CHRISTOPHER NICHOLLS and REPATRIATION COMMISSION
[2009] AATA 925
•30 November 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 925
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5008
VETERANS' APPEALS DIVISION ) Re CHRISTOPHER NICHOLLS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr P McDermott, RFD, Senior Member Date30 November 2009
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd].................................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ Entitlements – whether lumbar spondylosis was from injury sustained during service – application of Statement of Principles – clinical onset occurred within 25 years of incident – applicant developed required signs and symptoms – no evidence of altered mobility or range of movement – no medical interventions – lumbar spondylosis was not attributable to service – decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth), ss 68, 70, 120B
Kitson and Repatriation Commission [2009] AATA 656
Harris v Repatriation Commission [2000] FCA 873
REASONS FOR DECISION
30 November 2009 Dr P McDermott, RFD, Senior Member INTRODUCTION
1. Mr Christopher Nicholls (the applicant) served with the Australian Army. He claims that his lumbar spondylosis condition is caused by an injury that he sustained during his service. I have to decide whether the applicant sustained a trauma to the lumbar spine during an incident in his defence service. I give my reasons below why I am not reasonably satisfied that the applicant sustained such a trauma.
SERVICE
2. The applicant served with the Australian Army from 16 February 1976 until 16 February 1982. I am satisfied that this service is defence service under s 68 of the Veterans’ Entitlements Act 1986 (“the Act”). This is because the applicant meets the definition in the Act of “defence service” as he has rendered continuous full-time service as a member of the defence force on or after 7 December 1972.
PRIOR DECISIONS
3. On 25 July 2007, the Repatriation Commission decided that the applicant’s lumbar spondylosis is not related to his defence service. The Veterans’ Review Board affirmed that decision on 9 July 2008.
BACKGROUND
4. The applicant has given evidence that he had no history of back pain before he served with the Australian Army. His testimony in this regard has been corroborated by Channon Malt, Corina Malt and Dean Nicholls.[1]
[1] All three witnesses have provided statements dated 5 December 2008.
5. The applicant states there are two incidents relevant to his claim.
First incident
6. The first incident occurred on 28 July 1976 when the applicant was injured whilst on exercises on the High Range Training Area in North Queensland. The applicant had attempted to jump over a dry ravine and he slipped on the ash of burnt grass. He fully abducted both his legs at 180 degrees. The applicant in his evidence remarked:
I landed on the rocks and all I remember was going down both legs just split. The left and the right, and I went down and the pain was phenomenal. It felt like – excuse the expression – it felt like my guts had come out. That’s what it felt like to have this horrendous pain in the abdomen and then I got the pain in the right side.
7. The applicant was given a pain killing injection by a medic. The applicant in his evidence stated that “at the time of the injury the first initial pain was in the bottom of your gut area and it went through me and right through me into the guts and into the right side. Then I started to get pain in the leg”. The applicant also remarked: “Then I started to experience some pain in the lumbar as though my ‑ I thought my back was split, really, the lower back. That’s just what it felt like, as though you had been split open”.
8. The applicant was evacuated by helicopter and admitted to 4 Camp Hospital at Lavarack Barracks, Townsville. He remarked that his pain was so bad that he was on the point of screaming in the ambulance. The applicant was treated for right leg pain, tenderness of the medial aspect of the right hip and a bruised groin. The evidence of the applicant is that he informed the medical staff of his back pain and of the fact that he had abducted his legs. He stated that when he was removed from the helicopter he mentioned that he felt like his “butt had split open” and that he had back pain.
9. The applicant remarked that he received treatment to his right groin and leg. He stated that there was no investigation at the hospital to see if he had injured his back. The medical officer pushed on his right side. He regarded this as a cursory examination. The applicant had remarked that he could feel pain in other areas.
10. When the applicant was admitted to hospital he was incapable of getting out of bed. He was bedridden for the first few days and so was given bed pans and sponge baths. Then, after a couple of days he was placed in a wheel chair. He was then mobilised on crutches for two to three days and then discharged.
