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[2002] AATA 1268
respondent. Administrative Appeals Tribunal affirmed the Commission's decision refusing entitlement to a war-caused disability pension for lumbar spondylosis; claim dismissed (para 111).
The AAT accepted that Mr Dietz has lumbar spondylosis and that an incident in service probably occurred, but applying the Veterans' Entitlements Act and the Repatriation Medical Authority's Statement of Principles the Tribunal found the 1948 fall did not produce the specific degree and duration of acute pain, tenderness and altered mobility required to qualify as 'trauma to the lumbar spine'. The Tribunal also found insufficient evidence that clinical onset occurred early enough (by 1973) to bring the alleged 1948 trauma within the 25-year window in the SoP. For these reasons the Tribunal affirmed the Commission's refusal to treat the condition as war-caused.
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2,130 words · generated 14/06/2026
Mr Herrman Harold Mark Dietz, a veteran who served in the Royal Australian Navy from 6 February 1947 to 2 January 1949, sought recognition of lumbar spondylosis as a war-caused condition and an increase in disability pension. He alleged a discrete traumatic incident during service in late 1948: while serving as a ship-keeper on General Purpose Vessels at Green Point he fell through a hatch into the bilge, suffering abrasions and immediate pain in his lower/central back and left leg. He said he walked to a local doctor the next morning who provided ointment and analgesics; he did not obtain an x-ray. Over subsequent decades he worked in various roles, including as a taxi driver, and later had ongoing back complaints. He lodged a claim for back pain on 7 August 2000. The Repatriation Commission refused the claim on 10 October 2000 and the Veterans' Review Board affirmed on 24 May 2001. Mr Dietz sought review in the Administrative Appeals Tribunal, which heard evidence on 27 March and 5 April 2002 and delivered reasons on 9 December 2002, affirming the prior decision and denying war-caused entitlement (paras 1–2, 5, 12, 13–26, 90–111).
1 cited instrument linked from this judgment.
Key factual features:
The Tribunal accepted diagnosis of lumbar spondylosis but, applying the statutory standard and the relevant Statement of Principles, concluded the applicant failed to meet the particular causation requirements. The Tribunal therefore affirmed the Commission’s refusal (paras 91, 96, 99–101, 110–111).
The Tribunal’s decision rests on statutory structure and the Statement of Principles (SoP) that applies when a claim is made on or after 1 June 1994 (s120B). Two legal thresholds controlled the outcome.
Standard of proof and SoP requirement (paras 92–95)
The definition of "trauma to the lumbar spine" (paras 94, 97–98)
Application to the facts
Therefore the applicant failed on both the trauma-definition element and the temporal clinical-onset element of Factor 5(g); the Tribunal affirmed the Commission (paras 99–101, 110–111).
Before this decision (and contemporaneous Federal Court authorities), two legal themes were established and central to Tribunal reasoning:
The reasonable-satisfaction standard under s120(4) and the overlay in s120B where a Statement of Principles applies. The SoP provides a tightly-prescribed set of factors and definitions that decision-makers must apply; they cannot be bypassed simply because (for example) a claimant recalls an old event.
Judicial interpretation of the SoP wording, particularly the definition of "trauma to the lumbar spine", had been the subject of Federal Court decisions led by Finn J and the Full Federal Court: the elements of the SoP were to be taken in their ordinary meaning and "acute signs and symptoms" apply to each of pain, tenderness and altered mobility; these elements require significant manifestations, the definition contemplates a significant injury (paras 97–98).
This Tribunal decision applied those principles and did not change the governing law. It followed and applied the Federal Court's construction of SoP language and reiterated that s119 does not empower a decision-maker to invent evidence to fill gaps (paras 78, 96, 108). After this decision, the legal position remained that:
The decision thus reinforces the post-Harris/FCC approach: factual acceptance of an incident is not enough; the precise SoP thresholds (degree, timing, duration, and clinical onset) must be established to the decision-maker's reasonable satisfaction.
Tribunal diagnosis acceptance (para 91)
Acceptance of occurrence but distinction from legal requirement (para 96)
Failure to meet trauma definition (paras 99–101)
Text: "It is not reasonably satisfied that Mr Dietz meets the definition of trauma to the lumbar spine."
Plain English: Even if the fall happened, the Tribunal is not convinced the fall caused the kind and duration of injury the SoP requires for causation.
Text: "...these symptoms and signs were not 'acute' for 'at least ten days'...The Tribunal is not reasonably satisfied that Mr Dietz had suffered a 'significant injury'."
Plain English: The claimant's pain and mobility problems were not shown to be sharp and long-lasting enough (for ten days) to qualify as the kind of injury the SoP contemplates.
Clinical onset temporal failure (para 110)
Final disposition (para 111)
This decision is relevant where:
Practitioners should note that this line of authority shows that a claimant who can only offer retrospective recollection of an old fall, without contemporaneous documentation of acute, sustained signs or immobilising medical intervention, faces a high evidentiary hurdle under a SoP trauma factor.
The Tribunal explicitly applied Federal Court and Full Court authority (Harris FCA and Full Court, Arnott, Mason, Knight) construing the trauma definition; it followed the view that the SoP definition contemplates a significant injury and that "acute signs and symptoms" apply across pain, tenderness and altered mobility (paras 97–98). The Tribunal relied on Mason to caution against using s119 as a licence to invent evidence (para 78). Nothing in the Tribunal's reasons purports to break new ground; rather, it implements the reasoning of higher courts and shows how the principles are applied at Tribunal level: accept an occurrence where credible, but apply SoP terms strictly. Later authorities relevant to this doctrinal area continue to apply the same approach: focus on the degree/duration of immediate manifestations, the presence or absence of immobilising medical intervention, and objective contemporaneous records when available. Practitioners should therefore expect tribunals and courts to require clear factual material compatible with the plain wording of the SoP.
Clinical onset articulation, definition and evidence:
Weight to s119 when contemporaneous records are missing:
Interaction between non-immobilising medical attendance and SoP exceptions:
Effect of subsequent injuries close to claim date:
For practitioners advising veterans or preparing claims, the decision highlights the importance of contemporaneous documentation (medical notes, x-rays, employer records), full disclosure at early stages, and expert medico-legal opinions that directly address SoP elements (degree, immediacy, duration, and timing of clinical onset).
DECISION AND REASONS FOR DECISION [2002] AATA 1268
Tribunal Ms S M Bullock, Senior Member Dr P D Lynch, Member
Decision Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
........................... Ms SM Bullock Presiding Member
VETERANS' AFFAIRS - Disability Pension - Entitlement - Lumbar Spondylosis
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Harris v Repatriation Commission [2000] FCA 873; (2000) 62 ALD 174
Harris v Repatriation Commission [2000] FCA 1687; (2000) 62 ALD 161
Mason v Repatriation Commission [2000] FCA 1409
Arnott v Repatriation Commission [2001] FCA 262; (2001) 106 FCR 83
Re Brown and Repatriation Commission [2000] AATA 1118; (2000) 63 ALD 559
Knight v Repatriation Commission [2002] FCA 103
9 December 2002 Ms S M Bullock, Senior Member Dr P D Lynch, Member
1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") by Mr Herrman Harold Mark Dietz, the Applicant, of a decision by the Repatriation Commission ("the Commission") made on 10 October 2000 (T2), and affirmed by the Veterans' Review Board ("the Board") on 24 May 2001 (T12), that refused Mr Dietz' claim for lumbar spondylosis as war-caused.
2. A hearing was held before the Tribunal in Sydney on 27 March 2002 and 5 April 2002. Mr Dietz provided oral evidence to the Tribunal, as did his wife, Mrs June Shirley Dietz. Mr Dietz was represented at the Hearing by Mr B Winship, Rockliffs Solicitors. The Respondent, the Commission, was represented by Mr P Godwin, Departmental Advocate. The Tribunal took into evidence documents lodged pursuant to Section 37 of the Administration Appeals Tribunal Act 1975 ("T Documents", T1-T16) and the following exhibits:
A2 Applicant's Statement of Facts and Contentions 16 January 2002
A3 Opening Address to 1998 Canberra Forum by Professor K Donald, Chairman of the Repatriation Medical Authority 9 November 1998
R1 Report of Dr J G Bodel, Orthopaedic Surgeon and Referral Letter 8 January 2002 5 October 2001
R3 Clinical Notes from Dr S Ring, Albury/Wodonga Neurology Various
R4 Transcript of Veterans' Review Board Hearing 24 May 2001
3. The issues in this matter are whether Mr Dietz has a war-caused condition of lumbar spondylosis and hence is entitled to a Disability Pension with respect to this condition.
4. The parties have agreed that the date of effect, should Mr Dietz be successful, is 7 May 2000.
5. Mr Dietz served In the Royal Australian Navy. His eligible war service was from 6 February 1947 until 2 January 1949. He was demobilised on 3 March 1949.
6. A determination in this matter requires consideration of the Veterans' Entitlements Act 1986 ("the Act").
(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:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(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;
8. Section 119 of the Act reflects that the decision making process under the Act is of an administrative nature rather than judicial and also allows decision-makers to take into account matters such as the effects of the passage of time and the absence or the deficiency in records.
9. Section 120 of the Act deals with the relevant standard of proof to be applied and, as Mr Dietz rendered eligible service, subsection 120(4) states, as relevant:
"(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B."
10. The Tribunal must also consider section 120B of the Act, which requires that the determination be made to the decision-maker's reasonable satisfaction in accordance with any Statements of Principles issued by the Repatriation Medical Authority ("RMA") or any relevant determination or declaration under the Act. Section 120B of the Act, as relevant, states:
"120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
11. The relevant Statement of Principles is Instrument Number 28 of 1999 concerning Lumbar Spondylosis.
12. The following information is provided by way of background and the information contained within is not disputed:
* On 7 August 2000, Mr Dietz lodged a claim for "Pain in lower back and arms, Loss of range of movement in back" and an application for an increase in Disability Pension (T4).
