Bond and Repatriation Commission [2004] AATA 858 (27 July 2004)

Last Updated: 18 August 2004

Administrative

Appeals

Tribunal

DECISION AND REASONS FOR DECISION [2004] AATA 858

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N2003/299

VETERANS’ APPEALS DIVISION

)

Re

TERENCE BOND

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen; Dr J D Campbell, Member

Date 27 July 2004
Place Sydney

ADMINISTRATIVE APPEALS TRIBUNAL ) No. N2003/299
)

VETERANS’ APPEALS DIVISION		)
	Re		TERENCE BOND

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member M D Allen; Dr J D Campbell, Member

Date 27 July 2004
Place Sydney

Decision

FOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd M D ALLEN)
..............................................
Presiding Member

CATCHWORDS

VETERANS' ENTITLEMENTS – Application to have Lumbar spondilosis and osteo-arthritis attributed to two incidents in his war-service – evidence that Applicant suffered prior injuries to his back and left leg –contradictory evidence given by the Applicant– decision under review affirmed.

Veteran's Entitlements Act 1986 – ss120(4) and 120B

Repatriation Commission v Smith 15 FCR 327

REASONS FOR DECISION

27 July 2004

Senior Member M D Allen; Dr J D Campbell, Member

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

2.	The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen;
Dr J D Campbell, Member

Signed: (E.Pope)
.............................................................................................. Associate

Date of Hearing 27 July 2004
Date of Decision 27 July 2004
Solicitor for Applicant Mr B Winship, Fairbairn Lawyers

Advocate for Respondent Ms S Kenny, Department of Veterans’ Affairs

DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
MR M.D. ALLEN, Senior Member
DR J.D. CAMPBELL, Member
MATTER NO N03/299
BOND and REPATRIATION COMMISSION
SYDNEY, TUESDAY, 27 JULY 2004


MR ALLEN: - - - Veterans' Entitlements Act 1986 from the 7th day of December 1972 to the 15th of November 1986. As such the standard of proof in this matter is that mandated by subsection four of section 120 of the Veterans' Entitlements Act namely that of proof to the Tribunal's reasonable satisfaction. The term "reasonable satisfaction" was in Repatriation Commission v Smith 15 FCR 327 said to equate to the civil standard of proof. Further, section 120B of the Veterans' Entitlements Act provides that the Tribunal shall only be so satisfied if in the case where a so called statement of principles is in force the said statement of principles upholds the contention that the injury or disease is connected with defence service.

In this matter instrument numbers 47 of 2002 as amended by instrument number 78 of 2002 refer to lumbar spondilosis and instrument number 82 of 2001 deals with osteo-arthritis. At the time of the original decision instrument number 28 of 1999 referred to lumbar spondilosis but so far as the facts and circumstances of this matter are concerned there is no material difference between the current and superseded statement of principles.

In any event reference to an SOP need only be resorted to if the Tribunal is satisfied on the balance of probabilities that the applicants' injury or disease is connected with his defence service. That is to say if at the end of the day we are satisfied on the balance of probabilities that the injuries or diseases claimed by the applicant as defence caused are not so caused then there is no necessity to consider whether the SOP supports the connection with defence service.

The applicant commenced his service in the Australian Army as a national serviceman on 13 July 1966. After recruit training he was selected for an officer training unit at Scarville and was commissioned as a second lieutenant in the Royal Australian Army Service Corps. Later on the abolition of that corps he was transferred to the Royal Australian Army Ordinance Corps. The applicant claims his current diseases of lumbar spondilosis and osteo-arthritis right knee arose out of or were contributed to by two incidents during his period of defence service which service commenced for the purposes of the Veterans' Entitlements Act on 7 December 1972.

The first such incident was in June 1977 when he was pushed heavily into a wall while participating in an inter-service squash competition. His evidence was that he had to be assisted from the court and could take no further part in the competition which lasted for another two weeks. He had pain in the lower back extending down the legs. He attended at a regimental aid post and obtained analgesics. He did not report this incident as the time off to play squash in an inter-service competition was, to use his words, "a junket" and to report an injury would jeopardise his future chances of attending such events.


Upon his return to his unit and normal duties the applicant though in pain coped as he was undertaking administrative duties and not required to undertake any strenuous physical activity. About one month later on 31 July 1977 he awoke with back pain. At document T17, page 132 of the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 the notes following the applicants' admission to hospital. They read:

Woke up this morning with pain in lower back which has steadily become worse. Now all movements restricted. No apparent precipitating cause, no previous history of back problems.

At page 132 it notes that an xray of the cervical spine detected no abnormality.

Although the history taken by the examining medical officer at 3 Camp Hospital is that the applicant had no previous history of back problems this history is incorrect. The applicant's service medical documents show that in 1970 he injured his back at Bandiana Ordinance Depot and had several days treatment. In 1968 the applicant suffered a fractured left leg as a result of a parachute jumping accident. As to this incident Dr Millens, surgeon, said in evidence if the force of the parachute jumping exercise was sufficient to break a leg the applicant would have caused some compression injury to his lumbar spine.

