Ken Fraser and Repatriation Commission
[2015] AATA 345
•20 May 2015
[2015] AATA 345
Division VETERANS’ APPEALS DIVISION File Number(s)
2013/2751
2013/2752
Re
Ken Fraser
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Egon Fice, Senior Member
Date 20 May 2015 Place Melbourne The decisions under review are affirmed.
..........................[sgd]..............................................
Egon Fice, Senior Member
Catchwords
VETERANS – Entitlements – Preliminary matters – Whether veteran incapacitated from a defence-caused injury or a defence-caused disease – Pensions for veterans – General rate – Veteran claimed conditions of hiatus hernia, neck and head injuries, lumbar spondylosis and cervical spondylosis were defence-caused – Statement of Principles not satisfied – Decisions under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) s 25
Veterans’ Entitlements Act 1986 (Cth) ss 5Q, 5U, 22, 68, 70, 120, 120B, 134, 174–5, 196B
Cases
Fitzmaurice v Repatriation Commission (1989) 19 ALD 297
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108Roncevich v Repatriation Commission (2005) 222 CLR 115
Secondary Materials
Elizabeth J Taylor (ed), Dorland’s Illustrated Medical Dictionary (W.B. Saunders Company, 27th ed, 1988)
Repatriation Medical Authority, Statement of Principles concerning Cervical Spondylosis, No. 34 of 2005, 8 November 2005
Repatriation Medical Authority, Statement of Principles concerning Gastro-Oesophageal Reflux Disease, No. 66 of 2013, 26 August 2013
Repatriation Medical Authority, Statement of Principles concerning Gastro-Oesophageal Reflux Disease, No. 12 of 2005, 2 April 2005
Repatriation Medical Authority, Statement of Principles concerning Hiatus Hernia, No. 69 of 2014, 20 June 2014
Repatriation Medical Authority, Statement of Principles concerning Hiatus Hernia, No. 18 of 2004, 24 May 2004
Repatriation Medical Authority, Statement of Principles concerning Lumbar Spondylosis, No. 63 of 2014, 20 June 2014
Repatriation Medical Authority, Statement of Principles concerning Lumbar Spondylosis, No. 38 of 2005, 8 November 2005
Repatriation Medical Authority, Statement of Principles concerning Osteoarthritis, No. 14 of 2010, 1 March 2010Repatriation Medical Authority, Statement of Principles concerning Rotator Cuff Syndrome, No. 40 of 2006, 17 August 2006
REASONS FOR DECISION
Egon Fice, Senior Member
20 May 2015
Mr Fraser served in the Royal Australian Air Force (RAAF) from 14 June 1971 to 22 February 1991 as a Clerk, Supply (Storeman). The Repatriation Commission (the Commission) accepted he had defence service as that expression is defined in s. 68 of the Veterans’ Entitlements Act 1986 (the VE Act) between 7 December 1972 and 22 February 1991.
On 2 April 2009 Mr Fraser lodged a claim for the Disability Pension for incapacity caused by what he described as low back strain; trauma to the left shoulder; GORD (gastro-oesophageal reflux disease); hiatus hernia; head and neck injury resulting in headaches and dizziness; left and right foot problems; and vertigo. These conditions were later refined and stated as GORD, hiatus hernia, osteoarthritis of the left acromioclavicular joint of the shoulder, lumbar spondylosis, Meniere’s disease, cervical spondylosis, rotator cuff syndrome of the left shoulder and bilateral metatarsalgia. In addition, Mr Fraser applied for an increase in his rate of pension for the accepted disabilities of hearing and tinnitus.
On 14 October 2009 the Repatriation Commission refused all of Mr Fraser’s claims, including a claim for an increase in his rate of pension to higher than 30% of the General Rate.
On 18 December 2009 Mr Fraser lodged an application with the Veterans’ Review Board (VRB) for review of the Repatriation Commission’s decision. On 4 April 2013 the VRB disallowed Mr Fraser’s claim in respect of GORD, hiatus hernia, osteoarthritis of the left acromioclavicular joint of the left shoulder, lumbar spondylosis, Meniere’s disease, cervical spondylosis, and rotator cuff syndrome of the left shoulder. It allowed Mr Fraser’s claim for bilateral metatarsalgia and remitted the matter to the Repatriation Commission for assessment of the rate (if any) at which the pension was to be paid.
On 12 June 2013 Mr Fraser lodged two applications with the Tribunal seeking review of the VRB decision. Matter number 2013/2751 (the first application) is in respect of the disallowed conditions. Matter number 2013/2752 (second application) is in respect of an increase in the rate of pension to be paid to Mr Fraser.
The issues I am required to determine are:
(a)whether Mr Fraser’s claimed incapacity from injuries and/or diseases are defence-caused; and
(b)if the answer to (a) is in the affirmative, whether his rate of pension should be increased to 30% or more of the general rate, which means the maximum rate per fortnight specified in s. 22(3) of the VE Act (s. 5Q).
ENTITLEMENT TO PENSION
Section 70 of the VE Act sets out the eligibility criteria for a service pension under Part IV. Relevantly, it provides:
(1) Where:
(a)the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b)a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c)in the case of the death of the member – pension by way of compensation to the dependants of the member; or
(d)in the case of the incapacity of the member – pension by way of compensation to the member;
in accordance with this Act.
…
(5) For the purposes of this Act,…, an injury suffered by such a member [of the Forces or of a Peacekeeping Force] shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;…
The expressions defence service and terminating date, insofar as they are relevant, are defined in s. 68 (1) in the following way:
In this Part, unless the contrary intention appears:
…
defence service means service, except peacekeeping service, of any of the following kinds:
(a)continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date;…
terminating date means the date on which the Military Compensation Act 1994 commences [7 April 1994].
Mr K Rudge, who appeared on behalf of the Commission, submitted, correctly in my opinion, that the antecedent question which I must answer in respect of each claimed condition is whether the injury or disease suffered by Mr Fraser arose out of, or was attributable to, any defence service performed by him. This was made clear by the High Court of Australia in Roncevich v Repatriation Commission (2005) 222 CLR 115. The majority (McHugh, Gummow, Callinan and Hayden JJ) said, at 125:
Another argument of the appellant should however be accepted. It was, that in asking itself whether the appellant’s intoxication was caused by, or arose out of a task that the appellant had to do as a soldier, it asked itself the wrong question, and not the question that the Act requires it to answer. The question that it should have asked is the one posed by s. 70 (5), whether the injury arose out of, or was attributable to, any defence service of the appellant?
In addition, Kirby J pointed to the fact that the connection between the injury or disease and defence service needs to be causal and not merely temporal. His Honour said, at 132:
Whatever the provisions for entitlements in workers’ compensation or like statutes, or other laws providing repatriation benefits, it follows from the first point that it is essential, certainly so far as the principal claim based on s. 70 (1)(b) and (5)(a) of the Act is concerned, to focus on the causative relationship postulated between the posited “defence-caused injury” and “any defence service”. The need for such a causative relationship is indicated by the phrase “arose out of, or was attributable to”.
THE STANDARD OF PROOF
If the material before me raises a connection between the claimed injuries and Mr Fraser’s defence service, I am then required to apply the standard of proof set out in
s. 120 of the VE Act. Different standards of proof apply depending upon whether the claimant has operational service or defence service. Section 120(1) of the VE Act applies to veterans who have suffered incapacity or death which relates to operational service. The conditions claimed to have caused Mr Fraser’s incapacity do not relate to operational service. Therefore, the standard of proof which applies to his case is that found in s. 120(4) which provides:Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
A Note in the VE Act forms part of the Act. Section 5U relevantly provides:
For the purposes of this Act, a Note is taken to be part of:
(a)if the Note immediately follows a section that does not contain subsections – the section; or
(b)if the Note immediately follows a subsection – the subsection; or…
Section 120B at the VE Act relevantly provides:
(1) This section applies to any of the following claims made on or after 1 June 1994:
(a)…;
(b)a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.…
(2) 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.
