Crawford and Military Rehabilitation and Compensation Commission (Compensation)
[2023] AATA 944
•27 April 2023
Crawford and Military Rehabilitation and Compensation Commission (Compensation) [2023] AATA 944 (27 April 2023)
Division:VETERANS’ APPEALS DIVISION
File Number:2022/0086
Re:Raymond Crawford
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:27 April 2023
Place:Brisbane
The decision under review is affirmed.
................[SGD]................
Deputy President J Sosso
CATCHWORDS
VETERANS’ ENTITLEMENTS — claim in respect of lumbar spondylosis condition — whether defence-related — whether in the course of employment — date of clinical onset — significant or material degree — decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Comcare v Power (2015) 238 FCR 187
Comcare v Sahu-Khan (2007) 156 FCR 536
Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286
Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468
Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537
Prain v Comcare [2017] FCAFC 143
Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310
SECONDARY MATERIALS
Cassell’s Dictionary of Slang, 2nd ed, 2005.
Karen Hind, “Rugby: retired players more likely than other athletes to suffer long-term injuries”, The Conversation, 16 July 2020.
Neil Hopkins, “Preventative Rehabilitation for Rugby Injuries to the Lower Back and Core”, BokSmart, 2009.
REASONS FOR DECISION
Deputy President J Sosso
27 April 2023
INTRODUCTION
Mr Raymond Crawford (“the veteran”) seeks a review of a decision of the Military Rehabilitation and Compensation Commission (“the Commission”) of 27 October 2021 which denied liability for his lumbar spondylosis condition pursuant to s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (“the Act”) – Exhibit 1 T1 pp. 1 – 3.
The veteran was born in June 1947 in Scotland and, at the date of Hearing, was 75 years of age – Exhibit 1 T3 p. 7.
The veteran rendered national service in the Royal Australian Army between 2 October 1968 and 1 October 1970 – Exhibit1 T3 pp. 8 – 9.
Prior to rendering service, the veteran was studying medicine at the University of New South Wales. After being discharged, the veteran returned to his studies but did not complete his degree. Subsequently, the veteran was engaged in a number of enterprises including greyhound training, managing football clubs and being involved in the entertainment industry. In particular, the veteran has produced and performed on radio and television and toured on stage comedy shows in Australia and overseas. From 2000 until 2019, he lived and worked in the United Kingdom as a stand-up comedian – Exhibit 4 pp. 2 – 3.
None of the employment the veteran has undertaken has involved physical labour or the lifting of heavy material.
On 20 August 2020, the veteran submitted a Claim for Compensation for six conditions, including lumbar spondylosis – Exhibit 1 T5 pp. 110 – 124. In response to a Question as to how the veteran believed his service caused, contributed or aggravated the claimed condition, he provided the following response – Exhibit 1 T5 p. 114:
“multiple injuries to spine sustained while playing Rugby Union during military service. Additionally lifting and carrying heavy loads and rigours of service as a member of a Field Ambulance.”
In support of the claim, the veteran provided a lumbar spine CT report and an Injury or disease details sheet.
The CT of the lumbar spine was carried out on 8 July 2019 by Dr Seyed Hosseini. The following conclusions were reached based on the CT – Exhibit 1 T5.1 p. 125:
“Conclusion:
1. Impingement of the exiting bilateral L5 nerve roots at L5/S1 compounded by severe facet joint arthropathy at this level. Correlation with patient’s symptomatology is recommended.
2. The affected nerve roots and facets are amenable to CT-guided injection of steroid if clinically prudent.
3. Non-obstructive calcific focus right kidney midpole measures 4.4 mm.”
In the section of the Injury or disease details sheet which is required to be filled in by a claimant, the veteran stated that he believed that his “lumbar spine injury” was caused by “excessive rugby union injuries playing for the Army” – Exhibit 1 T5.2 p. 126.
In the section of the Injury or disease details sheet to be filled in by a medical practitioner, a diagnosis was made by Dr Geetha Dhileepan. Dr Dhileepan made the following diagnosis – Exhibit 1 T5.2 p. 127:
“degenerative disc disease of lumbar spine”.
The basis for this diagnosis was explained by Dr Dhileepan as follows – Exhibit 1 T5.2 p 127:
“chronic low back pains with radiation to both lower limbs on & off…has been worse in the last 12 months or so, copy of CT scan enclosed.”
Dr Dhileepan stated that the first consultation with the veteran for this condition was 18 November 2019, and the approximate date of onset of the injury or disease was “years” – Exhibit 1 T5.2 p. 127.
On 5 July 2021, a Delegate of the Commission accepted four of the veteran’s claimed conditions but did not accept his claim for lumbar spondylosis and subacromial bursitis – Exhibit 1 T8 pp. 147 – 154. The reasons given by the Delegate for not accepting the veteran’s claim for lumbar spondylosis were as follows – Exhibit 1 T8 pp. 152 – 153:
“You have stated that your condition was caused by multiple injuries to spine sustained while playing Rugby Union during service. Additionally lifting & carrying heavy loads, and rigours of service as a member of a Field Ambulance.
