Fall and Repatriation Commission - [2000] AATA 29

DECISION AND REASONS FOR DECISION [2000] AATA 29

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1998/651

VETERANS' APPEALS DIVISION )

Re GEOFFREY JAMES FALL
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Ret'd), Senior Member Mr I.L.G. Campbell, MC, Member Dr C. Re, Member

Date24 January 2000
PlaceMelbourne

Decision The Tribunal affirms the decision under review.

(Sgd.) B.G. Gibbs
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement - Lumbar Spondylosis - whether war-caused - congenital pes planus - whether suffered physical trauma impairing ligamentous or bony structure of feet - whether a malalignment of lumbar spine
Words and Phrases - "physical trauma"; "malalignment"
Veterans' Entitlements Act 1986 - ss. 6,7,8,120, 120B
Smith v Repatriation Commission (1987) 74 ALR 537
Repatriation Commission v Law (1980) 31 ALR 140

Statements of Principles, Instrument No. 28 of 1999; 305 of 1995

REASONS FOR DECISION

24 January 2000 Commodore B.G. Gibbs, AM, RAN (Ret'd), Senior Member Mr I.L.G. Campbell, MC, Member Dr C. Re, Member

Introduction

This is an application by Geoffrey James Fall for review of the determination of a delegate of the respondent dated 4 September 1996, being a determination affirmed by the Veterans' Review Board on 22 April 1998, that lumbar spondylosis is not war-caused within the meaning of section 9 of the Veterans' Entitlements Act 1986 ("the Act").
Representation
Mr Fall was represented before this Tribunal by Mr A. Larkin of Counsel. Ms J. McCulloch, Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Other material, to which it shall be necessary to refer, was also received in evidence during the hearing.
Witnesses
Evidence was given during the hearing by Mr Fall and evidence on his behalf was given by Mr. R. Westh, who is an Orthopaedic Surgeon, and Mr S. Schofield, who is also an Orthopaedic Surgeon.
Evidence on behalf of the respondent was given by Mr P.C. Lugg, who is a surgeon specialising in Orthopaedics.
It should be recorded that Dr F. Morgan, who is a Senior Medical Officer (Appeals) with the Department of Veterans' Affairs, was also called to give evidence at the request of the Tribunal.
Issue
The issue before the Tribunal is whether lumbar spondylosis is war-caused within the meaning of section 9 of the Act.
Relevant Service
It is common ground that Mr Fall served in the Royal Australian Air Force from 10 January 1945 to 29 April 1946. It is likewise common ground that while in the Air Force Mr Fall rendered what is termed "eligible service" within the meaning of section 7 of the Act. He did not, however, render what is termed "operational service" within the meaning of section 6.
Standard of Proof
As Mr Fall rendered eligible but not operational service, the Tribunal is required to decide the issue to its reasonable satisfaction (sub-section 120(4) of the Act). A standard of proof on the balance of probabilities is therefore applicable (Smith v Repatriation Commission (1987) 74 ALR 537).
Section 120B of the Act, to which reference is made in the Note to sub-section 120(4), provides that it applies to claims made on or after 1 June 1994. As Mr Fall's claim was made on 2 February 1996, section 120B applies to his claim. Section 120B(3) provides as follows:
"(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."

