Henriksen and Repatriation Commission (Veterans' entitlements)

[2018] AATA 2002

Henriksen and Repatriation Commission (Veterans' entitlements) [2018] AATA 2002 (3 July 2018)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2015/5945

Re:Darcy Henriksen

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:3 July 2018

Place:Brisbane

The decision under review is affirmed.

..................................[Sgd].....................................

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERANS’ AFFAIRS – claim for an increase in disability pension – claim for defence-caused condition of cervical spondylosis – standard of proof s 120(4) of the Act – relevant Statement of Principles – diagnosis of cervical spondylosis accepted – clinical onset of cervical spondylosis not within 25 years of trauma – heavy lifting of 120,000 kilograms did not occur in the ten year period before the clinical onset – decision under review affirmed.

LEGISLATION

Veterans’ Entitlements Act 1986
Military Compensation Act 1994

CASES

Repatriation Commission v Money [2009] FCAFC 11
Lees v Repatriation Commission (2002) 125 FCR 331
RepatriationCommission v Cornelius [2002] FCA 750

SECONDARY MATERIALS

Statement of Principles concerning Cervical Spondylosis no. 34 of 2005
Statement of Principles concerning Cervical Spondylosis no. 67 of 2014

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

3 July 2018

INTRODUCTION

1. The applicant, Mr Henriksen, has a distinguished history of service with the Royal Australian Air Force (the “RAAF”). He first joined the RAAF on 14 October 1968, at 17 years of age, and was discharged on 16 December 1988. The applicant rejoined the RAAF in 1994 and as at the date of the hearing of this application he was still in active service.

2. While serving in the RAAF between 1973 and 1987 the applicant worked as an air loader. He was responsible for loading and unloading stores onto C130 aircraft pallets, as well as building aircraft pallets.

3. The applicant suffers from numerous medical conditions, several of which have been accepted by the Department of Veterans’ Affairs (“DVA”). He is now seeking the acceptance of a further medical condition, cervical spondylosis, which he claims is related to his service in the RAAF.

   BACKGROUND

4. On 16 October 2012 the applicant lodged a claim with DVA to receive a disability pension.[1] He claimed a number of medical conditions, including gastro-oesophageal reflux disease and cervical spondylosis.

   [1] Exhibit A, T-Documents, T5.

5. On 21 February 2013 the respondent refused the applicant’s claims for gastro-oesophageal reflux disease and cervical spondylosis, along with several other conditions which are not the subject of this application, on the basis that the claimed conditions were not service-related. The respondent did also accept several of the applicant’s claimed conditions. His disability pension was assessed as 20%.

6. The applicant applied for further review of the respondent’s decision with the Veterans’ Review Board (“VRB”) on 9 August 2013. On 27 July 2015 the VRB affirmed the decision with respect to the conditions of cervical spondylosis and gastro-oesophageal reflux disease.

7. On 10 November 2015 the applicant applied to this Tribunal for review of the decision of the respondent.

8. The claimed condition of gastro-oesophageal reflux disease is now an accepted condition with effect from 8 February 2013. The other conditions accepted by the respondent are pterygium in the left eye, bilateral sensorineural hearing loss, bilateral tinnitus, lumbar spondylosis, and rotator cuff syndrome of the right shoulder.

9. The applicant’s service from 7 December 1972 to 16 December 1988 is eligible defence service under section 68 of the Veterans’ Entitlements Act 1986 (“the Act”). Section 68 defines defence service as including “continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date”. The term ‘terminating date’ is defined in s 68 as the date on which the Military Compensation Act 1994 commenced, being 7 April 1994.

   ISSUE

10. The issue to be determined in this application is whether the applicant’s condition of cervical spondylosis is service-related. In the event that the condition is accepted as service-related, the rate of pension must also be determined.

    LEGISLATIVE FRAMEWORK

11. As the veteran has performed defence service, the determination of whether an injury or disease is defence-caused is to be made by applying the standard of proof outlined in

    
    

    s 120(4) of the Act. Section 120(4) requires this Tribunal to decide this matter to its ‘reasonable satisfaction’.

12. Section 120B(3) of the Act stipulates how ‘reasonable satisfaction’ is to be assessed:

    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.

13. 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.”

