Beauchamp and Repatriation Commission [2010] AATA 96 (10 February 2010)

Last Updated: 10 February 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 96

ADMINISTRATIVE APPEALS TRIBUNAL )

) No: 2007/0999

VETERANS’ APPEALS DIVISION )

Re Garry Beauchamp

Applicant

And Repatriation Commission

Respondent

DECISION

Tribunal Mr RP Handley, Deputy President

Dr MEC Thorpe, Member

Date 10 February 2010

Place Sydney

Decision The Tribunal sets aside the decision under review and substitutes a decision:

(a) that Mr Beauchamp’s spondylolisthesis is war-caused;
(b) the date of effect of the substituted decision is 28 July 2005; and
(c) the assessment of the rate of pension payable to Mr Beauchamp in respect of the incapacity caused by the spondylolisthesis is remitted to the Repatriation Commission for assessment.

..................[sgd]........................
Mr RP Handley
Deputy President

CATCHWORDS

VETERANS’ AFFAIRS – veterans – disability pension – whether lumbar spondylolisthesis is war-caused – Deledio test – whether there was a clinical worsening of congenital spondylolysis – whether applicant suffered high impact trauma – decision under review set aside

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RELEVANT ACT

Veterans’ Entitlements Act 1986 (Cth)

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CITATIONS

Repatriation Commission v Deledio (1998) 83 FCR 82; (1998) 49 ALD 193; (1998) 27 AAR 144; [1998] FCA 391

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OTHER AUTHORITIES

Statement of Principles concerning Spondylolisthesis and Spondylolysis No. 6 of 2006

...

REASONS FOR DECISION

10 February 2010

Mr RP Handley, Deputy President Dr MEC Thorpe, Member

1. The issue for the Tribunal is whether Garry Beauchamp is eligible for a disability pension under the Veterans’ Entitlements Act 1986 (the Act) in respect of the condition of lumbar spondylolisthesis.
2. Mr Beauchamp, who is now aged 50, served in the Royal Australian Navy (RAN) as an aircraft technician from 4 May 1981 to 3 September 2002, which constitutes defence service. During this time, he served in East Timor from 19 December 1999 to 26 January 2000 and in the Solomon Islands from 11 February 2001 to 17 March 2001 which constitute periods of operational service.
3. On 28 October 2005, Mr Beauchamp lodged a claim with the Repatriation Commission (the Commission) in respect of a number of disabilities including lumbar spondylolisthesis L5/S1 at L5/S1. On 11 April 2006, his claim for lumbar spondylolisthesis was refused on the ground that it was not related to his service, there being no history during service of a high impact trauma to his lumbar spine. On 13 July 2006, he sought a review of this decision by the Veterans’ Review Board (VRB), which, on 2 March 2007, affirmed the decision and, on 28 March 2007, he applied to the Tribunal for a further review.
4. The Tribunal conducted a hearing in this matter on 26 August 2008 and 11 February 2009. On 11 February 2009, the Tribunal adjourned the matter after hearing the parties’ submissions in order for the Commission to obtain an historian’s report, which was subsequently filed on 8 May 2009. As a result of the two members of the Tribunal who heard the matter not initially being reappointed on the expiry of their terms, the President of the Tribunal, Justice Downes, convened a Directions Hearing with the parties on 19 August 2009 at which the parties confirmed that there was no further evidence or submissions to be filed and the President determined that the Tribunal would be reconstituted. One of the two members of the Tribunal who heard the matter, Dr Thorpe, was subsequently reappointed on 23 October 2009 and the Tribunal was reconstituted to include both him and Deputy President Handley. Having examined the transcript for the hearing, the Tribunal documents and other evidence, the Tribunal decided to determine the matter on the papers.

