Kalman and Military Rehabilitation and Compensation Commission (Compensation)

[2017] AATA 2563

Kalman and Military Rehabilitation and Compensation Commission (Compensation) [2017] AATA 2563 (30 November 2017)

Division:VETERANS' APPEALS DIVISION

File Numbers:         2016/1751 and 2016/1944

Re:David Kalman

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Deputy President Dr P McDermott RFD

Date:30 November 2017

Place:Brisbane

I affirm the decisions under review.

........................................................................

Deputy President Dr P McDermott RFD

CATCHWORDS

VETERAN’S AFFAIRS – Applicant commenced army service in 1955 and was medically discharged in 1959 – Applicant had a fall during military tattoo practice in 1955 – Whether the applicant can claim permanent impairment compensation under SRC Act, 1971 Act or 1930 Act for previously accepted injuries – Whether applicant’s condition of cervical spondylosis service related – Applicant’s permanent impairment claims must be assessed under the 1930 Act and no permanent impairment payable under the 1930 Act – Cervical spondylosis not service related – Decision under review affirmed.

LEGISLATION

Commonwealth Employees’ Compensation Act 1930

Compensation (Commonwealth Government Employees) Act 1971

Safety, Rehabilitation & Compensation Act 1988

CASES

Comcare v Maida [2002] FCA 1284

Re David W Kalman and Commonwealth of Australia [1986] AATA 66

Hoyle v Telstra Corporation (1997) 75 FCR 390

REASONS FOR DECISION

Deputy President Dr P McDermott RFD

30 November 2017

BACKGROUND

1. The applicant, Mr David Kalman, served in the Australian Regular Army between 1955 and 1959. He seeks review in relation to two claims to the Department of Veteran’s Affairs (“DVA”).[1]

   [1] Exhibit A, 2016/1751 T Documents, T1 at p.7, Application for Review dated 4 April 2016.

2. In 2014, the applicant indicated he wished to be assessed for his eligibility for permanent impairment lump sum compensation under the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”), for a ‘crush fracture T8 vertebra resulting in the acceleration and aggravation of the disease adolescent kyphosis due to osteochondritis juvenalis’ and ‘traumatic injury to the thoracolumbar spine, resulting in spondylosis’.[2] On 19 August 2014 a delegate of the Military Rehabilitation and Compensation Commission (“MRCC”) determined that the applicant was not entitled to compensation on the basis that the claim must be assessed by reference to the Commonwealth Employees’ Compensation Act 1930 (the “1930 Act”), under which there is no provision for payment of lump sum compensation for those injuries.[3] The applicant requested a reconsideration of this determination[4] and on 22 March 2016 the respondent affirmed the original decision, denying the applicant’s claim for permanent impairment on the basis that the injuries became permanent in 1955 and there was no evidence demonstrating that he has a permanent impairment, that can be causally linked to the injury, after 1 December 1988.[5]

   [2] Exhibit A, 2016/1751 T Documents, T16 at p.73, Application dated 8 August 2014.

   [3] Exhibit A, 2016/1751 T-documents, T18 at p.78, Decision of MRCC dated 19 August 2014.

   [4] Exhibit A, 2016/1751 T Documents, T19 at p.80, Request for reconsideration dated 25 November 2015.

   [5] Exhibit A, 2016/1751 T Documents, T20 at p.103, Decision of MRCC dated 22 March 2016.

3. In 2015, the applicant claimed compensation for cervical spondylosis on the basis that his fall in 1955 had accelerated and aggravated this condition.[6] On 29 July 2015, a delegate of the MRCC determined that the applicant’s service did not contribute to a material degree to the aggravation of the condition based on the medical evidence which indicated that the defence service contribution was less than 10% and that age was a very significant causal factor.[7] The applicant requested a reconsideration of this determination and on 23 March 2016 the respondent denied liability for cervical spondylosis on the basis that the delegate was not satisfied that the applicant’s service contributed to a material degree to the aggravation of the applicant’s condition.[8]

   [6] Exhibit A, 2016/1944 T Documents, T13 at p.92, Claim for compensation for cervical spondylosis dated 22 April 2015.

   [7] Exhibit A, 2016/1944 T-documents, T17 at p.115, Determination of MRCC dated 29 July 2015.

   [8] Exhibit A, 2016/1944 T-documents, T19 at p.119,Decision of MRCC dated 23 March 2016.

4. This appeal concerns the applicant’s review with regard to both these decisions.

   HISTORY

5. The applicant served in the Australian Regular Army from 4 January 1955 until he was medically discharged on 5 February 1959, this was following the applicant’s diagnosis with ‘kyphosis with disc abnormality’ on 30 October 1958.[9]  A Final Report of the Medical Board on 7 November 1958 had determined that the applicant was to be discharged on the basis of his condition.[10] The medical report indicates that this condition would have been present at the time he enlisted.

   [9] Exhibit A, 2016/1751 T-documents, T3 at p.17, Report of the Medical Board dated 30 October 1958.