    STATEMENT OF PRINCIPLES

14. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”) which is an independent medical body that issues Statements of Principles (“SoPs”) based on sound medical-scientific evidence. The SoPs set out factors relating to service which must exist in order to establish a causal connection between service and particular diseases, injuries or death.

15. SoPs are binding on the respondent and various review bodies, including this Tribunal.

16. The SoPs relevant to this matter are:

    (a)Statement of Principles concerning Cervical Spondylosis no. 34 of 2005

    (b)Statement of Principles concerning Cervical Spondylosis no. 67 of 2014

17. During the hearing there was some discussion about the application of each SoP, in particular the differences between the earlier SoP (no. 34 of 2005) and the later SoP (no. 67 of 2014) and how each would apply to the applicant. The representative for the respondent accepted that it was open to the Tribunal to apply the earlier SoP.

18. The two relevant factors identified by the parties are factors 6(f) and 6(h). In SoP no. 34 of 2005 factor 6(f) is:

    (f) having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis;

19. In SoP no. 67 of 2014 factor 6(f) is:

    (f) having 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;

20. Across both SoPs factor 6(h) is:

    (h) carrying loads of at least 25 kilograms on the head while upright to a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of cervical spondylosis, and where the clinical onset of cervical spondylosis occurs within the 25 years following that period;

    HEAVY LIFTING AND CARRYING

    Applicant’s evidence

21. The applicant provided several statements to the Tribunal, and also provided oral evidence at the hearing. He confirmed that between 1976 and 1987 he was responsible for the assembly, loading and unloading of stores to aircraft pallets. He was promoted to the position of Sergeant in 1981, and continued to undertake this kind of work. The loading and unloading of stores was undertaken without the use of forklifts.[2] The applicant stated that the workload during this period was very high.

    [2] Exhibit K, Annexure C, undated statement of the applicant.

22. The applicant claims that in order to load the pallets to the required height, he had to lift supplies onto his head. The pallets were regularly loaded up to eight feet high.[3]

    [3] Exhibit F, statutory declaration of the applicant.

23. The applicant provided evidence which described the commonly used methods of loading and unloading.[4] He elaborated on this at the hearing, and went into detail about how some of the heavier stores required a second person (a “buddy”) to assist with putting the item in position at the top of the pallet. In this instance, the first person needed to first lift the item by themselves and carry it over to the pallet. At any given time there were only two air loaders allocated to the loading of one pallet, and a total of four air loaders working in that area.

    [4] Id.

24. The applicant gave evidence about the weight of the stores, stating that they would weigh up to 50kg. He explained that he had no choice but to lift these stores himself, often by placing the item on his head, as there were no other transport options or hydraulic lifts. The applicant confirmed that he was relying solely on his recollections from that time when commenting on the weight of the stores he carried. No evidence was produced to support these assertions.

25. The applicant also spoke about the frequency with which he was required to load and unload the pallets. He stated that in 1986 there were around 5 planes a day with five pallets per plane; and calculated that if it was assumed each pallet involved a minimum of 25kg of lifting, this would amount to the applicant lifting 125,000kg in just 200 days.

    Group Captain Fiona Dowse

26. Group Captain Fiona Dowse served with the applicant in 1985 and 1986. At that time she was responsible for the supervision of air loaders working on the aircraft, including the applicant. As the supervisor, she regularly witnessed pallets being loaded and unloaded.

27. Ms Dowse corroborated much of the applicant’s evidence. She confirmed that lifting stores onto the head was a common practice and accepted procedure in the RAAF at that time, and that the applicant was in a position where he had no choice but to do so in order to get the job done. She stated that there were several lifting techniques which involved the use of a person’s head to balance the item being loaded, including a two-person lifting technique where one person had to sit on top of the pallet. In her email dated
    

    [5] Exhibit G, email of Fiona Dowse dated 28 April 2016.

    28 April 2016,[5] Ms Dowse commented that workplace safety was not a high priority at that time, and that the RAAF did not have the benefit of the now stringent Occupational Health & Safety rules. Lifting processes in the RAAF have since changed, with the introduction of new pits used to lower pallets.

28. Ms Dowse confirmed that the pallets were regularly loaded up to six to eight feet high, and that the bulk of the stores weighed 50kg. She agreed that the applicant was exposed to a very heavy work load and long work days. She estimated that there would have been around 30 flights a week, conservatively.

