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VeRBosity
Journal of the Veterans' Review Board
�Selected Decisions of the
Administrative Appeals Tribunal
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Spinal injury while in training for Vietnam service
Re A J Kopacz and Repatriation Commission
Breen
Q96/650
12 January 1999
[Full Text]
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Mr Kopacz applied to the Tribunal for review of a decision that his back condition, diagnosed as thoracic spondylosis, was not war-caused in terms of section 9 of the VE Act. He served in Vietnam in 1971 with the Catering Corps.
Prior to going to Vietnam, Mr Kopacz underwent a jungle training course at Canungra. He claimed that his thoracic spondylosis was caused during this period of training and not by his actual service in Vietnam. The training required participation in intensive exercises and manoeuvres to improve fitness. He was required to carry a backpack weighing approximately 30 kilograms plus an ammunition box for long periods.
Submission
Mr Kopacz's counsel referred to the case of Repatriation Commission v Hawkins (1993) (9 VeRBosity 70) in which the Full Federal Court determined that the applicant's smoking habit, which commenced on his journey to Vietnam, arose out of his service because the voyage to Vietnam was inseparably bound to the operational service rendered in Vietnam. Similarly, in this case, it was submitted that the applicant's training for Vietnam, in particular the jungle training at Canungra, was an inevitable and therefore related part of his operational service in Vietnam.
Statement of Principles
In terms of the Statement of Principles for thoracic spondylosis, factor (k) required that the person suffered a trauma to the thoracic spine before the clinical worsening of thoracic spondylosis. As a result of the operation of Clause 6 of the Statement of Principles, factor (k) applied only to material contribution to or aggravation of thoracic spondylosis where the person's thoracic spondylosis was suffered or contracted before or during (but not arising out of) the person's relevant service.
The Statement of Principles referred to subsection 9(1)(e) of the VE Act which provides that an injury or disease is war-caused if:
"(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;"
The Tribunal noted that as a result of this provision, the applicant's condition could only be war-caused if it was aggravated by his eligible war service regardless of whether it was contracted before or during that service.
The Tribunal said that although the applicant's thoracic spondylosis was undoubtedly contributed to by his training at Canungra, his eligible war service did not commence until he was deployed to Vietnam. This is governed by subsection 6C(3) of the VE Act which provides:
"(3) For the purposes of subsection (1), a member of the Defence Force is, subject to subsection (4), taken to have rendered continuous full-time service in an operational area during the period commencing on:
(a) if the member was in Australia on the day (relevant day) from which the member, or the unit of the member, was allotted for duty in that area - on the day on which the member left the last port of call in Australia for that service; or
(b) if the member was outside Australia on the relevant day - on that day;"
Tribunal's conclusion
The Tribunal said that while the applicant's submission accorded with commonsense, it was prevented by the amendments to the VE Act since the decision in Hawkins' case, in particular by the provision of section 6C(3), from applying a more liberal approach to the case. In this case, the applicant's injury, according to his own evidence, was not referrable to events during operational service but rather during preparation for that service while he was still in Australia. The Tribunal therefore concluded that the veteran's condition was not war-caused.
�Formal decision
The Tribunal affirmed the decision that the veteran's thoracic spondylosis was not war-caused.
[ED: Periods of service with the Australian Defence Force that are not covered by the VE Act are covered by other Commonwealth Compensation Legislation]