Anderson and Repatriation Commission
[2005] AATA 729
•1 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 729
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/220
VETERANS’ APPEALS DIVISION )
Re TRACEY ANDERSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms M J Carstairs, Member Date 1 August 2005
Place Brisbane
Decision The Tribunal sets aside the decision under review, and substitutes a decision that the applicant's thoracic spondylosis is defence-caused with effect from 23 April 2002. The Tribunal remits the assessment of rate of pension to the respondent.
.................[Sgd]........................
M J Carstairs
Member
CATCHWORDS
VETERANS’ AFFAIRS, - disability pension – thoracic spondylosis – trauma - clinical onset- decision set aside and substituted
Veterans’ Entitlements Act s70, 120(4), 120B
REASONS FOR DECISION
1 August 2005
Ms M J Carstairs, Member 1. This is an application by Tracey Anderson (the applicant) for review of a decision made by the Repatriation Commission (the respondent) and affirmed by the Veterans’ Review Board (VRB) on 5 March 2004 that the applicant’s thoracic spondylosis was not due to her defence service.
2. At the hearing the applicant was represented by Mr A Harding of counsel instructed by Gilshenan and Luton Solicitors. The respondent was represented by its advocate Mr M Smith.
3. The Tribunal had before it the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 numbered T1-T6 as well as exhibits marked A1-A5 for the applicant and R1 for the respondent.
BACKGROUND
4. The applicant is aged forty. She joined the Australian Army in July 1986 and served for a period of three years, taking discharge on 14 July 1989. She then served in the Army Reserve as a medical assistant from June 1989 until January 1991.
5. On 23 July 2002 the applicant lodged a claim for disability pension for the conditions of cervical, thoracic, and lumbar spondylosis. On 31 January 2003, a delegate of the respondent accepted the claim as it related to lumbar spondylosis, rejected the claim for thoracic spondylosis on the basis that the condition was not related to the applicant’s service, and was not satisfied that the applicant suffered from the condition of cervical spondylosis. The VRB agreed with these conclusions. The applicant accepts the conclusions insofar as cervical spondylosis is concerned and that claim was formally withdrawn at the hearing.
6. Therefore the only issue for the Tribunal is the relationship, if any of the applicant’s thoracic spondylosis and her defence service.
EVIDENCE
7. The applicant made two written statements, dated respectively 12 May 2004 and 17 May 2004 (exhibits A2 and A3) in addition to detailed answers provided earlier in her claim on a form headed Claimant Report-Trauma-Thoracic Spondylosis (T5). She stated that when she enlisted in the Army her recruit training was extended by three months because she had not achieved the required level of fitness. She stated that because of her short stature (152cm) she found the backpacks she was required to wear during training ill-fitting and awkward and she experienced strain to her neck and shoulders.
8. The applicant stated that there were four incidents in which she believed that she suffered trauma to the thoracic spine. These were as follows:
§ The first incident – 1986 – lifting and carrying backpacks weighing more than 40kgs during training.
§ The second incident – 1986 - when she was required to use a fireman’s lift on another female recruit, who was much taller and heavier than herself (165cms and weighing 88 kgs), and then carry the recruit 50 metres, while wearing full webbing and carrying both their rifles. She stated that she felt sharp pain in her shoulders radiating down her back to her hips, and a sensation of burning in the mid-back area. She attended the regimental aid post (RAP) and was treated with heat rubs and analgesics but her symptoms continued for more than seven days and she was placed on light duties.
§ The third incident – March 1987 - when she was assigned for a whole day of general duties shifting office furniture from one location to another. This involved moving tables, cabinets, boxes of files, a photocopier and other office machines. The applicant said that when she lifted the photocopier she experienced pain in the right shoulder and upper chest. When she placed the photocopier down, she experienced pain running down her back. She attended the RAP and was prescribed analgesics.
§ The fourth incident – March 1987 - within a few days of the third incident, doing chin-ups during physical training (PT), and their instructor required them to hang from the bar until all others had finished. The applicant said that she had not recovered from the third incident, and while hanging from the bar she felt instant sharp pain, which settled to a dull ache down her back and in the right shoulder.
