Middleton and Repatriation Commission [2002] AATA 94 (15 February 2002)

Last Updated: 22 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 94

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1689

VETERANS' APPEALS DIVISION )

Re Patrick Peter Middleton

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date 15 February 2002

Place Sydney

Decision The decision under review is set aside and the tribunal substitutes its own decision that, from 15 August 1999, the applicant suffers from the war-caused disabilities of lumbar intervertebral disc prolapse and lumbar spondylosis. The tribunal remits the matter to the respondent for calculation of the appropriate rate of Disability Pension.

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

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - Disability Pension - date of clinical onset of intervertebral disc prolapse - whether pain needs to be acute - condition war caused - lumbar spondylosis war caused where lumbar invertebral disc prolapse present prior to clinical onset of lumbar spondylosis

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

Re Robertson v Repatriation Commission (1998) 50 ALD 668

Bull v Repatriation Commission [2001] FCA 1832

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

Statement of Principles 130/96 as amended by SoP 92/97 concerning intervertebral disc prolapse

Statement of Principles 27/99 concerning lumbar spondylosis

REASONS FOR DECISION

15 February 2002 M J Sassella, Senior Member

History of application

1. On 15 November 1999 Mr Peter Patrick Middleton ("the applicant") lodged at the Department of Veterans' Affairs ("the DVA") a claim for Disability Pension in respect of "arthritis of spine and damaged lumbar discs". He said he was first aware of this disability in "early postwar years. Unable to nominate a specific date" (T4/18). In an attached statement the applicant told the Repatriation Commission ("the respondent") that his condition was attributable to his war service in the Royal Air Force ("RAF"). He flew 955 hours and 25 minutes over a period of three years and five months to September 1945. He was a wireless operator and air gunner. Flights averaged 10 to 12 hours in Liberator aircraft. His duties during a flight involved rotation from work as wireless operator to work as radar operator to work as gunner in the turret. "All of these positions were in cold, cramped and drafty [sic] conditions, made much more unpleasant and tiring by the constant jolting of the aircraft, particularly when hitting frequent air pockets." After a flight, crew would return to base stiff from the cold and sore in the back from constant jolting while in flight. The applicant referred also the cold and damp conditions of his accommodation when stationed in Cornwall.

2. On 3 February 2000 the respondent rejected the applicant's claim (T10). It identified the disabilities as lumbar spondylosis and intervertebral disc prolapse at L3/4 and L4/5. The applicant failed essentially because his description of the flying and accommodation conditions did not accord with any of the factors in the relevant statements of principles ("SoPs") issued by the Repatriation Medical Authority.

3. On 26 April 2000 the applicant lodged with the DVA an application for review of the respondent's decision by the Veterans' Review Board ("the VRB") (T11). He appealed on the basis that some of the SoP factors were applicable. These related to his smoking, flying hours and exposure to G forces during flights. He also argued that the onset of his disabilities was earlier than the 1950s, the timing suggested by Dr Sherbon in the applicant's claim documentation.

4. On 18 May 2000 a DVA officer, a delegate of the respondent, notified the applicant that the respondent's decision would not be altered under s 31 of the Veterans' Entitlements Act 1986 ("the Act") (T12).

5. On 14 September 2000 the VRB decided to affirm the respondent's decision (T13). The applicant was notified of the decision in a letter dated 6 October 2000 (T14).

6. On 2 November 2000 the applicant lodged with the Administrative Appeals Tribunal ("the tribunal") an application for review of the VRB's decision (T1).

Decision under review

7. The VRB found against the applicant on several bases. As far as the intervertebral disc prolapse was concerned the VRB relied on SoP 130/96 as amended by 92/97. The VRB ticked off factors 5(a), (d), (e) and (f) in turn. Factor 5(a) requires a trauma to the disc at the time of clinical onset of intervertebral disc prolapse. The VRB found no discrete injury to the spine as the SoP required. Factor 5(d) requires flying for an average of 25 hours a week for a period of two years. The VRB found that the applicant had not flown for the requisite time on a weekly basis. Factor 5(e) requires exposure to high positive G forces at the time of clinical onset. The VRB found no evidence that onset had occurred at the time of exposure to any G forces. Factor 5 (f) requires a war-caused smoking habit of 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse. The VRB relied on the applicant's own smoking statement (T5/38-39) to find that he smoked only about 13½ pack years.