The applicant then implicated an incident in early September 1978 when he fell from his motor cycle as the cause of or a contributing factor to his osteo-arthritis right knee. With regard to both the squash incident in 1977 and the motor cycle accident in 1978 we found the applicant's evidence vague and unsatisfactory. So far as the squash injury is concerned we cannot understand why if it was as severe as the applicant now claims it to be he did not mention it when hospitalised for back pain one month later. We also note Dr Millen's evidence that the pain is more likely to be severe at the time of injury than at a later stage.

On 17 May 1983 the applicant was xrayed following an episode of back pain, that xray report reads:

Vertebral alignment is normal and disc spaces and neural arches are intact. Sacro-iliac joints are normal, no bone or joint abnormality.

At a medical examination conducted on 14th of August 1978 there is a history taken of low back pain for two to three years and the notation:

No definite history of injury.

Following the applicant's claim upon the Department of Veterans' Affairs he was medically examined on the 18th of February 1986, (see document T5 at page 50).

In relation to the history taken it starts off referring to the knees. It says:

During service about mid '70s his right knee joint started to ache. No history of significant injury at any time. It wasn't severely disabling and he did not seek medical treatment. In 1983 the right knee was aching and he was seen by an orthopaedic surgeon and was treated by S.W. therapy and exercise. Xray in November 1983, right knee, no abnormality. Since then he has been seen at the RAP for his right knee, no specific treatment and no further investigations.

Under the subheading of "Cause" it is noted:

Compulsory PT over the years on hard roads, jogging long distances, unsuitable footwear, etcetera. Stresses and strains over the years. No specific major trauma. He fractured his left ankle in a parachute jump in 1968 but did not injure his knees at the time.

The next heading refers to a back and the history reads:

During service he had some back trouble prior to 1978 but can't remember specific details though he may have injured his back in 1974 when he slipped on a pallet moving stores. In 1978 he had acute back pain, was in hospital for a week and had traction, had to be on a flat board and manipulated. Since this he has had recurring low back pain treated by physiotherapy on occasions but no further hospital admissions.

Under the subheading "Cause" it reads:

? The injury 1974. He really believes that his present back disability has been caused by the frequent compulsory physical training exercises over the years and jogging on hard road surfaces, carrying heavy pack drills, etcetera. No specific major injury. Xray 19.3 minor L4/5 changes.

It is noteworthy that in that history taken and what the applicant attributes as a cause there is no history of any injury playing squash or any history of a motor cycle accident.

In evidence in chief the applicant said that following his motor cycle accident which occurred on 7 September 1978 he obtained analgesics from the RAP. Cross-examined he said that the motor cycle accident was in early September but he could not remember the date. In evidence in chief he said that he had following the motor cycle accident kept the matter quiet and just went to the RAP for some pain killers. In passing we do not see how the applicant could say that he could keep the matter quiet when he telephoned his unit to come and collect him and his motorcycle with a unit vehicle but in any event the applicant said that apart from obtaining pain killers from the RAP he eventually saw a medical officer and was xrayed.

The applicant's service medical documents reveal that he saw a regimental medical officer on the 4th day of September 1978 where an injury was noted. Later on the 13th of September 1978 another medical officer notes:

Injury to right knee and left shoulder, some effusion right knee.

That is all. In passing we note that contrary to some of his evidence it would appear that the applicant did indeed on the day of the injury, namely 4 September 1978 see a regimental medical officer.

On 22 August 1979 the applicant was medically examined and in a questionnaire in answer to question number 54 as to whether or not he had ever suffered a knee injury the applicant has ticked the "no" box. We also note that the applicant had had a motor cycle injury in 1972 while in Papua New Guinea. In the medical report at the time of his discharge medical examination which examination appears to have occurred on 16 October 1986 a left knee injury is noted but no injury to the right knee.

In support of his case the applicant tendered two reports from Dr Benanzio, Orthopaedic Surgeon. At the outset we would state that Dr Benanzio's reports are quite equivocal. In his first report dated 16 December 2003 Dr Benanzio took a history stating inter alia:

In the late 1960s he did a parachute course and during a jump he sustained a fracture of the left fibula. His leg was in a plaster of paris cast for about three months, he recovered without residual complaints and resumed normal duties. Between 1971 and 1973 he served in New Guinea. During that period he had no accidents.

We would simply state that that statement is contrary to the evidence in this case. The history continues:

Some time in July 1977 in Melbourne when playing squash on duty during inter-service sporting activities he was pushed onto a wall and developed ache in the low back. He had to stop the competition. He did not receive specific treatment and continued on normal duties as an administrative officer. The symptoms lasted about two weeks and then settled. On 1 August 1977 he woke up with a sore back. The condition progressively deteriorated and he could not walk properly because he was experiencing ache in both legs as well. His wife took him to the military hospital and he was admitted for one week of rest on a hard bed.

