CLINTON HALL and REPATRIATION COMMISSION
[2009] AATA 758
•2 October 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 758
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/1315
VETERANS’ APPEALS DIVISION ) Re CLINTON HALL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Isenberg, Senior Member Date2 October 2009
PlaceSydney
Decision The decision under review is affirmed. ..................[sgd]............................
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – defence service – cervical spondylosis – claim condition arose from fall down ladder aboard HMAS Hawkesbury – standard of proof – reasonable satisfaction – statement of principles – not accepted that applicant suffered trauma of cervical spine as defined by relevant statement of principles – decision under review affirmed
Veterans’ Entitlements Act 1986 (Cth) ss 70, 119, 120(4), 120B
Statement of Principles – Instrument No 34 of 2005 concerning cervical spondylosis
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
2 October 2009 Ms N Isenberg, Senior Member 1. The decision under review is the decision of the Repatriation Commission dated 25 May 2007 as affirmed by the Veterans’ Review Board (“the VRB”) on 3 March 2008 that refused the claim by Mr Clinton Hall (“the veteran”) that the condition of cervical spondylosis was related to his service.
Background
2. Mr Hall has served in the Royal Australian Navy since 1985. His eligible war service (which is also operational service) was from 20 November 1990 to 19 April 1991. He has also rendered eligible defence service as defined in Part IV of the Veterans’ Entitlements Act 1986 (“the Act”) from 4 January 1985 to 19 November 1990 and 20 April 1991 to 30 June 2004.
3. Mr Hall makes no contention in relation to his operational service, but contends that his cervical spondylosis arose from a fall down a ladder aboard HMAS Hawkesbury in December 2001.
Legislative Background
4. Section 70(1) of the Act provides that, inter alia, where a member is incapacitated from a defence-caused injury, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with that Act. By section 70(5)(a), an injury suffered, by a member shall be taken to be defence-caused if the injury arose out of, or was attributable to, the member’s defence service.
5. Pursuant to section 120(4) of the Act I am required to determine this matter to my reasonable satisfaction – that is, on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.
6. The Repatriation Medical Authority (“RMA”) issues Statements of Principles (SOPs) based on sound medical-scientific evidence setting out factors relating to service, at least one of which must exist in order to establish a causal connection between the condition and service: section 196B(3). In determining the matter to my reasonable satisfaction I must do so in accordance with any SOP issued by the RMA: section 120B(3). The RMA has issued SOP No 34 of 2005 in relation to cervical spondylosis. An amendment to the SOP by instrument No 77 of 2008 is not relevant to Mr Hall’s claim.
7. The relevant factor is as follows:
(f)having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis;
8. The SoP defines “trauma to the cervical spine” as :
… 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.
Issue before the Tribunal
9. There was no dispute that Mr Hall suffers cervical spondylosis. The clinical onset was identified by Dr Macarthur as being in 2005 when confirmed by x-rays, although the doctor agreed that complaints made by Mr Hall in September 2003, described below, could have been an early manifestation of cervical spondylosis. It was agreed that nothing turned on the date of clinical onset.
10. The only issue to be decided by the Tribunal is whether Mr Hall’s cervical spondylosis is service-caused.
Applicant’s evidence
11. Mr Hall gave evidence that in December 2001 HMAS Hawkesbury had been on manoeuvres about 20-30 nautical miles out from Sydney. His role was as a communications expert and he was in charge of a five person response team. In the week before Christmas there was a fire exercise which required him to quickly move down the aft ladder way. HMAS Hawkesbury is a relatively small ship and was buffeted by strong seas and there was water over the decks and the ladder way. Mr Hall moved down the 2.2-2.4 m ladder facing outwards and slipped on the 2nd rung down. He struck his back and his head and landed on his feet on the deck below. He said he experienced instantaneous leg pain and tried to get up. He had difficulty walking and his neck was stiff and sore.
12. Statements were provided by LS Manahan and CPO Pemberton, each of whom said that they observed Mr Hall slip and fall from the ladder. They said they recalled him complaining of leg and neck pain while at sea that week and LS Manahan noted that he observed Mr Hall had trouble walking.
13. Mr Hall stated that he “went through the motions” of the exercise, during the course of which he continued to move about the ship. Straight after the exercise concluded he went to the medic – an able seaman with first aid qualifications. He was told he had a sprained ankle and that they would be back on shore in two days’ time. He was given basic painkillers. There was no treatment for his neck. Mr Hall said that he went to see his supervisor CPO Dixon who, he said, told him to “take it easy” which he did, for the remaining two days at sea because he “had trouble walking”. CPO Dixon provided a statement in which he wrote that Mr Hall had “still participated in his duties”.
14. Mr Hall complained to the XO as it was “obvious” he was unable to walk or move his neck. He was sent back to the medic.
15. Mr Hall said he was told he would not be medically evacuated as it would have jeopardised the exercise. There was no one to replace him. In cross-examination he agreed that if he had been seriously injured the ship would have returned to shore.