11. The applicant was treated at the 4 Camp Hospital for a period of nine days. After his discharge, he was incapable of returning to duties. He did not do any physical training for the next two weeks. He studied whilst his unit was undertaking physical training. He did light training for two months before he resumed full training with his unit.
12. The service medical records relating to this first incident contain no mention of any back pain. The applicant stated that he complained of back pain when he was being taken from the helicopter, that he informed a nurse of his back pain, but did not complain of back pain to the treating doctor.
13. There is some inconsistency in the evidence of the applicant concerning whether he experienced lumbar pain following his return to his unit. In his statement prepared for the Veterans’ Review Board, the applicant remarked: “On future exercises or training I suffered pain or discomfort from my right groin and hip, outer thigh and down my right leg”. This statement contained no mention of lumbar pain. However, in evidence before me the applicant stated that upon his return to the unit he noticed an increase in the symptoms from his lumbar spine. The applicant stated that he would thereafter experience pain in his lumbar spine when he undertook jumping activities such as parachute training, rope climbing and ambush training when he jumped from vehicles. On these occasions, the applicant stated that he was self-medicating with Panadol that he purchased in town.
14. Channon Malt, Corina Malt and Dean Nicholls corroborated the testimony of the applicant that after the incident of 28 July 1976, he experienced back pain. Channon Malt would rub liniment into his lower back because of the pain experienced by the applicant.
Second incident
15. The second incident occurred sometime before 1979. It was in May 1979 that the applicant commenced his eight week clerical training course. The applicant has not given a precise date of the second injury. The applicant stated that he began to suffer pain and soreness in the small of his back after jumping down from the back of an army truck during an ambush exercise.
16. The tenor of Mr Nicholl’s evidence was that during the ambush exercise the truck could not stop before he alighted: the truck had to continually move to reduce the risk that it could be successfully targeted. On that occasion, he stated that he was wearing full battle dress weighing some 50 kg. When he landed, he fell on his buttocks and back pack. He then felt an immediate pain in the small of his back. He found it difficult to stand in view of the pain in his right groin and hip.
17. The applicant stated that as the exercise progressed he experienced pain not only in the right groin and hip but also in the small of his back. That pain would go down his thigh and into his leg mainly on the right side but also on the left side. Mr Nicholls has remarked that in subsequent ambush training requiring him to jump from trucks, he would experience pain that would last for two or three days, and even for as long as two weeks.
18. The applicant did not report the second incident to an army medical officer. There is therefore no reference to that incident in the service medical records. The applicant stated that to relieve back pain he self-medicated on Panadol after the incident.
Medical witnesses
19. Dr A Breck McKay is a general practitioner who is experienced in the treatment of musclo-skeletal pain. Dr McKay in his report of 23 October 2007 has opined that based on the history that he obtained on 11 October 2007, there is a “clear and continuous relationship” between the incident and his current disabilities. In cross-examination, Dr McKay was asked on what he based his conclusion that the incident caused trauma to the lumbar spine. Dr McKay based his conclusion on the X-Ray evidence concerning scarring.
20. Dr McKay in his certificate of 27 November 2007 opined that the “original injury damaged all his back, and not merely the right side as recorded by the MO in the Army at the time of injury”. Dr McKay in his report of 16 August 2009 has outlined how he believes that brain perception of pain follows the principles of chaos theory. The applicant remarked that he was able to obtain relief by having anathestic injections from Dr McKay.
21. Dr Scott Masters is a musculoskeletal practitioner. In his report of 4 November 2008, Dr Masters expresses the opinion that the condition of the applicant directly relates to his injury suffered in the army. However, Dr Masters in cross-examination stated that he gave his report on the assumption that the applicant had experienced lower back pain at the time of the first incident.
STATEMENT OF PRINCIPLES
22. The applicant can succeed if the material before me raises a connection between his disease and his service, and if a Statement of Principles (“SoP”) “upholds the contention” that the disease of the applicant is on the balance of probabilities connected with his service: this is a consequence of the operation of s 120B of the Act. The applicant can succeed if there was a “trauma to the lumbar 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.[2]
[2] Section 70 of the Act.
