LANCE McNAMARA and REPATRIATION COMMISSION
[2009] AATA 583
•6 August 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 583
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/4765
VETERANS' APPEALS DIVISION ) Re LANCE McNAMARA Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member Date6 August 2009
PlaceMelbourne
Decision The decision under review will be affirmed.
..............................................
John Handley
Senior Member
CATCHWORDS – Veterans’ entitlements – Applicant suffered back pain following heavy landing in a parachute exercise in 1979; service also exposed him to frequent episodes of heavy lifting; discharged in 1980; engaged in heavy employment subsequently; attended doctor in 2005; CT scan revealed lumbar disc prolapse; whether it arose out of service; clinical onset in 2005; decision affirmed.
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
Robertson and Repatriation Commission (1998) 50 ALD 668
Witten and Repatriation Commission [1998] 54 ALD 605
REASONS FOR DECISION
Mr John Handley, Senior Member 1. Mr McNamara applies to review a decision made by the Veterans' Review Board (VRB) on 19 July 2007. The VRB then decided to affirm a decision previously made by the Respondent that the condition of intervertebral disc prolapse at L4/L5 was not service related. The Respondent also made a decision with respect to the condition of osteoarthrosis of both sacroiliac joints. The VRB decided to adjourn the hearing with respect to that condition and when it reconvened at a later date, it was decided that the condition was service related.
2. Accordingly this review is only concerned with the decision concerning the intervertebral disc prolapse.
3. Mr McNamara is presently 54 years of age. He was a member of the Australian Army between 20 April 1977 and 19 April 1980. For a period of time he was a member of the Special Air Service Regiment (SASR). He presently receives disability pension at 70% of the general rate with respect to the accepted conditions of bilateral sensori-neural hearing loss, bilateral tinnitus, fractured nose, osteoarthrosis of the sacroiliac joints and lumbar spondylosis.
4. The hearing of this application commenced in Bendigo. Mr De Marchi appeared for the Applicant and Mr Rudge appeared on behalf of the Respondent. At the conclusion of the Applicant's evidence the hearing was adjourned and resumed in Melbourne.
5. The applicant was engaged in defence service throughout his enlistment and the provisions of s 120(4) of the VCA Act 1986 apply. A connection between service and injury will be established by the ‘reasonable satisfaction’ (balance of probabilities) standard. The applicant must also satisfy a factor or factors of any Statement of Principle (SoP) in force either at the date of this review or in force during the assessment period.
6. The applicant's case was of disc prolapse either by the trauma of a parachute fall in 1979 and/or the physical lifting and carrying of loads.
7. The SoPs applying are No 40 of 2007 (amended by No 81 of 2008) and No 131 of 1996 (amended by No 93 of 1997).
8. The relevant factors in SoP No 40 of 2007 are:
6(a)having a trauma to the relevant disc within the 24 hours before the clinical onset of intervertebral disc prolapse; or
6(b) …
6(c)physically carrying or lifting loads of at least 10 kilograms, to a cumulative total Load-Factor of at least 300 000, within the five years before the clinical onset of intervertebral disc prolapse; …
and the relevant factors within SoP No 131 of 1996 are:
5(a)suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse; or
5(b)…
5(c)lifting at least 10kg, at least 25 times a day, on average, for a period of at least two years within the five years immediately before the clinical onset of intervertebral disc prolapse; …
9. Having heard extensive evidence from the applicant of the loads he lifted in service, the respondent conceded the cumulative weights satisfied factors 6(c) and 5(c) respectively. It is not now necessary to review the evidence of the loads lifted in service.
10. The parties agreed that the applicant suffers a disc prolapse at L4/5 but it is not conceded by the respondent that it is the relevant disc as described in factors 6(a) and 5(a). The contention of the respondent was of soft tissue injury by the parachute fall.
11. The remaining issue was identifying the occasion of the clinical onset of the disc prolapse. This was the subject of medical evidence which will be summarised later.
the parachute fall
12. In July or August 1999 and whilst taking part in a parachute course in Exmouth in Western Australia, the applicant said he suffered a heavy landing onto his heels, backside and head. He said he had been trained to jump into the wind and then turn into the wind and land on his knees, hips and then roll. This particular jump occurred at night and the applicant said he could not determine his direction. The fall apparently was heavy because his pack was broken (it weighed approximately 50kg) and his rifle was damaged. The incident was witnessed by Michael Connolly and Richard Currie who were colleagues of the applicant and who provided witness statements in support.
