Hicks-Hall and Repatriation Commission [1990] AATA 748 (2 November 1990)

Last Updated: 10 June 2008

VETERANS' AFFAIRS - Low back pain - whether service-related - whether applicant's eligible service contributed in a material way to injury or disease - whether contribution was de minimis

Veterans' Entitlements Act 1986: S9

Repatriation Commission v Bendy [1989] FCA 170; 18 ALD 144

REASONS FOR DECISION

RE: WELLESLEY IAN NORMAN SUTCLIFFE HICKS-HALL

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

Q87/384

AAT Decision No 6323

TRIBUNAL: Mr. D.W. Muller, Senior Member

Dr. G.S. Urquhart, Member

Captain E.T. Keane, Member

DATE: 2 November 1990

PLACE: BRISBANE

DECISION: The Tribunal -

1. Sets aside the decision of the Repatriation Board dated 19 October 1984 so far as it relates to perianal abscess and in substitution therefor decides that the applicant's disability of perianal abscess is war-caused with date of effect on and from 12 December 1983;

2. Affirms the decision under review in all other respects; and

3. Remits the matter to the Respondent for re-assessment in accordance with this decision.

D.W. MULLER

SENIOR MEMBER.
ADMINISTRATIVE APPEALS TRIBUNAL

VETERANS' APPEALS DIVISION

Q87/384

RE: WELLESLEY IAN NORMAN SUTCLIFFE HICKS-HALL

APPLICANT

AND: REPATRIATION COMMISSION

RESPONDENT

TRIBUNAL: Mr. D.W. Muller, Senior Member

Dr. G.S. Urquhart, Member

Captain E.T. Keane, Member

DATE: 2 November 1990

PLACE: Brisbane

REASONS FOR DECISION

1. This is an application to review a decision of the Repatriation Board of 19 October 1984 which rejected a claim for acceptance of the applicant's low back pain and perianal abscess as service-related disabilities. The applicant originally claimed pension for these disabilities on 12 March 1984.
   
2. At the hearing before the Tribunal the applicant was represented by Mr. Halliday of Counsel and the respondent was represented by its advocate Mr. Goldrick.
   
3. Mr. Goldrick informed the Tribunal that the respondent conceded that the applicant's perianal abscess is a service-related disability. The only matter requiring a determination from the Tribunal is that associated with the applicant's claim for acceptance of low back pain as a service-related disability.
   
4. The applicant was born on 20 April 1932. At the age of 17 years he began a course at Royal Military College, Duntroon, which course he completed in 1952. He attended Adelaide University from 1952 to 1954 where he completed a Bachelor of Engineering degree. The applicant spent his working life as a career soldier/engineer and he was discharged on 11 April 1984 with the rank of Colonel. He had operational service in Vietnam from October 1968 to October 1969 and he had eligible service from December 1972 to April 1984.
   
5. The applicant had numerous tours of duty overseas including the following:

1965-1966: Malaysia with HQ17 Gurkha Div.

* Oct 1968-Feb 1969: Nui Dat (South Vietnam) O.C.

* March 1969-Oct 1969: Saigon (South Vietnam)

1972-1974: Seconded to SEATO, Bangkok

Mid 1979-1980: Senior Project Officer, Malaysian Armed Forces Manufacturing Workshop Project,
Kuala Lumpur
* Operational Service

6. The applicant first noticed his problem with low back pain in Malaysia in 1965. He recalls three occasions on which his back gave him trouble. In the first incident he had been jogging along a jungle path when he tripped over a vine and hit his back against a tree. At the time he went onto light duties for a few days and then his back recovered sufficiently for him to resume normal duties. Several months later he was involved in a mountain jungle exercise when during the climbing phase he was forced to discontinue because of intense lower back pain. He thought at the time that the back pain may have been related to the earlier incident. In the third incident he was participating in a three-day jungle exercise when he walked over the edge of a fissure which had been hidden by the jungle. He says that he fell about 30 feet and in the fall injured his back. His back took about 10 days to recover after the third incident.
   