* On 10 October 2000, the Commission refused Mr Dietz's claim for lumbar spondylosis and decided to continue the Disability Pension at 20 per cent of the General Rate with effect from 7 August 2000 (T2).
* On 8 January 2001, Mr Dietz made an application for review to the Board in respect of the Commission's decision of 10 October 2000 (T8).
* On 24 May 2001, the Board affirmed the decision under review (T12)
* On 5 June 2001, Mr Dietz lodged an application for review to the Tribunal in relation to the Board's decision of 24 May 2001 which affirmed the previous decision of the Commission dated 10 October 2000 (T1).
13. Mr Dietz told the Tribunal he entered the Royal Australian Navy on 6 February 1947 and was demobilised on 3 March 1949.
14. Mr Dietz stated that he was posted to HMAS Platypus, moored at Watson's Bay, (South Head) from 3 May 1947 until 16 June 1947. Here, he performed general ship-keeping duties, including cleaning the ship. During the period 17 June 1947 until 12 July 1947, Mr Dietz served in HMAS Tarakan. For the period 13 July 1947 until 16 July 1947 Mr Dietz was back serving in HMAS Platypus and he served again in HMAS Platypus from 19 August 1947 until 23 January 1949 (T3, p21).
15. Mr Dietz told the Tribunal that he injured himself in an accident whilst serving on HMAS Tarakan on 8 July 1947. Mr Dietz injured his right shoulder when unloading bombs on the Tarakan. Mr Dietz stated that the bombs were very heavy and that it was impossible for one man to lift one bomb. They used to rope the bombs to the deck and roll them off the ship.
16. Mr Dietz told the Tribunal that during the period 19 August 1947 to 23 January 1949, he was serving in HMAS Platypus but posted to Green Point on the Parramatta River, west of Burwood, in Sydney. At this time, Mr Dietz was assigned as a "ship-keeper" on "up to three" General Purpose Vessels ("GPVs") that were moored at Green Point to be repaired. He undertook these duties for approximately six months. Mr Dietz said that a fellow seaman, Seaman Hodges, as well as himself, were assigned as ship-keepers, but were really "thiefwatchers", their job being to make sure there was no looting or stealing of Commonwealth property from the GPVs. The shift for a ship-keeper was 48 hours, at which time they were relieved for the next 48 hours. In his handwritten statement (Exhibit A1), Mr Dietz explained that he used to oversee the "dockies" during the working daytime and sleep on board the GPV at night.
17. Mr Dietz described the GPV as having an upper deck, a lower deck and a bilge. Mr Dietz stated that one evening at about 10pm, he went to his bunk on the lower deck of the GPV and went to sleep. Mr Dietz stated that some time after 10pm he heard noises on the upper deck of the GPV and he went up the stairway, which he described as being "straight up and down". On the upper deck he saw "Italian prawn-trawlers" who had pushed their boat onto a nearby ramp/slipway. He saw one of the Italian prawn-trawlers on the stern of Mr Dietz's boat who then "scarpered" off the boat. In his written statement, Mr Dietz explained that he challenged the prawn trawlers and they all hopped into their boats and went away (Exhibit A1). When questioned how Mr Dietz knew they were Italian, he responded that he knew they were Italian because he recognised the language.
18. Mr Dietz told the Tribunal that nothing had been taken from his boat. He went to inspect the other two GPVs. In the process he then went to go back down to the lower deck. When he stepped backwards down the stairway (which Mr Dietz described as a ladder in his written statement), one of the intruders had lifted the hatch between the lower deck and the bilge, which becomes the deck when replaced, and Mr Dietz fell down the hatch into the bilge. In his written statement Mr Dietz stated that he fell about five to six feet, injuring his left back and side on a very sharp "6" x 4" beam" (Exhibit A1). Mr Dietz said that after he fell he was sore in the lower-central back and when he looked down he was shocked to see that he had blood on his singlet. When Mr Dietz lifted up his shirt he saw that he was bleeding, he told the Tribunal, and he felt as though he might have been cut open. Mr Dietz described the incident as like falling on a knife and said that it was excruciating pain. When asked if he had to clean up any blood from the accident, Mr Dietz stated that the injury was more like a general gravel rash, rather than a "cut".
19. Mr Dietz stated that he was able to use his hands to get up after the fall, but that he had difficulty walking and there were no railings with which he could support himself. Mr Dietz stated that he eventually walked with difficulty back to his bed and lay down. Mr Dietz explained that there was nothing else that he could do because the entry gate to the moorings was locked. Mr Dietz said that he did not sleep at all during that night and just waited until the morning. His back was sore and he was dazed and shocked. His left leg was painful. Mr Dietz thought that the incident happened between about 10pm and midnight. He waited until around 8am because he knew the gate was only opened at 7.30am. He had changed into clean clothes and at about 8am he went to the night-watchman and from there rang the Quartermaster at HMAS Platypus to report the incident and that a couple of buckets and a couple of locks and keys had gone and also that he had hurt his back. Mr Dietz explained that the Quartermaster's duty is to take in all messages and report to the Duty Officer. Mr Dietz stated that the Quartermaster must have reported the incident because at about 10am that day, the Captain of HMAS Platypus, Lieutenant Commander Savage, arrived at the GPV in his speedboat. Mr Dietz said that the Captain said to him that he had heard that he had a few problems last night and that was why he was here. Mr Dietz stated that he told the Captain that a couple of buckets and a couple of locks and keys were stolen. When the Captain asked Mr Dietz if he was all right, Mr Dietz replied "I'm OK, I hurt my back a bit", he told the Tribunal. Mr Dietz stated that the Captain responded "Well, alright, carry on" and subsequently left in his speedboat for Watson's Bay.
20. When asked why he did not tell the Captain about the extent of his injury, Mr Dietz said that he did not want to lose his job as ship-keeper at Green Point and have to travel 30 miles from Watson's Bay to Homebush, where his fiance, Regina, lived. Mr Dietz told the Tribunal that he used to ride his fiance's pushbike to her house and back again from Green Point. Mr Dietz also stated that he did not elaborate the extent of his injuries to the Captain because he has always been a strong person.
21. Mr Dietz told the Tribunal that he "chatted up" the daykeeper to look after the place while he went to see the local doctor in Mortlake, opposite the gasworks, near the Mortlake Hotel. He walked alone to the doctor's surgery. He believed that he was limping. It took about five minutes. Mr Dietz stated that he told the doctor that he had hurt his back and the doctor examined him and gave him a prescription for some white ointment, which he applied to the abrasions on his back, three times per day. Mr Dietz did not know why he did not mention any problem with his leg. Mr Dietz was also told to get himself a large packet of "Aspros"/"Vincents" and that would relieve the pain, he stated. The doctor told Mr Dietz that it would be advisable to go and have an x-ray if he wanted to be "100 per cent sure" that everything was all right, Mr Dietz stated. Mr Dietz told the Tribunal that he did not have an x-ray at this time because he would have to go to the Navy Hospital, a long distance away. This would mean being absent from his fiance and possibly him having to leave his job at Green Point, which he liked. After the incident, Mr Dietz finished his shift. He then had his usual 48 hours leave at his fiance's home, reporting for duty as usual on his next scheduled shift.
22. Mr Dietz stated that Homebush, where his fiance lived, was a couple of miles ride from the shipyards. Before the accident Mr Dietz stated that he used to ride a pushbike to Homebush to see his fiance. After the accident, Mr Dietz stated that a friend used to drive him to Homebush, for about a month after the fall. Mr Dietz stated that he never rode a pushbike again after the accident. He would arrange for the foreman, Mr G Parker, to drive him to Burwood Station and then he would catch the train to Homebush and walk to his fiance's home.
23. Mr Dietz told the Tribunal that he took double the recommended dose of Aspros, four every two hours instead of two every two hours, because his back was very painful and he had a sore left leg. He stated that he took the Aspros every day because of the pain, until the pain subsided which was about one month from the fall. Mr Dietz told the Tribunal he was always taking Aspros, not for "lollies", but for pain. Mr Dietz stated that the abrasions healed up and had just about disappeared within one month.
24. Mr Dietz told the Tribunal that he saw the same doctor three or four times after the first consultation about his back. Mr Dietz was asked why he did not get more treatment for his back from the Navy, when he went back to HMAS Platypus or make a formal note of his injuries on the GPV. Mr Dietz stated that he did not know, but that it was not as excruciating as it was before. Mr Dietz stated that he sought treatment for his shoulder but not for his back, because he thought that they "came hand in glove". He thought that the treatment that he was getting for his shoulder was helping his back. Mr Dietz stated that the treatment he thought he was getting for his shoulder was "Aspirin", but he was not sure what other tablets he might have been given.
25. When serving at HMAS Platypus, Mr Dietz stated that he had back problems but he did not want to appear a "sissy". He had always been a strong muscular man and did not want to tell anyone about his back. He later stated that he could not remember if he was still taking Aspros back at HMAS Platypus. Mr Dietz explained that the back pain "wasn't predominantly there, but I was still aware". He also had shoulder pain and it was worse at that time.
26. Mr Dietz agreed that there was no mention of his back injury or problems on his medical report prior to demobilisation (T3). Mr Dietz stated that he did not recall this medical examination on 25 February 1999. The doctor looked at the right shoulder problem, but Mr Dietz did not mention his back. He stated that he thought his back problem would go away. The medical examination occurred within three or four months of him hurting his back. It was hard for him to remember about these matters. Later in evidence, Mr Dietz stated that if his back was not hurting him at the time he was being examined by a doctor or questioned or filling out forms about his health, then he may not have mentioned his back problem.
