Donald Deslandes and Repatriation Commission

[2013] AATA 800

[2013] AATA  800

Division	VETERANS' APPEALS DIVISION
File Number	2013/0361
Re	Donald Deslandes
APPLICANT
And	Repatriation Commission
RESPONDENT

DECISION

Tribunal	Dr M Denovan, Member
Date	13 November 2013
Place	Brisbane

The decision under review is affirmed.

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Dr M Denovan, Member

CATCHWORDS

VETERANS’ AFFAIRS – Pensions and Benefits – Defence service with Royal Australian Navy – Statement of Principles Concerning Lumbar Spondylosis – No connection between defence service and Lumbar Spondylosis – Decision under review affirmed

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)

SECONDARY MATERIALS

Statement of Principles concerning lumbar spondylosis No. 38 of 2005[1]

[1]As amended by Instrument No. 79 of 2008, Instrument No. 37 of 2010 and Instrument No. 70 of 2013.

REASONS FOR DECISION

Dr M Denovan, Member

13 November 2013

1. Mr Donald Deslandes is the applicant in these proceedings. He served in the Royal Australian Navy from 1 May 1974 until 28 September 1977. He suffers from lumbar spondylosis, a condition that he claims to be linked to his defence service. He seeks treatment and pension for that condition pursuant to the Veterans’ Entitlements Act 1986 (Cth).

2. The parties agreed at the outset of the hearing that the applicant has lumbar spondylosis and the clinical onset for that condition was in 2001. The issue I must decide is whether there is a connection between the applicant’s service and this condition.

3. The applicant claims to have developed lumbar spondylosis secondary to a motor vehicle accident (“MVA”) he was involved in whilst travelling to work in 1977. He has an alternative contention, that he developed the condition a result of heavy lifting he performed during his service. He case is outlined as follows:

4. On 5 April 1977 the applicant was travelling with a friend and fellow stoker, on his motorbike to work. The applicant was the passenger, and at the back of the motorbike. Whilst they were travelling at 80km per hour, a car turned directly in front of them. The applicant was propelled over his friend, and landed on the ground, hitting his helmet first, then landing on his back. He believes he was knocked unconscious, and his next recollection is waiting a long time to see a doctor at the Box Hill Hospital. The applicant was discharged the same day, into the care of his parents. He had a couple of days off work and then returned to light duties. He recalls his back being painful and stiff from the time he awoke in hospital until about three months after the injury. He claims he had a persistent “numb feeling”, and “loss of power in his back”.[2] He recalls having physiotherapy three times a week for some time after the MVA, specifically to treat his back.

   [2] Exhibit 3, p. 1.

5. For the first two weeks after the injury, he returned to duty at HMAS Lonsdale, undertaking very light duties. The applicant explained that HMAS Lonsdale is a small base (not a ship), and his usual position in the maintenance section was already staffed by two Petty Officers. His duties consisted of making coffee and reading magazines. He then returned to Williamstown and was seconded to assist with the preliminary work on the refit of HMAS Parramatta. There were eight officers involved at this stage of the refit, and himself and one other were their ‘dogsbodies’. A position where there was ‘embarrassingly little to do’.

6. The applicant has provided a table outlining the items he lifted, the weights of those items, and the number of lifts he performed, to the best of his recollection.[3] He acknowledges that he is unable to provide accurate weights, but his estimates are based on his recollection of how it felt to lift a 20kg drum. Mr McLean-Williams, for the applicant, acknowledged that the claim in relation to lifting is based on only the applicant’s recollection and estimates. 

   [3] Exhibit 1, T-Document 4, p. 79.

7. Both parties agree that the relevant Instrument in relation to the applicant’s claim and his defence service is the Statement of Principles concerning lumbar spondylosis No. 38 of 2005[4] (“the SoP”). The factors relied upon by the applicant are (f) and (h). Those factors read as follows:

   (f) having a trauma to the lumbar spine within the twenty-five years before the clinical onset of lumbar spondylosis;

   (h) carrying or lifting loads of at least thirty-five kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the twenty-five years following that period;

   [4] As amended by Instrument No. 79 of 2008, Instrument No. 37 of 2010 and Instrument No. 70 of 2013 in a manner not material to this matter.