Relevantly, s. 196B(3) the VE Act provides:
If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)…
(b)defence service (other than hazardous service and British nuclear test defence service) rendered by members of the Forces; or
(ba)…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c)the factors that must exist; and
(d)which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
THE CLAIMED CONDITIONS AND THEIR CAUSES
Mr C Thomson of counsel, who appeared on behalf of Mr Fraser, submitted that the claim related to six discrete conditions affecting five parts of Mr Fraser’s body. In fact, there appears to be eight conditions claimed, although some of those have been treated as a single condition or as an alternative. I therefore need to exercise some caution, particularly as the Tribunal has limited powers to review decisions. Its power to do so is found in s. 25 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) which relevantly provides:
(1) An enactment may provide that applications may be made to the Tribunal:
(a)for review of decisions made in the exercise of powers conferred by that enactment; or
(b)for the review of decisions made in the exercise of powers conferred, or that may be conferred, by another enactment having effect under that enactment.
In this case, the empowering enactment is the VE Act. Section 175(1) provides:
If:
(a)a decision of the Commission has been reviewed by the Board upon an application made under section 135; and;
(b)either:
(i) the Board affirms or varies the decision; or
(ii) the Board sets aside the decision in circumstances where subparagraph 139(3)(c)(i) or (ii) applies;
applications may be made to the Administrative Appeals Tribunal for review of the decision of the Board.
The word Board used in s. 175(1) means the Veterans’ Review Board (VRB) continued in existence by s. 134 (s. 5Q).
In other words, the Tribunal can only review a decision which the VRB has either affirmed, varied or made another decision in substitution for the decision set aside.
GORD/hiatus hernia
Mr Fraser’s service medical records disclose that on 3 April 1989, he reported ill with epigastric discomfort for five days which occurred whenever he was eating or drinking.
In a letter dated 14 February 1990, Dr D A Coventry reported that he had examined Mr Fraser following a prior examination sometime in the previous year. Dr Coventry said Mr Fraser reported experiencing minor episodes suggestive of reflux dyspepsia in that past examination. He conducted a gastroscopy on 14 February 1990. Dr Coventry also said:
The gastro-oesophageal mucosal junction was slightly above the diaphragmatic indentation and was irregular and there were one or two areas of columnar epithelium just above this. In one area there was a small amount of very superficial ulceration. I could not actually define a definite hiatus hernia.…
In summary he has very mild reflux symptoms. I suspect this has caused his retrosternal pain as well. There is evidence of mild oesophagitis.
Dr Coventry again saw Mr Fraser on 28 February 1990. Dr Coventry repeated his findings stated in his report of 14 February 1990 that his recent endoscopy showed evidence of hiatus hernia and mild reflux oesophagitis. He prescribed Tagamet.
Mr Fraser’s RAAF medical records disclose him complaining of gastro-oesophageal reflux throughout the latter half of 1990 and on 17 April 1991 he is recorded as experiencing severe reflux despite being treated with Mylanta. Mr Fraser was then referred to Dr P McCarthy, a gastroenterologist, for a gastroscopy. That was completed on 18 July 1991 and the findings were stated as:
small hiatus hernia
ulcerative oesophagitis at 39 cm over 6 mm –biopsied
no stricture
The conclusion on that investigation was that Mr Fraser had ulcerative oesophagitis.
Shortly prior to discharge from the RAAF, in a letter dated 19 September 1991 Dr McCarthy noted that he had arranged for Mr Fraser to have a review endoscopy to ensure healing of any ulceration. A gastroscopy was performed on 2 October 1991 noting there were minor reflux changes only. That report also noted: hiatus hernia is present.
Mr Fraser underwent a further gastroscopy on 17 September 2007. The findings on that examination were:
Oesophagus: The OG junction was detected 38 cm from the teeth and was complicated by a hiatus hernia (sliding small) but no macroscopic oesophagitis. Biopsies were taken…
Stomach: The gastric mucosa was normal with no gastritis, erosions or ulceration.
Mr Fraser’s oral evidence-in-chief was that he became first aware of his abdominal problem in the 1970s. However, he did not report the problem at that time. Nor did he mention to Dr Coventry that he suffered symptoms in the 1970s.
I did not have the benefit of oral evidence from a gastroenterologist in this matter. It is therefore difficult for me to determine whether Mr Fraser suffers from two discrete conditions or whether one is simply symptomatic of the other. I did however have a report prepared by Dr J Rowe, an occupational physician, and Dr Rowe gave oral evidence in the course of the hearing. He agreed that he was not an expert regarding gastroenterological diseases. However when asked in evidence in chief whether inflammation was a cause of GORD, he described it as simply another symptom. In fact, as I mentioned above, the gastroscopy conducted by Dr McCarthy on 2 October 1991 states that a hiatus hernia was present and that there was no current ulceration or complications. His conclusion is stated as: minor reflux changes only. In his letter of 9 October 1991, Dr McCarthy referred to Mr Fraser as having a history of ulcerative oesophagitis which had been treated with Losec with an excellent clinical response. He referred to an endoscopy on 2 October 1991 which showed no complications with complete healing. From this information, it is sufficiently clear that Mr Fraser was treated for ulcerative oesophagitis most likely as a result of his small hiatus hernia. Incapacitation, if there was any, was likely to be produced by the ulcerative oesophagitis.
I find that the clinical onset of Mr Fraser’s ulcerative oesophagitis was most likely in about 1989 when he first complained of symptoms associated with that disease to Dr Coventry who wrote a report dated 19 April 1989 stating that Mr Fraser had a history of reflux symptoms and had some high retrosternal burning and a feeling of reflux. He said this had become more noticeable recently.
While I did have evidence from Mr Fraser about his smoking cigarettes and drinking alcohol while in the RAAF, in his evidence-in-chief he said that he gave up smoking cigarettes in March 1980 and drinking alcohol in January 1980. In his evidence-in-chief Mr Fraser also said that he commenced smoking and drinking alcohol prior to joining the RAAF. However he claimed that his consumption in both cases increased after joining the service. I did not have any evidence from Mr Fraser about how his increase in smoking and drinking alcohol arose out of or could be attributed to his defence service. Nor did I have any other evidence which would allow me to find that his GORD/hiatus hernia arose out of or could be attributed to his defence service. A mere temporal connection is insufficient. Accordingly, I find that Mr Fraser’s GORD/hiatus hernia was not defence-caused. In the event that I’m wrong about that, I will briefly examine the submissions made regarding the relevant SOPs.
The Repatriation Medical Authority has made a Statement of Principles (SOP) concerning Gastro-Oesophageal Reflux Disease and Hiatus Hernia. The current SOP for GORD is No. 66 of 2013 which came into effect on 4 September 2013 and the current SOP for Hiatus Hernia is No. 69 of 2014 which came into effect on 2 July 2014.