13. The applicant said that when he hit the ground he felt tenderness and pain in his back. A patrol medic attended him, inspected his back and gave him some tablets which were learnt at the hearing to be DOLOXENE CO (the applicant retained the bottle of tablets which were given to him and produced the bottle at the hearing). He said that he took some tablets after the bottle was given to him and consumed most of them over the next week to 10 days. The bottle that he produced at the hearing had three capsules remaining. The applicant said he suffered pain in his lower back for two or three weeks and bruising remained apparent for about three weeks.
14. In cross examination the applicant agreed that the parachute fall occurred on the second last day of his course. He also agreed on the following day he was engaged in a 15 to 20km march with full pack. The applicant said that he maintained contact with his unit during the march but he was the slowest person.
15. When he landed, the applicant said he felt jarring in his heels, in his backside and the back of his head. He said it took the wind out of me. He felt pain and tenderness across his lower back between his hips at the belt line. He said he was also tender to touch. He eventually got up to a standing position and he put on his pack. He assumed that he was assisted in doing so because other members of his unit would have known that he was injured and in those circumstances unit members assist each other.
16. One or two days later the applicant and his unit returned to Perth in anticipation of being deployed to Christmas Island. The applicant was in Perth for about two weeks. During the first week he packed and checked all of his gear including refurbishing with ammunition. He also attended lectures on the proposed landing (by parachute) in Christmas Island and the logistics of entry to Christmas Island. (It was learnt that there was political instability on Christmas Island at or about that time). During the first week whilst in Perth the applicant said he would have engaged in lifting and bending but did not lift his full pack. He said he had hot and cold showers as frequently as he was able to ease his back pain. He remembered that when he was bending or lifting he would grimace but he had to appear to be tough because as a member of the SASR he could not be a sook. He did not report his back pain to a regimental aide post or elsewhere because he did not want to miss the opportunity of serving on Christmas Island.
17. During the second week in Perth the applicant was on leave. Eventually it was decided that Australian Forces would not be engaged on Christmas Island.
circumstances subsequent to discharge
18. The applicant said he left the Army in 1980 to assist and eventually take over from his father who was self employed as a stock and station agent. His father then had severe angina. The applicant said he was the only other family member who was a licensed stock and station agent. He described the work as being heavy especially when lifting and marking lambs and sheep weighing between 100 and 300lbs. He was also self employed in a service station in Nowra, NSW where fuel pumps were not fitted. He said fuel was delivered to his service station in 44 gallon drums weighing 210kgs, which were dropped (when full) from the back of a truck onto a tyre resting on the ground. The drum would then be lifted and rested onto its base and then rolled on its lower edge to a garage door. Work of that type was undertaken for between two and three years. He later obtained employment as a paper cutter with APPM which he described as a hard job, where he was required to carry and cut reels of paper. The applicant was later employed in the building industry as a welder, making steel frames which were used in home construction and exported to Japan. More recently the applicant has been employed by Heinz where he has been engaged in heavy lifting of 25kg tubs and boxes of produce and climbing stairs which he estimated he would have undertaken on 250 occasions per shift.
19. The applicant said that he attended a number of physiotherapists and naturopaths because of aching in his back from time to time and in 1995 he attended Dr Campbell, a general practitioner in Nowra, for treatment. The applicant said his attempts to obtain his clinical files from Dr Campbell have been unsuccessful because they have been destroyed.
20. In cross examination, the applicant was taken to the clinical notes of the Nish Street Clinic in Echuca where he had attended for treatment on a number of occasions throughout 2005 because of left sciatica. He said the pain then suffered was severe and he was incapacitated with certificates for about four weeks. He did not claim workers' compensation from any of his employers with respect to any back pain but did claim incapacity payments from a private insurer in 2005. He said he did not claim workers' compensation from his employer because his back injury occurred whilst he was engaged by the Army.
