Emmett and Repatriation Commission
[2003] AATA 162
•18 February 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 162
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2002/238
VETERANS' APPEALS DIVISION
Re: KENNETH JOHN EMMETT
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Mr B.H. Pascoe, Senior Member
Dr P. Fricker, Member
Date: 18 February 2003
Place: Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) B.H. Pascoe
Senior Member
VETERANS' AFFAIRS – lumbar spondylosis – whether severe high energy trauma to the lumbar spine - parachute jump – fractured ankle – whether Statement of Principles satisfied
Veterans' Entitlements Act 1986
Statement of Principles Instrument Nº 16 of 1997
REASONS FOR DECISION
18 February 2003 Mr B.H. Pascoe, Senior Member
Dr P. Fricker, Member
This is an application to review a decision of the Veterans’ Review Board (VRB) of 12 February 2002 which affirmed a decision of the respondent of 7 June 2001 that the applicant’s claimed condition of spondylolisthesis and spondylolysis were neither war‑caused nor defence‑caused and assessed the applicant’s disability pension at 20 per cent of the general rate.
At the hearing the applicant, Mr K. Emmett, was represented by Ms I. Black, a clerk, instructed by De Marchi & Associates and the respondent was represented by Mr K. Herman, an advocate with the Department of Veterans' Affairs. Evidence was given by the applicant, Mr H. Hadley, an orthopaedic surgeon, and Dr S. Hall, a physician. All evidence was given by telephone. In addition to the documents provided by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act1975, the following documents were tendered:
Statement by Mr K. Emmett dated 29 May 2002 Exhibit A1
Report of Dr J.R. Nave, ophthalmologist, dated 26 July 2002 Exhibit A2
Report of Mr H. Hadley dated 7 August 2002 Exhibit A3
Documents from file of Military Compensation and Rehabilitation
Scheme Nº 1‑33 Exhibit R1
Transcript of VRB Hearing on 12 February 2002 Exhibit R2
Report of Dr S. Hall dated 7 November 2002 Exhibit R3
Mr Emmett joined the Australian Army (the army) in February 1985 and is still serving. He had eligible war service from 20 September 1999 to 10 January 2000 in East Timor. He has accepted service‑related conditions of fracture of the right ankle and pterygium in the left eye which entitle him to the 20 per cent disability pension. As the claim for spondylolisthesis relates to an alleged injury in 1990, the Tribunal is required to decide the matter to its reasonable satisfaction. As the claim was lodged after 1 June 1994, the Tribunal, pursuant to s.120B of the Veterans' Entitlements Act 1986 (the Act), is to be satisfied that an injury was defence‑caused only if a Statement of Principles (SoP), determined under subsection 196B(3) or (12) of the Act, upholds the contention that the injury is, on the balance of probabilities, connected with that service. In this case, the relevant SoP is Instrument Nº 16 of 1997 concerning spondylolisthesis and spondyloyses. The SoP sets out factors that must exist before it can be said that, on the balance of probabilities, spondylolisthesis or spondyloyses is connected with the circumstances of the person's relevant service. The factors relied upon by the applicant here were 5(a) or 5(j), which state:
…
(a)suffering a severe, high energy trauma to the lumbar spine sufficient to result in an acute fracture of the vertebral arch or vertebral dislocation at the involved level:
(i)at the time of the clinical onset of lumbar spondylolysis; or
(ii)at the time of the clinical onset of lumbar spondylolisthesis secondary to vertebral facet joint dislocation; or
(iii)within the six weeks before the clinical onset of lumbar spondylolisthesis due to fracture of the pedicle, pars interarticularis or facet joints of the vertebral arch; or
…
(j)suffering a severe, high energy trauma to the lumbar spine sufficient to result in an acute fracture of the vertebral arch or vertebral facet joint dislocation at the time of the clinical worsening of lumbar spondylolisthesis or spondylolysis; or
Under paragraph 7 of the SoP, the following definition is provided:
…
“a severe, high energy trauma to the lumbar spine” means a major, high impact, direct injury to the lumbar spine, giving rise to immediate lumbar pain and precluding unaided ambulation for a period of at least two weeks, and associated with other fractures and/or significant soft tissue injuries. Examples would include: a fall from a significant height directly onto the back; a major motor vehicle accident; being struck across the back by a heavy, high momentum object such as a falling tree;
In his written statement provided prior to the hearing, Mr Emmett said:
…
2.Around 1990, when I was in Charley Company 3 RAR, I was involved in parachuting around Singleton NSW. The landing point was supposed to be a cleared area but was in fact a Horse Stud, which was fenced off. I lifted my legs to clear the fence, when one foot landed in a horse rut which is about 25‑30 centimetres. I landed very heavily and broke my ankle. I was aware of my back being twisted when I landed heavily. I was lying down and unable to get up for about 20 minutes, and then dragged myself to the waiting ambulance. I was lifted into the ambulance.
