Scott and Repatriation Commission [2011] AATA 369 (31 May 2011)

Last Updated: 31 May 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 369

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/4822

VETERANS' APPEALS DIVISION		)
	Re		Raymond Scott

Applicant

And

Repatriation Commission

Respondent

DECISION

Tribunal

M D Allen, Senior Member

Date 31 May 2011

Place Sydney

Decision

The Decision under Review is AFFIRMED.

.....................[sgd]................
M D Allen, Senior Member

CATCHWORDS

VETERANS' ENTITLEMENTS: Application to have cervical spondylosis and cervical disc prolapse accepted as Defence caused. Not reasonably satisfied so caused.

Application for pension at Special Rate. Applicant under 65 years. Defence caused incapacity substantial cause of inability to engage in remunerative work, but Applicant not genuinely seeking to engage in remunerative work. Ameliorating provisions of paragraph 24(2)(b) Veterans' Entitlements Act therefore not applicable.

LEGISLATION

Veterans’ Entitlements Act 1986, S24, 69, 70, 120, 120B and 196B.

CASES

Repatriation Commission v Smith (1987) 15 FCR 327

Benjamin v Repatriation Commission (2001) 34 AAR 70

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 36 AAR 484

Commissioner of Superannuation v Scott (1987) 71 ALR 408

REASONS FOR DECISION

31 May 2011

M D Allen, Senior Member

1. By application made 3 October 2009 the Applicant sought review of a decision of the Respondent that rejected his claim to have cervical spondylosis, intervertebral disc prolapse C5/6 and C6/7 and hiatus hernia recognised as Defence caused injuries and diseases and which increased the amount of disability pension payable to him to 100% of the General Rate of Pension.
2. At the commencement of the hearing in this matter the Applicant withdrew his claim in respect of hiatus hernia.
3. The issues before me were therefore:
   • (a) Whether the Applicant’s condition of cervical spondylosis and intervertebral disc prolapse were Defence caused; and
   • (b) Whether the Applicant satisfied the criteria for the grant of pension at the Special Rate.
4. The Applicant served in the Australian Regular Army from 28 January 1975 to 27 January 1987. That service constituted Defence service as defined pursuant to section 69 of the Veterans’ Entitlements Act 1986 (“VEA”).
5. Paragraph 70(1)(d) VEA provides that the Respondent is liable to pay pension to a former member of the Defence Forces who suffers incapacity as a result of a Defence caused injury or disease.
6. So far as injuries or disease caused or contributed to by Defence service are concerned Ss120(4) VEA mandates that the standard of proof is that of to the Tribunal’s “reasonable satisfaction”. As pointed out in Repatriation Commission v Smith (1987) 15 FCR 327 that equates to the civil standard of proof, namely proof on the balance of probabilities.
7. Section 120B VEA states that the Tribunal can only be reasonably satisfied that an injury or disease is Defence caused if a Statement of Principles (“SoP”), issued pursuant to Ss196B(3) or (12) VEA upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.
8. In Benjamin v Repatriation Commission (2001) 34 AAR 70, the Full Court of the Federal Court pointed out that the question of the diagnosis of any particular injury or disease suffered by a former member of the forces is to be made to the Tribunal’s reasonable satisfaction.
9. In Lees v Repatriation Commission [2002] FCAFC 398; (2002) 36 AAR 484 the Full Court of the Federal Court affirmed previous decisions that had stated that the clinical onset of a disease can be said to be when there is present those signs and symptoms of a disease which, if observed by a clinician, would warrant the conclusion that the patient suffered from a particular illness or disease.
10. Based on the report of orthopaedic surgeon Dr Anthony Smith dated 13 May 2010 the Respondent conceded that the Applicant suffered from cervical spondylosis and intervertebral disc prolapse C5/6 and C6/7.
11. The Applicant also claimed that he was entitled to pension at the Special Rate. The criteria for the grant of pension at the Special (or so called Totally and Permanently Incapacitated) Rate are set forth in section 24 VEA. Section 24 reads inter alia:

“(1) This section applies to a veteran if:

(aa) the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and

(aab) the veteran had not yet turned 65 when the claim or application was made; and

(a) either:

(i) the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or

(ii) the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and

(b) the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and

(c) the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and

(d) section 25 does not apply to the veteran.