ISSUES

5. At the hearing on 26 August 2008, Ms E Wood, for Mr Beauchamp, confirmed that his claim is in respect of spondylolisthesis. He contends that he suffered a high impact trauma to his spine either on 4 December 1983 when he was injured in a helicopter crash, or in May 1987 when he injured his back when lifting a helicopter blade on HMAS Success. There is no dispute and the Tribunal accepts that the evidence establishes that Mr Beauchamp suffers spondylolisthesis at L5/S1.
6. The approach the Tribunal must adopt in this matter is that set out by the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, (1998) 49 ALD 193, (1998) 27 AAR 144, [1998] FCA 391 (Deledio). In terms of the first step prescribed by the Court, the Tribunal, having considered the material before it, is satisfied that the material points to a hypothesis connecting the condition with the circumstances of Mr Beauchamp’s service. The second step is to ascertain whether there is a relevant Statement of Principles (SoP). There is no dispute that the relevant SoP is Instrument No 6 of 2006 concerning Spondylolysis and Spondylolisthesis, dated 23 February 2006.
7. The third step requires the Tribunal to form an opinion as to whether the hypothesis is a reasonable one, consistent with the template in the relevant SoP. In this instance, clause 6 of the relevant SoP states the factors that must exist before it can be said that, on the balance of probabilities, spondylolisthesis and spondylolysis is connected with the circumstances of a person’s relevant service. The clause 6 factors relevant in Mr Beauchamp’s case are as follows:
   • (a) experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the six weeks before the clinical onset of spondylolisthesis or spondylolysis; or

...

(g) experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the six weeks before the clinical worsening of spondylolisthesis or spondylolysis; or

...

8. If the Tribunal forms the opinion that the hypothesis raised is a reasonable one, it must then consider (step four), pursuant to s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that the incapacity did not arise from the relevant condition.

THE EVIDENCE

9. Mr Beauchamp gave evidence at the hearing that he suffered multiple injuries in a helicopter accident in Bass Strait on 4 December 1983, following which he experienced pain and tenderness in many areas including his back. He said he had never experienced back problems prior to this but subsequently experienced pain, for example on bending and lifting. In May 1987, he was deployed to HMAS Success at the time of the first coup in Fiji when a taskforce of ships was sent to Fiji in case of the need to evacuate Australian nationals. While on board ship, his daily duties as an aircraft technician included spreading and folding helicopter blades. Mr Beauchamp described how the Wessex helicopter has a manual blade fold system and how as an aircraft technician he was required on a daily basis to “spread the aircraft” which involved three people lifting each blade, weighing approximately 167 lbs, into position over their heads (transcript 26 August 2008, p 10).
10. Mr Beauchamp said on one occasion when he was lifting the main rotor blade, “the wing [sic - wind] came across the deck, forced the blade down and that’s when my back arched in the opposite direction and the direct onset of pain” (transcript 26 August 2008, p 11).
11. In his evidence, Mr Beauchamp referred to his posting to HMAS Success being in May 1987 and to the incident occurring “within - probably about the first three days” (transcript 26 August 2008, p 12). As a result of the lack of evidence at the hearing as to when these events occurred, the Commission agreed to obtain an historian’s report. A report by Brendan O’Keefe dated 30 April 2009 was subsequently filed on 8 May 2009. In this report, Mr O’Keefe notes that HMAS Success sailed from Sydney on the afternoon of 21 May 1987. He said with regard to Mr Beauchamp’s evidence that the incident occurred:

... within three days of the commencement of his service on HMAS Success ... this points to the injury having occurred by the late afternoon of 24 May. However, there is good reason to think that a more likely time for it to have occurred was on 26 May.

12. Mr O’Keefe said that on 26 May 1987, high winds caused major problems for helicopter operations on HMAS Success off the Fiji coast:

If wind played a part in the incident which caused Mr Beauchamp’s back injury, there seems a good chance that it would have occurred under the conditions of high winds and heavy seas that prevailed on 26 May 1987.

