Hammal and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2020] AATA 4256

Hammal and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2020] AATA 4256 (26 October 2020)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2017/6269

Re:Roque Hammal

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:26 October 2020

Place:Sydney

The reviewable decision is affirmed.

.......................[sgd].......................................

Mrs J C Kelly, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – claim for compensation – spinal canal stenosis – whether the claim is an attempt to relitigate an earlier claim before the Tribunal – date of onset – whether the condition was contributed to, to a significant degree, by the Applicant’s military service – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) s 14

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) ss 5A, 5B, 7, 124

Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 ss 2, 3

CASES

Canute v Comcare [2006] HCA 47

SECONDARY MATERIALS

Battie et al, ‘Lumbar Spinal Stenosis Is a Highly Genetic Condition Partly Mediated by Disc Degeneration’ (2014) 66(12) Arthritis & Rheumatology 3505, 3505

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

26 October 2020

Background

1. Mr Hammal seeks review of the decision made on 17 October 2017 by the Military Rehabilitation and Compensation Commission (MRCC) denying liability for “spinal canal stenosis” under s 14 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act). That decision (the reviewable decision) affirmed the determination to the same effect dated 6 April 2017. The SRC Act has since been replaced by the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (DRC Act) which came into force on 12 October 2017 but applies to the present claim.[1]

   [1] DRC Act s 124.

2. Mr Hammal lodged his claim for compensation for “spinal canal stenosis” on 26 October 2016.  The MRCC requested further information on 23 December 2016.  In response, Mr Hammal lodged 87 pages of documentation on 31 December 2016, which the MRCC has treated as the date of application.

3. Mr Hammal was born in August 1952 and was 67 years of age at the time of hearing before the Tribunal.  He served in the Royal Australian Navy from 26 August 1969 until 4 November 1981 when he was discharged holding the rank of Chief Petty Officer Marine Technician Propulsion (CPOMTP).

4. On 1 January 2003, Mr Hammal lodged a Claim for Rehabilitation and Compensation for injuries to his back, neck, both knees and ankles which were caused by his diving and engineering duties, assaults and a motor vehicle accident during service.

5. By letter dated 20 March 2003, liability for a neck injury was accepted in terms of “Advanced degenerative cervical neck disease, with early foraminal spinal stenosis”, with a date of injury of 25 March 1994, when Mr Hammal first sought medical treatment for the condition.  Thereafter, there have been various applications and determinations in relation to permanent impairment of the neck, both ankles, and knees. 

6. In a letter dated 20 March 2003 liability for a “back injury” was denied based on a report from Dr Phillip H. Hardcastle, consultant orthopaedic surgeon, dated 6 February 2003.  Dr Hardcastle had seen Mr Hammal at the request of the Respondent.  He found that Mr Hammal suffered from degenerative osteoarthritis of the low lumbar spine.  In Dr Hardcastle’s opinion, Mr Hammal’s employment contributed less than 10% to the contraction of that condition.  The decision to deny liability was affirmed on internal review on 18 August 2003, and by this Tribunal on 25 May 2006.

   The law

7. Since Mr Hammal’s 2003 claim for back injury which was finally determined in 2006, the definitions of “injury” and “disease” have been amended. The Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (Cth) (SRCOLA Act) inserted new definitions of “injury” in s 5A and “disease” in s 5B with effect from 13 April 2007.[2]  

   [2] SRCOLA Act s 3 sch 1 item 11, s 2 item 2 respectively.

8. Relevantly, s 7(4) of the DRC Act provides that an employee shall be taken to have sustained a disease, or an aggravation of a disease, on the day:  (a) the employee first sought medical treatment for the disease, or aggravation; or (b) the disease or aggravation resulted in the incapacity to work, or impairment of the employee, whichever happens first.  If Mr Hammal sustained the disease before 13 April 2007, the previous definitions would apply.

   The issues

9. The issues to be decided as formulated by the Respondent were:

   (a)Is the 2016 claim for “spinal canal stenosis” a claim for the same injury as the 2003 claim for “back injury”?