3.My ankle was x‑rayed at the Hospital, it was put in plaster and I was put on 6 weeks convalescent leave.
4.Although the main pain was in my ankle, my back was extremely sore for at least six weeks. I spent this time at home lying down.
5.I did not report my back prior to 2000 despite suffering from pain to my back because I did not wish to become medically downgraded by the Army.
6.Over the years the pain in my back has become increasingly worse, and in 2000 I attended the RMO who sent me for x‑rays, which diagnosed spondylolisthesis.
In his oral evidence, Mr Emmett said that the pain in his back after the parachute landing was "like a knife through the middle of the spine" and that severe pain lasted for some six to eights weeks. He said that, while there was some improvement, the pain returned when performing certain acts such as push‑ups. Mr Emmett said that his next parachute jump was some six months later and had a few jumps only before moving to a different role. He said that, after the jump that injured his ankle, he stayed in the field for three days lying on a stretcher. He was responsible for handling stores and supervised another soldier from his stretcher. Meals were brought to him and it was necessary to move a short distance only to the toilet. He accepted that he had not complained directly about any specific back problem as the major pain was in his ankle and he was "stiff and sore all over".
A difficulty with the evidence given by Mr Emmett to this Tribunal is that it varies significantly to that given at the VRB and the histories taken by several medical practitioners. In the VRB hearing, when asked where he had felt the pain in the back, Mr Emmett responded:
…Actually it was down along the base and in the muscles and everything across here. Got sore shoulders and everything. That could be related to – because of your pack and everything is on so tight when you parachute. … I just put it down to muscular sore and thought it would go away after a couple of weeks.
When asked whether he was moving around unaided during the three days in the field after the incident, he said:
…Hobbling around, yes. At that stage I was actually in a vehicle, so I was driving a vehicle most of the time.
MR MEADOWS: But you were doing some moving around as well?
MR EMMETT: Yeah.
He did say that the pain, apparently from the ankle, was too much to continue driving his motor vehicle so he had to get somebody else to drive. In the Tribunal hearing, Mr Emmett acknowledged that he drove a Land Rover once in that time. On 12 February 2002, Mr Emmett made a claim under the Military Compensation and Rehabilitation Scheme in which he attributed his spondylolisthesis to "Parachuting Jumps, Military PT, BFA's". He was examined by Dr P. Mutton, a consultant occupation physician, who took a history of Mr Emmett not having any pain in relation to his back at the time when he fractured his ankle and had no back pain for a further two years. Mr Emmett was examined by Mr R.A. McArthur, an orthopaedic surgeon, who provided a report on 26 September 2001 (T18). While he noted the fracture of the right ankle in a parachute jump, he took no history of any specific back pain at that time and concluded that:
…a reasonable hypothesis can be formulated that the lumbosacral "intervertebral disc prolapse" was a direct result of the trauma to the lumbar spine sustained with the parachute jumping, consequent to the lumbosacral disc lacking the structural protection from an intact L5 neural arch.
Dr Hall, who examined Mr Emmett on 31 October 2002, said, in his report of 7 November 2002 (exhibit R3):
…
He states that he became aware of his low back pain "not long after" this accident. He noted it in particular when rehabilitating after his fractured ankle particularly when doing push ups, walking long distances of more than 5‑6km and running up hill. He had no difficulty with standard walking.
The case for Mr Emmett relied heavily on the report of Mr Hadley who examined him on 29 July 2002 and reported to Mr Emmett's solicitors on 7 August 2002. In that report, after noting the circumstances in which Mr Emmett fractured his ankle, Mr Hadley said:
…He states he continued working doing normal duties as a storeman and driving a Landrover delivering stock for three days, which he did for about two hours a day and spent the rest of the time lying on a stretcher due to pain and swelling in his right ankle and due to pain, stiffness and tenderness in his low back, which he states was extremely sore for at least six weeks. He states the pain in his low back spread to his upper back and he had pain and numbness spreading down his right thigh and leg to the ankle. He states after three days he was transferred by ambulance from Singleton to Ingleburn Hospital where x-rays showed he had sustained a fracture of the lower end of the fibula. He states his ankle was put into a non‑weight bearing plaster. He states his back was not x-rayed. He states his wife came from Blackburn in Sydney and drove him home where he had bed rest for two weeks, during which time he elevated his right foot on a pillow and then got up walking with axillary crutches with taking no weight on his right foot for one week when he then began working in Holsworthy doing clerical work for one week when his plaster was changed in Holsworthy and he had a fibreglass cast with a walking heel put on his right ankle and he walked with forearm crutches. …
This is in contrast to the evidence given by Mr Emmett that he spent six weeks lying supine in bed at home and, for the first few weeks, needed assistance to get to the bathroom, shower, etc.
