Iserief and Repatriation Commission (Veterans' entitlements)

[2019] AATA 1298

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.

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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

1. 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.

2. 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.

3. 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.

4. 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.

5. In the intervening years he presented to his general practitioner with many problems in relation to his back and the occasional mention of his neck. In October 2006, a medical review referred to the applicant reporting pain in the cervical spine often present at rest but which was mild. Dr E. R. Nixon at that time in answer to the question as to what treatment the applicant uses for his cervical spine condition wrote the word “reassurance” he says the symptoms are not due solely to the muscle injury to the neck and refers to the condition as “minor”.[6]

   [6]     Exhibit 3, T Documents, T23, pages 78 – 80, Cervical Spine Condition Medical Impairment Assessment, dated 24 October 2006.

6. In a document headed “Diagnostic Report – Cervical Spondylosis”, dated 6 December 2016, Dr Gopal Bhat says that there is insufficient evidence to make a diagnosis of cervical spondylosis and records “no mention of this condition since he was registered with our practice on 26 August 2014”.[7] The same document deals with other clinical conditions which are not relevant for present purposes.

   [7]     Exhibit 3, T Documents, T46, pages 130 – 131, Diagnostic Report – Cervical Spondylosis, dated 6 December 2016.

7. On 20 January 2017, the applicant had a CT of the cervical spine and it demonstrated mid cervical osteoarthritis at the C3/4, C4/5 and C5/6 level.[8]

   [8]     Exhibit 3, T Documents, T52, pages 154 – 155, CT Cervical Spine report dated 20 January 2017.

   ISSUE

8. Put simply, the issue for this Tribunal to determine is whether the applicant suffers from cervical spondylosis (“the condition”) and if so, whether the condition arose out of, or is attributable to his service in the Defence Force. 

9. The respondent has accepted the applicant suffers from the condition. However, the respondent contends that on the balance of the material, the Tribunal cannot be reasonably satisfied of the connection between the condition and his defence service.[9] This is the issue for the Tribunal to determine.

   [9]     Exhibit 1, Respondent’s Statement of Issues, Facts and Contentions, dated 23 April 2019, at paras 4.3 and 4.12.

   LEGISLATIVE FRAMEWORK

10. Section 70 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”) provides that where a member of the Defence Force is incapacitated from a defence-caused injury or a defence-caused disease the Commonwealth is liable to pay a pension. Subsection 70(5)(a) of the Act provides that an injury or disease shall be taken to be defence-caused if it arose out of, or is attributable, to any defence service.

11. Section 120(4) of the Act requires the Commission, in making any determination or decision, to decide the matter to its reasonable satisfaction. In doing that, it is directed to be reasonably satisfied only in particular circumstances. The material must raise a connection between the injury or disease and some particular service rendered by the applicant. The decision-maker must then take a further step. If there is in force a Statement of Principles (“SoPs”), it must apply the relevant principle.[10]

    [10]    The Act, s 120B(3).

12. Dowsett J explained the process in Repatriation Commission v Money [2009] FCAFC 11 at [86]:

    “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

13. Section 196A of the Act provides for the establishment of the Repatriation Medical Authority (“RMA”) which is an independent medical body that issues 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. The RMA has issued a SoP concerning cervical spondylosis.[11]

    [11]    Statement of Principles concerning Cervical Spondylosis no. 67 of 2014.

14. If the applicant succeeds in contending that there is a connection between his cervical spondylosis and his defence service, he will have to contend with SoP 6(f) which requires that he have “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 25 years before the clinical onset of cervical spondylosis”.

15. The trauma arose from the motor vehicle accident on 20 January 1983. That means the applicant has to demonstrate the clinical onset of the symptoms by 20 January 2008. The term “clinical onset” was considered in Lees and Repatriation Commission (2002) 125 FCR 331, at 336, where the Full Court of the Federal Court adopted an earlier statement by the tribunal in Robertson v Repatriation Commission (1998) 50 ALD 668 at 670:

    “…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…”

    MEDICAL EVIDENCE

    Dr Simon Journeaux

16. Dr Journeaux, Consultant Orthopaedic Surgeon, provided a report dated 31 August 2018 and was called to give evidence.

