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Administrative Appeals Tribunal of Australia |
Last Updated: 13 February 2003
ADMINISTRATIVE APPEALS TRIBUNAL )
VETERANS' APPEALS DIVISION |
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Re |
MARY SMITH |
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And |
REPATRIATION COMMISSION |
Tribunal |
Mrs Joan Dwyer, Senior Member |
Date 13 February 2003
Decision
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The Tribunal affirms the decision under review. |
(Sgd) Joan Dwyer
VETERANS' AFFAIRS - claim to have death of veteran accepted as defence-caused - death from intracerebral haemorrhage - whether connection with service raised through "inability to undertake more than a mildly strenuous level of physical activity" as a result of disc prolapses and laminectomy - definition of that concept in SoP requiring reference to activities greater than 3 METS - decision affirmed
PRACTICE AND PROCEDURE - difficulty applying METS Table designed for cardiorespiratory impairment to activities prevented or restricted due to back pain - question whether appropriate to focus on ability to undertake any one activity from 4-5 METS range which veteran could perform, rather than on general incapacity due to back prolapses and resulting reduction in ability to undertake physical activity
Veterans' Entitlements Act 1986 ss 70(1), (5), 120(4) and 120B(3),
Statement of Principles Instrument No. 8 of 1999
Statement of Principles Instrument No. 53 of 1999
Statement of Principles Instrument No. 131 of 1996
Statement of Principles SoP Instrument No. 93 of 1997
Repatriation Commission v Gorton [2001] FCA 1194
Harris v Repatriation Commission (2000) 62 ALD 174
Arnott v Repatriation Commission (2001) 32 AAR 445, 63 ALD 575
McKenna v Repatriation Commission (1999) 29 AAR 70
Roncevich v Repatriation Commission [2002] FCA 1458
13 February 2003 |
Mrs Joan Dwyer, Senior Member |
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BACKGROUND
1. This is an application by Mrs Smith for a review of a decision refusing her claim for a widow's pension under the Veterans' Entitlements Act 1986 ("the Act") in respect of the death of her husband, Garry Smith, who died on 9 November 1998. The decision under review is the decision of the Repatriation Commission made 3 February 1999 and affirmed by the Veterans' Review Board on 28 August 2000.
2. The death certificate indicated the cause of death as follows (T20 p141):
Intracerebral Hemorrhage [sic] - 3 days;
Metastatic Adenocarcinoma of Esophagus [sic] to Liver, Retroperitoneal Nodes - 1 year
3. The submission made on behalf of Mrs Smith was that her husband's death at the age of 47, from an intracerebral haemorrhage was defence-caused. She submitted that he had a defence-caused inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of the cerebral haemorrhage. The basis for that submission was that Mr Smith had a double intervertebral disc prolapse, which had been accepted as defence-caused from 2 May 1989, and which restricted his ability to engage in physical activity.
4. Mr Turner, an advocate with the Returned & Services League of Australia, appeared for Mrs Smith. Mr Rudge, an advocate with the Department of Veterans' Affairs, appeared for the Repatriation Commission. Mrs Smith gave evidence. Dr Morgan gave evidence over the telephone on behalf of the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") and also the exhibits tendered during the hearing.
5. At the conclusion of the hearing Mr Rudge suggested that he should forward to the Tribunal the original claim and other documents in respect of Mr Smith's back condition. It had been accepted as defence-caused under the Act on 16 May 1990, with effect from 2 May 1989. The Tribunal received those documents and marked them as exhibit R5. While writing the reasons for decision, I noticed that there could be an issue whether a game of squash, after which Mr Smith suffered back symptoms, had been service-related. I arranged for the District Registrar to write to the parties inviting written submissions on the issue. I received a short written submission, with one attached page of medical records dated 4 March 1986 from Mr Turner. I also received a submission, and a slightly amended version of that submission, from Mr Rudge, together with 546 copy pages from Mr Smith's RAAF Personnel File, and a letter commenting on some of the entries in that file. The RAAF Personnel File has been marked as exhibit R6. I have had regard to those submissions and the further material lodged with them.
MR SMITH'S SERVICE
6. Mr Smith served in the Royal Australian Air Force ("the RAAF") from 12 July 1977 until his death. The whole of that service was service within Australia, and was defence service as defined under s 68 of the Act.
APPLICATION OF THE LEGISLATION
7. Section 70(1) of the Act provides so far as relevant:
(1) Where:
(a) the death of a member of the Forces . . . was defence-caused; or
. . .
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the member--pension by way of compensation to the dependants of the member; or
. . .
in accordance with this Act.
8. Sections 70(5) provides so far as relevant:
(5) For the purposes of this Act, the death of a member of the Forces . . . shall be taken to have been defence-caused, if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
. . .
(d) the injury or disease from which the member died, or has become incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e) the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence-caused injury or defence-caused disease, as the case may be;
Note: The effect of paragraph (e) is that, if the member has died from an injury or disease that has already been determined by the Commission to be defence-caused, the death is to be taken to have been defence-caused. Accordingly the Commission is not required to relate the death to defence service or peacekeeping service rendered by the member and sections 120A and 120B do not apply.
but not otherwise.
9. The relevant standard of proof is that provided for in s 120(4) of the Act which provides as follows:
(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.
10. Section 120B(3) provides as follows:
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(3) In applying subsection 120 (4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B (3) or (12); or
(ii) a determination of the Commission under subsection 180A (3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
11. There has, at all relevant times, been a Statement of Principles ("SoP") in respect of cerebrovascular accident. The current SoP is Instrument No. 53 of 1999. Clause 2(b) of that SoP provides that "cerebrovascular accident" means "cerebral ischaemia or intracerebral haemorrage". The SoP in force at the time of the Repatriation Commission decision was Instrument No. 8 of 1999.