8. For lumbar spondylosis SoP 27/99 caused problems for the applicant as his claim relied on a pre-existing war-caused intervertebral disc prolapse or a trauma to the lumbar spine. The VRB had found the intervertebral disc prolapse to be not war-caused and as regards the alleged trauma, the VRB doubted that there had been a trauma as defined in the SoP and that any spondylosis had its onset during service.

9. The applicant submitted a comprehensive critique of the VRB's decision and its reasoning as part of his tribunal application (T1/1A-1C). However, this was superseded at the hearing by the submissions made for the applicant by his representative so it is not canvassed here.

Relevant legislation

10. The following provisions from the Veterans' Entitlements Act 1986 ("the Act") are relevant: sections 6A(1) Item 1(a), 7(1)(a), 9(1)(a), 13(1)(b), (d), 14(1), (3), (4), 20(1), 120(1), (3), (4), (6), 120A(1), (3), 196B(1), (2), 196D.

Veterans' Entitlements Act, 1986

6A Operational service - world wars

(1) Subject to subsection (3), a person referred to in column 2 of an item in the following table is taken to have been rendering operational service during any period during which the person was rendering continuous full-time service of a kind referred to in column 3 of that item.

Operational service

Item Person Nature of service

1 A member of the Defence Force (a) continuous full-time service outside Australia during a war to which this Act applies

...

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 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.

...

Part VIII - General Provisions Applicable to Pensions etc.

...

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.

(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.

Note: This subsection is affected by section 120B.

....

(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:

(a) a claimant or applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or

(b) the Commonwealth, the Department or any other person in relation to such a claim or application;

any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.

...

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.

...

Part XIA - the repatriation medical authority

Division 1 - Establishment, functions and powers

...

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.

...

11. The following extracts from the relevant SoPs are germane also the applicant's claim.

SoP 130/96 as amended by SoP 92/97 concerning intervertebral disc prolapse.

SoP 27/99 concerning lumbar spondylosis.

Statement of Principles concerning INTERVERTEBRAL DISC PROLAPSE (130/1996)

...

Kind of injury, disease or death

2. (a) This Statement of Principles is about intervertebral disc prolapse

and death from intervertebral disc prolapse.

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

disc prolapse" means protusion, 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, attracting ICD code 722.0, 722.1, 722.2, 722.3 or

722.7.

...

Factors that must be related to service

4. Subject to clause 6, the factors set out in at least one of the paragraphs 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 intervertebral disc

prolapse or death from intervertebral disc prolapse with the

circumstances of a person's relevant service are:

...

(e) exposure to an environment of high positive G forces at the time of

the clinical onset of intervertebral disc prolapse; or

...

Other definitions

7. For the purposes of this Statement of Principles:

"an environment of high positive G forces" means positive G forces of

at least two which can be produced by flying in modern high performance

jet aircraft. These occur when the aircraft changes speed or direction, eg

in turns or recovery from dives. A G force is the ratio of the applied

acceleration of the aircraft to the acceleration due to gravity, for example,

2G = 2 x 9.81m/s²;

"ICD 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;

...

Dated this day of twenty-sixth day of September 1996

Amendment of Statement of Principles concerning INTERVERTEBRAL DISC PROLAPSE (92/1997)

The Repatriation Medical Authority amends, under subsection 196B(2) of the

Veterans' Entitlements Act 1986 (the Act), Instrument No.130 of 1996,

(Statement of Principles concerning intervertebral disc prolapse), by:

1. omitting paragraph 2(b), and replacing it with the following:

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

disc prolapse" means protrusion, herniation or rupture of an

intervertebral disc of the cervical, thoracic or lumbar spine, causing local

pain and stiffness, and may include:

(i) in the case of cervical disc prolapse - pain and paraesthesia

radiating into the upper limbs or;

(ii) in the case of lumbar disc prolapse - pain and paraesthesia

radiating into the lower limbs,

attracting ICD code 722.0, 722.1, 722.2, 722.3 or 722.7.";

...

The amendments made by this instrument apply to all matters to which Instrument

No.130 of 1996 and section 120A of the Act apply.