21. The applicant said that he has had x-rays taken of his back on a number of occasions since he was discharged from the Army and has retained the films. He said they were shown to Mr Horton, an orthopaedic surgeon in Shepparton to whom he was referred by the Nish Street Clinic in 2005. He said the films were also shown to Dr Marshall to whom the applicant was referred by the respondent. The applicant said that he attended Mr Horton on one occasion only. He later had acupuncture treatment which he said helped.
22. Subsequent to discharge the applicant said that he has always had backache on activity and it was noticeable during each day. He said the backache eased at night and he frequently had hot baths to relieve pain.
hugh hadley
23. Mr Hadley is a retired orthopaedic surgeon who provided a report to the applicant's solicitors on 8 September 2008 on the basis of papers provided to him. He did not examine the applicant or take a history.
24. In his report he concluded that it was very probable that the parachute incident in 1979 caused damage to the right and left sacro iliac joints and to lumbar discs contributing to degeneration of them and to the later development of his right and left sacro iliac joint arthritis and to prolapse of his L4/5 disc.
25. Mr Hadley said that when he was in practice it was common for patients to give him a history of first attending non medical practitioners – for example, physiotherapists or chiropractors - and later to attend a doctor for treatment. He noted that the applicant first attended for treatment of back pain from a doctor in 2005 and said that the clinical onset of the applicant's intervertebral disc prolapse occurred between these dates.
26. Mr Hadley said that the likely course of events immediately subsequent to the fall in 1979 would have been the applicant having back pain, later recurring, despite the consumption of painkilling medication. He said the applicant would have suffered other episodes of back pain brought on by activity similar to the history given to the doctors at the Nish Street Clinic in Echuca in 2005 when the L4/5 prolapse was then diagnosed by CT scan. He said that the applicant would have suffered a disc injury at the time of the fall, which would not have healed and subsequent episodes of heavy lifting and other activity would have caused an aggravation to the disc which would have set in train an irreversible degenerative process ultimately being responsible for the disc prolapse and the referred pain to his legs.
27. In cross-examination, Mr Hadley agreed that the first occasion where disc prolapse was radiologically determined was in 2005. However, he was of the opinion that it could have occurred earlier despite the absence of left or right nerve root impingement. He said the applicant could have previously suffered a central lumbar disc prolapse which would have been responsible for his recurring pain. He noted that the applicant must have fallen to the ground with considerable force having regard to the damage to his backpack and the damage to his rifle. He was also of the opinion that the finding of thoracic pain in 1980 (T-documents, pages 20 & 21) could have been mistaken for pain in the applicant's lumbar spine or it could have been evidence then of an intervertebral disc being injured at a level higher than the lumbar region.
28. Mr Hadley agreed that if the applicant had suffered a lumbar disc prolapse at the occasion of his fall in 1979, he would not have been able to subsequently complete a long march and carry a heavy pack. He said that it was not his opinion that the applicant suffered a disc prolapse at the time of the fall but rather, he suffered a disc injury, which was the commencement of a degenerative process caused by subsequent events of aggravation which was responsible later for the occurrence of the prolapse.
dr geoff markov
29. Dr Markov is a rheumatologist who examined the applicant at the request of the respondent. In a report of 8 April 2008 he expressed an opinion of the clinical onset of the intervertebral disc prolapse having occurred in April 2005.
30. Dr Markov reported, and confirmed in evidence, that on the history given to him, despite the applicant having suffered a heavy fall, that the injuries then experienced were soft tissue bruising only. He said it would have been impossible for the applicant to have then suffered a prolapse, because he would have needed medical attention, he would have been given painkilling medication, it was likely that he would have been confined to barracks and perhaps he may have been hospitalised. He thought it was unlikely, in the absence of that type of treatment, that the applicant, if a prolapse had occurred, would have been able to complete a 20km march carrying a heavy pack.
