Davis and Repatriation Commission
[2006] AATA 122
•26 March 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 122
ADMINISTRATIVE APPEALS TRIBUNAL ) T1999/154 and
) T2005/108
VETERANS’ APPEALS DIVISION )
Re PETER WILLIAM DAVIS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Associate Professor B W Davis AM (Part-Time Member) Date14 February 2006
PlaceHobart
Decision The decisions under review are set aside and in substitution thereof the Tribunal finds that:
(a) In respect of claim T1999/154, the applicant's disability of intervertebral disc prolapse, with aggravation, is service caused within the meaning of the Veteran' Entitlements Act 1986 and amendments;
(b) The claimed disability of tension headaches is not directly service related, being in some degree congenital, with treatment provided by the army medical service;
(c) In respect of claim T2005/108. the disability of cervical spondylosis may exist, but is not fully demonstrated at this time;
(d) Matters are remitted to the Repatriation Commission for calculation of pension payable from 11 March 1997.
..............................................
Part-Time Member
ADMINISTRATIVE APPEALS TRIBUNAL ) T1999/154 and
) T2005/108
VETERANS’ APPEALS DIVISION )
Re PETER WILLIAM DAVIS Applicant
And
REPATRIATION COMMISSION
Respondent
CORRIGENDUM [2006] AATA 122
Tribunal Associate Professor B W Davis AM (Part-Time Member) Date28 March 2006
PlaceHobart
Decision In clarification of the decision of 14 February 2006, the wording is amended to read as follows:
(a) In respect of claim T1999/154, the decision under review insofar as it relates to mild intervertebral disc prolapse is set aside, and in substitution thereof the Tribunal finds that the applicant’s disability of intervertebral disc prolapse with aggravation is service caused within the meaning of the Veteran' Entitlements Act 1986 and amendments. The matter is remitted to the Repatriation Commission for assessment of rate of pension with effect from 11 March 1997. The decision under review is otherwise affirmed.
(b) In respect of claim T2005/108 the disability of cervical spondylosis may exist, but there is no current proof it is service related and the decision under review is therefore affirmed.Part-time Member
CATCHWORDS
Veterans' Appeals - claimed disabilities - pneumothorax - intervertebral disc prolapse - tension headache - perianal and natal cleft psoriasis - bilateral epicondylitis - cervical spondylosis - aggravation of condition - Statements of Principles - Veterans' Review Board - transport situations - heavy weights
Veterans' Entitlements Act 1986, Sections 120(4) and 120B
Statements of Principles issued by the Repatriation Medical Authority
Bushell and Repatriation Commission (1992) 109 ALR 30
Byrnes and Repatriation Commission (1993) 116 ALR 210
Kattenberg v Repatriation Commission [2002] FCA
Spencer v Repatriation Commission (2002) FCA 229
Orr and Repatriation Commission (2004) AATA 1344
REASONS FOR DECISION
14 February 2006 Associate Professor B W Davis AM (Part-Time Member) decisions under review:
1. This case is long-running, having suffered a number of delays. It involves two applications for review, designated T1999/154 and T2005/108.
The decisions under review are as follows:
T1999/154: A decision made by a delegate of the Repatriation Commission dated 7 January 1998, subsequently affirmed by the Veterans’ Review Board (VRB) on 6 August 1999, determining that pneumothorax, mild intervertebral disc prolapse, tension headache, perianal and natal cleft psoriasis and bilateral epicondylitis were not war-caused within the meaning of Section 70 of the Veterans’ Entitlements Act 1986 and
T2005.108: A decision made by a delegate of the Repatriation Commission dated 22 October 2003, subsequently affirmed by the VRB on 22 July 2005, refusing a claim for cervical spondylosis.
ISSUE:
2. The issue is whether any or all of the applicant’s claimed disabilities were caused or contributed to by service in the Australian Army from 18 August 1981 to 27 August 1990.