Dated this Fourteenth day of November 1997

Statement of Principles concerning LUMBAR SPONDYLOSIS (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:

...

(j) suffering a lumbar intervertebral disc prolapse before the clinical

onset of lumbar spondylosis at the level of the intervertebral disc

prolapse; or

...

8. For the purposes of this Statement of Principles:

...

"intervertebral disc prolapse" means protrusion, herniation or rupture

of an intervertebral disc of the cervical, thoracic or lumbar spine, causing

local pain and stiffness. In the case of lumbar disc prolapse, symptoms

may include pain and paraesthesia radiating into the lower limbs;

...

"relevant service" means:

(a) operational service; or

(b) peacekeeping service; or

(c) hazardous service;

...

Background

12. The applicant was born on 17 April 1922 and is currently 79 years of age (T4).

13. The applicant served in the Royal Australian Air Force from 24 April 1942 until 25 September 1945 (T3/3). The whole of his service was operational. He served in Australia, Canada, the USA and the UK. He was attached at times to the RAF and the Royal Canadian Air Force (T3/4).

14. At the time of enlistment the applicant worked as an audit clerk (T3/10). After discharge he did clerical work for generally long periods with a firm of accountants, Caltex Oil and the University of Newcastle, ceasing employment in July 1982.

15. The applicant has been in receipt of a Disability Pension since 1996 in respect of hearing loss (Ex TD1/1). More recently, his advocate informed the tribunal, Mr Middleton's Disability Pension was increased to 60% of general rate because his emphysema was accepted as war-caused.

Hearing and appearances

16. The tribunal convened a hearing in this matter in Newcastle on 21 January 2002. Ms J Buss, an advocate with the NSW Legal Aid Commission, represented Mr Middleton. Mr J Marsh, director of the DVA advocacy service, represented the respondent.

17. The tribunal had access to the following documentary evidence:

* Exhibit TD1 - Section 37 Statement and associated T documents prepared by DVA, 20 November 2000.

* Exhibit A1 - Applicant's statement of facts and contentions, 6 September 2001.

* Exhibit A2 - Copy of note by veteran to Ms Buss of the Legal Aid Commission, 22 March 2001.

* Exhibit A3 - Report by Professor P N Sambrook, professor of rheumatology, 28 March 2001.

* Exhibit A4 - Report by Prof Sambrook, 10 May 2001.

* Exhibit A5 - Report dated 28 July 2001 by Dr D M Newman of Quantitative Aeronautics Pty Ltd, Chippendale together with a letter dated 10 July 2001 from Ms Buss to Dr Newman.

* Exhibit A6 - Dr Newman's curriculum vitae.

* Exhibit A7 - The applicant's Royal Canada Air Force flying log.

* Exhibit R1 - Respondent's statement of facts and contentions, 11 September 2001.

* Exhibit R2 - Report by Dr A Smith, general orthopaedics specialist, 16 March 2001.

* Exhibit R3 - Dr Sherbon's clinical notes.

* Exhibit R4 - De Isaacs' clinical notes.

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

18. The tribunal makes the following uncontroversial findings:

* The applicant engaged in operational service from 24 April 1942 until 25 September 1945 (T2/2A).

* The applicant lodged a valid claim for acceptance of intervertebral disc prolapse and lumbar spondylosis as war-caused disabilities on 15 November 1999 (T4).

* The date of effect of any decision favourable to the applicant will be 15 August 1999 (T4 and s 20(1) of the Act).

* The standard of proof relating to whether the applicant's disabilities of intervertebral disc prolapse and lumbar spondylosis should be accepted as war-caused is the reasonable hypothesis standard because of his operational service (s 120(1) of the Act).

* The applicable SoPs, as already mentioned, are SoPs 130/96 and 92/97 concerning intervertebral disc prolapse and SoP 27/99 concerning lumbar spondylosis.

19. At the hearing it was quickly established that the basic issue for determination is the date of clinical onset of the applicant's intervertebral disc prolapse because, if that had its clinical onset at a time that satisfies the SoP, the intervertebral disc prolapse can be accepted as a factor causing the lumbar spondylosis. Both disabilities would then become war-caused disabilities.