   [10] Exhibit A, 2016/1751 T-documents, T4 at p.18, Final Medical Board Report dated 7 November 1958.

6. The 1955 incident concerned the applicant’s fall from a height of about 20 feet while the applicant was practising for a military tattoo with members of his Army establishment. The applicant previously gave evidence that he “fell… on to my back and was winded and sore”[11] following the fall, that he was helped back to the barracks and given the rest of that day and the next day to recover in bed.

   [11] Re David W Kalman and Commonwealth of Australia [1988] AAT Q86/199 and Q87/476 (29 November 1988) [6].

7. The 1957 incident concerned the injury of the applicant when he dived into a waterhole at Colmslie in Brisbane. The decision of the Tribunal on 12 September 1986[12] established the facts of this incident; the applicant was residing at the Bulimba Army barracks over the Christmas period when he went for a swim at the Colmslie waterhole on a hot Sunday. The applicant was hospitalised for ten days after this incident with a suspected neck fracture.[13]

   [12] Re David W Kalman and Commonwealth of Australia [1986] AATA 66.

   [13] Exhibit A, 2016/1944 T-documents, T15 at p.103, Letter to Dr Cheung requesting a report dated 28 April 2015.

8. The applicant has made a number of previous claims:

   (a)In 1986 the applicant claimed compensation for a cervical spine injury suffered as a result of the 1957 incident, which he claimed was connected to his service in the Army. A determination was issued on 6 June 1986 denying liability for the injury on the basis that it was not a personal injury by accident arising out of or in the course of the applicant’s employment. On 12 September 1986 the Tribunal determined that the injury did not arise out of or in the course of his employment;[14]

   (b)In 1986 the applicant claimed work and medical expenses due to the falling incident in 1955. A determination issued on 15 April 1986 determined that the applicant sustained a personal injury, namely winding and soreness, but that incapacity for work or medical expenses were not the result of the personal injury.[15] On 29 November 1988 the Tribunal found upon review that the applicant was totally incapacitated for work since 30 July 1985 as a result of the acceleration and aggravation of the disease ‘adolescent kyphosis due to osteochondritis juvenalis’ due to the crush fracture to the T8 vertebra suffered by the applicant in the incident which was in the course of his employment by the Commonwealth.[16] On 7 March 1989 a delegate of the Commission for Safety, Rehabilitation and Compensation of Commonwealth Employees determined that as a result of the 1955 accident, the applicant had sustained a crush fracture at T8 which aggravated and accelerated the applicant’s adolescent kyphosis due to osteochondritis juvenalis.[17] However, the Department of Defence was not liable to pay the applicant compensation in respect of permanent impairment or non-economic loss because the AAT had determined that the effects of the compensable condition would cease on 17 August 1994, as that is the date at which time the applicant’s underlying condition would have prevented the applicant from working regardless of the aggravation caused by the fall, and so the condition was not permanent. A delegate reaffirmed this determination on 5 June 1989[18] and on 7 December 1989 the determination was affirmed upon review by this Tribunal;[19]

   (c)In 1987 the applicant claimed compensation in respect of an aggravation of ‘pre-existing kyphosis with disc abnormality’ said by the applicant to be due to the nature of his defence service with the Army. A determination was issued on 25 June 1987 that the applicant did not suffer a disease or the aggravation of a disease due to the nature of his employment in the Australian Army.[20] On 29 November 1988 the Tribunal affirmed this determination upon review;[21] and

   (d)On 11 June 2014 a delegate of the MRCC accepted liability for ‘traumatic injury to the thoracolumbar spine, resulting in spondylosis’ arising out of the applicant’s fall in 1955.[22]

   [14] Re David W Kalman and Commonwealth of Australia [1986] AATA 66.

   [15] Exhibit A, 2016/1751 T Documents, T5 at p.22, Determination dated 15 April 1986.

   [16] Re David W Kalman and Commonwealth of Australia [1988] AAT Q86/199 and Q87/476 (29 November 1988) [17(b)].

   [17] Exhibit A, 2016/1751 T Documents, T11 at p.55, Determination dated 7 March 1989.

   [18] Exhibit A, 2016/1751 T Documents, T12 at p.62, Reconsideration of determination dated 5 June 1989.

   [19] Re David William Kalman and Comcare [1989] AAT Q89/274 (7 December 1989).

   [20] Exhibit A, 2016/1751 T Documents, T7 at p.38, Determination dated 25 June 1987.

   [21] Re David W Kalman and Commonwealth of Australia [1988] AAT Q86/199 and Q87/476 (29 November 1988).

   [22] Exhibit A, 2016/1751 T-documents, T15 at p.70, Determination dated 11 June 2014.

   SUBMISSIONS

9. The applicant submitted in relation to the permanent impairment compensation claim that he is entitled to receive an assessment of permanent impairment on the basis that the two injuries have been accepted by DVA, that there was an assessment made that liability for the injuries would continue indefinitely - for which he continued to receive compensation fortnightly - and there is a multitude of medical evidence which supports the claims. The applicant did not articulate whether there have been any changes to his conditions, and if so, when these occurred. In particular, the applicant did not address how the conditions could be awarded permanent impairment lump sum compensation under the SRC Act.

