Boxer and Repatriation Commission
[2001] AATA 740
•7 August 2001
DECISION AND REASONS FOR DECISION [2001] AATA 740
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V00/1072
VETERANS' APPEALS DIVISION )
Re JOHN L BOXER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mrs Joan Dwyer, Senior Member Assoc. Professor John Maynard, Member
Date7 August 2001
PlaceMelbourne
Decision 1. The Tribunal affirms the decision under review which decided that lumbar spondylosis is not a war-caused disease. 2. By consent the Tribunal decides: (i) that chronic conjunctivitis is a war-caused disease with effect from 19 August 1998. (ii) that Mr Boxer is entitled to pension at 100% of the general rate from 19 August 1998 in respect of chronic conjunctivitis and the following previously accepted war-caused diseases: sinusitis chronic solar skin damage to an unspecified site or sites myopia chronic bronchitis and emphysema acquired cataracts in both eyes tear film insufficiency (dry eye syndrome) bilateral sensorineural hearing loss bilateral tinnitus
(Sgd) Joan Dwyer
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether lumbar spondylosis is a war-caused disease – eligible service – requirement in SoP of "trauma to the lumbar spine" – veteran lodged a statement describing trauma to the lumbar spine leading to hospitalisation during service – service medical records not consistent with veteran's recollection – Tribunal not reasonably satisfied that veteran suffered "trauma to the lumbar spine" during service – entitlement decision concerning lumbar spondylosis affirmed – assessment varied by consent
Veterans' Entitlements Act 1986 s 9, 120(4), 196B(3)
Statement of Principles Instrument No. 28 of 1999
Statement of Principles Instrument No. 131 of 1996
REASONS FOR DECISION
7 August 2001 Mrs Joan Dwyer, Senior Member Assoc. Professor John Maynard, Member
The parties agreed certain matters prior to the commencement of this hearing. The sole remaining issue was whether Mr Boxer's lumbar spondylosis is a war-caused disease, as that term is defined in s 9 of the Veterans Entitlements Act 1986 ("the Act").
Mr De Marchi, with Mr Stevenson, appeared for the applicant. Mr Herman and Mr Purcell appeared for the Repatriation Commission. The Tribunal had before it the documents ("the T documents") lodged pursuant to s 37 of the Administrative Appeals Tribunal Act 1975, and also the exhibits tendered during the hearing. Mr Boxer gave evidence. Evidence on his behalf was also given by Mr Billett, an orthopaedic surgeon. The respondent called Mr Scott, a surgeon.
It was common ground that Mr Boxer had eligible service from 9 August 1940 to 15 November 1945. The standard of proof is thus that of reasonable satisfaction as provided for in s 120(4) of the Act. Because the claim was lodged on 19 November 1998, the Tribunal can be reasonably satisfied that the disease of lumbar spondylosis was war-caused, only if the material raises a connection between the disease and Mr Boxer's service, and there is in force a Statement of Principles ("SoP") determined under s 196B(3) of the Act, that upholds the contention that the disease is, on the balance of probabilities, connected with the circumstances of Mr Boxer's service.
The relevant SoP for lumbar spondylosis is Instrument No. 28 of 1999. The factor on which Mr De Marchi relied is factor (g) in paragraph 5. That reads as follows:
The factors that must exist before it can be said that, on the balance of probabilities, lumbar spondylosis or death from lumbar spondylosis is connected with the circumstances of a person's relevant service, are:
(g)suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis.
The term "Trauma to the lumbar spine" is defined in paragraph 8 of SoP Instrument No. 28 of 1999 as follows:
"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 10 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
(c) surgery to the lumbar spine.The Tribunal received in evidence, as exhibit A1, a document headed "Trauma Statement of John Lyle Boxer". It read as follows:
I, John Lyle Boxer of 27 Grange Street West Preston, state as follows:
1.I served in the Australian Army from 9 September 1940, to 15 November 1945. I have rendered eligible war service;
2.During my service I was required to do welding work which consisted of modifying tanks, repairing heavy trucks and bren gun carriers. I also worked on modifying tanks, to stop small arms from penetrating through turret;
3.On one of these occasions when I was performing some heavy lifting work, I felt pain in my back and right hip. I was unable to straighten up. I was unable to continue with my work, and I was unable to march, I reported this incident to the RAP and was admitted to 2/6 AGH. I was admitted for about one week during April 1944.