Your diagnosis is based on CT Lumbar Spine dated 8/7/19, however your Army Medical Documents state Medical examination record dated 10/9/70 shows Spine examination normal. On your Discharge history questionnaire dated 7/10/70 indicates no record of back injuries.
This condition is considered a disease under the DRCA. I have noted your contention as to the cause of this condition. However, the available evidence indicates, I also received advice from a Medical Adviser to clarify the medical information relating to your claim which has confirmed we have been unable to locate medical evidence for a back injury to support an earlier onset date of 8/7/2019, the date when you had a CT scan of your spine.
The Medical Advisor states in their opinion, based on the medical evidence, your age is likely to have contributed significantly to this condition.
Based on all the medical evidence available at this time and given your service period, and the extended time before the onset of the condition I am unable to attribute more than a minor contribution from the rigours of service.
Having considered all of the available evidence, I am not reasonably satisfied that your service contributed in a significant degree to your condition. Your claim in respect of this condition is therefore unsuccessful.”
On 20 July 2021, the veteran requested a reconsideration of the determination in respect of lumbar spondylosis but not subacromial bursitis – Exhibit 1 T9 p. 155. Subsequently, the veteran provided additional information in support of his reconsideration request, including the following email of 21 July 2021 – Exhibit 1 T11.1 p. 161:
“…I do not think the delegate understands that I played Rugby Union on a professional basis for my entire conscripted period. Barring injury time. I played Intercorp, Interservice and Representative for the Army 3 days per week. This was 1968-1970 so if you were injured you were just ordered to play on, be tough. On two occasions I was taken to Hospital by Ambulance for concussion and played the next day, I would have no idea how many times I suffered head knocks without even leaving the field. The number of injuries noted in my medical records would suggest that it was certainly a body contact sport. It also is impossible to believe that through all that contact that my back would not have come under stress and injury. I have never had a manual job since leaving the Army, it is well documented that I had a career in Entertainment lasting up until this day. Television, Radio and Stage so I have never had to lift heavy or move heavy. I have never had a back injury since leaving the Army that would contribute to my pain… It may be totally impossible for a young delegate to understand how the Army worked back in 1968 Rugby Union was the chosen way to keep up the morale of servicemen left in Australia or returning. I was told by Brigadier Henderson the head of 6th Task Force Enoggera that while I was scoring tries I would not be going to Vietnam. Motivation plus. Not only did I play Rugby 3 days a week the remainder of the week I was organizing the next week. Full time Rugby. So putting anyones body through that rigorous routine would have caused all the pain I experience now…”
On 27 October 2021, another Delegate of the Commission affirmed the Determination of 5 July 2021 – Exhibit 1 T13 pp. 189 – 192.
The Delegate was satisfied that the condition of lumbar spondylosis had been appropriately diagnosed and that this condition was a disease for the purposes of the Act – Exhibit 1 T13 p. 190.
Next, the Delegate noted that, in assessing evidence relating to liability, a civil standard, based on the balance of probabilities, is used – Exhibit 1 T13 p. 190.
The Delegate then turned to the “date of injury” and concluded that the condition had its onset on 1 July 2019, being the first date of medical treatment. Reference was made to the claim form and the Injury or disease details sheet in which it was stated that the veteran first noticed symptoms in 2018 – Exhibit 1 T13 p. 191.
In these circumstances, the Delegate concluded that the threshold of employer contribution was to a significant rather than a material degree – Exhibit 1 T13 p. 191.
Reference was then made to the opinion of a Departmental Contracted Medical Adviser, which is set out below – Exhibit 1 T10 pp. 157 – 158, T13 p. 191:
“Lumbar Spondylosis is a degenerative disorder. It is the general wear and tear that occurs in the joints, discs and bones of the spine as people get older. It may cause loss of normal spinal shape and function. Aging is the primary cause. Recognised risk factors include: being over 40 years of age, being overweight, a prior injury, repeatedly lifting/carrying heavy loads and repetitive bending of the lower back with extreme flexion.
I note the Veteran’s statement that excessive rugby union injuries playing for the army contributed to this condition. However I have been unable to locate medical evidence for a back injury within the reviewed documents.
In my opinion, based on the medical evidence, age is likely to have contributed significantly to this condition. In my opinion, given the service period on file and the extended time before the onset of the condition I am unable to attribute more than a minor contribution from the rigours of service.”
The Delegate concluded that considering the time since the veteran’s discharge, the onset of the condition, the veteran’s age and general wear and tear, she was not satisfied that the veteran’s service had contributed in a significant degree to the onset of lumbar spondylosis – Exhibit 1 T13 p.191.
MEDICAL EVIDENCE
Introduction
Apart from the veteran’s service medical records, which are discussed below, the Tribunal has the benefit of a report from Dr Habibullah Khursandi, Orthopaedic Surgeon, and Dr Peter Friis, Sports Physician. Dr Khursandi also appeared at the Hearing and was cross-examined by the veteran.
Dr Khursandi
Dr Khursandi prepared a report dated 7 September 2022, after assessing the veteran on 26 August 2022 – Exhibit 3. He was briefed with extensive background material, including the veteran’s Army Medical Records and summonsed records of Myhealth Medical Centre, Toowong and Chapel Hill Family Doctors – Exhibit 4 p. 2.
