Carmichael and Repatriation Commission
[2011] AATA 523
•28 July 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 523
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/3641
VETERANS’ APPEALS DIVISION ) Re Donald Carmichael Applicant
And
Repatriation Commission
Respondent
DECISION
Tribunal Deputy President J W Constance Date28 July 2011
PlaceMelbourne
Decision 1. The decision under review, being the decision of the Repatriation Commission made 27 October 2008, is set aside.
2. In substitution for the decision set aside it is decided that the condition of cervical spondylosis suffered by Mr Carmichael is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth).
…...(sgd J W Constance)..........................
Deputy President
VETERANS’ AFFAIRS – Veterans’ Entitlements Act 1986 (Cth) – whether cervical spondylosis was defence-caused – Statement of Principles no. 34 of 2005 – date of clinical onset – Re Robertson and Repatriation Commission (1998) 50 ALD 668 – decision under review set aside.
Lees v Repatriation Commission [2002] FCAFC 398
Re Robertson and Repatriation Commission (1998) 50 ALD 668Veterans’ Entitlements Act 1986 (Cth) ss 70, 120(4) and 120B(3)
REASONS FOR DECISION
28 July 2011 Deputy President J W Constance
INTRODUCTION
1. Mr Carmichael is seeking an increase in the pension payable to him under the Veterans’ Entitlements Act 1986 (Cth). He claims that the cervical spondylosis from which he suffers was caused by his service as a member of the Royal Australian Air Force in 1975.
2. The Veterans Review Board has affirmed a decision of the Repatriation Commission made 27 October 2008 that Mr Carmichael’s condition was not caused by his service. Mr Carmichael has applied to the Tribunal for a review of the Commission’s decision.
3. For the reasons which follow I have decided that the condition was caused by Mr Carmichael’s service as a member of the RAAF. The decision under review will be set aside.
EVIDENCE AND FINDINGS OF FACT
4. Unless otherwise stated I make the following findings of fact based on the evidence of Mr Carmichael. I am satisfied that Mr Carmichael was an honest witness who gave his evidence to the best of his recollection. I have relied also on his written statement.[1]
[1] Exhibit A1.
5. I am reasonably satisfied of the existence of the facts found.
6. Mr Carmichael was born in 1954. He served in the RAAF from 4 January 1971 until 17 June 1993.
7. On 11 April 1975 Mr Carmichael fell approximately three meters from the wing of an aircraft onto a concrete tarmac. He landed on his feet and fell backwards onto his buttocks. As he hit the tarmac his head moved rapidly backwards. His head did not hit the tarmac as he put his arms back and stopped himself falling any further. This caused a whiplash movement of his head.
8. After some minutes Mr Carmichael stood up and, with the assistance of others, walked to a nearby duty crew hut. As he was walking he noticed that his neck was stiff and painful when he tried to move it. At the same time he felt pain in his abdomen and chest. The pain in his chest was the most severe.
9. There was no medical assistance available at the time. Mr Carmichael rested in the hut for about an hour and then drove himself to his home. That night he felt pain in his neck and back when moving, deep breathing and coughing. The next day he rested in bed. He felt severe pain in his upper abdomen and stiffness in his neck. His neck was painful when he moved it from side to side and when he twisted it from left to right.
10. On 13 April 1975 Mr Carmichael was admitted to the Prescott and Northern Community Hospital. At the time his abdominal pain was severe and his neck was stiff and painful on movement. Mr Carmichael told the doctors who examined him that his neck was painful. It appeared to him that the doctors concentrated on his abdominal pain as this was the more severe.
11. Late on 13 April 1975 Mr Carmichael was transferred to the RAAF Base Hospital at Laverton. He remained in this hospital until 16 May 1975.
12. Mr Carmichael was first examined by a doctor at the Base Hospital on the day after his admission. He told the doctor that his neck was painful and sore to move. On instructions from the doctor Mr Carmichael was fitted with a neck brace on that day or the following day. He was given medication for pain and underwent extensive testing to determine whether he had internal injuries.
13. Over a period of approximately two weeks the pain in Mr Carmichael’s neck began to subside. About two weeks after the accident he ceased wearing the neck brace. At that time he continued to have a restricted range of movement in his neck.
14. Since the accident Mr Carmichael has had numerous intermittent instances of neck pain. The pain has radiated into the left side of his neck. He has been treated with physiotherapy, massage, medication, facet joint injections and by the wearing of a brace. Prior to his fall Mr Carmichael had not experienced any problems with his neck.
