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195.

29. The hypothesis is that while on operational service in about June 1956 in Malaya while on an exercise where he was roping into an area to build a landing zone for a helicopter the Applicant fell a distance of 10 to 15 feet to the ground. He landed awkwardly and suffered pain and restriction of movement for about 10 days. This caused him to suffer from lumbar spondylosis (Ex A4, R1/2).

30. As found above, there is a SoP, ie 27/99. The hypothesis advanced is consistent with the requirements of that SoP to the following extent. First, he suffers from lumbar spondylosis (Dr Bentivoglio (T4/44), Prof Sambrook (Ex R1/5).

31. Second, the hypothesis is that factor 5(h) of the SoP applies and is satisfied, that is that he "suffer[ed] a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". The hypothesis is that clause 4 of the SoP is satisfied in that the trauma was related to the Applicant's operational service. The fall from the rope was a part and parcel of operations conducted in operational service.

32. The hypothesis might comply with the definition of a trauma to the lumbar spine in clause 8 of the SoP. There was a "discrete injury" when the Applicant allegedly fell. Within 24 hours there was the development of acute symptoms and signs of pain and tenderness. In his oral evidence he described this. He said that he had an immediate pain in the lower back, that he was assisted to walk to the landing zone building and that someone carried his 60-lb pack for him. His back pain allegedly precluded him from working. This may indicate the required altered mobility or range of movement of the lumbar spine. The hypothesis is that the acute symptoms and signs lasted for seven days, as the definition requires.

33. The Respondent's statement of facts and contentions (Ex R5) appears to concede that the Applicant's case is sound to this point, which is step 3 in the well-known series of four steps in the Federal Court decision in Repatriation Commission v Deledio (1998) 49 ALD 193, 206. The Respondent argues that the Applicant fails under step 4 in Deledio (supra). It is suggested that his account is not credible when all of the evidence is considered.

34. In his oral evidence the Applicant added to his account of the events. As noted earlier in these reasons, the Applicant is said to have been carrying a 60-lb pack and a rifle when he jumped from the rope. The Applicant's colleagues were prepared to excuse him from the heavy work immediately following his fall because of his apparent pain. He spent about 10 days at the landing zone. After about five days he took on some work but he cannot recall what. He was still in pain. He did not go to the regimental aid post ("RAP") because it would do no more than dispense aspirin to him. There was no medical officer present. The pain reduced with time but is still there.

35. In cross-examination the Applicant said that he first became aware of a back problem in about 1980. He had experienced back pain at different times in the army but his major problems emerged after he was discharged. When teaching at the Sydney Teachers College he could not stand because of the sciatica. A specialist advised an operation but the Applicant refused that. He opted for conservative treatment from Dr Haber who administered spinal cortisone injections. He still has these injections.

36. Mr Godwin for the Respondent took the Applicant to various documents.

* T3/8 was a medical board examination from 1978. The spine is marked as normal. T3/29, also a medical board examination, shows the spine as normal on 9 February 1968. The Applicant responded that at these examinations questions were not asked about any problem conditions. The doctors stuck to the main points. One had to complain to have a matter recorded. Mr Glynn told Mr Halstead that these examinations tended to involve taking blood pressure, checking for hernia, testing urine, checking the ears and not much else. They took 10 minutes and were superficial. He said that he had never had a comprehensive medical while in the army.

* T3/30 is a questionnaire dated 2 February 1968 which refers to such conditions as dysentery and a childhood fractured right wrist, but makes no mention of back problems.

* T3/31 is a medical board examination which reports a normal spine on 14 September 1976. T3/32 is a similar document from 15 September 1977.

* T3/33 is the Applicant's discharge medical history questionnaire from 3 April 1978. The Applicant said "no" to "Any knee, back or joint injury".

* In T4, the Applicant's claim form, he places the onset of the disability as August 1981. The injury is described as "disc degeneration". A medical document in T7/55 places the date of onset as about 1978. Dr Haber (T7/56) first saw the Applicant for lumbar pain in 1980.

* In his claim form the Applicant attributed his back problem to "lifting and carrying heavy loads including 3 inch mortar components and machine guns". The incident now relied on was not mentioned.

* The Applicant told Dr Bentivoglio of a long history of low back pain back to 1981 (T4/44 and Ex R4).

* The Applicant in a statement dated 4 November 1998 (T7) marked the start of his back problem as the date of his retirement. He wrote, "My first indication that I had a back problem occurred about four months after my retirement". There is no suggestion in this statement that he suffered any back pain during his military service.

* The Applicant in another statement dated 9 November 1998 (T8) said that after he fell "there was no alternative but to continue the operation without any medical assistance", that he "was in some pain for about 10 days but carried out [his] duties to the best of [his] ability. The only chore that [he] was spared from was the collection of water. This entailed a twenty-minute clamber down a steep slope and then two to three hours struggling back up with the water bottles. [He] did not have the capacity to make the climb". He wrote that he had had "twinges" in his back over the past 40 years but he did not need to seek medical attention while in the army. He self-medicated with aspirin. In oral evidence the Applicant said that he did not regard sentry duty as a "chore". He had done sentry duty immediately after his fall.