7. Prior to his going to Vietnam in 1968 the applicant did a refresher jungle course at Canungra. He noticed that the pain in his lower back would build up during physical activity but then go away after rest.
   
8. It was when the applicant was at Nui Dat, in Vietnam, that his back pain began to become bad enough to be debilitating. During that three month period he was on his feet for up to 12 hours per day on most days. He was heavily involved in physical activity because he felt an obligation to lead his troops by example. The pain in his back became so severe that he had to rest for 20 minutes or so in the middle of the day. After resting for that short period the pain would subside sufficiently for him to be able to carry on. Following upon his three months at Nui Dat he was transfered to Saigon. The requirements of his duties were far less physically demanding in Saigon than they had been at Nui Dat and he noticed a corresponding reduction in the pain in his back.
   
9. The applicant's stint in Thailand involved him in a fair amount of physical activity. He was involved in frequent treks through rough terrain. The pain returned to his back during this period but he says it was not of the severity that he experienced in Nui Dat.
   
10. The applicant now has continuous pain in his back. The pain becomes worse when he does anything physical like digging in the garden or playing golf. It is the applicant's claim that his service for the three month period in Nui Dat caused permanent damage to his back.
    
11. The application to have his back problem accepted as service related has presented difficulties for the applicant because of problems associated with the diagnosis. It was originally diagnosed as osteoarthritis, and then about two years later it was diagnosed as lumbar spondylosis. In either case the claim was rejected because although the applicant does have some osteoarthritis and some lumbar spondylosis, the degree of disability attributable to either or both of those conditions is fairly minor. The incidents which occurred in Malaysia, described in paragraph 6 above, did no permanent damage whatsoever. The applicant's back pain is significantly disproportionate to the degree of his osteoarthritis and his lumbar spondylosis. (See the evidence of Dr. Eklund quoted in the following paragraphs).
    
12. It was not until the applicant was examined by an orthopaedic surgeon, Dr. Eklund, on 31 May 1990, that an explanation for the back pain emerged. Dr. Eklund noticed that the applicant has a mild to moderate degree of "claw foot" (pes cavus). On further questioning it was revealed that the applicant has had trouble with his feet all his life. He has had to buy shoes a size too big to enable him to get the width and height of instep that he needs. Dr. Eklund gave evidence to the Tribunal that there is a well-recognised medical condition whereby people with this foot problem will walk or run in such a way as to compensate for their problems and they thereby put a strain on their spine. The foot condition can lead to a low back condition due to postural changes and corrections in the curvature of the spine. Dr. Eklund explained the situation thus:
    

Over the years, you develop - it is almost an unconscious correction of the back posture. Particularly, if you are faced with climbing, long periods on the feet, you modify your posture to cope with it. In reasonable, ordinary circumstances, it might not produce any discomfort at all. The person is unaware that the back is correcting for the feet, but under stress conditions, the back will start to complain in some instances.

MR. MULLER: If you spent your life in a sedentary job, you would never notice it?

A. Possibly not, depending on the degree of claw foot that you have.

MR. HALLIDAY: What medical condition is the source of his pain at the moment?

A. This again is a matter of debate. Postural back pain is regarded by many to be spasm in the little ligaments and muscles of which there are many connecting the vertebrae. Others say it is urogenic, but it is generally specifically confined to the back. It does not radiate into the limbs as in a lot of other back conditions.

Q. You mentioned in your report, exhibit 3 - I think you mentioned a diagnosis of chronic back pain?

A. Yes.

Q. In your opinion, is that a medical complaint?

A. That is the nearest I could go to providing a diagnosis. I have seen it used before in lists of accepted disabilities for ex-servicemen, but I do not like not being able to give a specific diagnosis. It is very easy to look at an x-ray and say he has some spondylosis and this is a nice little category for back pain, but that is not good enough for me. I feel in this instance, all I can do is to say he has suffered from chronic low back pain. I do not know where that pain specifically originates, but I have given you a general idea of how the orthopaedists feel about it.

MR. MULLER: It is muscle spasm more than a wear and tear thing?

A. Exactly.

MR. HALLIDAY: Just in simple language, how is that caused by posture?