4.X-rays were performed, and I received "needle" treatment;
5.The pain in my back and right hip eventually subsided, but I have had problems with my lower back ever since. The pain in my back was aggravated after service when lifting heavy weights or when bending in awkward positions;
6.The pain in my lower back has continued to worsen over the years.
If we accepted that statement as an accurate recollection of events during Mr Boxer's service it would probably be sufficient to satisfy the requirements of the SoP. However, the other evidence before us, from the service medical records and from the medical experts who had examined Mr Boxer in connection with his claim, presents a different picture of the onset of his back problems.
First, the service medical records show that Mr Boxer was referred for medical treatment at 2/6 Australian General Hospital ("AGH"), on or about 29 April 1944. They show that he was admitted for injection in the area of his right hip scar, which pre-dated his Army service, from 2 to 8 May 1944. But there is no record of him giving a history of back pain or of difficulty lifting or of being unable to straighten up at the time of that hospital admission.
The records are set out in the T documents at pages 9, 11, 10, 12 and also at R4. The record for 29 April 1944, which is a record of 2/6 AGH, says:
C/o pain in R. hip in region of old injury 6 yrs ago (coach-bolt which was in Rt hip pocket was driven into his leg when he was bumped by a car). Pain was intermittent at first, but lately (3 wks or so) has been continuous. Worst on marching. Wakes him at night sometimes. OE Circular scar over trochanter. OE small area on R. greater trochanter is very tender & pain radiates down thigh when pressure is applied here. No abnormality palpable. For x-ray.
1/5/44 Report: No evidence of old or recent bone lesion, or of F.B. [foreign body]At T docs p11, which is a consultation report, there is a clinical note:
C/o pain in rt hip 3/52 in spite of . . . and massage etc. Slight injury 6 yrs ago in region greater trochanter. OE Tender in region of trochanter otherwise NAD
The document requested a surgeon examination and there is a report from a Dr Sword who seems to be the surgeon:
I am having this patient's hip X-rayed. In the meantime I think he should be on light duty (no marching)
That document says "report over". The report over is probably that at T docs p12:
O.E. Small area on R greater trochanter is very tender, and pain radiates down thigh when pressure is applied here. No abnormality palpable. For X-ray.
T docs p12 includes an X-ray report of 1 May 1954:
No evidence of old or recent bone lesion, or of F.B. Recommendation: Admit 2/6 AGH for injection treatment.
There is also in the medical records, at T docs p10, a request for a specialist report from Dr Sword. He wrote:
Struck on R. hip 6 yrs ago & a coach-bolt was driven into region of gt. trochanter.
Now very tender, & getting worse.
? bony lesion.
A Major Sullivan reported:
No evidence of old or recent bone lesion or of F.B. [foreign body]
Another document before the Tribunal, (exhibit R4), is a hospital or sick list record card. The clinical notes, so far as relevant, refer to a disease or injury of "fibrositis right thigh". It refers to treatment of "injection, painful scars, 5 May '44" The condition on admission is stated to be, "6 years ago, bike accident, right hip penetrated by 2 screws. 1940 Enlisted. 1941. Began to feel ache in right upper leg. Since then, felt on and off until now. Longest period of freedom, 1 month". Then there is reference to a history including "made worse by change of weather and by marching. Also occasional aches in other muscles". On examination, under the heading "Musculature" the record states:
This patient states that pressure on scar on right thigh produces pain. Also, many other spots on right cervical area and right scapular area are stated to be tender on pressure.
There is a reference to a blood sedimentation rate test and injection to take place and some medication to be administered five times daily. The record notes on 5 May, that the painful scar was injected with 20 cc of 1 per cent Ethocaine and the pain was relieved. On 6 May 1944 the record notes:
Pain down thigh relieved. Condition on discharge improved. X-ray Hips "N.A.D."
