Wainwright and Repatriation Commission [2009] AATA 209 (30 March 2009)

Last Updated: 31 March 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 209

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/2326

VETERANS' APPEALS DIVISION		)
	Re		MARK WAINWRIGHT

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Deputy President S D Hotop

Date 30 March 2009

Place Perth

Decision

The Tribunal affirms the decision under review.

..........[sgd S D Hotop]........
Deputy President

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant rendered defence service in Royal Australian Air Force from 1978 to 1987 – applicant engaged in maintenance of Aermacchi aircraft in course of service – applicant frequently lifted and supported weight of wingtip or nose of aircraft at base of back of neck and across top of shoulders in maintenance operations – applicant contracted cervical spondylosis by 2003 – Statement of Principles concerning cervical spondylosis (SoP) – applicant carried loads of weight within period specified in SoP – applicant did not carry loads "on the head" as required by SoP – SoP does not uphold contention that cervical spondylosis connected with defence service – cervical spondylosis not defence-caused – decision under review affirmed

Veterans' Entitlements Act 1986 (Cth), s 5D(1), s70, s120(4) and s120B

Statement of Principles concerning cervical spondylosis No 34 of 2005, as amended by Statement of Principles concerning cervical spondylosis No 77 of 2008

REASONS FOR DECISION

30 March 2009

Deputy President S D Hotop

INTRODUCTION

1. Mark Wainwright (“the applicant”) served in the Royal Australian Air Force (“RAAF”) from 31 October 1978 to 30 October 1987. That period of service constitutes “defence service” (other than “hazardous service”) for the purposes of the Veterans' Entitlements Act 1986 (Cth) (“VE Act”).
2. On 8 April 2005 the applicant lodged with the Department of Veterans’ Affairs a Claim for Disability Pension in respect of certain “disabilities”, including “osteoarthritis of the neck”, which he claimed were defence-caused.
3. On 18 January 2007 a delegate of the Repatriation Commission (“the respondent”) determined that the appropriate diagnosis in respect of the applicant’s claimed neck condition is “cervical spondylosis” and decided (inter alia) that that condition is not defence-caused.
4. On 15 May 2008 the Veterans’ Review Board (“VRB”) determined (inter alia) that the applicant’s cervical spondylosis is not defence-caused and it accordingly affirmed the respondent’s decision in that respect.
5. On 29 May 2008 the applicant applied to the Tribunal for review of the VRB’s decision insofar as it determined that his cervical spondylosis is not defence-caused.

THE RELEVANT LEGISLATION

The VE Act

6. Section 5D(1) contains the following relevant definitions:

“ In this Act, unless the contrary intention appears:
...
disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
...
injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”

Section 70 (in Part IV) relevantly provides:

“ (1) Where:
(a) the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
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
(d) in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.
...
(5) For the purposes of this Act, the death of a member of the Forces ... shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease 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;

...”

Section 120, which deals with standard of proof, relevantly provides:

“ ...
(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.
...”

Section 120B relevantly provides:

“ ...
(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.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”

The Statement of Principles

7. The Repatriation Medical Authority has determined a Statement of Principles under s 196B(3) of the VE Act in respect of cervical spondylosis. The Statement of Principles which is presently in force is Statement of Principles concerning cervical spondylosis No 34 of 2005, as amended by Statement of Principles concerning cervical spondylosis No 77 of 2008 (“the SoP”). The relevant provisions of the SoP will be referred to later in these reasons.

THE EVIDENCE

8. The evidence before the Tribunal comprised:
   • the “T Documents” (T1–T22, pp 1–108) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
   • letter from the applicant dated 1 December 2008 (Exhibit A1);
   • extract from Wikipedia in respect of Aermacchi MB-326 aircraft (Exhibit R1);
   • Writeway Research Service report of Patrick McNeile, dated 29 October 2008 (Exhibit R2);
   • the oral evidence of the applicant.

The applicant’s evidence

9. The applicant described a certain practice which he routinely performed in carrying out maintenance of Aermacchi aircraft in the course of his RAAF service at Pearce RAAF Base. This practice included elevating a wing or the nose of the aircraft by positioning the wingtip or nose at the base of his neck while his knees were flexed and then rising to a standing position while bearing the weight of the aircraft behind his neck and across the top of his shoulders and remaining in that position for up to 4 minutes before lowering the wingtip or nose to its original position. He said that he and other service personnel performed this practice at least 3–4 times per week in the course of overall servicing of the aircraft, changing tyres and measuring and recharging struts.

The relevant medical evidence

10. A report of Dr Kathryn Henry, the applicant’s general practitioner, dated 22 May 2006, states (inter alia) that the applicant consulted her in September 2003 “in relation to bilateral neck and shoulder stiffness” and that “investigations demonstrated some facet joint degeneration in the lower cervical facets ...” (T7, p 45).
11. A CT scan of the applicant’s cervical spine, dated 19 March 2004, found that there was “degenerative change ... involving the cervical spine facet joints”, and that this was “most severe in relation to the right C2/3 and right C3/4 facet joints” (T12).

THE SOP

12. The SoP relevantly states:

“ ...
Kind of injury, disease or death

3. (a) This Statement of Principles is about cervical spondylosis and death from cervical spondylosis.