12. The Full Court of the Federal Court has held in Repatriation Commission v Gorton [2001] FCA 1194 that the SoP current at the date of hearing should be applied. Although that is the primary position, it can be varied where an applicant seeks to rely on a SoP which has been repealed, which was more favourable to the applicant. That was not the case here. In this matter the parties agreed that the relevant SoP is that current at the date of hearing, namely, Instrument No. 53 of 1999. That SoP contains many factors which can provide the basis for it to "be said that, on the balance of probabilities, . . . death from cerebrovascular accident is connected with the circumstances of a person's relevant service". The only factor relied upon by Mr Turner was factor 5(d) which provides as follows:
5. The factors that must exist before it can be said that, on the balance of probabilities, cerebrovascular accident or death from cerebrovascular accident is connected with the circumstances of a person's relevant service are:
. . .
(d) an inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of cerebrovascular accident;
That concept is defined in clause 8 of the SoP as follows:
"an inability to undertake more than a mildly strenuous level of physical activity" means the presence of an incapacity which prevents any physical activity greater than 3 METS, where a "MET" is a unit of measurement of the level of physical exertion. 1 MET = 3.5 ml of oxygen/kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate. (A MET approximates to the energy required to rest quietly in bed. A 70 kg man would use about 3 METS when walking at 4 km per hour.);
13. Clause 4 of the SoP provides as follows:
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.
14. The whole of Mr Smith's service was relevant service. There are thus two issues for determination. The first is whether the Tribunal can find to its reasonable satisfaction that Mr Smith had an inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of his cerebrovascular accident. The second issue is whether, if the Tribunal finds that he did have that inability, it is related to his service.
(i) inability to undertake more than a mildly strenuous level of physical activity
15. The service medical records were before the Tribunal (Tdocs pp5-74 R2 and R4). They show that Mr Smith complained of back pain as early as July 1984 (R4 p62), when he said it was worse sitting and lying. At that time the problem was diagnosed as postural backache. The next presentation for a sore back was on 8 May 1987 (R4 p58). The note reads, "Sore back after playing squash yesterday. Slept all night".. On examination, limitation of movement with pain to left buttock was noted and a diagnosis of "muscular injury" was made. Bed rest was prescribed. On 20 May 1987 a doctor noted the symptoms were not settling and Mr Smith was referred for physiotherapy (R4 p57a). A review on 10 July 1987 noted "back and sciatica was improving but getting worse again". Voltaren was prescribed. On 22 July 1987 there were neurological signs, such as sciatic pain and pins and needles down the right leg. The physiotherapist reported that right ankle jerk was absent on 14 July 1987. A CT scan was arranged in September 1987. The CT scan showed that Mr Smith had L4-5 and L5-S1 disc prolapses with quite pronounced spinal stenosis, and probably had S2 and S1 nerve root compression at the level of the stenosis (R4 p57).
16. On 19 October 1987 Mr Jensen, in a report, stated (R4 p55a):
His x-rays are remarkable, in that they show calcified disc prolapses, at L4-5, and L5-S1, of quite astonishing degree, and causing relative canal stenosis.
COMMENT
I would regard operation as eventually being inevitable, but for the moment, the situation seems stable, and Sgt. Smith is clearly not keen to have surgery. This is his perogative, and I have suggested that I review him in three months, to see if the situation has spontaneously improved. I somehow doubt whether a satisfactory remission will occur without recourse to a two-level laminectomy.
17. That laminectomy took place on 28 March 1988. A review of 19 July 1988 (R4 p54a) stated that the operation had not been as successful as originally hoped, but it was expected that Mr Smith would be improved further by physiotherapy. He was restricted to sedentary duties only, and was not to lift greater than 5kg. On 13 April 1989 Mr Smith reported that he felt the parathesia in his legs was worsening and he had relatively constant lumbar pain. The medical record notes "he is not functionally impaired walking OK, working OK, needs to move around no muscle weakness or bowel problems" (R4 p51).
18. At a review on 15 August 1989 the reviewing medical officer noted:
SGT Smith's duties are currently sedentary and his back does not interfere with these duties. The pattern of SGT Smith's back pain does suggest that it may worsen and as such it would be advisable to review him in twelve months. (R4 p46b)
The medical officer noted that Mr Smith did initially improve after the laminectomy but over recent months he had had a return of his old symptoms. The report also noted that a review by Mr Jensen suggested further surgery would not be helpful. The medical officer noted that Mr Smith was limited in his amount of exercise due to back pain. Mr Smith's fitness rating was noted to be G5T which was explained as follows (R4 pp46a and 46b):
(unfit bending, heavy lifting > 5kg and field/tactical deployments. To exercise and parade at MO discretion)
Mr Smith was stated to be "Unfit PT [physical training] forward or field deployments".
19. Throughout 1989 and 1990 there is reference in the service medical records to pain in the legs and back (R4 pp42-45). In August 1990 there is a note, on which the respondent relied, "walking one hour/day" (R4 p42).
20. Mr and Mrs Smith did not marry until 1998, but they were living as a couple from about 1992, having met in February 1991. Mrs Smith is a trained nurse. Because the definition in the SoP of "inability to undertake more than a mildly strenuous level of physical activity" relates to physical activity greater than 3 METS, Mr Turner took Mrs Smith to some of the activities set out in Table 1.1 of the Guide to the Assessment of Rates of Veterans' Pensions ("GARP") 5th Edition. That sets out activities with energy expenditure of 3-4 METS as follows:
3-4 METs Energy expended in walking at an average pace
* Walking at average walking pace (5 km/h).
* Golf (pulling buggy).
* Machine assembly.
* Cleaning car (excludes vigorous polishing).
* Minor car repairs.
* Tidying house.
* Welding.
* Cleaning windows.
* Table tennis.
* Pushing light power mower over flat suburban lawn at slow steady pace.
* Vacuuming.
* Sedate cycling (10 km/h).
* Shifting chairs.
* Light gardening (weeding and water).
* Hanging out washing.