   (b)If so, where the 2003 claim was finally determined by the Tribunal in 2006, does the present application constitute an abuse of process because it seeks to re-litigate the 2003 claim?

   (c)If “spinal canal stenosis” is a separate condition, is it secondary to the pre-existing condition for which the MRCC has been found not to be liable?  If so, the claim must fail.

   (d)If “spinal canal stenosis” is a separate condition and not secondary to the condition for which the MRCC has been found not to be liable, when did that condition first result in impairment, incapacity or the need for medical treatment?

   (e)To the extent Mr Hammal suffers a separate condition of “spinal canal stenosis”, was that condition contributed to a significant degree by his military service? 

   (f)Whether the Respondent is liable to pay compensation to the applicant for “spinal canal stenosis” pursuant to s 14 of the DRC Act.

   The evidence

10. Dr Peter C. Anderson, orthopaedic surgeon, wrote a report dated 28 March 1994. He noted Mr Hammal’s injuries in a motor vehicle accident while on duty in the early 1980s and his service as a diver in a diving team at Vung Tau.  In relation to Mr Hammal’s lumber spine he wrote:

    Restriction of movement at one-half the normal range with pain experienced in the lower lumbar region of his spine.  Straight leg raising restricted at 70 degrees in both lower limbs without major abnormal neurological features. X-rays of the lumbar spine show marginal lipping anteriorly at L3/4 and laterally at L1/2 with early facet joint degeneration at L5/S1 level.

11. Dr Anderson wrote that there was referred pain in the buttocks and thighs. In a report dated 13 June 1997, Dr Anderson reported the range of movement in the lumbar spine was one quarter of normal range and pain and stiffness in the lumbar spine with some pain referred to the buttocks and thighs.

12. During that review process in respect to the denial of liability for the back injury, further medical evidence was provided.  In a supplementary report dated 7 July 2003, Dr Hardcastle stated that Mr Hammal referred to a fall out of a hammock and a subsequent motor vehicle accident which aggravated his neck symptoms, but from the history obtained, no aggravation of his lumbar condition.  Dr Hardcastle requested a CT scan before reviewing the lumbar spine condition. 

13. A report of a CT scan of the lumbar spine L1 to S1 dated 4 July 2003 stated:

    L1/2:  Minor anterior osteophytic lipping is seen.  No other abnormality can be seen at this level.

    L2/3:    Again anterior osteophytic lipping is noted.  No other abnormality is apparent.

    L3/4:  Prominent anterior osteophytes are present.  There is some narrowing of cartilage space in the facet joints bilaterally.  No other changes are apparent.

    L4/5:  There is moderate annular bulge posteriorly.  No disc protrusion is seen.

    Advanced erosive osteoarthritis of facet joints is evident bilaterally at this level.  Reactive sclerosis can be seen around both of the facet joints.  Due to medial osteophytes arising from the facet joints there is slight narrowing of the lateral recess bilaterally.  Only minor narrowing of the canal dimensions can be seen however.

    L5/S1: There is no evidence of disc protrusion or nerve root displacement.  The               

    facet joints are normal in appearance at the L5/S1 level.

    The sagittal reconstruction images show that there are no pars defects present in the lumbar region on either side.

14. In his 28 August 2005 supplementary report, Dr Hardcastle diagnosed Mr Hammal’s back condition as advanced degenerative lumbar disc disease and facet joint disease without evidence of spinal stenosis.  He wrote:

    The prognosis in this situation is that he is in the advance stage of degeneration and despite this, does not demonstrate any radiological evidence of spinal stenosis.

    By this I mean narrowing of the channel where the nerves run.  If there is narrowing where the nerves run, then there is potential for the condition getting worse and requiring surgery.

    In the situation where this is not apparent such as in Mr Hammal’s case, then the prognosis generally is a lot better.  The degenerative condition will generally self-stabilise and when this occurs, quite often symptoms related to the degenerative condition resolve.

