Challes and Repatriation Commission

[2011] AATA 151

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 151

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2696

VETERANS' APPEALS  DIVISION		)
Re		RAY CHALLES

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date8 March 2011

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

..............................................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – eligible defence service – claim for cervical spondylosis – consideration of Statement of Principles – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 70, 196B

REASONS FOR DECISION

8 March 2011 Dr P McDermott, RFD, Senior Member  

INTRODUCTION

1.      Mr Raymond Challes (the applicant) served with the Royal Australian Air Force from 1970 until 1976. I have to consider whether his cervical spondylosis condition is caused by an injury that he sustained in his service with the Royal Australian Air Force. I have to essentially decide whether the applicant sustained a trauma to the cervical spine during an incident in 1972. If he did, then under the relevant Statement of Principles (SoP), it can be said that, on the balance of probabilities, that degenerative changes to his cervical spine could have followed later in his life. Having reviewed all of the evidence I consider that there is no service connection. I give my reasons.

THE INCIDENT

2.      The applicant stated that on 14 December 1972, while on service in Darwin, he was reversing a rations truck when his foot slipped off of the brake pedal because of what he thought was a cabbage leaf. His truck then hit the reversing bay heavily.

3.      A former Warrant Officer, Mr T Clunes, was present at the site at the time of the incident. In his letter of 12 March 2009, he confirmed that no accident report was lodged as the truck appeared to be undamaged. The applicant in his evidence stated that the only damage to the truck was to some paintwork on the tail gate.

4.      One matter to investigate is whether the applicant was injured at the time of the incident. In a letter of 21 March 2009, he remarked: “The sudden stop severely jarred my neck”. The tenor of the evidence of the applicant was that he had “a sore neck” and that the pain persisted for “two to three weeks”. The applicant did not seek treatment from a medical officer. The reason that he gave was that he did not want to lose his job driving the rations truck because there were some “perks” associated with the duties such as having meals that were superior to those enjoyed by officers. The applicant also stated that he was capable of performing his duties after the incident.

STATEMENT OF PRINCIPLES

5. Causation is provided for under s 70 and s 196B of the Veterans’ Entitlements Act 1986 (the Act). The applicant can demonstrate the necessary connection with service if there was a “trauma to the cervical spine”, as defined in the applicable SoP that arose out of or was attributable to service; or was contributed to in a material degree by or was aggravated by service.

6.      The applicable SoP concerning Cervical Spondylosis is Instrument No. 34 of 2005 as amended. 

7.      The relevant factor of the SoP that is in contention is factor 6(f), which states that cervical spondylosis, more probably than not, is connected with the circumstances of a person’s service. That factor refers to where a person had “a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis”.

ONSET OF CERVICAL SPONDYLOSIS

8.      It is not in dispute whether the applicant has cervical spondylosis. One issue to be resolved is whether the clinical onset of the condition was within 25 years of the 1972 incident. I accept the submission of Ms Smith, who appeared for the applicant, that this condition is satisfied in this case. This is because in evidence before me is a report of Dr A M Morrison, radiologist, which was made on 25 November 1996. In that report Dr Morrison reports that ‘there is moderate disc degeneration between C5-6 and mild disc degeneration between C6 and C7. There is accompanying sponylotic change’.[1]

[1] Exhibit C.

TRAUMA OF THE CERVICAL SPINE

9.      What is in issue is whether the applicant sustained a “trauma to the cervical spine” within the meaning of that expression in the SoP.

10.     The expression “trauma to the cervical spine” is defined in clause 9 of the SoP as being:

a discrete 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.

11.     I am required to determine whether the applicant sustained a “trauma to the cervical spine” as that expression is defined in the SoP.

12.     I need to be reasonably satisfied that within 24 hours after the injury, the applicant developed signs and symptoms of pain and tenderness, and either altered mobility or range of movement of the cervical spine. These signs and symptoms must last for at least 10 days – except if the medical interventions mentioned in the definition have occurred. There is no evidence before me that any of those medical interventions treated the cervical spine after the incident.

13.     I accept the evidence of the applicant that the incident certainly occurred. Indeed, Mr Clunes in his unchallenged evidence has confirmed that the incident occurred. However, Mr Clunes has also stated the applicant “appeared to be uninjured”.[2]

[2] T documents 4, Folios 5.

14.     I am reasonably satisfied that within 24 hours after the injury, the applicant developed signs and symptoms of pain and tenderness. The applicant stated that after the incident he had a sore neck.

15.     I am not reasonably satisfied that after the incident the applicant had either altered mobility or range of movement of the cervical spine. The applicant stated that he was able to continue his driving duties and use reversing mirrors.

16.     I am also not reasonably satisfied that after the incident the applicant had signs and symptoms that lasted for at least 10 days. This 10 day period is an important requirement and, as I have found, there were none of the medical interventions described in the definition. It is true that the applicant in his evidence has stated that he had signs and symptoms that lasted for two to three weeks, however, in his letter of 21 March 2009 he stated that he has “a sore neck for a week or two after the incident”. Having regard to this inconsistency I cannot be reasonably satisfied that after the incident the applicant had signs and symptoms that lasted for at least 10 days.

17.     I have reviewed the service medical records in evidence before me. The respondent referred to the fact that the applicant did not seek treatment for his neck after the incident, although he did seek treatment for various other ailments. I do not regard this as significant. The presence of contemporaneous medical records can certainly assist an applicant,[3] but such records are not an essential prerequisite to a claim. My decision is based on the fact that after reviewing all of the evidence before me I am not reasonably satisfied that the applicant had such an injury as referred to in the SoP.

[3] Kitson and Repatriation Commission [2009] AAT 656 at [17].

18.     Accordingly I conclude that the applicant does not meet the requirement of having a trauma to the cervical spine and that he does not satisfy factor 6(f) of the SoP for cervical spondylosis.

DECISION

19.     I affirm the decision under review.

I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member

Signed: .....................................................................................
  Associate

Date/s of Hearing  23 February 2011
Date of Decision  8 March 2010
Applicant appeared by telephone   
Applicant was represented by Helena Smith, advocate
Respondent was represented by Bruce Williams, departmental advocate