STANDARD OF PROOF:
3. As the applicant did not render operational service, subsection 120(4) of the Act applies. The Tribunal is required to decide all relevant matters on the balance of probabilities and to its reasonable satisfaction.
4. As the claim was lodged after 1 June 1984 the Tribunal is required to apply Section 120B of the Act, using Statements of Principles issued by the Repatriation Medical Authority, also noting any other relevant statutory provisions and prior case determinations.
DATE OF EFFECT:
5. Should the applicant succeed in his claim, the earliest date of adjustment of disability pension would be 11 March 1997, being three months prior to lodgement of the informal claim.
BACKGROUND:
6. The applicant, Peter William Davis joined the Australian Army at age 18 in 1981, having completed Year 10 high school, then working for eighteen months as an apprentice carpenter.
7. He completed two periods of basic training that involved intense physical activity, then was assigned to a transport unit and continued in this operational role until 1986. He claims to have experienced some back pain during training and was involved in lifting heavy weights during transport operations, digging weapon pits and handling of heavy camouflage nets. He was called upon to drive vehicles with stiff suspension over very rough ground and during training exercises had to move on and off trucks at speed, with a bit of 50kgs.
8. He claims not to have been given any instruction about occupational health and safety or how to deal with heavy weights. It was always ‘grab it and go’. The culture of the army was that soldiers were discouraged from reporting any illness or injuries.
9. Mr Davis states that his initial symptom was low back pain when marching or standing on hard parade grounds. This worsened, leading to loss of sleep, headaches and difficulty in rotating his neck. The headaches became severe in 1985 and by 1987 he requested a transfer to lighter duties, which was granted. This eased but did not solve the headache problem which continued after he left the army in 1990.
10. In 1987 he had a spontaneous pneumothorax of the left lung, which resolved, but repeated in 1988. In 1987 he also suffered elbow problems from dealing with heavy weights and also reported perianal psoriasis. After leaving the army in 1990 he continued suffering from low back pain radiating into his posterior legs. This did not improve, despite a range of treatments including acupuncture, massage and chiropractic manipulation.
11. When he left the Army Mr Davis worked as a truck driver for a year, then as an excavator driver for about six years, having to forego employment in 1998, then being granted a disability support pension (DSP). He is able to perform very light domestic duties, but continues to experience neck and back pain and must avoid turning his head or lifting it sharply. He also experiences migraine headaches lasting two days at a time.
INITIAL DECISIONS:
12. Mr Davis first applied to the Repatriation Commission for disability support pension on 8 September 1997. He was granted DSP at 20 percent of the General Rate from 8 June 1997 on the basis of acceptance of bilateral sensorineural hearing loss with tinnitus. His claims for pneumothorax, mild intervertebral disc prolapse, tension headache, perianal and natal cleft psoriasis, pruritus ani and bilateral epicondylitis were refused.
13. The applicant was informed in writing of this decision on 7 January 1998, with reasons stated. Mr Davis then sought review by the VRB on 5 March 1998, the Board affirming the decision under review on 6 August 1999. Mr Davis then lodged an application for review by the AAT on 6 October 1999.
14. At AAT hearing was conducted in Launceston on 30 October 2002, the applicant being represented by Mr Ross Hart of counsel and the respondent by Mr Michael Castle. During opening submissions it became clear that the claims being pursued were those relating to disc prolapse, tension headaches and pruritus ani, but no other others, bilateral sensorineural hearing loss with tinnitus having already been accepted as a disability.
15. Following evidence and cross-examination of the applicant’s principal witness, consultant physician Dr Andrew Maclaine-Cross, counsel sought an adjournment to consider whether or not a revised or new application to the AAT should be lodged. The respondent agreed that given the nature of the evidence, this would be an appropriate action, so the adjournment was granted.
16. On 28 July 2003, Mr Davis lodged a claim for ‘Aggravation – Intervertebral Disc Prolapse; Neck Pain and Occipital Headache; Cervical Spondyloarthritis’. A delegate of the Repatriation Commission refused the claim on 22 October 2003 and this decision was affirmed by the Veterans’ Review Board on 22 July 2005. An application for review by the AAT was submitted on 30 August 2005.