31. Dr Markov was of the opinion that the prolapse occurred in April 2005 having regard to the history taken by Dr Pillai at the Nish Street Clinic in Echuca where it was reported had not been lifting/running etc. Pain in lower back down front of left thigh and left outer left calf. Can't sit down. Dr Markov could find nothing in the notes of the Nish Street Clinic suggesting any incident or event which would give rise to an intervertebral disc prolapse and thought that the findings at 26 April 2005 were consistent with either ageing or some other provocation. He could find no evidence of any trauma to explain the severity of the symptoms with which the applicant then presented. He also noted on 9 June 2005 that the applicant gave a history to Dr Hingston, at the same clinic, of severe left sciatica for several months. Having massage physio, relieved by lying flat on stretch table. Using Panadol helps. Request see specialist. Dr Markov said the history then given was typical of a person suffering an intervertebral disc prolapse and the prescription previously of Naprosyn in April and of Gabapentin in June was consistent with the provision of strong painkilling medication.
32. Dr Markov also noted that a CT scan of 28 April 2005 was reported as demonstrating a small disc lesion to the right at L4/L5 with prominent anterior osteophytes affecting the sacro iliac joints particularly on the right side. However the history taken by Dr Hingston was of severe left sciatica. In his report, at paragraph 15, Dr Markov recorded that he could not be sure whether the applicant's lower back pain had its origin in the disc prolapse or in a partial fusion of his sacro iliac joints.
33. Dr Markov concluded, on reconstructing the applicant's history, that it was not likely that a disc prolapse occurred in 1979 but rather it was more likely that the prolapse occurred in 2005 when sciatica was then diagnosed.
34. In cross‑examination, Dr Markov said it was impossible to know whether the applicant injured his disc in the fall in 1979 and X-rays then taken would not have assisted. He disputed the assertion that the consumption of Dolexene medication would have masked pain then being suffered but rather his pain would have been reduced. He also disputed the applicant's evidence that he resisted reporting the back injury to medical officers in fear that he would be precluded from travelling to Christmas Island. He said, in the presence of an acute disc prolapse, the applicant would not have been able to undertake any form of manoeuvres as contemplated. He remained of the opinion that the applicant probably did not suffer a disc prolapse in 1979 but more probably suffered soft tissue bruising.
35. Dr Markov agreed that the applicant satisfied the clinical definitions of intervertebral disc prolapse as appear in both SoPs of 1996 and 2007. However, local pain or stiffness as appearing in the definitions could be caused by soft tissue bruising and a number of other injuries, not disc prolapse alone. Additionally, he agreed with the trauma definition appearing in both SoPs but noted that satisfaction of those definitions was subject to a finding of an injury to the affected intervertebral disc (2007 Instrument) or the particular prolapsed intervertebral disc (1996 Instrument).
36. On balance, Dr Markov was of the opinion that the applicant suffered pain following his fall in 1979, he recovered from it (because he was able to complete a lengthy march), he did not seek medical treatment and his symptoms settled after two or three weeks.
Conclusion and Reasons for Decision
37. In order to succeed in this review, Mr McNamara needs to demonstrate on the balance of probabilities that the clinical onset of his intervertebral disc prolapse occurred at a particular time or within a particular timeframe. Both SoPs require the clinical onset of the prolapse to have occurred within five years of the activity of lifting heavy loads (1996 Instrument at factor 5(c) and the 2007 Instrument at 6(c)). To the extent that the applicant claimed that the prolapse occurred by the trauma of the parachute fall, it will only be established on the balance of probabilities if that trauma occurred at the time of the clinical onset by factor 5(a) of the 1996 Instrument or within 24 hours of the clinical onset by factor 6(a) of the 2007 Instrument.
38. For reasons which follow I am satisfied that the clinical onset of the intervertebral disc prolapse occurred in 2005 when the applicant was attending the Nish Street Clinic in Echuca and when radiology demonstrated the presence of a prolapse.
39. I am satisfied and find as a fact that the applicant did have a very heavy fall in the parachute event which caused him considerable pain, discomfort and distress. But he did not have medical treatment nor was he hospitalised. He completed a 20 kilometre march with full pack on the following day. In the T-documents at pages 70, 71, 76, 77 & 80 on various questionnaires completed by the applicant he has recorded that he suffered pain and stiffness in his lower back for 10 days and then endured a slight limp. He remained enlisted and was discharged two years later but not for reasons associated with injury. He was 25 years at the time of the fall. He was 51 years of age in 2005 when he attended the Nish Street Clinic, 26 years after the fall.
