Donoghue and Repatriation Commission [2003] AATA 50 (17 January 2003)

Last Updated: 21 January 2003

DECISION AND REASONS FOR DECISION [2003] AATA 50

ADMINISTRATIVE APPEALS TRIBUNAL Nº N2001/744

VETERANS' APPEALS DIVISION

Re: DANIEL PATRICK DONOGHUE

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: P.J. Lindsay, Senior Member

Date: 17 January 2003

Place: Sydney

Decision: Decision under review set aside. In substitution the Tribunal decides that Mr Donoghue's lumbar spondylosis is a war-caused disease with effect from 24 February 1999. The matter is remitted to the Commission for assessment.

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

Senior Member

© Commonwealth of Australia (2003)CATCHWORDS

Veterans Affairs - entitlement - lumbar spondylosis - whether a war-caused disease - necessity for Applicant to have suffered a 'trauma' in accordance with relevant Statement of Principles - decision set aside.

Veterans' Entitlements Act 1986, ss.120, 120A

Repatriation Medical Authority Statement of Principles, Instrument No. 46 of 2002 concerning Lumbar Spondylosis as amended by Instrument No. 77 of 2002.

Repatriation Commission v Deledio (1998) 49 ALD 193

Repatriation Commission v Gorton (2001) 110 FCR 321

Connors v Repatriation Commission (2000) 59 ALD 61

East v Repatriation Commission (1987) 16 FCR 517

Harris v Repatriation Commission (2000) 31 AAR 270

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1. This is an application under the Veterans' Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) which refused Mr Donoghue's claim for acceptance of lumbar spondylosis as a war-caused disease under the Act. The decision was affirmed by the Veterans' Review Board.

2. Mr B. Winship, solicitor, appeared for Mr Donoghue. The Commission was represented by Mr J. Marsh from the Department of Veterans' Affairs. The only witness to give evidence at the hearing was Mr Donoghue. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and also the exhibits tendered during the hearing.

background

3. The parties do not dispute that Mr Donoghue served in the Australian Army from 27 October 1941 to 26 February 1945 and that this was a period of eligible war service and operational service. Mr Donoghue's service records in the T documents note that on enlistment he was assessed as fit. During service he was treated for a number of disabilities including a right inguinal hernia, upper respiratory tract infection, pleurisy, infective jaundice, pharyngitis, painful feet and painful shoulders. He was medically examined for reclassification purposes in July 1944 but there was no record of any complaint regarding his back (T10). On discharge in February 1945 he complained of rheumatic pains in both shoulders and pains in his feet and in the back of his legs after standing and marching. The examining doctor recorded that he had a full range of movement in all joints with slight crepitus in both knees and shoulders (T6). The medical board considered each complaint to be constitutional in origin (T3). Notably, there was no mention of an injury to his back. When, however, Mr Donoghue claimed pension entitlements in 1955 he described the disability as "severe pains in shoulders extending down the shoulder blades and back, also neck" (Exhibit R1 p.54). He explained the connection between the disability and his service as "Caused by conditions under which I served, because I didn't have any problem with my shoulders or any other part of my body before I enlisted."

4. There is also no dispute that Mr Donoghue suffers from lumbar spondylosis. Mr Donoghue lodged a claim in 1973 for pension, originally relating to incapacity resulting from arthritis, but later changed to lumbar spondylosis and cervical spondylosis. Lumbar spondylosis was diagnosed in 1973 by Dr McNamee, orthopaedic surgeon. Neither Dr McNamee nor Dr Corrigan, rheumatologist, who also examined the Applicant in 1973, noted a history of injury to the back (T5). The Repatriation Board rejected the claim on the basis of medical evidence that his lumbar spondylosis and cervical spondylosis were consistent with age degeneration, and his appeal to the Commission in 1974 was disallowed. Mr Donoghue next appealed to the Repatriation Review Tribunal in 1979. In his application to the Repatriation Review Tribunal dated 4 October 1979 (Exhibit R1 p.36) he wrote that the reasons for his application were that he suffered an injury to his back while unloading a truck:

Whilst serving at Townsville in 35^th Employment Coy during 1943 I suffered a back injury. The circumstances follow. Four or five whom I was one, were unloading 44 gallon drums of petrol from a blitz truck when one unbalanced. I am sure that without my intervention, it would have severely injured my work mate. Unfortunately my effort was made on the spur of the moment and I took the weight of the 450 lb. drum while I was off balance. I suffered severe back pain immediately and for some days my mates had to cover for me. ...