Applicant's Contentions

In a Supplementary Statement of Facts and Contentions lodged with the Tribunal, it was stated on behalf of Mr Fall that:
"It is the applicant's contention that during and as a consequence of his war service (and in particular as a result of being on his feet and marching for lengthy periods and undertaking strenuous duties) he aggravated his pre-existing and significant pes planus. It is not disputed by the applicant that he suffered pes planus prior to enlistment. It is submitted that the aforementioned physical trauma during his war service caused a straining of the ligamentous structures of his affected feet and that this in turn contributed to an altered gait and postural problems and in turn then led to malalignment of his spine.
The following Statements of Principles formulated by the Repatriation Medical Authority "RMA) seem relevant to the subject proceedings:
(1)Instrument number 305 of 1995 dealing with congenital pes planus;
(2)Instruments numbered 166 of 1996, 53 of 1998 and 28 of 1999 dealing with lumbar spondylosis.
The applicant is mindful of the fact that the Federal Court of Australia in Keeley –V- Repatriation Commission (per Heerey J.) on 13 August 1999 delivered a decision indicating that an applicant had an accrued right so that the Statement of Principles in force at the time that the primary decision was made was to be applied (and that that decision is currently on appeal to the Full Court of the Federal Court). All of the relevant Statements of Principles dealing with lumbar spondylosis have the following as a factor in the cause of lumbar spondylosis on the balance of probabilities:
'having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis.'
It is upon the above factor that the applicant relies in these proceedings and the outcome of Keeley's Case before the Full Court of the Federal Court accordingly is not relevant in these proceedings."

Respondent's Contentions

In an Amended Statement of Facts and Contentions lodged with the Tribunal, the respondent stated:
"4.3 The relevant SoPs in this case are:

Congenital Pes Planus, Instrument No 305 of 1995
Lumbar Spondylosis, Instrument Nos 166 of 1996, 53 of 1998 and 28 of 1999.
4.4Pes Planus
The applicant is relying on factor 1(a) of the Congenital Pes Planus SoP,
'suffering physical trauma which impairs the ligamentous or the bony structure of the affected foot immediately before the clinical worsening of congenital pes planus.'
The respondent contends that there is no evidence of the applicant suffering physical trauma to his feet immediately before the clinical worsening of his congenital pes planus.
4.5Lumbar Spondylosis:
The applicant is relying on the factor 5(d) of the Lumbar Spondylosis SoP,
'having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis'
and contends that he suffered a physical trauma to his Congenital Pes Planus that led to the requisite malalignment of the spine.
The respondent contends that there is no evidence of malalignment of the spine or of any service related activity that impinged on the anatomy or function of the spine.
The respondent contends that the whole causal chain relied on to form the connection between service and a medical condition needs to be supported by SoPs (Repatriation Commission v Kevin John McKenna – Full Federal Court Decision, unreported 29 March 1999). In this case, the applicant's Pes Planus cannot be accepted via the Congenital Pes Planus SoP. In addition, the respondent submits that the veteran has not suffered any malalignment of the spine as defined in the Lumbar Spondylosis SoP."

Definitions – Congenital Pes Planus

SoP No. 305 of 1995 states that, for the purposes of the SoP:
"'congenital pes planus' means a deformed foot present at or soon after birth, attracting ICD code 754.61, in which the position of the bones relative to each other has been altered with the lowering of the longitudinal arch, including hypermobile flatfoot and rigid flatfoot with tarsal anomalies.
'physical trauma' means an injury caused by the force of an extraneous physical or mechanical agent, including traumatic disruption of the plantar ligament, fracture or dislocation of the foot bones, rupture of the posterior tibial tendon, or dislocation of the talonavicular joint."

Definitions – Lumbar Spondylosis

SoPs No. 166 of 1996, No. 53 of 1998 and No. 28 of 1999 all provide that, for the purposes of the SoP:
"'Malalignment' means the presence of significant displacement out of line resulting from the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length."