Dr Khursandi reported that the veteran described experiencing constant lumbar back pain. Sitting for an hour, ascending slopes, and bending and lifting, increases the experience of back pain. Lying down eases the pain and, occasionally, the pain radiates to the left buttock and posterior aspect of the thigh – Exhibit 3 p. 3.
The Army Medical Records disclosed that the veteran sought treatment for a finger injury sustained whilst playing football on 30 April 1969, a shin injury on 7 May 1969, a right leg injury in September 1969 and a right-hand injury in 1970. However, Dr Khursandi noted that there was no record of the veteran seeking treatment for back pain during his service period – Exhibit 3 p. 5.
In Dr Khursandi’s opinion, the veteran has symptoms and signs of lumbar spondylosis, which most likely developed in 2018 – Exhibit 3 pp. 5 – 6.
Dr Khursandi attributed the veteran’s lumbar spondylosis entirely to “constitutional and advanced age” and did not, accordingly, attribute any contribution from his army service – Exhibit 3 p. 6.
It was also noted by Dr Khursandi that “spondylosis of the lumbar spine is common after the fifth decade of life” – Exhibit 3 p. 6.
Dr Friis
On 21 September 2022, Dr Dhileepan referred the veteran to Dr Friis for an assessment of “his chronic low back pains which he attributes to sports injuries while in Army. Use to play a lot of rugby. He is trying to get DVA cover for his management now with very little success so far” – Exhibit 8. Dr Dhileepan also provided Dr Friis with a copy of an MRI report of the veteran’s lumbar spine of 21 August 2020.
Dr Friis opined that the veteran’s current pathology pertaining to his low back pain could be summarised as facet joint osteoarthritis.
It was noted that most cases of degenerative facet joint disease is apparent in patients over 45 years of age. Further advanced “cartilage changes, subchondral sclerosis, and osteophyte formation is a common phenomenon in this age bracket and not unexpected in those aged 75.”
Dr Friis then turned to the question of whether the MRI confirmed pathology was directly related to previous sporting involvement. He opined as follows – Exhibit 8:
“…there is a paucity of literature to support this. There is a review paper from 2022 looking at the incidence of osteoarthritis in retired Olympians. After adjustment for recognised risk factors, Olympians were more likely to have lumbar spine pain and shoulder arthritis pain after shoulder injury than the general population. By extrapolation, it may be inferred that a sporting history of participation in elite level collision sports is an additive risk for consideration in this case.
I believe that Ray has cause to ask this question of DVA. If it is accepted that history of sport has been a contributing factor then exploring options for assistance directed at pain relief has some merit. Direct evidence of cause and effect is unfortunately not obvious here. The Olympian paper does state that injury was associated with an increased risk of OA and pain at the lumbar spine. Although Ray states that his records show no report of lumbar spine injury, he maintains that on many occasions he injured his back. Polytrauma often results with an emphasis being placed on the main injury at the time. This ‘distracting injury’ concept is thought to be responsible for under reporting of injuries in collision sport. Another study reported 39% of retired professional players report back pain and questioned whether bone loss is more prevalent as the early onset of OA in the spine of these athletes may result in false BMD scores.”
(Emphasis in the original)
LEGISLATIVE FRAMEWORK
Pension, compensation, rehabilitation and treatment for veterans, members of the Defence Force and their respective dependants is currently provided under three separate pieces of legislation – Veterans’ Entitlements Act 1986 (Cth), Military Rehabilitation and Compensation Act 2004 (Cth) and the Act.
The Act commenced on 12 October 2017 and created a second version of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). Whilst the SCR Act applies to civilian employment, the Act is limited to previous and current members of the Australian Defence Force and their dependants.
After the commencement of the Act, the SCR Act no longer provides cover for, inter alia, veterans. Instead, the Act is intended to provide veterans, members of the Defence Force and their respective dependants with a military specific compensation and rehabilitation scheme.
Section 14 of the Act provides that the Commonwealth is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
It is important to note that the test of employment contribution for a disease (or aggravation thereof) is dependent on timing of the onset of the compensable “injury”. The SRC Act was amended in 2007, replacing the “material degree” test with the “significant degree” test.
Prior to the commencement, on 13 April 2007, of the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth), “injury” was defined in s 4(1) of the SCR Act as follows:
“injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of or in the course of the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment.”
(Emphasis in the original)
The term “disciplinary action” was not defined in the SCR Act.
The term “disease” was defined in s 4(1) of the SCR Act as follows:
“disease means:
(a)any ailment suffered by an employee; or
(b)the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to a material degree by the employee’s employment by the Commonwealth…”
(Emphasis in the original)
It will be noted that the employment contribution required prior to 13 April 2007 was of “a material degree”. Accordingly, it is not sufficient to simply establish the existence of a disease, for, as French CJ, Kiefel, Nettle and Gordon JJ explained in Military Rehabilitation and Compensation Commission v May (2016) 257 CLR 468 at [43] (May):
“The ailment or aggravation thereof has to have been contributed to a material degree by the employee’s employment with the Commonwealth.”