This was the first mention of his causing an injury to his back in these circumstances. The Repatriation Review Tribunal requested the Commission review the case in light of additional evidence put before the tribunal.

5. Dr Jones, orthopaedic surgeon, examined Mr Donoghue in November 1980. Mr Donoghue complained of experiencing low backache for over thirty years. The history referred to Mr Donoghue's unloading 44 gallon drums of fuel and momentarily taking the full weight of a drum in an attempt to stop it from falling onto a mate. Dr Jones noted that X-rays taken in August 1979 of the lumbar-sacral spine showed definite narrowing of the L5,S1 disc space, some degenerative changes of the apophysceal joint in the lower portion of the lumbar spine and degenerative changes in the lower 2/3 of the lumbar spine. In Dr Jones' opinion " ... these changes, particularly the L5 disc changes, could have been caused by the incident as described. It is of course, next to impossible to prove this and if asked whether I thought it is possible for these changes to have developed without the accident, I would have to answer yes. However, as it is possible that the injury could be responsible it may be worthwhile pursuing with the application." (Exhibit R1, p.19)

6. Other medical experts have provided opinions about the effect of the back injury that Mr Donoghue has described and his lumbar spondylosis. Dr Perkins, one of the Commission's senior medical officers, agreed with Dr Jones and in June 1981 stated that while it is likely that Mr Donoghue's condition is due to degenerative change unrelated to service, the accident with the fuel drum had " ... the potential for causing a lumbo-sacral disc lesion and the evidence may not entirely rule out the possibility that such an injury could have led to lumbar spondylosis" (T8). Against that was the opinion of Dr Cowdery, orthopaedic surgeon, who reviewed all the evidence available to July 1981 and concluded that the lumbro-sacral disc legion was degenerative and should be viewed as a wear and tear lesion (T12 p.45). In August 1981 the Commission reviewed the case again and affirmed its earlier decision.

7. An appeal was made in 1982 to the Repatriation Review Tribunal but it too failed. The Repatriation Review Tribunal accepted that Mr Donoghue could have injured his back while on service. It could make no finding that the injury was such as to accelerate the degenerative process. The Repatriation Review Tribunal decided that the weight of evidence suggested that the degenerative changes in his spine were consistent with his age, and concluded that it was satisfied beyond reasonable doubt that the requisite relationship between his condition and service was not a real possibility. Mr Donoghue lodged his current claim for pension in respect of lumbar spondylosis in June 1999 (T15). The Commission refused the claim on the ground that the condition was not war-caused.

evidence

8. Mr Donoghue made a statement on 16 November 2001, which was accepted in evidence without objection, where he said:

In 1942 or 1943 I was serving with the Australian Army. My unit was camped on the outskirts of Townsville in Queensland. Our job was to load and unload drums of fuel. The fuel came in galvanised 44 gallon drums ...

On one occasion I was either loading or unloading full drums from the back of a truck. One of the drums began to tip off the truck. I believed the drum was going to strike one of the other blokes who was momentarily distracted. I moved and deflected the drum at about chest height taking the full weight on my arms and upper body. I fell to my knees. The other bloke said "what's happened". I replied "I think I hurt my back." I stayed on the ground for some time. I was assisted back to the truck and taken back to the barracks. I was assisted to the RAP. I was given something to take for the pain and told to rest. I believe it may have been a bex or a APC. I was assisted back to my tent and lay down. At this time my back was hurting so badly I was afraid to move once I lay down. Laying down was the only way of gaining any relief from the pain.

