Kenneth Bowen and Repatriation Commission

Case [2014] AATA 36

[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 1194

Woodward 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

  1. 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.

  2. 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. 

  3. 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.

  4. 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).

  5. 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.

  6. The Applicant seeks review of the VRB’s decision.

    ISSUE BEFORE THE TRIBUNAL

  7. The Applicant conceded that he cannot meet any of the factors in the Statement of Principles (“SoP”) for spondylolisthesis and, at…

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Kenneth Bowen and Repatriation Commission [2014] AATA 36
Case
[2014] AATA 36
Decision Date

CaseChat Overview and Summary

In the case of Kenneth Bowen and Repatriation Commission, the applicant, Mr Bowen, sought a review of a decision made by the Repatriation Commission regarding his claim for a disability pension. Mr Bowen claimed that his lumbar spondylosis and intervertebral disc prolapse were war-caused and therefore entitled to pension benefits. The Commission rejected his claim, prompting Mr Bowen to seek a review of the decision by the Administrative Appeals Tribunal.

The central legal issue in this case was whether Mr Bowen's intervertebral disc prolapse (IDP) and lumbar spondylosis were war-caused conditions. The Tribunal had to determine if the relevant Statements of Principles (SoPs) applied to the applicant's conditions and if there was sufficient evidence to support a finding that these conditions were connected to his war service. Additionally, the Tribunal needed to consider whether the Commission's decision was legally sound and supported by the evidence.

The Tribunal examined the evidence provided by the medical experts, including Dr Millons and Dr Guirgis. Dr Millons testified that IDP and lumbar spondylosis are distinct pathologies, with lumbar spondylosis involving degenerative changes in the intervertebral discs and IDP involving disc protrusion. Dr Guirgis, however, argued that IDP was part of the lumbar spondylosis entity. Despite these differing opinions, the Tribunal found that the definition of lumbar spondylosis in the SoPs did not encompass IDP. The Tribunal concluded that Mr Bowen's IDP was a result of the degenerative changes rather than being the cause of those changes. Given that lumbar spondylosis had already been accepted as a war-caused disability since 2008, the Tribunal affirmed the Commission's decision, finding that Mr Bowen's other diagnosed back conditions were not war-caused.

The Tribunal's decision was based on the evidence that Mr Bowen did not meet the factors in the SoP for IDP and, therefore, his claim for back pain could not be considered war-caused. The Tribunal held that the Commission's decision was legally sound and supported by the evidence presented. The decision under review was affirmed, and no further pension benefits were awarded to Mr Bowen for his claimed conditions.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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

Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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.