10. The applicant submitted[23] in relation to his cervical spondylosis compensation claim that the respondent relies on a particular medical report of Dr Ian Cheung dated 10 July 2015 that benefits the respondent and that there are multiple medical reports disregarded by the respondent that support the applicant’s position. The applicant also stated in his closing submissions[24] that Dr Cheung did not have all the correct and relevant information to hand, Dr Cheung examined the applicant in relation to his thoracolumbar spine, not his cervical spine, and that Dr Cheung’s findings were based on a letter dated 5 June 2015 from Dr James O’Callaghan, an anaesthetist and pain management specialist who treated the applicant for lumbar pain. The applicant appears to have relied on previous medical reports, conclusions by the Tribunal and the conclusions of Dr Warren Harrex, who opined in relation to the applicant’s claim of lumbar spondylosis in 2014, that as a direct result of the incident the applicant suffered spondylosis as a result of the traumatic injury to the thoracolumbar spine.[25]

    [23] Closing Submissions of Mr Kalman dated 5 March 2017

    [24] Closing Submissions of Mr Kalman dated 22 March 2017

    [25] Exhibit A, 2016/1944 T-documents, T12 at pp.89-90

11. The respondent submitted that the permanent impairment compensation claim cannot be accepted because there has been no qualitative or quantitative change to the applicant’s accepted back conditions since 1955, and this was the date when the conditions became permanent. The respondent submitted that the claim must be considered by reference to the 1930 Act which does not provide for payment of permanent impairment compensation for back injuries and relies on Comcare v Maida [2002] FCA 1284 (“Maida”). In the alternative the respondent submitted that the back conditions became permanent at the latest by the time the applicant ceased work in October 1985.[26]

    [26] Exhibit D, Statement of Facts, Issues and Contentions of Respondent dated 24 August 2016.

12. The respondent submitted in relation to the cervical spondylosis claim that it must be shown that the applicant’s cervical spondylosis arose out of or in the course of his employment by the Commonwealth, under section 9 of the 1930 Act as the injury occurred in 1955, and that medical evidence indicates that the condition did not arise out of or in the course of the applicant’s army service, as a result of the incident in 1955, as the incident was attributed a minor contribution within the range of 1-9% as indicated on the form by Dr Cheung in his report dated 10 July 2015, and that the medical evidence indicates that the applicant’s age is the significant causal factor of the condition.[27]

    [27] Exhibit A, 2016/1944 T Documents, T16 at p. 113, Report of Dr Ian Cheung dated 10 July 2015.

    LEGISLATIVE FRAMEWORK

13. The SRC Act establishes a framework for the compensation of injuries that occur in the course of employment under section 14 and the assessment of permanent impairment compensation under sections 24 and 25.

14. Section 14 of the Act establishes the liability of the Commonwealth to pay compensation in regards to an injury suffered by an employee if the injury results in death, incapacity for work or impairment.

15. Section 5A and 5B of the SRC Act define the terms injury and disease:

    5A  Definition of injury

    (1)  In this Act:

    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

    (1)  In this Act:

    disease means:

    (a)  an ailment suffered by an employee; or

    (b)  an aggravation of such an ailment;

    that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.

    (3)  In this Act:

    significant degree means a degree that is substantially more than material.

16. Section 124 of the SRC Act sets out the transitional provisions with respect to injuries that occurred prior to the date the SRC Act came into force on 1 December 1988. It provides:

    124  Application of Act to pre‑existing injuries

    (1)  Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

    (1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

    (2)  A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

    …

    (b) where the injury, loss or damage was suffered after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the injury, loss or damage was suffered; or

    (c) in any other case—under the 1971 Act as in force when the impairment or death occurred.

    (3)  A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:

    …

    (b)  the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:

    …

    (ii)  where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or

    (iii) in any other case—under the 1971 Act as in force when the impairment or death occurred.…

17. The 1930 Act provided for the liability of the Commonwealth to compensate employees who have been injured in the course of their employment. Section 9 of the 1930 Act provides:

    If personal injury by accident arising out of and in the course of his employment is caused to an employee of the Commonwealth, the Commonwealth shall, subject to this Act, be liable to pay compensation in accordance with the First Schedule to this Act.

18. The First Schedule of the 1930 Act outlines the scale and conditions of compensation for injuries sustained by employees.

19. Section 12 of the 1930 Act provides:

    Where an employee sustains, by accident arising out of and in the course of his employment, any of the injuries specified in the first column of the Third Schedule to this Act, the compensation payable under this Act shall, when the injury results in total or partial incapacity, be the amount specified in the second column of that Schedule opposite the injury so sustained, less any amount received by the employee under the First Schedule to this Act during any period of his total incapacity arising from his injury.