Evidence – Mr Fall

On 9 June 1998 Mr Fall signed a written statement for the purposes of these proceedings (Exhibit A1).
At the hearing Mr Fall confirmed that to his belief the content of the statement is true and correct.
Examination of the statement reveals that its content is both comprehensive and relevant to the issue for determination, and for that reason it is convenient to set out the statement in full:
I was born on 25 December 1926. I served in the RAAF from 10 January 1945 to 29 April 1946. I never served outside of Australia; the furthest north that I served was Brisbane.
For about the last twelve months of my service my duties were as a cypher assistant. These duties were mainly sedentary.
I suffered no back pain prior to enlistment. I first became aware of back ache during my service years.
Prior to enlistment I did suffer flat feet and hammer toes. When I was about fourteen years of age my family doctor (Dr Bartram then of Canterbury) prescribed arch supports which were made and fitted. I wore them until my enlistment. Prior to enlistment I wore the arch supports whilst undertaking normal activities although I did find them uncomfortable when running and I therefore did not use them whilst playing sport. To the best of my recollection I had suffered leg pain for a reasonable time before being taken to Dr Bartram by my mother. I cannot now recall how long I had put up with the symptoms before being referred to Dr Bartram but I imagine that it would have been a reasonable time as I certainly was embarrassed and resistant to having to wear the orthotics. To the best of my recollection the arch supports did alleviate my leg symptoms prior to enlistment.
I did not mention the trouble with my feet to the RAAF at any stage. I had been embarrassed by having to wear the arch supports prior to enlistment. There was peer pressure during service not to complain about ailments and I did not know of anyone else who wore arch supports. I did not want to become somewhat of an oddity and therefore I put up with the symptoms during service without complaint. The fact is that the pain in my feet did return during service and I think that the symptoms were further exacerbated by the service issue boots which I wore. I had not worn boots before service. I put up with the symptoms in my feet and back during service without complaint.
I suffered no injury to my back as such during service or at any other time of my life. To the best of my recollection the back ache commenced during my training with the RAAF (and also the route marches and drills were particularly uncomfortable). I recall suffering callouses and sore feet.
By discharge I was suffering an ache in my low back. It was then intermittent. After discharge I undertook an engineering course at Swinburne Technical College and I recall suffering back ache when sitting and studying. The ache developed to the point that in 1948 I first consulted a doctor about it. The doctor was Dr Judkins then of Box Hill. I do not believe that he is still in practice. I do recall that Dr Judkins advised bed rest but I cannot recall if he prescribed any medication. I did re-commence using arch supports after discharge but cannot recall whether I was using them again before the referral to Dr Judkins. In any event, I have worn arch supports for most of the time since discharge. I am wearing orthotics to the current day.
I believe that my back complaint is related in part to my altered posture during war service years which was consequent upon the pain in my feet. I believe that the fact that I did not wear orthotics during my war service years did contribute to the back complaint and certainly it was during this period that I first developed back ache.
My back pain progressed and I developed referred pain into both legs. I underwent a laminectomy in 1956 and this did relieve the symptoms in my right leg.
After completing my engineering diploma I obtained work as a civil engineer. I worked as a civil engineer until my retirement in 1982. My duties required me to visit sites but mainly my duties were sedentary. When I did visit sites I was not required to lift or undertake repeated bending activities.
My current family doctor is Dr G. Walsh of Fairhills Clinic, Glen Waverley. He has referred me to an orthopaedic surgeon, Mr S Schofield."
In oral evidence Mr Fall expanded on his reference to the wearing of service issue boots by stating that while stationed at Shepparton, which was for a period of some seven weeks, he was required to spend most of the day on the parade ground, marching and drilling.
Mr Fall stated that because of this he developed callosities under the balls of both feet and small toes and his feet became very sore.
With reference to his written statement in which he recorded that because "I had suffered leg pain for a reasonable time before being taken to Dr Bartram by my mother", Mr Fall explained that at first his mother thought he was simply experiencing "growing pains", but later became aware that the pain occurred mostly in the arch of his left foot and up into the calf of that leg.
In his oral evidence Mr Fall also confirmed his written statement that while serving in the Air Force he "put up with the symptoms in my feet" without complaint, and that he did not seek medical treatment.
When asked why he did not seek medical treatment, Mr Fall stated that he did not want to jeopardise his chances of completing his training and eventually being posted overseas.
When questioned about his attitude towards wearing orthotics, Mr Fall responded by saying:
"Well, that was something I was never happy as a young person to have to wear because sort of peer pressure and you didn't know anybody else who wore them and I certainly didn't think I would wear them into the services because that would be a sort of a give away. I thought I could probably manage without them." (Transcript, p9)
Following his initial training period at Shepparton, Mr Fall was posted to Adelaide, where he underwent training as a Cypher Assistant. It is understood that this was from 26 February 1945 to 30 March 1945, and that he then underwent further such training at the Signals School, Point Cook, from 30 March 1945 to 29 May 1945.
Mr Fall then performed duties as a Cypher Assistant at RAAF HQ Melbourne, RAAF Command Brisbane and later at 1 OTU, East Sale, but with the cessation of hostilities in 1945 he was required to perform duties of a different nature, including hospital administrative work at RAAF, East Sale, for a period of some four months before being discharged from the Air Force.
It was Mr Fall's evidence that while under training in Adelaide he was still required to march and that as a result he continued to experience the same problems with his feet.
Mr Fall said that while serving at Point Cook he had to participate in parades, however there was no marching.
It will be noted that in his written statement Mr Fall stated that to the best of his recollection he first began to experience back ache during his period of Air Force training, and that the pain in his feet worsened during that period.
In his oral evidence Mr Fall was somewhat less precise when asked about the onset of pain in his back, stating that:
"Somewhere through my service, I couldn't say exactly where, I started to develop an ache in my back. I didn't give it a lot of thought at that time. One thing, I was a fairly lightly built person, I was only about 9½ stone and six foot tall and I just thought it was problems with posture and that and I didn't give it a lot of thought but, yes, I can remember – I would call it an ache at that stage, it was nothing like the traumatic pain I've had in latter years." (Transcript, p10)
Mr Fall was of the view that because of the pain that he experienced in his feet there were times when he was not walking properly and that to compensate for this he may have altered his posture.
It was Mr Fall's evidence that he continued to suffer back pain during the remainder of his Air Force service.
Mr Fall said that his recollection is that he first sought medical attention for back pain towards the end of 1948. He would then have been 22 years of age.
As he has recorded in his written statement, Mr Fall underwent a laminectomy in 1956.
When asked as to the success of the operation, Mr Fall stated in evidence:
"Well, the operation wasn't 100 per cent successful. It relieved the immediate problem of the severe pain in the right leg but I was left with quite a bit of numbness in my leg, lower leg and my foot, but I couldn't tell you when but in the next few years I started getting the pain back again and I can remember in the '60's and the '70's I had many occasions where I was off work for three weeks at a time, which was prescribed bed rest, my doctor used to give me, to relieve the pressure."