The next morning I was not fit for work. I went back to the RAP and was given something to take. Medication was only handed out in small amounts. I rested in my tent all day. I lay down for much of the day. The pain was much the same as the previous day. I took either two or three full days off work and rested in my tent. I had great difficulty doing anything at this time, including simple things like going to the toilet.

I returned to work after spending two or three full days resting in my tent. When I returned to work the chap in charge, I think he was a Corporal, was aware of my back injury and the difficulties it was causing me. He told me lie in the shade. I spent three or four days doing this. I spent most of these days laying prone on the ground. It was very painful even to turn on my side. I required assistance to get up off the ground and I also required assistance getting in and out the truck. After three or four days of this my back was beginning to improve a little.

Approximately five to seven days after the initial injury I was given a job checking the details of the trucks and recording the number of drums on each truck. There was no physical work in this job. Most of the time doing this job I was able to sit or lie down to relieve my back pain. I was still having back pain and was still restricted in my movement. If I had to spend any time on my feet my back would hurt much more. I couldn't possibly have done my previous job as I couldn't take any weight because of my back.

After about two weeks doing the checking job I was back to normal duties loading and unloading drums from the trucks. I was still not doing heavy work at this time because of my back. I was really just assisting and the other blokes would do the heavy lifting. ...

9. At the hearing, Mr Donoghue explained his actions by stating he thought that, from the way the drum was rolling, it could fall onto his colleague, so he got hold of the rim of the drum and deflected it away. He said he had three parts of the weight of the drum at the time he twisted and deflected it, before it fell off the truck onto the ground. Upon taking the weight he felt immediate pain in the small of his back. The pain was agonising. He lay on the ground for a while, then a couple of mates put him in a van and drove him back to their camp in Townsville. He then went to the RAP, whose examination found no sign of injury, and was given some painkillers. He could not straighten up, so when he was taken to his quarters he lay down but could not stretch out. He said the painkillers were "laid on", colleagues subsequently getting more for him from the RAP. Mr Donoghue was not certain how long he rested up in bed, it was probably two or three days. When he resumed working about a week after the accident, he said his task was to count the number of drums onloaded and offloaded, and he also had kitchen duties. He was unable to lift because of the pain in his back. He said it would have been two or three weeks after the accident before he did any lifting, and that was with the help of his colleagues. They did the hard work and would not let him do any heavy lifting. The work he began to do, lifting, rolling and easing the drums, caused him pain in the back and it lasted for months. His back still hurt even when he resumed full duties and it lasted for months. He said he had not injured his back prior to the accident with the falling drum and said he had not suffered any injury to his back in the years following discharge from the Army.

10. In cross-examination, Mr Donoghue said the drum did not fall onto his back or hit him on the back. He took the weight of the drum on his arms. He was unable to say definitely that he visited the RAP, but he said that he was given painkillers that were supplied by the RAP. He agreed that he was probably able to tie his boot laces by the time he rejoined his work party, which was a couple of days after the incident. Mr Donoghue added that while he went out to work with his colleagues he did not do any work. Although he worked on his family's sheep farm after discharge, he did no shearing or crutching. Mr Donoghue said he has not since suffered another injury to his back, whether while working on the farm or in other circumstances.

consideration

11. As Mr Donoghue rendered operational service, s.120(1) of the Act applies and the disease of lumbar spondylosis will be determined to be war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be so satisfied if it is of the view that the material before it does not raise a reasonable hypothesis connecting the disease with the circumstances of Mr Donoghue's service: s.120(3). As his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the Tribunal is to assess the reasonableness of the hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA).

12. The Commission accepts Mr Donoghue's account of the injury and that he did injure himself in the manner he described. Mr Marsh submitted that the issue for the Tribunal is whether Mr Donoghue's injury meets the definition of 'trauma to the lumbar spine' in the SoP.

