David Smith and Repatriation Commission
[2014] AATA 662
•11 September 2014
[2014] AATA 662
Division VETERANS' APPEALS DIVISION File Number(s)
2013/3000
Re
David Smith
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member Bernard J McCabe
Date 11 September 2014 Place Brisbane The decision under review in relation to the applicant’s cervical spondylosis condition is set aside. I decide in substitution that Mr Smith’s cervical spondylosis is connected with his defence service.
The decision under review in relation to bruxism is affirmed.
........................................................................
Senior Member Bernard J McCabe
CATCHWORDS
VETERANS’ AND MILITARY COMPENSATION – Claim that cervical spondylosis connected to applicant’s defence service – Head injury in 1983 while serving on Canadian submarine – Medical records incomplete – Application of relevant Statement of Principles – Requirements met – Reviewable decision set aside and substituted with decision that cervical spondylosis connected with defence service.
VETERANS’ AND MILITARY COMPENSATION – Claim that bruxism connected to applicant’s defence service – Bruxism caused by emotional stress – Many stressors present in applicant’s life – Impossible to conclude bruxism caused by emotional stresses arising out of defence service in particular – Decision under review affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
SECONDARY MATERIALS
Statement of Principles concerning Cervical Spondylosis, No 67 of 2014.
REASONS FOR DECISION
Senior Member Bernard J McCabe
11 September 2014
Mr David Smith says his cervical spondylosis and bruxism (teeth-grinding) conditions should be accepted as defence-caused injuries or diseases for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). He says the cervical spondylosis condition arises out of an injury he sustained while a member of the Royal Australian Navy (RAN) serving on a Canadian submarine in 1983. He says the bruxism is also connected to his service. The Repatriation Commission says I cannot be reasonably satisfied that his conditions are “defence-caused”.
HOW TO APPROACH THE APPLICANT’S CLAIM FOR CERVICAL SPONDYLOSIS
In order to assess Mr Smith’s claim, I must have regard to the relevant statements of principle. I will deal with the cervical spondylosis condition first. The Statement of Principles (the “SoP”) that applies in this case is No 67 of 2014 which revokes No 34 of 2005 as amended by No 77 of 2008. (If the applicant is unsuccessful under the current SoP, I am required to consider his case under the older SoP that was in force when he made his claim. As it happens, the relevant parts of the SoPs are substantially the same, with one exception: an individual relying on the current SoP need only establish he or she experienced symptoms following a traumatic event that lasted for seven days, rather than ten days under the old SoP.)
Mr Smith relies on factor 6(f) of the current SoP, which refers to:
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[.]
The expression “trauma to the cervical spine” is defined in clause 9:
"trauma to the cervical spine" means 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; save for where medical intervention has occurred and that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent;
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.
WHAT HAPPENED TO MR SMITH IN 1983?
Mr Smith enlisted in the RAN in 1981. He was discharged in 1987. Between October 1982 and July 1983, he was posted to the Canadian Submarine Squadron in Halifax, Nova Scotia. At the relevant time, he was a crew member aboard HMCS Okanagan, an Oberon class submarine.
Oberon class submarines are long and narrow, and the conditions for the crew were very cramped. Crew members (apart from the captain) did not have cabins or dedicated sleeping quarters. Sailors like Mr Smith would sleep in bunks that were attached to the structure of the boat in the various compartments fore and aft of the control room.
Mr Smith explained in his statement that – on one voyage in particular – his bunk was known as the “honeymoon suite” (exhibit 2, p 2 at [4]): it was situated close to the roof of the compartment above a table where sailors could socialise and eat. In order to get into the bunk, he had to climb onto the table and hold onto a high-pressure air outlet that jutted from the roof of the compartment. He said in oral evidence he would lash himself into the bunk when he climbed in so he would not fall out while he slept.Mr Smith recalled an occasion when he was asleep in his bunk as the submarine cruised off the coast of the United States. In his supplementary statement (exhibit 3, p 2 at [6]), he said the date was 10 February 1983. (Under cross-examination, he was less certain about the date.) The vessel was attempting to make its way on the surface through wild seas driven by a hurricane. Mr Smith said he was woken suddenly by a fire alarm – a loud, insistent “beep” emanating from a nearby speaker – that caused him to raise his head suddenly from the sleeping position (exhibit 2, p 2 at [5] and exhibit 3, p 1 at [2]). He could not sit up because of the restraints, so his head came forward towards his chest. In doing so, his head butted into the air pipe jutting out of the hull of the vessel above his bunk. He said in his oral evidence that he hit his head so hard the impact actually caused an indent in the skull. The indent is still visible, he claims. In his statement, he said blood poured out of the wound (exhibit 2, p 2 at [5]). As he attempted to disentangle himself from the restraints on his bunk, he fell out of the bunk and crashed to the table, and then to the floor below. He struggled to his feet and picked up a fire extinguisher which he began to use on the fire that had prompted the alarm. Another sailor came to his assistance and helped extinguish the flames.