15. There is a notation in Mr Carmichael’s medical records that on 12 July 1977 he complained of a ‘chronic stiff painful neck”. [2] His neck was manipulated and he received physiotherapy.
[2] Exhibit R4 p-84.
16. From 1977 onwards a number of x-rays and scans of Mr Carmichael’s cervical spine were taken. The relevant imaging is referred to in the report of Mr Huffam to which I shall refer later in these reasons.
17. Following an x-ray in July 1989 it was reported that “minor degenerative changes are demonstrated at C5/C6 with disc space narrowing and anterior osteophyte formation at this level.” [3]
[3] Exhibit R4 p-31.
18. Some of the treatment received by Mr Carmichael related to a specific bout of neck pain as a result of a sporting injury suffered in 1984. From that time onwards the pain in his neck worsened.
Mr Dyson
19. Mr Dyson was a member of the Royal Australian Air Force in 1975. He gave evidence by telephone. I am satisfied that Mr Dyson was an honest witness and I make the findings of fact set out in the following two paragraphs based on his evidence.
20. Mr Dyson saw Mr Carmichael fall from the wing of the aircraft and assisted him immediately after. He observed that he fell feet first and then onto his hands.
21. Mr Dyson visited Mr Carmichael in the Base Hospital on a few occasions. On his first visit he observed that Mr Carmichael was wearing a neck brace and that he was still wearing the brace on each subsequent visit.
Mr Simmons
22. Mr Simmons gave evidence by telephone and provided a statement.[4] I am satisfied that Mr Simmons was an honest witness and I make the findings of fact set out in the following paragraph based on his evidence.
[4] Exhibit A4.
23. Mr Simmons was a member of the Air Force in 1975 and a close friend of Mr Carmichael. He visited Mr Carmichael on approximately three occasions whilst he was in the Base Hospital and observed that he was wearing a neck brace at the time of each visit.
Dr Stephen Hall, Associate Professor of Medicine
24. Dr Hall is a physician specialising in rheumatology. He provided reports dated 31 January 2006[5] and 1 February 2011[6] and gave evidence.
[5] Exhibit R1.
[6] Exhibit R2.
25. Dr Hall examined Mr Carmichael on 12 December 2005 at the request of the Commission.
26. In his report of 31 January 2006 Dr Hall stated:
At the age of 51 Mr Carmichael clearly has well established cervical spondylosis.
His episode of 1975 would clearly appear to have been an episode of thoracic pain with no reference to any cervical component of pain at that stage.
Subsequent presentations do refer to cervical pain of several years duration.
However, there is no clear relationship made between the circumstances of trauma of 1975 as described and his current complaint of cervical pain.
When he gave evidence Dr Hall said that when he wrote this report he did not take into account that Mr Carmichael was fitted with a neck brace whilst in hospital.
27. When asked as to the difference between the radiologists’ reports of 1977 and 1983, Dr Hall said that if there was narrowing in 1977 it would still have been present in 1983. He said that the different reports may be a result of the manner in which the respective films were taken or a matter of genuine difference in interpretation.
28. Dr Hall was asked as to the difference between hard tissue and soft tissue injuries. He replied as follows:
We have bone and spine, that would be considered a hard tissue; and we have muscles and ligaments and that would be considered a soft tissue.
Q. Now would a soft tissue injury at this time have resulted in cervical spondylosis?
A. I do not believe so. It is not an accepted sequelae of a soft tissue injury.
…
If you’ve got a muscular problem it will not be a cause of an arthritic or degenerative problem in the bones and the discs and the joints.
…
What I am suggesting was that there was no report of that I could find to substantiate that there has been a neck related complaint in the documentation I received. There was no investigation of that at the time when he was in hospital over a prolonged period of time and had a number of investigations. The idea that there might have been a soft tissue injury and that, in some way, later on resulted in cervical spondylosis, for me, is fanciful. [7]
[7] Transcript 23.3.11 p-72.
29. Dr Hall also gave the following evidence:
Well, a muscle problem doesn’t cause a problem in the disc, so you’d have to postulate that there was an acute disc injury or that there was some bony injury in the neck. Now, that would give you, at the time, a lot of pain and restriction of movement of the neck.