15. Dr William G.D. Patrick, surgeon, assessed Mr Hammal at the request of his lawyers and provided a report dated 29 November 2005. He reported that Mr Hammal had been severely limited by his back symptoms from about the early 1990s “both at the lumbar spine and lower thoracic spine with development of symptoms into the legs, right worse than left, and ongoing problems with his knees and ankles”.  He recorded Mr Hammal’s current symptoms included ongoing low back pain, maximal at the mid/low lumbar region, ongoing pain going down into the right lower limb, and slightly into the left leg.  Dr Patrick viewed the CT scan of the lumbosacral spine dated 4 July 2003 and observed:

    Some posterior osteophyte formation at T12/L1.  Some generalised lumbar spondylosis with facet joint arthrosis. Left far lateral disc bulge at L3/4. There is significant pathology at L4/5 level with bilateral posterolateral bulging together with some left far lateral bulging.  There is significant facet hypertrophy, and some degree of canal stenosis at this level.  There is also some posterocentral disc bulging at L5/S1.

16. Dr Patrick later saw the radiologist’s report in respect of the CT scan and set out the findings in relation to the lumbar spine, including “Only minor narrowing of the canal dimensions can be seen however”.  He wrote:

    Continued conservative (non operative) management would seem appropriate but the possibility of need for lumbar decompressive surgery at L4/5 level in the future cannot be ruled out.

17. Dr Patrick did not provide a diagnosis. He believed that Mr Hammal had sustained significant service-related injuries to his back, mainly mid/low lumbar, and had significant permanent impairment of the back, resulting in significant disability, with some evidence for lower limb radiculopathy clinically, and nerve root irritation was more evidence clinically on the left, consistent with findings on imaging.

18. Associate Professor Neil W. McGill, consultant rheumatologist, saw Mr Hammal at the Respondent’s request and wrote a report dated 30 January 2006.  He recorded Mr Hammal’s current symptoms, including stiffness in low back when he sits for a prolonged period, stiffness in other situations, persistent low back pain all the time, with pain sometimes radiating into the left lower limb to either just above or just below the knee. His diagnosis was degenerative spinal disease incorporating facet joint osteoarthritis, osteophyte formation and disc degeneration. 

19. Dr Marc Coughlan, neurosurgeon, was Mr Hammal’s treating doctor from May 2008.  Numerous reports from Dr Coughlan were in evidence, many of which were in material he produced under summons.

20. In his report to Mr Hammal’s general practitioner (GP) dated 13 May 2008, Dr Coughlan wrote:

    Unfortunately, he does not have any imaging with him.  However I have arranged an MRI of his lumbar spine to better assess the intervertebral discs as well as the exiting nerve roots. Specifically there is previous radiological evidence of L4/5 lateral recess stenosis and facet joint arthropathy that would possibly account for his ongoing symptoms.

21. I infer from the language used and the fact that a copy of the 4 July 2003 report of the CT scan of the lumbar spine L1 to S1 is the only radiological report relating to the lumbar spine in the documents produced under summons, that the 4 July 2003 report is the “previous radiological evidence” to which Dr Coughlan  referred.

22. In a File Note dated 3 June 2008, Dr Coughlan recorded:

    Mr Hammal’s MRI scan shows quite severe stenosis at L4/5.  There is also evidence of what appears to be an early synovial cyst on L4/5 on the left hand side.  I have arranged SPECT bone scans to look for the levels of most severe facet joint arthropathy and depending on the findings, will consider doing a lateral recess decompression bilaterally via laminotomies and insertion of an interspinous spacer device at L4/5.

23. Dr Coughlan reported to Mr Hammal’s GP on 2 July 2008:

    I arranged an MRI of his lumbar spine; the MRI scan confirms moderate canal compromise at L4/5 with possible bilateral L5 nerve root compression.  At L4/5  there is bilateral subarticular and lateral recess narrowing due to severe facet osteoarthritis ligament hypertrophy and a broad base posterior disc bulge.