(2) For the purpose of paragraph (1)(c):

(a) a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:

(i) the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or

(ii) the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and

(b) where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.”

12. The Applicant gave evidence that he injured his neck in 1986 whilst performing exercises on a machine called a “hydragym” during the course of a compulsory physical training exercise at the Infantry Centre at Singleton, NSW.
13. As I understand it from the Applicant’s evidence, a hydragym is a machine which clamps the head and then neck muscles are exercised by pushing against the set resistance.
14. Whilst performing this exercise the Applicant heard a crack “like a gunshot” and his neck started to ache. He completed the final exercise remaining in the group of exercises required of him, then had a hot shower which made him feel better.
15. The Applicant then walked to 2 Camp Hospital where he saw a medical orderly and was given some Panadol and a heat producing cream to rub on his neck. He then went back to his place of work in the Royal Australian Electrical and Mechanical Engineer’s workshop, but spent the day taking it easy just doing bookwork.
16. When the Applicant awoke the next morning his neck was stiff and sore. He had a hot shower and continued to take Panadol for the pain. The pain and stiffness in his neck continued and he continued to take analgesics and to allocate himself to light work.
17. According to the Applicant, he has continued to have neck pain since this incident. Questioned as to why he had not then sought medical treatment he said that the Regimental Aid Post (“RAP”) personnel did not want to do anything for you unless they had to and that if you attended too often you were classed as a malingerer. He therefore self-medicated taking Panadol until his discharge from the army in 1987.
18. Cross examined as to this incident the Applicant said that although the pain in his neck was not always severe it never entirely went away.
19. In a report dated 31 March 2010, Orthopaedic Surgeon Professor Ghabrial said:

“1. I believe that the injury has occurred in 1986 when he was involved in hydrogym. He developed a cracking sensation in his neck and he had pain and stiffness with continuing signs and symptoms for at least 10 days following the onset. Actually he continued with his symptoms and signs since then. His symptoms were immediate, which means within 40 hours after the injury.

2. I believe that the intervertebral disc prolapse has occurred in 1986 as a result of such injury and he continued with his symptoms and clinical features since then.”

20. When he first appeared before the Veterans’ Review Board (“VRB”) on 25 August 2008 the Applicant did not refer to any specific trauma resulting from his use of the hydragym. The Board’s decision states at paragraph 14:

“Mr Scott dated the onset of his neck symptoms to his use of the “hydra gym”... His head started to hurt after using this machine for some time. Some of his work involved working under trucks where he would be using his neck and back muscles to support lifts.”

It was only at a later appearance before the VRB on 23 July 2009, and after the Board received Professor Ghabrial’s report of 2 March 2009 that the Applicant disclosed the frank injury. The Board records him as stating:

“...he said that on one occasion between 1981 and 1987 he was using the hydra gym when his neck ‘cracked’, ‘like a rifle shot’. He moved his head around until it felt better but it remained sore for a few days. He was able to move his neck as long as he did not do so quickly. He went back to using the hydra gym after this incident”.

21. Professor Ghabrial first examined the Applicant on 29 April 2004 at the request of the Applicant’s General Practitioner (“GP”), Dr Ismay. In a report to Dr Ismay dated that day, Professor Ghabrial took the following history:

“He gave me a history of repeated injuries during his Army service between 1975 and 1987 when he was working as an Engineer which at that time entailed heavy activities including lifting heavy equipment, repairing equipment, engines and weapons. He started to develop symptoms in his neck and lower back about early to mid-1980s.”

In that same report, Professor Ghabrial stated:

“I understand that he is struggling with work but tries hard to continue with his employment. I also understand that he takes more sick leave and has been advised to lead a sedentary life to avoid any further aggravation of his problems.”

