Hassan and Military Rehabilitation and Compensation Commission (Compensation)

Hassan and Military Rehabilitation and Compensation Commission (Compensation) [2021] AATA 2108 (11 March 2021)
Division:VETERANS' APPEALS DIVISION
File Number(s):2018/3772
Re:Darren Hassan
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Illingworth
Member Ormston
Date:11 March 2021
Place:Adelaide

The decision under review is affirmed.
..................[SGND].........................
Senior Member Illingworth
Catchwords
VETERANS' AFFAIRS – definition of injury – definition of disease – compensation for injuries – medical condition contributed by military service – decision under review affirmed.
Legislation
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988
REASONS FOR DECISION
Senior Member Illingworth
Member Ormston
11 March 2021
INTRODUCTION

The Applicant, Darren Hassan, served in the Australian Regular Army from October 1986 to April 1991 and the Australian Army Reserves from February 1992 to May 1995. He subsequently has been diagnosed with a number of medical conditions that have been accepted as service-related, which the Tribunal understands includes lumbar spondylosis, anxiety disorder, alcohol dependence, hearing loss and gastro-oesophageal reflux disease.
On 27 August 2013, the Applicant lodged a compensation claim in respect of a neck and shoulder condition he contended resulted from an injury sustained while undertaking a Special Air Service Regiment (SASR) selection course in March 1990. On 6 August 2014, the Military Rehabilitation and Compensation Commission (MRCC) declined liability under s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) on the basis there was no relationship between the Applicant’s condition of cervical spondylosis and his military service.
On 9 April 2018, the Applicant requested a reconsideration of that decision. On 3 July 2018, the MRCC affirmed its determination of 6 August 2014. On 6 July 2018, the Applicant sought a review by the Administrative Appeals Tribunal (the Tribunal) of the reviewable decision, giving rise to these proceedings.
Mr Hassan, representing himself, appeared in person before the Tribunal on 1 March 2021 and by telephone on 2 March 2021. The Respondent, the MRCC, was represented in person on both days by Mr Ashley Burgess, Sparke Helmore Lawyers.
THE ISSUES
The decision under review is that the Applicant is not entitled to compensation for cervical spondylosis under the DRCA because there is or was no relationship between the condition and his military service. The issue, therefore, is whether the Applicant’s claimed condition of cervical spondylosis arose out of, or in the course of, or was contributed to by his military service.
THE LEGAL FRAMEWORK
Section 5 of the DRCA relevantly provides:
5A Definition of injury
injury means:
(a) a disease suffered by an employee; or
(b) an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment…
5B Definition of disease
disease means:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment, that was contributed, to a significant degree, by the employee’s employment by the Commonwealth.
Section 14 of the DRCA further provides:
Compensation for injuries
(1) Subject to this Part, the Commonwealth 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.
THE EVIDENCE
In addition to the documents tendered as Exhibits A, B, C and D[1], the Tribunal heard evidence in person from Mr Hassan and Associate Professor Brian Brophy. Key elements of the evidence are summarised in the following paragraphs.
[1] Exhibit A is the T documents, Exhibit B is the medical report by Dr Matthew Green dated 10 March
2020, Exhibit C is the medical report by Associate Professor Brian Brophy dated 21 February 2019 and Exhibit D is the supplementary medical report by Associate Professor Brian Brophy dated 1 May 2020.
The Applicant’s military service
Mr Hassan joined the Australian Regular Army on 28 October 1986 and was discharged on 23 April 1991. He then joined the Australian Army Reserves on 12 February 1992 and served until 30 May 1995. During his regular service, he was employed primarily in artillery regiments as a front-line signaller, including postings with the Operational Deployment Force in Townsville, where in training and on exercises he typically carried a pack and radio weighing in excess of 40 kilograms.