However, because the Commission’s decision regarding Mr Fraser’s GORD/hiatus hernia was made on 14 October 2009, before the commencement of both current SOPs, in accordance with the Federal Court’s decision in Repatriation Commission v Keeley (2000) 98 FCR 108 and Repatriation Commission v Gorton (2001) 110 FCR 321, I may have regard to the predecessor instruments being Instrument No. 12 of 2005 concerning GORD and Instrument No. 18 of 2004 concerning hiatus hernia. In fact, Mr Thomson in his closing submissions referred only to the SOPs which were in effect at the date the Commission made its decision. No doubt that is because the factors relied on by Mr Fraser are significantly different in the current SOPs and appear to be unfavourable to him.
To be connected with the circumstances of his defence service, I must be satisfied, on the balance of probabilities, that one of the factors set out in the SOP is related to the service rendered by Mr Fraser. As is stated in clause 4 of the SOP concerning hiatus hernia
(No. 18 of 2004), at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person. Mr Thomson referred to factor 5 (d) which states:
(d)having gastro-oesophageal reflux disease at the time of the clinical worsening of hiatus hernia; or…
The problem with Mr Fraser claiming factor 5 (d) applies is that there was no evidence of a clinical worsening of the hiatus hernia. In fact, as clause 6 makes clear:
Paragraphs 5(d) to 5(h) apply only to material contribution to, or aggravation of, hiatus hernia where the person’s hiatus hernia was suffered or contracted before or during (but not arising out of) the person’s relevant service;…
The presence of the hiatus hernia was established in 1990 by Dr Coventry and on subsequent endoscopies it continued to be described as a sliding small hiatus hernia. There was no evidence of clinical worsening. Furthermore, this condition arose during Mr Fraser’s defence service. Therefore factor 5 (d) is not satisfied. I had no evidence of any other factor having been satisfied in instrument No. 18 of 2004. I have also examined the factors in the current instrument for hiatus hernia, No. 69 of 2014. There was no evidence that any of those factors are satisfied.
There are similar problems with Mr Fraser’s claim regarding GORD. Given the evidence of Dr Coventry, I find that its clinical onset was in about 1989. That was some nine years after Mr Fraser said he ceased smoking cigarettes and drinking alcohol.
I have examined the factors set out in clause 5 of instrument No. 12 of 2005 concerning gastro-oesophageal reflux disease. Although factor 5 (a) refers to having a hiatus hernia at the time of the clinical onset of gastro-oesophageal reflux disease, given my findings regarding the hiatus hernia, Mr Fraser cannot rely upon that factor. The hiatus hernia was not defence-caused. The only other factors which may have relevance to GORD are those dealing with smoking cigarettes or consuming alcohol. However, as far as smoking is concerned, it requires smoking at least 20 cigarettes per day at least six months immediately before the clinical onset or worsening of GORD and consuming an average of at least 500 g of alcohol per week for at least the 12 months before the clinical onset of GORD. On his own evidence, Mr Fraser cannot meet those factors. Accordingly I must find that Mr Fraser’s GORD was not defence-caused.
Ménière’s disease/head injury/migraines/vertigo
Mr Fraser claimed for head injury and vertigo in his claim for the pension. He described several signs and symptoms including headaches, dizziness, loss of balance and nausea. The only stated claim before VRB was Ménière’s disease. In Mr Fraser’s Statement of Facts and Contentions, his solicitors referred to head injury/migraines. According to Mr Fraser’s solicitors, the VRB relied on a report by Mr D Chan, an Ear Nose and Throat (ENT) specialist, dated 31 August 2009 who opined that Mr Fraser may have Ménière’s syndrome. I also had in evidence a report by Mr Stephen O’Leary, an ENT surgeon, dated 15 August 2014. Mr O’Leary referred to Mr Fraser having episodes of dizziness lasting up to 30 seconds followed by severe headache with nausea and increased tinnitus. He also said that Mr Fraser experienced severe migraines which presented as visual aura with blurring of the vision followed by headaches and nausea. Mr O’Leary said Mr Fraser’s history was consistent with the diagnosis of migraine.
The problem which presents itself is that the VRB dealt with this condition on the basis that it was Ménière’s disease. It dealt correctly with the matter by simply stating there was no evidence that Mr Fraser had Ménière’s disease. The statement by Mr Chan that Mr Fraser may have Ménière’s disease did not amount to a diagnosis. The question then for me to answer is whether the Tribunal has jurisdiction to embark upon an examination of the other conditions and symptoms referred to by Mr Fraser.
Mr Rudge submitted that the conditions described as head injury/migraine (and presumably dizziness) were not before the Tribunal. He referred to the decision of the Full Court of the Federal Court of Australia (Davies, Wilcox and Foster JJ) in Fitzmaurice v Repatriation Commission (1989) 19 ALD 297.
That matter was before the Full Court on a special case stated by the Tribunal. The question before the Full Court for determination arose from the fact that while the Repatriation Commission made a decision refusing Mr Fitzmaurice’s claim for a war pension for dyspepsia and anxiety state, on review by the VRB, the VRB not only determined that Mr Fitzmaurice was entitled to the pension in respect of the two conditions claimed, but also that the rate at which the pension was to be paid for all of his accepted service-related disabilities taken together should be 100% of the general rate (which was the rate to which he had previously been entitled). Mr Fitzmaurice’s application to the Tribunal was only on the rate of pension and excluded the question of whether he was entitled to the pension. However, the Repatriation Commission, without separately applying for a review of the determination of the VRB that the conditions of dyspepsia and anxiety state were attributable to war service, nevertheless sought to raise that issue on the basis that Mr Fitzmaurice’s application to the Tribunal necessarily encompassed all parts of the decision made by the VRB. The question put to the Full Court was whether in hearing and determining the application lodged with the Tribunal by Mr Fitzmaurice, it was within the jurisdiction or authority of the Tribunal to review the VRB findings regarding liability to pay Mr Fitzmaurice the pension in respect of his incapacity from dyspepsia and anxiety state.
The majority (Wilcox and Foster JJ) decided that question in the affirmative (at 309 and 314). While the question in that case is different to the one posed in this case, that is whether matters which were not reviewed by the VRB (but now expressly stated to be) are reviewable, the majority made it clear that as far as the VE Act is concerned, it is only in respect of decisions falling within s. 175(1) that application for review may be made to the Tribunal (at 308–9 and 314). That is simply consistent with what s. 174 and 175 of the VE Act provide.
On the other hand, Mr Thomson submitted that Mr Fraser’s original claim included signs and symptoms involving headaches and dizziness. Furthermore, when treated with Sandomigran, he obtained significant relief. Therefore, according to Mr Thomson, Mr Fraser must have migraine. In fact, Dr Yong Chern Lee, a consultant neurologist, in a letter dated 17 November 2014 said that Mr Fraser’s response to Sandomigran would support the diagnosis of vertiginous migraine. Accordingly, regardless of the nomenclature, all the evidence regarding the condition was before the Tribunal.
In my opinion, I need not determine the precise nomenclature for the symptoms described by Mr Fraser. It is sufficient that I examine the cause of the symptoms in the context of Mr Fraser’s defence service. The first step is, after all, to determine whether the symptoms experienced by Mr Fraser can be said to arise out of or be attributed to his defence service. It is those symptoms which are said to give rise to incapacity.
When asked in evidence in chief when his dizziness or vertigo and headaches commenced, Mr Fraser responded that they arose after he hit his head in 1983. Since that accident, Mr Fraser said he experienced nausea and dizziness approximately one day per week. When asked if he still suffered from the problem he said he was on medication, by which I understood he was referring to the Sandomigran, which he said produced an immediate positive result.