A. How is what caused?

Q. The muscle spasm. I think you have explained that because of the bad feet, one alters one's posture to compensate for that?

A. Yes, that is true. The spine is actually - looked at side on - is actually a series of curves. I like to say that if you regard the spine - the spinal structure as being supported by like a flag pole by muscle and ligaments to keep it in a certain position, but if, over a period of time, you have alterations.......antagonists, you get much more pressure put on one set of muscles than the other, and those muscles start to go into spasm and complain. They complain by producing pain. If he, at the times of stress - while he is normally leading a sedentary life - the muscles can tolerate that, but when he puts it under stress like mountain climbing, jogging, and things like that, then those stress muscles start to complain. That is about the nearest I can get to it.

Q. After that initial insult, if one might call it that, does that muscle strain stay there or does it heal itself?

A. It really never heals. The muscle will, after a long period of stress and spasm and it becomes more and more longer duration and provoked by lesser stress, then those muscles would tend to develop some sort of fibrosis and a shortening and so on and so forth, and then this curvature or false curvature is maintained. In this case, he has a flat lumbar spine. Some of that could be due to his age and the present state of his lumbar spondylosis and some of it could be due to the spasm I am talking about.

Q. In your report, exhibit 3, you say his low pains were not characteristic of osteoarthritis?

A. No, I had already described that earlier. I said the typical lumbar osteoarthritic - I have it myself - you wake up in the morning feeling like you have been run over by a train, and once you get up and have a cup of tea you are feeling a bit better, and once it gets to mid-morning and you have been moving around a bit, you feel you could go out and play tennis.

A. But with this - it is the reverse, in that you get worse and worse with stress. It is quite in contrast to the osteoarthritic.

MR. MULLER: The older he got, the more susceptible he got to pain, because his muscles lost their elasticity?

A. Yes. We are looking at a youngish man in these periods, and also a man who was somewhat stoic and, being a leader, he did not want to disclose it.

MR. GOLDRICK: If the veteran had been a civilian in the whole of the period, for both eligible periods, and as he did suffer from congenital problems with his feet, what would you hypothesise was the state of his symptoms in his lower back now?

A. I would say that as a civilian he would not be in as bad a shape as he is today, assuming we have the equivalent lumbar spondylitic condition.

Q. What if, as a civilian, Mr. Hicks-Hall undertook the type of activity that he did undertake prior to joining the service?

A. Yes, I remember the circumstances. He played (sport) at Duntroon and at the Adelaide University, I think.

Q. Yes?

A. That is the period the chairman has just pointed out, young and elastic, able to take it.

MR. MULLER: What has happened? Do you say there is some permanent muscle damage now?

A. Yes. I think that we have got to regard the pain he is getting now as being intervening between chronic muscle spasm and the early manifestations of symptoms of osteoarthritis.

Q. Over and above his - sorry, he has got generalised osteoarthritis; he has got lumbar spondylosis equivalent to a man his age, but on top of that, you think that there is some chronic muscle spasm situation there now?

A. I cannot define it really.

Q. You just think he is a bit worse than he should otherwise be?

A. Yes.

Q. In an indefinable way - like the RSI situation?

A. I know this is a bit of an airy-fairy situation, but there are some very eminent authorities who connect foot trouble with back trouble and unfortunately, of course, we depend so much on radiological evidence when people can have syndromes which have no radiological backing at all.

Q. You can certainly get muscle spasms associated with early muscle injury you might say - pull a muscle in your youth playing football and then that somehow or another plays up in the cold weather later on?

A. This is more a sustained stress to a group of muscles, and if you know anything about the anatomy of the spine, there are not just big muscle groups, you have numerous little muscles called interspinalis which run between the transverse processes and any group of those muscles could produce pain from spasm.

Q. Anyway, you think that the difficulties with those muscles over a long period of time has caused some permanent injury, hard to define, impossible to see radiologically, but the man is in greater pain or has a greater disability in his back than you would expect just looking at an x-ray?

A. I think he is just as handicapped as a man with quite a severe degree of lumbar spondylosis.

MR. GOLDRICK: Doctor, did you take into account 1955 left knee strain and any ongoing aspect?