27. When asked why the incident in the GPV was not mentioned in his claim form for his back condition (T4), Mr Dietz replied that the claim form was completed by an RSL pensions officer. He presumed that the RSL advocate asked him questions and he answered them. He really did "not have a clue" why he did not mention the GPV incident. Mr Dietz also acknowledged that there was no mention of his back problem in his claim for medical treatment and pension completed by him on 23 February 1971 (T16). In that claim, Mr Dietz noted that he had injured his right shoulder while serving in the Navy. He noted the severe pain from his shoulder and the difficulty this was causing him in driving a taxi. Furthermore in Mr Dietz's "Application for Increased Rate of Payment of War Pension", dated and signed by him on 10 November 1977, Mr Dietz noted that his right shoulder condition was causing considerably more pain and restricting his ability to work a full taxi shift. It was impacting on his sleep, domestic activities and sport/recreation. Mr Dietz wrote:
"And at this point of time, my right shoulder is the only part of my body affected by osteoarthritis or in fact, anything at all" (T16, p97)
28. Mr Dietz stated that when he wrote this, he was only dealing with the subject at hand. He stated that at that time in 1977, he was not suffering from any memory loss or dementia, as he described it. This was a more recent problem. Mr Dietz reiterated he did not know why he did not claim his back condition at that time. Following that claim, a Disability Pension Medical Report was prepared (T16, p94) on 20 December 1977 and there was no mention of any back problem. Mr Dietz's back was noted to be normal for his age and build (T16, p95).
29. On 20 November 1981, Mr Dietz wrote to the Department of Veterans' Affairs, stating that his then General Practitioner in Casino, Dr S Vasan, recommended a specialist appointment for Mr Dietz because Mr Dietz's shoulder was in an:
"advanced state of osteo-arthritis which had forced my retirement at the age of fifty-four. I am unable to continue to work because of the excessive pain I endure through normal use of my right arm". (T15, p89)
Mr Dietz acknowledged that once more he had failed to mention his back problem.
30. After leaving the HMAS Platypus (and the Navy), Mr Dietz worked at his fiance's father's "engineering works" producing butterfly clips and ladies hair curlers. After this he worked as a foreman with an "ex-army fellow", where his job was overseeing workers. During this time and two weeks before his planned wedding date, the relationship with his fiance ended. Mr Dietz told the Tribunal that he saved up money and then eventually bought the Ross Chemical Company at 93 Bourke Street, Woolloomooloo. He explained that this company was not really a "chemical company" and in fact "didn't even have a band-aid in the place". The company made "stop-leak" products, which were used to patch up leaks in buckets, and cake decorating sets, he stated. Mr Dietz subsequently bought the properties 91, 95 and 97 Bourke Street, Woolloomooloo.
31. Mr Dietz then got to know a man named Max Shepherd, a well-known photographer, who was also an alcoholic and who gave him a job as night manager of a Hotel. At this time he was also receiving rent from the houses he owned in Woolloomooloo. Mr Dietz said he left that job because Mr Shepherd wanted him to pick fights with people and this hurt his back. Mr Dietz became a taxi driver in about 1956. He was a taxi driver for about 15 years and in 1971, he had a free taxi plate and owned a taxi. Mr Dietz stated that he bought about six cabs initially increasing to 25 with the lease of 19 cabs, and he and his current wife both drove the cabs. Mr Dietz stated that he made a special seat for his taxi. It was not long after he started to drive taxis that he put in the special seat. Mr Dietz ceased driving the taxi in 1973. At that time, Mr Dietz was taking "Panadol" or "Panamax" as analgesic pain relief. He also had x-rays taken of his back during the period he drove taxis, he stated.
32. After Mr Dietz gave up all connections with the taxis in 1980 or 1981, he and his wife bought a ten acre property at Woodburn. The couple also purchased a mobile home and travelled around Australia, "driving 50/50". They later settled in Casino. Mr Dietz thought he told his General Practitioner in Casino about his back problem.
33. Mr Dietz was referred to a report from Dr Shiva Roy, Cardiology Locum, who had seen Mr Dietz in 1999, and reported back to Dr John McGill, the referring physician, on 11 June 1999 (Exhibit R5). It was pointed out to Mr Dietz that in the report Dr Roy states "This 72 year old man has recently bought a new house in Casino, and while working on his home lifting heavy cement bags, he developed central chest discomfort". Mr Dietz responded that this statement is "absolutely wrong". He stated that he employed a professional builder named William Allison to erect a carport and a concrete path, and paid him $1400.00 for this work. Mr Dietz was asked whether there were concrete bags around the house and whether he had lifted any of the concrete bags. Mr Dietz initially responded that he had never had a concrete bag on his property in the three years he had lived at the house. Under cross-examination Mr Dietz stated that he could not recall whether he had lifted any concrete bags or how long it had been since he had lifted concrete bags. Mr Dietz explained that when he went to see Dr Roy he had been "rigmaroled" for so long that it could be that instead of going through it again, he "used something to shorten the conversation". Mr Dietz was asked about his chest pain and what caused the chest pain. Mr Dietz stated that on a trip around Australia he woke up in the morning and had pains in his chest, and then he went to the hospital at Port Pirie and was admitted into hospital. Mr Dietz could not recall why he had been referred by Dr McGill to a cardiologist.
34. Mr Dietz was also referred to that part of Dr Roy's report of 11 June 1999 (Exhibit R5), which states that Mr Dietz described chest tightness that occurs consistently with heavy physical exertion. Mr Dietz was asked what heavy physical exertion he had been engaged in. Mr Dietz responded that the only physical exertion would be driving the motor home. Mr Dietz stated that he has a "grass cutter" who comes every fortnight and he had employed a carpenter, Mr Allison, to erect the carport, the concrete drive and the garage. Mr Dietz reiterated that he had not, apart from holding a piece of iron while Mr Allison got up a ladder, interfered with the building. Mr Dietz stated that he did a bit of gardening and that, when they had first moved to the house at Casino, he would have done a bit of work setting up the garden, using a fork to turn the soil over, remove the weeds and do planting. Mr Dietz stated that he suffered back pains after this but could not recall wether he suffered any chest pains.
35. Mr Dietz was referred to a report of Dr Steven R Ring, Consultant Neurologist, who reported that Mr Dietz fell off a step ladder in 1999, landing on his buttocks (Exhibit R3). Initially, Mr Dietz stated he could not remember a fall and in any event, he does not have a step ladder. Following further questioning, Mr Dietz stated he had a set of four steps.
36. Mr Dietz was asked about a reference by Dr Tan on 26 July 2000 (Exhibit R2) referring also to a fall from a ladder. Mr Dietz stated he might have been talking about the pain he had in his back for years since the Navy. He explained that perhaps he was sick of telling people about his back pain. He had given up on the fall he had in the Navy, and forgotten about it and started again. Mr Dietz later stated that he could recall falling off the steps when he was washing the side of the motor home with a mop. He stated that he was coming down the steps backwards and he was on the third step and it tipped sideways and he hit his head on the ground and his wife took him to the hospital. Mr Dietz stated that his neighbour was using a ladder also to help him clean his motor home, but Mr Dietz did not use his neighbour's ladder. His neighbour's ladder had eight or nine steps. Mr Dietz stated that after he hit his head in the fall, he went to Casino hospital and they kept him under observation before they let him come home a couple of hours later.
37. Mr Dietz was asked whether he had noticed anything about his memory since then and he stated that his short term memory was "shocking". Mr Dietz was referred to the doctors reports which stated he hurt his back when he fell off the ladder. Mr Dietz stated that he did not know where the doctors got this information from because he said he may have hurt his shoulder but he did not seem to have any effect with his back. He stated that he had had his back problems for a long time and he could not recall hurting his back at all at that time.
38. Mrs Dietz stated that she married Mr Dietz on 14 August 1970, having known him for about 12-18 months at that time. Mrs Dietz said that when she met her husband he had shoulder and lower back problems. She knew of the incident on the GPV within a week of meeting him. Mrs Dietz recalled Mr Dietz was complaining about his back problems even when she met him around 1970. They met at a wedding and Mrs Dietz recalls that they did not dance much, they just sat around, because he could not do much. In 1971/72, Mrs Dietz went with Mr Dietz to a doctor in Ryde and she recalled Mr Dietz had x-rays taken of his back and shoulder. Mrs Dietz had doubts that her husband spoke to the doctor about his back. When Mrs Dietz married Mr Dietz, he was a taxi-driver and was still driving cabs for a short time after they were married. Mrs Dietz thought it would have been roughly another two years that Mr Dietz was driving a cab after they were married, until about 1972 or 1973. He had a special seat for his back and Mrs Dietz believed her husband had this before they were married. Mrs Dietz remembered Mr Dietz getting a free taxi plate and he did not drive much after that. Mrs Dietz stated that she basically drove the cabs after they were married. Mrs Dietz told the Tribunal that they owned six cabs and managed 19 cabs. Mr Dietz mostly stayed at home and did the bookwork. He did not do any work on the cabs but he would drive the cabs to the work-stations for work to be done on them. Mrs Dietz did not think Mr Dietz was driving in 1977, but if he did, it was only to drive the cabs to the workshop. He retired from taxis in 1981.
39. Mrs Dietz told the Tribunal that Mr Dietz still had back trouble after he stopped driving cabs. He always sat in a straight-back chair, she told the Tribunal. Mrs Dietz stated that Mr Dietz used to take Aspros for his back most days. She said that some days he would take them every four hours and some days he would go without them. He would also take Panadol or Panamax and sometimes Digesic for his back and shoulder. Mrs Dietz said that about two years ago they bought a special mattress for the bed because of his back. She recalled that they also had to put a board under the mattress for Mr Dietz's back a couple of years after they were married. She told the Tribunal that Mr Dietz's back has not improved, and she thinks in fact it has become worse. Mrs Dietz told the Tribunal that she was not sure if her husband was told he had spondylosis in the 1970's.
