Cooke and Military Rehabilitation and Compensation Commission (Compensation)

[2019] AATA 1344

Cooke and Military Rehabilitation and Compensation Commission (Compensation) [2019] AATA 1344 (19 June 2019)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2015/6666

Re:George Cooke

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Member M O'Loughlin

Date:19 June 2019

Place:Adelaide

The decision under review is affirmed.

.............................[sgnd].................................

Member M O'Loughlin

Catchwords

COMPENSATION – Military rehabilitation and compensation – Whether the condition is connected with defence service – Whether the condition is a “service injury or disease” – Whether the condition falls within the Statement of Principles concerning Cervical Spondylosis – Whether trauma to the cervical spine occurred – Decision under review affirmed.

Legislation

Military Rehabilitation and Compensation Act 2004
Statement of Principles concerning Cervical Spondylosis No. 67 of 2014

Cases

Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750

Secondary Materials

REASONS FOR DECISION

Member M O'Loughlin

19 June 2019

BACKGROUND

1. The applicant, Mr Cooke, served in the Australian Army Reserves from 1991 until 4 July 1994 when he joined the Army full time.  He remained full time until 20 February 2005 and then returned to the Reserves.

2. On 7 August 2012 while engaged in “peacetime service”[1] at the Warradale army barracks the applicant slipped, fell and injured himself. On 21 August 2012 he made a claim under the Military Rehabilitation and Compensation Act 2004 (the MRC Act) for compensation for a back injury. That claim was accepted.

   [1] Military Rehabilitation and Compensation Act 2004 (Cth) s 6(1).

3. On 16 August 2013 he submitted a further claim including a claim for neck injuries. On 15 November 2013 the respondent made a determination denying liability for the neck injuries.

4. On 2 December 2013 Mr Cooke applied to the Veterans’ Review Board (the VRB) for review of the respondent’s decision. On 9 October 2015 the VRB affirmed the respondent’s determination of 15 November 2013.

5. As a result of that decision the applicant was refused compensation for a condition, namely mild right and left posterolateral bulging of the C3/4 disc and small right bulge C6/7 disc.

6. The applicant now seeks review of the VRB decision by this Tribunal.

   LEGISLATION

7. The applicant lodged a claim for acceptance of liability by the respondent for a service injury or disease pursuant to s 319 of the MRC Act. Section 23(1) of the MRC Act provides that the respondent must accept liability if the applicant’s injury or disease is a service injury or disease. A “service injury” or a “service disease” is defined in s 27 and must have a causal link to the defence service.

8. Pursuant to s 335(3), which provides for the standard of proof for claims other than for warlike or non-warlike service, the Tribunal must decide this matter to its reasonable satisfaction.

9. Section 339(3) provides that:

   (3)In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:

   (a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and

   (b)      there is in force:

   (i)a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans' Entitlements Act 1986; or

   (ii)       …; and

   (c)the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

10. The applicant claims that his condition falls within the Statement of Principles concerning Cervical Spondylosis No. 67 of 2014 (the SOP). “Cervical spondylosis” is defined in clause 3(a) of the SOP as follows:

    …a degenerative joint disorder affecting the cervical vertebrae or intervertebral discs with:

    (i) clinical manifestations of local pain and stiffness, or symptoms and signs of cervical cord or cervical nerve root compression;

    (ii) imaging evidence of degenerative change, including disc space narrowing or osteophytes.

    Other commonly associated features include facet joint arthritis, bone hypertrophy and spinal stenosis. This definition excludes diffuse idiopathic skeletal hyperostosis and bulging of an intervertebral disk in the absence of other signs of disc degeneration. Cervical spondylosis includes spondylosis at the cervicothoracic junction.

11. Of particular relevance is clause 6(f):

    having trauma to the cervical spine at least one year before the clinical onset of cervical spondylosis, and where the trauma to the cervical spine occurred within the 25 years before the clinical onset of cervical spondylosis.

12. The expression ‘trauma to the cervical spine’ is defined at clause 9 as follows:

    …a discrete event involving the application of significant physical force, including G force, 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.  In the case of sustained unconsciousness or the masking of pain by analgesic medication, these symptoms and signs must appear on return to consciousness or the withdrawal of the analgesic medication.  These symptoms and signs must last for a period of at least seven days following their onset…

13. The definition provides some exceptions which are not relevant to this matter.

14. The term ‘clinical onset’ is not defined in the legislation and has been the subject of judicial consideration. In Lees v Repatriation Commission [2002] FCAFC 398, the full Federal Court approved Branson J’s consideration of the issue and authorities in Repatriation Commission v Cornelius [2002] FCA 750. The formulation in that matter was as follows:

    …there is 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…

    ISSUES

15. That the applicant was performing defence service at the time of the incident is not disputed. His injury occurred on 7 August 2012 when he was engaged in ‘peacetime service’ as defined in s 6(1) of the MRC Act.