22. Exhibit R2 is the clinical notes of the Applicant’s GP, Dr Ismay. Prior to 2004 no record is made of the Applicant suffering neck pain prior to 1 March 2004. As I understand the Applicant he says the analgesics prescribed for his knee pain enabled him to cope with his neck pain.
23. At no time do the Applicant’s service medical documents disclose any complaint of neck pain. Notwithstanding that the Applicant said he did not attend any service medical facility regarding his neck pain for fear of being classed as a malingerer, no complaint of neck pain is made to any examining Army medical officer.
24. On 18 December 1986 the Applicant underwent an annual medical examination. Although reference is made to a physical training injury to both knees and a back injury, no reference is made to any neck injury.
25. Despite his claim of indifference by RAP staff, on 17 November 1986 the Applicant attended at the Infantry Centre Medical Centre complaining of back pain. The report of injury reads inter alia:

“...has had back pain for 1/52. Felt onset of injury whilst out bush... requested to see M.O...”

To my mind if the Applicant was concerned enough about a back injury to ask to see a medical officer, continuing pain from a neck injury would have elucidated a similar response.

26. At Document T3, page 13, of the documents prepared for the Tribunal pursuant to s37 of the Administrative Appeals Tribunal Act 1975, is a copy of the Applicant’s discharge medical examination. Question 52 of the medical questionnaire reads:

“Have you ever had or are you now suffering from any of the following:

(a) Knee injury
(b) Ankle injury
(c) Back injury
(d) Other joint injury or dislocation”

The Applicant has affirmed the presence of knee, ankle and back injuries but answered “No” to question 52 (d) ...other joint injury or dislocation. The medical officer’s comments in the report make no reference to any complaint of neck injury. Notwithstanding the Applicant’s evidence of reluctance to report injuries, I cannot accept that this reluctance extended to his medical examination upon discharge, especially when other injuries are raised.

27. Instrument No.34 of 2005 is the SoP referring to cervical spondylosis for members of the forces who have had Defence service only. Factor 5(g) of the factors connecting service with cervical spondylosis reads:

“Having a cervical intervertebral disc prolapse before the clinical onset of cervical spondylosis at the level of intervertebral disc prolapse.”

28. This factor conforms to the opinion of Professor Ghabrial that the Applicant suffered an intervertebral disc prolapse that in turn led to cervical spondylosis.
29. Instrument No.40 of 2007 is the SoP referable to intervertebral disc prolapse. Factor 5(a) reads:

“Having a trauma to the relevant disc within the 24 hours before the clinical onset of intervertebral disc prolapse.”

30. Having a trauma to the relevant disc is defined in the SoP in the following terms:

"a trauma to the relevant disc" means an injury, including G force-induced injury, to the affected intervertebral disc that causes the development of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of that part of the spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the relevant disc has occurred and that medical intervention involves either:

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

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

(c) surgery to that part of the spine;”

31. Dr Anthony Smith was dismissive of the Applicant’s claim that the use of the hydragym led to intervertebral disc prolapse. In his report dated 13 May 2010, Dr Smith states:

“Degenerative disease is a universal phenomenon in the back and whole of the spine. There is no reason for Mr Scott’s neck to be any different.

...

I would have thought if he had any significant injury to the cervical spine between 1975 and 1987 there would be some special features apparent on the investigations. C5/6 and C6/7 are the most commonly affected levels in the general population. It would appear on the reports available that there is nothing remarkable about his investigations.

...

I wouldn’t have thought it likely the hydragym would produce a disc protrusion. Neck pain on a recurrent basis isn’t a typical symptom of disc protrusion. Using the hydragym he is electively applying as much power as he wants to. It is not as though it is uncontrolled movement such as in a motor vehicle accident”.