In the immediate aftermath of the fire, Mr Smith was seen by another crew-member, a petty officer with medical training, who summoned the doctor. (Canadian submarines apparently carried a doctor on board.) But the applicant says the doctor was drunk and unable to provide meaningful assistance. (Mr Smith originally suggested the doctor was drinking beer (exhibit one at p 30) but in his oral evidence he claimed the doctor had been drinking scotch. Mr Purcell, who appeared for the Commission, challenged
Mr Smith about this anomaly. Mr Smith did not explain the inconsistency. That minor inconsistency may not be very important in and of itself but it does point to a larger question over whether it was likely that a ship’s doctor would be drinking alcohol on a submarine in the middle of a hurricane when it was presumably against the rules to do so.) Mr Smith said his head wound was sewn up by the medic, and he was returned to his bunk.The applicant says he overheard the captain say it was impossible to airlift Mr Smith to a hospital on shore: it was too dangerous to execute a transfer in the wild weather.
A decision was taken to make for home port in Halifax. In his statement, Mr Smith estimated the voyage back to Halifax after the incident lasted five days (exhibit 2, p 2 at [7]). In cross-examination, he was less sure: he agreed the journey might have lasted three or four days. In either event, Mr Smith said in his statement that he was confined to his bunk for the duration of the voyage. He said he experienced constant neck pain and headaches from the moment he was injured. In his oral evidence, he said his head was “pounding”. He was given pain relief but claims he experienced serious discomfort throughout the entire voyage. In his oral evidence, he insisted he told “them” (which I assume was a reference to the crew members who attended to him) about his constant neck and head pain. He did not mention any visits from the doctor during the voyage, which seems strange.Mr Smith said in his supplementary statement he was taken to the base surgery on
15 February 1983 when he returned to Halifax. He was examined by the same doctor who saw him on the submarine (exhibit 3, p 2 at [6]). Mr Smith said he told the doctor about his continuing neck pain and migraines. He said he had difficulty swallowing and experienced a tightening in the neck. Mr Smith recalled the doctor checked him over and examined the stitches that had been inserted by the medic. Mr Smith said he was told to come back a few days later to have the stitches removed. He said in his oral evidence that his wife removed all but one of the stitches for him several days later. He said he had a few days off after his return to port. He insisted the neck symptoms remained. (In his evidence before the Veteran’s Review Board, he said “Well, on the submarine…I was in pain for at least four weeks. A massive pain in my neck and my back”: exhibit 7 at p 49.)Extracts from the applicant’s medical records were tendered in evidence (exhibit four). The covering letter which enclosed the records from Library and Archives Canada dated 15 February 2013 points out the Canadian Navy did not hold a complete medical file for Mr Smith because he was only posted there temporarily. The Archives did locate the sick parade register for HMCS Okanagan. The entries in that document are not entirely consistent with Mr Smith’s account. An entry for 15 February 1983 refers to one nylon suture being inserted in the applicant’s head after he “hit head during emergency station”. (I note the record of a single suture being inserted is not consistent with the recollection of the applicant’s former spouse who was with the applicant in Canada. The former
Mrs Smith referred to the applicant having stitches in the plural when he returned from the voyage: see exhibit one at p 167.) A further entry on 18 February 1983 records the suture being removed. Those entries do not refer to complaints of ongoing head or neck pain. There is a reference to headaches apparently prompted by fatigue and/or tension on 29 May 1983 and 6 June 1983. There are other references to unrelated minor conditions throughout this period, but the (admittedly brief) records do not provide strong support for the applicant’s story of severe head trauma followed by ongoing neck and head pain.I was (at least implicitly) invited to infer the treating doctor’s records were neither complete nor competently maintained. I note Dr Sharwood, who was called by the applicant, suggested in oral evidence it was most unlikely that a wound requiring stitches – especially a wound on the face or scalp – would have healed to the point where the stitches could be removed after only three days. Yet that is what the medical records appear to suggest on their face: a lone stitch was inserted on 15 February and removed on 18 February. I have no reason to doubt Dr Sharwood’s evidence on this point, and I think I should treat the medical records with caution.