40. Mrs Dietz knows of her husband's right shoulder problems. She could not understand why Mr Dietz did not mention his back problem in various earlier claims for pension or an increase in pension. Mrs Dietz also could not explain Mr Dietz's reference on 10 November 1977 to having to give up taxi driving. Mrs Dietz stated Mr Dietz could not have been driving taxis then as they had left Sydney.
41. When questioned whether Mr Dietz owned a ladder, Mrs Dietz remembered that Mr Dietz had a ladder which he used to wash the side of their motor-home. Mrs Dietz recalled an incident where Mr Dietz fell off the ladder. Mrs Dietz recalled that Mr Dietz told her that the ladder buckled, and collapsed, and he fell, his back and his head hitting the ground. Mr Dietz told Mrs Dietz that it jarred his back and he had a headache afterwards. Mrs Dietz, in her later evidence given at Hearing, recalled that there were two ladders being used at the time of this incident, Mr Dietz's ladder and the neighbour's ladder. Mrs Dietz stated that she recalled now that Mr Dietz was using his own ladder, not the neighbour's ladder. She described the ladder as about four feet, with four steps, being a "fold-up step ladder". Mrs Dietz stated that she did not see her husband fall but she took him to the hospital. She stated that the most concerning part was that he banged his head. Mrs Dietz stated that Mr Dietz did not mention that he hurt his back in this fall.
42. Mrs Dietz was referred to Dr Ring's report of 9 December 1999 (Exhibit R3), which stated that Mr Dietz had symptoms of a shivering sensation from the ribcage to the toes following a fall of about four feet from a ladder in July, landing on his buttocks. Mrs Dietz recalled going with Mr Dietz to Dr Ring but did not recall what was said in the consultation. Mrs Dietz was referred to Dr Tan, who on 26 July 1999 (Exhibit R2) reported a history of Mr Dietz complaining of pain in the lower back area over the last 15 months following a fall from a ladder. Mrs Dietz only recalled Mr Dietz telling Dr Tan about pains in his back which he had had for a long time.
43. When questioned about the Dietz's garden, Mrs Dietz said that the house had a garden up one side and down across the front. Mrs Dietz stated that Mr Dietz helped with the garden, but that he had a good friend staying who did most of the work setting it up, because Mr Dietz could not do much. Mr Dietz's son-in-law comes to help on occasions.
44. Mrs Dietz thought that Mr Dietz first became aware of his "arthritis" in his back over the last two years, after he saw the Orthopaedic Surgeon. She recalled he had investigations including an "MRI". Mrs Dietz told the Tribunal that the doctor that Mr Dietz used to go to in Casino was killed in a plane crash. Mrs Dietz thought that Mr Dietz had x-rays of his back and hip before he left Sydney and certainly before 1991.
45. Mrs Dietz told the Tribunal that Mr Dietz was a typical man because he did not want to listen. She also thought he was a typical "Dietz" in that he was very stubborn. Mrs Dietz had suggested to her husband that he claim a pension for his back but he stated that his right shoulder was giving him more trouble. He did not want to listen to her. Mr Dietz said he would do it his way. She was present when Mr Dietz filled out claim forms, but sat behind him and did not want to interfere.
46. Mrs Dietz noted that since about October 2000 or for 15 to 18 months, her husband has been having memory problems. He had a "turn" and could not get out of bed. He now has some memory problems. He did not have memory problems in the 1970's, Mrs Dietz stated. Mr Dietz had a "stroke" aged 54 years and three or four mini strokes, "TIAs". The October 2000 "turn" was the worst.
47. Mrs Dietz stated that during a trip around Australia, when they had reached South Australia, Mr Dietz became sick one morning with tightness in the chest, so she took him to the Port Pirie Hospital. This would have been in late 1998, Mrs Dietz told the Tribunal. After this, Mr Dietz was prescribed "sublingual nitrates". Mrs Dietz recalled Mr Dietz going to see Dr Roy in mid-1999. She recalled that he had the same sort of chest tightness as he had had at Port Pirie. She could not recall any incident of physical exertion which may have led to the chest problem. Mrs Dietz stated that she attended this consultation with Mr Dietz. Mrs Dietz stated that she could not recall Dr Roy talking to Mr Dietz about lifting heavy cement bags. Mrs Dietz stated that she could "not recall him lifting a heavy cement bag because we don't have any cement bags". When asked about any other sort of work Mr Dietz may have done around the house, Mrs Dietz stated that there was no reason for him to do any other sort of work around the home because they had everything renovated before they moved in, so there was no work to be done
48. Mrs Dietz was also present with Mr Dietz during the consultation with Dr Tan. She did not tell Dr Tan of Mr Dietz's long history of back problems. Dr Tan had not asked about it, she stated.
DOCUMENTARY EVIDENCE OF DR J G BODEL, ORTHOPAEDIC SURGEON
49. Dr Bodel examined Mr Dietz on 18 October 2001 and provided a report dated 8 January 2002 (Exhibit R1). Dr Bodel reported that Mr Dietz developed pain in the back in association with repetitive heavy lifting, moving stores and ammunition and other requirements on board ship. He reported that Mr Dietz had "some abrasions on the back and a skin wound healed but he was still "a young man" and he thought that he could manage the pain without specific treatment" (Exhibit R2, p1). Dr Bodel noted that Mr Dietz reported no other accidents or injuries involving his back, and that he has difficulty with household maintenance and cleaning activities and bending, twisting or lifting can aggravate his symptoms.
50. Dr Bodel reported that Mr Dietz first developed back pain during his period of eligible service in the Navy between February 1947 and January 1949. He reiterated that Mr Dietz associated this with movement of heavy ammunition and other stores on small vessels. Dr Bodel diagnosed Mr Dietz's condition as degenerative disc disease with associated acquired vertebral canal stenosis, with this underlying pathology leading to lumbar spondylosis. The cause of the condition is a degenerative process, which has developed over the years and is primarily a constitutional ailment. Dr Bodel noted that it is possible that the heavy nature of Mr Dietz's work for the two years that he was in the Navy has been a contributing factor, although he thought that this was unlikely. Dr Bodel noted that "The patient in particular does not give a history of any specific trauma to the lumbar spine within 25 years immediately before the clinical onset of lumbar spondylosis".
51. Dr Bodel noted that the clinical onset of lumbar spondylosis was difficult to determine, although was likely to have occurred some years after the onset of symptoms. Dr Bodel concluded that he does not believe that the various factors under the Statement of Principles for Lumbar Spondylosis satisfy Mr Dietz's condition.
DOCUMENTARY EVIDENCE OF DR M BENANZIO, ORTHOPAEDIC SURGEON
52. Dr Benanzio provided a report dated 15 February 2001 (T10, p59) and examined Mr Dietz on the same date. Dr Benanzio reported that some time in 1948 Mr Dietz sustained a low back contusion/strain and noted a history provided by Mr Dietz of a fall when going down a narrow stairway in darkness and of falling through an open hatch in the deck. Dr Benanzio noted that he had no copies of medical documentation but understood that Mr Dietz immediately developed an ache. Dr Benanzio reported that since this incident Mr Dietz has never been free from a degree of low back discomfort.
53. Dr Benanzio noted that the available x-rays show the progressive evolution of lumbar degenerative pathology. Dr Benanzio concluded that the condition as reported, satisfies the principle of discrete injury with trauma to the lumbar spine and, according to the Statement of Principles concerning Lumbar Spondylosis, Instrument Number 28 of 1999, satisfies Factor 5(g) because he suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis. He noted that the injury of 1948 most likely contributed to the development of the lumbar degenerative changes. Dr Benanzio did not make any reference to a fall from a step ladder in 1999, nor to medical intervention by Dr Roy, Dr Ring and Dr Tan.
54. Mr Winship submitted that this matter must be decided to the Tribunal's reasonable satisfaction.
55. The relevant factor is Factor 5(g) of the Statement of Principles Instrument Number 28 of 1999 concerning Lumbar Spondylosis. Factor 5(g) states:
"(g) suffering a trauma to the lumbar spine within 25 years immediately before the clinical onset of lumbar spondylosis,...
"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the lumbar spine. These acute 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 lumbar spine has occurred, where the medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of cortiocosteroids or local anaesthetics into the lumbar spine; or
56. Of importance in this matter is a determination of the date of clinical onset, Mr Winship submitted. In Re Robertson and Repatriation Commission (1998) 50 ALD 668, this provided some guidance to the Tribunal but did not have the force of a Federal Court decision. That Tribunal considered that:
"...there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time."
57. The Tribunal was referred to the address by Professor K Donald, Chairman of the RMA, to the 1998 Canberra Forum (Exhibit A3, p7), in which he noted that clinical onset means what the English language usage means, that is, the first time, in this context, a veteran noticed anything to do with the disease. Professor Donald noted that clinical onset is not when a condition is diagnosed. The interpretation of the terms 'onset' should not be restrictive and the legislation is intended to be beneficial and the Tribunal should refrain from a restrictive interpretation of the Statement of Principles, Mr Winship submitted. After all, Professor Donald refused to codify the term "clinical onset", Mr Winship contended.
58. Mr Winship submitted that the onset of Mr Dietz's lumbar spondylosis is when he first became aware of some features of the condition and also as noted by Mrs Dietz. Mr Dietz was aware of back symptoms in the 1970's. Mr Winship stated that onset does not have to be determined at the time by a doctor, but onset could be determined by a doctor sitting as a member of the Tribunal.