“Material degree” was not defined in s 4(1); however, reference can be made to the observations of Finn J in Comcare v Sahu-Khan (2007) 156 FCR 536 for guidance in ascertaining the meaning of this term:
“13 …the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded.
14What is problematic is identifying where that threshold lies. Treloar's case set its own threshold of sorts for satisfying the 1971 Act’s ‘contributing factor’ requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as ‘material’: see eg Repatriation Commission v Bendy (1989) 10 AAR 323 at 325. That usage is not how the term ‘material’ in the phrase ‘in a material degree’ is used in the SRC Act. The legislative history of this definition makes this plain.
15 There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is:
‘4. In a material degree; substantially, considerably.’
An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie Dictionary ‘namely, ‘of substantial import or much consequence’ [rather than the] legal sense of ‘pertinent’ or ‘likely to influence’’.
16 Bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s 4 definition:
(i)requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii)‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee's employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii)whether this will be so in a given case will be a matter of fact and degree.”
As previously noted, the 2007 amendments replaced the “material degree” test with the “significant degree” test. The definitions of both “injury” and “disease” as they now appear in the Act are set out below.
First, term “injury” is now defined by s 5A to mean:
“(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, an employee’s employment; or
(c) an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.”
The definition basically remained the same, with the exception of “disciplinary action” being replaced with “reasonable administrative action”, and with that latter term being defined in s 5A(2).
Of greater relevance is the post 2007 definition of “disease” in s 5B(1):
“disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment…”
(Emphasis in the original)
It is important, in this context, to refer to s 5B(3) which defines “significant degree” as a “degree that is substantially more than material.” It follows, then, that a “material degree” is substantially less than a “significant degree”. As his Honour Finn J explained above, what meets the threshold of a material degree is a matter of fact and degree, but it is clear that it is a more generous standard for an injured worker than that which applies following the 2007 amendments.
The “significant degree” test applies in relation to an ailment, or an aggravation of that ailment, that an employee suffers on or after 13 April 2007.
Subsection 7(4) provides, for the purposes of the Act, an employee is taken to have sustained an injury, being a disease or an aggravation thereof, on the earlier of:
(a)the employee first seeking medical treatment; or
(b)when the disease first resulted in incapacity or impairment.
Reference can be made to the very helpful discussion of the history of the 2007 amendments to the Act in Comcare v Power (2015) 238 FCR 187 at 201 – 205 [78] – [95] per Katzmann J. In particular, the following guidance was given (at 201 [78]):
“A contribution to a degree that is substantially more than material must necessarily be substantially greater than one which is trivial.”
(Emphasis in original)
In determining whether an ailment, or aggravation thereof, was contributed to, to a significant degree, by an employee’s employment s 5B(2) provides that the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee not related to the ailment or aggravation;
(d)any activities of the employee not related to the employment; and
(e)any other matters affecting the employee’s health.
This list is non-exhaustive, and s 5B(2) specifically provides that the matters listed in the subsection do “not limit the matters that may be taken into account.”
The term “ailment” is defined by s 4(1) to mean “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).”
“Aggravation” includes acceleration or recurrence – s 4(1). Reference can also be made to the following observations of Windeyer J in Ogden Industries Pty Limited v Lucas (1967) 116 CLR 537 at 593:
“…‘Aggravation’ means, I think, that an existing disease has been made worse, not that it has simply become worse. ‘Acceleration’ I have previously said and venture to repeat ‘probably presupposes a progressive disease, one that, running its ordinary course, increases in gravity until a climax, such as death or total invalidism, is reached – its progress to this end result not being ordinarily susceptible of being permanently arrested, but susceptible of being hastened by external stimuli’: Federal Broom Co Pty Ltd v Semlitch…”
ISSUES
The Commission contends, and the Tribunal agrees, that the ultimate issue for determination, is whether the veteran’s lumbar spondylosis is compensable pursuant to s 14 of the Act – Exhibit 6 para 2.
In making a finding on whether liability exists to pay compensation pursuant to s 14, the Tribunal will need to determine – Exhibit 6 para 3:
(a)the date of onset of the veteran’s lumbar spondylosis, primarily whether it was prior to, or after, the commencement of the 2007 amendments; and
(b)whether the veteran’s service contributed to the claimed condition either to a “material” or “significant” degree, which will depend on the finding of date of onset.
THE HEARING
An in-person Hearing was convened in Brisbane on 8 March 2023. The veteran was
self-represented and the Commission was represented by Mr William Evans.
The veteran gave evidence and was cross-examined. The only witness was Dr Khursandi who was cross-examined by the veteran.
CONSIDERATION
Introduction
It is not contested that, while the veteran rendered service, he played Rugby Union for the Army “at a high level and that the majority of his time in the Army was spent playing rugby” – Transcript (“Tr.”) 8.3.2023 p. 13.
The Commission accepts that the veteran suffers from lumbar spondylosis – Exhibit 6 para 42.1, Tr. 8.3.2023 p. 52.
Further, the Commission contends that lumbar spondylosis is an “ailment” for the purposes of s 4(1) of the Act – Exhibit 6 para 42.2.
