Kitson and Repatriation Commission

[2009] AATA 656

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 656

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2009/0698

VETERANS' APPEALS DIVISION		)
Re		COLIN KITSON

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Dr P McDermott, RFD, Senior Member

Date1 September 2009

PlaceBrisbane

Decision The Tribunal sets aside the reviewable decision and substitutes the decision that Colin Kitson’s cervical spondylosis is defence-caused within the meaning of section 70 of the Veterans Entitlements Act 1986 with effect from 7 October 2007.  The Tribunal remits the matter to the respondent for the assessment of disability pension.

......................[sgd]........................

Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – eligible defence service – claim for cervical spondylosis – consideration of Statement of Principles – decision under review set aside.

Veterans’ Entitlements Act 1986 (Cth), ss 70, 196B

REASONS FOR DECISION

1 September 2009 Dr P McDermott, RFD, Senior Member  

introduction

1.      Mr Colin Kitson served with the Royal Australian Air Force (“RAAF”) from 1969 until 1990.  He claims that his cervical spondylosis condition is caused by an injury that he sustained in 1980 during his service with the RAAF.  I have to determine whether Mr Kitson sustained a trauma to the cervical spine during that 1980 incident.  If he did, then under the relevant Statement of Principles (“SoP”) it can be said that, on the balance of probabilities, degenerative changes to his cervical spine could have followed later in his life.  I consider that his claim should succeed as I am reasonably satisfied that Mr Kitson did indeed sustain such a trauma.

the incident

2.      Mr Kitson stated that on 4 November 1980 he was loading 80 kg nitrogen bottles onto a trolley.  He was standing on a concrete tarmac between aircraft hangers.  Four bottles, one at a time, were lifted onto the trolley by Mr Kitson and another person.  The other person working with Mr Kitson was attempting to line up the connecting valve on a bottle with the connections on the trolley by rolling the bottle.  This action twisted Mr Kitson’s back and he fell on to the trolley: his lower back come into connection with the trolley and the back of his neck came into contact with a trolley wheel.

statement of principles

3. Causation is provided for under s 70 and s 196B of the Veterans’ Entitlements Act 1986 (“the Act”).  Mr Kitson must demonstrate a connection between his service and his condition. Such a connection will exist if a “trauma to the cervical spine” (as defined in the applicable SoP) arose out of or was attributable to service; or if such trauma was contributed to in a material degree or was aggravated by service.

4.      The applicable SoP concerning cervical spondylosis is Instrument No 34 of 2005.  The relevant factor in contention is 6(f), which states that cervical spondylosis is more probably than not connected with the circumstances of a person’s service where a person had “a trauma to the cervical spine within the twenty-five years before the clinical onset” of that condition.

clinical onset of cervical spondylosis

5.      That Mr Kitson suffers from cervical spondylosis is not in dispute.  The respondent also conceded that the clinical onset of that condition was within 25 years of the 1980 incident.  I am satisfied that the concessions by the respondent are properly made.  This is because in evidence before me is a report of Dr Peter Winstanley, orthopaedic surgeon, made on 24 January 2008.  In that report, Dr Winstanley states that an X-ray of Mr Kitson’s cervical spine shows evidence of spondylosis present within his cervical area at the C5/6 and 6/7 levels.  Dr Winstanley is of the opinion that “the date of onset of his cervical spondylosis would have been over a period of time”.[1]

[1] T4, fol 142.

trauma of the cervical spine

6.      In issue is whether Mr Kitson sustained a “trauma to the cervical spine” within the meaning of that expression in SoP No 34 of 2005.

7.      The expression “trauma to the cervical spine” is defined in clause 9 of the SoP as being:

a discrete injury … to the cervical spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and that medical intervention involves either:

(a)       immobilisation of the cervical spine by splinting, or similar external agent; or

(b)       injection of corticosteroids or local anaesthetics into the cervical spine; or

(c)       surgery to the cervical spine.

8.      I am required to determine whether Mr Kitson sustained a “trauma to the cervical spine” as defined in the SoP.  I need to be reasonably satisfied that Mr Kitson sustained a discrete injury to the cervical spine and that within 24 hours he developed signs and symptoms of pain and tenderness, as well as either altered mobility or range of movement of the cervical spine.  These signs and symptoms must have lasted for at least 10 days—except if medical interventions mentioned in the definition occurred.  I find that none of those medical interventions occurred at or after the time of the incident.