20. The applicant's hypothesis was that his war service caused his intervertebral disc prolapse in that he was exposed to an environment of high positive G forces at the time of the clinical onset of intervertebral disc prolapse and this led to his lumbar spondylosis. If acceptable, this hypothesis is sanctioned by the relevant SoPs.

21. There is no dispute that the applicant suffers from both intervertebral disc prolapse and lumbar spondylosis. Prof Sambrook (Ex A2/4) and Dr Smith (Ex R2/5), amongst others agree to this. The respondent did not query these diagnoses.

22. In accordance with the principles in the full Federal Court decision in Repatriation Commission v Deledio (1998) 49 ALD 193, 206 it is necessary to ascertain whether the hypothesis raised by the applicant is reasonable in that it accords with the requirements in the relevant SoPs.

23. The SoP on intervertebral disc prolapse contains several requirements applicable to the applicant. Cumulatively, they, and the applicant's hypothetical situation in relation to each, are:

* The applicant must have been exposed to an environment of high positive G forces (meaning forces of at least "2" "which can be produced by flying in modern high performance aircraft" according to the definition in clause 7) at the time of the clinical onset of intervertebral disc prolapse (factor 5(e)). The applicant argued that he was exposed to high G forces while flying. The aircraft could hit an air pocket and fall precipitately generating G forces. Dr Newman was of the opinion that G forces in excess of 2 could be generated by common manoeuvres engaged in by Liberator aircraft of the type carrying the applicant (Ex A5). The tribunal considers that the reference in the SoP definition to modern high performance aircraft was intended as an example only and not as a requirement. Dr Newman, an expert, is in no doubt that World War II aircraft such as the Liberator could generate such high positive G forces. The question of the time of clinical onset of intervertebral disc prolapse is discussed separately below.

* That exposure must have been related to the applicant's operational service. If factor 5(e) is satisfied there is no difficulty with this requirement. The exposure to G forces occurred during the applicant's operational service.

24. As regards the time of clinical onset, in order to ascertain when that occurred according to the available hypothesis, it is necessary to consider the applicant's evidence. He told the tribunal that at the end of each flight the crew were stiff and had severe back pain. It was the normal aftermath of every flight. The applicant would sleep for 12 to 14 hours and still be stiff and sore for about two days. He and his colleagues took no remedial action. They did not report the symptoms because they saw them as normal. Everyone suffered similarly.

25. After discharge from the air force the applicant had frequent back pain. It was annoying but not disabling. For a few years he regarded it as a condition he had to live with. However, in the 1950s he saw doctors about it. They prescribed aspirin. Later, a general practitioner arranged physiotherapy for the applicant and his back problem. That provided temporary relief. He then saw an orthopaedic surgeon in 1984. He had spinal injections.

26. A good deal of activity occurred in 1983-1984. An x-ray of the lumbosacral spine (T3B) in November 1983 identified lumbar spondylosis. This had been ordered by Dr Bragget. Dr Isaacs, the orthopaedic surgeon, referred the applicant for a CT scan in January 1984 (T3C).

27. The applicant's discharge medical papers (T3/13-14) made no mention of any back problem, indeed the back was assessed as "normal". The applicant said that he failed to mention his back because the condition was regarded as the normal aftermath of flying and because he was keen to pass through the discharge procedures as smoothly as possible.

28. The applicant was asked about Dr Isaacs' report at T3C dated 4 January 1984. Dr Isaacs diagnosed a left sided sciatic nerve root irritation most likely brought on by stenosis at the L5/S1 level over the left side. He called for a CT scan. The history given him was of an incident eight weeks earlier where the applicant lifted his bowls bag, twisted his lumbar spine, and felt severe pain in the groin and testicle over the left side. That got better but was succeeded by pain in the left buttock radiating down the left leg. Dr Isaacs made no mention of a history of earlier back pain. The applicant imagined that he would have mentioned his pre-existing condition but he could not remember. There was no doubt that the bowls bag incident caused intense pain but the applicant saw it as an aggravation of the underlying condition.