THE AAT HEARING:
17. An AAT hearing was conducted in Launceston on 13 January 2006, the applicant being represented by Mr Ross Hart of counsel and the respondent by Mr Michael Castle.
18. Counsel for the applicant stated that the claim for pruritus ani would not be pursued, the matters before the Tribunal related to aggravation of intervertebral disc prolapse, tension headache and cervical spondylosis.
19. Peter William Davis was sworn as witness and gave evidence about his fitness prior to army service, intense physical activity during initial training and his role as a Field Force transport driver during the period 1981 to 1987. He claimed he was required to load heavy weights on and off vehicles and work at a fast pace, even when operating solo. Initial symptoms of low back pain gradually became worse, he developed major headaches from 1985 onwards and suffered neck ache, with some difficulty in rotating the neck. By 1987 he was forced to seek lighter duties and was transferred to a Domestic Unit, still loading and driving trucks, but now at a slower pace. He suffered several disabilities during service, some resolved, but others remained until the date of discharge from Army service and continued to manifest themselves in civilian employment as a truck driver and excavator operator. He received Disability Support Pension from 1998 onwards, is able to carry out some light domestic duties, but now suffers constant neck ache and back pain, as well as migraine headaches lasting up to two days at intervals a couple of weeks apart.
20. Mr Davis stated the army had not provided any training or instruction on how to handle heavy loads, he sometimes had to deal with water or fuel containers up to 500at a time, each weighing 20 kg or more and also dealt with shell and ammunition boxes, general supplies up to 70kg in weight and the lifting of camouflage nets weighing 150 to 200 kg, without help. During initial service he had to move on and off trucks quickly, with kit weighing up to 50 kg, he later was required to drive poorly sprung vehicles over very rough ground.
21. During cross-examination he was asked why he did not report any service disabilities, he stated the army discouraged reporting injuries or sickness. He was asked whether there were any incidents of trauma and said a very heavy pallet had slid off a fork-lift truck and pinned him against his load, but not caused any major injury. He considered his back and neck problems were the result of shifting heavy loads over several years.
22. Consultant physician, Dr Andrew Maclaine-Cross was sworn as medical witness and commented on two reports dated 2 August 2002 and 8 December 2004 he had prepared about the applicant’s army service and disabilities.
23. In the report dated 2 August 2002, Dr Maclaine-Cross indicated that pneumothorax had been treated conservatively by the army medical service and no significant residual disability was apparent. Service conditions may have induced bilateral epicondylitis, pruritus ani and perianal psoriasis, but there were no longer significant problems. The principal disability was intervertebral disc injuries to the lumbar spine, caused by constant heavy lifting and exposure to jarring and vibration and it was likely this had caused degenerative arthritis of the cervical spine. He considered it probable, rather than merely possible, that military service as a truck driver was the major causative, aggravating and accelerating factor that had led to current degenerative spondyloarthritis.
24. These matters were further discussed in his report dated 8 December 2004. He had examined Mr Davis and noted diffuse tenderness of the cervical, thoracic and lumbar spine, also discomfort with any neck extension or rotation. On the balance of probabilities the applicant suffered constant neck pain and occipital headache, due to accelerated degenerative arthritis of the cervical spine and major tension headache.
25. Radiological evidence might have been helpful in diagnosing Mr Davis’s condition, however there were many cases where injuries such as vehicle accident whiplash would not settle, yet x-rays or MRI scans might appear normal. Ongoing repetitive work and the lifting of substantial weights were occupational risks common in fields such as truck driving and loading, some forms of manual and factory work and some fields of nursing. Cumulative micro-trauma could be a source of severe back pain and injury.