* Making bed.
21. Mrs Smith said that for the seven years prior to his death, that is from about November 1991, Mr Smith was not able to play a full round of golf, or to mow his lawn in one go. She said that he was restricted in these activities because of pain from his back condition. Mrs Smith explained (trans. p6)
Even before he would stop doing anything I could see he would go very pale, he would be sweaty and he would just have to stop because of the pain and he would come inside. He would take some more analgesia. He would sort of sit. He would lay. He would walk. He would go back and finish his job because it doesn't matter what he was doing and he wasn't go [going] to just hang - he was too young to just not do anything. So he would really, really try very hard but it was always he couldn't do anything for long.
22. There is support for Mrs Smith's evidence as to how hard her husband pushed himself, in endeavouring to engage in activities such as walking and bike riding, in the medical examination which forms part of exhibit R5. The medical examiner, Dr Infeld there noted on 29 March 1990:
Veteran pushes himself to the limits of pain tolerance in order to exercise (to lose weight). Walks for 35 minutes each day.
23. Mrs Smith said that her husband walked to work on a few occasions when they were living in Adelaide, and also cycled to work sometimes during that period. But she added, "He only did that twice because it was just too uncomfortable".. She said he tried again after they moved to Sydney as part of his physical training, to strengthen his back. She said that when they were living in Adelaide, he cycled for about an hour to ride eight kilometres and took about an hour and three-quarters to walk that distance. She said he only did either a couple of times because it was just too much. When they moved to Sydney they lived further from the base so he cycled sometimes but did not walk to work.
24. Mrs Smith said her husband did try to help tidying the home and making the beds but he could not continue for long because of pain. She said he tried vacuuming but could only do one room and could never vacuum a full house. She said it took him about half an hour to wash a car because he would have to stop and sit down and then get back to it because of the pain down his right leg.
25. In cross-examination, Mr Rudge referred Mrs Smith to R4 p41a where a periodic health assessment review, dated March 1996, notes that Mr Smith had just started walking 8 kilometres twice a week and using an exercise bike and that he had been advised to gradually increase his exercise regime. Interestingly, the same document also notes "Exercise: nil (PT at MO Discretion)", and describes Mr Smith as "Inactive".. Mrs Smith explained that her husband had tried very hard to stay in the RAAF and had succeeded in having his lower fitness rating lifted, but she said he could only do five minutes of exercise at a time before needing a break. She said he did work very hard at it.
26. Mr Rudge, in his statement of Facts and Contentions, at paragraphs 12-16, had extracted various entries from the service medical records (SMR), which he submitted showed that Mr Smith did have the ability "to undertake more than a mildly strenuous level of physical activity" during the relevant seven year period. They were as follows:
12. On 15 October 1991 Mr Smith reported right knee pain with cycling. He had been training for the previous two months for the upcoming Victorian Bike Ride (p.12 SMR).
13. On 11 February 1993 he stated that he was riding "each way to work daily". A distance was noted, but it is difficult to decipher (p.9 SMR).
14. On 8 March 1996 he said he had been walking eight kilometres twice a week and using an exercise bike for the previous two weeks (p.7 SMR).
15. On 6 August 1996 he stated that was exercising regularly, two or three times per week, and he had no joint problems (p.4 SMR).
16. At an examination on 7 August 1996 he said that low back pain was "irregular only" and did not stop him doing any tasks (p.3 SMR).
27. Mr Rudge also relied on R4 p38c, a report of a health assessment in September 1991, in which it is noted that Mr Smith was exercising two to three days a week for one to one and a half hours ("walking/cycling 3 years"). He suggested, and Mrs Smith agreed, that at the time Mr Smith was training for the Great Victorian Bike Ride.
28. From the medical records in R4, it is unlikely that Mr Smith could have been walking and cycling at a strenuous level for three years before September 1991. The laminectomy took place in March 1988 and the recovery from it was slow and disappointing. In June 1989 he was complaining of "pains in legs similar to prior to laminectomy" (R4 p49). Mr Smith was restricted to sedentary duties only, in a review in August 1989. The examining doctor added, "Needs access to an MO supervised diet/weight loss exercise programme to aid member's return to fitness". It may be that training for and participation in the Great Victorian Bike Ride was part of that MO supervised exercise programme.
29. Mrs Smith agreed that Mr Smith had gone on the Great Victorian Bike Ride in 1991. Mrs Smith said he enjoyed doing it, but he never went on another one. She said (trans. p11) "I guess the bike ride really took it out of him". She said she thought that it was part of a RAAF sporting activity (trans. p23).
30. Mr Rudge, in cross-examination, referred to a number of other medical records. A further review on 11 February 1993 (R4 p32), states that ongoing weightlifting and running restrictions were related to a past history of laminectomy. On 11 October 1995, R4 p28, there is a medical fitness assessment stating, "currently unfit f/t [field tactical] deployment could be f/t deployment at MO discretion".. On 8 March 1996 it was noted that Mr Smith had not been bike tested due to his bodily mass index being 33.8. The records states (R4 p26):
Has been walking 8km twice/week & using exercise bike for last couple of weeks. Given further dietary advice - ? fat, ? fibre, avoid purine rich foots. Counselled re ? cholesterol & trigs. Advised to continue current exercise regime & commenced on fortnightly weigh-ins. For review in 90 days.
31. In August 1996 there is reference to another fitness assessment when Mr Smith's BMI was again over 30. He said that he exercised regularly 2-3 times a week. He reported to a medical officer on 7 August 1996 (R4 p18):
LBP [low back pain] irregular only does not stop him doing any tasks
32. It was that examination which led to Mr Smith's medical upgrade on 7 August 1996. The comments at paragraphs 17 and 18 of the Employment Standard Review are as follows (R4 p17b):
17. Functional Disabilities (Cross-reference Workplace Assessments)
The member has been doing most of his work activities normally without significant symptoms. He has passed sections of his PFT. He failed the sit up component and it is expected that he would pass after an interval of training. Overall, the member feels confident to perform heavy lifting and bending and has indicated in his Health Statement that he has been doing so. Of note is the absence of entries in his medical file of any pack pain recurrence since March 1990. The members condition has improved since his last MFB and with an increase in physical training he should have less chance of developing lower back pain. An increase in activity would help with weight loss and decrease his episodes of gastro oesophageal reflux.