16. The primary issue for the Tribunal to determine, therefore, is whether the applicant’s cervical spine condition falls within the SOP concerning Cervical Spondylosis and thus satisfies the requirements of s 339(3).

    EVIDENCE

    The Applicant

17. The applicant’s statement sets out that he was on duty in a field workshop at Warradale Barracks on 7 August 2012. At about 2115 he walked into the office and in so doing slipped on a piece of paper and fell onto his back. The applicant says he was in a lot of pain and was taken to the emergency department of Flinders Medical Centre where he was admitted soon after. He had x-rays taken of his back and, a fracture having been excluded, he was discharged with analgesia.

18. On Thursday 9 August 2012 he consulted his GP. The following Monday his movement was significantly impaired and he was admitted to the RAAF base hospital at Edinburgh.

19. In his evidence the applicant advised that he weighs about 85 kilos and is 180 centimetres tall.  He said that the area in which he slipped was carpeted, and that when he stepped on a sheet of paper that was lying on the floor his leg came out from underneath him and he landed on his back. It appears that his right foot slipped. The applicant said that he landed on his back but was not able to say whether he landed on a particular part of his back.  When questioned further he said that there may have been a point when his whole body was off the ground. 

20. The applicant said that after he fell he was lying flat on his back and was aware of back pain.  He said that the worst pain was in his low back and that there was a lump there. He said that there was pain in his whole back.

21. Other than going to see his GP, the applicant said he spent his time resting and taking analgesia until he was taken to the Edinburgh base hospital.

22. In cross examination the applicant was asked about exhibit four, a progress note from the Flinders Medical Centre dated 8 August 2012. It was put to him that he told the doctor at Flinders that he landed on the right side of the low back. The applicant disagreed, and said that he did not believe that he said that he fell onto his low back.

23. The applicant agreed that his statement makes no reference to neck pain but did not concede that the complaints were limited to low back pain. He said that he believed that the main complaints were of low back pain but that this did not exclude pain in other areas.

24. It was put to the applicant that a request for imaging made on the 8 August 2012 (apparently at the Flinders Medical Centre), exhibit five, referred only to “lumbosacral”. The applicant agreed, although he said that he did not understand what that meant.

25. The applicant was asked about the consultation notes of his GP Dr Brent Ducker dated 9 August 2018. He agreed that the doctor’s notes reflected part of his complaints to the doctor and that they did not record a complaint of neck pain.

26. The applicant was asked about the Outpatient Clinical Record, apparently from the RAAF base hospital at Edinburgh.[2] He agreed that it did not refer to neck pain but said that it did not record a stabbing pain in the perineum either.

    [2] Exhibit 1 T documents p 38.

27. The applicant was asked to agree that an RAAF clinical record[3] refers to pain in the right lower lumbar area and leg but does not refer to neck pain. The applicant agreed, but said that it does not refer to a six hour erection that he suffered either.

    [3] Exhibit 1 T documents p 42.

28. The applicant agreed that a further clinical record[4] dated 14 August 2012 did not refer to neck pain and did refer to an MRI of the lower spine. He agreed that he was not sent for an MRI of any other part of his spine.

    [4] Exhibit 1 T documents p 43.

29. The respondent referred the applicant to a DVA Injury or Disease Details Sheet.[5] The applicant said he did not complete all of the information on page two of the form, in particular the description under the heading “Injury or Disease”, though he did fill out the “Signs and symptoms” box. He agreed that he did not refer to pain other than low back pain.

    [5] Exhibit 1 T documents p 111-112.

30. The applicant agreed that he signed the document entitled “Claim for Liability and/or Reassessment of Compensation”,[6] and completed it with Di Capus, the advocate at RSL SA. He agreed that his response to question 16 “List all the injuries or diseases you are now claiming or previously accepted injuries or diseases which have become worse”, did not refer to neck pain.[7]

    [6] Exhibit 1 T documents p 104.

    [7] Exhibit 1 T documents p 107.