    I have suggested referral for bilateral facet injections targeting the L4/5 facet joints as most of his pain at the moment seems to be axial back pain rather than spinal claudication type symptoms.  However, given the fact that there is significant canal compromise if he does not have significant relief from the facet injections it would be reasonable to proceed to a lateral recess clearance at L4/5 as well as insertion of an interspinous space device.  At this stage, however, I would prefer to proceed conservatively and we will see how he goes with the facet blocks.

24. There is no copy in evidence of the radiologist’s report about the 2008 MRI of the lumbar spine to which Dr Coughlan referred.   I infer that Dr Coughlan viewed the images.

25. Mr Hammal was scheduled for surgery on 18 November 2008 to have a DIAM interspinous spacer inserted at L4/5.[3]  In his letter to the GP dated 23 December 2008, Dr Coughlan wrote:

    … As you will recall, Mr Hammal had lateral recess stenosis at L4/5 as well as facet joint arthropathy.  He underwent decompressive laminotomies via a keyhole approach with insertion of a DIAM interspinous spacer.

    [3] Letter from Dr Coughlan to the Department of Veteran’s Affairs dated 11 November 2008 in Exhibit R2, p 15.

26. Dr Coughlan reviewed Mr Hammal on 3 February 2009, 31 December 2009 and 4 February 2010. On the latter occasion, Mr Hammal had had a CT scan and Dr Coughlan reported to the GP:

    … The interspinous spacer device is in a good position and certainly there is no role for any intervention.

27. Dr Coughlan reviewed Mr Hammal on 15 August 2010 and on 24 July 2014.  Mr Hammal had been overseas in the interim.  In his report to Mr Hammal’s GP on the latter occasion, Dr Coughlan suggested an updated CT scan “to assess the situation”.  He reviewed Mr Hammal with the CT scan and on 22 September 2014 wrote to the GP about the CT scan:

    This does show quite marked recurrent canal stenosis at L4/5 with a lot of exuberant ligamentum flavum and lack of perineural fat.

28. The report of the CT scan does not mention canal stenosis or the exuberant ligamentum flavum and lack of perineural fat. I infer that Dr Coughlan viewed the scan.

29. Mr Hammal also had significant neck issues at the time and Dr Coughlan arranged an MRI scan for those issues and was then going to deal with both issues.

30. Dr Coughlan wrote a letter to the Department of Veterans’ Affairs on 17 October 2014 in response to a request:

    Roque has significant lumber canal stenosis at L4/5.  This is mostly due to a disc injury at L4/5 as well as ligamentum flavum hypertrophy.  Both of these components have led to significant nerve compression at L4/5 and he will ultimately require a neural decompression at that level.

31. In a letter “To Whom It May Concern” dated 10 September 2015, Dr Coughlan listed various incidents during Mr Hammal’s 12 and a half years of service and then wrote:

    I have reviewed him episodically over the past 10 years and have also reviewed his imaging.  He does have significant changes to his facet joints posteriorly.  I am of the opinion that whilst there are degenerative changes, his symptoms would have been partially precipitated by the accumulation of these incidents over the years.

32. Dr Coughlan wrote to Mr Hammal’s GP on 28 July 2018:

    … I have previously assessed him for his back pain and he appears to have a combination of two issues.  He does have significant degenerative disc disease but in addition to that he also has some degree of spinal canal stenosis with nerve root compression.  The spinal canal stenosis would account for his ongoing leg pain and inability to walk for certain distances.

    I have explained to Roque that the spinal canal stenosis is a consequence of the bulging disc as well as ligamentum flavum hypertrophy leading to narrowing of the spinal canal.