The Applicant’s attendance at SASR selection courses
Mr Hassan was selected to attend a 3-week SASR selection course in March/April 1990. It is common ground that the course was physically and mentally demanding, and that such courses had a high drop-out rate. His course report indicates that he voluntary withdrew on day 13 (28 March 1990), with the concluding recommendation that he was ‘unsuitable for service with SASR[2]. In his compensation claim dated 2 June 2018, Mr Hassan contended ‘I could not continue [the course] due to … injury’.[3]
[2] Exhibit A, T7, pages 17-18.
[3] Exhibit A, T37, pages 103-105.
In 1992, during his Army Reserve service, Mr Hassan successfully applied to attend a further SASR selection course, with the medical examiner of his pre-course medical noting that ‘he elected to abandon [the earlier course] after 14 days (after completion of the most demanding physical stage) … [as he] felt he was not ready for long term commitment at that stage’[4]. In the event, Mr Hassan was removed from the February 1993 course on day 4, with the report noting ‘he was unable to reach the minimum standard required of the course … [having] failed the 3.2km run … BFT [battle fitness test] and the swim test’[5].
[4] Exhibit A, T14, page 26.
[5] Exhibit A, T17, page 29.
The injury in question
While attending the first SASR selection course, the Applicant suffered an injury as a result of a log being inadvertently dropped onto his neck and shoulder during a team-based physical training session. Mr Hassan said in evidence that he was able to continue the exercise, though in considerable pain/discomfort, but attended the Regional Aid Post (RAP) for medical treatment either later that day or next morning. A military medical report, dated 22 March 1990, corroborates the injury, deeming Mr Hassan ‘fit for full duty’ with the treatment recommendation of ‘stretching exercises [and] review with physio’[6].
[6] Exhibit A, T8, page 19.
In an email to the MRCC dated 11 May 2018, the Applicant contended that the SASR selection training facility was ‘particularly run down and the RAP was of a basic standard’[7]. He also contended that ‘had the treating medical officer been able to conduct a thorough examination (X-ray, MRI, ultrasound) I have no doubt that I would not have been returned to full duty immediately’.
[7] Exhibit A, T35, page 96.
Along similar lines, Mr Hassan contended in his compensation claim dated 9 January 2018 that ‘the injury was diagnosed in the field, thus not being an accurate reflection of the severity of long-term damage … to my body’.[8] A medical report by Dr Yog Raman Sareen, dated 19 December 2018, similarly includes the comment that ‘the medic made a field diagnosis, but no x-rays or more thorough examinations were possible in remote area’[9].
[8] Exhibit A, T31, page 62.
[9] Exhibit A, T33.
Mr Burgess, in his cross-examination of the Applicant, attempted to interpret the 10-or-so lines of clinical notes made by the treating medical officer at the RAP on 22 March 1990. Mr Hassan agreed they included several lines on the symptoms, several lines on a range of movement and pain thresholds in relation to his shoulder/arm/neck and a number of suggested remedial exercises. In responding to a question from the Tribunal, Associate Professor Brian Brophy, a consultant neurosurgeon and former head of neurosurgery at the Royal Adelaide Hospital, opined there was nothing in the clinical notes to suggest Mr Hassan should have been referred for more specialised diagnostic testing.
The Applicant’s pre-service and service-related medical history
Prior to his enlistment in the Regular Army, Mr Hassan underwent a routine medical examination. The report noted a pre-existing back injury, with an accompanying note to the effect that he suffered an injury at work in August 1985 which necessitated five days off work[10]. In evidence to the Tribunal, Mr Hassan said he could not readily recall the injury but presumed mention of ‘comp 5 days’ in the notes meant he was paid for the days he was absent from work.
[10] Exhibit A, T4, page 14.
The second page of the report included a note to the effect that an examination of his back revealed ‘full r.o.m [range of movement] with minor scoliosis [curvature] lumbar’ but also ‘xray (back) report required’.[11] The results of X-ray, dated 7 October 1986, were satisfactory and Mr Hassan was classified FE [fit for service everywhere] on 14 October 1986[12].