29. In her statement,[6] Ms Dowse addressed the opinion of the VRB that the applicant would have been unlikely to have been regularly involved in the lifting of heavy items as a supply supervisor. She stated that this was incorrect. She gave evidence that she frequently witnessed the applicant completing this week.

    [6] Exhibit A, T-Documents, T1, at p. A6.

    APPLICANT’S MEDICAL HISTORY AND TREATMENT

30. In 1971, the applicant had an x-ray which confirmed that his cervical spine was normal.[7]

    [7] Exhibit A, T-Documents, T8, at p. 157.

31. The applicant suffered an injury to his neck while he was posted in Indonesia in

    
    

    May 1976. He claimed that he was pushed into a swimming pool and struck his head on the edge of the pool.[8] The medical report diagnosed the applicant with “muscular strain” as a result of the incident.[9]

    [8] Exhibit K, undated statement of the applicant.

    [9] Exhibit A, T-Documents, T7, at p. 153.

32. In a claimant report dated 26 October 2012, the applicant described how the incident caused “instant pain” and “restriction of movement”, and remarked that his neck was “painful and stiff” with a “burning sensation” around the base of his neck.[10] He outlined that the pain and immobility symptoms began immediately, and the burning sensation began within a few days. The pain lasted for 2 to 3 days, but the lack of mobility was ongoing, and the burning sensation was “ad hoc and ongoing”. He stated that he received aspirin from the medical officer at the time of the incident, and was later treated with physiotherapy, heat packs and stretches in June/July 1976.  

    [10] Ibid at p. 150-151.

33. In 1983, the applicant was reportedly unable to lift his arm above his shoulder, and was treated with a sling, analgesics and physiotherapy.[11] An x-ray was performed which recorded an issue with the rotator cuff, but made no mention of any neck issues.[12]

    [11] Exhibit E, medical report of Dr Lochlin Brown dated 26 October 2015, at pp. 2-3.

    [12] Exhibit A, T-Documents, T7, at p. 141.

34. In 1984, the applicant experienced what he described as a “burning pain to the neck”, which was treated with physiotherapy and analgesics.[13] The clinical notes from this assessment include the comment “physio of the neck and x-ray if no better”. There is no evidence that an x-ray was performed until 2011. In an undated statement the applicant stated his view that no x-ray or ultrasound had been requested by the RAAF prior to 2011, with the exception of the x-ray of his shoulder which occurred in 1983.[14]

    [13] Exhibit A, T-Documents, T4, at p. 94

    [14] Exhibit K, undated statement of the applicant.

35. The applicant stated that he continued to experience pain in his neck, shoulder and lower back between 1984 and 2011.[15] In 1986 the applicant hurt his neck and was treated with a cervical collar and analgesics.[16] The applicant received electrotherapy treatment to his shoulder in 1988[17], and in a statement claims that this was for both his shoulder and neck.[18] In 1995, the applicant experienced “neck and back pain” after he carried a heavy pack. For this he was prescribed analgesics and referred for physiotherapy.[19]

    [15] Id.

    [16] Exhibit A, T-Documents, T1, at p. A9

    [17] Exhibit A, T-Documents, T7, at p. 142.

    [18] Exhibit K, undated statement of the applicant.

    [19] Exhibit A, T-Documents, T1, at p. A7.

36. When giving evidence at the hearing, the applicant drew attention to the fact that despite a reference to the potential necessity of an x-ray in the 1984 clinical notes, his experience of the same neck pain again in 1986 did not result in an x-ray or other scan. He was instead treated with a collar, which he described as being “obviously” for his neck.

37. In one of his statements, the applicant spoke about the medical culture in the Defence Force in the 1970’s and 1980’s, saying that it was not common to seek diagnostic imaging.[20] In another statement he described the treatment he received as providing only “short-term relief”.[21]

    [20] Exhibit K, statement of the applicant dated 24 October 2016.

    [21] Exhibit K, statement of the applicant dated 22 July 2015.

38. Between the time of the applicant’s discharge from the RAAF in 1988 and his re-enlistment in 1994, there was continuous management of his neck pain by the Defence Force and himself, through physiotherapy and pain relief medication.[22] He was still suffering from lower back, shoulder and neck pain when he joined Reserves and when he re-joined as a permanent member of the RAAF in 2008.[23]

    [22] Exhibit K, undated statement of the applicant.

    [23] Id.

