Gall and Repatriation Commission (Veterans' entitlements)

[2017] AATA 397

Gall and Repatriation Commission (Veterans' entitlements) [2017] AATA 397 (29 March 2017)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2015/4811

Re:Michele Gall

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:29 March 2017

Place:Brisbane

I affirm the decision under review.

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Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – veteran claim for disability pension for disabilities that not accepted as service related – veteran’s claimed defence-caused conditions of cervical spondylosis – no material that raises the necessary connection between the conditions and service – the current Statement of Principles does not support the connection – decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)

CASES

Repatriation Commission v Money [2009] FCAFC 11

SECONDARY MATERIALS

Statement of Principles concerning cervical spondylosis (Instrument No. 67 of 2014)

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

29 March 2017

INTRODUCTION

1. On 17 March 2014 the applicant lodged a claim form under the Veterans’ Entitlements Act 1986 (“the Act”) for ‘disability pension for disabilities that have not yet been accepted as service related’ under the Act.[1] The claim form included a reference to a ‘neck condition’ which has been taken to refer to cervical spondylosis and intervertebral disc prolapse at C6/C7.[2] On 14 April 2014 the respondent made a decision that these conditions were not related to service.[3] On 26 August 2015 this decision was affirmed by the Veterans’ Review Board (the “VRB”).[4] On 9 September 2015 the applicant made an application to the Administrative Appeals Tribunal to review the VRB decision on the basis that cervical spondylosis and intervertebral disc prolapse at C6/C7 are under the Act related to service.[5]

   [1] Exhibit A, T-documents, T11

   [2] Ibid at p. 71

   [3] Exhibit A, T-documents, T13

   [4] Exhibit A, T-documents, T2 at B2

   [5] Exhibit A, T-documents, T1 at A2

   SERVICE OF APPLICANT

2. The applicant served in the Australian Army Reserve full-time from 19 June 1989 to 19 December 1989, then from 22 January 1990 to 29 November 1990. The applicant served with the Australian Regular Army from 30 November 1990 to 10 November 2002.[6]

   [6] Exhibit F, Certificate of Service Sergeant Michele Kerry Gall

3. Section 68 of the Act provides that “defence service” for the purpose of the Act is continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date. The expression “terminating date” is defined in section 68 as the date on which the Military Compensation Act 1994 commences, which is noted as having commenced on 7 April 1994.

4. The applicant has eligible defence service which commenced on 22 January 1990 and concluded on the terminating date of 7 April 1994.[7]

   [7] Exhibit A, T-documents, T2 at B3 and Exhibit F

   BACKGROUND

5. On 19 May 1990 a medical report records that the applicant fell from the tray of a truck, hit her head and records that she believes she lost consciousness for a short period.[8] On 20 May 1990 and 23 May 1990 the applicant attended for a review of her condition. The record made on 23 May 1990 notes that the head injury was “asymptomatic”.[9]

   [8] Exhibit B at p. 3 and Exhibit C, Medical Report of 19 May 1990

   [9] Exhibit C, Medical Report of 20 and 23 May 1990

6. Prior to her discharge from the Australian Army the applicant was examined on 14 May 2002.[10] The medical examination record notation refers to “cervical spine injury - pain/stiffness since injury 96”.[11] On 23 October 2002 the applicant was examined by Dr Hislop, orthopaedic surgeon, who recorded that the applicant developed neck pain after an incident on 31 January 1996 when she was performing a fireman's carry.[12] The history taken by Dr Hislop included a reference to the 1990 truck incident but no significance was then given to that incident in relation to any neck pain.[13]

   [10] Exhibit A, T-documents, T16 at p. 144

   [11] Ibid

   [12] Exhibit A, T-documents, T6 at p. 13

   [13] Exhibit A, T-documents, T6 at p. 14

7. On 19 November 2002 a determination was issued under the Safety, Rehabilitation and Compensation Act 1988 to accept liability for the C5/C6 disc protrusion on the basis of the 1996 fireman’s carry incident.[14]

   [14] Exhibit A, T-documents, T16 at p.91-92

8. On 13 March 2003 a delegate of the Repatriation Commission accepted the applicant's disability pension claim under the Act for intervertebral disc prolapse at C5/C6, lumbar spondylosis and scar on nose - disfigurement due to scar, and the disability pension was increased to 40% of the general rate with effect from 13 August 2002.[15]

   [15] Exhibit A, T-documents, T8 at p. 46

9. The entitlement of the applicant to disability pension has been reviewed on a number of occasions. The applicant is now in receipt of disability pension at the 100% rate with effect from 13 August 2013.

