Baker and Repatriation Commission

[2005] AATA 922

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 922

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No  Q2004/120

VETERANS’ APPEALS DIVISION		)
Re		KENNETH WILLIAM BAKER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Senior Member B J McCabe

Dr K P Kennedy, Member

Date22 September 2005

PlaceBrisbane

Decision The decision under review is affirmed.

............. …[Sgd].............................

SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – war-caused injury during operational service – diagnosis of back condition in issue - injury to spine on operational service not the cause of lumbar spondylosis as claimed – applicant suffers from Diffuse Idiopathic Skeletal Hyperstosis (DISH) not lumbar spondylosis – evidence does not point to a connection between the applicant’s condition and the applicant’s service – a reasonable hypothesis does not exist – applicant’s back condition not attributable to the circumstances of his services – decision under review affirmed.

Veterans’ Entitlements Act 1986 s 120, 120A

Repatriation Commission v Deledio (1998) 49 ALD 193; (1998) 83 FCR 82; (1998) 27 AAR 144

Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 109 ALR 30; (1992) 66 ALJR 753; (1992) 29 ALD 1; (1992) 16 AAR 1

East v Repatriation Commission (1987) 16 FCR 517; (1987) 74 ALR 518; (1987) 12 ALD 389; (1987) 6 AAR 492

Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 116 ALR 210; (1993) 67 ALJR 805; (1993) 30 ALD 1; (1993) 18 AAR 1; [1993] HCA 51

REASONS FOR DECISION

22 September 2005 Senior Member B J McCabe
 Dr K P Kennedy, Member

1.      Kenneth Baker says he received an injury to his spine while he was on operational service with the Navy in 1966. He claims that injury led to lumbar spondylosis. Further, or in the alternative, he claims that surgery in 1968 to remove a malignant melanoma from his neck left him with altered posture that contributed to his back-problem. Given the malignant melanoma has previously been accepted as a war-caused condition, he argues the back problems which are a consequence of the treatment should also be accepted for the purposes of the Veterans Entitlements Act 1986.

2.      The applicant abandoned a claim in respect of cervical spondylosis before the hearing.

material before the tribunal

3. The Tribunal was provided with the documents required under s 37 of the Administrative Appeals Tribunal Act 1975. The following documents were also tendered in evidence at the hearing:

·Report of Dr Morris dated 11 February 2005 (exhibit 2);

·X-Ray report of Dr Keller dated 21 October 2004 (exhibit 3);

·Report of Professor McPhee dated 20 October 2004 (exhibit 4); and

·Report of Professor McPhee dated 11 November 2004 (exhibit 5).

4.      The applicant gave evidence in person at the hearing, as did Professor McPhee and Dr Morris. Mr Baker was represented by Mr Honchin of counsel. The respondent was represented by Mr Smith, a Commission advocate.

the factual background

5.      The applicant was born on 17 November 1942. He joined the Navy on 29 September 1962 and served until 12 September 1969. He had operational service aboard HMAS Curlew in Malaya, Singapore and Brunei between 10 October 1965 and 14 September 1966.

6.      HMAS Curlew was a mine sweeper. Mr Baker was the sick birth attendant. The vessel was on a 10 day patrol in 1966 in the waters off Borneo. A party was sent ashore to visit villagers. The applicant accompanied the party to check on the health of the villagers. He was wearing a medical pack on his back that weighed about 18 kilograms. On the way from the landing point to the village, the party forded a creek. The creek was in flood. As the applicant crossed the creek, he claims he was caught in an undertow and swept onto rocks. He says he made it to the bank of the creek after sustaining cuts and blows on his legs, arms and back. He said he felt blows on his back below the level of the pack around his lower lumbar spine. He says the whole experience lasted for 2-3 minutes.

7.      Mr Baker told the hearing he did not recall anything after the incident until he returned to the ship. He said he put himself on light duties, which included doing clerical work for the captain at a desk. The bruising started to show up the following day. He says he applied liniment and consumed painkillers (APC mixture) for a few days. He said the painkillers were taken four or five times a day to deal with discomfort rather than pain. When the ship berthed in Singapore nine days later, he visited the doctor aboard the Royal Navy vessel which served as a mother ship. The doctor told him he was “pretty well healed”. He did not seek any further attention until he visited a chiropractor about seven months later.