Evidence – Mr R. Westh

Mr Westh, who as indicated earlier practises as an orthopaedic surgeon, saw Mr Fall on 14 October 1998, later providing four reports for the purposes of these proceedings.
In his report dated 10 November 1998 (Exhibit A2), Mr Westh, after taking Mr Fall's service and medical history, said of him as follows:
"There were no Xrays accompanying the patient. However, accompanying medical reports describe gross degeneration at L4/5 and L5/S1 with loss of the normal lumbar lordosis and degeneration with retrolisthesis at L3/4.
Thus in summary, Mr Geoffrey Fall is a seventy-one year old man who served in the RAAF between 1945 and 1946. During this period he had a lot of trouble with his painful flat feet and as a result he had problems with posture and he developed an aching discomfort in his lower back. There was no history of any injury during his service but subsequently when he resumed civilian life.
Of significance, he was experiencing back pain at the time of his discharge when he was only aged twenty and his pain progressed. He subsequently experienced left [sic] sided sciatica and ultimately he required a laminectomy in 1956. Thus, Mr Fall had very early onset of back pain which can only be attributable to his service in the RAAF. Following his surgery he has gone on to develop severe degenerative changes in his spine with loss of the normal curve and also instability in his spine.
Thus, in my opinion Mr Fall has developed a malalignment of his spine with resultant development of marked lumbar spondylosis. In my opinion, the claimed condition, i.e. lumbar spondylosis does fit within the Statement of Principles and this can be demonstrated using Instrument No. 52 of 1998, Factor 5(c), having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis."

Mr Westh explained that his reference to "loss of the normal lumbar lordosis" is a reference to loss of forward movement of the spine. He also explained that his reference to "retrolisthesis at L3/4" means that the third lumbar vertebra has moved backwards in relation to the fourth lumbar vertebra, this being due to wear and degeneration of the supporting facet joints at the base of the spine. This, he said, "was in keeping with this man's gross lumbar spondylosis".