18. Current Duties and General Comments (including prognosis)
Currently performing duties at Management Services Team S/NSW, At the present time the member's lower back pain is quiescent. The possibility of recurrence remains. The member states that he is medically fit to deploy to a bare base and perform base combatant duties. This Board sees no reason to question this assessment.
33. Mrs Smith was asked about the records indicating that Mr Smith had told medical officers that he was exercising regularly, and that his pain did not stop him doing any tasks. She said (trans. p12):
He is desperate to get upgraded to the extent that I don't know that, in all fairness, I don't think he was actually telling the truth.
Mrs Smith added (trans. p13):
Well, we would go shopping of a Thursday evening and that was sheer bedlam for him because he had been working all day and like we wouldn't be able to walk around the supermarket. He would actually have to go out and sit out on a seat for awhile. What year are you talking about? --- Oh, I am talking about from mid '90s; '95. And why would he have to go and sit on a seat? --- Just the pain. He just felt that the leg was cramping. The pain was where? --- Lower back, going down his right leg
34. Mrs Smith said Mr Smith would be sweating with the pain, but he wanted to do everything. She said he never played squash from when she knew him. Mrs Smith said that Mr Smith tried to use an exercise bike at home, but he would only do it for about five minutes at a time. She said that she started swimming with him, before they moved from Adelaide to Sydney, in 1995 and then continued it in Sydney for about 12 months. She said they went about three times a week.
35. Mr Turner relied on a Department of Veterans' Affairs report of a medical examination by Dr Proctor of 9 November 1990, (T6 pp80-84). Dr Proctor noted that Mr Smith had, "Back pain aggravated by bending, straining and prolonged sitting", that he wore a TENS machine, and that it was difficult to assess his loss of range of movement because of pain.
36. Mr Turner also relied on a psychiatric report by Dr Rastogi (Tdocs p87) referring to an interview on 9 November 1990. Dr Rastogi reported that Mr Smith had told him that his back was constantly in pain and that it affected him in prolonged standing. The history Dr Rastogi obtained included the following (Tdocs p87):
His movements are restricted, bending down or turning sideways produces severe pain. According to the patient, he used to play Squash and did Ten pin Bowling and also jogging. But he can not do any of these now. He just goes for walks some times.
According to him, the pain was present before the operation but he could bend and twist better, where as pain is little bit less now, it is a bit bearable. But otherwise his movements are more restricted.
Socially he says that every thing is curtailed. He can not go to the movies as much, . . .he can not go to the dancing due to the pain. He does see his friends, but lot less than before, because he feels like withdrawing and feels uncomfortable when every one seems to be enjoying themselves. He denies that he is intimidated by a company.
According to him, he argues a lot more with wife and family. He is short tempered and less tolerant. He disagrees about any small thing. Sexual side has also been affected due to his poor mobility.
37. Mr Smith's first wife, Cheryl Smith, made a statement in support of his claim to have his back condition accepted as defence-caused (part of R5). It was lodged with the claim on 8 August 1989. Mrs Cheryl Smith stated that Mr Smith was unable to perform manual tasks around the home such as mowing the lawn, gardening and minor house repairs, without pain and that those tasks were left to her to do or they had to call someone else in to do them. She wrote that he was also unable to perform minor repairs on the car, as bending over the motor, or squatting caused considerable pain. All minor repairs had to be done by a mechanic.
38. Mr Rudge did not deny that Mr Smith would have met the criteria in factor 5(d) of the SoP in 1989, and maybe 1990, but he submitted that the medical records (R4 pp17a and 17b) showed that there had been a significant improvement by August 1996 when, at a Department of Defence Employment Standard Review, Dr Austin, noted:
The member underwent an L4 and L5 laminectomy in March 1988 to relieve pressure from an L4-5, L5-S1 calcific disc prolapse. He had intermittent pain for several years after the operation and was assessed by a neurosurgeon and pain clinic team. He was treated with analgesic and with a TENS machine.
Since March 1990 there are no further entries regarding his back pain which is essentially quiescent. He has not used the TENS machine for several years.