Finally, the Commission contends that lumbar spondylosis is not an “injury (other than a disease)” for the purpose of s 5A(1)(b) of the Act, as it is not a sudden and ascertainable or dramatic physiological change or disturbance – Exhibit 6 para 42.3, Tr. 8.3.2023 p. 53.
The Tribunal also accepts that the veteran suffers from lumbar spondylosis and notes that this was confirmed by Dr Khursandi in his report of 7 September 2022 – Exhibit 3 p. 5.
Next, the Tribunal agrees with the Commission’s contention that the disease provision of the Act applies to the veteran.
One of the inherent difficulties facing a tribunal of fact is determining whether the condition or conditions afflicting a worker is best categorised as a disease or injury simpliciter, recognising, as previously noted, that they are not mutually exclusive categories.
In a series of High Court decisions commencing with Zickar v MGH Plastic Industries Pty Ltd (1996) 187 CLR 310, and including Kennedy Cleaning Services Pty Ltd v Petkoska (2000) 200 CLR 286 and May, consideration has been given to this distinction and the role of any sudden or identifiable physiological change. The plurality of the Court in May made this observation (at [47]):
“…A physiological change might be ‘sudden and ascertainable’. A physiological change might be ‘dramatic’. The employee’s condition might be a ‘disturbance of the normal physiological state’. That an ‘injury’ in the primary sense can arise, and can be described, in a variety of ways does not mean that ‘suddenness’ is irrelevant. As the Full Court said, ‘suddenness’ is often useful where there is a need to distinguish a physiological change from the natural progress of an underlying (and in one sense, closely related) disease (as occurred in Zickar v MGH Plastic Industries Pty Ltd and Kennedy Cleaning). But it is the physiological change – the nature and incidents of that change – that remains central.”
The Full Federal Court in Prain v Comcare [2017] FCAFC 143 considered a Tribunal determination where it was acknowledged that suddenness is often “useful” in distinguishing physiological change from the natural progression of a disease, although suddenness is not a prerequisite to a finding of an injury simpliciter. The Full Court then said (at [73]):
“…There was no error in so doing. Compensation Commission v May shows that the quality of ‘suddenness’ is not necessarily irrelevant; and whether or not it is significant in a particular case depends on what the particular facts and circumstances show about the nature and incidents of physiological or psychological change.”
In this matter, the onset of the veteran’s lumbar spondylosis has been gradual and there is no convincing evidence of a sudden or identifiable physiological change.
Date of sustaining the injury
As previously noted, the Tribunal has been presented with an Injury or disease details sheet which was completed by Dr Dhileepan, on behalf of the veteran, on 2 July 2020. This document details the veteran’s “lumbar spine injury”. Dr Dhileepan notes that the veteran first noticed signs and symptoms of the lumbar spine condition on 1 January 2018 and first received medical treatment on 1 July 2019 – Exhibit 1 5.2 p. 126.
At the Hearing, the following exchange occurred – Tr. 8.3.2023 p. 35:
“MR EVANS: Can I ask you to turn to T5.2 which is on page 126?---Yes.
This is your claim for spinal spondylosis?---Yes.
And this page is completed by you?---Yes. No, that’s the doctor’s writing. That’s not my writing.
Do you agree though that this section, should be filled in by the claimant?---Yes.
So if it has been noted by the doctor is that the basis of your responses?---Yes. That was – that happened when I first got back to Australia.
Sure, yes. And towards the middle of the page, there is a question, when did you first notice signs and symptoms of the injury or disease and the response was on 1 January 2018?---Yes.
Are you able to explain why you have entered that day?---No idea. But once again, my writing is - that is the doctor’s writing, not my writing…
DEPUTY PRESIDENT: Sorry, Mr Crawford, so the question for me is, is that an accurate statement? Did you tell the doctor that you first had signs or symptoms on 1 January 2018? To the best of your knowledge?---Well, that’s not truly for a fact that – that’s the first time. You have to understand that I did not know about the DVA until I got back here.
No, all I’m asking is, is that what you said to Dr Khursandi?---I couldn’t be certain.
He wouldn’t have written it otherwise unless you said something along those lines unless there’s something else that I don’t know about?---No there’s…
I’m not asking you if you had signs or symptoms, I am just saying is that an accurate statement of what you told him?---That could have been.”
Apart from the Tribunal mistakenly referring to Dr Khursandi rather than Dr Dhileepan, the responses given by the veteran render it tolerably clear that he told Dr Dhileepan that he first noticed signs or symptoms of his lumbar spine condition on 1 January 2018.
The Tribunal was provided with records of the Chapel Hill Family Doctors, and, in particular, a surgery consultation note of 1 July 2019 made by Dr Hosseini – Exhibit 4 pp. 1 – 2. Dr Hosseini made the following notes – Exhibit 4 p. 1:
“New patient,
back from UK after 20 years
1.low back pain for a long time, worse since a few months ago
pain worse while standing
goes into left leg…
Reason for visit:
Low back pain radiating to leg…”
Dr Dhileepan also referred the veteran to Dr Sarah Lindsay, Anaesthetist and Pain Medicine Specialist. In a report dated 24 February 2021, Dr Lindsay made the following observations – Exhibit 5 p. 70:
“Thanks for referring Raymond who gives a three year history of low back pain. He reports moving too quickly and it was around the time he had a heart attack in England with sudden onset low back pain and no prior experience of back pain. It persisted and he says there has been no change from the initial episode…”
This extract of Dr Lindsay’s report was put to the veteran by Mr Evans at the Hearing, and the following exchange occurred – Tr. 8.3.2023 p. 37:
“Do you recall making that statement to Dr Lindsay?---No. No I don’t.