13. Mr Beauchamp said he experienced “very sharp pain” on this occasion. Nevertheless, he had to continue working as there was no-one who could take his place. He told the Leading Hand about what had happened but the Leading Hand had a back problem as well. Mr Beauchamp therefore waited until he returned to Australia to report the incident when he attended the sick bay at HMAS Albatross (near Nowra). He had x-rays on his back and was referred to Dr Harbison, a consultant Orthopaedic Surgeon, who recommended that he be put on light duties with restrictions on bending etc.
14. Professor Philip Sambrook, Professor of Rheumatology at the Royal North Shore Hospital, provided a report dated 3 December 2007 and gave evidence at the hearing. He said the helicopter accident in December 1983 and the lifting incident in May 1987 could both be considered high impact traumas. It appears that Mr Beauchamp has a congenital spondylolysis, a defect of the spine, which has caused a grade 2 spondylolisthesis – a slippage at L5/S1, which could also be described as a form of dislocation. There is a history of back pain related to bruising after the helicopter accident in December 1983. The first clinical evidence of spondylolisthesis is the x-ray of Mr Beauchamp’s back on 6 July 1987, and, Professor Sambrook said, this should be treated as evidence of clinical onset, being the time when a patient is sufficiently symptomatic to seek medical treatment. Since there is no clinical evidence of spondylolisthesis before July 1987, the incident in May 1987 cannot be considered a clinical worsening of the spondylolisthesis although it could be considered a clinical worsening of the congenital spondylolysis.
15. Dr David Millons, Orthopaedic Surgeon, provided a report dated 13 February 2008 and also gave evidence at the hearing. He described a spondylolisthesis as the forward movement or slippage of one vertebral body on another. A spondylolisthesis can occur where there is spondylolysis because of chronic instability in the lower lumbar region causing a progressive slip of one vertebra on another, or as a result of trauma instigating the spondylolisthesis. He said that, in his view, given that in Mr Beauchamp’s case the spondylolisthesis had not changed in x-rays taken in 1996, the spondylolisthesis was longstanding at the time the x-rays were taken in July 1987. He said the incident in May 1987 was not, in his view, an episode of high impact trauma. It “would have certainly stressed a back that was at risk, it may have caused aggravation and [sic - of] an underlying problem, but it’s not a high impact trauma” (transcript 26 August 2008, p 44). Dr Millons disagreed with Professor Sambrook about the nature of the trauma and said arching your back or doing something overhead should be considered a low impact trauma.
16. Dr Millons said that to satisfy the factor in clause 6(a) of SoP No 6 there would need to be a high impact trauma sufficient to fracture the vertebral arch or cause one vertebra to slip forward on another. This would not happen normally. Ms Wood asked him whether he was saying that somebody with congenital spondylolysis could never satisfy clause 6(a). Dr Millons replied, “Pretty well, yes, I am saying that” (transcript 26 August 2008, p 46). He said a similar high impact trauma was required to satisfy the factor in clause 6(g).
17. In relation to the helicopter accident in December 1983, Dr Millons said while “there may have been a high impact injury, there’s nothing that indicates particularly that there was any major back disruption then” (transcript 26 August 2008, p 47). While Mr Beauchamp has a history of intermittent back pain from after the helicopter accident to 1987, “which suggests there may be some aggravation of that underlying problem in the back”, without recourse to x-rays any diagnosis is presumptive.
18. In answer to questions from the Tribunal, Dr Millons said that for a high impact trauma to have caused the spondylolisthesis, “you would have to have some history of (a) a severe incident and (b) severe pain requiring hospitalisation” (transcript 26 August 2008, p 49). The fact that Mr Beauchamp did not have an x-ray of his back following the helicopter accident in 1983 suggests that while there were a lot of other injuries, “there was no major trauma done to his back at that time that would fit within the statement of principles definition” (transcript 26 August 2008, p 50).
19. In her submissions to the Tribunal, Ms Wood said Mr Beauchamp contends first, in relation to factor 6(a), relying on the evidence of Professor Sambrook, that he suffered a high impact trauma in the incident in late May 1987 within six weeks of the clinical onset of the spondylolisthesis which occurred at the time of the x-ray on 6 July 1987. Alternatively, second, he contends that if Dr Millons’ opinion is accepted and the spondylolisthesis predated the 1987 incident, then factor 6(g) is satisfied in that on the evidence of Professor Sambrook, Mr Beauchamp suffered a high impact trauma in May 1987 which caused a clinical worsening of the spondylolisthesis. The 1983 helicopter accident is one of the incidents upon which Mr Beauchamp relies in relation to the development of the spondylolisthesis. Although there is no contemporaneous radiological evidence, if Dr Millons’ view is accepted that the spondylolisthesis pre-dated the 1987 incident, then “it would quite likely have been precipitated by the significant trauma that the applicant underwent in 1983 in the helicopter crash” (transcript 11 February 2009, p 72).
20. Ms Warmoll, for the Commission, submitted that it is for the Tribunal to determine whether Mr Beauchamp suffered a ‘high impact trauma’. This is a descriptive phrase and not a medical term. She submitted that based on Dr Millons’ evidence, neither the helicopter crash in December 1983 nor the incident in May 1987 involved a high impact trauma to Mr Beauchamp’s spine. Moreover, the incident in May 1987 is likely to have occurred more than six weeks before any clinical onset on 6 July 1987. In relation to factor 6(g), Ms Warmoll noted Professor Sambrook’s evidence that “you can’t say it’s a clinical worsening of the spondylolisthesis because there’s no prior x-ray” (transcript 26 August 2008, p 37).
21. Ms Warmoll also referred to a report from Dr Richard Pincus, Consultant in Occupational and Rehabilitational Medicine, dated 6 September 1989, in relation to the helicopter accident in 1983. Dr Pincus expressed the view that had this incident caused the spondylolisthesis, “there would have been immediate and severe back pain”, which was not the case.