Mr Fraser’s account of the accident in 1983 is recorded in Dr Lee’s letter of 25 August 2014. Dr Lee said:
I learned that his headaches and dizziness started after an incident at the air force in 1983. Apparently he was hit over the left frontal area by a heavy door which was pushed open abruptly. He fell back a couple of stairs but there was no loss of consciousness. Two weeks after the incident he had persistent headaches and general dizziness. Over time there has [sic] been fluctuating symptoms.…
Ken did not suffer from headaches or dizziness prior to the incident of trauma to the head. As a neurologist, I often see patients with post-traumatic headache and vestibular disturbance. In this particular case, we would have to assume that the injury resulted or triggered the onset of his headache disorder.
I should also refer to a letter from Mr O’Leary dated 15 August 2014 where he said:
He first experienced dizziness after a head injury. At the time he had been struck on the head at work whilst in the military. He felt unwell at the time and then first experienced dizziness approximately a week later.… He was also noted to have a mild sensorineural hearing loss.…
Kenneth experiences severe migraines. These present as visual aura with blurring of the vision followed by headaches and nausea. He takes Imigran when these headaches occur.…
Kenneth’s history is consistent with a diagnosis of migraine. The dizziness appears to be an aura associated with the migraine, and an ongoing sense of disequilibrium is not uncommon under these circumstances.
The problem with the statements Mr Fraser made to Mr O’Leary and to Dr Lee is that there is evidence of him suffering headaches, dizziness and disturbance of vision prior to the 1983 accident to which he referred. An entry in his service medical record dated 13 May 1975 reports:
2/52 ago – developed severe sharp neck pain while driving his car. Pain followed by dizziness palpitations and gross disturbance of vision. Severe occipital headache then followed. Since that time, similar but minor episodes have occurred.
Mr Fraser was admitted to hospital following the event I have described above. The history and examination on the admission report repeats that while driving a car he had a sudden stabbing pain in the neck followed by light headedness, nausea, palpitations and distorted vision. That was followed by a severe occipital headache. The report states that he continues to have a occipital neuralgia. He was diagnosed with depressive illness. I also had in evidence a further Inpatient Record indicating he was admitted to No. 6 RAAF Hospital on 13 October 1976. His complaint appeared to be vertigo. The report referred to his dizzy spells and transient loss of balance with blurring of vision having been investigated in May 1975 when he was in Darwin. The report also records six similar attacks lasting seconds since that time but no associated features.
When those records were put to Mr Fraser in cross-examination, he said the events must have occurred but he could not recall them.
There was one further report provided by Dr John Colvin, an ophthalmologist, dated 17 October 1983 where it is reported that Mr Fraser was having recurring occipital headaches and his vision was blurring. That consultation occurred three months after his claimed accident in 1983 but there is no mention of that in the report. Mr Fraser was unable to explain why that was the case.
The evidence I have referred to above clearly indicates that Mr Fraser was suffering from headaches, dizziness, and blurring of vision well before his claimed accident in 1983. I find, on the balance of probabilities, that whatever the cause of his symptoms described as headache, dizziness, vertigo or migraine, they were not caused by or attributed to the accident he claimed he had in July 1983. The symptoms predate that event. It follows that on the balance of probabilities, I must find that however the injury or disease relating to the symptoms he has described can be categorised, it was not defence-caused.
Osteoarthritis of the left acromioclavicular joint/rotator cuff syndrome
Mr Fraser testified that he injured his left shoulder in May 1974 when he had a fall from a motorcycle while on posting to Darwin. He said he was going around a roundabout when the motorbike slipped from under him and he fell on his shoulder. He said he did not seek medical treatment immediately. He subsequently experienced pain at the top of the shoulder and tingling in his fingers. He said he did not have those symptoms prior to the accident.
His service medical documents contain an entry on 16 May 1974 to the following effect:
L shoulder trouble – fell off motorcycle 2 weeks ago and sustained trauma to shoulder tip. Now notices reduced movement with pain. L acromio-clavicular joint a little more prominent with some local tenderness but nil else. Full ROM [range of movement].
There was a second incident referred to by Mr Fraser which occurred on 2 March 1976 when based at Williamtown. His medical records simply state: Bike accident 2/52 ago. Mr Fraser’s medical records record that on 8 May 1986, when at Point Cook, he reported experiencing 12 months of worsening left shoulder pain. That was associated with difficulty in lifting and tingling in his fingers. In his evidence in chief, he said he did not experience pain at rest at that time but it was noticeable while he was at work.
In cross-examination, Mr Fraser was referred to his Discharge Health Statement. On that form, he was asked if he suffered any disabilities during his service to which he answered: Yes. He was then asked to list those disabilities with approximate dates of onset and the location at the time. When it was put to Mr Fraser that nowhere in that Statement did he mention his neck, lower back or shoulder, Mr Fraser suggested that he had forgotten about those. Mr Fraser suggested that the Medical Officer would enter the information in the space allocated for his comments and further stated that the Medical Officer simply wanted him in and out as soon as possible. He also indicated there was limited space on the form. He agreed it was his signature that appeared underneath that statement.
Mr Fraser was also asked to explain in cross-examination how his motorcycle accident related to his defence service. Mr Fraser said he was on duty at that time, being on call for 24 hours. He then added that it was in the course of his lunch break. He said it occurred on the RAAF base.
I had in evidence a report by a physiotherapist to whom Mr Fraser was referred on 8 May 1986. The brief referral note on that report states that Mr Fraser had a 12 month history of left shoulder pain and tingling radiating into his hand. The physiotherapist recorded that Mr Fraser has had sedentary job for 15 years. The physiotherapist concluded that there was something restricting Mr Fraser’s movement of C5 or C6 nerve root.
Mr Fraser relied particularly on a medical report prepared by Dr Richard McArthur, an orthopaedic consultant, on 7 November 2011. Dr McArthur recorded a history given to him by Mr Fraser which involved considerable lifting of stores and equipment. This appears to be significantly different to the history he gave the physiotherapist whom he consulted on 8 May 1986. Furthermore, in questions which I raised about his role and mustering as a stores clerk, Mr Fraser agreed that his role was essentially sedentary. While occasionally he was required to move stores and equipment, by and large his role was that of a clerk.
Regarding his left shoulder, Dr McArthur recounted the history given to him by Mr Fraser regarding the motorbike accident. He described Mr Fraser as having landed on his left shoulder. With respect to Mr Fraser, as Mr Rudge pointed out in cross-examination, if the motorbike slipped from underneath him while going around a roundabout as he claimed, the motorbike would be leaning to the right and he would have been more likely to have landed on his right side than his left.
Dr McArthur recorded Mr Fraser telling him that his shoulder movement was restricted by pain in the acromioclavicular joint although examination was otherwise unremarkable. He also apparently said that the left shoulder pain had settled. Dr McArthur also recorded Mr Fraser telling him he sustained a second injury to the left shoulder in March 1976 when he fell off a pushbike. He is recorded as having said that he continued to experience pain in the left shoulder for the remainder of his service career. That statement of course begs the question as to why Mr Fraser did not record left shoulder problems in his Discharge Health Statement.
Dr McArthur said in his report that on 6 March 2008 Mr Fraser’s GP obtained an x-ray which identified degeneration in the acromioclavicular joint. On 6 October 2010 an ultrasound of his left shoulder revealed a minor tear in the supraspinatus which was presumed to be secondary to impingement from the degenerate acromioclavicular joint. On examination, Dr McArthur noted that the acromioclavicular joint appeared slightly prominent and was tender. Active shoulder movement was restricted and there was a painful arc when actively moving the shoulder above the horizontal. Passive rotation of the shoulder with the arm held in a position of 90 degrees of forward flexion was painful, indicative of rotator cuff impingement.
