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.
..........................[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.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 1298
Decision Date: 13 June 2019

CaseChat Overview and Summary

The applicant, Mr Iserief, sought to establish a claim for a defence-caused condition of cervical spondylosis under the *Veterans' Entitlements Act 1986* (Cth). The Repatriation Commission had denied his claim, and the Administrative Appeals Tribunal affirmed that decision. Mr Iserief appealed to the Federal Court of Australia.

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.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

On the available medical evidence, the applicant is unable to satisfy the requirements of SoP 6(f).CONCLUSION The decision under review is affirmed.

Ratio Decidendi

Legal Principle Established

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