40. Between discharge and 2005 the applicant, as a civilian, worked as a stock and station agent, manoeuvring and lifting livestock, owned a service station where he manoeuvred 44 gallon drums of petrol, he worked as a builder and welder assembling steel frames for housing, he lifted reels of paper at APPM, and worked at Heinz where he lifted tubs and cartons of produce. There was also a reference in the T-documents at page 20 of attending a doctor in March 1980 with a complaint of back pain having lifted an outboard motor.
41. I am satisfied and find on the balance of probabilities that it is improbable that if the applicant had suffered an intervertebral disc prolapse in 1979, he would have been able to undertake the above work and activity for 26 years until 2005 in the presence of a disc prolapse and when he then suffered incapacity.
42. Despite Mr Hadley not ever having examined the applicant, and it not being known what documents he observed or considered when he formulated his opinions, his conclusions under cross examination are probably sound, namely that the applicant did not suffer a disc prolapse in the parachute fall, that had that occurred he would not have been able to complete the march with his pack on the following day, that a degenerative process was then set in train, and subsequent aggravating events were responsible for the prolapse.
43. It follows that I also agree with the opinions reported and tested in examination by Dr Markov that soft tissue bruising only was probably suffered following the fall and subsequent events or some precipitating event at or about April 2005 was responsible for the presentation to the Nish Street Clinic.
44. I am disappointed that an opinion was not provided by Mr Horton, an orthopaedic surgeon to whom the applicant was referred by Dr Pillai. Mr Horton has been in practice for many years and is a senior and well-qualified orthopaedic surgeon. The reasons for the absence of his opinion are not known but the commonality of conclusions reached by Mr Hadley and Dr Markov satisfy me, on the balance of probabilities, that the clinical onset of the disc prolapse did not occur within the time frames prescribed by each of the SoPs. The opinions expressed by Ms Cahir, an acupuncturist (Exhibit A8), Mr McLindon, a chiropractor (Exhibit A9) and Mr Hope, a natural therapist (Exhibit A10) are not helpful and have not assisted in reaching the above conclusions.
45. In Robertson and Repatriation Commission (1998) 50 ALD 668, the Tribunal, at paragraph 23, decided:
…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
(Refer also Repatriation Commission v Cornelius [2002] FCA 750; Lees v Repatriation Commission [2002] FCAFC 398).
46. The above passage from Robertson is no less relevant by its reference to a disease. A conclusion of equivalence can be made in the present case concerning an injury. I would also add that clinical onset is referable to the presence of symptoms of the claimed injury. The onset, clinically, cannot occur before the symptoms are manifested (refer Witten and Repatriation Commission [1998] 54 ALD 605). In the present case, the symptoms (subsequently confirmed on radiology) were of the clinical onset of disc prolapse in 2005.
47. In conclusion, Mr De Marchi submitted that extracts from a Panel which reviewed the health of SAS members should be put to Dr Markov. I decided during the hearing that the report was not relevant to this review, in particular, the conclusions reached at paragraph 43 of the report, that there appeared to be a disincentive for reporting injuries because of the risk of discharge if deemed medically unfit and a strong cultural pressure on a ADF personnel not to complain about injury. Sentiment of that type is not unique to members of the SAS and is frequently heard in veterans’ appeals. Veterans, in my experience, frequently give a history of stoicism and a reluctance to report injury, often in fear of being perceived negatively by their peers. Consequently they may confront difficulties in proving injury later in life in the absence of documentation. But all applications are heard and treated on their merits and histories subsequent to the precipitating injury are examined and findings are made either on the balance of probabilities or on the reduced standard of reasonable hypothesis.
48. In the present application, on the evidence of the Applicant, the evidence of Drs Hadley and Markov, by regard to the applicable SoPs and the many documents lodged, I am not satisfied on the balance of probabilities that the intervertebral disc prolapse suffered by the Applicant is connected with the circumstances of his service.
49. In those circumstances the decision under review will be affirmed.
I certify that the 49 preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior MemberSigned: .....................................................................................
Grace Carney Personal AssistantDate of Hearing 10 February & 11 May 2009
Date of Decision 6 August 2009
Counsel for the Applicant Mr D De Marchi
Solicitor for the Applicant De Marchi & Associates
Counsel for the Respondent Mr K Rudge
Solicitor for the Respondent DVA Advocate
0