20. The Third Schedule of the 1930 Act provides an exhaustive list of conditions which are subject to a lump sum payment of compensation. There is no provision in the Third Schedule for injuries such as injuries to the back and/or neck and the list appears as follows:

    Loss of both eyes
    Loss of both hands
    Loss of both feet
    Loss of a hand and a foot
    Total and incurable loss of mental powers, involving inability to work
    Total and incurable paralysis of limbs or mental powers
    Loss of either arm, or of the greater part thereof
    Loss of lower part of either arm, either hand, or five fingers of either hand
    Loss of leg
    Loss of the lower part of a leg
    Loss of a foot
    Loss of one eye, with serious diminution of the sight of the other
    Loss of sight of one eye
    Loss of hearing
    Complete deafness of one ear
    Loss of a thumb
    Loss of a forefinger
    Loss of part of a thumb
    Loss of little finger, middle finger or ring finger
    Loss of a toe or the joint of a finger
    Loss of a joint of a toe

    CONSIDERATION

    Permanent impairment claim

21. The applicant relied upon previous determinations, by a delegate of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees on 7 March 1989, following an AAT decision on 29 November 1989,[28] in which it was accepted that he sustained a crush fracture from the 1955 fall and that injury had aggravated and accelerated the applicant’s adolescent kyphosis due to osteochondritis juvenalis (but which denied payment of permanent impairment compensation on the basis that it was not a permanent injury as the ongoing inability to work would cease to be related to the fall in 1994), as well as the determination of a delegate of the MRCC dated 11 June 2014 which accepted liability for traumatic injury to the thoracolumbar spine, resulting in spondylosis.[29]

    [28] Re David William Kalman and Comcare [1989] AAT Q89/274 (7 December 1989).

    [29] Exhibit A, 2016/1944 T Documents, T12 at p.89, Determination dated 11 June 2014.

22. The applicant stated in his submissions that Mr Paul Ontong (at the time a delegate of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees) accepted that ‘liability of the injury would continue indefinitely’. The applicant did not distinguish his arguments for each injury nor did he specify the dates when he believed the injuries became permanent. [30]

    [30] See Exhibits B and C, submissions of the Applicant.

1. The respondent stated that the two impairments the subject of the application became permanent at least before 1959 when the applicant was discharged. The respondent submitted that as there had been no ‘new’ injury, in that there had been no qualitative or quantitative change to these conditions after the commencement of the SRC Act on 1 December 1988, then no permanent impairment compensation could be claimed under the current SRC Act.

2. The application of the legislative framework with regard to a permanent impairment that has arisen prior to 1 December 1988 is set out by the Federal Court in the case of Maida.

3. Maida concerned a claim for the payment of permanent impairment compensation where the date of injury occurred before the SRC Act came into force on 1 December 1988. Mansfield J in that decision at [20] referred to a passage of the Full Court of the Federal Court in Hoyle v Telstra Corporation (1997) 75 FCR 390, 394 where it states:

   “Upon analysis of the whole of s 124, we consider that it is clear that the Parliament proceeded on the basis that, where the entitlement to compensation under the Compensation Act has a relevant nexus with a period before the Commencing Day, the appropriate general principle should be that an employee is not to be deprived of any compensation that would have been payable under the 1971 Act but for its repeal, but is not to be entitled to any greater compensation than would have been payable under the Act.”[31]

   [31] Comcare v Maida [2002] FCA 1284, [20].

4. Mansfield J at [28] summarised the state of the law in terms of the assessment of permanent impairments:

   “…The progression of a disease or gradual worsening of the degree of an impairment does not constitute a new or distinct impairment.”

   “…If there is no change in the underlying patho-physiological condition causing an impairment, any worsening of that impairment will not constitute a new or distinct impairment.”

   “…A significant worsening of an impairment may constitute a new or distinct impairment, but only if there has been a change in the underlying patho-physiological condition, so that there has been a qualitative change to the impairment - that is, the development of a new impairment.”

5. It has been well established in the previous determinations and matters before the Tribunal that the applicant had an incident where he fell from a pole during 1955 and suffered a back injury as a result. Medical evidence points to the fact that there was a crush fracture to a vertebra designated as T8 in the spine which was only recognised a number of years after the injury.[32]

   Crush fracture T8 vertebra resulting in the acceleration or aggravation of adolescent kyphosis due to osteochondritis juvenalis

   [32]  Re David W Kalman and Commonwealth of Australia [1988] AAT Q86/199 and Q87/476 (29 November 1988), [15] – [17].

6. The issue central to this application is when the ‘acceleration and aggravation’ of the applicant’s underlying condition occurred. The applicant’s 7 November 1958 discharge form entitled “Final Medical Board” states:

   “Evidence… that condition was present on enlistment but not apparent on enlistment – condition was aggravated by an injury sustained whilst on service.”[33]

   [33] Exhibit A, 2016/1751 T Documents, T4 at p.21, Final Medical Board Report dated 7 November 1958.

7. This record indicates that the acceleration and aggravation of kyphosis occurred from the date of the injury, that is, from the date of the applicant’s fall in 1955.