9. The applicant’s service medical records (exhibit A1) included the following:
§ 18 June 1986 – the applicant complained of left-sided lower back pain after conducting the fireman’s lift. A bruised muscle was diagnosed and she was placed on restricted duties for 3 days (which the applicant said was extended to seven days as she was required to report daily to the RAP and the light duties were extended each day)
§ 10 March 1987 – the RAP record of consultation report stated that after lifting (the third incident) on Friday 6 March 1987 the applicant experienced discomfort over the weekend. On the following Tuesday the report recorded that the applicant was suspending herself from the chin-up bar during PT and experienced the onset of pain in the right upper chest. She was placed on restricted duties with no PT. Ongoing RAP reports of consultations reveal the applicant continuing to report with symptoms until at least 20 March 1987 (p4). The applicant then was referred to a physiotherapist for treatment for her right-sided lower ribs, and an upper-back muscle strain. On 30 March 1987 the RAP report recorded that she was experiencing muscle spasm in the right trapezius and soreness in the scapular muscles. She then was fitted with an arm sling.
§ 16 March 1987 – physiotherapist’s records – included the applicant’s report of right thoracic pain and spasm after a fall last week. The report noted: v.v.irritable with ref pn into abdo/ribcage. The applicant said that she fell on wet cement down a stair onto her back. She said that after this she could not turn or bend easily and walked with difficulty. On 1 April 1987 the note recorded that she was admitted to hospital for rest.
10. The applicant said that she was admitted to HMAS Penguin naval hospital on 2 April 1987 after she had become aggressive and depressed and was feeling nauseous from the unremitting pain. After her discharge on 6 April 1987 she was seen at the RAP on 9 April 1987 and was certified to remain on restricted duties with a review date on 13 April 1987.
11. X-rays of the thoracic spine conducted on 10 December 1997 were stated to reveal degenerative changes in the thoracic spine with small osteophytes evident on a number of vertebrae (T4 p27).
12. In a report dated 1 October 2003 (exhibit R1) Dr H Khursandi, consultant orthopaedic surgeon, stated that when he examined her the applicant complained of neck and upper thoracic pain aggravated by bending, with interscapular backache being aggravated by prolonged sitting or driving. He stated that on examination there was a slight limitation of flexion and extension in the thoracic segment with tenderness in the mid-thoracic area. He attributed the interscapular backache to degenerative discs in the mid-thoracic region of her spine.
13. In oral evidence Dr Khursandi said that after examining the service medical records he considered that the applicant sustained a transient muscular ligament strain or strain of the muscles. He said that the thoracic area is more difficult to injure than the lumbar or cervical areas. He said that it is difficult to speculate what injury might have been sustained without undertaking nerve conduction studies at the time. He said he was not prepared to speculate. He did not agree that pain in the scapular area can be the result of referred pain from the thoracic area, but conceded in cross-examination that interscapular backache can be due to thoracic injury. He also agreed that trauma can produce accelerated degeneration of spinal joints and discs. Dr Khursandi acknowledged in cross-examination that he was not aware that the applicant had aggravated her back by moving furniture (though he had reported on this in his written report).
14. In a report dated 8 September 2004 (exhibit A4) Dr S Geffen, rehabilitation specialist, stated that the applicant suffers from thoracic spondylosis. He said that her thoracic rotation is limited on the right by pain and she is tender over the supraspinous processes of the thoracic spine.
15. Dr S Geffen said that he had looked at the service medical reports which revealed that in March 1987 the applicant sustained two injuries within a short period of time and the second one occurred before she had recovered from the first. He said that there was clear evidence that over a period of two weeks the applicant was complaining of and seeking treatment for her mid-thoracic back and scapular areas. He said the scapular area is bone encased in muscles that originate in the thoracic area, so that pain in the scapular area will often be sourced from the thoracic area. He commented that what was shown by the service medical records was that the applicant had one or two injuries that lasted more than ten days and her admission to hospital reflected the severity of the injury(ies) that she had suffered.
16. Under cross-examination Dr Geffen said that purely muscle injuries around the spine are rare as these are short muscles. He said that injury is usually sustained by the joint or ligament. In his view the applicant sustained an injury to the inter-costal area and that this was reflected in the reports at the time that her muscles were going into spasm. He said that the costo-vertebral joints were likely to have been injured when the applicant stressed these hanging by her arms in the fourth incident. Dr Geffen thought that the most likely site of the injury was in the region of T5-T7.
CONSIDERATION OF THE ISSUES
17. There was no dispute between the parties that the veteran had rendered defence service under s68(1) of the Veterans’ Entitlements Act 1986 (the Act), so that s120(4) and s120B of the Act apply, with the result that the Tribunal must decide the matters that arise under s70(5) of the Act to its reasonable satisfaction.