39. However Dr Austin's statement that there were no entries regarding back pain since 1990, and that by 1996 the back pain was essentially quiescent, is contradicted both by the medical records and by the evidence of Mrs Smith. The medical records in R4 do refer to back pain until June 1992, and also mention discomfort and irregular back pain in 1996. They contain the following entries:
DATE |
COMMENT |
T DOCUMENT |
21 March 1990 |
"Pain in legs getting worse constant at work. Finding it difficult to concentrate at work, but still working O.K. O/E SLR 80o L & R. Neuro N.A.D. subjective & objective dysthesia. lateral legs P. R/V Neuro surg Pain Clinic |
R4 p44 |
03 April 1990 |
- there is a note that the Panadeine Forte taken for the pain was causing constipation so medication was changed to Mersyndol. |
R4 p44 |
26 April 1990 |
"Using Mersyndol for pain" |
R4 p43 |
04 June 1990 |
"Mersyndol . . . 4-6 hourly" "Temazepam . . . " |
R4 p43 |
26 June 1990 |
"Lost script for Mersyndol & Temazepam" |
R4 p42 |
05 December 1990 |
"Repeat Mersyndol for back" |
R4 p42 |
08 April 1991 |
"Return to pain clinic for stress management. Back still painful but does not feel aggravated by accident." Mr Smith had been in a car accident on 1 March 1991 |
R4 p41 |
11 October 1991 |
"Noted ? [decreased] flexion lumbar vertebrae to 70o" At a medical examination for treatment of knee and Achilles tendon problems |
R4 p40 |
17 June 1992 |
"LBP [low back pain] Double laminectomy 88 - Ongoing stiff and pain" |
R4 p36a |
11 February 1993 |
Not cleared fit for PFT weight lifting restriction running restriction exempt from PFT |
R4 p32 |
04 March 1993 |
"Already got restrictions ? no MFB [Medical Fitness Board] For R/W 3/12 [review] if < 29.9 for MFB for back" |
R4 p31 |
21 July 1993 |
"Also advised to increase exercise within tolerance exempt from PFT" |
R4 p30 |
11 October 1995 |
"MFB currently unfit for F/T deployment could be F/T deployment at MO discretion" |
R4 p28 |
29 February 1996 |
" for MFB L4 L5 S1 - dysfunction laminectomy 1988 Now discomfort on + off. Doesn't take analgesics" |
R4 p27 |
00 March 1996 |
"List of significant problems 1. Obesity 2. Inactive 3. Elevated blood lipids . . ." [emphasis added] Findings "Obese member no AFT performed. Has just started walking 8km x 2 week + exercise bike" |
R4 p41a |
07 August 1996 |
No TENS machine use 2-3 years LBP - irregular only - does not stop him doing any tasks" |
R4 p18 |
40. In summary those records do show back pain sufficient to lead to referral to a pain clinic and prescription of Panadeine Forte and Mersyndol for that pain throughout 1990 and in 1991, with a further referral to a pain clinic in April 1991. There is evidence that Mr Smith used a TENS machine until 1993 or 1994, that he had reduced lumbar flexion in October 1991 and that he reported ongoing low back pain and stiffness in June 1992 and back discomfort on and off in February 1996 and irregular back pain in August 1996. Mr Smith had been restricted to clerical duties only, until 7 August 1996, when Dr Austin, at the Employment Standard Review, recommended that he was medically fit to deploy to a bare base and perform combat duties. He had been exempt from PFT [physical fitness training] and MFB [Medical Fitness Boards]. His weight was repeatedly noted to be a problem, and he was described as "inactive", and advised to increase his exercise.
41. There is evidence that Mr Smith was depressed by the downgrading of his fitness level and the effect that had on his service career. Dr Rastogi, the psychiatrist, in a report dated 19 November 1990 (Tdocs p85-88), diagnosed an anxiety reaction and feelings of grief related to:
(i) his back problem;
(ii) his concern about career opportunity; and
(iii) effect of the symptoms on his family and social life.
42. That report led to Mr Smith's anxiety reaction being accepted as defence-caused on the basis that it was related to his back condition (T9 pp92-95).
43. Exhibit A3 was a statement from Mr Smith dated 1 August 1989, that is 18 months after his laminectomy, setting out his attitude to the restrictions imposed on him by his back problem. He wrote:
On 28 Mar 88 I underwent surgery on the lower back region for lumbar laminectomy.
The legacy of this surgery has left me with pain (often severe) in the region of the surgery, numbness down the outside of both left and right calves extending to the feet and toes.
The effects on my private life have been extensive. The pain in the lumbar area with resultant loss of mobility, has meant that most general tasks ie. gardening, household maintenance, rudementary car maintenance etc have been made virtually impossible. Sporting activities enjoyed prior to surgery, including golf, squash, badminton, jogging and ten pin bowling, have been curtailed.
The effects on my work life are that although my work is of a sedentary nature in that there is no lifting, pulling or pushing of any weight, I find that I am increasingly unable to remain seated for long periods of time ie. over 30 minutes. Continual sitting is just as greater [sic] strain, pain wise, on my lumbar area as is physical activity. This inability to remain seated requires me to continually leave my desk and walk around the office.
I feel my ability to perform general RAAF duties, . . . has been reduced to nil as a result of my incapacity and subsequent surgery.
Together with the legacy of the abovementioned problems I am now aware that the symptom which I suffered prior to surgery, that is, the intense pain in the lower limbs is returning. This symptom is, as before, progressively getting worse.
With the symptoms becoming progressively more incapacitating, coupled with the specialists opinion that further surgery would not be helpful, I do not know to what extent I will be able to continue the duties of my mustering.
I have been advised that I should be active and that a loss of weight could be of benefit. To this end I walk extensively in the mornings, evenings and at lunch time but have found the effects are adverse rather than of benefit in that the walking accentuates the numbness in my feet and legs.
Having regard to the limited career potential now offered with re-engagements of only 12 month periods, and the reduced promotion prospects, this disability has put a great strain on myself and my family. I am not secure in the knowledge that I am or will remain employable either in continued service with the RAAF or in civilian life. My desire and aim is to continue for as long as possible in service with the RAAF.
44. In his statement attached to his lifestyle report, dated 20 March 1990 (A4), Mr Smith wrote about the anxiety he was suffering as a result of the RAAF not offering him a permanent engagement, an offer which had been made to most of his peers. He wrote:
As a result of these uncertainties I have decided to attend night school in an attempt to gain qualifications to offer civilian employers should the RAAF consider I am no longer employable. This is proving difficult in that I am in situations most of the time where prolonged sitting in class is unavoidable. In my work situation I am able to leave my desk and walk around whenever I feel uncomfortable. Pain and tension are also making concentration difficult. Even with additional qualifications I am not sure, even marginally, that I will be employable in my chosen professional field.
With regard to the question "are there any activities I need help with" I am an independent person. If I attempt or start to do something and in the process discover that it hurts I will not give up or ask for help. On future occasions when a similar situation arises I will either not attempt the task or activity. If this is unavoidable I will do what is required and expected without asking for help and suffer the consequences.