   LEGISLATION

10. Section 120B(3) of the Act is set out as follows:

    120B  Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles

    …

    (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.

    WHETHER CERVICAL SPONDYLOSIS IS RELATED TO SERVICE

11. I am undertaking an administrative enquiry in examining the considerable material before me in order to determine whether the conditions prescribed by section 120B(3) of the Act are met. In Repatriation Commission v Money [2009] FCAFC 11 at [86] Dowsett J remarked:

    Section 120B(3) imposes a significant limitation upon the circumstances in which the Commission may find that a disease is defence-caused. It prescribes a two-step process. Firstly, the Commission must, on the material before it, identify any connection between the disease and a veteran’s service. Secondly, it must consider whether the relevant statement of principles "upholds the contention" that the disease is, on the balance of probabilities, connected with such service.

12. The applicant has a cervical spondylosis condition which was diagnosed in the report dated 14 April 2014 of Dr Casperson.[16] This diagnosis has been accepted by the parties. I now have to determine whether the cervical spondylosis condition of the applicant is a defence-caused condition under the Act.

    [16] Exhibit A, T-documents, T12 at p. 79

13. It has been contended by the applicant that the cervical spondylosis condition was defence-caused as a result of the incident on 19 May 1990. I will consider whether the material before the Tribunal raises a connection between the cervical spondylosis and the incident of 19 May 1990, and so whether it is a defence-caused condition in order to satisfy section 120B(3)(a) of the Act. Dr Casperson in his report of 14 April 2014[17] gives his opinion that the onset of the cervical spondylosis condition was after October 2002 and before February 2011.

    [17] Ibid

14. Dr Casperson refers to a number of examinations of the applicant between 1996 and 2011.  Radiological reports of the cervical spine undertaken on 19 August 1996 and 24 May 1999 indicated a normal spine.[18] A file note of 6 November 2002 records the opinion of Dr Hislop that a magnetic resonance image (MRI) completed on 25 October 2002 shows a C5/6 disc protrusion and C6/7 disc bulge, with no degenerative changes reported.[19] On 17 February 2011 a report showed multilevel spondylosis, moderate degenerative narrowing at the C5/6 foramina and the C6/7 disc protrusion.

    [18] Ibid

    [19] Exhibit A, T-documents, T12 at p. 79

15. After reviewing the evidence before me I find that there is no material before the Tribunal in terms of section 120B(3)(a) of the Act which raises the necessary connection between the event in 1990 and the onset of the condition of cervical spondylosis which occurred on or after 2002. I am fortified in my conclusion by the fact that there is in evidence a medical report dated 20 May 1990 which indicates that there is no tenderness in the cervical spine on the day after the incident.[20] I infer that the cervical spine was not subject to injury on 19 May 1990.

    [20] Exhibit A, T-documents, T6 at p. 125

16. However, even if there was material which raises a connection between the cervical spondylosis condition and the incident on 19 May 1990, it is necessary to consider section 120B(3)(b) of the Act which imposes a requirement that there is in force a Statement of Principles (“SoP”) that upholds the contention that the disease is, on the balance of probabilities, connected with that service.

17. During the hearing, the parties agreed that the relevant SoP to consider is the current SoP for cervical spondylosis[21] and the applicant confirmed that she does not have an accrued right under any earlier SoP.

    [21] Statement of Principles concerning cervical spondylosis (Instrument No. 67 of 2014)

18. The applicant relies on factor 6(f) of the current SoP concerning cervical spondylosis which requires that there be a “trauma to the cervical spine at least one year before the clinical onset of cervical spondylosis, and where the trauma to the cervical spine occurred within the 25 years before the clinical onset of cervical spondylosis.”[22]

    [22] Ibid

19. Factor 6(f) requires me to determine whether firstly there has been a trauma to the cervical spine and then requires me to consider whether the trauma occurred between 25 years and one year prior to the clinical onset of the cervical spondylosis. It is clear from Dr Casperson’s report[23] that the onset of cervical spondylosis occurred between October 2002 and before February 2011. This means that the clinical onset of cervical spondylosis occurred within 25 years, and not less than one year, following the incident.

    [23] Exhibit A, T-documents, T12 at p. 79

20. However, factor 6(f) is not satisfied as there was not a “trauma to the cervical spine” within the meaning of that expression in the current SoP. The expression “Trauma to the cervical spine” is defined in paragraph 9 of the current SoP and states it is:

    … a discrete event involving the application of significant physical force, including G force, to the cervical spine that causes the development within twenty-four hours of the injury being sustained, of symptoms and signs of pain and tenderness and either altered mobility or range of movement of the cervical spine… These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention has occurred and that medical intervention involves either:

    (a)          immobilisation of the cervical spine by splinting, or similar external agent;
    (b)         injection of corticosteroids or local anaesthetics into the cervical spine; or
    (c)          surgery to the cervical spine.