CONSIDERATION

22. As stated above, given that the first two steps prescribed in Deledio are not in issue, the first issue for the Tribunal in this case (Deledio step three) is whether any hypothesis raised by the material before the Tribunal conforms with one of the factors in the SoP. The Tribunal must form an opinion as to whether the hypothesis raised is a reasonable one. It will do so if the hypothesis raised is consistent with the ‘template’ to be found in the relevant SoP. The hypothesis raised must conform with one or more of the factors set out in the SoP and be related to the person’s service.
23. In the Tribunal’s opinion, the hypothesis connecting Mr Beauchamp’s spondylolisthesis with his war service is reasonable because it is consistent with both factors 6(a) or 6(g) in the relevant SoP, Instrument No 6 of 2006.
24. Having formed this opinion, the Tribunal must proceed to consider (Deledio step four), pursuant to s 120(1) of the Act, whether it is satisfied beyond reasonable doubt that the incapacity did not arise from the relevant condition.
25. As stated above, there is no dispute that Mr Beauchamp suffers from spondylolisthesis at L5/S1, consequent upon a congenital spondylolysis. The spondylolisthesis was diagnosed from the x-ray dated 6 July 1987. The Tribunal finds that Mr Beauchamp suffered trauma in two significant incidents during his service with the RAN: in the helicopter accident on 4 December 1983 and in the lifting incident on HMAS Success in late May 1987. The evidence is that Mr Beauchamp suffered multiple injuries in the 1983 accident including bruising of his back. However, no x-rays were taken of his back at that time and while his evidence is that he subsequently felt back pain on, for example, bending and lifting, he was classed as fully fit and returned to his normal duties. The Tribunal concludes that while Mr Beauchamp could have experienced a high impact trauma to his spine in that accident, there is no clinical evidence of the spondylolisthesis in the period after the helicopter accident, including therefore as to any clinical onset. Thus, the requirements of factor 6(a) of the relevant SoP are not satisfied in relation to the 1983 accident.
26. With regard to the lifting incident in May 1987, Mr Beauchamp’s evidence when considered in conjunction with the historical report prepared by Mr O’Keefe, indicates that the incident took place not earlier than 24 May 1987 and probably on 26 May 1987. Thus, any clinical onset of the spondylolisthesis following the incident (factor 6(a)) or clinical worsening of the spondylolisthesis following the incident (factor 6(g)) is treated as being the date of the x-ray on 6 July 1987. If we accept Mr O’Keefe’s evidence, remembering that Mr Beauchamp’s evidence of the date of the incident was relatively vague, and, at the time of the hearing on 26 August 2008, in relation to events that took place over 20 years ago, it is likely that the incident occurred on 26 May 1987, that is within six weeks of the clinical onset or worsening on 6 July 1987.
27. Given the Tribunal’s finding that there is no clinical evidence of spondylolisthesis prior to 6 July 1987, there can be no clinical worsening of that condition in the incident in late May 1987. Thus, the requirements of factor 6(g) are not satisfied in relation to the 1987 incident. The Tribunal notes Dr Millons’ opinion that the spondylolisthesis was longstanding when the x-rays were taken on 6 July 1987, but the Tribunal has no clinical evidence of this.
28. The question remaining for the Tribunal in relation to factor 6(a) is whether in May 1987 Mr Beauchamp experienced a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra. There having been no acute fracture of the vertebral arch, the question is narrowed to whether he experienced a high impact trauma to the spine resulting in dislocation of the vertebra, in Mr Beauchamp’s case, at L5/S1.
29. The two expert witnesses had differing opinions on whether Mr Beauchamp experienced a high impact trauma to the spine. Professor Sambrook was of the opinion that Mr Beauchamp could have experienced a high impact trauma in the May 1987 incident, while Dr Millons considered it a low impact trauma. Since the hearing, the Tribunal has had the benefit of Mr O’Keefe’s report and his description of the conditions prevailing at the likely time of the incident. Mr O’Keefe states that high winds caused major problems for helicopter operations on HMAS Success:

This was on 26 May 1987, the day that troops, stores and equipment of the ACG [Advance Company Group] were transferred by helicopters from HMAS Tobruk to HMASs Success, Sydney and Parramatta. The day was characterised by high winds and heavy seas which seriously interfered with the helicopter operations. Indeed, soon after the operations started, one of the two Wessexes and two of the other helicopters became unserviceable, while another, a Bell UH-1B Iroquois experienced a loss of control, apparently on take-off, and crashed back down heavily onto the deck of the Tobruk. The remaining Wessex alone had to complete the transfer of troops, stores and equipment to HMAS Success.

30. Mr Beauchamp’s evidence is that as he was lifting the helicopter blade, the wind forced the blade down again causing his back to arch in the opposite direction and leading to the direct onset of pain. Given the prevailing conditions as described by Mr O’Keefe, and noting the weight of the helicopter blades which Mr Beauchamp estimated to be approximately 167 lbs, the Tribunal is satisfied that what occurred could be described as a high impact trauma.
31. The Tribunal is also satisfied from the evidence that the impact on Mr Beauchamp’s spine could have resulted in the dislocation of the vertebra at L5/S1 which was diagnosed from the x-ray taken on 6 July 1987.
32. Having so determined, the Tribunal is not satisfied beyond reasonable doubt that the incapacity, the spondylolisthesis, was not war-caused. The decision under review must therefore be set aside. The parties agreed that if Mr Beauchamp’s application to the Tribunal was successful, the date of effect should be 28 July 2005 and Ms Wood requested that the matter be remitted to the Commission for medical impairment assessment. Given the time that this matter has been on foot, this seems reasonable.

DECISION

33. The Tribunal sets aside the decision under review and substitutes a decision:
    • (a) that Mr Beauchamp’s spondylolisthesis is war-caused;
    • (b) the date of effect of the substituted decision is 28 July 2005; and
    • (c) the assessment of the rate of pension payable to Mr Beauchamp in respect of the incapacity caused by the spondylolisthesis is remitted to the Repatriation Commission for assessment.

I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R P Handley, Deputy President and Dr MEC Thorpe, Member.

Signed: .............[sgd]..............................................................

Associate

Dates of Hearing: 26 August 2008 and 11 February 2009 Hearing on the Papers 27 January 2010

Date of Decision: 10 February 2010

Counsel for the Applicant: Ms E Wood

Solicitor for the Applicant: Ms A Toliopoulos, Legal Aid Commission

Counsel for the Respondent: Ms J Warmoll, Department of Veterans’ Affairs

Solicitor for the Respondent: Mr N Bunn, Department of Veterans’ Affairs