So how is that Dr Lindsay has taken that report from you?---Look, I have no idea. I don’t remember that at all, no.”
Whilst the veteran testified that he had been suffering from lumbar spine pain for a longer period than that noted by the Doctors, there is no objective evidence before the Tribunal that would support that proposition.
As will be seen from the notes made by each of the Doctors outlined above, the date the veteran sustained his injury is either 1 July 2019 when he first sought medical treatment, or 1 January 2018 when Dr Dhileepan noted that the veteran first noticed signs or symptoms of his lumbar spine condition. The date of 1 January 2018 is consistent with Dr Lindsay’s report, wherein she noted that the veteran, in February 2021, gave her a three year history of lower back pain. In accordance with s 7(4) of the Act, the Tribunal finds that the veteran is taken to have to have sustained his injury, being a disease, or an aggravation of his disease, on 1 January 2018.
The importance of this finding is that the significant contribution test applies as the veteran’s injury was sustained after 13 April 2007.
Did the veteran’s service contribute to his claimed condition to a significant degree?
It is not disputed that, when the veteran commenced service, his Army medical records disclose that his spine and posture (whilst standing) were observed to be normal – Exhibit 1 T4 p. 30.
The veteran was posted to the 11th Field Ambulance, which he described as “a unit of 130 strong that was full of medics that were just there to replace medics in… Vietnam” – Tr. 8.3.2023 p. 26. However, according to the veteran, most of his time was spent training or playing rugby union football and that he did not spend any significant time in the provision of medical or ambulance services – Tr. 8.3.2023 p. 27.
The veteran’s service records disclose that he suffered a number of injuries whilst playing rugby union football, as well as engaging in other activities:
(a)on 8 January 1969, the veteran was treated at Healesville for a shoulder injury suffered a week earlier whilst he was surfing – Exhibit 1 T4 p. 41. The veteran confirmed at the Hearing that this injury was suffered when he was not performing service duties – Tr. 8.3.2023 p. 29;
(b)on 30 April 1969, the veteran fell on the ground playing football. He suffered a headache for two hours, some blurriness of vision and numbness in his fingers – Exhibit 1 T4 p. 54. He was admitted to hospital and was discharged the following morning, it being observed he was “Fit to RTU” – Exhibit 1 T4 p. 107;
(c)on 7 May 1969, the veteran was “kicked in the mid shin playing football” which resulted in a fracture of the mid and lower thirds of the right tibia – Exhibit 1 T4 p. 20. The veteran’s leg was put in plaster which was changed every three to four weeks. After 12 weeks, the plaster was completely removed, and the veteran was diagnosed by Dr Maynard as being able to return to duty on “sedentary duty for one month & then LD for another month. He should be reviewed then before passed fit for FD…” – Exhibit 1 T4 pp. 89 – 90. On 30 May 1969, the veteran was medically examined, and it was noted that his spine and posture were normal, and it was noted that he was “healing well”, and that he “could be employed back at unit in a desk job” – Exhibit 1 T4 p. 29; and
(d)on 2 July 1970, the veteran struck another person whilst playing football. An X-ray on the right hand the next day disclosed no fracture – Exhibit 1 T4 p. 19.
The service medical records do not disclose any investigation of the veteran’s back or any complaints made by the veteran about his lumbar spine. The following exchanges occurred between the veteran and Mr Evans at the Hearing – Tr. 8.3.2023 pp. 27 – 28:
"…Did you ever report to the Army medical centre for back pain?---Once again… I’ll go back to what I said earlier. If you had gone anywhere near the Army doctor, or an Army sergeant or corporal, or anyone higher than that, and told them you had a back problem, you were accused of being a malingerer or a goldbricker… there was no way in the world you could have convinced anyone in the Army that you had back problems. It was a waste of time.
Do you agree that you didn’t attend the medical centre for back pain at any time?---No.
…
Did you ever injure your back while you were in the Army?---I probably injured my back every day I played rugby union…
…
So when you were answering questions that the Deputy President was asking a short time ago, you mentioned that you had two hospital visits for concussion, broken tibia, broken clavicle, shoulder issues, shoulder injuries and instability of the ankle?---Yes.
You didn’t mention a back injury?---… I really don’t know how to explain this to you. There was no way in the world that I would go to a doctor in 1968 in the Army and say ‘My back hurts as well.’ It’s just not a possible – you know, if you’ve got a broken leg you’re really not worried about if your back’s hurting.”