33. Mr Hammal submitted with his 2016 claim a letter dated 14 October 2016 from Dr Coughlan “To Whom It May Concern”.  Dr Coughlan wrote:

    Mr Roque Hammal has been under my care since 2005.  As you will recall he worked in the Navy for many years.  He had multiple traumatic injurie (sic) including a motor vehicle accident, thrown off a hammock and assaulted onto a steel table/ (sic)  These have all culminated with the passage of time and ultimately he had a DIAM device.  He spent many years doing clearance diving training as well as heavy duties which involved carrying particularly heavy diving equipment and worked in the Marine Engineering Department for many years.

    He has developed a condition called spinal canal stenosis.  This is where you get significant compression of the spinal nerve and in his case this is particularly at L4/5.  This causes difficulty in ambulating and ongoing leg pain.  I have seen Roque as a patient for many years.  I have extensive experience in spinal surgery, having worked as a neurosurgeon and spinal surgeon since 2004, for the past 12 years.

    I am aware that Roque had previously been diagnosed with degenerative disc disease, however this is a separate diagnosis and completely different in the form of spinal canal stenosis.

34. In a letter dated 28 July 2018 to Mr Hammal’s GP, Dr Coughlan wrote:

    … Roque has had significant ongoing back pain and leg pain. I have previously assessed him for his back pain and he appears to have a combination of two issues.  He does have significant degenerative disc disease but in addition to that he also has some degree of spinal canal stenosis with nerve root compression.  The spinal canal stenosis would account for his ongoing leg pain and inability to walk for certain distances.

    I have explained to Roque that the spinal canal stenosis is a consequence of the bulging disc as well as ligamentum flavum hypertrophy leading to narrowing of the spinal canal.

35. The Respondent had requested a report from Dr Coughlan after the 2016 claim for spinal canal stenosis.  Dr Coughlan advised that it would take months.  A report was then sought from consultant neurosurgeon Associate Professor Brian P. Brophy.  It is dated 5 April 2017.  He did not assess Mr Hammal but conducted a review of documentation. In his opinion:

    I would not see spinal canal stenosis as a new stand-alone condition.  In the material provided I could find no evidence for a diagnosis of spinal stenosis. However, when it is present it is a sequela entirely consequent upon the disallowed degenerative osteoarthritis (spondylosis) of the low lumbar spine.

36. Associate Professor Brophy stated that the CT scan of the lumbar spine dated 4 July 2003 indicated degenerative facet arthropathy at the L4/5 but no evidence of stenosis.  He referred to Dr Coughlan’s opinion in his letter of 14 October 2016 that spinal canal stenosis is different from degenerative disc disease and continued:

    It does indeed describe a different entity but it is essentially degenerative in aetiology.  I have not seen any up-to-date radiology…

1. In Associate Professor Brophy’s opinion, the contribution of Mr Hammal’s service to the condition was 0%.

2. Associate Professor McGill wrote a report dated 19 September 2018, having reviewed Mr Hammal. He noted that no imaging studies were available.  Mr Hammal thought the most recent imaging occurred prior to his low back surgery and were in Dr Coghlan’s possession.  Associate Professor McGill wrote:

   This 66 year old man has widespread degenerative change in the spine.  The involved levels are typical of constitutional degenerative spinal disease. The diagnosis with respect to his back remains degenerative spinal disease incorporating facet joint osteoarthritis, disc degeneration and osteophyte formation.  Ligamentous hypertrophy is also a component of the degenerative changes usually found in this situation.

   I have not seen imaging which demonstrated that he developed spinal canal stenosis but it would not be surprising as a result of the degenerative changes.

   Spinal canal stenosis develops as a result of disc degeneration, thickening and buckling of the ligamentum flavum and facet hypertrophy.  On the presumption that he developed spinal canal stenosis, the narrowing of the spinal canal was a direct result and continuation of the degenerative changes present when I saw him previously.

3. Associate Professor McGill gave oral evidence at the hearing.  He said that he had reviewed the documents produced by Dr Coughlan under summons but they did not cause him to change his opinion as to diagnosis or causation. 