45. Those statements were made by Mr Smith when he had had a significant recovery period after his laminectomy. They show that he still had substantial pain and physical restrictions. The history set out in the August 1996 Employment Standard Review and clinical notes (R4 pp17(a) and (b), 18) says that his back pain was "essentially quiescent" or "irregular" and it did not prevent him doing any tasks. There is also a record of discomfort "on and off" in February 1996 (R4 p27). Thus the 1996 medical records present quite a different picture from the earlier records. The two could be reconciled, either if Mr Smith improved dramatically some time after June 1992, or, if he decided to hide the extent of his pain in an attempt to improve his prospects of being medically upgraded, and so make his RAAF career more secure.
46. Mrs Smith said that her husband did not improve and was still very restricted by back pain in the mid 1990's and was, she believed, not truthful in the accounts he gave at service medical examinations at about that time. I accept that evidence. There is some support for Mrs Smith's evidence, that her husband was exercising less frequently than he told the doctors, in the fact that his obesity continued to be a problem. That is consistent with him not exercising as much as he was advised. However trouble with weight was first noted in 1978, (A5), before any back problem. I note, at R4 p20, a reference to a telephone call on 1 August 1996 at which Mr Smith was asked why he had not presented for a physical fitness training clearance. He replied it was because "I'm slack".. The reason he was "slack", may have been because of his difficulty due to pain.
47. I find on the basis of Mrs Smith's evidence that Mr Smith was very restricted in his physical activities from 1988 until his death. I accept her evidence that he was not truthful in the accounts he gave on service medical examinations, such as that on 7 August 1996, when he succeeded in having his fitness level upgraded. I find that Mr Smith exaggerated his ability to exercise, and understated his pain and discomfort, in order to achieve a medical upgrade so as to enhance his career within the RAAF.
48. I accept Mrs Smith's evidence that Mr Smith tried to maintain an exercise program, but that he could not maintain exercise at home on the exercise bike or lifting weights for more than five minutes or so at a time and that he tired easily when walking. The medical records also show that he developed knee and ankle problems easily when he tried to exercise, as well as further pain in his legs, similar to that before the laminectomy. I also accept her evidence that although he did sometimes walk to work, and ride his bike to work, it was not as regular as it might seem from the history given to doctors.
49. In the relevant period of seven years Mr Smith did not often report back pain, and sometimes reported that his back was not troubling him so much, and, as already discussed, at examination on 7 August 1996 he said that back pain did not restrict him doing any tasks. However, at least since May 1980 (A5) Mr Smith had suffered from epigastric pain, and on 14 November 1995 he was diagnosed with severe gastro-oesophageal reflux disease. A barium meal on 18 December 1997 first diagnosed the carcinoma (A5). Thus Mr Smith had other conditions, which may have meant that the effect of his back problems on his ability to exercise was not really tested during the period 7 August 1996 to his death in November 1998.
50. I consider that it is very significant that for almost the whole of the relevant seven year period, until he became seriously ill with the carcinoma, Mr Smith, while serving in the RAAF, was restricted to clerical or sedentary duties and was exempt from physical fitness training and Medical Fitness Boards. That would appear to indicate (using language in its ordinary sense rather than applying the definition in clause 8 of the relevant SoP) that throughout the relevant period Mr Smith had an inability to undertake more than a mildly strenuous level of physical activity. Otherwise, as a serving RAAF NCO, he would not have been exempt from standard service physical fitness training and medical fitness examinations.
51. However, the matters referred to by Mr Rudge in his Statement of Facts and Contentions, as set out at paragraphs 24 and 31, are capable of contradicting that impression. The difficulty is that there was no evidence as to the rate or distance Mr Smith cycled, during the Great Victorian Bike Ride, or as to his condition during and after the ride. I was surprised that there seemed to be no mention of the ride in any fitness appraisal in the service records. Similarly, it was surprising that neither Mr Turner nor Mr Rudge called any other RAAF member who might have ridden with Mr Smith in the Bike Ride. In fact there was not even evidence as to whether it occurred just within or just outside the relevant seven year period.
52. The additional two volumes of Mr Smith's RAAF Personnel File (R6) lodged by Mr Rudge on 30 January 2003, do provide evidence that Mr Smith's lack of fitness, and weight over a BMI of 30, was a concern at the time promotions, postings or courses were being considered (R6 pp121-2, 146, 190, 213, 220). The T documents and (R6) also show that Mr Smith was anxious to continue to gain promotions and retain his career in the RAAF (R6) p494, 486-491). He was recognised by his OIC, as a very competent and strong team member. He was strongly recommended for promotion (R6 p474). I find it to be more probable than not that, if he had the ability to undertake a strenuous level of physical activity, he would have done so, both to lose weight and to have his medical fitness upgraded, so as to help him in his applications for promotion.
53. I find that the change to Mr Smith's employment standard on 7 August 1996 did not reflect any real improvement in his back condition, but was rather a result of him not fully disclosing his problems to the examiner, because of his concern about his career prospects, unless he could obtain an upgrade of his employment standard. Thus I do not find that the medical and personnel entries relied upon by Mr Rudge alter my finding that in general terms, Mr Smith, as a result of his back prolapses and surgery, had an inability to undertake more than a mildly strenuous level of physical activity.
54. The SoP however does not leave the concept of an "inability to undertake more than a mildly strenuous level of physical activity" to be construed according to its ordinary meaning. As set out in paragraph 12 above, the concept is defined in clause 8 as follows:
"an inability to undertake more than a mildly strenuous level of physical activity" means the presence of an incapacity which prevents any physical activity greater than 3 METS, where a "MET" is a unit of measurement of the level of physical exertion. 1 MET = 3.5 ml of oxygen/kg of body weight per minute or, 1.0 kcal/kg of body weight per hour, or resting metabolic rate. (A MET approximates to the energy required to rest quietly in bed. A 70 kg man would use about 3 METS when walking at 4 km per hour.);
55. There are difficulties in applying that definition on the facts of this matter. First, there is no evidence that Mr Smith ever had his METS level tested or assessed by a medical practitioner. Secondly, there is a problem in using the METS Table in order to assess restrictions due to back pain, rather than those due to cardiorespiratory symptoms. The fact that the Table has been designed to assess cardiorespiratory symptoms is clear from GARP which at page 21, explains:
The symptomatic activity level is the level at which the activities from within any one METs category consistently give rise to symptoms of the accepted cardiorespiratory condition, such as angina, dyspnoea, palpitations, or fatigue. The symptomatic activity level may be determined by reference to a report specifically provided for the purpose as well as by reference to clinical notes and by comparison of the information with the activities listed in Table 1.1. (The symptomatic activity level may be determined by reference to activities other than those contained in Table 1.1 . . ..)