[11] Exhibit A, T5, page 15.
[12] Exhibit A, T3, page 13.
On 15 May 1989, Mr Hassan underwent a special medical examination for SASR selection, which noted no abnormalities in relation to his back or upper extremities[13]. On 13 March 1990, he underwent a similar examination, which again noted no abnormalities[14]. On 8 April 1991, Mr Hassan underwent a pre-discharge medical examination, with the report noting ‘no serious health problems during ARA [Australian Regular Army] service … [and] no abnormalities detected’[15].
[13]          Exhibit A, T6, page 16.
[14]          Exhibit A, T7, pages 17-18.
[15]          Exhibit A, T10, page 21.
On 5 February 1992, Mr Hassan underwent an entry medical examination to join the Army Reserve. In the medical history questionnaire, Mr Hassan ticked ‘no’ to the questions of ‘have you ever had or are you now suffering from any … back injury or other joint injury or dislocations[16]. The examining medical practitioner also ticked ‘normal’ to the examination of upper extremities and back[17].
[16] Exhibit A, T11, page 22.
[17] Exhibit A, T12, page 24.
On 24 August 1992, Mr Hassan underwent a medical examination for SASR selection, with the examining medical practitioner ticking ‘normal’ to the examination of upper extremities and back, noting also on the covering medical certificate that ‘he is free from orthopaedic and back injury’ and ‘is free from injury or infection at the time of examination’.[18] A similar report dated 13 January 1993 ticked ‘normal’ to the examination of upper extremities and back, with notes saying ‘no abnormalities detected’ and ‘A grade BFT [battle fitness test] pass late 92’[19].
[18] Exhibit A, T14, page 26 and Exhibit A, T13, page 25.
[19] Exhibit A, T16, page 28.
The Applicant’s post-service medical history
In May 2001, a radiology report on Mr Hassan’s cervical spine revealed ‘no significant spondylosis [degeneration] and disc spaces are well preserved’[20].
[20] Exhibit A, T19, page 33.
In June 2011, a report from Benson Radiology, in response to the clinical symptoms of ‘chronic neck pain radiating to left shoulder and head’, noted that X-rays had revealed ‘moderate endplate degenerative changes … at C5-6 [cervical spine vertebrae]’ and that CT scans had revealed ‘moderate endplate degenerative change at C5-6’ but no issues with the remaining cervical vertebrae[21].
[21] Exhibit A, T20, page 34.
In August 2013, a report from Benson Radiology, in response to the clinical symptoms of ‘longstanding severe left shoulder pain for more than 22 years’, noted that radiographs had revealed ‘normal glenohumeral [the main joint of the shoulder] and AC joint [acromioclavicular, one of the four joints of the shoulder]’ and that a CT scan of the left shoulder had revealed no abnormalities[22]. An associated report from Benson Radiology reported that an MRI examination of the left shoulder had revealed ‘minimal degenerative change [to the] AC joint … [and the] examination otherwise unremarkable’[23].
[22] Exhibit A, T21, page 35.
[23] Exhibit A, T22, page 36.
A further report from Benson Radiology reported that an ultrasound examination of the left shoulder and MRI examination of the left side had revealed ‘disc bulge C5/6 causing spinal canal narrowing and … left paracentral disc bulge at C6/7 displacing the left C7 nerve root’ but ‘the cervical cord maintains normal signal [and] … there is normal alignment of the cervical spine’[24].
[24] Exhibit A, T25, page 46.
In June 2014, an assessment of these radiological reports by Dr Simon Spedding, Commonwealth Medical Officer, opined ‘there is cervical spondylosis (SOP condition) with a high risk of left-sided symptoms and possibly neurological signs and weakness [but] no significant pathology of the left shoulder or brachial plexus [a network of nerve fibres that supplies the skin and musculature of the upper limb]’[25].
[25] Exhibit A, T28, page 52.