59. After the incident on the GPV, Mr Dietz went to the doctor the very next day. That was over 50 years ago and the Tribunal must consider the application of section 119 of the Act specifically in relation to Mr Dietz's memory of the incident and the lack of official records. There are no records from the doctor Mr Dietz first saw about his back. Mrs Dietz does however recall that she and her husband attended a doctor in Ryde around the time they married and this was in the 1970's. Such a date of onset brings the condition within the required timeframe of 25 years, Mr Winship submitted.
60. Mr Winship referred the Tribunal to Harris v Repatriation Commission [2000] FCA 873; (2000) 62 ALD 174 at 184, and Finn J's discussion of the trauma factor in the Lumbar Spondylosis Statement of Principles and the definition of trauma:
"The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each...Moreover, given the requirement that the signs and symptoms must be "acute"-ie that they be sharp or act "keenly on the senses": SOED [Shorter Oxford English Dictionary], "acute"; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends the definition contemplates a significant injury."
61. Mr Dietz gave evidence of a significant injury, Mr Winship submitted. He had altered mobility evidenced by his limping to the local doctor's surgery and had symptoms for at least a month. The problem eventually led to a laminectomy some years later, Mr Winship contended.
62. Mr Winship submitted that in order for the Respondent to succeed, then the Tribunal would have to be convinced there was some other event which caused the back problem which led to a laminectomy following a serious degenerative disease. Mr Winship contended that Mr Dietz had a significant injury. There were symptoms of intermittent pain which continued but he was not aware he had the degenerative condition of lumbar spondylosis. He could have been told he had a back problem by doctors but no diagnosis could be made of lumbar spondylosis until x-rays were undertaken.
63. In relation to the opinion of Dr Bodel (Exhibit R1), Mr Winship submitted that Dr Bodel referred to Mr Dietz developing pain in association with repetitive heavy lifting, moving stores and ammunition. This was not the evidence that the Tribunal had. The Board understood the facts, Mr Winship submitted, but Dr Bodel did not have access to the transcript of the Board's hearing. Mr Winship asked why would Mr Dietz give that history to Dr Bodel?
64. Concerning the seemingly contradictory evidence about the ladder, there was confusion between having a ladder or a set of steps. While Mr Dietz probably did have a fall, it was not certain whether or not he fell from a height of two or three steps or more. Allowances must be made, Mr Winship submitted, for Mr Dietz's short term memory loss.
65. Mr Winship addressed the problem which the Tribunal might have in deciding, to its reasonable satisfaction, the evidence in this case because of Mr Dietz's memory losses, or at least confusion in his recent memory. Mr Winship submitted that in recent times, Mr Dietz has been having difficulty with his short-term memory, which appears to have occurred in the last three years since 1999. Mr Dietz has therefore been telling doctors things that may or may not have occurred, he submitted. Mr Winship contended that it appeared from the evidence that it was only over the last three years that there has been any confusion when Mr Dietz has spoken to various doctors. Mr Winship contended that in the evidence relating to recent times, not very much reliability could be placed on some of Mr Dietz's statements to doctors or the doctors' interpretation as to what he might have said.
66. Mr Winship referred the Tribunal to Mr Dietz's handwritten statement (Exhibit A1), served on the Tribunal on 22 October 2001, which he submitted is Mr Dietz's own handwritten account of the incident or trauma and subsequent events. Mr Winship opined that this account is entirely consistent with what Mr Dietz told the Board and Mr Dietz's evidence to this Tribunal, tested through examination-in-chief and cross-examination. Mr Winship opined that Mr Dietz's story is consistent all the way through. Mr Winship put to the Tribunal that if Mr Dietz in fact had a long term memory problem, that this would have been indicated either through inconsistency of his statement with the Board's transcript (Exhibit R4) or through his oral testimony to this Tribunal. There are no inconsistencies with that evidence, Mr Winship submitted. Mr Dietz's long-term memory is consistent and there are no problems with his recollection of events going all the way back. It is his short-term memory which is the problem, Mr Winship reiterated.
67. Mr Winship further submitted that in relation to the evidence in recent times, Mrs Dietz's corroborative evidence could not be ignored and the Tribunal should look to the corroboration or assistance from Mrs Dietz. Mr Dietz could not have coped as well as he has without the assistance of Mrs Dietz and, Mr Winship submitted, he is almost totally reliant on her today for his well being. Mrs Dietz has virtually gone everywhere with Mr Dietz since they were married on 14 August 1970. Mr Winship opined that the Tribunal should therefore look to her evidence in support of the application in these proceedings.
68. Mr Winship submitted that Mrs Dietz's evidence was that he had a pre-existing back problem, which she knew about at the time they were married in 1970 and which got worse over the years. Mr Winship submitted that Mr Dietz did not give evidence that his back worried him all the time, but that he had intermittent difficulties with his back. Mr Winship contended that a degenerative condition would trouble someone all the time, but only when you twist or cause yourself to have difficulties with posture.
69. Mr Winship referred again to Mr Dietz's handwritten statement served on 22 October 2001, where Mr Dietz said of the incident causing the trauma (Exhibit A1, p3):
"I reported it to the Quarter Master on the HMAS Platypus and what was taken and that I have hurt my back with some bleeding. He must have reported it to the Duty Officer. Because at about 10.00am next day, our skipper on the Platypus came up in his Speed Boat, he did not come ashore. He asked me what had happened. I told him and he ordered his coxswain to return to Watson Bay (Platypus)."
70. In relation to that statement, Mr Winship submitted that that is entirely consistent with what Mr Dietz said in evidence, that he hurt his back and he reported it to the Quarter Master on HMAS Platypus, and then to Lieutenant-Commander Savage, the Captain of HMAS Platypus. Mr Winship opined therefore that it is incomprehensible for the Tribunal to form a view on the evidence that Mr Dietz is making all of this up. Given Mr Dietz's evidence to the Board, in his handwritten statement, in the Tribunal proceedings and the corroborative evidence of his wife, the Tribunal should not, in his submission, ignore that evidence and should not conclude that credibility is in issue and that Mr Dietz is not telling the truth.
71. Mr Winship referred to the case of Repatriation Commission v Deledio [1998] FCA 391; (1998) 49 ALD 193, which he conceded dealt with different standard of proof to Mr Dietz's case. Mr Winship referred to the comments of Heerey J in relation to the difficulties for veterans being questioned in the Tribunal about events which happened 50 years ago. Mr Winship submitted that at the time veterans make claims they take whatever advice they are given by "RSL pension officers" assisting them and they write something in the claim form based on the information they are able to get. Mr Winship contended that Mr Dietz was perhaps misguided by RSL pension officers on how he might succeed with his claim, but that that was rectified at the Board hearing when Mr Dietz remembered the incident of trauma. Mr Winship submitted that Mr Dietz understood at this point that he had to tell the Board about an incident of trauma that took place, which must have led to the condition called lumbar spondylosis. Mr Winship reiterated that Mr Dietz has been tested before this Tribunal on his evidence, and he had to go before the Board prior to this Tribunal and was also tested on his evidence there. Mr Winship submitted that Mr Dietz had explained himself and the events of approximately 50 years ago very well in the Tribunal proceedings. Mr Winship contended that, on all the evidence, there is no inconsistency when Mr Dietz is in control of the evidence and knows what is expected of him.
72. Mr Winship concluded that the Tribunal should, in his submission, be reasonably satisfied on the preponderance of evidence and all the material before it that Mr Dietz is entitled to a Disability Pension for the war-caused condition of lumbar spondylosis, which has developed in a degenerative way to the point where he has required a laminectomy, and the causation goes back to the trauma which incurred during his war service.
73. Mr Godwin, for the Respondent, submitted that this is an eligible service case and the standard of proof is therefore the reasonable satisfaction standard. Mr Godwin submitted that Mr Winship offered a perfectly good explanation for the reasonable satisfaction standard as requiring the "preponderance of evidence". Mr Godwin noted that a 50/50 possibility is not reasonable satisfaction and that this standard of proof requires a positive finding that something is more probably the case than not.
74. Mr Godwin referred to the relevant Statement of Principles in relation to Mr Dietz's case. Mr Godwin submitted that the Statement of Principles' definition of trauma to the lumbar spine requires signs and symptoms of pain, tenderness and altered mobility for ten days. Mr Godwin referred to Mr Winship's allusion to cases where daily consumption of alcohol or cigarettes was something that did not have to be literally and strictly adhered to in the context of those sorts of conditions involving those factors. Mr Godwin contended that these conditions and factors are required to operate for years and that in these types of cases the rigid application of "daily" is softened to allow for a temporary departure from the overall pattern, for example where someone may be ill and they do not drink or smoke during that time. Mr Godwin submitted that the Statement of Principles for Lumbar Spondylosis should be distinguished from these cases, as in this context the Statement of Principles requires signs and symptoms of pain, tenderness and altered mobility for ten days. In this case, ten days means ten days, Mr Godwin contended.
75. Mr Godwin referred to the decision in Harris v Repatriation Commission (supra) which, he submitted, stands for the proposition that all of those signs and symptoms of the three elements contained within the "trauma" definition need to be present. Mr Godwin also noted that Finn J in that case (at paragraphs 31 and 32) states that "the definition contemplates a significant injury". This is a useful characterisation in this case, Mr Godwin submitted, because of difficulties with the state of Mr Dietz's memory, the amount of time that has passed, the difficulty for Mr Dietz in terms of his memory of pain, tenderness and altered mobility, and his ability to identify those elements in a literal sense. The Tribunal has to examine and make a decision on whether Mr Dietz suffered a significant injury and whether it can reasonably be found to have been an injury involving the elements contained within the "trauma" definition, Mr Godwin submitted.