Dr Benanzio goes on to record that in September 1970 on his way to work the applicant lost control of the motorbike he was riding. The history reads:

He managed to proceed to work despite one, ache in the left shoulder; two, ache in the right knee; three, aggravating ache across the lower back.

Significantly Dr Benanzio took the history that he was seen at the RAP and given tablets. He was not seen by a medical officer. As stated, this is contrary to the documents before us.

Dr Benanzio goes on to state the various xrays he has seen and concludes his report under the heading of "Opinion":

In a separate report I shall present my final conclusions based on the above described history as given to me by the patient, clinical findings and radiological findings.

Dr Benanzio's second report is dated 19 December 2003, it reads, inter alia:

I have also read the reports by Dr J. Ellis, Orthopaedic Surgeon and Dr D. Millens, General Surgeon. From the orthopaedic point of view, one, there is no evidence to conclude that the accident that occurred some time in July 1977 when playing squash was duly recorded nor is there documented evidence that the motor cycle accident of September 1978 was the cause of perpetuation of the low back condition. Two, according to the medical evidence made available to me on 4 September 1978 it was noted that the patient had sustained an injury to the anter-omedial aspect of the right tibia at the junction of the middle and lower thirds. In order to discuss the matter further I need copies of the relevant medical documentation. Three, as far as the left shoulder and right and left knees are concerned in my report I have noted the restriction of movement of both shoulders. However, I need evidence of causation or perpetuation of complaint related to his activities on duty.

Now just what is to be made of that report we do not know but that is the sum total of it.

Dr Millens, Surgeon, on the other hand is satisfied that the squash incident was no more than a soft tissue injury. At transcript page 54 the following passage occurs:

The first instance was a direct blow against the wall which is likely just to cause some bruising of the superficial layers of the back. He was not particularly immobilised or greatly incapacitated. he did spend the rest of the competition on the sidelines but I mean his back seemed to ease after that. I mean it was a fairly normal progression of events from a bruise to the back really. There was nothing to suggest that there had been any trauma as such as stated there.

At page 65 Dr Millens went on to say in the question:

Doctor, would you draw the differentiation of this that the slamming against a wall is certainly a trauma to the back but it is not a trauma to the lumbar spine?

Answer:

That's the way I read it.

As to the applicant's knees Dr Millens said at transcript page 51, question:

What does the evidence of the small arthritic change in both knees indicate?---Oh, it indicates to me it's part of the normal aging processes of attrition that one would expect to see in a man of his age. Both knees exhibited similar range of movements and there really wasn't much to choose between the two of them.

Question:

Tell me, did you have xrays?---Yes, I did.

Question:

Both knees?

Answer:

The xrays of both knees performed on 24.8.90 showed a little lipping on the upper borders of both knee caps but no other particular abnormality and the xrays taken on 28 November 2001 of the right knee showed no particular abnormality within the joints. So in other words there has been no advance in any possible arthritic change radiologically in that time although clinically there was some evidence of early wear.

Question:

And I take it objectively on the xrays there's no difference in degenerative change in either knee?

Answer:

No.

Dr Millens then went on to state:

Well, there's no evidence that anything has accelerated it. The changes shown in the right knee particularly on the x-rays taken in 2001 were they report no abnormality there. So I mean there's basically radiologically there's nothing that has been accelerated over that period of time.

In his report of 23 June 2003 Dr Millens opined:

In regard to the knee in point seven penultimate line by way of clarification Mr Bond had similar pain in both knees and the findings were similar for both knees. That would indicate to me that there has been no acceleration in the natural processes which not with occurs with age in the right knee as the left knee appears to be degenerating at the same rate (not time).

He continued:

Dr Benanzio notes that according to the medical evidence available to him on 4 September 1978 Mr Bond sustained an injury to the antero medial aspect of the right tibia at the junction of the middle and lower thirds. He was looking for copies of relevant medical documentation. If that is the case then that area was some way from the knee.

In this matter the opinions of Dr Millens do not support the case put forward by the applicant and the reports of Dr Benanzio at best leave the matter open. The applicant in cross-examination stated he could not remember every detail of his army service and this is to be expected. However, his evidence is contradictory in many respects and we do not accept that he would fail to mention a squash injury on two occasions namely on admission to hospital in 1977 and when initially examined on behalf of the Department of Veterans' Affairs if it was as debilitating as he now claims.

Likewise we find that he is exaggerating the effects of his motor cycle accident in 1978. We therefore prefer to base our findings on contemporaneous documents and find further that the only relevant medical opinion is the opinions of Dr Millens. We are therefore satisfied on the balance of probability that the applicant's diseases of lumbar spondilosis and osteo-arthritis right knee were not caused or contributed to by any incident or incidents in his defence service. The decision under review is therefore affirmed.