A. I reviewed all those things. As I say, I spent two hours with him and the examination took nearly an hour. You do not ordinarily spend that amount of time, but this was a case that required it.

Q. What incapacity from the left knee injury is ongoing now?

A. The knees are in good shape. Radiologically, there is only minimum osteoarthritis and his knees on clinical examination are quite good.

Q. In 1965, May and October, two injuries to the spine - lower spine - one fall during jungle exercises and another fall into a rocky fissure, did the veteran describe the symptoms that arose at that time?

A. Yes. I finally discounted those as having any real long term effect on the spine.

Q. On the spine?

A. Or any of the other.

Q. So the symptoms exhibited in 1965 or as described to you did not lead you to think that there was muscle problem or a ligament strain at that time?

A. No.

Q. Just soft tissue bruising?

A. His description was that he was sore for a few days and then he threw it off.

Q. You have agreed with Dr. Jager's opinion as to there being a primary, generalised, osteoarthritis in this case?

A. Yes. I think there is definitely a generalised osteoarthritic situation here.

Q. Finally, doctor, of the 34 years of service with one year in Vietnam, can you quantify or provide some degree of significance as to the effects of activities undertaken during that year on this man's pes cavus condition?

A. No. I cannot really quantify it. All I can say it has significantly affected it. I am not prepared to quantify it.

Q. How can you indicate significance without providing some degree of measurement?

A. I did not think in terms of percentages and things like that. I am afraid I am a more reasonable man in the case of anatomy.

13. The applicant also gave evidence to the Tribunal to the effect that he has spent virtually a lifetime involved in fairly strenuous physical activity. He regularly did P.T. as an Army Officer and he indulged in a lot of sporting activities over the years. Some excerpts from his evidence illustrate the point.
    

MR. GOLDRICK: These three pages are annexed to a claim prepared by yourself?

A. Yes, they were.

Q. At item 1, you stated there the usual heavy physical activities including boxing and heavy PT programme?

A. Yes.

Q. That was during the time at Duntroon where these activities were expected of you in the course of your duties?

A. Yes.

Q. You were instructed to undertake these various activities at Duntroon?

A. Yes.

Q. And item 2, 1952 to 1954 at Adelaide University, you played mainly hockey and some football?

A. Yes.

Q. And you also had a PT programme?

A. Only in terms of the training for sport.

Q. So the hockey and the football, those sports, were your choice?

A. Yes, but we were expected to play some sport.

Q. You then took up golf as a primary sport in the period '55 to '59?

A. Yes.

Q. Since the late '50s, you have been playing golf how regularly?

A. Probably if I was lucky once a week, if I was lucky.

Q. That was in the early days?

A. I have been very lucky to ever get any more than one game of golf a week.

Q. Would you do 18 holes?

A. I did 18 then, no problem.

Q. The period 1960 to '61, again, just in the UK and the BADR, considerable unit training in severe winter conditions as well as summer conditions. Again, the field training involved there, what was that?

A. Just field exercises. You would go out and set up, train with a British army signal unit. We would go out and set up and practise communicating and repairing the equipment.

Q. At that time, often on your feet?

A. Just the normal getting around a location, probably no more active than in those conditions than being back at base.

Q. Any problem with your feet or your lower back at that time?

A. Once again, not that I can remember any real problem.

Q. Not any real problem?

A. No.

Q. What do you mean by that?

A. I do not remember any onset of pain sufficient to make me say, "Hey, what's going on?"

Q. Can you recall any pain at all?

A. I do not think so. I was not looking for it either or worrying about it.

Q. '62 to '64, you were back in Melbourne and Sydney again with training activities and several major field exercises for some months?

A. Yes.

Q. Similar field exercises to what you previously described?

A. They were longer ones; a smaller version, for instance, of the Kangaroo series and all that type of thing which happens nowadays.