Thus the pain, which was the reason for hospitalisation, is reported as having been relieved and the patient improved by injection of local anaesthetic into the scar. The contemporaneous Army medical records make no mention of any incident which could be regarded as satisfying the SoP definition of "trauma to the lumbar spine", immediately prior to Mr Boxer's hospitalisation. The pain is described as having been present on and off since 1941 (R4) and as being aggravated by marching and by change of weather (R4 and T docs p9).
From the medical records it seems that there was no complaint of back pain on lifting or of difficulty straightening during service. Mr Boxer's complaints seem to have been of pain in the right hip and right thigh. That pain was diagnosed as being related to a scar on the right buttock, dating back to a fall from a bicycle in 1936 or 1938. Pressure on the scar was reported by Mr Boxer to produce pain, and that pain was reported as having been relieved by injection of local anaesthetic into the scar.
Mr Billett was asked by Mr De Marchi whether he accepted the diagnosis of the pain being related to the scar on the right buttock. Without examination of the hospital records, Mr Billett said he did not. He acknowledged that fibrositis was a term which was used in the 1940's, but he said it is no longer used. He also said that he did not accept that the pain in 1944 came from an old scar. He thought it was more likely to be referred from the back to the right hip.
However, Mr Billett did acknowledge that diagnosis depends on symptomatology. The symptomatology reported in 1944, so far as the records reveal, did not refer to back pain, and it appears that the treating doctor, and the treating surgeon to whom Mr Boxer was referred, both obtained a history of pain in the area of the right hip. The surgeon did not ask to have the lumbar spine X-rayed. He referred Mr Boxer for X-ray of the right hip only, and after the scar on the buttock was injected, the pain apparently improved.
Mr Scott said that it appears from the service medical records (R4 and T docs p9) that examination by the doctors in April and May 1944 did not elicit any signs or symptoms of back pain. He said that injection of anaesthetic into the buttock would have no effect on lumbar pain. Injection would only be effective for lumbar pain if an epidural was injected into the discogenic lesion at the spine. That is not what is documented in the service medical records.
Mr Scott said that there is nothing in the records of the examinations of 2 May 1944 or 29 April 1944 to suggest that Mr Boxer had either a discogenic lesion in his back, or any lumbar pain. Further, Mr Boxer did not describe any incident similar to that described in his trauma statement, to any of the four medical experts he saw in connection with his claim to have his back condition accepted as war-caused.
The first medical expert Mr Boxer saw was Mr McArthur on 28 January 2000, (T docs T15). The history Mr McArthur obtained was that in 1944 Mr Boxer was admitted to 2/6 AGH with pain in the region of his right hip. Mr Boxer did not give Mr McArthur a history of pain when lifting heavy objects or of inability to straighten up.
When Mr Boxer saw Mr Billett on 16 November 2000, (exhibit A2) he told him that in approximately 1942, "on a spontaneous basis, without preceding trauma", he experienced pain in his lower lumbar region, but there was no radiating pain down his legs. Mr Billett, in cross-examination, said that if Mr Boxer had told him that the pain was brought on by bending, twisting or lifting, he would not have written that it occurred "on a spontaneous basis without preceding trauma".
Mr Scott saw Mr Boxer on 7 December 2000, (exhibit R3). The history he obtained is at page 2 of his report:
Mr Boxer stated that in 1938 he was bumped by a car and knocked off his bicycle and sustained a laceration to his right hip.
No treatment was prescribed but he stated that he had complained of ongoing discomfort in this area.
He joined the Australian Regular Army in 1940 and served until 15 November 1945 working as a welder and mechanic.
He did state that his job involved welding work, modifying tanks and trucks and Bren gun carriers.
He was admitted to 2/6 Australian General Hospital in Queensland on 2 May 1944 and remained there until 8 May 1944 for worsening of his right hip pain.
Mr Scott also wrote in his report (R3 p3):
He indicates to direct questioning, that backache became apparent to him in the early 1980's, which he believes was due to the heavy work required of him particularly in the Electric Light Department and most particularly, while having to weld and make up metal poles.