76. Mr Godwin referred to the Explanatory Notes for Tabling of the Statement of Principles Instrument Number 359 of 1995. Mr Godwin submitted that this Explanatory Note accompanied what is now, for the most part, the current definition of trauma to the lumbar spine. Mr Godwin submitted that what the Statement of Principles' factor relating to trauma is meant to involve is an injury to the joint or disc and not just a soft tissue injury. In this regard, Mr Godwin referred to the Tabling Note in paragraph three which states:
"The Authority recognises that the previous definition of "trauma to the relevant joint" did not clearly reflect the available epidemiological and biological literature on the subject of significant joint trauma and its biological effects. The new definition reflects the fact that initial internal damage to the joint or disc.......is needed to increase the risk of lumbar spondylosis."
77. Mr Dietz's history of his fall on the GPV places the incident within a month of returning to HMAS Platypus, and not long before he was discharged from the Navy in early 1949, Mr Godwin submitted, and so the fall would have taken place some time in late 1948. Mr Godwin contended that Mr Dietz's history of the accident is a vague account, particularly in terms of the Statement of Principle requirements.
78. Mr Godwin referred to Mr Winship's submissions in relation to section 119 of the Act and the need for the Tribunal to take into account the absence of records in Mr Dietz's case. In relation to the local doctor's clinical notes, which have not been available for consideration, Mr Godwin submitted that according to Mr Dietz's history, the clinical notes would have recorded that he fell through a hatch, hit his back on a beam, that he had a contusion and a sore back and he was treated with liniment and Aspro. Mr Godwin submitted that had Mr Dietz given the doctor a history of limp associated with his back, the doctor most surely would have arranged for an x-ray for Mr Dietz. X-ray facilities were available to Mr Dietz, he submitted, as shown by the x-ray in September 1948 of Mr Dietz's chest (T3, p16). Mr Godwin referred to the decision of Weinberg J in Mason v Repatriation Commission [2000] FCA 1409, which takes the position that section 119 of the Act is not a provision that allows evidence to be created to fill in gaps. In this regard, Weinberg J stated at paragraph 76:
"The role of s 119 is not to invent evidence which may serve to establish that connection. Inevitably cases of this type will involve problems of remembering details of events and s 119(1)(h) is designed to ensure that those matters are taken into account. Those matters are not, however, to prevail over the structure and text of the remaining provisions of the [Veterans' Entitlements Act 1986]"
79. Mr Godwin submitted that Mr Dietz's history did have to be assessed against the records that were available from the time of his service to the time he lodged his claim for lumbar spondylosis. Mr Godwin referred the Tribunal to T3 (pp 3, 5, 6), which is the final medical report previous to demobilisation signed by Mr Dietz on 25 February 1949 (T3, p3). These are records relating to Mr Dietz's injury to his right shoulder, which occurred in 1947 before the alleged back injury, he submitted. Mr Godwin noted the significance of the fact that in 1949 there are records relating to the right shoulder injury and that Mr Dietz was examined in respect of this injury, and yet there was no mention of his back injury at this time. Mr Godwin contended that, had Mr Dietz had the back injury he is claiming with the limp which persisted until after service, it is very hard to explain why he would not have mentioned this and why he would not have requested some treatment at this time. Mr Godwin submitted that Mr Dietz was complaining about his right shoulder injury, which the doctors were not convinced about at the time. It is difficult to see why, if Mr Dietz had a significant back injury, he would not be complaining about that as well as the right shoulder injury.
80. Mr Godwin referred the Tribunal to Mr Dietz's claim for pension in relation to the right shoulder in 1971 (T16, p98) and his subsequent application for an increase in pension in relation to the right shoulder in 1977 (T16, p97). In relation to the 1977 application, Mr Dietz stated that his right shoulder condition was the reason he was unable to work a full shift on his taxi and his driving cut down from ten hours to five or six hours a shift, Mr Godwin submitted. Mr Dietz's evidence was that he stopped driving a taxi in 1972. Mr Dietz also stated in the 1977 application that "at this point of time, my right shoulder is the only part of my body affected by osteoarthritis or in fact, anything at all", Mr Godwin submitted. In the medical examination report accompanying the application in 1977 for an increase (T16, p95), Mr Godwin pointed out that in this medical examination the departmental doctor noted that Mr Dietz's back was normal for his age, and again no complaint was made about the back condition by Mr Dietz. Mr Godwin also referred the Tribunal to a letter to the Repatriation Department in 1981 (T15, p89) where Mr Dietz wrote complaining about his shoulder and again making no mention of his back.
81. In Mr Dietz's statement he explains that he did not claim his back until only recently, because he was not interested in "DVA [Department of Veterans' Affairs] help-outs", Mr Godwin noted. Clearly, however he was interested in DVA help-outs in relation to his right shoulder, Mr Godwin submitted. This raised an issue of credit, Mr Godwin further submitted. Mr Godwin opined that from the time of the alleged injury to his back, during his service and the times later on, when he claimed for pension and an application for increase in pension and wrote to the Department in relation to his shoulder, the fact that Mr Dietz made no mention of his back makes it very difficult to believe that he had the persisting back problem that he claims to have had.
82. Turning to the question of clinical onset, Mr Godwin referred to Professor Donald's opening address to the RMA forum in 1998 when he stated (Exhibit A3, p7):
"As it is operationalised now, a clinical onset means what the English language usage of those words means...Clinical onset in its ordinary English usage means the first time the patient notices anything to do with the actual disease."
83. Mr Godwin submitted that in fact the word "clinical" in the expression "clinical onset", meant that it is not just what a patient thinks, it is what a clinician thinks. Contrary to Mr Winship's submission, Mr Godwin contended that this includes a requirement for a clinical opinion. Turning to the phrase "actual disease", Mr Godwin submitted that a doctor is obviously required to know what the actual disease is and when the actual disease is present. Mr Godwin opined that to say there is no doctor present in Professor Donald's formulation is therefore not helpful. Mr Godwin submitted that clinical onset is not simply when a patient complains of some problem that might, as a possibility, be related to a particular disease. It is when the patient gives a history of those particular symptoms that satisfy the diagnostic criteria, in this case, that would allow a doctor to say that the diagnosis was present at that time.
84. Mr Dietz gives a history of having made for himself, what he called a back brace, which sat inside the chair of his taxi or the seat of his taxi, Mr Godwin submitted. Mr Godwin commented that in the 1960's and 1970's seat design was poor compared to modern times and lumbar supports and devices to supplement the seat design were very common in those days. Mr Godwin noted that Mr Dietz had worked ten hour shifts driving his taxi at this time. Mr Godwin submitted that Mr Dietz would have had some back discomfort as a result of the seats in the taxis and the hours he spent sitting in them, but there is a big difference between this and suffering from lumbar spondylosis.
85. Mrs Dietz gave a history of a general medical examination that Mr Dietz and herself had at the time they were married, when Mr Dietz's back would have been examined. Mr Godwin submitted that the fact that a doctor looked at Mr Dietz's back in that context does not tell us anything. Mr Godwin submitted that Mrs Dietz in her evidence began with the words, "I can't honestly say, but I am sure...." and following this her evidence, which did not come easily, was that of a history of a visit to the doctor at Ryde about 1973-74 where an x-ray was taken of Mr Dietz's back in conjunction with his shoulder. Mrs Dietz's evidence was that she did not know the result of the x-ray, Mr Godwin submitted. In Mr Dietz's statement (Exhibit A1, p7), Mr Dietz stated that he had problems with his first wife and that she destroyed or lost most of their possessions, including all their x-rays Mr Dietz had of his injury. Mr Godwin then referred to the claim for pension in relation to Mr Dietz's shoulder (T16, p99), where Mr Dietz has written in relation to medical history "Have had treatment from several doctors in the last 23 years. But never thought it serious enough to keep records". Mr Godwin submitted that if an x-ray was taken of the back in 1972 at Ryde Hospital, the result is not known. It may have been that no abnormality was detected, or it may have been something else, but there is no evidence that could establish a diagnosis of lumbar spondylosis at that time.
86. Mr Dietz saw both Dr Benanzio and Dr Bodel, neither of whom gave a specific opinion on the date of clinical onset, Mr Godwin submitted. Dr Benanzio said that it was a condition of gradual onset and Dr Bodel said that it was a constitutional condition. Referring to Dr Benanzio's report (T10, p59), Dr Benanzio referred to an x-ray taken in 1990 and says that the x-ray showed mild to moderate osteophytic lipping in the lumbar spine and no abnormality of the pelvis. In relation to this x-ray, Mr Godwin submitted that, firstly, radiologists would usually write a diagnosis of lumbar spondylosis on their reports if there were sufficient signs to warrant that diagnosis, which is not the case here. Secondly, radiologists would usually comment if there was any evidence of an old injury, which is also not the case here. Thirdly, Mr Godwin submitted that this x-ray shows only mild to moderate changes, and one would infer that these were widespread and not localised or the radiologists would have commented on that. The definition of lumbar spondylosis requires some degenerative change in the structure of the spine together with pain and particular symptoms, Mr Godwin submitted. Mr Godwin contended that in view of the state of Mr Dietz's spine at the time of that x-ray in 1990, this raised the question of whether a diagnosis of lumbar spondylosis in 1973 could have been made, as would be required 25 years after the injury to satisfy the Statement of Principles.