29. The applicant considered the date of onset of his condition given in his claim (T4). He had written "early postwar years" because he did not know a specific date. At T4/25 he had provided a list of medical interventions relating to the back. The earliest doctor named was Dr Bragget whom he saw on a "number of occasions during post war years". Dr Bragget had resorted to anti-inflammatory tablets and physiotherapy. In oral evidence the applicant said he had seen Dr Laver in the 1950s before Dr Bragget but had not listed Dr Laver because his practice had been wound up.

30. The applicant told Mr Marsh of the physical requirements flying on Liberators. He had to hoist himself up through the bomb bay to enter the craft. He sat on a small, backless stool to do the radio work and then had to climb into the turret to operate guns.

31. Mr Marsh quizzed the applicant about his physical activities. These included gardening from after the war. The applicant grew vegetables and tilled the soil rather than digging it. The applicant had taken up bowls in preparation for retirement (he retired in 1982). He had played cricket throughout the years depending on his back condition. He and his wife had engaged in ballroom dancing from before the war. This appears to have ended in the 1970s (Ex R2/4).

32. The applicant told Mr Marsh that he had been aware of the onset of his disability and felt the need for medical attention from the time he was discharged. He did not pursue this for some years, however, because he felt he had to learn to live with the disability.

33. Addressing T5 the applicant agreed that he had there written that the intervertebral disc prolapse had its onset in approximately the 1950s. He said he now thinks it could have been as early as 1947. Dr Sherbon (T6/42) placed the onset as the 1950s, but this was at the applicant's suggestion. Dr Sherbon was not his doctor then.

34. Mr Middleton agreed that 1983-1984 was the first time that he had seen a doctor about sciatic pain.

35. There is a common theme in the T documents relating to the various conditions as described by the applicant and Dr Sherbon. Both writers tend to place the start of problems as in the 1950s. Ms Buss suggested, with assent by the applicant, that these references were to when the applicant was treated rather than when he first experienced symptoms.

36. Ms Buss summarised the applicant's case. There are no earlier investigations indicating the presence of intervertebral disc prolapse and lumbar spondylosis than those in late 1983 or early 1984 (T3B and T3C). The applicant has experienced symptoms since 1945. The intervertebral disc prolapse SoP requires in clause 2(b) that the applicant has had a protrusion, etc of an intervertebral disc "causing local pain and stiffness, and/or pain and paraesthesia radiating into the upper limbs ... or into the lower limbs ...". The applicant has posited that he had pain and stiffness during operational service. He has explained why these were not reported. His back pain continued after his discharge. He first saw a doctor for treatment in the 1950s. The 1983 incident involving the bowls bag was the first acute incident.

37. Ms Buss argued that the two major experts supported the applicant. Prof Sambrook saw it as possible that the intervertebral disc prolapse occurred during the war years. Dr Smith considered it "more likely than not" that the clinical onset of his lumbar degenerative disease was in 1983 but thought it conceivable that was from the early 1950s. As regards the intervertebral disc prolapse, Dr Smith considered it occurred in 1984. He wrote that,

"[I]n the event that he had an intervertebral disc prolapse when he was engaged in his war service I would have thought that he would have had recognisable symptoms of back pain and sciatica around that time and would have been seeking medical treatment. It would be unlikely that he could have continued in the activities he stated he is able to continue in" (Ex R2/6).

The tribunal notes that he says that it would be unlikely, but not that it would be impossible. Dr Smith thought it "highly unlikely" [but not impossible] that the applicant could have suffered an intervertebral disc prolapse prior to the onset of his lumbar degenerative disease. Ms Buss reasoned that Dr Smith's opinion was not fatal to a reasonable hypothesis submission.

38. Mr Marsh summarised for the respondent. He emphasised that the onset of the intervertebral disc prolapse had, under the SoP, to have occurred, according to the hypothesis, at the time of the experiencing of the high G forces, ie during the war. The leading case on clinical onset is Re Robertson and Repatriation Commission (1998) 50 ALD 668. Clinical onset occurs either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time. Thus a clinical onset can be said to have occurred retrospectively even if a condition was not originally diagnosed.

39. The applicant had said that the stiffness and pain he suffered were experienced by all fliers. It would be absurd to suggest that they all experienced intervertebral disc prolapses, Mr Marsh said. The pain described by the applicant was a slow and insidious pain that developed over a long period, not an acute pain such as clause 2(b) of the SoP would suggest. It was significant that the applicant sought no treatment during service and that his back was regarded as normal on discharge.