17. The applicant told the doctor that he felt that his neck pain had persisted at a low grade level which was not functionally incapacitating but that his symptoms became worse three or four years ago and had been particularly worse during the last two years. The pain took the form of a dull ache with some sharp aggravation and occurred intermittently on a daily basis and up to five times a day. Symptoms were aggravated by putting his head and neck in an awkward position, by prolonged static postures, by driving, and by turning his head quickly. He was working as a part-time school bus driver with no difficulty. He had little or no difficulty in standing or walking, moderate difficulty in sitting, changing positions and climbing stairs. He had little or no difficulty in preparing meals and cooking. He said that he did house maintenance tasks but had moderate difficulty in doing housework and shopping, carrying groceries, gardening, and driving long distances.[12]

    [12]    Exhibit 8, Medical Report of Dr Simon Journeaux, dated 31 August 2018.

18. Dr Journeaux examined the scans and reports relating to the applicant’s cervical and lumbosacral spine – the first in August 1989 and the last in January 2017, as well as the Defence Force and a multitude of GP records which included x-ray records, MRI records of the lumbosacral spine, and a CT scan of the cervical spine. The doctor concludes: –

    “Mr Iserief’s current condition is that of multi-level mid cervical spondylosis. There is no causal relationship to the injury of 20 January 1983 and to his current neck diagnosis of cervical spondylosis. On the basis of the medical evidence and in particular the radiological imaging the mid cervical degeneration in terms of the clinical onset would have occurred post the x-rays taken in August 1989. It should be noted that plain x-rays are crucial determinant of the presence or otherwise of cervical spondylosis. If an MRI scan had been done at the time it is possible degenerative disc may have been identified but this is most likely a moot point as if degeneration was or had been present it would have been of minor severity. The main aetiological component to the pathogenesis of cervical spondylosis is that of constitutional age-related changes.”

19. In his report, Dr Journeaux says that the applicant suffers from symptomatic mid cervical spondylosis: “The likely clinical onset of the condition would be circa 2014 but I note the objective diagnosis can only be made on the basis of the cervical spine CT scan of

    
    

    20 January 2017.”

20. In answer to the question as to whether the claimed condition is defence caused he says that there is no evidence that the condition is defence-related.

    Dr Michael Bryant

21. To establish that his cervical spondylosis is defence caused or related the applicant relies on Dr Byrant, a neurosurgeon.

22. Dr Bryant provided two very short reports[13] and was not called to give evidence. He expresses the opinion that the motor vehicle accident significantly contributed to the cervical spondylosis and that the trauma to the cervical spine happened at least one year prior to the onset of cervical spondylosis.[14] His reports are devoid of the kind of detail that has been carefully analysed in the report of the Dr Journeaux and given the paucity of detail in the report and his failure to give evidence, it is unpersuasive.

    [13]   

    [14]    Exhibit 10, Medical Report of Dr Bryant, dated 4 March 2019.

    Medical Imaging

23. The first available imaging evidence of degenerative change including osteophytes was the CT scan of the applicant’s cervical spine dated 20 January 2017. The earlier imaging taken when he left the army in 1989 showed that the applicant’s disc spaces were normal and that no fracture subluxation or cervical ribs were seen.

24. The fact that there was no imaging evidence available before 2017 does not mean that there was not a clinical onset before that time. Dr Journeaux expresses the opinion having examined the available material that there would have been a clinical onset approximately three years before that date. That date is substantially after January 2008. Furthermore, an examination of the medical records that are in evidence shows that the applicant attended the doctor a great many times complaining of a great many things. Apart from the attendances in the months following the car accident and the medical report of 2006 referred to above in paragraph 5, there appears to be no complaint to a doctor in relation to the condition, other than mild musculo-ligamentous neck pain, until 20 January 2017.[15]

    [15]    Exhibit 3, T Documents, T52, pages 154 – 155, CT Cervical Spine Report, dated 20 January 2017.

25. On the available medical evidence, the applicant is unable to satisfy the requirements of SoP 6(f).

    CONCLUSION

26. The decision under review is affirmed.

I certify that the preceding 26 (twenty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President R I Hanger QC

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Associate

Dated: 13 June 2019

Date of hearing:	3 June 2019
Applicant:	In person
Advocate for the Applicant:	Mr K Cullen
Representative for the Respondent:	Mr M Hawker
Instructed by:	Ms J Vetter
Solicitors for the Respondent:	Sparke Helmore

Exhibit 9, Medical Report of Dr Michael Bryant, dated 6 November 2018; Exhibit 10, Medical Report of

Dr Bryant, dated 4 March 2019.