Kenneth Bowen and Repatriation Commission
[2014] AATA 36
•29 January 2014
[2014] AATA 36
Division VETERANS' APPEALS DIVISION File Number(s)
2012/5224
Re
Kenneth Bowen
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Ms N Isenberg, Senior Member Date 29 January 2014 Place Sydney The decision under review is affirmed.
................[sgd]........................................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – disability pension – lumbar spondylosis and intervertebral disc prolapse – application of Statements of Principles – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) s 120
CASES
Benjamin v Repatriation Commission (2001) 70 ALD 622; [2001] FCA 1879
McKenna v Repatriation Commission (1999) 86 FCR 144; [1999] FCA 323
Re Stott and Repatriation Commission [2011] AATA 677
Repatriation Commission v Budworth (2001) 116 FCR 200; [2001] FCA 1421
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160
SECONDARY MATERIALS
Statement of Principles concerning intervertebral disc prolapse No. 39 of 2007
Statement of Principles concerning lumbar spondylosis No. 37 of 2005
REASONS FOR DECISION
Ms N Isenberg, Senior Member
29 January 2014
BACKGROUND
The Applicant, Kenneth Bowen, served in the Australian Army from 2 February 1966 to 1 February 1968. He rendered operational service between 7 January 1967 and 13 December 1967 in Vietnam.
In November 2008 the Applicant lodged a claim for “back condition”. In support of his application was a CT scan report of his lumbar spine dated 15 October 2008 which concluded:
Spondylolisthesis at L5/S1 level and a small central disc protrusion at L4/5 level. No significant narrowing of the thecal sac or exit foramina.
The “diagnosis” of the condition by the Applicant’s GP in the claim form referred, somewhat untidily, to L5/S1 spondylolisthesis, L4/5 disc protrusion, L3/4 disc bulging and right-sided sciatica. Notwithstanding that neither the CT scan nor the GP’s diagnosis included any reference to lumbar spondylosis, the Respondent determined, in its decision of 27 August 2009, that the appropriate diagnoses answering the Applicant’s claim were lumbar spondylosis, spondylolisthesis, and intervertebral disc prolapse (“IDP”) at L4-L5. Lumbar spondylosis was found to be war-caused, but the other two back conditions were rejected.
On 20 October 2010 the Applicant lodged another claim for “back pain”. The medical diagnosis stated on this claim form was “lumbar spondylosis and spondylolisthesis L5/S1”. In determining this claim the Respondent found that the appropriate medical diagnoses were spondylolisthesis and IDP at L4-L5, and rejected both conditions. As lumbar spondylosis was already an accepted disability the delegate did not consider this condition (other than to give it an impairment rating in the course of assessment).
The Applicant sought review by the Veterans’ Review Board (“VRB”). The VRB agreed that the appropriate diagnoses of the Applicant’s claimed “back pain” were spondylolisthesis and IDP, and affirmed the Respondent’s decision.
The Applicant seeks review of the VRB’s decision.
ISSUE BEFORE THE TRIBUNAL
The Applicant conceded that he cannot meet any of the factors in the Statement of Principles (“SoP”) for spondylolisthesis and, at the hearing, withdrew his application for review in relation to that condition.
The Applicant also conceded that he cannot meet any of the factors in the SoP for IDP, but contends that that condition is “part and parcel” of his accepted lumbar spondylosis, and not a separate condition. This is the only issue before the Tribunal.
STATEMENTS OF PRINCIPLE
The relevant SoPs are as follows:
·No. 39 of 2007 (as amended) which defines IDP, relevantly, as:
protrusion, herniation or rupture of the nucleus pulposus or annulus fibrosis of an intervertebral disc into the vertebral canal of the ... lumbar spine, causing:
(i)local pain or stiffness
(ii)clinical evidence of nerve root compression; or
(iii)clinical evidence of spinal cord compression.
...
·No. 37 of 2005 (as amended) which defines lumbar spondylosis, relevantly as:
degenerative changes affecting the lumbar vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression ...
MEDICAL EVIDENCE
On 18 March 2013, Dr Millons, orthopaedic surgeon, wrote that Mr Bowen suffers three back conditions:
·Grade 1 spondylolisthesis of L5 on S1;
·Intervertebral disc prolapse at L4/5;
·Associated lumbar spondylosis.
In his report of 10 April 2013, Dr Guirgis, consultant orthopaedic surgeon, referred to an injury at L5-S1 that had contributed to underlying spondylotic changes at that level and, more recently, the level above it. He described lumbar spondylosis as including degenerative changes in the intervertebral disc. He stated:
If one accepts the Lumbar spondylosis as a cause of back impairment one should consider the demonstrated pathology at the L4-5 level as a part and parcel of the lumbar spondylosis entity as a whole.