A further difficulty with the evidence of Mr Hadley is that, in his report, he stated:
…With x‑rays of his lumbar spine taken on 29.9.2000 recording he had grade 1 L5‑S1 spondylolisthesis with his disc spaces, facet joints and sacroiliac joints appearing normal, this indicates the spondylolisthesis was not long standing. When spondylolisthesis is long standing it is very commonly accompanied by narrowing of the L5‑S1 disc with sclerosis or spondylosis at L5‑S1.
Under cross‑examination, Mr Hadley defined "longstanding" as "at least a year and may be two, three or four years" before you would expect to see sclerosis or spondylosis. He felt that it was most unlikely that there would be no such changes after 10 years. In this case, the alleged incident was in March 1990 and the first radiological diagnosis of spondylolisthesis was in September 2000, which would appear to make it difficulty for Mr Hadley to maintain his view that the incident was the cause of the spondylolisthesis.
Dr Hall disagreed with the view of Mr Hadley that the absence of degenerative changes would imply a recent fracture of the vertebral arch and said that it was common for people to have spondylolisthesis without any degenerative change and to be asymptomatic. Dr Hall, in his oral evidence, said that, if the incident had fractured the vertebral arch, there would have been immediate severe pain causing major difficulty in standing, walking or bending making it obvious that there had been a specific injury and needing medication and an 8‑12 week recovery period.
The service medical records show that Mr Emmett first reported back pain on 21 September 2000 where it was noted …chronic pain began this year but has been bearable … Has been ongoing for last 3‑6 months. The Medical Board Examination Record of 27 October 2000 states:
…L5/S1 Spondylolisthesis – Grade 1. Has been causing low back pain intermittently for last 2 years. Now is having severe pain in low back…
There is no prior record of any back problems. Mr Emmett said that he had been reluctant to report his back pain earlier and had "just put up with it" to avoid being medically downgraded.
For Mr Emmett to succeed in his claim for spondylolisthesis, he has to satisfy us that he meets the requirements of the SoP. This requires us to accept that he suffered a severe high‑energy trauma to the lumbar spine involving a major, high impact, direct injury to the lumbar spine giving rise to immediate lumbar pain and precluding unaided ambulation for a period of at least two weeks. While his direct evidence at the hearing sought to indicate that he met the requirement, it has to be said that all other evidence before the Tribunal was contrary to that proposition. It was, perhaps, unfortunate that his evidence was by telephone when his credit was in issue. However, we were left with the clear impression that Mr Emmett had, prior to the hearing, studied the SoP and tailored his evidence accordingly. His reliance on the opinion of Mr Hadley did not materially assist his case. The history taken by Mr Hadley did not support the satisfaction of the factor in the SoP and the view of Mr Hadley that it was likely that any fracture of the vertebral arch would have been less than 10 years prior to the x‑ray which disclosed the spondylolisthesis reduces the value of an opinion that it occurred in 1990. On balance, we are satisfied, on the balance of probabilities, that the incident in 1990 does not satisfy the requirements of the SoP. It could be said, also, that the landing in 1990 and the resultant fracture of the ankle appeared to be less the result of a high impact injury than the result of a twisting of the ankle resulting from the foot landing in a deep rut and a consequent fall. We are satisfied that there was no direct injury to the lumbar spine and the only factor which limited ambulation was the fractured ankle.
As a consequence, the decision under review should be affirmed.
I certify that the twelve [12] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr B.H. Pascoe, Senior Member
Dr P. Fricker, Member
(sgd) Catherine Thomas
Clerk
Date of Hearing: 30 January 2003
Date of Decision: 18 February 2003
Advocate for the applicant: Ms I. Black
Solicitor for the applicant: Messrs De Marchi & AssociatesAdvocate for the respondent: Mr K. Herman, with the Department of Veterans’ Affairs
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