87. Mr Godwin contended that the other medical report that needs to be taken into account is the report of Dr Ring dated 9 December 1999 from the Albury-Wodonga Neurology Clinical Notes (Exhibit R3). Dr Ring stated in this report that Mr Dietz suffers from "mild chronic back pain, but this is no worse following his fall". In this statement, Dr Ring is distinguishing between the symptoms resulting from falling off the ladder and an ongoing mild chronic back pain condition. Mr Godwin submitted that this raises the question whether someone with lumbar spondylosis in 1973 would be likely to be suffering from "mild chronic back pain" in 1999. When questioned by the Tribunal as to his submissions as to the date of clinical onset, Mr Godwin contended that he did not know the specific date of clinical onset, and that is because he did not know how to interpret the 1990 x-ray, but that it is likely that the 1990 x-ray is not showing a state of affairs associated with a diagnosis of lumbar spondylosis at that time.
88. Turning to the issue of credit, Mr Godwin submitted that Mr and Mrs Dietz's evidence is not reliable. Mr and Mrs Dietz went to see Dr Ring, Dr Tan and Dr Roy together and, Mr Godwin contended, after hearing their evidence to the Tribunal, it is apparent that it is not possible to get a consistent history from either of them that would line up with the reports of those doctors. Both Mr and Mrs Dietz alleged that Mr Dietz had no ability to do any heavy work, however Dr Roy took a history of Mr Dietz lifting heavy bags of cement and of strenuous physical exercise. Mr Godwin submitted that the history of lifting heavy cement bags is very difficult to explain. In relation to the ladder from which Mr Dietz fell, Dr Ring reported that Mr Dietz fell four feet, and Mrs Dietz gave two accounts in evidence, one that it was the Dietz's ladder, and one that it was the neighbour's ladder. This inconsistency, although not significant in terms of the evidence, does not help their credibility, Mr Godwin submitted. Further, Mr Dietz did not mention the fall from the ladder at the Veterans' Review Board and he did not tell Dr Benanzio or Dr Bodel about it. However the onset of back symptoms from the time of the fall from the ladder is clear in Dr Ring's report, Dr Tan's report and the local doctor, Dr Castagna's report, on the claim form where he said there had been symptoms for 12 months.
89. In conclusion, Mr Godwin submitted that the evidence raises no more than the possibility that Mr Dietz had a fall that met the Statement of Principles requirements in 1948 and, in view of the lack of supporting documentation and the lack of comment by Mr Dietz about the alleged ongoing back problems, given the number of opportunities that he has had where he could have said something about his back condition, makes it unlikely. In relation to clinical onset, Mr Godwin concluded that it is possible to believe Mr Dietz's history of back discomfort driving his taxis, but the evidence raises no more than a possibility that a doctor, looking at his symptoms in 1973 and his x-rays, because the diagnostic criteria require both symptoms and changes in the spine, would have been able to diagnose lumbar spondylosis in 1973.
90. The Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
91. Mr Dietz's claimed condition, which he asserts is war-caused pursuant to section 9 of the Act, is lumbar spondylosis. The Tribunal notes that there has been no dispute as to whether Mr Dietz presently has this condition. In relation to the issue of diagnosis, therefore, the Tribunal is reasonably satisfied that Mr Dietz has lumbar spondylosis, and notes the medical opinions of Dr Castagna, Dr Bodel and Dr Benanzio in this regard.
92. The Tribunal must next determine whether Mr Dietz's condition of lumbar spondylosis was war-caused pursuant to section 9 of the Act. In so doing, the Tribunal notes that the standard of proof upon which this must be determined is to the Tribunal's reasonable satisfaction, under subsection 120(4) of the Act. Moreover, to be reasonably satisfied that Mr Dietz's lumbar spondylosis was war-caused, the Tribunal must find pursuant to section 120B of the Act that if there is a Statement of Principles in relation to this condition, it must be determined in line with that Statement of Principles whether or not on the balance of probabilities, there is a connection between Mr Dietz's lumbar spondylosis and his eligible war-service.
93. The Tribunal notes that the relevant Statement of Principles in this matter, as agreed by the Respondent and the Applicant, is the Statement of Principles concerning Lumbar Spondylosis, Instrument Number 28 of 1999 ("the SoP"). The relevant Factor in the Statement of Principles is Factor 5(g) which requires:
"(g) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis"
94. In order to satisfy this Factor, the definition of "trauma to the lumbar spine" in the Statement of Principles must be satisfied, which states:
"trauma to the lumbar spine" means a discrete injury to the lumbar spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, tenderness, and either altered mobility or range of movement of the lumbar spine. These acute 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 lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine;or
95. Turning to Mr Dietz's evidence, the Tribunal notes that some time in late 1948, when serving at HMAS Platypus, but performing the duties of ship-keeper for three GPVs at Green Point on Parramatta River, he claims to have suffered an injury to his back when he fell down a hatch from the lower deck of the GPV onto the Bilge, after challenging intruders who boarded the GPVs during the night. Mr Dietz's evidence was that, after the fall, he was sore in the lower-central back, that he felt excruciating pain and that, while he was able use his hands to get up, he had difficulty walking back to his bed to lie down. Mr Dietz had a sore back throughout the night and a painful left leg. Mr Dietz told the Tribunal that he was able to change into clean clothes the next day and walk to the doctor's surgery in Mortlake, five minutes walk from the shipyards. The doctor prescribed him ointment and Aspros, and advised him to have an x-ray if he wanted to be sure, but left that up to Mr Dietz, who decided against this.
96. The Tribunal notes, in relation to this incident, the absence of contemporaneous records supporting Mr Dietz's evidence regarding the incident, including the local doctor's records which are unable to be retrieved due to the passing of time. The Tribunal also notes that Mr Dietz did not disclose this incident in his original claim to the Repatriation Commission for back pain (T4, p25), and there are no records of the incident prior to this date. In this regard, Mr Winship has submitted that Mr Dietz did not receive the full assistance from the RSL advocate that he could have been given prior to his original claim, and that he became aware of the need to raise this incident by the time of the Board's hearing, in which case he provided such evidence at the hearing. In relation to these issues the Tribunal notes the requirements of section 119 of the Act, and the need for consideration of the effects of the passages of time and the absence or deficiencies in official records in these matters, and also notes the difficulties for Mr Dietz in recalling events that occurred, in Mr Dietz's case, more than 50 years ago. Taking these factors into account, the Tribunal is reasonably satisfied that an incident occurred as has been described by Mr Dietz.
97. Having accepted that there was, on the balance of probabilities, an incident or trauma as described by Mr Dietz, the Tribunal must examine whether this incident fits within the Statement of Principles, and specifically whether it meets Factor 5(g). In relation to the issue of the definition of "trauma to the lumbar spine" in the Statement of Principles, this definition has been given consideration in the Federal Court, and in particular that part of the definition which requires "acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement". In the Federal Court decision of Harris v Repatriation Commission (supra) Finn J found that the phrase "acute symptoms and signs" applied to the three elements: pain; tenderness; and altered mobility and range of movement. Finn J noted that "signs and symptoms" requires "an indication of, or phenomenon evidencing" each of the three elements, and also noted that the adjective "acute" meant that the signs and symptoms needed to be "sharp" or act "keenly on the senses". The Tribunal is also mindful of the conclusions of Finn J, that the definition "contemplates a significant injury".
98. The Full Federal Court in Harris v Repatriation Commission [2000] FCA 1687; (2000) 62 ALD 161 upheld the interpretation of Finn J in Harris v Repatriation Commission (supra) and found that "the construction adopted by the primary judge accords with the ordinary meaning of the words in the definition". (Also see Federal Court authorities: Mason v Repatriation Commission [2000] FCA 1409; Knight v Repatriation Commission [2002] FCA 103; Arnott v Repatriation Commission [2001] FCA 262; (2001) 106 FCR 83). The Full Court also confirmed that the expression "acute signs and symptoms" can "readily be applied" to the concept of "altered mobility or range of movement". In Arnott v Repatriation Commission (supra) the Full Federal Court, applying the definition of "acute" in Harris v Repatriation Commission (supra), found that "acute" pain did not necessarily have to be "severe", although the difference in degree between acute and severe pain may not be substantial.
99. The Tribunal has accepted Mr Dietz's evidence in regards to the incident. Taking into account the authorities, in the context of the evidence provided by Mr Dietz, the Tribunal finds that it is not reasonably satisfied that Mr Dietz meets the definition of trauma to the lumbar spine. The Tribunal accepts Mr Dietz's evidence of manifestations of pain immediately following the fall, which lessened but lasted for one month, and caused him to take twice the recommended dose of Aspros. However, he was also taking this same medication for his shoulder injury, which had occurred previously. Furthermore, the Tribunal notes Mr Dietz's evidence of altered mobility including difficulties walking immediately following the fall and of a limp. Mr Dietz's evidence was that he was not able to ride a push-bike again after the incident. However, while Mr Dietz has stated that he had difficulty walking after the fall, the Tribunal notes that he did in fact walk to the local doctor the following morning, and returned to finish his full shift that day. Moreover, after his routine 48 hours off work, which he spent at his fiance's home, Mr Dietz returned to work as usual. This level of activity indicates to the Tribunal a considerably lesser degree of pain, tenderness and altered mobility or range of movement than contemplated by the Statement of Principles.
100. The Tribunal notes also that although Mr Dietz consulted the doctor the next day, he has stated that the only treatment he was given was ointment to apply to his injury and pain relief medication in the form of Aspros or Vincents. Whilst the doctor advised Mr Dietz to have an x-ray to be "100 per cent sure", Mr Dietz chose not to have an x-ray of his back because he did not want to be absent from his fiance or lose his job. The Tribunal notes that this decision not to have an x-ray must also be seen in the context of Mr Dietz previously having had an x-ray for his shoulder (T3, p16) that same year. Mr Dietz was well aware of the Naval x-ray facilities and relative ease in arranging this diagnostic procedure.
