Gregory McDougall and Repatriation Commission
[2013] AATA 583
[2013] AATA 583
Division VETERANS' APPEALS DIVISION File Number
2012/3151
Re
Gregory McDougall
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Dr P McDermott RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), MemberDate 20 August 2013
Place Brisbane The Tribunal affirms the decision under review.
........................................................................
Dr P McDermott RFD, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Pensions and benefits – Cervical spondylosis – Conflict of professional evidence – No evidence of condition – Decision Affirmed.
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 68, 70, 120, 120B
CASES
Repatriation Commission v Codd [2005] FCA 888
Repatriation Commission v Gosewinckel (1999) 59 ALD 690
Repatriation Commission v Smith (1987) 15 FCR 327Repatriation Commission v Warren [2007] FCA 866
SECONDARY MATERIALS
Statement of Principles: Instrument No. 34 of 2005 relating to Cervical Spondylosis (as amended by Instrument No. 77 of 2008)
REASONS FOR DECISION
Dr P McDermott RFD, Senior Member
Dr G J Maynard, Brigadier (Rtd), Member20 August 2013
INTRODUCTION
On 17 October 2008, Mr Gregory McDougall “the applicant” lodged a claim relating to his defence service. On 20 July 2009, a delegate of the Repatriation Commission (“the respondent”) made a decision in which it was determined that the applicant did not have an extant condition which answered the applicant’s claim of a ‘neck condition’. On 5 June 2012, the decision was affirmed, insofar, as it related to applicant’s ‘neck condition’ by the Veterans’ Review Board. The applicant has sought a review of the decision, claiming that he has a condition of cervical spondylosis which is related to his service.
SERVICE
The applicant served in the Australian Regular Army from 26 January 1983 until 27 January 2003. The Veterans’ Entitlements Act 1986 (Cth) (“the Act”) provides that his service was defence service under s 68 of the Act. Any incapacity from a defence-caused injury or disease is compensable under s 70(1) of the Act. An injury or disease is taken to be defence-caused if it arose out of, or was attributable to, any defence service.[1]
[1] Veterans’ Entitlements Act 1986 (Cth) s 70(5).
Section 120(4) of the Act provides that in determining whether an injury or disease is defence-caused the respondent is to decide the matter to its “reasonable satisfaction”. In Repatriation Commission v Smith (1987) 15 FCR 327 the Federal Court of Australia held that the expression “reasonable satisfaction” refers to the civil standard of proof, which is proof on the balance of probabilities.[2] Section 120(6) of the Act provides that the applicant does not bear any onus of proof.
[2] (1987) 15 FLR 327 at 335.
The application of s 120(4) is modified by s 120B(3) of the Act which provides:
(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)…
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
In this determining this application we have to apply the following Statement of Principles:
·Instrument No. 34 of 2005 relating to Cervical Spondylosis (as amended by Instrument No. 77 of 2008).
CONSIDERATION
The case of the applicant is that he has a cervical spondylosis condition which is a defence-caused injury or disease. The applicant gave evidence, which we accept, that he was kneed in the back during an Australian Rules football match, which was the unit physical training on 26 May 1986. The applicant stated that he reported to the Regimental Aid Post after this injury for treatment and that he again reported to the Regimental Aid Post after some days.
One of the issues that we have to determine is whether the applicant has a cervical spondylosis condition. The applicant has tendered a report, dated 1 May 2013, from Dr Saul Geffen (a physician) in which Dr Geffen has opined that the applicant has cervical spondylosis, including C4/5 disc bulge.[3] In his report dated 5 July 2013, Dr Geffen stated that he remains of the opinion that the applicant has cervical spondylosis, but amended the earlier report insofar as the disc bulge was on his C5/6 not C4/5.[4]
[3] Exhibit E.
[4] Exhibit D.
The respondent has had the applicant examined by two orthopaedic specialists. Dr Vasudeva Pai in his report of 15 December 2011 reported that the applicant’s pain from the lumbar spine was then worse than from the cervical spine.[5] At that time the neck pain was a dull aching and was not then said to be a “big issue” for the applicant.
[5] Exhibit A, T-Document 4, pp. 155-160.
Dr Peter Winstanley, orthopaedic surgeon, has examined the applicant. In giving evidence he stood by his reports of 25 July 2011 and 4 June 2013. In his report of 25 July 2011 Dr Winstanley related how the applicant then presented with constant discomfort present within his cervical spine.[6] He reported that the applicant has some mild discomfort to palpation within the mid cervical area, but free range of motion within his cervical spine. Dr Winstanley then reported that an MRI scan of 9 December 2009 does not evidence any disc pathology or canal stenosis to indicate the presence of a cervical spondylosis condition. In his report of 4 June 2013 Dr Winstanley reiterates his opinion that the applicant does not have cervical spondylosis.
[6] Exhibit A, T-Document 4, pp. 116-118.
On the issue of whether the applicant has a cervical spondylosis condition there is a conflict of professional evidence which we have to resolve. In Repatriation Commission v Warren [2007] FCA 866 at [23] Kiefel J explained that the cases of Repatriation Commission v Codd [2005] FCA 888 at [48] and Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at [55] make it plain that it may be expected that this Tribunal will act upon medical opinion as to the diagnosis of a condition.
We prefer to rely upon the specialist medical opinion of Dr Winstanley rather than the opinion of Dr Geffen who gave no reasons for his diagnosis. Dr Winstanley is an orthopaedic surgeon of some seniority. Dr Winstanley has given reasons for his conclusion that the applicant does not have a cervical spondylosis condition; namely that there is no disc pathology or canal stenosis which would indicate the presence of such a condition. Dr Winstanley maintained his opinion during cross-examination. Dr Winstanley stated that he came to his conclusion that he could not make a
diagnosis of the condition after he examined the X-ray evidence. We consider
that expertise in the interpretation of X-rays is the key to an accurate
diagnosis in this case. We acknowledge that the expertise of Dr Geffen as an
occupational physician may give him some experience in interpretation of
scans and X-rays, but we consider that an orthopaedic surgeon of the standing
of Dr Winstanley would have greater expertise in this field.We accordingly rely on the evidence of Dr Winstanley and find that the applicant does not have a cervical spondylosis condition.
We also observe that there is no evidence of the conditions mentioned in the definition of “cervical spondylosis” in clause 3(b) of the relevant Statement of Principles (Instrument No. 34 of 2005).[7]
[7] as amended by Instrument No. 77 of 2008.
The advocate for the respondent has quite properly pointed out that the applicant does have the accepted condition of a disc bulge and outlined to the applicant his options for seeking treatment of that condition. This disc bulge condition appears to have been first identified by Dr Hillford in 2002 and is referred to in some later specialist reports.
DECISION
We affirm the decision under review.
I certify that the preceding 14 (fourteen) paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott RFD, Senior Member and Dr G J Maynard, Brigadier (Rtd), Member ........................................................................
Associate
Dated 20 August 2013
Date of hearing 6 August 2013 Applicant In person Advocate for the Respondent Mr Jeff Kelly
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