When asked to explain what he understood to be the process leading to the development of a malalignment of Mr Fall's lumbar spine, he stated as follows:
"Well, putting it simply, flat feet, painful flat feet, alteration of his gait pattern, and added to that the rigours of his training, placing strain on his back altered – resulted in an alteration of posture in his spine and, as I said, together with the added heavy work that he was doing during the marching caused a strain on his back and possibly some developing change in the alignment of his spine such that it resulted in back pain and, therefore, I felt that there was a reasonable connection between those three things: the flat feet, the work that he was doing, the marching he was doing, the alteration of his posture which resulted in some alteration in the alignment of his spine and that resulted in back pain and then he stated that at the time of his discharge he was having back trouble and then there must have been some inherent weakness there which had developed because he subsequently had a disc prolapse, I gather, from the operation that he underwent and at the age of 29 had a lumbar discectomy. So I think it's an evolving process, not one single thing." (Transcript, p23)
As we have stated in paragraph 11 above, Mr Fall does not dispute that he suffered pes planus prior to enlistment with the Air Force. That is to say, he is not contending that the disability is war-caused. What he does assert, however, is that, as a consequence of his war-service, in particular being on his feet and marching for long periods and undertaking strenuous duties, he aggravated his pes planus, the aggravation causing a straining of the ligamentous structures of his affected feet, and that this, in turn, contributed to an altered gait and postural problems which, in turn, led to malalignment of the spine.
It was Mr Westh's opinion that because of his marching and drill work which he was required to undertake, Mr Fall suffered physical trauma within the meaning of SoP No 305 of 1995 (see paragraph 13 above), which impaired the ligamentous or bony structure of his feet. He explained his opinion by stating that while on service, Mr Fall was constantly suffering increased load in an abnormal foot structure with straining of ligamentous and supporting foot-structures, particularly of the inner and medial aspects of his foot, due to the loss of the normal longitudinal arch of his foot.
When asked whether Mr Fall has a malalignment of the lumbar spine, Mr Westh replied that this was definitely the case.
During his oral evidence Mr Westh confirmed that in the past 10 years he has not come across any literature or medical studies showing that flat feet lead to malalignment of the lumbar spine.
Mr Westh further gave it as his view that the impairment of the ligamentous or the bony structure of Mr Fall's feet, as an exacerbation of his pes planus, would have occurred irrespective of whether or not he was wearing orthotics.
As indicated earlier, Mr Fall's recollection was that he first sought medical attention for back pain towards the end of 1948. It was Mr Westh's view that the onset of the lumbar spondylosis would have occurred within a couple of years of malalignment. He added, however, that:
"This is a very unusual case and that is why in answer to a question before, there is really nothing written because it's unusual and I don't think anyone's ever sort of put the two together quite frankly in a scientific basis or there's nothing been written about it but it's – I couldn't precisely say when that malalignment occurred. It was a developing malalignment and that's where the statement of principles is very rigid on this man – in this case, I should say." (Transcript, pp33-34)