Q. Was there a stage reached when you had pain all the time?

A. I do not think so in Malaysia.

Q. At what stage did that first occur where you had pain every day?

A. I think during the first year after my return from Malaysia.

Q. When did you come back to Australia?

A. I think it was April 1981.

Q. You went where?

A. To Sydney.

Q. What were your duties in Sydney?

A. I was commander of an engineering group which once again was primarily a desk job with quite a bit of getting around.

Q. How was your back during that period?

A. It got to the stage during that first year that I was there that I had a continual level of low pain continually.

Q. Can you put a date on that, just approximately?

A. Certainly by the end of that first year.

Q. That is in ----- ?

A. It would have been by the middle of '82.

Q. Onwards?

A. Yes.

Q. Did that level of pain increase or did it remain the same?

A. Depended on what I was doing because I was trying to do PT and jogging, the usual thing, playing golf, and that did not particularly help either at that stage.

Q. Did you play golf with any particular people?

A. I was made chairman of the army golf club based at the Victoria Barracks, so I was expected to play on Wednesdays if I could.

Q. Did you try and play golf?

A. Yes.

Q. Did you try to play on a regular basis or what?

A. Primarily, only on Wednesday afternoons that I was in Sydney.

Q. How did you go at playing golf?

A. Slowly but surely, it became a little more difficult. I certainly was not playing up to the standard I would have liked to.

14. It is clear from the medical evidence, and both parties agree, that the applicant's lumbar spondylosis and his osteoarthritis are in no way service-related. Nevertheless he is more disabled than he should be if only those two factors were to be taken into account. It is Dr. Eklund's theory that the applicant's foot condition (pes cavus) has caused postural changes which have put a life-long strain on certain of the muscles in the applicant's back. This has caused permanent muscle damage. It is the applicant's case that during a period of operational service for three months at Nui Dat the applicant was subject to physical stress over and above that to which he was ordinarily subjected. He claims that as a result of that service he now suffers permanent damage that he otherwise would not have suffered. The support for this proposition comes from the applicant's own evidence that the Nui Dat period was the first in which his back problem became disabling. He also has some support from Dr. Eklund who said that the Nui Dat experience would have "significantly affected it" but he went on to say "I am not prepared to quantify it".
    
15. The material presented to the Tribunal shows that although the applicant has had basically a sedentary occupation he has led a fairly active physical life. He has been involved in football, boxing, hockey, extensive field work, a lot of marching, regular P.T. and regular golf. His Army career spanned about 34 years. The Tribunal believes that any extra strain on the applicant's back caused by his service during the three months at Nui Dat would have been negligible, when taken in the context of his total Army career and his private life. The evidence also shows that the applicant was having trouble with his back before he got to Vietnam - Malaya 1965/66 and Canungra 1968 (periods of non-eligible service). No evidence was led as to any significant event during the other period of eligible service. The definition of war-caused injuries or diseases is contained in section 9 of the Veterans' Entitlements Act 1986 (the Act) and the subsection relevant to this case reads:
    

9. (1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if -

.......

(e) the injury suffered, or disease contracted, by the veteran:

(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

16. The Tribunal notes the comments by Davies J. in Repatriation Commission v Bendy [1989] FCA 170; 18 ALD 144 at 151.
    

"It would also be necessary to consider whether any aggravation due to war service was a material or relevant aggravation. In examining this question, the Tribunal would have to consider the facts of the case in the light of the scope and purpose of the s9(1)(e) and its relationship to provisions such as s9(1)(b) and the tests applicable thereto. Certainly, an aggravation which was de minimis would not suffice."

17. The Tribunal decides that in the case of the applicant any incremental aggravation of his back problem that may have occurred at Nui Dat or at any other time during his eligible service was so minimal as to be not a contribution to a material degree.
    
18. The decision to not accept the applicant's condition of low back pain as service-related will be affirmed.
    

I hereby certify that this and the preceding 9 pages are a true and correct copy of the decision and reasons for decision for Mr. D.W. Muller, Senior Member, Dr.G.S. Urquhart, Member and Captain E.T. Keane, Member in the matter of
WELLESLEY IAN NORMAN SUTCLIFFE HICKS-HALL and the REPATRIATION COMMISSION.

Signed .....................................

Date .....................................