16. On return to Sydney he went directly on leave to Melbourne. He thought the pain in both his leg and neck would subside with rest. Instead, the pain worsened and he returned to Sydney, he said, to obtain medical attention from a navy doctor. He was unable to sleep because of the pain in his leg, although his neck was also still painful. He said he went to a navy doctor on about 2 January 2002 and he was sent for an x-ray of his leg. At the time his neck was stiff and sore. He was given anti-inflammatories and painkillers. He returned to the doctor two days later. On each occasion he explained that his neck was stiff and sore, but the doctors were more concerned with his leg. Subsequently, it was found that he had a stress fracture of the right tibia.
17. He observed that, in his four years aboard HMAS Hawkesbury he had attended the medic many times, including when he thought he had broken his nose and also his thumb and there were no records kept of those attendances.
18. He thought a lot of his neck pain was masked by the medication he had taken for his leg.
19. In 2002 he was a candidate for officer training and in reporting issues at annual medical checks may have avoided drawing attention to anything that might have affected his prospects. Hence, there is no mention of either his leg or neck problems.
20. On 30 September 2003 Mr Hall reported to a navy doctor: “stiff neck 2/7”.
21. He had physiotherapy for his neck in about 2003-4. The physiotherapy was fairly basic and he was told to further increase his physical fitness and to avoid aggravating activities such as push-ups and sit-ups.
22. Mr Hall subsequently developed pins and needles and weakness. He was referred to neurosurgeon and spinal surgeon, Dr Bittar, in 2007 because he was unable to sleep because of neck pain. It was at that time that he was diagnosed with cervical spondylosis and he had surgery in November 2007. He was off work for several months and then on light duties.
23. He was referred in cross-examination to entries in his medical documents, which were tendered, where his leg problem was mentioned extensively, but there is no mention of his neck problem until 30 September 2003 when he reported with a two day history of stiff neck. In 2005 he was recorded as having complained of “crepitus for months”.
24. In his claim form he did not refer specifically to the fall in December 2001 but attributed his neck problems to “lifting heavy shells, stores on land and at sea on unsettled platform. Numerous ladder falls on ship up to 2 metres, landing on back and feet” and that he first noticed problems with his neck in 2004.
25. In a Claimant Report – Trauma Cervical Spondylosis dated 12 December 2006 he did not write of hitting his head, but of landing on his back and twisting his neck. He wrote that the symptoms lasted “couple of days (2)”. He endeavoured to explain to the VRB that he had been advised to describe the duration of his symptoms in “generalised” terms.
Consideration
26. I accept that, like many sailors, Mr Hall suffered many falls down ladders aboard ships at sea in other than calm conditions. His shipmates also write of the fall. I accept that, on the balance of probabilities, Mr Hall suffered a discrete injury to the cervical spine in December 2001 in the manner he described. I accept that his neck became sore and stiff within 24 hours, as required by the factor; that is, he developed some symptoms and signs of pain, and tenderness and altered range of movement of the cervical spine.
27. However, Mr Hall was clearly able to continue with his duties: he concluded the exercise; he was not evacuated by helicopter to shore; the ship did not return to shore, as it would, he agreed in his evidence, if his injuries were “serious”. He did not give evidence of having to retire to his bunk for any part of the remainder of the manoeuvres. His evidence was only of “taking it easy” in circumstances where, according to his evidence, he “couldn’t walk” because of his leg. There was no evidence that his neck was sufficiently sore and stiff that it precluded him from undertaking his duties.
28. Further, on arrival in Sydney he did not seek medical attention for his neck. His evidence was that he was well enough to travel to Melbourne for the Christmas break. There he did not seek any medical attention in the week between Christmas and New Year, nor was there evidence that his neck precluded participation in the family’s Christmas. His evidence focussed on his leg condition, which was clearly far more debilitating than his neck problem, and he said he returned to Sydney in early January for treatment “for his leg”.
29. I observe that the medical documents make no mention of a neck condition until 2003. While Mr Hall is entitled to the benefit of section 119 of the Act, in that the Tribunal must take into account any difficulties, attributable to any reason including an absence of information in the official records, faced by a party in establishing his or her case,, there is, in fact, significant medical evidence about his leg injury which occurred, he said, at the same time. I find it unlikely, having regard to the voluminous material in relation to his leg, that at every consultation after the accident until 30 September 2003 he also complained about his neck, but that on every occasion the attending doctor failed to record it. I also observe that in his annual health assessment dated 13 October 2005 he described having neck pain (and mid/lower back pain) “over the previous few months”.
30. I am not satisfied that this incident was such as to meet the definition of trauma, in that I do not accept that Mr Hall experienced symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine which were such that these symptoms and signs lasted for a period of at least ten days.
Conclusion
31. For these reasons I find that neither factor (f), nor any other factor set out in the SOP, is raised by the evidence in this case. I am therefore reasonably satisfied that the material before the Tribunal does not raise a connection between Mr Hall’s service and his cervical spondylosis.
Decision
32. I affirm the decision under review.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member
Signed: ...............[sgd].................................................................
AssociateDate of Hearing 24 September 2009
Date of Decision 2 October 2009
Appearance for the Applicant Mr P Jones, Legal Aid
Counsel for the Respondent Mr G Purcell
Solicitor for the Respondent Ms T Chant, Department of Veterans’ Affairs
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