31. The applicant was referred to the notes of his GP Dr Ducker from the consultation on 20 August 2012, and agreed that there was no reference to neck pain.[8]

    [8] Exhibit 6.

32. The applicant agreed that when he returned to see his GP on 14 September 2012 he did not complain of neck pain.

33. The applicant agreed with general propositions that the medical consultations up to and including 20 February 2013 did not record any complaints of neck pain. He also agreed that he had been trying to cut back on analgesics because he did not like taking them.

34. The respondent put to the applicant that the physiotherapy he started in August 2012 was for treatment of his low back. The applicant disagreed, saying that his whole back was treated, from his coccyx to the middle of his skull.

35. The applicant was shown his physiotherapist Mr Paul Kratounis’s report dated 29 November 2013 which he agreed referred only to his lumbar and thoracic spines and did not refer to his neck, cervical spine, or skull.[9]

    [9] Exhibit 7.

36. In re-examination the applicant said in 2012 the pain was mainly in his lower back but that in 2013 there was a switch and he became aware of pain in his hands which he related to the thoracic spine.

37. He said that his doctor was reluctant to refer him for a specialist assessment but that in 2013 sent him to Mr Matthew McDonald for consideration of the whole of his spine.

    Doctors Meegan and Haynes

38. Dr Meegan prepared two reports dated 20 May 2016 and 23 August 2017 at the applicant’s request.[10] A letter of instruction from the applicant’s solicitors dated 19 May 2016 was also tendered.[11]

    [10] Exhibit 9.

    [11] Exhibit 9.

39. Dr Haynes prepared three reports dated 6 October 2016, 20 December 2016 and 14 June 2017 at the respondent’s request.[12]

    [12] Exhibit 10.

40. Both doctors are occupational physicians. They gave concurrent evidence at hearing.

41. In relation to diagnosing cervical spondylosis, the doctors’ attention was drawn to the SOP clause 3(b)(i), and they were asked whether a complaint of cervical pain and stiffness would be sufficient to found a diagnosis of cervical spondylosis. Dr Meegan believed that complaints of neck pain and stiffness could be sufficient but Dr Haynes did not. The latter stated that he believed more would be required to make a confident diagnosis.

42. The doctors agreed that there might be other, non- specific indicators of cervical spondylosis. They agreed that symptoms were likely to manifest in the arm, and Dr Meegan said that such symptoms would be tingling and weakness.

43. The doctors were asked whether they would look for support for a diagnosis in radiological imaging and they agreed that that would assist. Further, both doctors agreed that the existence of clinical manifestations of cervical spondylosis such as signs of nerve root compression and radiological evidence of nerve root compression would be sufficient for a diagnosis pursuant to the SOP or in a normal clinical situation.

44. The doctors were directed to a nursing note of 14 August 2012 which reported that the applicant “Woke at 0400 complaining of pins and needles in right arm and leg…”.[13] They were asked if that was consistent with nerve root compression and, in particular, whether complaints of pins and needles in the arm are consistent with nerve root compression in the cervical spine. Both doctors agreed that it was consistent; but that it was not sufficiently specific to warrant a diagnosis of nerve root compression and that it would be possible to get arm symptoms without having neck pain.

    [13] Exhibit 1 T Documents p 39.

45. The doctors also agreed with the proposition put to them by counsel for the applicant that if there was a report of an x-ray in January 2008 that showed narrowing of the C5/6 space that that was consistent with degenerative change.

46. The doctors were referred to an MRI report dated 5 August 2013 which they had both seen and referred to in their respective reports. That report referred to disc bulging at the C3/4 and 6/7 levels. Counsel for the applicant asked if that was evidence of cervical spondylosis. Dr Haynes said that he believed it could be a normal finding and that disc bulging commonly did not cause symptoms. Dr Meegan said that he saw it as part of the process of degeneration.

47. The doctors were asked whether, if there had been a report of a trauma to the spine a year before this MRI, the condition would still be attributable to normal ageing or whether there could be another cause. Dr Meegan said he believed a history of that type might explain the onset of symptoms but he did not believe that the MRI suggested a traumatic cause of the condition itself. Dr Haynes said he would not connect the changes described in the MRI report with an incident a year before, although such an incident could be responsible for the onset of symptoms if there was a complaint of symptoms immediately after the incident.