Dr Sharwood’s evidence was problematic in other respects, however. He did not recall seeing an indent in Mr Smith’s skull which Mr Smith says is still present following the accident in 1983. Dr Sharwood conceded he may not have looked. That is surprising, given he said in his report that he undertook a clinical examination. Of more concern,
I note the original version of his report referred to another patient suffering concussion who was apparently involved in unrelated proceedings. The error prompted an obvious question: was the report provided in relation to Mr Smith merely a cut-and-paste effort, suggesting the doctor had not turned his mind to the circumstances of this case? After hearing Dr Sharwood cross-examined, I am satisfied the errors in the original report may be set to one side. Dr Sharwood’s amended report and his oral evidence appear to reflect a careful consideration of Mr Smith’s situation.Dr Sharwood said the applicant’s complaints of ongoing symptoms were consistent with someone experiencing cervical spondylosis. He said that diagnosis could clearly be made as early as 2007 where a report from imaging studies referred to abnormalities in
Mr Smith’s cervical spine. As to causation, he observed in his report (exhibit 5 at p 7):It is reasonable to assume from his description of the injury to his neck in 1983 that this injury would have produced problems at the C6/7 level, and these were detected on the CT scan taken 24 years later. The patient shows evidence of advanced cervical disease on images taken four years later.
IS THE CERVICAL SPONDYLOSIS CONDITION RELATED TO SERVICE?
Mr Purcell, for the Commission, suggested the applicant’s account of his injury was “highly improbable”. Mr Purcell also referred to the transcript of the proceedings before the Veterans’ Review Board (“the Board”) which recorded evidence of other accidents. There was reference to what the Board described as a “fairly minor” motor vehicle accident in 1980 (Mr Smith denied there was any whiplash: exhibit 7 at p 49, although he said he sustained an injury to his nose when his head hit the steering wheel as a consequence of the collision: exhibit 7 at p 38) and a football injury to his clavicle in 1979 or 1980 (exhibit 7 at p 38). Mr Purcell submitted these events that were unrelated to Mr Smith’s service might offer better explanations for the cervical spondylosis condition. As it happens, the issues that troubled the Board were whether Mr Smith experienced pain for at least ten days following the accident, which they appeared to accept had occurred as Mr Smith described, and the date of onset. That second issue has since been resolved in Mr Smith’s favour.
I must decide whether I am reasonably satisfied the applicant’s claim is connected to his defence service having regard to the relevant SoP. The applicant’s evidence that he hit his head on the submarine in February 1983 is consistent with the limited medical records available. The medical records – such as they are – cast some doubt on whether the traumatic event was as traumatic as Mr Smith claims, but I am satisfied there are enough question marks over the reliability of those records to justify treating them with caution and preferring the evidence of Mr Smith. Mr Smith did not have a clear recollection of all the details of what occurred on the submarine or subsequently. That is unsurprising given the event occurred many years ago and the applicant suffers from depression and may well have experienced problems with perception and recollection in the immediate aftermath of a head injury. But Mr Smith’s detailed description of the injury itself and the aftermath is essentially plausible and uncontradicted. His account of multiple stitches is corroborated by his former wife and the likelihood the stitches were in place for longer than three days is supported by Dr Sharwood. Mr Smith insists he was effectively immobilised and experienced constant pain to the head and neck for the duration of the return voyage (about five days). He says he was forced to take several days off upon his return to port during which time he continued to experience pain. Given that evidence, which I accept, I am reasonably satisfied the applicant experienced a trauma to the cervical spine (as that term is defined in the SoP) within the 25-year period in advance of the date of clinical onset, that date being around June 2007 when the condition was apparent in the imaging. I accept the requirements in the SoP are met.
That means his claim in respect of cervical spondylosis is made out.BRUXISM
That leaves the applicant’s claim in respect of bruxism, or teeth-grinding.
The Repatriation Medical Authority has not published a statement of principles relating to this condition.There was little discussion of this condition at the hearing, which focused on the claim in respect of cervical spondylosis. Mr Black, counsel for the applicant, noted in submissions at [19]:
Emotional stress is an accepted cause of bruxism. The Applicant has experienced stress arising out of his Navy experiences, and that stress has caused or contributed to his bruxism. [Original references removed]
The Commission conceded in its Statement of Facts, Issues and Contentions that the applicant suffers from bruxism, and that it may indeed be related to emotional stresses: [4.18]-[4.19]. But Mr Purcell pointed out in his oral submissions that the applicant has experienced emotional stress from a variety of sources, most obviously as a consequence of his service with the NSW Police. He has been diagnosed with post-traumatic stress disorder, but that condition has not been accepted as being related to his defence service.
Given the variety of sources of emotional stress, it is impossible for me to be satisfied that the applicant’s bruxism was caused by emotional stresses arising out of his defence service in particular.
CONCLUSION
The decision under review in relation to the applicant’s cervical spondylosis condition is set aside. I decide in substitution that Mr Smith’s cervical spondylosis is connected with his defence service. I affirm the decision under review in relation to bruxism.
I certify that the preceding 21 (twenty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Bernard J McCabe. ........................................................................
Associate
Dated 11 September 2014
Date of hearing 9 July 2014 Counsel for the Applicant Mr M Black Solicitors for the Applicant KCI Lawyers Counsel for the Respondent Mr G Purcell
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