4. Associate Professor McGill enclosed a study of lumbar spinal stenosis in which the authors recorded:

   Lumbar spinal stenosis is one of the most commonly diagnosed spinal disorders in older adults.  Although the pathophysiology of the clinical syndrome is not well understood, a narrow central canal or intervertebral foramen is an essential or defining feature…  In the case of degenerative lumbar spinal stenosis (the most common form of lumbar stenosis), disc degeneration, thickening and buckling of the ligamentum flavum and facet hypertrophy contribute to canal narrowing, which is generally greatest at the level of the disc.[4]

   [4] Battie et al, ‘Lumbar Spinal Stenosis Is a Highly Genetic Condition Partly Mediated by Disc Degeneration’ (2014) 66(12) Arthritis & Rheumatology 3505, 3505.

5. The Conclusion of the study was:

   Central lumbar spinal stenosis and associated dural sac dimensions are highly genetic, and disc degeneration (bulging) appears to be one pathway through which genes influence spinal stenosis.[5]

   [5] Ibid.

6. In his letter dated 21 May 2018, Mr Hammal expressed his concern that Associate Professor McGill may be biased against him because of the circumstances of the 2006 assessment when Mr Hammal was under the influence of prescribed medications and Associate Professor McGill wrote a report that was unfavourable to Mr Hammal’s case.[6] 

   [6] Report of Associate Professor McGill dated 30 January 2006 is referred to at [18].

   Consideration

7. Associate Professor McGill’s oral evidence and his reports were measured and considered, as were his answers to the many questions Mr Hammal asked him about the incidents that Mr Hammal claimed occurred during his service and the nature and conditions of his service and their connection to his back condition and also about the genetic influence on the development of lumbar spinal canal stenosis. I did not find Associate Professor McGill’s evidence biased against Mr Hammal.

8. Section 14 of the DRC Act which is in similar terms to the provision considered in Canute v Comcare [2006] HCA 47, provides:

   14  Compensation for injuries

   (1)  Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

9. The claimed injury is spinal canal stenosis, which is a disease.[7]  Subject to the argument that it is the same injury as was claimed in 2003, compensation is payable to Mr Hammal if it has resulted in impairment and was caused by various incidents during his military service or by the nature and conditions of his military service.

   [7] s 5A(1)(a) and s 5B(1) of the DRC.

10. The Respondent conceded that:

    Having regard to the principle in Canute v Comcare [2006] HCA 47; (2006) 229 ALR 445; (2006) 80 ALJR 1578, the respondent accepts that if spinal canal stenosis can be defined as separate injury from the back injury previously determined, then there is no impediment to the applicant pursuing determination of his claim for spinal canal stenosis. It is noted that spinal canal stenosis would appear to result in a degree of differing symptoms, prognosis and treatment (particularly surgical intervention) from degenerative disc disease, which would suggest that it may indeed be a condition capable of being a separate injury.

    Although possibly a separate injury, if it is the case that the canal stenosis is a secondary injury, that is, it was caused by the pre-existing degenerative disc disease, then in circumstances where it has been determined that MRCC is not liable for the primary injury (degenerative disc disease), and the only claim before the Tribunal is for spinal canal stenosis, then the claim for spinal canal stenosis must also fail.[8]

    [8] Respondent’s Statement of Facts, Issues and Contentions [72] -[73].

11. The Respondent contended that onset of Mr Hammal’s spinal canal stenosis was on or after 13 April 2007. 

12. Dr Patrick referred to “some degree of canal stenosis” on viewing the 2003 CT scan.  The 2003 CT scan report stated “Only minor narrowing of the canal dimensions can be seen however”. In his 28 August 2005 supplementary report Dr Hardcastle specifically rejected canal stenosis being present and Associate Professor McGill did not diagnose it in his 2006 report. 