8. There are also numerous medical reports which reference the date of the injury as the date of the onset of the acceleration and aggravation, including that of Dr J. R. Curtis in 1986 which is summarised in the decision of the AAT on 29 November 1988:

   “…the injuries sustained in 1955… This was in all probability the time at which the possible fracture of his thoracic spine occurred, and also may have triggered off subsequent degenerative change in the pre-existing adolescent condition of his spine.” [34]

   [34]  Re David W Kalman and Commonwealth of Australia [1988] AAT Q86/199 and Q87/476 (29 November 1988), [15].

9. In reliance on the opinion of Dr Curtin I find that the acceleration and aggravation of adolescent kyphosis due to osteochondritis juvenalis occurred at the date of the applicant’s accident when he fell from the pole in 1955.

10. There is no evidence before me that there is any qualitative or quantitative change to the injury such that the acceleration and aggravation can be a new injury which arose after 1 December 1988. Therefore, permanent impairment can only be claimed for the condition under the previous 1930 Act, according to section 124 of the SRC Act.

11. The 1930 Act does not make provision for any lump sum compensation to be paid with respect to injuries other than those in Schedule 3 and the injury suffered by the applicant is not listed in that Schedule.

12. As the applicant does not qualify for compensation under the 1930 Act I cannot make an award of lump sum compensation with respect to this condition pursuant to section 124(2)(b) of the SRC Act.

    Traumatic injury to the thoracolumbar spine, resulting in spondylosis

13. The issue central to this application is when the traumatic injury resulting in spondylosis to the thoracolumbar spine occurred. It is clearly established in previous decisions of the Tribunal and determinations made by the MRCC, and on all evidence before me, that the traumatic injury to the applicant’s spine occurred when he landed on his back after falling from the pole in the military tattoo training exercise in 1955.

14. The Treatment and Report Form dated 16 October 1958 noted “Pain in muscles of back on exertion or standing…There are quite marked changes with wedging of lower thoracic vertebrae and a lot of disc abnormality.”[35]

    [35] Exhibit E, Treatment and Report Form dated 16 October 1958.

15. The Medical Examination for Reclassification report dated 30 October 1958 similarly records “pain in muscles of back on exercise or standing” and “gets pain in back” and “marked changes with wedging of lower thoracic vertebrae and a lot of disc abnormality”.[36]

    [36] Exhibit A, 2016/1751 T-documents, T3 at p. 17, Medical examination for reclassification report dated 30 October 1958.

16. The Final Medical Board report dated 7 November 1958 indicated that the applicant had pains in his back after standing for long periods or marching, noting the date of origin as 1956.[37]

    [37] Exhibit A, 2016/1751 T Documents, T4 at p.18, Final Medical Board Report dated 7 November 1958.

17. Dr J. Lahz reported after examining the applicant on 24 March 1983 that he observed lateral wedging of the 8th dorsal vertebra, described the incapacity as a significant interference with day to day comfort and stated “it is very possible that this wedging is due to an old fracture”.[38]

    [38]  Re David W Kalman and Commonwealth of Australia [1988] AAT Q86/199 and Q87/476 (29 November 1988), [14].

18. Dr Trevor Roberts reported on 5 September 1985 that “[t]here are degenerative changes in the mid and lower thoracic spine, the body of T.8 is slightly compressed anteriorly and this could well have related to previous trauma.”[39]

    [39] Exhibit A, 2016/1944 T Documents, T5 at p. 56, Full spine report by Dr Roberts dated 5 September 1985.

19. Dr Curtis reported after examining the applicant on 15 September 1986 that “recent x-rays of his thoraco-lumbar spine show extensive degenerative changes with significant narrowing of the body of the T8 vertebrum consistent with an old fracture” and “I think the fracture has probably occurred at the time of the fall, remained dormant after [the applicant] had recovered from it and gave rise to troubles later on”.[40]

    [40] Re David W Kalman and Commonwealth of Australia [1988] AAT Q86/199 and Q87/476 (29 November 1988), [15].

20. Dr McAuliffe completed a report for Comcare dated 12 December 1994 which states:

    “It appears that he damaged his 8^th thoracic vertebra at the time of the fall onto his back. There was probably a crush of the vertebral body and over the years, degenerative changes have developed. He now suffers from chronic and severe mid thoracic pain… All movements of the back cause severe pain between the scapulae, and x-rays confirm a wedging of the relevant vertebral body, with osteophyte formation and loss of disc spaces.” [41]

    [41] Exhibit D, Report of Dr M.J. McAuliffe dated 12 December 1994

21. Dr Ian Cheung, Orthopaedic-Spinal Surgeon, in his report dated 10 July 2015 stated:  “Mr Kalman reports that he has had lumbar pain for 30 odd years. The pain has gotten worse with time, with the past 2-3 years being the worst.” [42] Dr Cheung also completed a Schedule of Questions attached to his report which set out his opinion with regard to diagnosis, causation and treatment of the applicant’s claimed injuries. He notes that the thoracolumbar spondylosis condition was aggravated, accelerated or caused to recur by the falling incident, noting the date of clinical onset as 1955.[43] He states the extent to which he considers the incident contributed to the aggravation/acceleration/recurrence to be significant, and in the range of 21 to 50%.[44]

    [42] Exhibit A, 2016/1944 T Documents, T16 at p. 110, Report of Dr Cheung dated 10 July 2015.