39. At the hearing the applicant referred to the pain he experienced in his shoulder, neck and lower back, and the lack of focus on fixing these issues, as one of the reasons he initially left the RAAF in 1988. He was asked about a number of health assessments that were conducted over the initial period of his service, where he failed to mention his neck problems. With respect to a report dated 21 August 2002, the applicant stated that he made no reference to his neck condition because if he had identified it, the result would have just been more physiotherapy and analgesics. He further clarified that, regarding both the annual health assessment dated February 2004[24] and the discharge health statement dated 3 November 1988,[25] he did not refer to his neck problem as he had been conditioned in his service career that any health problems were thought of as normal unless an operation or similar was required which prevented a person from working.

    [24] Exhibit A, T-Documents, T3, at p. 37.

    [25] Ibid at p. 56.

40. The applicant gave evidence that in 2011 he “insisted” that his neck pain was examined further by the Defence Health Centre. He had previously described how he was only able to insist upon this because he was in a higher rank by that time.[26] The applicant was referred to Dr Nicholas Kenning. The report of Dr Kenning dated 2 July 2011 noted a “long history of neck pain”, and confirmed that the MRI showed a severe narrowing and degenerative change to the cervical region.[27]

    [26] Exhibit K, statement of the applicant dated 24 October 2016.

    [27] Exhibit A, T-Documents, T7, at p. 155-156.

41. Prior to 2011, the applicant stated that he had been treating his neck pain with regular visits to his own physiotherapist, which was paid for by himself, as the RAAF was not offering any treatment at that time. In an undated statement the applicant confirmed that, as at the time of that statement, he was still engaged in ongoing treatment in the form of pain relief and weekly physiotherapy.[28]

    Dr Paul Malouf

    [28] Exhibit K, undated statement of the applicant.

42. At the hearing Dr Malouf was asked to comment on the history of the applicant’s medical treatment. With regard to the 1986 assessment, which was completed after the applicant’s first complaint and assessment in 1984, he agreed that identifying that the condition was improving, diagnosing the issue as “muscle sprain” and supplying the applicant with a neck collar was reasonable.

43. Dr Malouf commented that a lack of further investigations at this stage as to whether the condition was degenerative was not significant, as the applicant’s symptoms appeared to have improved with the prescribed treatment. He spoke about how he would have advised the applicant in those circumstances to come back if the symptoms had not improved, and there was no evidence of a re-examination occurring.

44. Dr Malouf also commented generally that the treatment provided to the applicant over the years, including physiotherapy, was reasonable.

    CLINICAL ONSET

    Dr Paul Malouf

45. Dr Malouf first examined the applicant in 1998. In his report dated 24 October 2016 he put forward his view that both the heavy lifting on and above the applicant’s head and his history of trauma experienced in 1976 could be significant contributing factors to the development of the applicant’s cervical spondylosis. [29] Ultimately Dr Malouf maintained his opinion at the hearing that the clinical onset of the cervical spondylosis was in 1976.

    [29] Exhibit I, report of Dr Malouf dated 24 October 2016.

46. When giving evidence Dr Malouf was questioned regarding the basis for his opinion on clinical onset. He admitted that when he first put forward that opinion it was primarily based on what the applicant told him about his medical history, including the applicant’s personal view that 1976 was the year his neck issues commenced. Since that time, Dr Malouf had reflected on his conclusions and determined that the basis for his original opinion was inappropriate. He explained that he didn’t know the applicant at the time of his injury in 1976, and therefore he should not have proceeded on the assumption that the applicant’s assertions about this time were correct.

1. When giving evidence Dr Malouf went on to clarify that since that time he had been through all medical documents and notes, including the service medical records of the applicant’s from 1971 onwards. Dr Malouf confirmed that, having looked at all relevant material, his opinion regarding the clinical onset date had not changed. He elaborated on the basis for this opinion, explaining that in his view the applicant’s medical history revealed a reasonable, common sense sequence of events, i.e. the applicant experienced a trauma in 1976; the applicant’s heavy lifting above his head in the course of his work contributed substantially to the condition; the applicant has a long history of treatment for his neck issues; and the subsequent scan in 2011 revealed results that were not consistent with the average 60-year-old.

2. In his own words Dr Malouf described the 1976 clinical onset date as being the correct and preferable date on the “balance of probabilities”. Indeed, Dr Malouf went on to state that, in his opinion, the conclusion of a 1976 clinical onset was “self-explanatory”.