9.      I am reasonably satisfied that Mr Kitson suffered a “discrete injury” to his cervical spine.  The evidence of Mr Kitson, which I accept, was that his neck hit a trolley wheel (a pneumatic tyre).  During the hearing, I remarked that a pneumatic tyre would be a hard object when inflated.  It is also important to appreciate that the weight of the 80 kg bottle would have contributed to the force with which his neck hit the pneumatic tyre.  I also consider that, as he struck his lower back in the fall, it would be more probable than not that his neck would also have been in contact with some part of the trolley.  I should also mention that Mr Kitson indicated in his evidence that the 80 kg bottles were taller than him.  On this basis, I accept that the bottles would have been difficult to move.

10.     I am reasonably satisfied that Mr Kitson developed signs and symptoms of pain and tenderness within 24 hours of the injury.  In his unchallenged evidence, Mr Kitson stated that on the day after the incident, his neck and back were tender and painful.  The service medical records of 5 November 1980, the day after the incident, state that Mr Kitson’s “back went when manipulating gas bottle yesterday” and that he had “pain in lower thoracic upper lumbar region”.[2]

[2] T4, fol 6.

11.     It is true that the service medical records do not contain any record that Mr Kitson had pain in the cervical spine.  The service medical records do, however, disclose that the pain was widespread and not just located in one or two particular sites of the spine.  I accept Mr Kitson’s unchallenged evidence that he had pain in the cervical spine at that time.  I also accept the submission of Mr Harding, who appeared for Mr Kitson, that it is understandable that the service medical records would record the area in which the veteran had complained of the greatest pain.  I also note that the service medical records do not record which area of the spine was bruised.

12.     Mr Kitson stated that his entire back was as “stiff as a board” after the injury.  This evidence, which I accept, satisfies the requirement that he must have an altered mobility of the cervical spine.  The medical records confirm that after the incident “spinal flexion not possible”.[3]  This, in my view, is corroboration of the evidence of Mr Kitson that there was altered mobility of the spine, including the cervical spine.  The reference to “spinal flexion” could fairly be regarded as a reference to the movement of the whole spine. I am reasonably satisfied that, after the incident, Mr Kitson had either altered mobility or range of movement of the cervical spine.

[3] T4, fol 6.

13.     I am also reasonably satisfied that, after the incident, Mr Kitson had signs and symptoms lasting for at least 10 days.  This 10 day period is required under the SoP because I have already found that no medical interventions occurred of a kind described in the definition of “trauma to the cervical spine”.  I have already referred to the fact the service medical records reveal that, on the day after the incident, he had pain in the spinal area.

14.     The service medical records state that Mr Kitson was admitted to “sick quarters” on 5 November 1980.[4]  The service medical records also state that Mr Kitson was still experiencing pain in his lower back and had “spent 3 days in bed” on 12 November 1980.[5]  An entry in the service medical records on that day also contains a notation which appears to read “For admission”. I make an inference from this entry that Mr Kitson was again admitted to the sick quarters.

[4] T4, fol 6.

[5] T4, fol 6.

15.     On the basis of the service medical records, Mr Kitson had “signs and symptoms of pain” for at least 9 days, from 4 November 1980 to at least 12 November 1980.  However, the fact I have concluded that on 12 November 1980 Mr Kitson had pain requiring his admission to sick quarters leads me to make the inference that the pain would have lasted for at least another day, if not more.

16.     Accordingly, I find that Mr Kitson meets the requirement of having a “trauma to the cervical spine” and that he satisfies factor 6(f) of the SoP for cervical spondylosis (Instrument No 34 of 2005).  His claim in my view should therefore succeed.

17.     I wish to comment upon the fact that Mr Kitson did not disclose any neck pain on his discharge medical.  The discharge medical document was before the Veterans’ Review Board but not, for some reason, in the “T-Documents” that are before me.  The fact that neck pain was not recorded some 10 years after the trauma is not in my view decisive.  This is because cervical spondylosis is a degenerative condition.  The SoP provides that clinical onset of the condition is required to occur within 25 years of the trauma to the cervical spine.  The fact that the condition was not manifest some 10 years after the incident does not bar the claim of the veteran.

decision

18. The Tribunal sets aside the reviewable decision and substitutes the decision that Colin Kitson’s cervical spondylosis is defence-caused within the meaning of section 70 of the Act with effect from 7 October 2007. The Tribunal remits the matter to the respondent for the assessment of disability pension.

I certify that the 18 preceding paragraphs are a true copy of the reasons for the decision herein of Dr P McDermott, RFD, Senior Member.

Signed:.............................[sgd]..................................................
              Mátyás Kochárdy, Research Associate

Dates of Hearing  7 July 2009 and 20 August 2009
Date of Decision  1 September 2009
Counsel for the Applicant         Mr Anthony Harding
Solicitor for the Applicant          Mr John Cockburn
Solicitor for the Respondent     Mr Jeff Kelly, Departmental Advocate