Evidence – Mr S. Schofield

As indicated earlier, Mr Schofield, an orthopaedic surgeon, gave evidence at the hearing.
Mr Schofield first saw Mr Fall in 1990 and has since provided four reports (T19, p45; T20, p48 and Exhibits A5 and A6).
In his report dated 18 May 1999, which is addressed to the solicitors acting for Mr Fall, Mr Schofield stated as follows:
"In reply to your letter of the 25th of March 1999, I presume that you have a copy of my medical report dated the 2nd of March 1998 which was sent to the Advocate of the Returned and Service League of Australia. In my report of that date, I stated 'this patient claims that he had flat feet prior to the onset of spondylosis and this can cause malalignment of the spine by upsetting the normal balance of the lumbar lordosis and thus causing some flattening of the lumbar curve. This could well predispose to spondylosis and this patient now has marked flattening of the lumbar spine at the grossly degenerate levels from L4 to S1 and in an attempt to correct the loss of the lordosis of the lower lumbar region, he has developed retrolisthesis at L3/4 to try and correct the lordosis but in doing so has now developed degenerate changes with a prolapse which I diagnosed in 1990'. I further stated that the development of hammer toes could further add to that imbalance.
Retrolisthesis also means instability of the ligamentous structures supporting the lumbar spine and these x0ray changes are usually consistent with periods of pain in the spine and/or in the legs.
The predisposition to spondylosis occurring as a result of the flat feet did produce symptoms of backache during his war service. As stated in my previous report, my experience as a Consultant for the Navy was one of seeing many recruits and other male personnel developing back problems and stress fractures as a result of the route marching, doubling and gymnastics associated with their routine daily physical exercise. I have no doubt that ongoing problems of back ache will occur in many of these serviceman in future years as a result of their military, naval or air service. Arch supports do not alter the shape of flat feet and in fact, can do more harm than good. The patient did state that route marches and drills made his back and feet worse. This is consistent with the development of spondylosis and malalignment due to the flat feet and due to the drills required as part of his service."

When asked whether the pain which Mr Fall said he experienced in his feet as a result of marching and drill work was consistent with Mr Fall suffering some sort of trauma to the ligamentous in his feet, Mr Schofield stated that:
"Well pain in any foot under the arch is usually due to a chronic foot strain and of course the ligaments under the foot are poorly developed in people with congenital flatfoot, so it doesn't take much to aggravate that rather weak ligament even more and cause pain and that's why arch supports are frequently recommended." (Transcript, p43)
Mr Schofield further explained that if a person with flat feet experiences pain in his feet that person will try to move his foot so that he gets some relief
"by doing some sort of balancing situation on the foot so that he can get out of the pain and that would be some postural realignment, I suppose, which would be involuntary but still it upsets a normal lumbar spinal balance."
In oral evidence, Mr Schofield was asked at what point in time did he consider Mr Fall's malalignment may have first begun. In response he stated:
"It's impossible to say it but on the balance of probabilities I would say the malalignment started when he started getting foot strain which means that he couldn't walk normally and probably he was able to walk normally with in-soles prior to entering into the services. It may not have been too bad without the in-soles but I think the additional marches and other physical activities have probably produced this chronic foot strain and that I would say would be a reasonable assumption to make that he started to develop malalignment of the discs." (Transcript, pp45-46)
During his oral evidence Mr Schofield referred to an article in the Journal of the American Podiatry Association (Vol. 71, No. 5, May 1981) (Exhibit A7) : "An Interpretation of the Pronation syndrome and Foot Types of Patients With Low Back Pain".
The opening sentence of the article states":
"It is well established that low back pain is caused in large part by structural and functional abnormalities of the lower extremities as well as the lumbar spine and pelvis."