* The Applicant wrote in a statement on 26 May 2000 (Ex A1) that he assisted in the placing of explosives from five days after the fall. In response to Mr Godwin he said that the five days quoted was only an estimate.

* When the Applicant appeared before the VRB (Ex R3) he said that it took only five or six days, not 10 days, to prepare the landing zone. Later he said that the helicopters came in after they had been at the landing zone for five days. The Applicant was unable to explain the chronology and unable to explain why he had not then seen a medical officer, one of whom would have been ferried in at that stage. He said that his pain, which was still present, had eased by then and that they had more to worry about than him.

* Major Sullivan wrote on 21 April 1999 (T13/67) that it was common knowledge in 1960 that the Applicant had a back injury resulting from a fall from a repelling rope. The Applicant considered that those who knew him would know of his back problem and its cause. Major Sullivan knew the Applicant from 1962. The Applicant considered that he would have known others from the Applicant's regiment who may have given him this information. Major Sullivan referred to the Applicant's "severe back pain" following physical activities. The Applicant told Mr Godwin that his back pain restricted him in activities. There would have been times when he experienced back pain following activities. He could not recall when they were or what were the activities. In general terms Mr Glynn said that no one would report that they had back pain. They would only be given aspirin and would be regarded as bludging on their mates. They would just get on with the job.

37. The Applicant told Mr Halstead that he did not see a doctor back at home base because they would have given him just the aspirin he was already taking. The Applicant was adamant that his back problems were caused by service.

38. Major Sullivan was available and gave evidence. He has known the Applicant since 1959. He knew of the landing zone project in 1957 and was aware of the Applicant's injury at the time. He did not witness the incident. He later explained that he became aware of the injury at a later time. However, he said, everyone in B company knew of the accident and that Mr Glynn had been injured. The Applicant served under Major Sullivan on two occasions. He had seen the Applicant suffer extreme pain after exertion on running in the early 1960s. He had seen the Applicant in pain on many occasions.

39. Major Sullivan said that the army's medical board examinations were "not worth the paper they're written on". In his own case half of them are missing. There is no record of his hospitalisation with scrub typhus. The medical reporting system is very lax.

40. Major Sullivan saw the Applicant again between 1973 and 1976. The Applicant was a captain. He saw that he had back pain. The Applicant was unable to play sport for any lengthy time because of pain.

41. In cross-examination Major Sullivan explained his knowledge of the landing zone incident. He had been part of a debriefing by Captain J J Hughes when the fall was mentioned. Mr Glynn's identity had been mentioned.

42. Mr Godwin explained in his final submissions why the Tribunal should be satisfied beyond a reasonable doubt that the Applicant's disability is not war-caused.

43. There is inconsistent evidence. Major Sullivan told Mr Godwin in evidence that his company did not use the landing zone whereas in evidence at the VRB the Applicant had said that they did. The Applicant's evidence is inconsistent with him suffering acute symptoms. He did not seek medical assistance either at the location or when he returned to home base. If he had suffered symptoms for a week he would have sought medical assistance whereas he did not do this.

44. Mr Godwin said that the medical board examination reports could be relied on. Major Sullivan had explained in his evidence that the examining doctor would have filled in the many boxes where injuries or diseases are recorded on dictation from the Applicant.

45. Mr Godwin reminded the Tribunal that the first instance of low back pain was months after his army discharge. He suggested that the Applicant's own doctors, Bentivoglio, Haber and Patroulias, could be expected to know of and comment on any symptoms the Applicant experienced earlier than four months after he retired from the army. They had no such history.

46. It required two refusals of the Applicant's claim by the Respondent before he raised the suggestion that his back had been caused by anything other than the lifting of heavy weights.

47. The Tribunal refers to the evidence of Mr Ducker (Ex R2). This is objective material that contains material of relevance. There is considerable material to suggest that the Applicant may not have been present when the landing zone was constructed. However, this relies heavily on the recollections of others present at the time and refers to a period over 40 years ago. The Tribunal cannot accept that such recollections, or lack of recollection, can suffice for a negative finding beyond a reasonable doubt. Notably, Mr Godwin did not invite the Tribunal to rely on this material to find the Applicant not present at the time. His argument accepted the presence of the Applicant but queries whether he had a fall, or a fall with the consequences alleged. He is supported in this by Mr Ducker's evidence that recollections are that soldiers did jump to the ground with full packs but not from 10 to 15 feet. Mr Ducker, in the Applicant's favour, also said that it was quite normal for personnel involved in military operations not to report an injury because on a 14 day operation there would be no available medical documentation.

48. The Tribunal finds that the Applicant's incapacity was not war-caused because it is satisfied beyond a reasonable doubt that that there is no sufficient ground for determining that the injury was war-caused.