40. The documentary evidence refers consistently to treatment no earlier than in the 1950s. Dr Smith (Ex R2) had relied on Dr Isaacs' report of 4 January 1984 (T3C) as the earliest evidence of the applicant experiencing radiating pain, "a classic symptom of intervertebral disc prolapse", in order to find a clinical onset at that time. Mr Marsh critiqued the reports by Prof Sambrook. In Ex A3 he had said that the intervertebral disc prolapse had its clinical onset "probably not at least until the 1950s at the earliest and more likely not until the 1980s" (Ex A3/5). In Ex A4 he said that the "back pain first became severe enough to warrant seeing his local doctor in the early 1950s, so this is the reasonable time to date the onset of his intervertebral disc disease. I generally prefer this to the 1980s because, although the latter was a prominent episode, this is a progressive process over many years and he clearly had a degree of symptoms from the 1950s onwards making the former the better date, but earlier than that relatively unlikely". Mr Marsh commented on the inconsistencies between the two reports. In Ex A3 Prof Sambrook favoured the 1980s as the date of onset but then changed to the 1950s.

41. Mr Marsh suggested that, if the applicant had sustained an intervertebral disc prolapse during service, it is unlikely that he could have continued such activities as hoisting himself onto the plane through the bomb bay or conducting himself up into the gun turret.

42. Mr Marsh submitted that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis. He cited the recent full Federal Court decision of Bull v Repatriation Commission [2001] FCA 1832 as authority. He quoted the following paragraphs from the joint judgment by Emmett and Allsop JJ:

"18 It is important to understand the following about East. The Court said that an hypothesis is not reasonable if it is obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous. However, the Full Court did not say that if an hypothesis was not obviously fanciful or not impossible, or not incredible or tenable or not too remote or not too tenuous, it was therefore necessarily reasonable. The material must point to the connecting hypothesis: see the emphasised paragraph in [17] above. ...

"21 There is no doubt that the Tribunal is obliged to look at all the material, not just some of it. It is not entitled at this point to find facts or reject matters. See generally Gleeson v Repatriation Commission (1994) 34 ALD 505, 509.

"22 The formation of the opinion called for by subs 120(3) involves an assessment of the factual material before it. It involves reaching an opinion about a factual matter. It is, in that sense, a question of fact: Bey, supra at 373 and Repatriation Commission v Owens (1996) 70 ALJR 904. Here the Tribunal, on the material before it, formed the opinion that a relevant reasonable hypothesis was not raised from the material. The primary judge said that that was a question of fact and that no error of law (and so no question of law for s 44 of the AAT Act) was presented. ...

"41 However, the inability rationally to characterise the hypothesis as fanciful, etc, does not answer the inquiry for subs 120(3). As set out in East, supra at 533:

A reasonable hypothesis requires more than a possibility, not fanciful or unreal, consistent with the known facts. It is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities."

43. Mr Marsh submitted that consideration of all the evidence suggests a clinical onset in 1983 or, failing that, the 1950s at the earliest.

44. Mr Marsh relied on the applicant's evidence as to his ability to play cricket, bowls and engage in gardening and ballroom dancing until about the 1980s.

45. Ms Buss responded. She noted that the SoP does not call for the applicant's pain to be "acute". A SoP cannot be read down to disadvantage a veteran. The SoP is definitive as regards the symptoms that can be present to indicate the presence of an intervertebral disc prolapse attributable to war service.

46. As regards the requirement in factor 5(e), that the clinical onset coincide with the exposure to G forces, one cannot know the precise onset of the applicant's intervertebral disc prolapse. There is, however, no evidence that it did not occur when the G forces were exerted.

47. As regards Prof Sambrook's change of mind, Ms Buss had asked him to review his opinion because he had based his earlier opinion on a balance of probabilities. In Ex A4 he merely reconsidered on the basis of the reasonable hypothesis standard. In this legal context there is nothing wrong with an expert stating that he or she prefers a particular date as the date of an event but to state also that a different date is possible.

48. Ms Buss considered that there was enough in the applicant's description of symptoms to satisfy the Robertson case (supra) criteria for a clinical onset during service.