Dr McArthur concluded that on the balance of probabilities, Mr Fraser’s osteoarthritis in the left acromioclavicular joint was related to trauma to the left shoulder sustained in 1974 and 1976. While Dr McArthur also stated that this satisfied factor 6 (f) of the SOP concerning osteoarthritis, instrument No. 14 of 2010, respectfully, that is a question for the Tribunal to answer after an examination of all the evidence put before it. Dr McArthur did not have all of the evidence before him. It is, with respect, unfortunate that medical practitioners attempt to answer legal questions without having all of the evidence before them. It is clearly not their role to do so. It also tends to show a lack of independence which is required of an expert witness. This is highlighted by the fact that Dr McArthur said that it was reported in the medical notes that the clinical onset of osteoarthritis in the left acromioclavicular joint was within 25 years from the date of the trauma. Dr McArthur did not identify where in the medical notes the clinical onset of osteoarthritis was recorded. I have not been able to locate such an entry.
Dr McCarthy also reported Mr Fraser had a degenerative tear in the supraspinatus tendon of the left rotator cuff. It was his opinion that the tear was related to anatomical narrowing of the subacromial space consequent to inferior osteophyte formation which had arisen from an arthritic acromioclavicular joint.
I had in evidence a report from Dr David de la Harpe, an Orthopaedic Surgeon, dated 1 September 2008. He examined Mr Fraser on 27 August 2008 for the purposes of establishing a DVA claim. Once again, Dr de la Harpe recorded Mr Fraser telling him that while he was in the Air Force, he had a number of injuries to his spine and did a lot of heavy lifting. Regarding the lumbar spine, he also described Mr Fraser telling him that he had a number of falls off bikes.
I had in evidence a report from Marina Diagnostic Group (Dr Peter Zeimer) dated 26 October 2006. The examination is said to be bilateral shoulder ultrasound. Dr Zeimer reported:
There is evidence of a small amount of fluid within the left bicipital tendon sheath, but both bicipital tendons have normal appearance with no evidence of any tear.
The infraspinatis, as well as subscapularis tendons are normal bilaterally, with no evidence of any tendinitis or tear.
Both supraspinatus tendons show complete tears.
No fluid is noted within the subacromial bursae or the joint spaces.
The Commission relied on a report prepared by Mr R A Haig, an Orthopaedic Surgeon, dated 26 October 2013. Mr Haig reported on a number of conditions claimed by Mr Fraser, including his left shoulder. According to Mr Haig, the history reported by Mr Fraser included the motorbike accident in 1973 or 1974 when he landed on his left shoulder. He was not x-rayed at that time. According to Mr Haig, Mr Fraser stated that his shoulder was sore for three or four weeks but then he returned to work. Mr Fraser also gave Mr Haig an account of the incident in 1976 when he fell off a pushbike which was stationary at the time. He said he fell, landing on his left shoulder. There was no treatment and according to Mr Haig, Mr Fraser said the shoulder felt a bit sore but then got better and he took no notice of it. He said there were no problems until years later. At the time of examination, Mr Fraser complained of soreness indicating that it was all around his shoulder and constant.
On examination of Mr Fraser’s left shoulder, Mr Haig said it showed to have a normal contour and there was no tenderness. He reported a full range of motion although Mr Fraser claimed there was discomfort at the extremes of flexion and abduction.
Although Mr Fraser had with him a number of old x-rays, Mr Haig requested up to date x-rays. His left shoulder was x-rayed and according to Mr Haig, there was some degenerative change of the acromioclavicular joint. He also had an MRI done of the left shoulder and Mr Haig reported full width tear of the supraspinatus with retraction and muscle volume loss in keeping with atrophy. He said the infraspinatis, although intact, demonstrated muscle volume loss most likely due to its disuse. Mr Haig said that the long head at the biceps tendon was poorly seen in the superior portion of the bicipital tuberosity and was most likely torn and retracted to the inferior portion of the bicipital tuberosity. The subscapularis remained intact. There were no other findings.
As far as Mr Fraser’s left shoulder was concerned, Mr Haig concluded that although there were incidents in 1973/74 and 1976, because Mr Fraser went on to say there were no problems until years later, that suggested to him that the rupture of the supraspinatus tendon was age-related degenerative change and not related to those incidents of trauma during his period of service.
Dr J Rowe, an Occupational Physician, provided a report dated 31 July 2014 following an examination of Mr Fraser on that date. As indicated in his report, Dr Rowe assumed Mr Fraser’s osteoarthritis of his acromioclavicular joint in the left shoulder and rotator cuff syndrome in the left shoulder were accepted conditions. I understood Dr Rowe to mean that the conditions had been diagnosed rather than accepted as being defence-caused. I also note that Dr Rowe, in reviewing the report prepared by Mr Haig, said this about Mr Fraser’s work while in the RAAF:
As you know, he worked in stores and logistics. His job involved extremely arduous and heavy lifting over a long period of time. There was cumulative lifting of tons and tons of goods over the years and this has contributed to all of his conditions and in particular the condition of his neck and back and the condition of his shoulders.
While the above is undoubtedly what Mr Fraser told Dr Rowe, Mr Fraser’s oral evidence on the hearing of this matter contradicts those statements. Furthermore, although Mr Fraser prepared very detailed weight calculations regarding the lifting he performed during his period of RAAF service between 1973 and 1989 for the purpose of demonstrating that he satisfied the SOP for osteoarthritis, on the second day of the hearing Mr Thomson conceded that Mr Fraser could not meet the lifting factors in the SOP. In fact, in the course of his evidence in chief, when asked whether it was possible to identify the clinical onset or diagnosis, Dr Rowe volunteered that the fall from the motorcycle was not too serious.
In cross-examination Dr Rowe was referred to Mr Fraser’s service medical documents and in particular an x-ray examination which was requested and done on 9 May 1986 regarding his left shoulder and cervical spine. In respect of the left shoulder, the report states: No bone or joint abnormality has been seen. Dr Rowe agreed that there was no osteoarthritis in the left shoulder at that time.
Mr Haig was thoroughly cross-examined by Mr Thomson regarding Mr Fraser’s left shoulder injuries. After examining the details described by Mr Haig in his report following the x-ray and MRI of the left shoulder, Mr Thomson put to Mr Haig that if the facts were that Mr Fraser experienced pain after lifting objects in 1986; that he presented to a Medical Officer experiencing 12 months of shoulder pain; he had an x-ray of the left shoulder showing no abnormality; he reported pain again in the left shoulder and possibly the neck in 1988; that would paint a picture of ongoing problems. Mr Haig simply responded by saying that he was given a different history to that which Mr Thomson put to him. He agreed that if that were the history, it may fit with the cause of the problem. Mr Haig was similarly unimpressed with the suggestion that Mr Fraser had a subacromial spur. He said it would be more significant if it showed on the x-ray rather than a suggestion from the MRI that a spur existed. It did not appear on the x-ray.
This questioning was clearly designed to establish whether Mr Fraser’s rotator cuff problems were consistent with factor 6(e) set out in the SOP concerning Rotator Cuff Syndrome, No. 40 of 2006. That factor refers to having anatomical narrowing of the subacromial space on the affected side at the time of clinical onset of rotator cuff syndrome. The expression anatomical narrowing of the subacromial space is defined in the SOP and it means an acquired reduction in the space between the acromion and the upper end of the humerus. Causes would include osteophytes (spurs) or tumours projecting into the subacromial space. Mr Haig agreed that there could be dual pathology in play, involving the neck and shoulder.