Dr Guirgis gave evidence that both the SoP for lumbar spondylosis and the SoP for IDP applied to the Applicant’s IDP. He referred to stress loading accelerating normal changes of aging and to the IDP being “part and parcel” of lumbar spondylosis.
He said that:
Lumbar spondylosis means discopathic changes in the disc, changes in the facet joints on the sides and changes in the ligaments and the muscles that render the spine stiffer or less resilient than a normal healthy spine.
When asked as to which diagnosis he would prefer he said if he was writing a diagnosis for a surgical procedure he would write “prolapsed intervertebral disc L4/5”, and would not refer to the lumbar spondylosis, although he would keep this in the back of his mind because of the type of surgery. In cross-examination he agreed that there was a difference between lumbar spondylosis and IDP.
Dr Millons gave evidence that IDP did not fall within the definition of lumbar spondylosis and that they are different pathologies. He said the definition of lumbar spondylosis applies to degenerative changes in the intervertebral disc. The definition does not specifically talk about a disc protrusion; it just talks about degenerative changes in the intervertebral discs, which he said, is part of a general drying out process in the lower lumbar region. It goes on to refer to lumbosacral nerve root compression, one of the causes of which is disc protrusion. He considered the Applicant’s problem relates more to generalised degenerative change in the back where he has problems at L5/S1 with his spondylolisthesis, and he has a degenerative L4/5 disc which is protruding. He considered the disc protrusion is a result of the degenerative change rather than being the cause of the degenerative change, and agreed the spondylosis preceded the disc protrusion. He added that while the definition of lumbar spondylosis in the SoP applies to degenerative changes in the intervertebral disc, it does not apply to an IDP.
CONSIDERATION
The Applicant’s counsel relied on Re Stott and Repatriation Commission [2011] AATA 677 (“Stott”), which was factually somewhat similar to the present matter. Mr Stott had claimed lumbar spondylosis, relying on his GP’s diagnosis and provided an MRI scan which showed a disc protrusion at L1-L2. The Respondent substituted the diagnosis of IDP and rejected his claim in relation to “[IDP] at L1-L2”, apparently relying on the MRI report. The Tribunal found that the issue it had to consider was the correct diagnosis of Mr Stott’s back condition and, hence, the SoP relevant to that diagnosis.
Of the three specialists who prepared reports in Stott, all agreed that Mr Stott suffered from lumbar spondylosis and IDP. Dr Giblin, orthopaedic surgeon, identified “spondylosis encompassing degenerative changes” as the condition affecting Mr Stott’s back and characterised his IDP as all “part and parcel of the same thing - different pieces in a jigsaw puzzle”. He said that spondylosis develops over a long period. Disc protrusions are soft tissue changes.
Dr Millons’ evidence in Stott was that a disc prolapse can be caused either by a sudden injury or by a long term process of degeneration. He said lumbar spondylosis was the more appropriate diagnosis in Mr Stott’s case and described the disc prolapse as the “end point” of his lumbar spondylosis, the disc having “given way”.
The Tribunal in Stott concluded that the definition of lumbar spondylosis in the SoP was so broad as to include the disturbance to Mr Stott’s disc and, on that basis, found that the correct diagnosis was lumbar spondylosis as it covered all the features of Mr Stott’s condition.
The Respondent submitted, somewhat glibly in my view, only that Stott turns on its own facts and cannot be regarded as authority for the proposition advanced by the Applicant in this matter.
According to the World Health Organization’s website the International Classification of Diseases (“ICD”) is the “standard diagnostic tool for epidemiology, health management and clinical purposes. This includes the analysis of the general health situation of population groups. It is used to monitor the incidence and prevalence of diseases and other health problems.” Lumbar spondylosis and IDP have been assigned different ICD codes.
Dr Millons’ evidence in that regard explains the significance of the differing ICD codes:
Well it tells you that you are dealing with two different types of pathology in the lumbar spine. One is the problems with the disc itself and the other one in regard to lumbar spondylosis refers to the degenerate [sic] change that occurs in the spine affecting the intervertebral facet joints and the disc itself. But a disc prolapse refers specifically to damage to a disc and disc protrusion.
Dr Gurigis was critical of the significance of the ICD codes as representing a consensus view, suggesting, in effect, that they were given little weight by treating practitioners. He said, though, that:
Codes means that you are putting them in certain pigeonholes, so it can be the same pigeonhole but in a different level, so they give it another code.