26. Dr Maclaine-Cross was asked whether he could identify any specific trauma Mr Davis might have experienced at a particular point in time. The doctor said he could not point to a triggering event, but it was common in some vocations such as heavy manual labour in the meat industry, some kinds of stonemason operations and other injuries such as epicondylitis or tennis elbow, for disabilities to occur which did not settle. He was also asked whether the concept of a ‘dose’ was relevant in situations where an individual was asked to lift 10 kg at a time, at least 25 times per day, for a period of at least two years, immediately prior to the worsening of disc prolapse. Dr Maclaine-Cross said three factors could be involved: an activity, a length of time and the application of a repetitive dose.
27. Dr Maclaine-Cross was also queried about the onset and development of cervical spondylosis, which he said had the same background cause as disc prolapse, but did not necessarily involve identifiable radiological evidence of damage to the spine.
28. During cross-examination Dr Maclaine-Cross said it was cumulative trauma, rather than a specific incident which was pertinent in Mr Davis’ case. It was clear the applicant was fit on entering army service, but within a fairly short time back pain developed, which worsened with truck loading and unloading to a point where he had to seek lighter duties. Even then loading duties continued, constituting aggravation of existing disabilities. Mr Davis was not given any training about handling heavy loads and weights and was forced to operate in circumstances which would probably have been unlawful in civilian occupations. When asked whether Mr Davis’ case precisely met relevant Statements of Principles (SOPs), he stated it was his opinion that some factors were met, but in any case what Mr Davis had undergone was the equivalent of these, it was multiple micro-episodes which had induced and aggravated his injuries.
29. In closing submissions counsel for the applicant said it was clear that work activities during army service had caused disc prolapse and this had clinically worsened as duties continued. In this sense the SOP criteria for lifting heavy weights for at least two years prior to clinical worsening of the disability had been met. Counsel for the respondent did not discount such a possibility, but considered that the evidence before the Tribunal did not really meet SOP factors in terms of quantum or timing. It was clear the SOPs did not fully deal with situations such as Mr Davis faced.
ANALYSIS:
30. This is a de novo review with the Tribunal required to take into account all available evidence, relevant statutory provisions and principles and any prior case determinations which might provide guidance.
31. Section 120B of the Veterans’ Entitlements Act 1986 and Amendments requires the Tribunal to take into account any relevant SOPs (Statements of Principles) issued by the Repatriation Medical Authority. In the current case the reference documents are Instruments 130 and 131 of 1996, as amended by Instrument 92 of 1997, dealing with Intervertebral Disc Prolapse, also Instruments Nos 33 and 34 of 2005 dealing with Cervical Spondylosis. Instrument No 77 of 1999 dealing with Tension-Type Headaches should also be noted.
32. Paragraph 5 of Instrument No 131 (Intervertebral Disc Prolapse) sets out the factors which must be considered before a linkage between service conditions and claimed disabilities can be demonstrated:
“(a) suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse; or
(b) suffering a penetrating injury to the relevant disc or adjacent vertebral body, or a fracture of the endplate of the adjacent vertebral body, at the time of the clinical onset of intervertebral disc prolapse; or
(c) lifting at least 10 kg, at least 25 times a day, on average, for a period of at least two years within the five years immediately before the clinical onset of intervertebral disc prolapse; or
(d) driving a motor vehicle or flying a motorised aircraft for an average of at least 30 hours a week, as an occupational requirement, for a period of at least two years within the ten years immediately before the clinical onset of intervertebral disc prolapse; or
(e) exposure to an environment of high positive G forces at the time of the clinical onset of intervertebral disc prolapse; or
(f) smoking at least 30 pack years of cigarettes before the clinical onset of intervertebral disc prolapse; or
(g) suffering trauma to the relevant disc at the time of the clinical worsening of intervertebral disc prolapse; or
(h) suffering a penetrating injury to the relevant disc or adjacent vertebral body, or a fracture of the endplate of the adjacent to the vertebral body, at the time of the clinical worsening of the intervertebral disc prolapse; or
(j) lifting at least 10 kg, at least 25 times a day, on average, for a period of at least two years within the five years immediately before the clinical worsening of intervertebral disc prolapse; or
(k) driving a motor vehicle or flying a motorised aircraft for an average of at least 30 hours a week, as an occupational requirement, for a period of at least two years within the ten years immediately before the clinical worsening of intervertebral disc prolapse; or
(m) exposure to an environment of high positive G forces at the time of the clinical worsening of intervertebral disc prolapse; or
(n) smoking at least 30 pack years of cigarettes before the clinical worsening of intervertebral disc prolapse; or
(o) inability to obtain appropriate clinical management for intervertebral disc prolapse”.