In re-examination, Mr Haig confirmed that the degenerative changes in Mr Fraser’s left acromioclavicular joint were mild to moderate. After being taken through the medical history once again, Mr Haig said his opinion remained unaltered.
In my opinion, Mr Fraser grossly overstated the amount of lifting which he was required to do during his service with the RAAF. It appears from the reports of the various medical practitioners who relied on that history given by Mr Fraser that they were able to establish a connection between his defence service and the claimed injury from that history. However, because of the view I have formed about Mr Fraser’s evidence, the opinions must necessarily carry less weight. Mr Fraser’s fall from the motorbike occurred in 1974. In 1979, he complained of a sore shoulder, nothing more. In 1986, some 12 years after the accident, he complained of a 12 month history of left shoulder pain. The x-ray of his left shoulder conducted on 9 May 1986 disclosed no bone or joint abnormality. That is significant as had there been any observable degenerative change at that time, it would have become apparent on x-ray. In addition to that, the evidence was that the injury he sustained to his left shoulder in the fall from the motorbike and the bicycle were not serious injuries. In fact, the medical report dealing with the fall from the bicycle does not mention which shoulder was injured.
I find that the medical evidence leads to the conclusion that Mr Fraser’s claimed osteoarthritis of the left acromioclavicular joint and rotator cuff syndrome of the left shoulder are age-related. Therefore, I find that Mr Fraser’s claim in respect of his left shoulder cannot be said to have arisen out of or have been attributable to his defence service. He does not satisfy s. 70(5)(a) of the VE Act.
Lumbar and cervical spondylosis
For those unfamiliar with medical terms, spondylosis is used as a general term for the degenerative changes due to osteoarthritis. Cervical spondylosis is defined in Dorland’s Illustrated Medical Dictionary, 27th Edition, as (p. 1567):
degenerative joint disease affecting the cervical vertebrae, intervertebral discs, and surrounding ligaments and connective tissue, sometimes with pain or paraesthesia radiating down the arms as a result of pressure on the nerve roots.
As is apparent from Dr McArthur’s report, Mr Fraser relies on a history of heavy lifting during his defence service. Dr McArthur reported:
Mr Fraser gave a history of low back pain during the course of his service, which extended from December 1972 to December 1991. During that time Mr Fraser was involved with considerable heavy lifting when working in stores early in his service career and subsequently in 1986 when RAAF College at Point Cook was disbanded. Episodes of back pain were recorded in 1983, 1986, 1988 and 1990.
Mr Fraser also relied on an incident which occurred on 21 July 1983 when he was hit on the head by a door inadvertently opened by a fellow serviceman. According to Dr McArthur, Mr Fraser was projected backwards and fell down some stairs. This resulted in him developing low back pain which was managed conservatively. In his evidence in chief, Mr Fraser said he was hit on the top left-hand side of his head with the door and he went backwards down two steps but did not fall because he grabbed a handrail. Immediately after the accident, Mr Fraser said he had pain in his head, a split scalp and a lump, and jarring in his lower back. He suffered head and neck pain for three to five days. He said he suffered a lump on his head when he was pushed back. His medical records for 21 July 1983 describe him having a bump on head – walked into door. He described having pain at the back of his head and down the right side of his neck. He is also recorded as having jarred his back as he went down two steps as a result of the bump on his head. He also apparently said sometimes when he sat he had pain and got lower back pain when lying down in bed.
An x-ray of Mr Fraser’s lumbo-sacral spine was conducted on 5 September 1983. The report stated:
The vertical height of the disc spaces are well retained without any significant degenerative lipping and the vertebral appendages are intact. There is no abnormality in either cro-iliac joint.
The problem with Mr Fraser’s account of when his lower back pain started is that this complaint was treated by a physiotherapist, Mr Mike Ralston, on 26 September 1983. Mr Ralston said:
He is complaining of low back pain, especially right, of two years duration. The pain is aggravated by lying prone. Movements do not increase his pain.
If what Mr Ralston said is correct, then any problems Mr Fraser had at that time with his lower lumbar spine could not have been caused by the door striking his head. Mr Fraser’s evidence was further compromised when he was asked in his evidence in chief whether before 1983 he experienced pain in his back and his answer was: no. A little further on in his examination in chief, Mr Thomson again asked Mr Fraser about his lower back and whether he had lumbar pain before July 1983 and his answer again was: no. Mr Fraser’s medical record has an entry on 17 March 1983 which refers to an aching neck and some stiffness in his neck. There is also the entry tender at C 5 (reference to cervical spine disc 5). This was some months prior to his banging his head on the door incident.
When asked what symptoms he later experienced, Mr Fraser said he had tingling down his leg when walking upstairs, sitting for long periods, jogging, going to the gym and at work. When asked whether in 1986/87 there was a change in the pattern of pain, Mr Fraser said only in the frequency of pain and that he had pins and needles in his left leg every day.
In cross-examination Mr Fraser was, as I have mentioned above, asked why he did not refer to this problem on his Discharge Health Statement. There is no reference in that statement to the neck, lower back or shoulder.
I have already referred to his service medical documents which contain an entry dated 9 May 1986 where he visited a physiotherapist. The physiotherapist observed on examination that his neck movement was good but right side flexion was tight and pulled on the left side of his neck. The conclusion the physiotherapist drew was that there was something restricting movement of C5 (or C6) nerve root. Mr Fraser had an x-ray of his cervical spine on 9 May 1986 and the result recorded:
The cervical vertebral bodies, disc spaces and neural arches are normal. Flexion-extension movement is satisfactory with no evidence of instability. There is no narrowing of intervertebral foramina and no cervical rib is seen.
In cross-examination, Mr Fraser said that his neck condition worsened in 1986. In re-examination, Mr Fraser confirmed that the period when he was at Point Cook (1986) was his heaviest lift period. Mr Fraser went to great lengths to produce documents regarding the weights he lifted during that period, no doubt in an attempt to satisfy the SOP factors, only to have Mr Thomson withdraw that information on the second day of the hearing stating that Mr Fraser could not satisfy the lifting factors in the SOP. The evidence Mr Fraser has given about lifting substantial weights in the course of his evidence is clearly unreliable.
Mr Fraser, in support of his claim for injuries suffered to the cervical and lumbar spine, relied on medical assessments made by Dr McArthur, Dr Rowe and Dr David Vivian.
In his report, Dr McArthur attributed Mr Fraser’s chronic neck pain involving the C 6-7 intervertebral joint to having hit his head on a shelf in 1972 and when he was struck on the forehead by a door inadvertently opened by a fellow servicemen on 15 July 1983. Dr McArthur, relying on what Mr Fraser told him, said that a consequence of both injuries was that he developed chronic neck pain. Dr McArthur did not explain just how a blow to the head, such as those described by Mr Fraser, could result in injury to the cervical spine.
Dr McArthur noted that Mr Fraser’s medical records indicated that on 20 June 1972 Mr Fraser reported that about three weeks previously, he hit his head. The report itself does not explain how or where that occurred. It appears Mr Fraser told Dr McArthur that in 1972 he bent over to pick up a pencil and on getting up hit his head on the underside of the steel shelf. As a consequence Mr Fraser developed headache and pain on the right side of his neck which persisted and in view of this he reported the injury to the flight sergeant.