21. This definition contains three elements that must be satisfied in order to establish there is a trauma to the cervical spine

    (a)an event that involved significant force to the cervical spine can be identified;

    (b)the event leads to pain and tenderness and altered mobility; and

    (c)the pain and tenderness and altered mobility is sustained for at least seven days following the event (unless there is an exception within the definition).

22. The report completed by the applicant on 21 May 1990 states the circumstances of the incident as follows[24]:

    “I was standing on the back of a unimog truck unloading stores from inside the shelter. I placed one foot on the top step of the ladder which was not secured to the vehicle. The ladder slipped to one side and I fell off the truck backwards onto my back”.

    [24] Exhibit B, Report of an injury or illness – Army, 21  May 2017, at p. 2

23. The Commanding Officer in the same report outlines that the applicant fell “heavily on the ground”.[25] The treatment report completed by a medical officer deeming the applicant unfit for duty on 19 May 1990, following the incident, records “fell from tray of truck, hit head and believes she also lost consciousness for a short period”.[26] It also states she suffered from a “head injury and concussion”. Reports by medical officers following the incident outline that the applicant had a “right sided diffuse headache”[27] and “persistent headache, stiffness of neck, aches and pains”[28].

    [25] Ibid

    [26] Exhibit C, Medical Attendance and Treatment Report of 19  May 1990

    [27] Ibid

    [28] Exhibit B at p. 4

24. The account by the applicant on 21 May 1990 and the report by the treating medical officers indicate that the incident falls within the first two aspects of the definition of trauma as there was enough force in the fall to result in a head injury and concussion, and in pain and tenderness and possible altered mobility from stiffness of the neck.

25. However the definition of trauma requires that these symptoms and signs must last for a period of at least seven days following their onset. There is no cogent evidence before me that this was the case.   

26. When appearing before the VRB the applicant was able to refer only to her medical documentation in order to answer a question about the last time she sought medical attention after the incident on 19 May 1990.[29] From this evidence I believe it is very likely the applicant could not recall events of more than 25 years ago, without referring to her medical documentation. However, in giving evidence before this Tribunal the applicant stated that after the 19 May 1990 incident she would have taken medication for at least seven days for pain and that she believed that the stiffness in the neck and back would have lasted in total for three to four weeks.

    [29] Exhibit D

27. The account of the applicant contradicts the documented accounts at the time. There is a medical record dated 20 March 1990 that records on the day after the incident there was no tenderness of the cervical spine[30] and a further report dated 23 May 1990, four days after the incident, that records that the applicant was then “asymptomatic” and assessed as “fit for full duty”.[31]

    [30] Exhibit A, T-documents, T6 at p. 125

    [31] Exhibit C, Medical Report of 23 May 1990

28. I give more weight to the contemporaneous medical records as being a more reliable account of the events in question and find that the applicant did not have ongoing pain and tenderness and altered mobility or range of movement of the cervical spine for a period of at least seven days from 19 May 1990. I make this finding based on the report dated 23 May 1990. It is notable also that since 23 May 1990, the first time the applicant attended for treatment of her cervical spine was in 1996 at a time when the applicant was not performing eligible defence service. The applicant does not satisfy factor 6(f) of the current SoP.

29. There is other evidence before the Tribunal that leads me to conclude that the cervical spine of the applicant was injured in 1996 and not in 1990. In the medical examination record dated 14 May 2002 made by Dr Purssey there is a record of “Cervical spine injury, pain/stiffness service injury ‘96”.[32] I infer that this record was made when the applicant was interviewed by Dr Purssey. Dr Hislop in his report of 6 November 2002 records the circumstances of the injury to the cervical spine: “Mrs Gall states on 31 January 1996 she was performing a fireman’s carry and lifting another member across a net when she developed severe neck pain.”[33]

    [32] Exhibit A, T-documents, T16 at p. 144

    [33] Exhibit A, T-documents, T6 at p. 13

30. In his report Dr Hislop gave his medical opinion that “the cumulative effects of years of physical training, fitness assessments, and a specific incident that occurred during a fireman’s carry, have contributed significantly to Ms Gall’s neck condition.”[34] Dr Hislop did not attribute any significance to the 1990 incident. The report of Dr Hislop is a comprehensive 34 page report which was prepared to record all medical conditions that existed when the applicant was discharged. The applicant was interviewed on 23 October 2002 by Dr Hislop prior to her discharge.[35] I rely upon the specialist opinion of Dr Hislop which indicates that the 1996 incident was the cause of the cervical spine condition.