49. The applicant's capacity to engage in gardening, bowls, dancing and cricket is not sufficient material to disprove the reasonable hypothesis beyond a reasonable doubt.

50. Mr Marsh reiterated in response that the respondent was not relying on disproof of the hypothesis beyond a reasonable doubt. The respondent was arguing that the hypothesis is not reasonable.

51. The tribunal has considered Mr Marsh's submissions as to the lack of reasonableness of the hypothesis and makes several findings.

52. First, the tribunal interprets clause 2(b) of the SoP literally and finds that a hypothesis can be reasonable where it suggests only that a veteran experienced local pain and stiffness. The tribunal finds that the pain need not be described as acute. This is for two reasons. First, in other SoPs dealing with such conditions as lumbar spondylosis (eg SoP 27/99) where acute pain is required, as in a trauma to the lumbar spine, the SoP explicitly states this. All SoPs are authored officially by the chairman of the Repatriation Medical Authority. They are legislative instruments. The canons of statutory interpretation suggest that express mention of a certain requirement in one instrument (here the SoPs on spondylosis) means that the omission of that requirement in another similar instrument (the SoP on intervertebral disc prolapse) suggests that it is not an essential requirement in the "similar" instrument.

53. Second, and more substantially, the tribunal subscribes to the electronic medical treatise, Harrison's Online (http://www.harrisonsonline.com), which says, as follows, about conditions such as the applicant's:

"Back and Neck Pain

"Lumbar Disk Disease

"This disorder is a common cause of chronic or recurrent low back and leg pain. Disk disease is most likely to occur at the L4-L5 and L5-S1 levels, but upper lumbar levels are involved occasionally. The cause of the disk injury is often unknown; the risk is increased in overweight individuals. Degeneration of the nucleus pulposus and the annulus fibrosus increases with age and may be asymptomatic or painful. A sneeze, cough, or trivial movement may cause the nucleus pulposus to prolapse, pushing the frayed and weakened annulus posteriorly. In severe disk disease, the nucleus may protrude through the annulus (herniation) or become extruded to lie as a free fragment in the spinal canal.

"The mechanism by which intervertebral disk injury causes back pain is controversial. The inner annulus fibrosus and nucleus pulposis are normally devoid of innervation. Inflammation and production of proinflammatory cytokines within the protruding or ruptured disk may trigger or perpetuate back pain. Ingrowth of nociceptive (pain) nerve fibers into inner portions of diseased intervertebral disk may be responsible for chronic 'diskogenic' pain. Nerve root injury (radiculopathy) from disk herniation may be due to compression, inflammation, or both; pathologically, varying degrees of demyelination and axonal loss are usually present.

"The symptoms of a ruptured intervertebral disk include back pain, abnormal posture, limitation of spine motion (particularly flexion), or radicular pain. A dermatomal pattern of sensory loss or a reduction in or loss of a deep tendon reflex is more suggestive of a specific root lesion than the pattern of pain. Motor findings (focal weakness, muscle atrophy, or fasciculations) occur less frequently than sensory or reflex changes, but a myotomal pattern of involvement can suggest specific nerve root injury. Lumbar disk disease is usually unilateral Fig. 16-4), but bilateral involvement does occur with large central disk herniations that compress several nerve roots at the same level. Clinical manifestations of specific lumbosacral nerve root lesions are summarized in Table 16-1. There is evidence to suggest that lumbar disk herniation with a nonprogressive nerve root deficit can be managed conservatively (i.e., nonsurgically) with a successful outcome. The size of the disk protrusion may naturally decrease over time.

...

"The correlation of neuroradiologic findings to symptoms, particularly pain, is often problematic. As examples, contrast-enhancing tears in the annulus fibrosus or disk protrusions are widely accepted as common sources of back pain. However, one recent study found that over half of asymptomatic adults have annular tears on lumbar spine MR imaging, nearly all of which demonstrate contrast enhancement. Furthermore, asymptomatic disk protrusions are common in adults, and many of these abnormalities enhance with contrast. These observations strongly suggest that MRI findings of disk protrusion, tears in the annulus fibrosus, or contrast enhancement are common incidental findings that by themselves should not dictate management decisions for patients with back pain. The presence or absence of persistent disk herniation 10 years after surgical or conservative treatment has no bearing on a successful clinical outcome" (http://www.harrisonsonline.com/server-java/Arknoid/amed/harrisons/co_chapters/ch016/ch016_p05.html).