23. The applicable SoP concerning lumbar spondylosis is Instrument No. 38 of 2005. The relevant factor that is in contention is factor 5(f), which states that lumbar spondylosis, more probably than not, is connected with the circumstances of a person’s service where a person had “a trauma to the lumbar spine” (as defined in clause 9 of the SoP) within the 25 years before the clinical onset of lumbar spondylosis.
24. A 2008 amendment to the SoP is not material to this application.
ONSET OF LUMBAR SPONDYLOSIS
25. The terms of factor 5(f) of the SoP require me to consider whether clinical onset of the cervical spondylosis condition has occurred within 25 years of the incident.
26. The threshold matter to consider is the issue of diagnosis. In 2006, the respondent arranged for the applicant to be examined by two specialists. Dr David Douglas, a consultant occupational physician, made a report on 13 October 2006. Dr Douglas has comprehensively examined all of the medical reports. He concluded that the applicant had degenerative changes throughout his cervical, thoracic and lumbar spine but that the severity of his complaints and his apparent need to walk with the aid of Canadian crutches is far in excess of any radiological evidence of degenerative changes. Dr Douglas considered that the applicant should be referred to an orthopaedic surgeon. Dr Douglas, in his oral evidence before me, was firm in his opinion that the 1976 incident would certainly cause trauma to the muscles and ligaments of the back region but would not necessarily cause trauma to the spine unless it was evident at the time.
27. On 3 November 2006, Dr Khursandi, orthopaedic surgeon, made his report on the applicant. Dr Khursandi mentioned the history given by the applicant in which he reported that he experienced chronic backache and pain in the right lower extremity since 1976. Dr Khursandi also mentioned that an earlier CT scan showed minor degeneration at the L4/5 level. Dr Khursandi does give a diagnosis of spondylosis of the cervical spine upon which the applicant has been operated. The applicant gave evidence of experiencing a whiplash injury in a car accident. However, Dr Khursandi has not given a diagnosis for the global pain in the right lower extremity.
28. I have examined a report dated 7 July 2000 of an MRI scan which refers to a mild annualised bulge at the L3/4 disc. There is testimony from Dr McKay that this report is consistent with a degenerative process that would constitute lumbar spondylosis. In my view this evidence, without any supporting reasons, is not evidence of a clinical onset of the condition having regard to the definition of the condition in the SoP.
29. One report which suggests that there may be spondylosis of the lumbar spine is a report dated 29 March 2001 by Dr Ian Smith. An extract from the report is quoted in Dr Douglas’s report. Dr Douglas then opined: “Examination of the file reveals that Mr Nicholls has severe multilevel spondylosis of the spine probably including all three regions”. This opinion was given within 25 years of the 1976 incident. I consider that it would be fair to rule that this provisional diagnosis of Dr Smith, which has not been contradicted, satisfies the requirement. I find that there has been the clinical onset of the lumbar spondylosis condition within 25 years of the incident.
TRAUMA OF THE LUMBAR SPINE
30. What is in issue is whether the applicant sustained a “trauma to the lumbar spine” within the meaning of that expression in the SoP.
31. The expression “trauma to the lumbar spine” is defined in clause 9 of the SoP as being:
a discrete injury, including a G force-induced injury to the lumbar 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 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 cervical spine.
32. 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 lumbar spine. These signs and symptoms must last for at least ten days, except if the medical interventions mentioned in the definition have occurred. The applicant has given evidence that he satisfies this requirement of the SoP in the case of both incidents.
SIGNS AND SYMPTOMS
33. In respect of the first incident, the applicant stated that he had lumbar pain when he fell. He also stated in his evidence that he had this pain when he was bedridden for four or five days and that he still had that pain on his discharge. The service medical records do not record the applicant as having any lumbar pain.
34. In respect of the second incident, the applicant stated that he had immediate lumbar pain when he fell and that he had pain for the next two weeks. The applicant stated in his evidence that he did not report this second incident to a medical officer in the service. He stated that he went to the regimental aid post and got Panadol. I have earlier mentioned that the applicant stated that the trauma was not severe enough to stop him from carrying the 70 or 80 kg associated with his duties. He also stated that the machine gun was shared with the other soldiers. Dr Douglas, in his evidence, remarked that it was “hard to accept, that you could have such a condition that you could cover with Panadol and still be able to do those full demanding physical training”.