   Dr Lochlin Brown

3. Dr Brown examined the applicant on 16 October 2015, and provided a report dated
   

   [30] Exhibit E, report of Dr Brown dated 26 October 2015.

   26 October 2015 at the request of the respondent.[30] He did not give evidence at the hearing.

4. In his report Dr Brown agreed with the diagnosis of cervical spondylosis. Dr Brown considered that the clinical onset date of the applicant’s cervical spondylosis was in 2011, based on the 2 July 2011 MRI scan which confirmed this diagnosis. Notwithstanding this opinion, Dr Brown commented, “although he did demonstrate neck pain from 1976 there was no specific radiological diagnosis at that time.”[31]

   [31] Exhibit E, report of Dr Brown dated 26 October 2015 at p. 4.

5. In his statement dated 24 October 2016, the applicant submitted that Dr Brown was not provided with any of the medical records relating to his neck issues in 1976 or throughout the 1980’s. The applicant confirmed this in oral evidence at the hearing, and stated that he was told by Dr Brown that he was bound by the results of the 2011 MRI with regard to the clinical onset date, because he did not have any medical records in front of him which related to the burning sensation he experienced in the 1980’s or the various treatments he received for his neck issues, including neck braces.

   SUBMISSIONS

   Applicant

6. The applicant has pointed out that he has a long history of back, neck and shoulder pain. He submits that while the respondent has already accepted his shoulder and back conditions (rotator cuff syndrome and lumbar spondylosis respectively), they have refused to acknowledge his recently diagnosed neck condition of cervical spondylosis as service-related. The applicant seeks to link this condition with his lengthy period of service in the RAAF, when he was responsible for building, loading and unloading aircraft pallets. In the course of this service the applicant contends that he was regularly required to lift and carry weights of up to 50kg onto his shoulders and head.

7. The applicant contends that the accepted condition of rotator cuff syndrome serves to verify the applicant’s claim that he had to lift and carry heavy loads during his service. The decision of the VRB accepted that the applicant had been responsible for lifting and carrying heavy loads of more than 120,000kg above his shoulders.

8. The applicant has submitted that the RAAF failed to properly investigate the issues he experienced with his neck over a number of years. In particular they failed to refer the applicant to a specialist or request a scan of the neck area, despite repeated complaints of neck pain and numerous instances of the applicant receiving treatment for this pain.

9. While there has been more than one opinion proffered by the applicant with respect to the clinical onset of his cervical spondylosis, the applicant’s final submission is that the clinical onset was in 1976 at the time the applicant injured his neck in Indonesia. He relies upon the opinion of Dr Malouf in this regard.

10. With regard to the relevant SoPs, the applicant considers that he meets factors 6(f) and 6(h). The applicant submits that the injury he suffered in Indonesia in 1976 meets the definition of a ‘trauma’ for the purposes of factor 6(f). He maintained that after this injury he was treated with analgesics and a neck collar.

11. The applicant submits that the lifting and carrying of heavy supplies he undertook in the RAAF meets factor 6(h). The applicant provided a substantial amount of evidence about the lifting methods and the weight of the items he lifted. He calculated that he would have met the criteria of lifting 120,000kg over 10 years within one year in 1986, which falls within 25 years of the diagnosis of cervical spondylosis.

12. With respect to the respondent’s contention that the applicant was not responsible for ‘carrying’ heavy items on his head, the applicant has argued that the definition of ‘carry’ is not addressed in the SoP. It is the applicant’s submission that to ‘carry’ means “at the moment the weight is placed on the head, the neck (cervical spine) the cervical spine is instantly bearing that weight…” The applicant relies on the fact that the weights were placed on his head and moved from one position to another. 

    Respondent

13. The respondent’s submissions addressed the relevant factors (f and h) in clause 6 of the SoPs. On each of these factors, the issue of clinical onset is critical. The respondent has submitted that the material points to a clinical onset date after 2003 and prior to the 2011 diagnosis.