    [43] Exhibit A, 2016/1944 T Documents, T16 at p. 112, Report of Dr Cheung dated 10 July 2015.

    [44] Exhibit A, 2016/1944 T Documents, T16 at p. 113, Report of Dr Cheung dated 10 July 2015.

22. The evidence indicates that the applicant suffered from pain in his back when exercising and when standing by the time of the applicant’s discharge in 1959. While there is no specific references to spondylosis in the thoracic area of the spine at that time, the Treatment and Report Form and Medical Examination for Reclassification report indicate at that time there were quite marked changes with a lot of disc abnormality, which indicates there may have been issues of degeneration at that point.[45] The later medical imaging and reports completed throughout the 1980s and 1990s indicate that the applicant suffered from extensive degenerative changes and the presence of spondylosis. Dr Cheung notes the date of clinical onset of the spondylosis to be 1955.[46]

    [45] Exhibit A, 2016/1944 T Documents, T3 at p. 51, Report of the Medical Board dated 30 October 1958, and T4 at p. 52, Medical Examination for Reclassification report dated 7 November 1958.

    [46] Exhibit A, 2016/1944 T Documents, T16 at p. 112, Report of Dr Cheung dated 10 July 2015.

23. Given the applicant’s reported symptoms at the time of discharge, the medical report with references to disc abnormality at that time, and Dr Cheung’s evidence as to the date of clinical onset, I have concluded that the applicant suffered from thoracolumbar spondylosis, as a result of the falling accident and crush fracture suffered by the applicant in 1955, at least by the time of his discharge in 1959.

24. I now consider whether there is any basis for making an assessment of eligibility for permanent impairment compensation under the SRC Act. The applicant does not outline any qualitative or quantitative change to the spondylosis such that it can be a new injury which arose after 1 December 1988. The severity of the degeneration has evidently increased over time and the applicant’s symptoms of pain in his thoracic spine have increased, but this is the nature of a degenerative condition and as Mansfield J decided in Maida at [29], the progression or gradual worsening of an impairment does not constitute a new or distinct impairment. Therefore, permanent impairment can only be claimed for the condition under the 1930 Act, according to section 124 of the SRC Act.

25. The 1930 Act does not make provision for any lump sum compensation to be paid with respect to injuries other than those listed in Schedule 3, which does not include spondylosis. On that basis, the applicant does not qualify for compensation under the 1930 Act.

26. There is no basis for me to make an award of lump sum compensation, pursuant to section 124(2)(b) of the SRC Act.

    Cervical Spondylosis

27. The applicant’s second claim concerns his development of cervical spondylosis. The respondent accepted that the applicant had cervical spondylosis and submitted that as the applicant claims it arose out of an injury sustained in 1955, the claim must be assessed according to the 1930 Act. The respondent submitted that the issue for the Tribunal is whether the applicant’s cervical spondylosis is service related and in particular whether the injury is the result of the military tattoo incident.[47]

    [47] Exhibit D, 2016/1944 Statement of Facts, Issues and Contentions of the Respondent dated 24 August 2016.

28. If it were the case that the condition of cervical spondylosis arose at a later time, then the condition would need to be assessed according to provisions in either the Compensation (Commonwealth Government Employees) Act 1971 (the “1971 Act”) or the SRC Act.

29. The army medical and discharge reports completed in 1958 do not make reference to any neck pain or indication of injuries to the cervical spine suffered by the applicant.[48] The applicant has made a claim previously for the watering hole incident in 1957 which was found to not be connected to his service.[49]

    [48] Exhibit A, 2016/1944 T Documents, T3 at p. 51, Report of the Medical Board dated 30 October 1958; Exhibit A, 2016/1944 T Documents, T4 at p. 52, Medical Examination for Reclassification report dated 7 November 1958; Exhibit E, Treatment and Report Form dated 16 October 1958.

    [49] Re David W Kalman and Commonwealth of Australia [1986] AATA 66.

30. Dr Roberts in his report dated 5 September 1985 stated “[t]he cervical vertebral bodies are normal in appearance as are the disc spaces and the neural formina. There are normal movements in both flexion and extension”.[50]

    [50] Exhibit A, 2016/1944 T-documents, T5 at p. 56, Full spine report by Dr Roberts dated 5 September 1985.

31. Dr Geoffrey Boyce, Consultant Neurologist, completed a report dated 13 February 1991, in which he opines:

    “I carried out a detailed clinical and neurological examination. The only abnormality I noted was a decrease in movement of the neck… The changes  noted in the neck… were I believe consistent with age, and not severe.” [51]

    [51] Exhibit A, 2016/1944 T-documents, T8 at p. 84, Report of Dr Boyce dated 13 February 1991.