(b) For the purposes of this Statement of Principles, ‘cervical spondylosis’ means degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis.
...
Basis for determining the factors

4. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that cervical spondylosis and death from cervical spondylosis can be related to relevant service rendered by veterans or members of the Forces ...

Factors that must be related to service

5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.

Factors

6. The factor that must exist before it can be said that, on the balance of probabilities, cervical spondylosis or death from cervical spondylosis is connected with the circumstances of a person’s relevant service is:

...
(h) carrying loads of at least twenty-five kilograms on the head while upright to a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of cervical spondylosis, and where the clinical onset of cervical spondylosis occurs within the twenty-five years following that period; or
...”

ANALYSIS

Is the applicant suffering from an “injury” or a “disease” for the purposes of the VE Act?

13. It is common ground that the applicant suffers from cervical spondylosis and that he has suffered from that condition since at least 2003, and, on the basis of the medical evidence referred to in paragraphs 10 and 11 above, the Tribunal so finds. The Tribunal also finds that the applicant’s cervical spondylosis is a “disease” for the purposes of the VE Act.

Is the applicant’s cervical spondylosis a defence-caused disease, within the meaning of s 70(5) of the VE Act?

14. This matter is, pursuant to s 120(4) of the VE Act, to be determined by the Tribunal “to its reasonable satisfaction” – that is, on the balance of probabilities. Pursuant to s 120B(3) of the VE Act, the Tribunal is to be reasonably satisfied that the applicant’s cervical spondylosis is a defence-caused disease only if:
    • the material before it “raises a connection between” that condition and the applicant’s defence service; and
    • the SoP “upholds the contention” that that condition is, on the balance of probabilities, connected with that service.
15. The Tribunal is satisfied that the material before it – in particular, the applicant’s evidence – “raises a connection between” the applicant’s cervical spondylosis and his defence service, for the purposes of s 120B(3)(a) of the VE Act. The critical issue, however, is whether the SoP “upholds the contention” that the applicant’s cervical spondylosis is, on the balance of probabilities, connected with his defence service for the purposes of s 120B)(3)(b) of the VE Act.
16. The applicant contended that his “continuous ... practice of lifting the Macchi aircraft by use of his neck and shoulders” in the course of his RAAF service satisfied factor (h) in cl 6 of the SoP and that that factor was related to his defence service as required by cl 5 of the SoP.
17. The respondent did not dispute the veracity of the applicant’s evidence (as summarised in paragraph 9 above) and it conceded that, on the basis of that evidence and the medical evidence referred to in paragraphs 10 and 11 above, the applicant had, in the course of his defence service:

“ carr[ied] loads of at least twenty-five kilograms ... while upright to a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of cervical spondylosis, and where the clinical onset of cervical spondylosis occurs within the twenty-five years following that period;”

as stated in factor (h) in cl 6 of the SoP. The respondent submitted, however, that, having regard to the applicant’s own evidence, factor (h) was not satisfied because, according to that evidence, the applicant did not carry the relevant loads “on the head”, as required by factor (h), but rather across the top of his shoulders at the base of the back of his neck.

18. The Tribunal accepts the respondent’s submission. Factor (h) in cl 6 of the SoP is satisfied only where the specified loads have been carried “on the head”. According to the applicant’s own evidence, however, the relevant loads – comprising the weight of the wingtip or nose of the Aermacchi aircraft – were elevated and borne by him at the base of the back of his neck and across the top of his shoulders. Each of those parts of the human body is anatomically distinct from the head. Although the neck is that part of the human body which adjoins and supports the head, it is anatomically not part of the head. The top of the trunk (including the top of the shoulders), which adjoins the base of the neck, is, of course, further removed from the head.
19. Accordingly, the Tribunal finds, on the basis of the applicant’s own evidence, that factor (h) in cl 6 of the SoP is not satisfied in his case because the relevant loads which he carried – by reason of his elevating and bearing the weight of the wingtip or nose of Aermacchi aircraft – in the course of his RAAF service were not carried by him “on the head” as required by factor (h).
20. The applicant has not contended that any of the other factors set out in cl 6 of the SoP is satisfied in his case. Having considered the whole of the evidence before it, the Tribunal is satisfied that none of those other factors is applicable in this case.
21. It follows that the SoP does not uphold the contention that the applicant’s cervical spondylosis is, on the balance of probabilities, connected with his defence service, for the purposes of s 120B(3)(b) of the VE Act. Pursuant to s 120B(3) of the VE Act, therefore, the Tribunal is not reasonably satisfied, for the purposes of s 120(4) of that Act, that the applicant’s cervical spondylosis is a defence-caused disease, within the meaning of s 70(5) of that Act.
22. Accordingly, the Tribunal concludes that the applicant’s cervical spondylosis is not a defence-caused injury or a defence-caused disease, within the meaning of s 70(5) of the VE Act.

DECISION

23. For the above reasons the Tribunal affirms the decision under review.
    

I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop

Signed: ...............[sgd D Brodie]........................

Associate

Date of Hearing 24 March 2009

Date of Decision 30 March 2009

Representative of the Applicant Mr B Cooper

Representative of the Respondent: Mr C Ponnuthurai

Department of Veterans' Affairs