8. Trauma to the lumbar spine, is defined in the SoP as follows:

   "trauma to the lumbar spine" means a discrete injury, including G force-induced injury, to the lumbar 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 lumbar spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred and that medical intervention involves either:

   (a) immobilisation of the lumbar spine by splinting, or similar external agent; or

   (b) injection of corticosteroids or local anaesthetics into the lumbar spine; or

   (c) surgery to the lumbar spine.

9. There is evidence in the applicant’s service medical records, which supports his claim that he was involved in a MVA on 5 April 1977. Undated clinical notes completed at HMAS Lonsdale refer to the applicant’s involvement in an MVA on his way to work on that date, and injuries including bruises, abrasions and possible concussion.[5] The accident occurred on the Tuesday prior to the Easter long weekend. The contemporaneous medical notes indicate Mr Deslandes was scheduled to return to Box Hill hospital for review on Tuesday 12 April 1977, the first business day following the Easter weekend. It appears form the medical entries that the applicant was reviewed at RANH (Cerberus) on 12 April, and told to return to duty. The next day he presented to the medical centre at HMAS Lonsdale, complaining of pain in the right neck in the back of his head. He was noted on examination, to be tender over the right trapezius. The doctor ordered physiotherapy.[6]

   [5] Exhibit 8, pp. 17-18.

   [6] Exhibit 8, p. 65.

10. The difficulty associated with the applicant’s claim is that there is no mention of his back being injured, or ever being the site of pain, in any of the contemporaneous medical notes. Whilst it is clear that he was prescribed physiotherapy to treat right-sided neck and perhaps shoulder pain secondary to the MVA,[7] there is no suggestion in the notes that the physiotherapy treatment included treatment of his back. The applicant claims to have complained to the physiotherapist about back pain, and said that she told him to perform twisting movements as treatment. Unfortunately there are no physiotherapy notes before the Tribunal. The first mention of the applicant having back pain associated with the MVA is in in a form completed by the applicant during his discharge medical. In response to a question which asked if he was suffering from any disabilities at present, the applicant wrote “back and neck aches resulting from motorcycle accident”.[8] The medical officer completing the discharge medical made no reference to the applicant having injured his lower back.

    [7] Ibid at pp. 63-64.

    [8] Ibid at p. 8.

11. Whilst I accept by the time the applicant presented for his discharge medical, he may well have been experiencing back pain which he associated with the MVA of 5 April 1977. However that is not enough to accept his claim. For his claim to be successful there must be some evidence, which points to him having experienced a trauma of the nature and severity envisioned by the SoP.

12. In my opinion, if a person experienced trauma of the type and severity described in the SoP, they would have sort medical treatment for the injury. There is no mention of the applicant having complained of back pain or loss of movement in his back when he attended the medical centre one week after the MVA, or at any other time prior to discharge. Whilst I accept that not everything a patient says to the doctor is recorded, matters of significance are recorded. Had the applicant complained of signs and symptoms consistent with an injury of the severity envisioned by the SoP, then it is likely that not only would the doctor have made a record of his complaint, but there would also have been investigations performed, and or treatment ordered in relation to those complaints. The applicant stated that he had very little to do in the weeks following the MVA. During that time he was not at sea, he was serving on shore. He therefore had plenty of opportunity to seek medical attention for his back, had it been painful or incapacitating. As I do not accept that Mr Deslandes experienced trauma of the nature anticipated in the SoP, I find that factor (f) of the SoP is not met.

13. The applicant’s estimates of the weight he lifted are not substantiated by any contemporaneous material. I am unable to be reasonably satisfied that the applicant performed the amount of lifting required by factor (h) in the SoP, during his service and prior to the onset of lumbar spondylosis.

    CONCLUSION

14. I am not satisfied there is a connection between the applicant’s defence service and his condition of lumbar spondylosis. The decision under review is affirmed.

I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member

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Associate

Dated 13 November 2013

Dates of hearing	9 and 21 October 2013
Counsel for the Applicant	Mr Andrew McLean-Williams
Solicitor for the Applicant	Mr Terrence O'Connor
Advocate for the Respondent	Mr Bruce Williams