Mr Evans drew the veteran’s attention to his service Discharge History Questionnaire – Exhibit 1 T4 p. 24. This document was completed by the Army Medical Officer on 10 September 1970. In response to 39 questions about various medical conditions, the Medical Officer reported that the veteran had replied in the affirmative to three of the 39 medical conditions, namely, discharging ears, knee, back or joint injury, and any broken bones. Question 35 related to knee, back or joint injury. The Medical Officer was required, in response to an affirmative answer, to ascertain and state whether occurrence was prior to engagement or during service and was then present.
The Medical Officer’s handwritten notes in response to Question 35 are very hard to understand, but it is clear that he noted “while surfing. Early 69”. The following exchange occurred at the Hearing between Mr Evans and the veteran – Tr. 8.3.2023 p. 32:
“But just in respect of that particular entry, you agree that it’s in respect of the shoulder injury suffered in early 1969 while you were surfing?---No. I think that’s been written down as one but there’s certainly – well if that was written down for the 1969 episode, why wasn’t – why wasn’t it written down for the ongoing things?
…
So you agree that that’s a reference to the injury suffered in early ‘69 while surfing? ---Yes, yes.”
There were further notes made by the Medical Officer in response to Question 35. Again, although the notes are hard to read, the following appears:
“Ortho Report 6/8/70…Still morning ache & stiffness R Shoulder region.”
The following exchange occurred between Mr Evans and the veteran – Tr. 8.3.2023 p. 33:
“So you agree that that injury is in response to your describing ongoing right shoulder pain?---Yes.
And there’s no reference here to your back, do you agree?---No, because there was no medical records. Everything that’s mentioned in those things there is because there’s a medical reference at some stage in my documents. There was – there was no medical reference whatsoever to back injuries. What I’m saying the probability is that, yes, I said ‘Yes, I’ve had back problems’.”
Mr Evans also drew to the veteran’s attention his Medical Examination Record that was completed on the same day as the Discharge History Questionnaire.
The Medical Officer noted that the veteran’s spine and posture were normal – Exhibit 1 T4 p. 23. It was noted that the veteran’s upper extremities were abnormal. The Medical Officers note about this is difficult to read; however, it does make reference to the veteran’s right shoulder.
It is clear, then, that there are no records of the veteran either seeking medical assistance for back pain during his service or reporting to assessing or examining medical officers of any such pain or condition.
The veteran’s response to this is that the service culture of the time was antipathetic to person’s claiming that they were suffering from back pains. The veteran testified that any person making such a claim would be categorised as a malingerer or a “goldbricker”. For example, the veteran testified as follows – Tr. 8.3.2023 p. 11:
“…In 1968 if you’d gone and complained about a back injury to a doctor, or to anyone in the Army, you were accused of being a malingerer or a goldbricking. Two words I’ve never heard again in my life but they – it was just something that wasn’t considered – get back out and get to work, never complain.”
“Goldbricker” is defined in Cassell’s Dictionary of Slang 2nd ed 2005, as a “shirker, a loafer, a lazy person…one who obtains money without working for it”.
The problem facing the Tribunal is that the veteran did not appear reluctant to seek medical attention based on the extensive service medical records presented. The veteran testified that he “wasn’t a passive player” – Tr. 8.3.2023 p. 34. Clearly, the robust and physical nature of rugby union he played resulted in him suffering a number of injuries, including being hospitalised for a prolonged period of time.
If the veteran was suffering back pain, and the culture he described existed, then it is open for the Tribunal to conclude that he deliberately did not report signs and symptoms because of the stigma that would follow from his superior officers. However, that does not explain why he did not report any back symptoms when he was being discharged. The discharge medical records set out above disclose that the veteran reported abnormalities and conditions to the assessing medical officer. There is no logical reason to conclude that the veteran would not have been honest and open to the assessing medical officer as it would not have entailed any repercussions of a negative nature. Indeed, reporting signs and symptoms of a condition that was service-related, even in 1970, would have carried with it the possibility of the repatriation system paying for ongoing post-discharge medical care.
However, this does not dispose of the matter. The fact that the veteran did not report back problems during his service does not mean that he did not have the genesis of what later manifested as lumbar spondylosis. It may well have been that the signs and symptoms the veteran experienced in the period 1968-1970 were mild and, having regard to his other rugby related injuries, he did not give them much attention.
The Commission contended that the veteran only served for two years, which was said to be a relatively short period of time – Exhibit 6 para 46.4. The length of service can in some instances be a critical factor to take into account, especially if the time period is very short. However, by no measure could it be said that rendering national service for two years is a relatively short period of time. The veteran was required to suspend his medical studies and then engaged, inter alia, in strenuous body contact service sport for a lengthy period. The Tribunal does not agree with this submission of the Commission.
Critical to the disposition of this matter is the report and evidence of Dr Khursandi, as well as the other medical reports that have been accepted into evidence.
First, the Tribunal has been presented with the report of the Departmental Contracted Medical Advisor, Dr Rachel Berrisford, which is dated 15 June 2021 – Exhibit 1 T10 pp. 156 – 158. The conclusions reached by Dr Berrisford have been set out above. For present purposes, it is sufficient to note that Dr Berrisford opined that “age is likely to have contributed significantly to this condition” and that she was “unable to attribute more than a minor contribution from the rigours of service” – Exhibit 1 T10 p. 158.