Q. But if you had a lot of pain at the time and restriction in movement?
A. Yes.
If one accepts that then that can be the precipitant in trauma which could then lead on to cervical spondylosis in later years.
Q. But that would mean, whether it has been shown on any tests or not, there was an injury either to disc or bone?
A. Yes.[8]
[8] Transcript 23.3.11 p-73.
30. Dr Hall said that, in his opinion, if it could be established that the injury to the neck was confined to the muscles and ligaments “it would be impossible to say…with any intellectual integrity, with whatever investigations we have, that there had not been some injury to disc and joint if the trauma met that definition of trauma.” [9] He said also that it is very difficult, at times, to separate soft tissue injury from bony or disc injury and that “if there had been any documentation in the hospital notes that there had been a neck brace applied I would have been comfortable in saying it’s – it meets the statement of principles…” [10]
[9] Transcript 23.3.11 p-78.
[10] Transcript 23.3.11 pp-78 & 79.
Report of Mr Huffam, Consultant Orthopaedic Surgeon
31. Mr Huffam examined Mr Carmichael for the purpose of preparing a report for these proceedings.
32. On 6 October 2010 Mr Huffam reported:
Considering the information provided to me by Mr Carmichael and the records made available to me I consider that there is sufficient evidence to state that Mr Carmichael’s neck problem of cervical spondylosis is completely compatible with having been caused by the injury of 11.4.95 [sic] as described.
…
Admittedly no x-rays appear to have been taken until 24.4.80. These x-rays and also x-rays of 24.6.83 are reported as demonstrating no abnormalities although degenerative changes are noted on x-ray on 19.7.89, the patient then being aged 34 which is relatively young for the development of such changes to be noted on an ordinary x-ray. Increasing degenerative changes were then noted on CT and MRI scannings up to 9.8.2001. It must be realised that CT scanning is more sensitive than plain x-ray and MRI scanning is very much more sensitive to demonstrate degenerative changes than plain x-ray. [11]
[11] Exhibit A3.
33. It should be noted that Mr Carmichael’s medical records show that an x-ray of his cervical spine was taken on 12 July 1977. It was reported that the vertebrae and disc appeared normal.[12]
[12] Exhibit R4 p-80.
LEGISLATION
34. Section 70 of the Act provides for the payment of a pension to a member of the Defence Forces if the member is incapacitated from a defence-caused injury or disease.
35. Subsection 120(4) requires the Tribunal to decide the issues relating to the entitlement to a pension under section 70 to its reasonable satisfaction.
36. Subsection 120B(3) provides in part:
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
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12);
…
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
37. The relevant Statement of Principles is that concerning cervical spondylosis being no. 34 of 2005 as amended by no. 77 of 2008.
Clause 3(b) provides:
For the purposes of this Statement of Principles, “cervical spondylosis” means degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis.
Clause 5 provides:
Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Clause 6(f) provides in part:
The factor that must exist before it can be said that, on the balance of probabilities, cervical spondylosis or death from cervical spondylosis is connected with the circumstances of a person’s relevant service is:
(f) having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis.
“Trauma to the cervical spine” is defined in the Statement to mean:
a discrete injury, including G force-induced injury, to the cervical spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness and either altered mobility or range of movement of the cervical spine. These 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 cervical spine has occurred and that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.
ISSUES FOR DETERMINATION
38. The following issues arise for determination:
1)Does Mr Carmichael suffer from cervical spondylosis?
2)If so, what was the date of the clinical onset of the disease?
3)If a date of clinical onset is determined, did Mr Carmichael have a trauma to the cervical spine within the 25 years before the clinical onset of cervical spondylosis?
39. The Commission concedes that Mr Carmichael’s service from 7 December 1972 until his discharge on 17 June 1993 constitutes eligible defence service under the Act. I am satisfied that this is a proper concession.
REASONING
Does Mr Carmichael suffer from cervical spondylosis?
40. To be satisfied that Mr Carmichael suffers from the condition to which the Statement of Principles relates I must be satisfied that he suffers from the condition as defined.
41. On the basis of the x-ray report dated 19 July 1989[13] and the CT scan report dated 26 February 1991[14] I am satisfied that Mr Carmichael suffers from degenerative changes at C5/C6 and C3/C4 levels affecting the discs. On the basis of the evidence of Mr Carmichael and the clinical note of 12 July 1977[15] I am satisfied that Mr Carmichael has suffered, and continues to suffer, local pain and stiffness in his neck. On the basis of the evidence of Dr Hall and the report of Mr Huffam I am satisfied that the degenerative changes have caused the pain and stiffness.