ALTERED MOBILITY OR RANGE OF MOVEMENT
35. The definition of “trauma to the lumbar spine” requires “symptoms and signs” of altered mobility or range of movement of the lumbar spine.[3] These signs and symptoms must last for a period of at least ten days.
[3] Harris v Repatriation Commission [2000] FCA 1687 at [35] per Whitlam, Sackville and Mansfield JJ.
36. The contemporaneous service medical documents contain no reference to any altered mobility or range of movement of the lumbar spine.[4] There is certainly no direct evidence from the applicant on this matter. Neither is there any evidence by which I would be prepared to make an inference that the applicant had any altered mobility or range of movement of the lumbar spine.
[4] Cf. Kitson and Repatriation Commission [2009] AATA 656 at [12].
37. In the case of both incidents, there is no evidence that the applicant had any altered mobility or range of movement of the lumbar spine for a period of at least ten days. In the case of the first incident, which occurred on 28 July 1976, the service medical records record that the applicant was by 1 August 2008 able to get around well with crutches and by 2 August 2009 able to mobilise without crutches.
38. The applicant, in his statement relating to the second incident, stated that he continued to participate in exercises. The applicant stated that the pain was not severe enough to stop him from carrying the 70 or 80 kg associated with his duties. He also stated that the machine gun was shared with the other soldiers.
39. I find that there is no evidence before me of any such symptoms and signs of altered mobility or range of movement of the lumbar spine for the requisite ten day period. This is an essential requirement of the definition of a “trauma to the lumbar spine” in the SoP, or to respectfully adopt the language of Finn J in Harris v Repatriation Commission,[5] it is a “precise requirement of the SoP”.[6] In the absence of evidence concerning this requirement, the claim of the applicant cannot, in my view, succeed.
[5] [2000] FCA 873.
[6] [2000] FCA 873 at [34].
MEDICAL INTERVENTIONS
40. For the sake of completeness, I should record that none of those medical interventions that are mentioned in the definition of “trauma to the lumbar spine” in clause 9 of the SoP have occurred.
41. It has been submitted on behalf of the applicant that he was “immobilised” in bed for a period of four to five days. The sole circumstance of the applicant being confined to bed for that period does not, in my view, constitute him being immobilised in the sense of which that expression is used in the SoP. There is no evidence of the “immobilisation of the lumbar spine” by “splinting or similar external agent” of the lumbar spine. There is no reference either in the evidence of the applicant or in the service medical documents to the applicant having such treatment.
42. I should also record that there is also no evidence of the injection of corticosteroids or local anaesthetics into the lumbar spine or any surgery to the lumbar spine.
G FORCE-INDUCED INJURY
43. The definition of “trauma to the lumbar spine” includes “a G force-induced injury to the lumbar spine”. Dr Masters, in his evidence concerning the 1976 incident, opined that there were references to G forces in his evidence. At the hearing, I mentioned that the definition of “G force” in clause 9 of the SoP is made with reference to the applied acceleration of an aircraft due to gravity. I find that there was no “G force-induced injury to the lumbar spine” within the meaning of the SoP.
CONCLUSION
44. I am not reasonably satisfied that the applicant had a “trauma to the lumbar spine” within the meaning of that expression in the SoP. This is because there is no evidence of any “symptoms and signs” of altered mobility or range of movement of the lumbar spine for a ten day period following either incident as required by the SoP.
DECISION
45. I affirm the decision under review.
I certify that the 45 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member
Signed: ....................[Sgd].........................................................
Research AssociateDates of Hearing 25 & 26 August 2009
Date of final submissions 11 November 2009
Date of Decision 30 November 2009
Counsel for the Applicant Peter O'Neill
Solicitor for the Applicant Files Stibbe Lawyers
Solicitor for the Respondent Martin Hanson
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