33. Paragraphs 5(g) to 5(o) apply only to material contribution to or aggravation of lumbar disc prolapse, where this was contracted before or during (but not arising out of) the person’s relevant service.
34. Instrument 92 of 1997 redefines ‘intervertebral disc prolapse’ and provides further explanation of the term ‘trauma to the relevant disc’, but otherwise has the same content and meaning as Instruments 130 and 131 of 1996.
35. Given the nature of Mr Davis’ claimed disabilities both parties placed considerable emphasis on factor 5(c) of Instrument No 131 “... lifting at least 10 kg at least 25 times a day, on average, for a period of at least two years within the five years immediately before the clinical onset of intervertebral disc prolapse ...”, however they viewed its application differently. Factor 5(j) was also noted, dealing with worsening of the condition
36. The view of the respondent, as expressed in decisions of the Repatriation Commission and Veterans’ Review Board was that Mr Davis was judged fit and well at the times of enlistment and discharge, thus if intervertebral disc prolapse did exist (which they doubted) it must have occurred later, the first intimation being 1997, when initial evidence of treatment was noted. It was argued the SOP could not be met because onset occurred seven years after service and not within five years and there was no evidence of ‘worsening’.
37. The applicant offered an entirely different version of events, arguing that Mr Davis commenced suffering back pain quite early in his army career and the disability rapidly became worse as aggravation occurred through repeated jarring and lifting activities, so that by 1987 he had to seek lighter duties. This did not remedy the situation, since he was involved in the same functions but at a slower pace. He suffered tension-type headaches throughout and was only able to cope with civilian employment on trucks and excavators because it involved sitting rather than lifting.
38. In terms of cervical spondylosis it is Instruments Nos 33 and 34 of 2005 which are relevant. Paragraph 6 of Instrument 34 sets out a long list of factors to be considered, but those pertinent to the current case include Factor 6(h) concerning load carrying (but at least 25 kg carried on the head) and Factors 6(d) and (n), involving having a spinal condition such as deformity of a vertebra or joint before the clinical onset or worsening of cervical spondylosis. Instrument 34 of 2005 also places considerable emphasis on the notion of ‘trauma’ specifying a number of conditions to be met before it can be considered a significant causal factor in disability.
39. Neither party had much to say about cervical spondylosis. The respondent argued there was no evidence of it and no specific identification of trauma, the applicant argued it arose from aggravation of existing intervertebral disc prolapse and was a disability.
40. Given these contrasting perspectives it is time for the Tribunal to consider the detail and totality of the case. The applicant appeared a truthful witness and his account of conditions of his army service was not challenged. It is clear he was subjected to unreasonable workloads and physical stress but expected not to complain. Dr Maclaine-Cross is firmly of the view Peter Davis suffered intervertebral disc prolapse during army service arising from cumulative micro-trauma from jarring and lifting heavy loads. There is also empirical evidence that individuals engaged in a number of other vocational fields also required to engage in heavy lifting activities have suffered similar back and neck injuries which have failed to settle.
41. Dr Maclaine-Cross also drew attention to other situations where x-rays and scans failed to disclose damage to vertebrae and joints, nonetheless back pain, neck rotation problems and tension headaches could arise and continue. His views on this matter were not challenged.