[13] Exhibit R4 p-31.
[14] Exhibit R4 p-19.
[15] Exhibit R4 p-84.
42. I am satisfied on the basis of the evidence referred to above that Mr Carmichael suffers from cervical spondylosis which meets the definition of that condition in the Statement of Principles no. 34 of 2005 as amended.
What was the date of the clinical onset of the cervical spondylosis?
43. The meaning of “clinical onset” as used in the Statement of Principles was considered by the Tribunal in Re Robertson and Repatriation Commission:[16]
“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...”
The above approach was approved by the Full Court of the Federal Court in Lees v Repatriation Commission.[17]
[16] (1998) 50 ALD 668.
[17] [2002] FCAFC 398 at [16].
44. On the basis of the report of Mr Huffam[18] I am satisfied that the CT scan performed in February 1991 showed the clinical onset of the disease by that time.
Did Mr Carmichael have a trauma to the cervical spine within the 25 years before the clinical onset of cervical spondylosis?
[18] Exhibit A3.
45. The major issue in dispute at the hearing of this application was whether Mr Carmichael suffered a trauma to the cervical spine within the definition set out in the Statement of Principles.
46. It was argued on behalf of the Commission that as the records relating to Mr Carmichael’s hospitalisation after the fall and his clinical notes of his treatment after discharge from the hospital, make no reference to an injury to his neck, I could not be reasonably satisfied that he had suffered a discrete injury to his spine when he fell. I agree with Counsel for the Commission that it is most unusual that the hospital records make no reference to the complaints of neck pain which Mr Carmichael says he made on a number of occasions and no reference to his having been fitted with a neck brace. However on the basis of the evidence of Mr Carmichael I am satisfied that he suffered pain and stiffness in his neck immediately after the accident and that he has continued to suffer similar pain and stiffness intermittently ever since. I am satisfied also that, while he was hospitalised, Mr Carmichael was treated for an injury to his neck by the fitting of a neck brace. I have reached this conclusion on the basis of the evidence of Mr Carmichael, Mr Dyson and Mr Simmons.
47. Initially Mr Huffam and Dr Hall disagreed as to whether the injury suffered by Mr Carmichael was an injury to the cervical spine. However when questioned Dr Hall stated that it was not proper to distinguish between a soft tissue injury to the neck involving ligaments and muscle and injury to the spine involving the discs and vertebrae. On the basis of this evidence and the evidence contained in the report of Mr Huffam I am satisfied that the injuries suffered by Mr Carmichael when he fell included a discrete injury to the cervical spine. The evidence of Dr Hall was very clear and concise and I accept the evidence he gave when he was informed of the circumstances of the incident.
48. On the basis of the evidence of Mr Carmichael I am satisfied that he developed signs of pain and tenderness in his neck and that there was an altered range of movement of his cervical spine. I am satisfied also that these symptoms developed within 24 hours of his falling and that they lasted at least 10 days from their onset.
49. On the basis of the evidence referred to above I am satisfied that on 11 April 1975 Mr Carmichael suffered trauma to his cervical spine in accordance with the definition set out in the Statement of Principles and that this trauma occurred when he fell from the wing of an aircraft.
50. For the reasons already set out I am satisfied that the trauma to his cervical spine was suffered within the 25 years before the clinical onset of the cervical spondylosis.
CONCLUSION
51. In accordance with subsection 120(4) of the Act I am reasonably satisfied that the condition of cervical spondylosis suffered by Mr Carmichael was defence‑caused.
DECISION
52. The decision under review, being the decision of the Repatriation Commission made 27 October 2008, is set aside.
53. In substitution for the decision set aside it is decided that the condition of cervical spondylosis suffered by Mr Carmichael is defence-caused within the meaning of the Veterans’ Entitlements Act 1986 (Cth).
I certify that the 53 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: ...(sgd K Peterson) ..............
K Peterson, AssociateDates of Hearing 23 March 2011 and 30 May 2011
Date of Decision 28 July 2011
For the Applicant Mr M Quinn, veterans’ advocateFor the Respondent Ms J McCulloch (23 March 2011),
departmental advocate
Mr K Rudge (30 May 2011),
departmental advocate
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