101. The Tribunal finds that there is inconsistency in the evidence asserted that Mr Dietz suffered the acute symptoms and signs of pain, tenderness and either altered mobility or range of movement as compared to his level of activity, in that he continued to work the next day. He did not elaborate the extent of his injuries to his Commanding Officer, he returned to work unassisted and did not arrange for x-rays. He was also already taking the same medication for his shoulder condition. Thus, while Mr Dietz has provided evidence of symptoms and signs of pain and tenderness and altered mobility, which he states lasted for at least ten days, the Tribunal finds that on the balance of probabilities, on all of the evidence and particularly his failure to report the injury or for the injury to impact upon his work, these symptoms and signs were not "acute" for "at least ten days", in the sense that they were not "sharp" or acting "keenly on the senses" or "significant manifestations" of the symptoms and signs. The Tribunal is not reasonably satisfied that Mr Dietz had suffered a "significant injury" as contemplated by Finn J in Harris v Repatriation Commission (supra), such that he can meet the definition of trauma. The Tribunal notes that the definition includes an exception to the requirement that the acute symptoms and signs last for ten days, where medical intervention in certain forms has occurred. The Tribunal notes that while Mr Dietz attended a medical practitioner, he was not provided with medical intervention within the ten days following the incident of the kinds referred to in the definition, including immobilisation of the lumbar spine by splinting, or similar external agent; injection of corticosteroids or local anaesthetics into the lumbar spine; or surgery to the lumbar spine.
102. In making this finding, the Tribunal has taken into account the evidence that has been given by Mr and Mrs Dietz in relation to Mr Dietz's memory problems. Mr Dietz's evidence was that he had a "shocking memory" and Mrs Dietz provided evidence that Mr Dietz has had problems with his memory since his "turn" in October 2000. Mr Dietz stated in evidence that he did not have memory problems in the 1970's at the time he filled in the claim forms in relation to his right shoulder. He also, on the evidence, had no memory problem when he claimed the back problem in August 2000. Mr Winship submitted that Mr Dietz has short term memory problems, but that he does not have problems in relation to his long term memory. His problems are only in relation to recent events. Therefore, on Mr and Mrs Dietz's evidence and Mr Winship's submissions, Mr Dietz's memory problems are a recent phenomenon, having arisen only over the last two years. The Tribunal is thus of the view that Mr Dietz's memory problems, which it accepts, do not affect the Tribunal's findings in relation to the incident in 1948.
103. Turning to the remaining element of Factor 5(g), the Tribunal notes that substantial evidence was given and submissions made in relation to the date of clinical onset of Mr Dietz's lumbar spondylosis, and thus the Tribunal turns to examine whether Mr Dietz would, in the Tribunal's opinion, satisfy the requirements of Factor 5(g) that the traumatic incident causing the lumbar spondylosis must have been within the 25 years immediately before clinical onset.
104. In relation to clinical onset the Tribunal notes that attention was drawn to the comments by Professor Ken Donald, Chairman of the Repatriation Medical Authority ("RMA") in an address to the Canberra Forum in November 1998, who discussed the ordinary English usage of the term clinical onset, and also noted that no definition has been formulated by the RMA, and that one of the intentions behind this was to prevent making the system more restrictive. The Tribunal also notes the consideration of the meaning of clinical onset by the Tribunal in Re Robertson and Repatriation Commission (supra), which found clinical onset to be when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
105. In relation to clinical onset in Mr Dietz's circumstances, the Tribunal notes that there is no medical opinion as to a specific date of clinical onset. Dr Benanzio stated that Mr Dietz "suffered a trauma to the lumbar spine before the clinical onset of lumbar spondylosis". He did not give a specific date for onset, although he did state that in his opinion Mr Dietz would meet the criteria in the Statement of Principles (T10, p61). Neither Dr Benanzio nor Dr Bodel were aware of the fall from the ladder which Mr Dietz suffered in 1999 or other medical consultations. The Tribunal finds that the absence of such knowledge weakens the force of Dr Benanzio's opinion as to the trauma suffered by Mr Dietz on service. Dr Bodel reported that the "clinical onset of lumbar spondylosis is difficult to determine at this time although it is likely to have occurred some years after the onset of symptoms." He further stated that Mr Dietz did not "give a history of any specific trauma to the lumbar spine within 25 years immediately before the clinical onset of lumbar spondylosis" (Exhibit R1).
106. Mr Winship for the Applicant submitted that the date of clinical onset was when Mr Dietz first became aware of features of the condition, and contended that of importance was the corroborative evidence of Mrs Dietz in this regard. The evidence of Mr Dietz was that he became aware of the back symptoms in the early 1970's, and that these symptoms caused him to stop driving cabs by 1973. Mrs Dietz's evidence was that back symptoms were present when she met Mr Dietz and certainly by the time they were married in 1970. Mrs Dietz recalled an appointment with a doctor in 1970 when they were first married. She thought Mr Dietz's back was examined and he may have had an x-ray, but she could not recall the result of the x-ray.
107. The Tribunal notes that, as against Mr and Mrs Dietz's evidence of him complaining of back problems in the 1970's, there were no records of Mr Dietz making any complaints about his back or mentioning his back problem at that time. There were, however, records in relation to Mr Dietz's shoulder, which he told the Tribunal that he injured in 1947, prior to his back injury. Mr Dietz submitted a claim for his right shoulder condition in 1971, and at this time no mention was made of his back condition. Again in 1977, Mr Dietz put in a claim for an increase in pension in relation to his right shoulder, and made no mention of his back condition. Further, in 1981, in a letter to the Department of Veterans' Affairs in relation to his right shoulder, no mention was made of his back. It is also of relevance that, even at the time of discharge from the Navy in 1949, Mr Dietz also made no complaint about his back, whilst there were records that Mr Dietz did complain about his shoulder.
108. Whilst the Tribunal notes that section 119 of the Act requires the Tribunal to take account of the passing of time and deficiencies in records, this section does not allow the Tribunal to invent evidence, or to fill gaps in evidence. In this regard the Tribunal notes the decision of Mason v Repatriation Commission (supra), referred to by the Respondent. The Tribunal must also consider the whole of the evidence that is available, including the records in relation to Mr Dietz's shoulder. The Tribunal is of the view that no reasonable explanation was offered by Mr or Mrs Dietz as to why no claim for pension or complaints were made by Mr Dietz in relation to his back, whilst complaints and claims for pension were on the other hand being made by Mr Dietz consistently in relation to his right shoulder. Mr Dietz was thus well aware of the availability of Disability Pension entitlement for injuries. In this regard, the Tribunal notes the evidence of Mrs Dietz that she told Mr Dietz to claim for his back, but that he was too stubborn and the evidence of Mr Dietz that he did not claim for his back because he did not want DVA help-outs. It is difficult to accept this evidence given that Mr Dietz is in receipt of a "help-out" in the form of Disability Pension for his shoulder condition. The Tribunal also notes, in relation to Mr Dietz's memory problems, Mr Dietz's evidence that his memory was not affected in the 1970's when he completed his claims in relation to his right shoulder and when he consulted various doctors prior to his claim for Disability Pension for his back condition.
109. The Tribunal also considers of relevance in this matter, recent medical evidence in relation to Mr Dietz. The report of Dr Ring of a fall from a step-ladder in July 1999 (Exhibit R3), and Dr Tan's report of 26 July 2000, which describes complaints of pain in the lower back and pain to the legs over the last 15 months following a fall from a ladder, as well as the comments by Dr Castagna on 1 August 2000, in the claim form for Disability Pension "CT of Lumbar Spine; pain present for over 12/12" (T4, p25), suggests to the Tribunal at least one other more recent significant back complaint that could be related to the development of his lumbar spondylosis. The reports of Dr Ring, Dr Tan and Dr Castagna indicate no prior back injury or symptoms and certainly no problem relating back to 1948 or in the 1970's. The fall from the ladder was not reported to Dr Bodel or Dr Benanzio. Furthermore, the Tribunal notes that Dr Roy reported Mr Dietz suffering chest discomfort after lifting heavy cement bags, and of heavy physical exertion, contrary to Mr Dietz's evidence and that of Mrs Dietz that he could not do any heavy lifting. The Tribunal has not been given a satisfactory explanation as to why a doctor might record such activities if they had not been told this by Mr Dietz.
110. When taking the whole of the evidence into account, the Tribunal finds that it is not reasonably satisfied that the onset of Mr Dietz's lumbar spondylosis was by 1973. There are two many inconsistencies in the evidence. Mr Dietz's statement in correspondence that he had no other condition but his shoulder problem, which had caused him to cease driving taxis. Reports by various doctors, such as those that suggest back injury following the fall from the ladder, could conceivably have precipitated lumbar spondylosis. No report of the trauma in his original back claim in the context of his knowledge of the causal relationship of the right shoulder injury on service. Therefore Mr Dietz does not satisfy the Statement of Principles requirement in terms of clinical onset in the 25 years immediately prior to the trauma and therefore does not meet the requirements of Factor 5(g).
111. In all the circumstances and for the reasons expressed above, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal decides that Mr Dietz does not have a war-caused condition of lumbar spondylosis and accordingly the decision under review is affirmed.
I certify that the 111 preceding paragraphs are a true copy of the reasons for the decision herein of Ms SM Bullock, Senior Member and Dr PD Lynch, Member.
Signed:...........................................................................
Representative for the Applicant Mr B Winship, Solicitor, Rockliffs, Solicitors and Attorneys
Representative for the Respondent Mr P Godwin, Departmental Advocate
Harris
Repatriation Commission
(2001) 106 FCR 83
Administrative Appeals Tribunal affirmed the Commission's decision refusing entitlement to a war-caused disability pension for lumbar spondylosis; claim dismissed (para 111).