The work to which Mr Scott was referring was work which Mr Boxer was performing with Northcote City Council in the 1980's. Mr Scott also commented, in his opinion (R3 p6):
It is important to note that the claimant did not indicate that he injured his back while a member of the army in 1944.
Mr Boxer saw a psychiatrist, Dr Lewis, in relation to another claim, on 3 April 2001 (T docs pp114–128). Dr Lewis wrote of Mr Boxer's Army service (T docs pp116–117):
John said that the only injury that he received was in Seymour in about 1941 when he was lifting up a can of acetylene, which looked like a milk can.
He then went on to say:
While working after the war he was operated on for bilateral inguinal hernias in the late 1950's which was successful on the right side. The left side broke up again and had to be redone. Now it plays up. John did suggest that the hernias might have been due to strain due to heavy lifting when in the Army. It was under workers' compensation. He said in the Army he was doing a lot of heavy lifting. He never complained about it and neither was he seen by a doctor.
Mr Herman and the Tribunal questioned Mr Boxer about the difference in the histories he apparently gave the medical experts, and the history set out in his trauma statement. Mr De Marchi objected to the Tribunal's questioning on this issue and Mr Boxer became confused. However, when Mr Boxer eventually answered the Tribunal's question he seemed to say that he tried to honestly answer what was asked of him by the doctors. When Mr De Marchi read the trauma statement out to Mr Boxer, point by point, he also said it was correct.
Both Mr Boxer and Mr De Marchi said that he has difficulty remembering things, and difficulty concentrating because of his age and his worry about his wife's ill health. Because of the conflicting accounts of the onset of back pain, we are not reasonably satisfied that any incident occurred as described in the trauma statement.
We consider that the most reliable material before us, as to the problems which lead to Mr Boxer's hospital admission in 1944 is that contained in the 2/6 AGH records (exhibit R4 and T docs pp9–12). Those records do not support Mr Boxer's recollection that it was back pain from heavy lifting and an inability to straighten up which lead to his attendance at the regimental aid post and to his subsequent hospital admission. They refer to pain in the area of the right hip and thigh, and do not relate that pain to lifting at all. We do not find that Mr Boxer suffered trauma to the lumbar spine during service, as required for factor 5(g) of Instrument No. 28 of 1999. Thus, we are not reasonably satisfied that Mr Boxer's lumbar spondylosis is a war-caused disease.
During the hearing there was some mention of the possible application of Instrument No. 131 of 1996 which deals with intervertebral disc prolapse. That SoP was not relied upon in the applicant's Statement of Facts and Contentions. Mr Herman pointed out that the relevant factor, 5(a), requires "suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse".
There is conflict between Mr Scott and Mr McArthur on the one hand, and Mr Billett on the other hand, as to whether Mr Boxer has a prolapse of an intervertebral disc even now. No such prolapse is indicated on recent X-rays, as was pointed out by Mr McArthur and Mr Scott in their reports. Mr Billett felt that there were clinical indications of such a prolapse. However, there is certainly no history of the clinical onset of a disc prolapse during service. There is no medical record of lumbar back problems during service. Thus we do not find that intervertebral disc prolapse is a war-caused injury or disease.
The Tribunal will affirm the decision under review which decided that lumbar spondylosis was not a war-caused disease. By consent the Tribunal will decide:
(i)that chronic conjunctivitis is a war-caused disease;
(ii)that Mr Boxer is entitled to pension at 100 per cent of the general rate from 19 August 1998, in respect of chronic conjunctivitis and the following previously accepted war-caused diseases:
sinusitis
chronic solar skin damage to an unspecified site or sites
myopia
chronic bronchitis and emphysema
acquired cataracts in both eyes
tear film insufficiency (dry eye syndrome)
bilateral sensorineural hearing loss
bilateral tinnitus
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs Joan Dwyer, Senior Member and Assoc. Professor John Maynard, Member
Signed: Grace Carney
Personal AssistantDate/s of Hearing 7 August 2001
Date of Decision 7 August 2001
Counsel for the Applicant Nil
Solicitor for the Applicant Mr D De Marchi
Counsel for the Respondent Nil
Solicitor for the Respondent Nil
Departmental Advocate Mr K Herman
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