54. The tribunal notes in particular the observation that "asymptomatic disk protrusions are common in adults ...". The tribunal takes this to indicate that an intervertebral disc prolapse is not necessarily accompanied by pain. However, to be an intervertebral disc prolapse within the SoP definition, pain must be present. However, the SoP, in apparently permitting that pain to be not acute pain, seems content to recognise as an intervertebral disc prolapse a prolapse that causes some, albeit not acute, pain. According to the hypothesis, such pain was apparently experienced by the applicant in his air force days. The fact that medically the applicant's intervertebral disc prolapse could have caused anything from no symptoms to significant symptomatology means that the respondent's arguments about the strenuous nature of the applicant's work associated with Liberators tends to fall away. The tribunal therefore finds that the hypothesis is not unreasonable on the basis that it is not fanciful or unreal, or inconsistent with the known facts. The tribunal considers that Dr Smith, in anticipating a greater degree of incapacity in a veteran affected by a intervertebral disc prolapse, was referring to the more usual, symptomatic, type of case that an orthopaedic specialist would see. It is most unlikely that an asymptomatic sufferer would seek treatment.

55. The tribunal is not satisfied beyond reasonable doubt that, on the evidence, there is no sufficient ground for determining that the date of clinical onset was coincident with the applicant's exposure to high level G forces. The tribunal accepts Ms Buss's argument that it cannot be shown that the applicant did not have an intervertebral disc prolapse during service and that the concentration in the evidence on a 1950s onset is attributable to when the applicant decided to seek treatment for the condition. In the tribunal's view, the pain the veteran said he experienced during the war would suffice for a finding of clinical onset at that time in accordance with the principles in the Robertson case (supra).

56. These findings on the applicant's intervertebral disc prolapse, ie that it a war-caused disability, facilitate findings in the applicant's favour as regards lumbar spondylosis. Factor 5(j) of SoP 27/99 allows that lumbar spondylosis may be war-caused where the veteran was suffering a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse. It is the applicant's hypothesis that this is what occurred. Dr Smith (Ex R2/6) disagrees. However, he says only that it is highly unlikely that the intervertebral disc prolapse preceded the lumbar spondylosis. He did not say it was impossible. He was also reasoning to an extent on the basis that an intervertebral disc prolapse would necessarily produce acute pain and restriction on activity. The tribunal finds that the hypothesis relating to lumbar spondylosis satisfies the SoP and is not dislodged beyond a reasonable doubt by any evidence to the contrary.

Conclusion

57. The tribunal has found that the disabilities of lumbar intervertebral disc prolapse and lumbar spondylosis are war-caused conditions. Mr Marsh was at pains to record that the respondent's case should not be taken to suggest that the respondent has anything other than respect and gratitude for the service rendered to Australia by the applicant. The tribunal can understand why the respondent was not prepared to grant coverage for these lumbar spinal conditions. One would naturally expect an intervertebral disc prolapse to generate significant symptoms and severely restrict movement. This would make it difficult to credit that the applicant could have carried on business as usual in the RAF. There was also a considerable body of documentary reference to pain and medical treatment in the 1950s, suggesting that clinical onset of intervertebral disc prolapse during the war was unlikely. However, for the reasons given earlier, notably that quite serious spinal conditions can be asymptomatic, the tribunal has found in the applicant's favour.

Decision

58. The decision under review is set aside and the tribunal substitutes its own decision that, from 15 August 1999, the applicant suffers from the war-caused disabilities of lumbar intervertebral disc prolapse and lumbar spondylosis. The tribunal remits the matter to the respondent for calculation of the appropriate rate of Disability Pension.

I certify that the 58 preceding paragraphs are a true copy of the reasons for the decision herein of

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

Associate

Date/s of Hearing 21 January 2002

Date of Decision 15 February 2002

Counsel for the Applicant Ms J Buss, Legal Aid Commission

Counsel for the Respondent Mr J Marsh, Department of Veterans' Affairs