32. Although the Applicant claimed that from the time he injured himself using the hydragym he continued to suffer pain in his neck, there is no complaint of neck pain to any examining medical practitioner until 2004. To my mind if the neck injury claimed had been severe enough to cause two intervertebral disc prolapses in the Applicant’s neck he would have been compelled to seek medical intervention. I also find it strange that at no time thereafter was there any reference to neck pain until 2004.
33. These factors satisfy me that the explanation for the Applicant’s disc prolapses and cervical spondylosis advanced by Dr Smith is the correct explanation for the Applicant’s incapacity. Namely that he suffers from a degenerative condition of the spine and that Defence service played no part in the onset of the condition.
34. Accompanying the Applicant’s application to the Department of Veterans’ Affairs (“DVA”) for pension for his neck disabilities the Applicant included a statement which reads inter alia:

“When the neck was locked into the Hydragym: PT exercise equipment – it was set too high for my physical ability at the time causing great pain every time I had to use it. Minimum twice a week.

What replacement to equipment efected (sic) your neck if any?

Lifting and straining the muscles in the neck whilst trying to fit and refit the motors and gearboxes of land rovers, MK3s and 5s.”

35. I am strengthened in my conclusion as the cause of the Applicant’s neck condition as in his original application to the DVA, and originally before the VRB, the Applicant made no reference to any frank injury arising out of use of the hydragym. See also the original history taken by Professor Ghabrial which refers only to “repeated injuries between 1975 and 1987”.
36. The Applicant was dismissed from his last employment due to having a poor attendance record. The Applicant claims his inability to continue with his employment was substantially caused by incapacity occasioned by his accepted Defence caused injuries and diseases.
37. The Applicant stated that his last employer considered that the amount of time he was absent from work was unacceptable so he was suspended and his employer arranged for Dr Straughan, a consultant in occupational medicine, to examine him and prepare a report.
38. In his report of 8 March 2005 to the employer, Dr Straughan stated inter alia:

“A nuclear bone scan on 3 May 2004 showed degenerative osteoarthropathy involving the acromioclavicular joints, the medial compartment of the right knee, the glenohumeral joints, the small joints of both hands, the mid foot region bilaterally and to a lesser extent the cervical and mid thoracic spine.”

39. Dr Straughan concluded his report by opining that the Applicant was unfit to perform his normal duties but that he was fit to perform work where he could work on an even surface, preferably between waist and mid shoulder height, sit, stand and move around frequently at his own pace.
40. Unfortunately Dr Straughan does not comment on the availability of work within such restrictions for a (then) 50 year old maintenance fitter in the Hunter region of NSW.
41. To my mind a more realistic appraisal of the Applicant’s ability to engage in employment was made by a Centrelink Job Assessor following the Applicant’s application for a Disability Support Pension (“DSP”) as a consequence of the termination of his employment and Dr Straughan’s report.
42. On 10 June 2005 a Centrelink Job Assessor assessed the Applicant and his capacity for work or retraining and concluded that he had a work capacity for the next 24 months of 0-7 hours per week.
43. In coming to his assessment, the Centrelink officer said in his report that the Applicant was not suitable for any employment due to constant severe multiple joint pain. At page 11 of his report the officer states as his reasons for supporting the impairment rating given to the Applicant:

“WIDESPREAD OSTEOARTHRITIS – Diagnosed, treated, stabilised. Onset – previously sustained injuries in the army + history of heavy labour employment. Previously seen by numerous Orthopaedic specialists + confirmed multiple joint degeneration via: Entire body Bone Scan 3/5/04, Cervical MRI 17/5/04 + Lumbar MRI 17/5/04. Reports constant pain symptoms of the neck, back, shoulders, hands, hips, knees, feet. Unable to sit, stand or walk any prolonged periods. Unable to walk > 50 - 100 metres at a time – requires a trolley to lean on if at the shopping centre. Presented with significantly evident stiff posture in WCA – difficulty standing up, sitting down + walking. Unable to completely bending (sic) Right Knee – ½ ROM loss (full ROM Left Knee). Unable to drive automatic car > 10-20 minutes due to pain. Reports significant difficulty getting in + out of the car or a bath tub – requires his wife to put on his socks + shoes. Both hands stiff and painful in the mornings – requires soaking in hot water. Daily use of: NSAID x 2, Panadiene Fotre (sic), frequent use of sleeping tablets + reports > 1 litre of wine mixed with medication. Persist > 24 months.