32. Dr Boyce in his supplementary report dated 6 March 1991 states:

    “Mr Kalman complains of recurrent headache and blurred vision. It is not uncommon to develop this type of headache after trauma to the spine, particularly the upper cervical spine. It is more likely, however, that this element of the problem is of a progressive degenerative nature and very likely would have occurred anyway.” [52]

    [52] Exhibit A, 2016/1944 T-documents, T9 at p. 86, Report of Dr Boyce dated 6 March 1991.

33. Dr Ian Cheung, Orthopaedic-Spinal Surgeon, examined the applicant after he was referred for assessment in relation to his worsening back pain. He noted in his report dated 10 July 2015 that the referral letter did not mention any cervical concerns so the information obtained during the consultation was for the applicant’s thoracolumbar spine and not his cervical spine. However, Dr Cheung made reference to the CT scans of the cervical spine on 14 May 2014 and the letter of Dr James O’Callaghan dated 5 June 2015.[53]

    [53] Exhibit A, 2016/1944 T-documents, T16 at p. 109, Report of Dr Cheung dated 10 July 2015.

34. Dr Cheung comments on the CT scan images of the cervical spine, stating that:

    “The CT of his cervical spine also demonstrated spondylotic changes, most advanced at C5/6 and C6/7. Canal narrowing is mentioned for C5/6 though, clinically, Mr Kalman’s picture is not entirely typical for cervical myelopathy.” [54]

    [54] Exhibit A, 2016/1944 T-documents, T16 at p. 110, Report of Dr Cheung dated 10 July 2015.

35. Dr Cheung mentions the diagnosis by Dr O’Callaghan that the applicant had cervical facet joint pain on the left side for which he was treated with a guide facet joint injection and goes on to state:

    “Besides pain, Mr Kalman seemed ataxic despite a CT that did not show a great deal of neural compression in his cervical… [spine]” [55]

    [55] Exhibit A, 2016/1944 T-documents, T16 at p. 111, Report of Dr Cheung dated 10 July 2015.

36. Dr Cheung completed the Schedule of Questions and gave his opinion of the diagnosis, causation and treatment of the cervical spondylosis condition. Dr Cheung considered that the condition of cervical spondylosis was not caused by the incident in 1955, but that the condition was aggravated, accelerated or caused to recur by the incident.[56] Dr Cheung considers that the contribution was minor and in the range of 1-9%.[57] Dr Cheung also states that “spondylosis generally has a degenerative aetiology and so this is more likely the case of the C spine”.[58] Dr Cheung further noted the very significant contributing factor was the applicant’s age and the extent of this contribution was over 50%.[59]

    [56] Exhibit A, 2016/1944 T-documents, T16 at p. 112, Report of Dr Cheung dated 10 July 2015.

    [57] Exhibit A, 2016/1944 T-documents, T16 at p. 113, Report of Dr Cheung dated 10 July 2015.

    [58] Exhibit A, 2016/1944 T-documents, T16 at p. 113, Report of Dr Cheung dated 10 July 2015.

    [59] Exhibit A, 2016/1944 T-documents, T16 at p. 114, Report of Dr Cheung dated 10 July 2015.

37. There are no records that indicate that the applicant had raised cervical pain as an issue during his army service or upon discharge from the army, other than his hospitalisation with regard to the watering hole incident in 1957 which has been found not to be related to service. The report of Dr Roberts in 1985 indicates that the imaging did not show any issues with the cervical spine,[60] however by 1991 the applicant had restricted movement in his neck which Dr Boyce attributed to age.[61] Dr Boyce noted in his supplementary report in 1991 that the applicant complained of recurrent headaches and blurred vision, which he stated is not uncommon after trauma to the upper cervical spine, however that it is more likely that these symptoms relate to progressive degeneration and it is very likely the symptoms would have occurred anyway.[62] This is consistent with the opinion of Dr Cheung in his report in 2015 in which he notes that the incident of 1955 contributed very minimally to the development of cervical spondylosis, and rather that the applicant’s age was a very significant contribution to the development of the condition.[63]

    [60] Exhibit A, 2016/1944 T Documents, T5 at p. 56, Full spine report by Dr Roberts dated 5 September 1985.

    [61] Exhibit A, 2016/1944 T-documents, T8 at p. 84, Report of Dr Boyce dated 13 February 1991.

    [62] Exhibit A, 2016/1944 T-documents, T9 at p. 86, Report of Dr Boyce dated 6 March 1991.

    [63] Exhibit A, 2016/1944 T-documents, T16 at p. 114, Report of Dr Cheung dated 10 July 2015.

38. The applicant has not presented any contrary medical evidence which contradicts Dr Cheung’s report and which addresses the relationship of his cervical spondylosis to the incident in 1955 or his army service.

39. There is evidence that in 1991 the applicant had restricted movement in his neck, and suffered from blurred vision and recurrent headaches and progressive degeneration which are indicative of cervical spondylosis at that time. There is no evidence which supports the contention that the applicant’s cervical spondylosis condition is related to his army service.