13. The 2008 reports of Dr Coughlan which include his assessment of the 2008 MRI, confirmed “moderate canal compromise at L4/5”. During his oral evidence, Dr McGill accepted that was so but was of the opinion that the primary problem at that time was advanced facet joint osteoarthritis, which had been present in 2003, and which was producing lateral recess narrowing, that is where the nerve roots leave the spine. I accept Associate Professor McGill’s evidence that a diagnosis of spinal canal stenosis is made on clinical grounds, not just on radiological findings. I infer that Dr Patrick in 2005 was referring to radiological changes only.  In 2008, Dr Coughlan initially treated Mr Hammal conservatively with injections to the L4/5 facet joints but then proceeded to surgery on 18 November 2008, which he had flagged he might, in his 2 July 2008 report.  He noted in that report that most of Mr Hammal’s pain seemed to be axial back pain rather than spinal claudication type symptoms. Spinal claudication type symptoms are referrable to spinal canal stenosis, as Dr McGill discussed during his oral evidence.  I infer that the facet injections did not provide significant relief and therefore the issue was the significant canal compromise.

14. In his 22 September 2014 report to the GP, Dr Coughlan wrote that the CT scan showed “quite marked recurrent canal stenosis at L4/5”. That is, a recurrence of the canal stenosis at L4/5 in 2008.

15. That report and Dr Coughlan’s reports of 2008 lead me to find that Mr Hammal first sought medical treatment for spinal canal stenosis when he consulted Dr Coughlan in May 2008. Mr Hammal is taken to have sustained spinal canal stenosis in May 2008.    

16. I find that the 2016 claim for spinal canal stenosis is for a different injury from the 2003 claim for “back injury”.  The opinion of Dr Coughlan, the treating doctor, is that degenerative disc disease is a separate diagnosis and completely different in form to spinal canal stenosis.[9]

    [9] Report of 14 October 2016 as referred to at [33].

17. The study Associate Professor McGill provided which I have referred to at [40] and [41] supports my finding.  To use the language of that study, it is a different spinal disorder from those identified in the evidence provided in relation to the 2003 claim.  It is a different diagnosis, the pathophysiology is different, the essential feature being the narrow canal, which in Mr Hammal’s case is a consequence of the bulging disc as well as ligamentum flavum hypertrophy.  Spinal canal stenosis has different symptoms from the disorders identified in relation to the 2003 claim: spinal claudication.  During his oral evidence, Associate Professor McGill talked about spinal claudication as a symptom of spinal canal stenosis.

18. The medical evidence does not support a finding that spinal canal stenosis is secondary to the pre-existing condition for which the MRCC has been found not to be liable.

19. The next question is whether the condition was contributed to, to a significant degree by Mr Hammal’s military service.  I found Associate Professor McGill’s evidence on this issue persuasive.  It is supported by the accompanying study.  

20. Mr Hammal’s medical records from his service were in evidence.  They confirm two instances of back symptoms, neither of which required further review or treatment and Mr Hammal passed fitness tests shortly afterwards.  Mr Hammal gave various explanations for the lack of contemporaneous reports of back injury including that he was required to keep working, he worked through the pain, and he drank to dull the pain  His description of incidents during service and the nature and conditions of his service have been generally consistent. I accept that he believes his spinal conditions were caused by his service. He gave his history to Associate Professor McGill who checked it carefully.  It does not support a finding that he has suffered a trauma to his spine that would result in an injury, such as to a disc, that would result in spinal canal stenosis.  A review of Dr Coughlan’s evidence shows that he has accepted Mr Hammal’s reports to conclude that his service “partially precipitated” Mr Hammal’s symptoms.  Associate Professor Brophy’s evidence supports Associate Professor McGill’s evidence.

21. Mr Hammal’s spinal canal stenosis was not contributed to, to a significant degree, by his military service.  It is a degenerative spinal disorder.

    Decision

22. The reviewable decision is affirmed.

I certify that the preceding 58 (fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

..............................[sgd]..........................................

Associate

Dated: 26 October 2020

Date(s) of hearing:	26 February 2020
Applicant:	In person
Solicitors for the Respondent:	Ms E Baggett, Moray & Agnew Solicitors