14. In relation to factor 6(f), which differed in each SoP, the respondent contends that there was not a trauma within 25 years of the clinical onset of the applicant’s cervical spondylosis condition. In this regard the respondent relies on the definition of ‘trauma to the cervical spine’ as outlined in each SoP. In particular they highlight the inclusion within the definition that the trauma must cause the development of symptoms of pain, tenderness, and altered mobility or range of movement of the cervical spine, and these symptoms must last for a period of at least seven days following their onset; except where medical intervention has occurred and that intervention involves either immobilisation of the cervical spine, injection of corticosteroids or local anaesthetic, or surgery. The respondent submits that the medical records which relate to the applicant’s injury in 1976 disclose a muscle strain which was treated by aspirin. Further, the applicant’s statement indicates that he experienced a 2-3 day period of pain, while further treatment and provision of a collar was administered on his return to Australia. On this basis, the respondent submits that this does not meet the definition of a ‘trauma’.

15. In relation to factor 6(h), which was the same in each SoP, the respondent noted the evidence provided by the applicant, including the descriptions of lifting techniques he used during his service in the RAAF. The respondent noted that the descriptions provided by the applicant are consistent with a responsibility of ‘lifting’ loads onto the head; however, the respondent has submitted that the descriptions do not meet the Oxford dictionary definition of ‘carrying’: “to support and move (someone or something) from one place to another”. Rather, the respondent submits that the applicant placed the object on his head to be transferred, and the object was then either pushed by the applicant or pulled by another person on top of the pallet.

16. The respondent’s submissions also addressed the photographs provided by the applicant, and in particular the height of both the applicant and the C130 pallets depicted in the photographs. The respondent highlighted how the height of the applicant appeared inconsistent across the photographs.

    CONSIDERATION

    Diagnosis

17. I am reasonably satisfied that the applicant suffers from cervical spondylosis. I base that conclusion on the report of Dr Malouf who, on 26 October 2012, reported on the degenerative “multilevel facet joint anthropathy” of the applicant. Dr Kenning in his report dated 2 July 2011 also confirmed a diagnosis of cervical spondylosis.

    Date of clinical onset of cervical spondylosis

18. I am required to make an assessment of the date of the clinical onset of cervical spondylosis.

19. The SoP which is in force is Instrument No 67 of 2014. The definition of cervical spondylosis in the current SoP requires that there is “imaging evidence of degenerative change”. A CT study from 2 July 2011 confirms that there were degenerative changes in the cervical spine at that time. Accordingly the date of clinical onset for the purposes of the SoP is in 2011.

20. The applicant is, however, entitled to have his claim assessed in accordance with an earlier SoP which is in force when he lodged his claim on 16 October 2012.[32] At that time the SoP which was in force is Instrument No 34 of 2005.

    [32] Repatriation Commission v Gorton [2001] FCA 1194.

21. Clause 3(b) of Instrument No 34 of 2005 contains the following definition of cervical spondylosis:

    “For the purposes of this Statement of Principles, “cervical spondylosis” means degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis.”

22. This definition does not include a requirement that there be “imaging evidence of degenerative change”. Accordingly a finding of an earlier date of clinical onset of the condition may be made provided if there is evidence upon which I can be reasonably satisfied such a finding may be made.

23. Dr Malouf in his report dated 26 October 2012 gave his opinion that the date of clinical onset was in 1976. In giving evidence Dr Malouf stated that this opinion was given in the initial stages and was made in reliance on what was said by the applicant. In re-examination Dr Malouf reiterated his opinion that the date of clinical onset was “definitely” 1976. Dr Malouf first saw the applicant in 1986 and the applicant was his patient until 2003. The medical records of Dr Malouf do not contain any reference to the treatment of the cervical spine. There are no cogent reasons which would enable me to make a finding that I would be reasonably satisfied that the date of clinical onset of the cervical spondylosis condition was in 1976.

24. I have carefully reviewed the medical documentation which is in evidence and I will refer to a number of documents which are relevant to my inquiry.  It is apparent that the predominant cause of complaint of the applicant has been in the right shoulder and trapezium muscle region. There are a number of medical reports which refer to the neck of the applicant.

25. The first medical report from 1971 confirms that an x-ray found that the cervical spine was normal.

26. The report of 24 May 1976 concerns the swimming pool incident. In the margin of the report is a printed note in capital letters referring to a neck injury which is different script from rest of the report. The body of the report refers to the head of the applicant and mentions that the applicant has “a painful trapezium and sternum – muscular strain”, but makes no reference to the neck of the applicant.