49. The Tribunal is so satisfied for the following reasons. First, the Tribunal is satisfied beyond a reasonable doubt that the requirements of the SoP are not met. The Tribunal refers to the definition of "trauma to the lumbar spine" in clause 8. The elements in that definition that must be met are:

1. that there has been a discrete injury, which in this case the Tribunal accepts there to have been; and

2. that there has been the development within 24 hours of acute symptoms and signs of pain and tenderness, which the Tribunal accepts there to have been; and

3. that there has been the development within 24 hours of altered mobility or range of movement of the lumbar spine, which the Tribunal accepts there to have been; and

4. that the acute symptoms and signs must last for a period of at least seven days following their onset, which is the requirement that the Tribunal cannot accept.

50. The evidence before the Tribunal from the Applicant's own document (T8) is that he continued to perform all duties except water carrying from quite soon after the incident. The Tribunal considers that this would not have been possible if the Applicant's symptoms had remained acute for seven days. The notion of an acute symptom has been discussed by the Federal Court in several cases. In Harris v Repatriation Commission (2000) 62 ALD 174 Finn J said at paragraphs 31 and 32 (page 184) that the injury must have caused the development of "acute symptoms and signs" of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement. He refers to the Shorter Oxford English Dictionary ("SOED") definitions of "sign" and "symptom", both of which must be "acute". The SOED defines "acute" as sharp or acting keenly on the senses.

51. The full Federal Court in Arnott v Repatriation Commission (2001) 32 AAR 445 also considered the meaning of "acute". The lead judgment by Merkel J at paragraph 30 (page 454) says, "The Macquarie Dictionary definitions of 'severe' connote, relevantly, a pain that is extreme or harsh. Thus, although the difference in degree may not be substantial, an 'acute' pain does not necessarily equate with a 'severe' pain." In the next paragraph he writes, "as the AAT addressed only the question of whether the pain was 'sudden' and 'severe' it failed to address the question of whether the pain was 'acute', as defined in Harris, which was the question required to be addressed in stage three in Deledio ... the AAT also erred in law in incorrectly requiring that, for a pain to be 'acute' it must be 'severe'."

52. The Tribunal considers that the Applicant would not have been able to perform the range of duties he infers he performed in T8 if he was suffering for up to seven days from a pain that was, in Finn J's words, "sharp or acting keenly on the senses".

53. The second concern the Tribunal has is that the incident occurred in June 1957 (Ex R2) and yet the preponderance of evidence suggests that the Applicant did not suffer in any extraordinary sense from back problems until 1979. The Tribunal is of course aware of Major Sullivan's evidence, regards him as a witness of truth, but considers that his evidence as regards the Applicant's injuries has a number of deficiencies. Much of it is based on hearsay from decades ago. The chances of errors in recollection are high. Some symptoms that he personally witnessed, such as the adverse effects of the Applicant running, are difficult to gauge. The exact dates are unclear. The causes of the Applicant's problems are not definite. The Tribunal prefers the Applicant's own evidence as given at a time when he was unaware of any stress in the evidence that would better advance his case. Document T8 fits that description. The Tribunal also considers the documentary evidence put to the Applicant by Mr Godwin (see paragraph 36 above) as corroboration that it is most unlikely that the Applicant suffered from appreciable ongoing lower back symptoms as a result of any drop from a rope.

54. Such a lengthy period between an incident and its alleged effects suggests that there is no real connection between the two phenomena. The Tribunal accepts that Prof Sambrook offers some support for the Applicant and the professor accepts that the Applicant's account of events satisfies the SoP. However, his opinion is offered on the basis that the reader accepts Mr Glynn's account as an accurate record of events in Malaya.

55. The Tribunal has also considered the other matters raised by the Applicant to suggest that his back was adversely affected during operational service. Prof Sambrook summarised these. One was when he stumbled down a steep slope in Penang and suffered some back pain afterwards (Ex R1/2). A hypothesis based on this incident would fail at step 3 of the Deledio (supra) analysis. It would seem that the pain was not acute and did not persist as such for seven days. Another was effectively a claim based on the nature and conditions of the work he was required to do. This involved carrying heavy objects, a claim made in T4, his application for pension. However, he could suggest no discrete injury as required in the SoP so, again, any hypothesis would fail at step 3 of the Deledio (supra) analysis.

56. The Tribunal has considered SoP 52/98 to see whether the Applicant might better satisfy the SoP in force at the time of the primary decision. The definition of "trauma to the lumbar spine" in clause 8 of that SoP requires the continuation of acute symptoms and signs for seven days, as does the current SoP, and clause 4 requires that any trauma be related to operational service, as does clause 4 of the current SoP. The analysis would be the same under the earlier SoP and the outcome would be the same.

Conclusion

57. The Tribunal has found that the Applicant's lumbar spondylosis is not war-caused. He will therefore continue to receive a Disability Pension on the basis of his BSHL only.

Decision

58. The Tribunal affirms the decision under review.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of M J Sassella, Senior Member

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

Associate

Date of Hearing 2 March 2001

Date of Decision 1 February 2002

Counsel and solicitor for the Applicant Mr Adam Halstead, Legal Aid Commission

Counsel for the Respondent Mr Peter Godwin, DVA

Solicitor for the Respondent Mr Jim Marsh, DVA