Paragraph 2, page 22, reads as follows:
Responses of the type `I cannot do such and such' or `I do not do so and so' are not useful in assessing the symptomatic activity level. What must be established is that level of exercise that the veteran is able to do but which results in angina, breathlessness, or some other cardiorespiratory symptom.
56. In view of Mrs Smith's evidence that Mr Smith used his exercise bike only for short periods of five minutes or so at a time, and that he also rested after 5 minutes when he used weights, and in about an hour might have another attempt, I referred the parties to the paragraph at the top of page 22 of GARP. It states:
In determining the symptomatic activity level, greater reliance is to be placed on activities that involve steady, as opposed to sporadic, expenditure of energy. Such activities are more reliable as indicators of exercise tolerance. Less reliance is to be placed on activities that can be completed in less than a few minutes, as symptoms may take longer than this to occur.
57. Another difficulty about applying the definition of "an inability to undertake more than a mildly strenuous level of physical activity" in clause 8 of the SoP, arises from the explanation given in the definition that a 70 kilogram man would use about 3 METS when walking at 4kms per hour. I asked for assistance in understanding how to take into account the fact that Mr Smith seems to have been a 100kg man (R4 p19) in August 1996. Mr Rudge arranged for Dr Morgan, Senior Medical Officer (Appeals), at the Department of Veterans' Affairs to give telephone evidence on the issue. He said that a person would use essentially the same METS regardless of their weight. He could not explain why the SoP gave the example of a 70 kilogram man rather than simply saying "a person".
58. It is not at all clear how the METS Table in GARP applies to the symptoms and restrictions disclosed by the evidence. First the Table combines the activities using 3-4 METS, so it is not clear which are meant to relate to 3 METS and which indicate an expenditure of energy of more than 3 METS. Secondly, the Table is designed for people with cardiorespiratory impairment and is not suited to activities which are either ceased due to back pain, or with which a veteran perseveres, in spite of back pain. Thirdly, GARP specifically states that activities which are only done for a few minutes are not reliable as indicators of exercise tolerance. Nonetheless, I am obliged to consider the concept of "an inability to undertake more than a mildly strenuous level of physical activity", in accordance with the definition in the SoP.
59. The three activities raised by the evidence, as to which the METS Tables may have some relevance, are walking, cycling and swimming. As to walking, Mr Turner submitted that the evidence that Mr Smith took an hour and three quarters to walk eight kilometres showed that he walked at a bit less than five kilometres an hour. That seems to fit in the 3-4 METS range and could be 3 or 4 METS.
60. Mrs Smith's evidence was that it took Mr Smith about an hour to cycle eight kilometres which is a little less than the ten kilometres per hour (sedate cycling) specified in the 3-4 METS table. As already stated, there is no evidence as to the speed at which Mr Smith cycled on his one occasion of participation in the Victorian Bike Ride.
61. As to swimming, Mrs Smith said that she and Mr Smith swam regularly for exercise for his back, for some months while they lived in Adelaide and then for about 12 months after they moved to Sydney. She said she accompanied him because it was supposed to be good for him, and they did it about three times a week. There is once again no evidence as to the distance or speed Mr Smith swam. However "gentle swimming" does feature in the 4-5 range in the METS Table in Chapter 1.1 of GARP. There was no evidence that Mr Smith performed any of the other activities at that level in the relevant period. The full list of activities at that level is as follows:
4-5 METs Moderate activity: encompasses more strenuous daily activities with the exclusion of manual labour and vigorous exercise
* Mopping floors.
* Golf (carrying bag).
* Light carpentry (eg chiselling, hammering).
* Scrubbing floors.
* Ballroom dancing.
* Beating carpets.
* Tennis doubles (social, non-competitive).
* Stocking shelves with light objects.
* Polishing furniture.
* Wallpapering.
* Shopping and carrying groceries (10 kg).
* Gentle swimming.
* Painting outside of house.
* Hoeing (soft soil).
* Stacking firewood.
62. Swimming is often mentioned as a recommended treatment for back complaints. It may be that swimming, while strenuous for people with cardiorespiratory problems, is less trouble for people with back problems, because of the buoyancy of the water. I have some reservations about the appropriateness of finding that, because Mr Smith could perform one activity namely "gentle swimming", mentioned as expending 4-5 METS in the relevant Table, he did not have "an incapacity which prevents any physical activity greater than 3 METS". However, I have concluded that I am bound to make that finding.
63. I must apply the SoPs as they are written (see Harris v Repatriation Commission (2000) 62 ALD 174 and Arnott v Repatriation Commission (2001) 32 AAR 445, 63 ALD 575). I have no power to amend or modify them, even if they seem harsh in their application. I cannot find on the evidence before the Tribunal, that, as a result of his intervertebral disc prolapses, Mr Smith had, "an inability to undertake more than a mildly strenuous level of physical activity" for the seven years immediately before his death in November 1998, as that term is defined in the SoP. I am only free to make that finding if I find there was "an incapacity which prevents any physical activity greater than 3 METS". The evidence is that Mr Smith, for a period, went swimming about three times a week. "Gentle swimming" is shown in the METS Table in Chapter 1.1 of GARP as having an energy expenditure of 4-5 METS. I must find that Mr Smith's incapacity did not prevent any physical activity greater than 3 METS. He was able to swim and that activity has an energy expenditure of 4-5 METS. Thus I am not able to find that factor 5(d) of SoP Instrument No. 53 of 1999 is applicable.