48. The doctors were then asked if they would make a diagnosis of cervical spondylosis on the basis of a physiotherapist reporting complaints of upper thoracic pain in November 2013. Dr Meegan expressed the view that in general medical practice a doctor might make a diagnosis at that point. Neither expert, however, was of the view that the complaints of thoracic pain could form the basis for a diagnosis of cervical spondylosis, and further that the radiological evidence did not at that point fit within the definition in the SOP clause 3(b)(ii). The expert witnesses agreed that the SOP was probably not met in November 2013.

49. When asked to comment on a report from Dr Diem Pham dated 13 September 2013 relating to the MRI scan of the cervical spine of 5 August 2013,[14] both experts agreed that complaints of pins and needles in the arms were consistent with a finding of nerve root compression in the cervical spine but did not suggest the site of such compromise.

    [14] Exhibit 1 T Documents p134.

50. The experts also agreed that MRI reports from March and April 2016 suggest more established changes to the cervical spine. Dr Haynes noted that the requirement of stiffness may not have been met at that time and the SOP may still not have been satisfied. Dr Meegan thought that by the time of those reports a diagnosis of cervical spondylosis pursuant to the SOP was probably established but that he had obtained a history of the early onset of neck pain. He said that if neck pain had not commenced at about the time of the fall as he had been advised, it would be difficult to relate the condition to the incident in August 2012.

51. When asked whether the diagnosis of cervical spondylosis under the SOP could have been made in April 2016, Dr Haynes was uncertain and was concerned about the lack of complaint of neck pain and stiffness. Dr Meegan emphasised the importance of a complaint of neck pain at about the time of the incident if attributing the condition to the fall. He later said he would expect all the complaints of pain arising from a traumatic event to come out within a few days to weeks of the incident and a complete record of pain within months. Dr Meegan gave evidence that there is radiological support for a diagnosis of cervical spondylosis as early as January 2008 but that to properly support a diagnosis a contemporaneous complaint of pain is necessary.

52. Both experts agreed that a fall of the type that the applicant experienced could have resulted in a significant physical force to the length of the spine. They said the lumbar spine appeared to have been affected but they could not exclude other areas.

53. It was suggested to the doctors that early neck pain may have been masked by analgesia taken for other injuries which may explain the apparent lack of contemporaneous complaint of neck pain. The doctors agreed analgesia might mask pain for a few days. The doctors also agreed, however, that, as described in the GP’s notes from September and November 2012, [15] there was a period during which no analgesia at all was used, and later was taken only at night, the level of analgesia would probably not mask neck pain.

    [15] Exhibit 6.

54. The Tribunal notes that Dr Meegan refers in his report to documented evidence of a complaint of neck pain in April 2013 but there is no document before the Tribunal to clearly demonstrate such a complaint at that time.

    ARGUMENT AND FINDINGS

55. The Tribunal is satisfied that the applicant has been diagnosed with cervical spondylosis.

56. The Tribunal is satisfied that the applicant did not complain of neck pain and stiffness from the time of his fall on 7 August 2012 until about 5 August 2013 when the MRI of his cervical spine was taken.

57. The Tribunal is satisfied that by 14 September 2012 at the latest, the analgesia the applicant was taking would not have masked any symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the applicant’s cervical spine.

58. The Tribunal is satisfied that the applicant did not develop, either within twenty-four hours of his fall on 7 August 2012 or at any time up to 14 September 2012, symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the cervical spine.

1. The Tribunal therefore finds that the fall on 7 August 2012 did not cause the applicant to suffer “trauma to the cervical spine” as defined in the SOP. There is no evidence of any other potential “trauma to the cervical spine”.

2. The Tribunal is therefore reasonably satisfied that the applicant’s condition does not meet the SOP clause 6(f).

3. The Tribunal is reasonably satisfied that the material before it and the relevant SOP do not uphold the contention that the applicant’s condition is, on the balance of probabilities, connected with the applicant’s defence service.

4. The Tribunal therefore finds that the applicant does not satisfy s 339(3)(c) of the MRC Act, and therefore it cannot be reasonably satisfied that the applicant’s condition is a “service injury or service disease” pursuant to s 23.

   DECISION

5. The decision under review is affirmed.

64.      

65.     I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin

..........................[sgnd]............................

Associate

Dated: 19 June 2019

Date of hearing:

15–17 August & 27–28 September 2018

Counsel for the Applicant:

Solicitors for the Applicant:

Mr E Jolly

Tindall Gask Bentley

Counsel for the Repsondent:

Ms K Slack

Solicitors for the Respondent:

Sparke Helmore