40. The applicant contended that Dr Cheung did not have all the correct and relevant information to hand, that he examined the applicant in relation to the thoracolumbar spine, not the cervical spine, and that Dr Cheung’s findings were based on those of Dr O’Callaghan who treated the applicant for lumbar pain.[64]

    [64] Exhibit B, submissions by the Applicant.

41. I accept the submission of the applicant that Dr Cheung may not have had every document in relation to all of the applicant’s claims. Nevertheless Dr Cheung reached a conclusion in his 2015 report about the cervical spondylosis condition based on CT scans. He also had considerable material before him as well as the applicant’s service history which was provided by the applicant.

1. Dr Cheung quite properly noted in his report that he did not examine the applicant specifically in relation to his cervical spine.[65] However, he recorded that “on examination, Mr Kalman’s gait seemed unsteady and ataxic” and “[b]esides pain, Mr Kalman seemed ataxic despite a  CT that did not show a great deal of neural compression in the cervical… spine”.[66] These observations were taken into account by Dr Cheung in reaching his conclusions. Dr Cheung is an orthopaedic spinal surgeon and as such has expertise in this area. I do not discount his evidence on the basis that a physical examination of the applicant’s cervical spine was not undertaken. 

   [65] Exhibit A, 2016/1944 T-documents, T16 at p. 109, Report of Dr Cheung dated 10 July 2015.

   [66] Exhibit A, 2016/1944 T-documents, T16 at p. 111, Report of Dr Cheung dated 10 July 2015.

2. Further, Dr Cheung noted in his report that he took into account the correspondence from Dr O’Callaghan. Dr Cheung refers to Dr O’Callaghan’s diagnosis and treatment of the applicant’s cervical facet joint pain which indicates Dr O’Callaghan did treat the applicant’s cervical spine.[67] It is apparent that this formed a part of the basis of Dr Cheung’s findings; however, he clearly also takes into account the history and observations of the applicant as well as CT imaging of the applicant’s cervical spine in 2014. The applicant in his submissions appears to also have relied upon what he asserts was a ‘missing report’ of Dr Boyce, conclusions by the Tribunal with regard to his previous claims and the conclusions of Dr Harrex, DVA’s then Senior Medical Adviser in Primary Health, who conducted a review of the medical evidence in 2014 and on the basis of which DVA accepted liability for ‘traumatic injury to the thoracolumbar spine, resulting in spondylosis’.

   [67] Exhibit A, 2016/1944 T-documents, T16 at p. 109, Report of Dr Cheung dated 10 July 2015.

3. There is no evidence that there ever was a fifth report completed by Dr Boyce. There are four reports of Dr Boyce admitted in evidence; there is one primary report of Dr Boyce and three supplementary reports clarifying his initial report, completed between February 1991 and May 1991.[68]

   [68] Exhibit A, 2016/1944 T-documents, T8-T11, Reports of Dr Boyce dated 13 February 1991, 6 March 1991, 23 April 1991, and 15 May 1991.

4. The Tribunal has made findings of fact and decisions in favour of the applicant in the applicant’s previous claims. The previous conclusions by this Tribunal are irrelevant for the purposes of the applicant’s current claim that the cervical spondylosis condition arose out of his army service and cannot be relied upon by the applicant.

5. The acceptance of liability by DVA in 2014 for the ‘traumatic injury to the thoracolumbar spine, resulting in spondylosis’ does not in itself indicate acceptance by DVA for any spondylosis condition suffered by the applicant. The acceptance of liability clearly relates to spondylosis of the thoracolumbar spine, not the cervical spine.

6. Overall, the evidence indicates that the applicant suffers from cervical spondylosis which was contributed to by the incident where the applicant fell from a pole in 1955 but only to a minor degree, in a range of between 1 and 9%. The medical evidence indicates that the major factor in the applicant’s development of cervical spondylosis has been his age. I accept these conclusions of both Dr Boyce and Dr Cheung.

7. The applicant does not have an entitlement to compensation under the SRC Act as the applicant does not have an entitlement to compensation under the 1930 Act or the 1971 Act (SRC Act s 124(1A)). The 1930 Act did not confer any entitlement to compensation upson the applicant because if there was an injury to the cervical spine, such an injury was not specified in the first column of the Third Schedule (1930 Act, s 12). The applicant does not have any entitlement to compensation under the 1971 Act as any such injury would have been sustained before the date of commencement of the 1971 Act (1971 Act, s2(2), s 104(2)).

8. I wish to acknowledge my appreciation to the applicant who made the considerable effort to attend the Tribunal with all of his documentation.

   CONCLUSION

9. I affirm the two decisions of the MRCC under review dated 22 March 2016 and 23 March 2016.

I certify that the preceding 72  (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

........................................................................

Associate

Dated: 30 November 2017

Dates of hearing:	11 November 2016, 14 February 2017
Date final submissions received:	22 March 2017
Applicant:	In person
Counsel for the Respondent:	Mr C Clark
Solicitors for the Respondent:	Australian Government Solicitor