Iserief and Repatriation Commission (Veterans' entitlements) [2019] AATA 1298 (13 June 2019)
Division:VETERANS’ APPEALS DIVISION
File Number: 2018/0428
Re:Victor Iserief
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Deputy President R I Hanger QC
Date:13 June 2019
Place:Brisbane
The Tribunal affirms the decision under review.
..........................[SGD]...........................................
Deputy President R I Hanger QC
Catchwords
VETERANS’ AFFAIRS – claim for defence-cause condition of cervical spondylosis – relevant Statement of Principles – diagnosis of cervical spondylosis accepted – clinical onset of cervical spondylosis not within 25 years of trauma – connection between condition and service not reasonably satisfied – decision under review affirmed.
Legislation
Veterans’ Entitlements Act 1986 (Cth)
Cases
Lees and Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Money [2009] FCAFC 11
Secondary Materials
Statement of Principles concerning Cervical Spondylosis no. 67 of 2014
REASONS FOR DECISION
Deputy President R I Hanger QC
13 June 2019
INTRODUCTION AND BACKGROUND
The applicant seeks a review of a decision of the Veterans’ Review Board dated
8 December 2017, which affirmed a determination of the Repatriation Commission (“the Commission”) dated 23 June 2017. The Commission refused the applicant’s
12 September 2016 claim for cervical spondylosis (“the condition”) as it found “there is no medical condition present to answer…”.[1] The applicant has a number of other medical conditions that have been accepted, which are not the subject of this decision.[2]
[1] Exhibit 3, T Documents, T55, pages 163 – 166, Repatriation Commission Reasons for Decision, dated 23 June 2017.
[2] Exhibit 3, T Documents, T54, pages 157 – 162, Veteran Community Details Report, printed 19 June 2017.
The applicant, Mr Iserief, was born in 1948 and is currently aged 70 years. He enlisted in the Australian Army on 15 January 1980 and was discharged on 23 April 1989.[3]
[3] Exhibit 3, T Documents, T54, pages 157 - 162, Veteran Community Details Report, printed 19 June 2017.
In January 1983, while serving, he was involved in a motor vehicle accident. Following the accident he was shocked and shaken but able to get out of his car unaided. He did not notice any obvious injuries at the time and there was no need for emergency services to attend. He presented to his Regimental Aid Post (“RAP”) on the following day with neck pain. Clinical examination noted some minor restriction in movement and he was prescribed anti-inflammatory medication. Contemporaneous documents show that he attended his RAP on 2 February, 20 May, and 8 August 1983 and it was recommended that he take anti-inflammatory drugs and exercise.[4] He continued serving for the next six years.
[4] Exhibit 11, Australian Military Forces full medical record for the applicant.
After discharge from the Army in April 1989, the applicant’s neck was x-rayed in August 1989. The x-ray report of his cervical spine stated that the disc spaces were normal and that “no fracture, subluxation or cervical ribs can be seen.”[5]
[5] Exhibit 3, T Documents, T9, page 42, Imaging Report of Dr Edward Dauber, dated 10 August 1989.
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- Case
- [2019] AATA 1298
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the applicant had satisfied the requirements of Statement of Principles (SoP) 6(f), which stipulated that the clinical onset of cervical spondylosis must have occurred within 25 years of the relevant trauma. The trauma in question was a motor vehicle accident on 20 January 1983, meaning the clinical onset of symptoms needed to be demonstrated by 20 January 2008. The Court also considered the definition of "clinical onset" as established in previous case law, which involves a person becoming aware of a symptom or a finding on investigation indicative of the disease.
The Court considered the medical evidence, particularly the report and testimony of Dr Simon Journeaux, a Consultant Orthopaedic Surgeon. Dr Journeaux concluded that there was no causal relationship between the 1983 injury and the applicant's current diagnosis of cervical spondylosis. He opined that the mid-cervical degeneration, indicative of clinical onset, likely occurred after August 1989, based on radiological imaging. This timeframe fell outside the 25-year period stipulated by SoP 6(f). The Court accepted this medical evidence, finding that the applicant had not demonstrated that the clinical onset of his cervical spondylosis occurred within the required period following the trauma.
Consequently, the Court found that the applicant had failed to satisfy the requirements of SoP 6(f). The decision under review, which affirmed the Repatriation Commission's denial of the claim, was therefore affirmed by the Court.
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