8.      There is some confusion surrounding the evidence of the applicant’s condition in the period following the incident in the creek. At the hearing, he agreed he told a Dr Bornstein in 1991 that the incident in the creek was not particularly significant. He also agreed he was able to perform the clerical duties he was carrying on after the incident without discomfort, and said he was not conscious of any restriction in his movement. He emphasised he was on light duties and did not assist with any of the heavy lifting involved with loading and unloading the ship, for example.

9.      The applicant said his back would twinge occasionally after the bruises had faded. He said jerking motions might cause discomfort. Over the longer term, he said back problems caused him to give up tennis. He was an A grade tennis player and competed on behalf of the Navy until his back prevented him from continuing.

10.     The applicant had a mole removed from his neck while he was still in the Navy. It appears the mole in question was a malignant melanoma. The site of the mole began to swell and he was ultimately required to undergo more radical surgery. The procedure involved the removal of muscle and other tissue on the left side of his neck and shoulder. He returned to work as a medical orderly after the surgery but he said the loss of muscle tissue affected his arm and his ability to lift. He said whenever he lifted something heavy, he had to twist to compensate. He says that aggravated his back condition.

the legislation

11.     The application is brought under the Veterans Entitlement Act 1986 (the VEA). In the course of assessing the application, the decision-maker must apply ss 120(1) and (3) of the VEA. Sections 120(1), (3) provide:

(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.

(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a) that the injury was a war-caused injury or a defence-caused injury;

(b) that the disease was a war-caused disease or a defence-caused disease; or

(c) that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

12. The reasonableness of any hypothesis must be tested with reference to any statements of principles (SoP) relating to the condition: s 120A. The Full Federal Court described this process in Repatriation Commission v Deledio(1998) 49 ALD 193. If the Repatriation Medical Authority has not issued an SoP, the Tribunal simply applies the words of s 120. The application of the section in the absence of an SoP was discussed by the High Court in Bushell v Repatriation Commission (1992) 175 CLR 408.

13. The first step in the process is to settle on a diagnosis. Questions of diagnosis are decided to the Tribunal’s reasonable satisfaction: s 120(3).

Diagnosis

14.     The first medical witness was Professor Ian Bruce McPhee, a Specialist Orthopoedic Surgeon.  Professor McPhee gave his evidence by telephone. Professor McPhee had also provided three written reports dated 4 June 2003, 20 October 2004 and 11 November 2004.

15.     Professor McPhee’s reports express the strong opinion the applicant has a degenerative spinal disorder known as Diffuse Idiopathic Skeletal Hyperstosis (DISH). The changes associated with DISH are seen in the cervical, thoracic and lumbar spine. Professor McPhee stated that while the cause of DISH is unknown, the current opinion is that the condition is probably a genetically determined disorder of new bone deposition. Professor McPhee said the development of DISH could not be influenced by any event that may have occurred during operational service.

16.     In his oral evidence, Professor McPhee emphasized DISH has very specific radiological features. Genetic and endocrine factors may be associated with some inflammatory reaction as part of a chemical process but any inflammatory changes are not due to trauma. He added that DISH is a specific form of spondylosis which is different to the normal degenerative process.

17.     Professor McPhee also dismissed any connection between the radical neck dissection in 1972 and the degenerative changes in the spine: exhibit 5.

18.     During cross examination Mr Honchin suggested to Professor McPhee there were features described in earlier X-rays and opinions expressed by other orthopaedic surgeons in earlier years that the degenerative changes were the product of lumbar spondylosis rather than DISH. Professor McPhee indicated he would not be prepared to accept other opinions without seeing those X-rays himself. He insisted the correct diagnosis is DISH.

19.     Dr John Morris also examined the applicant in February 2005 at the request of the applicant’s legal advisors. Dr Morris is a specialist orthopaedic surgeon. In his written report, Dr Morris noted the applicant had stated that he had no back pain between 1966 and 1969.

20.     Dr Morris also diagnosed DISH disease involving the thoracic and lumbar spine.  He said the cervical X-rays were of poor quality but he had no doubt the applicant was getting DISH disease in his cervical spine as well. Dr Morris agreed that DISH is considered to have a genetic basis. He also referred to a possible inflammatory basis for the condition as DISH is known to be associated with diabetes, high uric acid levels, hypertension and coronary artery disease. Tissue inflammation may occur in these conditions. The type of inflammation was different to the inflammation associated with trauma.