In July 2014, a report from Benson Radiology, in response to the reported symptom of severe neck pain, revealed ‘mild scoliosis [abnormal curvature] of the thoracocervical spine … [and] marked narrowing of the C5-C6 disc space with associated uncovertebral joint [small joints located each side of the four cervical discs C3-C7] degenerative changes’[26].
[26] Exhibit A, T29, page 53.
In February 2018, a report from Benson Radiology revealed ‘moderate severity spondylosis at the lower cervical spine, with disc narrowing and endplate osteophytes [bony growths] at C5/6 and C6/7’, as well as ‘early degenerative change at the left AC joint’ but ‘no focal bone lesions or spurs … [and] no soft tissue calcification’[27].
[27] Exhibit A, T32, page 74.
On 21 February 2019, Associate Professor Brian Brophy, a consultant neurosurgeon, provided a report on Mr Hassan’s condition, in which he concluded ‘I could not be confident of any service-related factor causing the condition … [and] my overall sense is that Mr Hassan would have developed his current condition as a natural progression of age-related degenerative changes’[28].
[28] Exhibit C, pages 6-7.
On 10 March 2020, Dr Matthew Green, a musculoskeletal, rehabilitation and pain physician, provided a report on Mr Hassan’s condition, in which he opined that ‘the cause of Mr Hassan’s cervical condition relates to … degenerative changes predominantly at C6-7’, adding that ‘the condition has developed in the context of progression of time and degenerative changes’.[29] However, Dr Green also opined ‘there is plausibly some modest degree of contribution from service-related factors to the evolution of cervical/lumbar conditions’ and concluded that:
Mr Hassan would not have developed the thoracic [upper back] condition were it not for his defence service. The evolution of the cervico and lumbar conditions may well have seen the development of symptoms irrespective of the service-related component though it is reasonable to speculate this has accelerated the inception and maintenance of symptoms at the cervical and lumbar regions.[30]
[29] Exhibit B, page 2, paragraph D.
[30] Exhibit B, page 3, paragraphs F and K.
On 1 May 2020, Associate Professor Brophy, having been given the opportunity to peruse Dr Green’s report, advised that ‘Dr Green’s report does not cause me to change any of my opinions’ and reiterated that ‘as I indicated in my report, at no point has there been evidence of any acute injury, and degenerative change is mainly due to congenital factors and age’[31].
[31] Exhibit D, page 1.
In evidence to the Tribunal, Associate Professor Brophy affirmed the conclusions of both his written reports. He was taken to the radiological reports and, in particular, the report of 2001, 11 years after the relevant incident. He opined that having regard to the report on the cervical spine it seems unlikely there had been a major derangement.
In responding to a question from Mr Hassan as to whether the onset of cervical spondylosis can be or is typically triggered by an injury, Associate Professor Brophy noted that there have been a number of studies on that question in relation to the lumbar spine but less frequent and more inconclusive ones in relation to the neck. He opined that the limited data available suggests the development of cervical spondylosis is unrelated to medical trauma and that it almost invariably begins to emerge asymptomatically after the second decade of life.
The Applicant’s post-service employment history, etc
In evidence to the Tribunal, Mr Hassan said he has not worked permanently since leaving the military but has completed several courses of study, including a theology degree and MBA, and is currently studying for a doctorate in business administration. He said he has done some part-time work as a business school lecturer, as well as in marketing. He also noted that he has taken up Taekwando in the past five years or so, qualifying as a 2^nd dan black belt, though he contended that his particular discipline is more akin to Tai Chi.
CONTENTIONS
The Applicant
Mr Hassan contended to the Tribunal that the neck and shoulder injury he sustained in March 1990 while participating in a SASR selection course contributed to his current condition of cervical spondylosis. He also maintains that the severity of the injury was not correctly diagnosed at the time, primarily because the treating medical officer did not refer him for diagnostic testing, and that the original injury was exacerbated by him being required to continue undertaking physically-demanding tasks in the days immediately following.