42. There remains the issue of whether any of the factors listed in the relevant Statements of Principles have been fully met. There is no conclusive evidence as to when a condition of intervertebral disc prolapse might have arisen during Mr Davis’ nine years of army service, however an hypothesis can be postulated that if an individual was called upon to lift heavy weights repeatedly, say 10 kg at least 25 times a day for two years or more, it could have occurred within the five years immediately before clinical onset of intervertebral disc prolapse. Dr Maclaine-Cross preferred to express this situation in terms of cumulative micro-trauma as causal factor, but in response to a question about this matter argued that what Mr Davis had undergone was at least equivalent to Factor 5(c) of Instrument No 131 of 1996. Parties appeared agreed that Instruments 131 of 1996 and 34 of 2005 were not particularly helpful in diagnosing connections between service and disability in circumstances of the kind Mr Davis faced. The Tribunal sought to discover whether any other SOPs might be more appropriate but none were identified. The Tribunal also noted Spencer v Repatriation Commission (2002) FCA 229 which deals with situations where there is no relevant SOP in place.
43. There are two further issues to be resolved, namely claims relating to tension-type headache and cervical spondylosis. The evidence suggests Mr Davis has suffered headaches from childhood and while the VRB was willing to concede these might have intensified during army service, the Board decided there was no evidence of any triggering event linking tension-type headaches specifically to service. Dr Maclaine-Cross queried this, pointing out the severe back pain and associated neck pain could lead to muscular tension and occipital headaches. It was not so much that army service caused tension-type headaches to commence but rather that service conditions could exacerbate an existing disability. Nonetheless SOP Instrument No 77 of 1999 lists only Factor 5(b) “... inability to obtain appropriate clinical treatment” and it is clear this situation did not arise as army medical records show Mr Davis received treatment aimed at ameliorating his disability.
44. As earlier indicated Instruments Nos 33 and 34 of 2005 list a number of factors relating to cervical spondylosis but seek to link these to some triggering trauma or prior disability. The focus in the AAT hearing was largely about Factors 6(h) and 6(r) concerning lifting of weights but only those carried on the head. This tended to shift attention away from other factors such as 6(d) “... having a condition of the cervical spine from the specified list of spinal conditions before the clinical onset of cervical spondylosis” or 6(g) “... having a cervical intervertebral disc prolapse before the clinical onset of cervical spondylosis at the level of the intervertebral disc prolapse; or ...”
45. The respondent has argued there is no specific medical evidence of cervical spondylosis and no identification of any initiating trauma although an x-ray report dated December 1995 and a CT scan in August 1997 demonstrate mild degeneration in the lower cervical region considered at the time to be of doubtful clinical significance. Dr Maclaine-Cross has expressed a differing view, namely that symptoms identified during medical examination of the applicant indicated degenerative spondyloarthritis of the spine with involvement of either intervertebral discs or posterior facet joints. Dr Maclaine-Cross does not claim with certainty there is degenerative arthritis of the cervical spine, but considers it highly likely it has developed through similar mechanisms to those affecting the lower spine. The Tribunal tends to agree but causation and onset are not clearly demonstrated at this time.
SUMMARY AND DECISION:
46. As earlier indicated Section 120(4) of the Act applies. The Tribunal is required to decide all relevant matters on the balance of probabilities and to its reasonable satisfaction. Efflux of time and the absence of evidence on a few aspects of the case render determination difficult but having weighed all evidence anew the Tribunal finds as follows:
(a) the decisions under review should be set aside and in substitution thereof:
Re T1999/154: the disability of intervertebral disc prolapse with aggravation is service related;
the disability of tension headache is not solely and directly service related;
Re 2005/108: the disability of cervical spondylosis may exist but is not fully demonstrated at this time
(b) Matters are remitted to the Repatriation Commission for calculation of pension payable from 11 March 1997.
I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-Time Member)
Signed: R Hunt (Administrative Assistant)
Date/s of Hearing 13 January 2006
Date of Decision 14 February 2006
Counsel for the Applicant Mr Ross Hart
Solicitor for the Applicant Hart & Associates
Counsel for the Respondent Mr Michael Castle
Solicitor for the Respondent Department of Veterans' Affairs
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