I do not accept that the ICD codes can be so readily put aside. The SoPs refer quite specifically to the various ICD codes which apply with respect to each condition, and there is no overlap.
In Woodward v Repatriation Commission (2003) 131 FCR 473; [2003] FCAFC 160 the Full Court viewed definitions in SoPs in the context of psychiatric conditions and commented as follows:
[113] It seems to us that this is the nub of the problem of how the relevant words in the SoP are to be interpreted. The SoP has been developed by an expert medical panel. It needs to be interpreted against that background. This is particularly so when (as here) the SoP adopts a medical definition which was produced by medical specialists as a diagnostic tool for other medical specialists. That is what this SoP does in its express reference to DSM-IV and ICD-9-CM code. To interpret the SoP as if it were a conveyancing document is to misunderstand the task. What is necessary is to understand what it was intended to convey by those charged with the responsibility for its production. Where it appears that the language has been used with a specialised meaning in a particular area of speciality then the words are to be understood with that meaning…
“Those charged with the responsibility” of creating the SoPs, the Repatriation Medical Authority (“RMA”), is an independent medical body that issues SoPs based on sound medical-scientific evidence. The RMA specifically created two different SoPs for lumbar spondylosis and IDP. The SoP for IDP is not confined to that arising from a sudden injury, and that is also reflected in the factors that establish a causal connection between the condition and service.
Nonetheless, issues of diagnosis are to be determined according to appropriate clinical criteria, and not by reference to any diagnostic criteria that may be included in the SoPs: Benjamin v Repatriation Commission (2001) 70 ALD 622; [2001] FCA 1879 at [41] (“Benjamin”).
The Full Court in McKenna v Repatriation Commission (1999) 86 FCR 144; [1999] FCA 323 at [21] (“McKenna”) saw no difficulty in interpreting s 120A(3) of the Veterans’ Entitlements Act 1986 as allowing an hypothesis to be upheld by more than one SoP. In a concurring judgment in Repatriation Commission v Gorton (2001) 110 FCR 321; [2001] FCA 1194 at [44] (“Gorton”) Heerey J stated:
In respect of the one death or disease or injury a claimant is entitled to advance more than one hypothesis based on more than one SoP.
In Benjamin which was cited in Stott, their Honours set out the process to be followed in dealing with a claim: [54]-[55]. First, the decision-maker is to determine to its reasonable satisfaction whether a veteran suffers from a particular (injury or) disease: Repatriation Commission v Budworth (2001) 116 FCR 200; [2001] FCA 1421. Only then is the decision-maker to consider if there is a SoP for that condition. In this matter there was clear evidence that the Applicant suffers IDP, and there was no dispute that this is a condition from which he suffers. There is a SoP for IDP, which is a condition covered by various quite specific ICD codes. While that condition might have similar features and might affect the impairment and progress of a person’s other back conditions, it is a separate condition to be considered separately for the purposes of entitlement for, and assessment of, pension.
I do not agree with the Tribunal’s approach in Stott. My view is that the Tribunal there took a very restrictive interpretation of Benjamin, which, identifies the process to be adopted and effectively restates the approach in Repatriation Commission v Deledio (1998) 83 FCR 82. I do not understand Benjamin to be authority for the proposition that, where there are clear diagnoses of conditions having quite separate ICD codes, the Respondent (and the Tribunal on review) must select one only from those diagnoses in order to address an applicant’s claim. The concern of the Tribunal in Stott that it would be obliged to “identify every available diagnosis, rather than the most appropriate one in the context of all of the veteran’s symptoms and the opinion of all expert medical witnesses (and within which another separately defined condition fits) and then apply every SoP that is in force in respect of each of those diagnoses”, overlooks the approach approved in McKenna and Gorton. It is irrelevant that the Applicant may suffer other back conditions, in circumstances where there is a clear diagnosis. This differs from Woodward in that there the Tribunal did not have the benefit of a clear diagnosis.
Given that the lumbar spondylosis has been an accepted disability since 2008 the Applicant’s present claim for “back pain” is necessarily a claim for acceptance of his other diagnosed back conditions. As the Applicant conceded that he does not meet the factors in the SoP for IDP, the condition cannot be war-caused. Accordingly, the Tribunal affirms the decision under review.
DECISION
The decision under review is affirmed.
I certify that the preceding 32 (thirty -two) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ................[sgd]........................................................
Associate
Dated 29 January 2014
Date of hearing 29 November 2013 Date final submissions received 13 December 2013 Counsel for the Applicant Mr C Colborne Solicitors for the Applicant KCI Lawyers Counsel for the Respondent Mr G Purcell Solicitors for the Respondent Department of Veterans' Affairs
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