Mr Hassan maintains that he has continued to experience often considerable pain in the left shoulder and neck since the injury, which he has attempted to control through medication, alcohol and occasionally drugs. More recently, he also has been receiving several different pain-relief treatments, including radio frequency therapy, needling and electrical stimulation, noting that while such treatments provide a degree of relief, they typically need to be repeated every three months or so.
In responding to a question of why he did not report the continuing debilitating effects of the injury during his military service, Mr Hassan contended that, like his contemporaries, he thought he was ‘bullet proof’ and that reporting or complaining of an ongoing injury while in the military would commonly be seen by his peers and superiors as a sign of weakness and would likely jeopardise his career prospects.
In addressing the variances in the professional opinions of Dr Green and Associate Professor Brophy, Mr Hassan contended that his one visit to Associate Professor Brophy lasted about 30-35 minutes, whereas he has attended numerous appointments with Dr Green, who therefore better understands his condition – ‘he knows my body better than Dr Brophy’ – and has been extremely helpful in the management of his pain.
Mr Hassan reiterated that his purpose in appearing before the Tribunal was to seek closure on the claim he had been pursuing unsuccessfully since 2013.
The Respondent
Mr Burgess, for the Respondent, noted that Mr Hassan continued to undertake physically demanding tasks on the SASR selection course for some six days following the injury and that he withdrew from the course at his own request, rather than because of the injury. Mr Burgess also noted that Mr Hassan successfully continued to undertake physically demanding tasks during the remainder of his military service, including battle fitness tests, and that at no time did the injury seem to prevent him carrying out his normal military duties.
Mr Burgess also noted that while Mr Hassan has asserted that complaining or reporting an injury was against Army culture at the time – which was why he continued to tick the ‘no’ box in various medical questionnaires against the question of injury or derangement to the back, neck and upper extremities – he did include on his final medical report the issue of a sprained ankle suffered on a Kangaroo Exercise.

In addressing the variances in the professional opinions of Dr Green and Associate Professor Brophy, Mr Burgess contended that Associate Professor Brophy’s evidence should be given greater weight than that of Dr Green, not least because Associate Professor Brophy’s evidence was given in person to the Tribunal and tested by cross-examination. He also noted that Associate Professor Brophy was given the opportunity to peruse the report from Dr Green and submit a supplementary report, which he did, maintaining his original position.
Noting that the issue at hand is for the Tribunal to decide on the balance of probabilities, Mr Burgess contended that the evidence presented should not satisfy the Tribunal that the injury sustained by Mr Hassan in March 1990 contributed to the development of any condition relating to his neck or shoulder and, accordingly, should affirm that Mr Hassan is not entitled to compensation under s 14 of the DRCA.
CONSIDERATION
On the question of whether the injury sustained by Mr Hassan on 22 March 1990 was properly diagnosed, the Tribunal notes that the treating medical officer recorded what would seem to be quite comprehensive clinical notes, which included a range of movement and pain threshold tests and suggested remedial exercises. The Tribunal also notes Associate Professor Brophy’s opinion that there is nothing in the clinical notes to suggest Mr Hassan should have been referred for more specialised diagnostic testing.
The Tribunal notes the contention that Mr Hassan was treated ‘in the field’, ‘by a medic’ and that the RAP and/or the training facility was ‘run down’, suggesting Mr Hassan did not receive proper medical treatment for his injury. The Tribunal’s understanding is that the SASR selection course was conducted at a semi-permanent training facility some 90kms east of Perth and the treating medical person was a medical officer, not a medic (implying a private soldier or non-commissioned officer). Hence, if the medical officer thought it necessary, it presumably would have been routine practice for Mr Hassan to be transported to Perth for further treatment or diagnostic testing.
The question of whether Mr Hassan’s injury was exacerbated by him being required to continue training cannot be determined. However, his course report indicates that he continued training for a further 5-6 days before deciding to withdraw from the course at his own request – and that he completed during this time some of the most physically-demanding components of the course without seeking further medical treatment – suggesting the pain and discomfort were manageable and that the severity of the injury did not markedly deteriorate in the days immediately following the injury.