27. A record from 1983 which is referred to in the report of Dr Brown makes no mention of the neck of the applicant. That report concerns when the applicant was unable to lift his arm above his shoulder and had an x-ray of his shoulder which showed that the applicant had rotator cuff issues; he was treated by a sling, rest, analgesia and physiotherapy.

28. In 1984 the applicant complained of a burning pain to his neck and was treated with physiotherapy and analgesia.

29. In 1986 the applicant hurt his neck and was treated with a cervical collar and analgesia.

30. The applicant claims that in 1988 he received electrotherapy treatment for his neck but the report showed that the treatment was to his shoulder.

31. In 1995 the applicant complained of “neck and back pain” after he was carrying a heavy pack; he was prescribed analgesics and physiotherapy.

32. On 2 July 2011 Dr Kenning reported on an MRI of the cervical spine which found that there is no distal neural compressive abnormality seen within the cervical spine.
    Dr Kenning also reported on degenerative changes within the cervical spine with multilevel facet joint anthropathy changes and at C3/4 and C6/7 there is potential compromise of the exiting right C4 and C7 nerve roots. In that report is a reference to a “long history of neck pain”. The separation health statement dated 15 November 2011 refers to weekly discomfort in the neck of the applicant which was being treated with physiotherapy.

33. In Lees v Repatriation Commission (2002) 125 FCR 331 there was approval of RepatriationCommission v Cornelius [2002] FCA 750 where Branson J explained, at [26], that “there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present”.

34. After the review of the medical evidence from 2011 I have concluded that the date of clinical onset of the condition for the purposes of the application of Instrument No 34 of 2005 is 2 July 2011, which is the date of the report of Dr Kenning. The earlier incidents in the 1980’s refer to isolated incidents which do not appear to have significance for the purposes of determining the date of clinical onset of the condition. Having regard to the decision in Lees, I consider that there is no feature or symptom that has been identified which enables a finding to be made that the condition of cervical spondylosis was present before 2011.

    Causation

35. Clause 6 of the SoP which is in force, being Instrument No 67 of 2014, refers to the factors that must exist before it can be said that, on the balance of probabilities, cervical spondylosis is connected with the circumstances of a person’s service.

36. It has been contended that one factor which is relevant is factor 6 (f):

    “having 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.”

37. “Trauma to the cervical spine” is defined in clause 9 to mean:

    “a discrete event involving 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..”

38. There is a difficulty in the application of the current SoP because of factor 6(f) of the SoP which requires that cervical spondylosis must be present within 25 years of trauma to the neck. The trauma to the neck that is relied upon by the applicant occurred in 1976 when the applicant stated he struck his head on a swimming pool. I cannot be reasonably satisfied that cervical spondylosis was present within 25 years of that trauma because the date of clinical onset for the purposes of the current SoP is in 2011. I have concluded that the template of the current SoP is not satisfied. This is also the case for the application of factor 6(f) of Instrument No 34 of 2005 which refers to “having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis”.

39. Another factor which is relevant is factor 6(h) of each SoP, which provides:

    (h) carrying loads of at least 25 kilograms on the head while upright to a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of cervical spondylosis, and where the clinical onset of cervical spondylosis occurs within the 25 years following that period;

40. The VRB was of the opinion that service personnel of the rank of the applicant, who was promoted to a supervisor position, was not likely to have been regularly involved in lifting and carrying loads of 50kg on their heads at least four times a day for periods of months and years as claimed by the applicant. However, I am prepared to accept that the applicant did carry loads of at least 25 kilograms on his head to a cumulative total of at least 120,000 kilograms. In my opinion the applicant was an honest witness who would step in to perform the job; his evidence was credible because he stated that there was a high workload at this time. His evidence was corroborated by Ms Dowse, who was a commissioned officer. I also find that the movement of placing those loads of the heads of the applicant was to “carry” the loads within the spirit of the SoPs. The applicant stated that he performed load master duties from 1976 until 1986. This was well before the ten year period before the clinical onset of cervical spondylosis. I have therefore concluded that the template of both SoPs is not satisfied because of this timing issue.

    DECISION

41. I affirm the decision under review.

I certify that the preceding 87 (eighty-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

.............................[Sgd]........................................

Associate

Dated: 3 July 2018

Dates of hearing:	28 September 2016 and 3 May 2017
Date final submissions received:	23 June 2017
Advocate for the Applicant:	Mr N Payne
Advocate for the Respondent:	Mr B Williams