The same conclusion was reached by Dr Khursandi. In his report of 7 September 2022, he concluded that the veteran’s lumbar spondylosis most likely developed in 2018 and that it “would be attributed to constitutional and advanced age”. Moreover, while Dr Berrisford opined that the veteran’s service had a minor contribution to his back condition, Dr Khursandi opined that it “was entirely related to his constitutional and age” – Exhibit 3 p. 6.
The veteran’s case is also not advanced by the report of Dr Friis. Dr Friis opined that the possibility of the MRI confirmed pathology being directly related to previous sporting involvement had a “paucity of literature to support this.” Moreover, Dr Friis went on to opine with respect to the veteran’s service sporting history and his lumbar spine condition, that direct “evidence of cause and effect is unfortunately not obvious here” – Exhibit 8.
Dr Friis did refer to a 2022 review paper looking at the incidence of osteoarthritis in retired Olympians. The paper found that retired Olympians were more likely to have lumbar spine pain and shoulder arthritis pain after shoulder injury than the general population. He went on to state that it can be inferred a sporting history of participation in elite level collision sports is an additive risk.
It will be seen, then, that Dr Friis, while highlighting that participation in elite level collision sports poses an additional risk of lumbar spine and shoulder conditions, it was not obvious in the veteran’s case that there was direct evidence of cause and effect.
The Tribunal was presented with two papers in support of the veteran’s case. The first was by Associate Professor Karen Hind, titled “Rugby: retired players more likely than other athletes to suffer long-term injuries” – Exhibit 1 T12.1 pp. 163 – 165. The following finding was made by Professor Hind – Exhibit 1 T12.1 p. 163:
“…Our research found that compared to athletes from non-contact sports, retired elite and amateur rugby players were between two and ten times more likely to suffer from injuries – including concussion and knee-ligament injuries. Over half also reported osteoarthritis following retirement.”
The other paper was by Mr Neil Hopkins, titled “Preventative Rehabilitation for Rugby Injuries to the Lower Back and Core” – Exhibit 1 T12.1 pp. 166 – 188. Again, the author of the article points to the fact that rugby is a full-contact sport with one of the highest rates of injury compared with other team sports. The author also points out the high rate of lower back injuries suffered by rugby players and the steps that have been taken in the sport since 1995 to minimise the risk of such injuries.
The Tribunal accepts that rugby union football is a full-contact sport and those persons playing rugby union at an elite level are more likely than persons in the general population to suffer injuries, including injuries to the lower back. However, as Dr Friis observed in his report, even accepting the veracity of those articles, direct evidence of cause and effect “is unfortunately not obvious here.” The Tribunal agrees with the following submission of Mr Evans – Tr. 8.3.2023 p. 55:
“The first issue with these articles is that they do not consider the applicant’s specifically factual circumstances in commenting on the onset of his lumbar spondylosis, or the contribution to the onset of that spondylosis which is the task that must be undertaken by the tribunal in determining liability. Secondly the articles are general in nature and cannot take the applicant’s case any higher than a general submission that playing rugby can lead to injury which is not a point in contest. Indeed, the applicant’s medical history shows that he did sustain a number of injuries as a result of playing rugby in the Army. These reports cannot displace the relevant medical evidence that is before the tribunal including the contemporaneous Army medical records, the expert report of Dr Khursandi and the letter of Dr Friis.”
The Tribunal also had the benefit of listening to the testimony of Dr Khursandi. He was cross-examined by the veteran, and it would be fair to say that he answered all questions posed in a direct and authoritative manner. Dr Khursandi stood by the opinions expressed in his report and the Tribunal has no reason to doubt his extensive experience and his considered assessment of the veteran’s lumbar spine condition.
In reality, there is very little to separate the opinions expressed by Drs Berrisford, Friis and Khursandi. The Tribunal has been presented with basically consistent opinions that the veteran’s lumbar spondylosis has its genesis in non service-related factors. The only difference being that Dr Berrisford opined that service factors made a “minor contribution”, while Dr Khursandi opined that the veteran’s condition was “entirely related to his constitutional and age.” In these circumstances, whether the test to be applied is a significant degree or a material degree would not matter, because the preponderance of medical evidence is that the link between the veteran’s service and his lumbar spondylosis is either non-existent or minor. A minor contribution does not meet the standard of either material or significant degree.
Accordingly, the Tribunal finds that the veteran’s lumbar spondylosis is not a compensable condition under s 14 of the Act.
Before concluding, the Tribunal places on record its appreciation for the assistance provided both by the veteran and Mr Evans. The veteran, though of advanced years, presented his case to the best of his abilities. Due to financial considerations, he was unable to advance his cause with professional witnesses. Nonetheless, the Tribunal found the veteran to be an engaging and honest person who articulated his case in a very professional manner.
DECISION
The decision under review is affirmed.
I certify that the preceding 108 (one hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
…....[SGD].......
Associate
Dated: 27 April 2023
Date of hearing: 8 March 2023 Applicant:
Solicitor for the Respondent:
In-person
Mr William Evans
Australian Government Solicitor
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Appeal
-
Causation
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0