Evidence – Mr P. Lugg

As indicated earlier, Mr Lugg, who is an orthopaedic surgeon, gave evidence at the hearing.
Mr Lugg examined Mr Fall on 19 January 1999 and provided a total of four reports.
In the last of his reports dated 22 November 1999, Mr Lugg stated:
"Certainly standing in army boots would not cause the sort of injury which meets the definition. Marching in army boots with underlying pes planus may cause some ligamentous strain or pain. I think it probably would not impair the ligamentous structure as outlined in the definition.
Finally, I think that even if one accepted that there was some ligamentous damage to this man's flat feet, because he already had such significant pes planus, it is very unlikely that this ligamentous damage caused by his army service, not just very unlikely but extremely unlikely that there would be any long term effect on his spine."
The definition to which the doctor refers is the definition of "physical trauma" provided in the Congenital Pes Planus SoP No. 305 of 1995.
By way of explanation, Mr Lugg said in oral evidence:
"Yes, well, a traumatic disruption of the plantar ligament is a moderately painful injury and for that to occur during the sort of service that Mr Fall described, he would be suffering from moderate to severe pain and also to then go and say it happened in both feet I think it would be most unlikely. The diagnosis of Mr Fall's condition is a congenital pes planus and an acute rupture of the plantar ligament or any of the structures in the foot is irrelevant to that. This was a thing he was born with." (Transcript, p67)
It should also be recorded that it was Mr Lugg's observation that if Mr Fall, due to marching and drills, had suffered traumatic disruption of the plantar ligament, then he would be "hobbling".
During his evidence Mr Lugg's attention was drawn to the American Podiatry Association Journal article to which Mr Schofield had referred, and when asked whether there is any evidence in the medical literature that pes planus can cause a malalignment of the lumbar spine in terms of "malalignment" as defined in the SoP's concerning lumbar spondylosis, he responded as follows:
"No, look, I have got to say I was intrigued by this connection that Stan threw up because, I thought, crikey, I missed out somewhere, so, I did ask, first of all, a number of colleagues, not Stan, I didn't think that would be useful, and could find no one who could find that connection and I thought maybe we're just old fuddy-duddies, we don't know this stuff, so, then I asked the best people to ask and that's the Registrars about to sit the exam – couldn't bring it up. So, then one of the Registrars and I did several searches on the medical research through the Internet and all the orthopaedic literature and the [sic] in the last 10 years – we did limit it to the last 10 years, but in the last 10 years on the University of New South Wales we did a full research and we could find no connection between pes planus and any malalignment, any degenerative change of the lumbar spine. I then went back to every orthopaedic text book I've had because I think this is an important point this man [sic], and looked up every orthopaedic text book I've got in my house at the moment and could find no connection."" (Transcript, p70)

Mr Lugg's reference to "Stan" is a reference to Mr Schofield.

Mr Lugg commented further concerning the article:
"I just point out that this article, of course, will not come in a search of orthopaedic literature because it's made – it's a podiatry article. There's a couple of comments I'd make. First of all, it's a difficult article to read. When I scanned through it it's vague; it talks about low back pain being connected to foot imbalance and pelvic imbalance but when you read through it they don't quantify the imbalance well – it's a murky sort of science. They don't talk about it, suggesting that neurological pain, whatever they mean by that, myofascial syndromes – I'm sure you've come up against them in your work here, which is basically a name for pain we don't know where it comes from, whatever source, and such sort of syndromes are all due to this problem with feet and they call it 'foot patho mechanics' which is also a vague term. So, it's an article that is more anecdotal than scientific and I think you have got to look at the article and I say this in no deprecating way that podiatrists, particularly in the United States where they are, but also here, their main way of treating people with cleft arches, the only way of treating people, is to offer arch supports. So, it's going to be in their interest if you've got someone who has got flat feet to show that arch supports do them good and furthermore, it will be in their interest to show that all the other things that might come from it, such as knee pain, leg pain, sacroiliac strain they talk about in there, will be helped by an arch support." (Transcript, pp71-72)
Mr Lugg stated in evidence that Mr Fall has severe degenerative disease of the lumbar spine. When asked whether there is evidence that Mr Fall has a malalignment of the spine the doctor said that this is so in that, due to his severe degenerative disease, Mr Fall has subtle changes in the facet joints. He does not, however, have a malalignment like a scoliosis.
In cross-examination Mr Lugg said that he did not subscribe to the view that a person with an altered gait will develop lumbar spondylosis.
In a report dated 7 July 1999 Mr Lugg stated, in part:
"I do think it is possible that pes planus can contribute to symptoms of lumbar spondylosis by altering gait pattern, but I doubt that the period of service within the Armed Services has contributed significantly to the gait change and therefore the lumbar spondylosis."

The doctor explained that by the use of the word "contributed" he was not referring to causation, but to the aggravation of symptoms of pre-existing lumbar spondylosis.

In a report dated 22 January 1999, Mr Lugg observed in regard to Mr Fall that:
"His failure to wear orthotics over sixteen months of Defence Force service probably has also been a further factor in the development of postural problems and would be a part factor in the cause of his severe spondylosis."

When questioned about this statement, the doctor explained that it was made prior to the research referred to in paragraph 59 above, and that as a consequence the statement should be retracted.