64. My conclusion on that issue means that it is not necessary or appropriate for me to make a decision as to whether Mr Smith's intervertebral disc prolapses were defence-caused, according to the current relevant SoP. I had asked for submissions on that issue as, although the intervertebral disc prolapses had been accepted as defence-caused, even if I had found that the back condition resulted in an inability to undertake more than a mildly strenuous level of physical activity, as required by the SoP for cerebrovascular accident, that would not necessarily have meant that the death could be accepted as defence-caused. The Full Court of the Federal Court in McKenna v Repatriation Commission (1999) 29 AAR 70, addressed that issue. As Mr Rudge submitted, McKenna established that, on the facts in this matter, any inability to undertake more than a mildly strenuous level of physical activity, could only have been found to be service related, if the intervertebral disc prolapses satisfied the SoP for intervertebral disc prolapse.
65. It is apparent from the determination included in exhibit R5, that intervertebral disc prolapse was accepted as defence-caused, without reference to a relevant SoP, because the claim had been lodged on 2 August 1989. Section 120B of the Act only applies to claims made on, or after, 1 June 1994.
66. The relevant SoP for intervertebral disc prolapse sets out a number of factors in clause 5, one of which must exist before it can be said that intervertebral disc prolapse is connected with the circumstances of a person's relevant service. The only factor which was relied on by Mr Turner was factor 5(a) "suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse". The definition of "trauma to the relevant disc", as amended by Instrument No. 93 of 1997, was as follows:
"`trauma to the relevant disc' means an injury to the particular prolapsed intervertebral disc, giving rise to immediate pain, tenderness and altered mobility or altered range of movement of that part of the spine, which persists for at least two weeks, unless medical intervention has occurred (for example bracing, corticosteroid injection, surgery). Where medical intervention for the injury has occurred, and there is evidence relating to the extent of injury and treatment, such evidence may be considered. Examples of activities or events that may result in trauma to the relevant disc include:
(i) lifting, pushing or pulling an object weighing more than 10 kg; or
(ii) jumping from a height, for example, in a parachute jump, or jumping down from a tank; or
(iii) a fall; or
(iv) diving into a body of water; or
(v) participating in sports, for example, football, surfing, gymnastics;
or
(vi) spinal manipulation; or
(vii) a motor vehicle accident; or
(viii) a blast explosion; or
(ix) a physical attack.".
67. Mr Rudge contended that the circumstances relating to the development of Mr Smith's intervertebral disc prolapse did not satisfy factor 5(a) of SoP Instrument No. 131 of 1996, as amended by SoP Instrument No. 93 of 1997.. He submitted that there was no evidence of any identifiable trauma or injury at the time of clinical onset of the condition, and that the evidence was that the problem was one of gradual onset associated with more driving and sitting at a desk in the preceding six months.
68. That is what a physiotherapist noted on 23 July 1984 (R2 p24). At that time the physiotherapist noted that it was a postural problem and the pain eased following postural advice and extension exercises. The diagnosis of two disc prolapses was not made for three years after that date. It was made on a CT scan conducted in early September 1987 (R2 p22), following a further incident of back pain. There is no evidence that Mr Smith had a disc prolapse in 1984.
69. The incident which led to the CT scan is recorded on 8 May 1987 (R4 p58). Mr Smith reported that his back became sore after playing squash. On examination there was limitation of movement with pain to the left buttock, forward flexion was limited to 30 degrees, and lateral flexion to 20 degrees bilateral, straight leg raising on the right and left was 70 degrees and Mr Smith was sore and had pain. On 20 May the symptoms were not settling and Mr Smith was referred for physiotherapy. There was still no improvement and Mr Smith reported sciatica and pins and needles down the right leg to his foot. It was when the physiotherapist reported that the right ankle jerk was absent, that the CT scan was carried out. It showed the two prolapses.
70. On that evidence I was inclined to find that the prolapses occurred in May 1987 and not in July 1984. The history was of pain following a game of squash. It was on the issue whether the game of squash was service related, that I sought further submissions.
71. It is now not necessary for me to resolve that issue. I mention it only to comment that I was surprised that neither the submissions of the applicant nor those of the respondent specifically addressed the issue of whether a serviceman has a duty to keep fit. Mr Turner did refer to the weight reduction diet given to Mr Smith in 1986 and commented, "one could assume that exercise would be part of that programme". Mr Rudge referred to Roncevich v Repatriation Commission [2002] FCA 1458. I consider that case to be distinguishable. It did not concern the playing of sport, but was an attempt to attribute injury as a result of inebriation to attendance at a mess social function on an Army base. There is a question as to whether service in the Armed Forces imposes a duty to keep fit, and if so whether sport related injuries are service related for the purposes of the SoPs. Because of the finding I have made that question does not require resolution in this matter
72. The definition in clause 8 of the SoP seems to have a somewhat arbitrary application in this matter. It required the Tribunal to focus on one activity, which Mr Smith could perform at the 4-5 METS level, rather than allow consideration of the general incapacity due to Mr Smith's back prolapses and laminectomy and the resulting reduction in his ability to undertake physical activity. That requirement meant that the material before the Tribunal did not allow me to find the facts required by factor 5(d) of the SoP. Thus the material has not raised a connection between the death of Mr Smith and his service, that is upheld by the relevant SoP. I cannot find that Mr Smith's death was defence-caused.
73. The decision under review will be affirmed.
I certify that the 73 preceding paragraphs are a true copy of the reasons for the decision herein of
Mrs Joan Dwyer, Senior Member
Signed: Grace Carney
Personal Assistant
Date of Decision 13 February 2003
Departmental Advocate Mr K Rudge
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