21.     Dr Morris’s written report (exhibit 2) said it was unlikely the incident in the creek was a significant injury. He also doubted whether the neck surgery would have any impact on joint mechanics. He opined:

As far as I am aware, removal of the sphenoid mastoid and scalenus anterior, medius and the omohyoid muscles would have produced weakness in the neck but not necessarily altered joint mechanics. The joints would have had exactly the same movements pre and post surgery.

22.     In oral evidence Dr Morris said the DISH disease was not due to trauma. He added that trauma would usually affect only one level whereas the applicant has involvement of his entire spine.

23.     Professor McPhee and Dr Morris expressed differing views about the possible combination of DISH and other degenerative spinal disease. Professor McPhee was of the view that normal degenerative disease and DISH would not coexist but Dr Morris believed it was possible to have DISH as well as another degenerative condition. Both concurred that DISH is the major problem.

24.     We accept the applicant suffers from DISH. We note Professor McPhee’s views that DISH cannot coexist with another degenerative condition. He rejected the suggestion out of hand. His analysis finds some support in the statement of principles relating to lumbar spondylosis which expressly excludes DISH. We note Dr Morris’s view was expressed tentatively: when Mr Honchin asked whether DISH and lumbar spondylosis might co-exist, he responded “Yes, I think you probably can.” He added DISH usually occurs later in life by which time a degenerative process might already be apparent. He said there was no logical reason why the two conditions could not exist. During cross examination, Mr Smith pointed out the SoP relating to lumbar spondylosis expressly excludes DISH. That appeared to prompt a change in view from Dr Morris. The following exchange between Dr Morris and Mr Smith came at the end of the cross-examination:

Mr Smith: Now, according to our statement of principles on lumbar spondylosis, lumbar spondylosis – the definition excludes DISH. So in Mr Baker’s case, does he have any lumbar spondylosis, as such?

Dr Morris: No. I think he has got DISH disease.

25.     On the balance of the medical evidence, we are satisfied the applicant does not suffer from lumbar spondylosis. He has DISH.

application of the law

26.     The applicant’s hypothesis connecting his back condition with his service is as follows: he suffered a number of blows to his lower back as he crossed a flooded creek while on operations service. He adds that disordered joint mechanics have contributed to the development of the condition. The disordered joint mechanics are attributable to his service because they were brought about following surgery to remove a melanoma from his neck. The surgery and its aftermath are connected to service because the respondent has already accepted the applicant’s melanomas are war-caused.

27.     We doubt there is sufficient evidence before us pointing to the hypothesis. Neither Professor McPhee nor Dr Morris say the injury to the applicant’s back had anything to do with the onset of DISH. We are not aware of any evidence pointing to a connection between the onset of DISH and any aspect of Mr Baker’s service – the minimum which has to exist before a claim can be sustained: see East v Repatriation Commission (1987) 16 FCR 517; see also Byrnes v Repatriation Commission (1993) 177 CLR 564. Dr Morris’s report does not suggest there is any connection between the applicant’s DISH and the blows to his back. Neither doctor identified disordered joint mechanics. In those circumstances, we are inclined to the view that the application must fail.

28. For the sake of completeness, we will proceed with the inquiry required by s 120(1). Can we be satisfied beyond reasonable doubt that the applicant’s DISH is not related to his service? In the circumstances, we think we can be satisfied beyond reasonable doubt that there is no connection. None of the medical evidence presented to us – most obviously the evidence of Professor McPhee and Dr Morris – suggests DISH is caused directly or indirectly by the circumstances of the applicant’s service. It is not caused by trauma sustained in the course of the creek-crossing, and it is not caused by disordered joint mechanics that supposedly followed the surgical procedure.

conclusion

29.     The decision under review must be affirmed. The applicant’s back condition is not attributable to the circumstances of his service.  

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member B J McCabe and Dr K P Kennedy, Member.

Signed:         .....................................................................................
  Associate:     Sam J Appleton

Date of Hearing  10 June 2005
Date of Decision  22 September 2005

The applicant was represented by Mr Honchin of counsel.

The respondent was represented by Mr Smith, department advocate.