On the question of why Mr Hassan failed repeatedly to report his injury on regular medical questionnaires during his military service, the Tribunal accepts his explanation that Army culture at the time militated against him doing so. However, that explanation does not sit easily with him failing to declare a serious injury at his end-of-service/discharge medical where his earlier reasoning in relation to his peers or career prospects would no longer have applied, particularly when he did declare a relatively innocuous ankle sprain.
The Tribunal also has difficulty in reconciling Mr Hassan’s contention that he suffered considerable and at times extreme pain in his neck and shoulder following the injury, with his desire to attempt a second SASR selection course in 1993. Similarly, there is no record of him seeking further medical treatment for the injury at any time during his military service (between March 1990 and his discharge in April 1991). Nor is there any evidence of him seeking medical treatment for the injury from a civilian medical practitioner between April 1991 and May 2001 (his first radiology appointment).
On the question of the evidence presented by Dr Green and Associate Professor Brophy, the Tribunal notes the contention by Mr Burgess that the Tribunal should give weight to the evidence of Associate Professor Brophy, who appeared before the Tribunal and whose evidence was subject to cross-examination. The Tribunal also has taken into consideration the assertion by Mr Hassan that Dr Green has been treating him on a regular basis and is better informed of his condition.
The Tribunal also notes that Associate Professor Brophy’s evidence specifically addressed the question of whether the March 1990 injury sustained by Mr Hassan contributed to cervical spondylosis, with his report asserting that ‘I could not be confident of any service-related factor causing the condition … [and] my overall sense is that Mr Hassan would have developed his current condition as a natural progression of age-related degenerative changes’[32].
[32] Exhibit C, pages 6-7.
Dr Green’s report, on the other hand, starts by agreeing that ‘the cause of Mr Hassan’s cervical condition relates to … degenerative changes’.[33] But he then blurs the distinction between cervical and lumbar conditions by contending ‘there is most plausibly some modest degree of contribution from service-related factors to the evolution of cervical/lumbar conditions’[34]. His concluding opinion that ‘it is reasonable to speculate this [the service-related component] has accelerated the inception and maintenance of symptoms at the cervical and lumbar regions’ similarly blurs the distinction between two areas of the spine that are separated by the relatively large thoracic (upper back) region[35].
[33]          Exhibit B, page 2, paragraph D.
[34]          Exhibit B, page 3, paragraph F.
[35]          Exhibit B, page 3, paragraph K.
Dr Green’s use of the words ‘reasonable to speculate’ would also suggest he has seen no evidence to justify a more distinct diagnosis or degree of contribution, whereas Associate Professor Brophy made the more definitive diagnosis of ‘not being confident of any service-related factor causing the condition’. The Tribunal prefers the opinion of Associate Professor Brophy.
Given that the matter is to be decided on the balance of probabilities, the Tribunal agrees with Mr Burgess’ contention that while Mr Hassan’s condition of cervical spondylosis could be construed as a ‘disease’ in terms of s 5B of the DRCA, it was not ‘contributed, to a significant degree, by the employee’s employment by the Commonwealth’.
CONCLUSION
The Tribunal concludes that having regard to the evidence, the injury sustained by Mr Hassan in March 1990 did not contribute to the development of cervical spondylosis or any other condition of the neck or left shoulder. Accordingly, the Tribunal concludes that Mr Hassan’s condition of cervical spondylosis was not contributed, to a significant degree, by his military service and that he is not entitled to compensation under s 14 of the DRCA.
DECISION
The decision under review is affirmed.
…………[SGND]………………
Administrative Assistant Legal
Dated: 11 March 2021
Dates of hearing:  1-2 March 2021
Applicant:Self-represented
Respondent’s Representative:  Mr Ashley Burgess, Sparke Helmore Lawyers

[2021] AATA 2108

11 March 2021

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