13. In reviewing the decision in question, the Tribunal must follow the approach that the Full Court of the Federal Court laid down in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206:

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

14. As to step 1, the Tribunal must take into account all the material before it. The Tribunal finds that the Applicant gave his evidence in a frank and candid manner, and he attempted to recall events that occurred almost sixty years ago. Based on Mr Donoghue's evidence, his written account of the injury provided to the Repatriation Review Tribunal in October 1979 and the report of Dr Jones, the Tribunal finds that the material points to a hypothesis connecting the lumbar spondylosis with the back injury sustained when diverting a falling drum of petrol. The Tribunal finds clinical onset of lumbar spondylosis from 1973, in accordance with the opinion of Dr McNamee.

15. As to step 2, the Tribunal notes that at the time of the Commission's decision, the relevant SoP concerning lumbar spondylosis was Instrument No. 27 of 1999. However, the Full Federal Court's decision in Repatriation Commission v Gorton (2001) 110 FCR 321 is that the Tribunal must apply the SoP in force at the time of its decision, with the Applicant retaining the accrued right to rely on the SoP in force when the Commission determined the matter, should that SoP be more beneficial to him. Between the time of the claim and the time of this decision, the RMA revoked SoP 27 of 1999 and replaced it with SoP 46 of 2002 (as amended by SoP 77 of 2002) which is now in force. According to SoP 46 of 2002, the relevant SoP he concerning lumbar spondylosis:

Basis for determining the factors

3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that lumbar spondylosis and death from lumbar spondylosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.

Factors that must be related to service

4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

Factors

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis or death from lumbar spondylosis with the circumstances of a person's relevant service are:

...

(h) suffering a trauma to the lumbar spine before the clinical onset of lumbar spondylosis; or ...

The SoP contains the following relevant definition:

trauma to the lumbar spine means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:

(a) immobilisation of the lumbar spine by splinting, or similar external agent; or

(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or

(c) surgery to the lumbar spine.

SoP 46 of 2002 contains a different definition of 'trauma to the lumbar spine' to that found in SoP 27 of 1999. In the earlier SoP, the definition of 'trauma to the lumbar spine' was "a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred,...". SoP 46 of 2002 removed the word 'acute' from the definition, and inserted a comma after the word 'pain'.

16. As to step 3, Mr Winship submitted that the hypothesis is consistent with factor 5(h) of the template in the SoP. The terms of the relevant factor claimed to connect Mr Donoghue's lumbar spondylosis with service are the same in both SoP 46 of 2002 and SoP 27 of 1999. The Tribunal must form an opinion as to the reasonableness of the hypothesis. Mr Winship submitted that there is material that supports the hypothesis of a trauma to the Applicant's lumbar spine before clinical onset of lumbar spondylosis, which was diagnosed in 1973. Although proof of facts is not an issue at this stage of the Tribunal's decision making, if the hypothesis does not fit within the template in the SoP, it is not a reasonable hypothesis. Mr Winship referred to Mr Donoghue's twisting movement, while he was off-balance, to deflect the heavy drum, his immediate pain in the lower back and consequent restricted movements of his back. Mr Donoghue said he was unable to do his normal work because of the pain in his back. He did not do any lifting for two weeks.

17. The Commission submitted that for the hypothesis to be reasonable, it must be supported by probative evidence of Mr Donoghue's satisfying factor 5(h). Mr Marsh emphasised that each element in the definition of 'trauma to the lumbar spine' has to be present. He referred to the history of the claim, noting that the Applicant did not report the injury at the time and that, in 1973 when he claimed in relation to the general condition of arthritis, he did not mention back symptoms. He referred to the transcript of the Veterans' Review Board hearing in April 2001 (Exhibit R2) and noted that Mr Donoghue's testimony failed to establish the elements of the definition of 'trauma to the lumbar spine'. In sum, Mr Marsh submitted that the injury was not a significant injury (cf. Harris v Repatriation Commission (2000) 31 AAR 270, at 281, Finn J), which the Tribunal observes was a decision made in the context of SoP 105 of 1995, as amended, dealing with lumbar spondylosis, and requiring "acute" symptoms and signs of pain, tenderness and altered mobility or restriction of the joint. Other evidence is to the contrary, such as Mr Donoghue's earliest account of the injury, in August 1979, which records his severe, immediate pain and his mates having to cover for him at work for some days. The history taken by Dr Jones in November 1980 is that he suffered a painful back injury and did not engage in active duties for a few days. Mr Donoghue's statement of 16 November 2001 refers to his returning to work five to seven full days after the accident. He did no lifting just tally clerking, which he did while sitting or lying down, due to the pain and restricted movement in his back. It was a week or two before he resumed his former duties, albeit not the heavy work. Notwithstanding this material, Mr Marsh submitted that the history of the Applicant's claims and his evidence to the Veterans' Review Board, such as his being able to tie his boot laces again within a few days of the accident, are inconsistent with the injury being a 'trauma to the lumbar spine'.