Mr Lugg stated that he accepted the existence of retrolisthesis, however it was his view that this is secondary to degenerative change of Mr Fall's facet joints, which have become elongated.
Findings
From the material before us we make the following findings:

(a) That prior to enlistment with the Air Force Mr Fall suffered from congenital pes planus;

(b) That prior to enlistment he was in the habit of wearing orthotics;

(d) That during the same period of time he was required to undergo marching and other physical training;

(e) that while undergoing such training he was required to wear military issue boots with the result that he experienced sore feet and developed callosities;

(f) That rather than report the condition of his feet he again, of his own volition, opted to put up with the situation. This was because he did not want to jeopardise his chances of later being posted for service overseas;

(g) That from the end of March 1945 to the time of his discharge from the Air Force on 29 April 1946, his duties were of a sedentary nature, without the requirement to march, although he was required to attend the occasional parade;

(h) That he did not, as a consequence of his war service, and in particular as a result of marching and performing other military duties, aggravate his pes planus through suffering physical trauma, that is to say physical trauma which impaired the ligamentous or bony structure of the feet (SoP No. 305 of 1995);

That he did not have a malalignment of the lumbar spine before the onset of lumbar spondylosis within the meaning of SoP No. 28 of 1999 or earlier SoPs concerning lumbar spondylosis.

It will be noted that findings (a) to (g) inclusive accord with the evidence given by Mr Fall.
As to findings (h) and (I), we have on the balance of probabilities preferred the evidence of Mr Lugg to that of Mr Westh and Mr Schofield.
As we have recorded, Mr Lugg's opinion is:

(a) That although marching in military type boots may, in the case of a person with underlying pes planus, cause some ligamentous strain or pain, this would probably not impair the ligamentous or bony structure of the feet;

(b) That if due to marching and drills Mr Fall had suffered traumatic disruption of the plantar ligament, he would have been "hobbling". That was not the evidence of Mr Fall, although he did refer to soreness and the development of callosities;

(c) That the American Podiatry Association Journal article, to which Mr Schofield made reference, should be disregarded for the purposes of these proceedings;

(d) That he is not aware of any evidence that pes planus can cause a malalignment of the lumbar spine. In this connection we note that Mr Lugg conducted an extensive search of any such connection having been reported in the medical literature over the past 10 or so year, but to no avail;

(e) That any malalignment of Mr Fall's spine is due to severe degenerative disease;

(f) That a person will not develop lumbar spondylosis due to an altered gait but that pes planus can contribute to the symptoms of pre-existing lumbar spondylosis;

(g) That the existence of retrolisthesis is secondary to degenerative changes in Mr Fall's facet joints.

As was observed by the respondent, in Repatriation Commission v Law (1980) 31 ALR 140 (affirmed on appeal to the High Court – 147 CLR 652), the Full Court of the Federal Court, in interpreting the words "attributable to", which appear in section 8(1)(b) of the Act, said:
"It seems clear that the expression 'attributable to' in each case involves an element of causation. The cause need not be the sole or dominant cause: It is sufficient to show 'attributability' if the cause is one of a number of causes provided it is a contributing cause."

As we have recorded, our finding is that Mr Fall did not suffer physical trauma which impaired the ligamentous or bony structures of his feet.

In the circumstances it cannot be said that, on the balance of probabilities, lumbar spondylosis is connected with the circumstances of Mr Fall's relevant service.
Decision
The decision of the Tribunal will be that the decision under review is affirmed.
I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Commodore B.G. Gibbs, AM, RAN (Ret'd), Senior Member, Mr I.L.G. Campbell, MC, Member and Dr C. Re, Member
Signed:    Judith Holt, Associate
Dates of Hearing  9 March, 25 October and 7 December 1999
Date of Decision  24 January 2000
Counsel for the Applicant        Mr A. Larkin
Solicitor for the Applicant         Mr M.E. Jorgensen, William Winter Higgs
Respondent  Ms J. McCulloch, Advocacy Section,
  Department of Veterans' Affairs