18. Section 70(5) of the Act provides:
70(5)For the purposes of this Act,…an injury suffered…shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
….
19. For claims made after 1994 where defence service is involved, it is necessary to apply any relevant Statement of Principles (SoP). Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the applicant's condition and his or her service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities, connected with the applicant's service (s120B(3)(b)). The relationship to service must be one of the relationships prescribed in s196B(14) of the Act:
196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
….
(d)it was contributed to in a material degree by, or was aggravated by, that service; or….
20. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the applicant fits within or is consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail.
21. The first task for the Tribunal is to establish that the applicant suffers from the medical condition claimed. Here, diagnosis is not in dispute, the medical evidence being in agreement that the applicant now suffers from thoracic spondylosis. The first conclusive medical reports on file concerning thoracic spondylosis are from x-rays in December 1997 which brings clinical onset of the condition within 25 years of the applicant’s service in the defence forces.
22. The parties agreed that the applicable SoP was that for thoracic spondylosis, which is No of 49 of 2002 which provides in clause 5:
The factors that must exist before it can be said that, on the balance of probabilities, thoracic spondylosis … is connected with the circumstances of a person’s relevant service are:
…..
(g) suffering a trauma to the thoracic spine within the 25 years immediately before the clinical onset of thoracic spondylosis; ….
23. Trauma to the thoracic spine is defined in clause 8 of the SoP as:
trauma to the thoracic spine means a discrete injury to the thoracic spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the thoracic spine. These symptoms and signs must last for a period of at least 10 days following their onset; save for where medical intervention for the trauma to the thoracic spine has occurred, where that medical intervention involves either:
(a) immobilisation of the thoracic spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the thoracic spine; or
(c) surgery to the thoracic spine.
24. The applicant had a comprehensive recall of her symptoms and gave a detailed account from the early stages of her claim, though she acknowledged her recall was assisted by having access to her service medical records. The Tribunal had no difficulty accepting her evidence, which was supported by the contemporaneous medical records.
25. The Tribunal preferred the evidence of Dr Geffen to that of Dr Khursandi. Dr Khursandi had completed two reports on the applicant but the Tribunal agrees with Mr Harding’s submission that neither report closely addressed issues of causation of the applicant’s thoracic spondylosis. Dr Khursandi was reluctant to offer a view at all, in the absence of nerve conduction studies conducted at the time of the injury. Dr Khursandi seemed to be unaware of the repeated injuries, or the fact that the third and fourth incidents had occurred within days of each other. He was less familiar than was Dr Geffen with the applicant’s contemporaneous service medical records.
26. Nevertheless Dr Khursandi agreed with Dr Geffen that interscapular backache can be attributed to injury to the thoracic spine. The Tribunal accepts that evidence and the evidence of Dr Geffen that a purely muscular injury was less likely than a joint injury.
27. The applicant suffered at least two identifiable traumas within the definition in the SoP, when she injured herself in the two incidents in March 1987. On the applicant's evidence, which was supported by the medical evidence, she suffered pain in her thoracic back and scapular regions at the time of the injuries, and her symptoms lasted for a period of at least 4 weeks. On the applicant’s evidence, which the Tribunal accepts, she had difficulty walking, bending and positioning her body. Thus there were signs of altered mobility and range of movement in the thoracic spine. The service medical records reflect that she had an intractable condition that was not responding well to treatment.
28. The Tribunal was reasonably satisfied on the evidence that the applicant suffered repeated trauma to the thoracic spine as defined in the SoP in 1987, within the 25 years immediately before the clinical onset of thoracic spondylosis thus satisfying factor 5(g) of the SoP.
29. The SoP upholds the contention that the disease is, on the balance of probabilities, connected with the service. The Tribunal is reasonably satisfied that the material before it raises a connection under s70(5) of the Act between the disease and the applicant’s defence service.
30. For these reasons the Tribunal sets aside the decision under review, and substitutes a decision that the applicant's condition of thoracic spondylosis is defence-caused with effect from 23 April 2002.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Ms M J Carstairs, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 29 June 2005
Date of Decision 1 August 2005
Counsel for the Applicant Mr A Harding
Solicitor for the Applicant Gilshenan and Luton
For the Respondent Mr M Smith, Departmental Advocate
0
0
0