In the clinical history provided by Dr McArthur regarding the second incident referred to by Mr Fraser which occurred on 15 July 1983, Dr McArthur said he was seen by a medical officer on 21 July 1983 who recorded the injury and noted that Mr Fraser complained of pain which involved the right side of his neck. That statement appears to be correct. In fact, what was reported, as best I can determine, was:
1. Bump on head – walked into door… pain at back of head
Examination:
2. Tender at back of head – sharp pain – like (illegible) down R side of neck…
3. Jarred back – went down 2 steps instead of 1 – lower face ache.
4. Sometimes when sits – car – gets lower back pain + also when lying down in bed.
There is also a note made by the medical officer indicating that a skull x-ray had been requested. That x-ray was done on 22 July 1983 and the report states:
There is no vault fracture detected. The midline structures are not definitely visualised.
Logically, had Mr Fraser also complained of an injury to his neck as a consequence of being struck by the door, an x-ray which included his neck would have been requested. Dr McArthur then recorded that following the injury, Mr Fraser’s neck pain and stiffness continued and he continued to seek medical attention. He referred to conservative treatment with physiotherapy, intermittent neck traction and a non-steroidal anti-inflammatory agent being tried.
Mr Ralston, a physiotherapist, provided the second report dated 9 November 1983. He said:
This man has improved well with mobilisation and manipulation to the lumbar spine and now reports no low back pain. All movements are full and painless although there is still some slight tenderness over L5.
I had in evidence a report from Mr Greg Cunningham, a physiotherapist, dated 3 July 1984. That report relevantly states:
Thank you for referring this member for treatment for his wry neck. The pain was centred around the left trapezius. The problem had a history of sudden onset (woke with it) five days previously.
On examination his flexion extension and left rotation were moderately restricted. Palpation revealed tenderness over the left facet joints between C5 to C7.
Considering the nature of the pain and the history of onset the problem seemed to be more discogenic [caused by an intervertebral disc] than facet joint. With this in mind I gave Ken traction. He rang before his second appointment saying that he was pain-free.
Mr Fraser had an x-ray of his lumbosacral spine done on 11 January 1991. That report stated:
Normal vertebral alignment is maintained with no evidence of a pars defect nor spondylolisthesis.
No evidence of degenerative change is seen and the disc spaces are well maintained.
There is partial lumbarisation of S1.
A comparative report of radiologist’s findings was made by Dr Richter on 2 August 2010. It involved three examinations, in September 1983, January 1991 and October 2000. These were all examinations of Mr Fraser’s lumbar spine. The conclusion was that the various examinations were all normal. An x-ray of Mr Fraser’s lumbosacral spine done on 18 June 2003 disclosed no abnormalities. X-rays of Mr Fraser’s cervical spine and lumbar spine and pelvis were conducted on 5 March 2008. The report stated:
CERVICAL SPINE X-RAY
The cervical lordosis is reduced.
There is mild osteophyte formation and disc space narrowing at C5–6 and C6–7.
The facets and foramina remain reasonably well-preserved.
LUMBAR SPINE AND PELVIS X-RAY
There is a slight scoliosis concave to the right.
There are no significant bony abnormalities demonstrated.
The disc spaces, facets and sacroiliac joints appear within normal limits.
Mr Fraser was examined by Dr de la Harpe on 27 August 2008 for the purposes of establishing his DVA claim. Mr Fraser gave Dr de la Harpe a history of having had a number of injuries to his spine and that he did a lot of heavy lifting. There was no history of fracture or dislocation of the spine. Dr de la Harpe’s report referred to some plain x-rays taken earlier in 2008 which he said disclosed age-related changes only.
Dr de la Harpe concluded:
I would suspect that he has developed some osteoarthritic change throughout his spine and this has most likely been contributed to by his duties in the Air Force.
Dr Mark Cooper, radiologist, reported on a CT of Mr Fraser’s lumbar spine on 18 November 2011 following him reporting that he had had a fall 10 days previously. Dr Cooper reported:
There is a minor annular disc bulge at L1 – L2 with minor anterior osteophytes and there is a minimal annular bulge at L5 – S1. No crush fracture was detected. There was no evidence of spinal canal or neural exit foramen encroachment at any level.
Overall appearances are unchanged when compared with the previous study.
Dr David Vivian, pain management specialist, examined Mr Fraser on 28 June 2012. According to Dr Vivian, Mr Fraser gave him a history of backache, discomfort and stiffness that became noticeable on a regular basis during 1981. He also provided Dr Vivian with a copy of his claims submission to DVA. He based his report on the accuracy of the history given by Mr Fraser. Included in that history was 30 years of low back pain and that his service duties involved lifting, bending, twisting and reaching. He also mentioned the incident in July 1983 when he jarred his back.
Dr Vivian reported that on examination, Mr Fraser’s neck showed a 25% reduction in overall movement. He also said that the plain x-rays taken on 6 March 2008 were normal and that the CT scan of his lumbar spine done on 5 October 2009 was very close to normal with perhaps some minimal anterior bony lipping at L1/2 and L5/S1 and marginal narrowing at L1/2. Accepting Mr Fraser’s history regarding considerable lifting of stores and equipment and that he continued to work after discharge doing work which involved some lifting at times and that his back pain had persisted, he opined:
It is of little or no relevance that his x-rays did not show much in the way of degenerative change. Degenerative changes are primarily a function of genetics and age, and there is not a lot of correlation between the amount of degenerative change and the amount of symptoms a person may have experienced or may experience in the future. However, it could be argued that there has been no serious injury to any intervertebral disc as there is no radiological evidence of substantial disc deterioration
It is not easy to quarantine the low back symptoms and discuss them as a single entity without reference to his other pain problems. He has chronic widespread pain associated with various musculoskeletal problems and in this context has a chronic pain problem.
Dr Lee also reported on Mr Fraser’s cervical and lumbar problems in a report dated 25 November 2013. Dr Lee said:
Following the last visit he has had an MRI scan of the whole spine. There is evidence of mild disc bulge at C5/C6 and C6/C7 level resulting in moderate right neuroforaminal narrowing. This would account for his neck pain and radiating symptoms to the right upper arm. In the thoracic spine there were also focal disc bulges at mid thoracic level but not resulting in any neural compression. In the lumbar spine there was mild disc bulge at L5/S1 level which was in contact with the left S1 nerve root. Otherwise there was no significant compression and no evidence of central canal stenosis.
I discussed the above with Mr Fraser. I suspect that he has a mild lumbar radiculopathy which would account for the occasional numbness and paraesthesia in the left foot. The MRI changes are fairly minimal. The MRI scan may not necessarily identify the cause for his back pain especially if the pain arises from the facet joints.
Dr Lee also mentioned that Mr Fraser told him about the injuries he suffered when in the RAAF. However he gave no opinion about whether those incidents had any effect on his current condition.
Dr Rowe, who examined Mr Fraser on 31 July 2014 expressly for the purposes of his application to the Tribunal, referred to the report prepared by Mr Haig and said he did not agree with his assertion that Mr Fraser’s cervical disc condition or the cervical degenerative disc condition was age-related. He said it was not age-related but rather related to the trauma that Mr Fraser had subjected his body to over a long period of time. In that sense, he referred to the extremely arduous and heavy lifting Mr Fraser claimed he had done while working in stores and logistics. As I have already indicated, Mr Fraser has grossly exaggerated that activity.
The history Mr Fraser gave to Mr Haig, in addition to repeating the incident where he hit his head on the door which was opened unexpectedly and lifting heavy furniture when stationed at Point Cook in 1986, said that his back symptoms started in 1981 because there were bad beds at Amberley where he was then based.