    [34] Exhibit A, T-documents, T6 at p. 34

    [35] Ibid at p. 11

31. The applicant also contends that the cervical spondylosis condition is secondary to an intervertebral disc prolapse at C5-C6 and/or C6-C7, and that she satisfies factor 6(g) of the current SoP for cervical spondylosis which depends upon the applicant “having a cervical intervertebral disc prolapse before the clinical onset of cervical spondylosis at the level of the intervertebral disc prolapse”.

32. The applicant relies on the acceptance by a delegate of the respondent of an intervertebral disc prolapse at C5/C6, in their 2003 decision to increase the applicant’s disability pension to 40% of the general rate, as being caused by a ‘trauma’.[36] The delegate did not provide any reasons for the causal connection between the intervertebral disc prolapse at C5/C6 and the applicant’s service, nor did the delegate state what evidence was relied upon for the acceptance of that condition.[37] This is highlighted by the VRB in their decision.[38] As I pointed out to the applicant during the hearing, the Tribunal cannot be bound by any concession that was previously granted by the respondent, this is certainly the case in the absence of any cogent evidence to support that acceptance.

    [36] Exhibit A, T-documents, T8 at p. 46

    [37] Exhibit A, T-documents, T8 at p. 48

    [38] Exhibit A, T-documents, T2 at p. B5.

33. I cannot find that there is any material which raises the connection between the disc prolapse condition and the fall in 1990 as required by section 120B(3)(a) of the Act. Contemporaneous medical reports indicate that on the day after the incident there was no tenderness of the cervical spine and that some four days after the incident, on 23 May 1990, the applicant was asymptomatic. The report of Dr Casperson and the other evidence before me does not enable me to make a finding that there is a connection between the applicant’s service between 1989 and 1994 and the disc prolapse at C6/C7.[39] Having regard to this conclusion, the applicant does not meet the requirements of factor 6(g) of the SoP. The radiological reports that were reviewed by Dr Casperson do not reveal the existence of the disc prolapse during defence service which concluded in 1994. The radiological report of 25 October 2002 was the first report which detected any cervical spine abnormality.

    [39] Exhibit A, T-documents, T12 at p. 79

34. There is no cogent medical evidence which enables me to reach the conclusion that cervical spondylosis can be an accepted condition under the Act as a sequelae of that intervertebral disc prolapse which is not connected to the applicant’s service under the Act. I have earlier mentioned that the applicant’s defence service under the Act ceased before 7 April 1994. On 19 August 1996 a report from the Diagnostic Imagine Group indicated that there was a “normal study” of the cervical spine; in particular it was noted that “The prevertebral soft tissues are normal. The intervertebral disc spaces are normal. No degenerative changes or other bony abnormalities are present”.[40] There was then no evidence of any intervertebral disc prolapse.

    [40] Exhibit A, T-documents, T4 at p. 9

1. Dr Gamboa in his report dated 17 January 2013 gave his opinion that the cervical spine condition became permanent in May 1990.[41] This assessment is based on the statement that the applicant made to Dr Gamboa that she hurt her neck in May 1990.[42] I cannot give weight to this opinion as it is based on incorrect advice. The contemporaneous medical documents indicate that the neck of the applicant was not injured in May 1990. The cervical spine of the applicant was examined on the day after the incident and it was then recorded that there was no tenderness of the cervical spine. I also mention that the medical records record that she first sought treatment for her neck in 1996. If the applicant had indeed hurt her neck in May 1990 I would have expected that the medical records would contain a record of this having occurred. There is no such record.

   [41] Exhibit A, T-documents, T10 at p. 61

   [42] Exhibit A, T-documents, T10 at p. 57

2. Dr Bryant (of Briz Brain and Spine) in his report dated 15 November 2011[43] has observed that it is impossible to prove or disprove whether the current disc pathology was contributed to directly by the fall in 1990. This contradicts his earlier opinion that was given without reasons on 14 July 2011 that the C5/6 and C6/7 disc herniations were caused by the fall.[44]

   [43] Exhibit B, Report dated 15 November 2011 at p. 5

   [44] Exhibit B, Report dated 14 July 2011 at p. 9 and page 11

3. The other material before the Tribunal does not raise a connection between the applicant’s defence service under the Act and the cervical spondylosis condition or the intervertebral disc prolapse condition.

   DECISION

4. I affirm the decision under review.

I certify that the preceding 38 (thirty -eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

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Associate

Dated: 29 March 2017

Date(s) of hearing:	9 August 2016
Date final submissions received:	18 October 2016
Solicitors for the Respondent:	Sparke Helmore