POST TRAUMATIC STRESS DISORDER – PTSD – Diagnosed, being treated. PTSD due to previous military involvement. Under psychiatrist care since mid-2004 with monthly reviews. Commenced anti-depressant medication use mid-2004. Reports recurrent nightmares, agitated, mood swings, insomnia. No available Psychiatrist report in WCA – unable to determine prognosis. TDR states improvement expected.”

44. What is clear from the reports of Dr Straughan and the Centrelink Job Assessor is that the Applicant’s inability to engage in remunerative work is as a result of incapacity from his disabilities some of which, namely PTSD, osteoarthritis both knees and lumbar spondylosis are Defence caused, whilst others, namely cervical spondylosis, intervertebral disc prolapse C5/6 and C6/7, and degenerative osteoarthropathy of the acromioclavicular joints, the glenohumeral joints, the small joints of both hands and the mid foot region bilaterally.
45. Thus the Applicant cannot be said to be incapable of undertaking remunerative work as a result of incapacity arising from Defence caused injury or disease alone.
46. However, as the Applicant was, at the time he applied for pension, aged under 65 years, the ameiliorating provisions of paragraph 24(2)(b) VEA apply to him.
47. Paragraph 24(2)(b) VEA requires that incapacity occasioned by Defence caused injury or disease be the “substantial” cause of the inability to engage in remunerative work. The word “substantial” has been described as a word calculated to conceal a lack of precision. In Commissioner of Superannuation v Scott (1987) 71 ALR 408 at 412, the majority said:

“This Court has on a number of occasions considered the adjective ‘substantial’ and, even where it stands alone uninfluenced by proximity to the word ‘wholly’, has adopted a meaning which accords with the submission of the Commissioner. I refer in particular to Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1980)27 ALR 367. At 382 Deane J said: ‘The word ‘substantial’ is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase ‘substantial loss or damage’, it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v Grinling ([1948] AC 291 at 317) where, after holding that, in the context there under consideration, the meaning of the word was equivalent to ‘considerable, solid or big’, he said: ‘Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case’... In the context of s45D(1) of the [Trade Practices] Act 1974 (Cth), the word ‘substantial’ is used in a relative sense in that, regardless of whether it means large or weighty on the one hand or real or of substance as distinct from ephemeral or nominal on the other, it would be necessary to know something of the nature and scope of the relevant business before one could say that particular actual or potential loss or damage was substantial. As at present advised, I incline to the view that the phrase, substantial loss or damage, in s45D(1) includes loss or damage that is, in the circumstances, real or of substance and not insubstantial or nominal.”

48. Whether or not the Applicant’s accepted disabilities were the substantial cause of his inability to obtain remunerative work, and given the evidence of the Applicant’s wife whom I found to be an impressive witness, I am prepared to accept that they were, the Applicant has not met the requirements of paragraph 24(2)(b) VEA. The paragraph requires the Applicant to satisfy the Tribunal that he has been genuinely seeking to engage in remunerative work. This he has not done.
49. Immediately after his last employment was terminated, the Applicant applied for and was granted a DSP. He is still in receipt of that Social Security benefit.
50. There is no evidence before me that at any time since the termination of his last employment the Applicant has sought remunerative work. Given the assessment by the Centrelink Job Assessor this is understandable and it may seem paradoxical that a former member of the forces who is found by the appropriate Commonwealth body, namely Centrelink, to be incapable of working more than seven hours a week, should be required to demonstrate that he is seeking to engage in remunerative work in order for the ameliorative provisions of paragraph 24(2)(b) VEA to apply, but that is what the legislation requires.
51. For the above reasons the decision under review is affirmed.

I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen.

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

K. Lynch, Associate

Date of Hearing 11 May 2011

Date of Decision 31 May 2011

Representative for the Applicant Winship Legal P/L

Representative for the Respondent Ms J Warmoll,

Department of Veterans’ Affairs