As to the current status of his back, Mr Haig recorded that while Mr Fraser at first complained of intermittent pain across the low back, he later changed his description to one of discomfort. Mr Haig said Mr Fraser mentioned occasional “fluttering” in the right low [sic] back area “like a butterfly”.
On physical examination, Mr Haig noted Mr Fraser was walking with the aid of a walking stick but it was unclear to him why that was so. An examination of Mr Fraser’s cervical spine showed normal posture. There was no tenderness and flexion was normal. Extension was reduced by a complaint of dizziness. Left and right rotations were equal and left and right flexions were equal but again, limited by dizziness.
Examination of Mr Fraser’s lumbar spine showed his gait to be slow and he claimed dizziness and unsteadiness. He was able to heel and toe walk satisfactorily. There was in the lower back a normal lordosis and no scoliosis and no tenderness. All movements were reduced but Mr Haig questioned Mr Fraser’s compliance.
Mr Haig had up to date x-rays performed of Mr Fraser’s cervical spine and lumbo-sacral spine. Those x-rays disclosed that there was a loss of disc height at C5/6 and C6/7 with anterior osteophytes at these levels. The lumbo-sacral spine was well within normal limits and there was no evidence of degenerative change. Accordingly, Mr Haig was of the view that Mr Fraser had cervical spondylosis, there being degenerative changes at two levels. He did not attribute that to the incident when Mr Fraser struck his head in 1983 but said it was age-related degenerative change.
In cross-examination, Mr Thomson suggested to Mr Haig that the injury suffered by Mr Fraser when struck on the head by the door in 1983 was consistent with whiplash injury. Mr Haig disagreed. He said whiplash involved a ‘to and fro’ movement. That was not what was described by Mr Fraser when struck on the head. Despite Mr Thomson suggesting to Mr Haig that the description given by Mr Fraser about being hit on the head which jarred his back and caused him to fall backwards would constitute a basis for finding causation, Mr Haig disagreed. He was firmly of the opinion that was not the mechanism of injury but rather it was degenerative. Mr Thomson also suggested that he may have had degenerative disease which was rendered symptomatic by the blow. While Mr Haig agreed that was possible, however, as Mr Fraser was about 31 years of age at the time of the accident, he was unlikely to have had significant degenerative change at that age. There is of course another problem with Mr Thomson’s suggestion and that is that no degenerative changes are noted in Mr Fraser’s lumbar spine as recently as October 2013 and the changes in his cervical spine first appeared in about 2008. In any event, Mr Haig was of the opinion that the hit Mr Fraser received on his head by the door in 1983 could not possibly have caused damage to his cervical discs. He said that required significant axial force such as being dropped on his head. Simply being struck by the door when standing upright could not exert that kind of force.
In closing submissions, Mr Thomson said that Mr Fraser satisfied factor 6(f) of the SOP concerning Cervical Spondylosis, No. 34 of 2005. That factor refers to having a trauma to the cervical spine within 25 years before the clinical onset of cervical spondylosis. The difficulty I find with that submission is that it is highly questionable whether Mr Fraser in fact suffered trauma to the cervical spine in 1972 or 1983. His service medical documents which refer to those incidents mention a complaint about head pain rather than neck pain. Although this seems to have been assumed by Dr McArthur on the basis of what he was told by Mr Fraser, my careful examination of the hand written notes does not disclose any mention of pain to the neck. Although an x-ray was requested following the examinations on 20 June 1972 and 21 July 1983, it was of the head and not the neck. Therefore, on the balance of probabilities, I find that Mr Fraser did not suffer trauma to the cervical spine as a consequence of being hit on the head by the opening door in 1983. In further support of that finding, Mr Haig referred to the fact that there had to be an axial force to cause the damage to Mr Fraser’s cervical spine of which he complained. He mentioned the force required as having a person drop on their head. Plainly, that was not the direction of the force exerted on Mr Fraser’s head when the door struck him. In fact, Mr Thomson suggested whiplash which was also discounted by Mr Haig. It is the consistency of the opinion of Mr Haig regarding the mechanism of injury required and the medical report itself made by the medical officer in 1983 which reinforces my finding.
As for Mr Fraser’s claim regarding lumbar spondylosis, the SOP relied on by Mr Thomson was that concerning osteoarthritis, No. 14 of 2010. Factor 6(f) again refers to having trauma to the affected joint within the 25 years before the clinical onset of osteoarthritis in that joint. I am uncertain as to why I was referred to that SOP when there is a SOP concerning Lumbar Spondylosis. The current instrument is No. 63 of 2014 which refers to having trauma to the lumbar spine at least one year before the clinical onset of lumbar spondylosis, and where the trauma to the lumbar spine occurred within the 25 years before the clinical onset of the disease (factor 6(g)). That Instrument revoked the previous SOP which was in force, namely, No. 38 of 2005 as amended by a number of subsequent instruments. Essentially, that instrument referred to having a trauma to the lumbar spine within 25 years before the clinical onset of lumbar spondylosis (factor 6(f)).
There are number of problems with this aspect of Mr Fraser’s claim. I have already referred to Mr Fraser’s exaggeration of the claimed heavy lifting he was required to do in the course of his defence service. Furthermore, Mr Fraser complained of low back pain before the claimed period of heavy lifting at Point Cook which occurred in 1986. In fact, the earliest reference I’m able to locate to lower back pain is in the report of Mr Ralston on 26 September 1983 where Mr Fraser complained of low back pain of two years duration. Also, I should mention that following the incident where he was struck on the head by the opening door, his service medical documents mention that he jarred his back. Presumably, that was caused by moving rapidly backwards on a staircase and missing one step as he did so. However, that did not seem significant because when asked in his evidence in chief on two occasions whether he suffered any pain in his back prior to 1983 he denied that was the case. I am also concerned that he made no mention of any back injury in his Discharge Health Statement. The very purpose of that statement is to assist medical examiners should subsequent problems arise relating to any disabilities a service person may have suffered during the course of service. Those reasons lead me to find that, on the balance of probabilities, Mr Fraser’s claimed lumbar spondylosis was not defence caused.
CLAIM FOR INCREASING RATE OF PENSION
Given my findings regarding Mr Fraser’s claimed medical conditions, I cannot make any decision regarding the rate of pension which Mr Fraser claims should be paid to him. The VRB allowed Mr Fraser’s claim for bilateral metatarsalgia and found that he was entitled to a pension for incapacity caused by that ailment. It remitted the matter to the Commission for assessment of the rate which his pension should be paid. I would not disturb that decision.
CONCLUSION
I have found that Mr Fraser’s claimed conditions of GORD, hiatus hernia, osteoarthritis of the left acromioclavicular joint of the left shoulder, lumbar spondylosis, Meniere’s disease, cervical spondylosis and rotator cuff syndrome of the left shoulder are not defence caused as that expression is understood in the VE Act. They did not arise out of nor were they attributable to any defence service performed by Mr Fraser.
It necessarily follows that I find the decision made by the VRB on 4 April 2013 regarding the claimed conditions was correct. Furthermore, the VRB’s decision to remit the matter to the Commission for assessment of the rate at which the pension should be paid to Mr Fraser following its favourable decision regarding bilateral metatarsalgia was also correct. I affirm both decisions.
I certify that the preceding 117 (one hundred and seventeen) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member .............................[sgd]...........................................
Associate
Dated 20 May 2015
Date(s) of hearing 7 - 8 April 2015 Counsel for the Applicant Mr C Thomson Solicitors for the Applicant KCI Lawyers Advocate for the Respondent Mr K Rudge Solicitors for the Respondent Advocacy Section, Department of Veterans' Affairs
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