18. During submissions the Commission conceded that the accident occurred and that the Applicant injured himself in the manner he described. The Tribunal finds that the grabbing, holding and twisting the drum exerted force and caused injury, a "discrete injury", to his lumbar spine. Mr Winship submitted that the hypothesis fits the template and the Tribunal agrees because there is evidence that Mr Donoghue:

* sustained an injury when diverting the drum of fuel;

* experienced pain immediately in his lower back and that he received painkillers therefor from the RAP;

* was bent over and could not straighten up his back after the accident;

* re-joined his work party after a few days but was unable to work and had to lie down or sit and needed help to stand up;

* resumed work about a week after the accident but could not do any lifting, instead he counted drums on trucks, which he did while lying or sitting to relieve his back pain and because of restricted movement in his back;

* was unable to return to his normal work due to his back pain for two weeks after the accident and even then he did not do any heavy work.

There is evidence of each element in factor 5(h) and the definition of 'trauma to the spine' in SoP 46 of 2002 (Connors v Repatriation Commission (2000) 59 ALD 61 at 69-70). Contrariwise the Tribunal notes the absence of medical evidence regarding any back injury during service or on discharge, or of other material that would corroborate the claim. The Tribunal's task, however, is to examine all the material and form an opinion as to the reasonableness of the hypothesis. The Tribunal is mindful of the approach it should follow, as outlined in East v Repatriation Commission (1987) 16 FCR 517 (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 upon the balance of probabilities." Dr Jones concluded that the disc changes could have been caused by the accident. Dr Perkins agreed and could not rule out the possibility that the injury could have led to lumbar spondylosis. Consequently, the Tribunal finds that the hypothesis is not obviously fanciful or untenable and has been raised by the material before the Tribunal.

19. As to step 4, the question is whether the Tribunal is satisfied beyond reasonable doubt as to the inaccuracy of Mr Donoghue's evidence. In a matter of this kind, the Tribunal does not make findings on the balance of probabilities. Mr Donoghue will succeed unless the Tribunal is satisfied beyond reasonable doubt, that it should not accept his evidence about suffering pain and tenderness and restricted movement of the lumbar spine for at least seven days following the onset of symptoms. The Tribunal is not so satisfied. The reference to the accident with the drum of petrol has not been recently introduced, it having been communicated to the Commission back in 1979. His various accounts to the Veterans' Review Board and his statement and evidence at the hearing are largely consistent in relation to the onset of immediate, severe back pain, consequent tenderness over the spine, restriction in his back movements, and resulting inability to perform pre-injury work for at least seven days.

20. For these reasons, and in the absence of any matter establishing beyond reasonable doubt that there is no sufficient ground for determining that the lumbar spondylosis was war-caused, the Tribunal finds that the fourth step is satisfied.

21. The decision should be set aside and in substitution the Tribunal decides that Mr Donoghue's lumbar spondylosis is a war-caused disease with effect from 24 February 1999. The matter is remitted to the Commission for assessment.

I certify that the preceding 21 paragraphs are a true copy of the decision and reasons for decision herein of P.J. Lindsay, Senior Member:

Signed:

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

(Associate)

Date of Hearing 14 May 2002

Date of Decision 17 January 2003

Applicant's Representative Mr B. Winship, solicitor

Respondent's Representative Mr J. Marsh, Department of Veterans' Affairs.