Larsen and Military Rehabilitation and Compensation Commission (Compensation) - [2020] AATA 1882

Larsen and Military Rehabilitation and Compensation Commission (Compensation) [2020] AATA 1882 (22 June 2020)
Division:VETERANS’ APPEALS DIVISION
File Numbers:2015/3752 & 2016/3221
Re:Davin Larsen
APPLICANT

AndMilitary Rehabilitation and Compensation Commission
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:22 June 2020
Place:Brisbane

I affirm the decisions under review.
........................................................................
Deputy President Dr P McDermott RFD
Catchwords
COMPENSATION – Safety, Rehabilitation and Compensation Act (Defence-related Claims) 1988 (Cth) – claims for cervical spondylosis and thoracic spondylosis – whether the injuries arose out of the applicant’s employment – decisions under review affirmed
Legislation
Commonwealth Employees’ Rehabilitation and Compensation Act 1988 Act (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation Act (Defence-related Claims) 1988 (Cth)
Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth)
Statement of Principles concerning thoracic spondylosis No. 64 of 2014 (Cth)
Statement of Principles concerning cervical spondylosis No. 67 of 2014 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Cases
Canute v Comcare (2006) 226 CLR 535; [2006] HCA 47
Comcare v Sahu-Khan (2007) 156 FCR 536; [2007] FCA 15
Costello and Secretary, Department of Transport (1979) 2 ALD 934
El-Terek and Comcare [2009] AATA 72
Matthews and Military Rehabilitation and Compensation Commission [2020] AATA 1728
Rana and Military Rehabilitation and Compensation Commission (2010) 53 AAR 387; [2010] AATA 937
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
22 June 2020
BACKGROUND

The applicant enlisted in the Australian Army (“the Army”) on 4 January 1987 and was discharged on 28 May 1993, and then re-enlisted on 13 September 1995 until 4 September 1998[1] when he was discharged for being medically unfit.
[1] Exhibit A, T-Documents (2015/3752), T56.
On 25 June 1998, the applicant submitted a claim for compensation for a lower back injury as a result of “loading a container of weapons hurt my back when the plt jack got stuck (fell forward awkwardly) SEPT 97”.[2]
[2] Exhibit A, T-Documents(2015/3752), T4.
On 21 August 1998, the respondent accepted liability for “chronic musculo ligamentous low back strain”.[3] Liability was later extended to include a major depressive disorder,[4] irritable bowel syndrome,[5] and lumbar spondylosis under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (“SRC Act”).[6]
[3] Exhibit A, T-Documents (2015/3752), T23.
[4] Exhibit A, T-Documents (2015/3752), T26.
[5] Exhibit A, T-Documents (2015/3752), T26.
[6] Exhibit A, T-Documents (2015/3752), T41.
Claims for cervical spondylosis (2015/3752) & thoracic spondylosis (2016/3221)
On 27 March 2014, the applicant made a claim for “cervical spondylosis (esp: C5, C6, C7)”[7] and “thoracic spondylosis (esp: T4-T10…”[8] stating that his injuries occurred in around 1991 or 1992 during a military skills competition training exercise. In the applicant’s claim form for cervical spondylosis the applicant outlined the injury as occurring as follows: ‘swung out on rope over cargo net, & dropped into net over swimming pool. Landed awkwardly – injured neck’.[9] In the applicant’s claim form for thoracic spondylosis the applicant outlined the injury as occurring as follows: ‘swung out on rope over cargo net and dropped into net over swimming pool. Landed awkwardly injuring neck and middle thoracic spine’.[10]
[7] Exhibit A, T-Documents (2015/3752), T45, p. 191.
[8] Exhibit B, T-Documents (2016/3221), T14, p. 94.
[9] Exhibit A, T-Documents (2015/3752), T45.
[10] Exhibit B, T-Documents (2016/3221), T14.
Cervical spondylosis claim history
On 1 April 2014, the applicant requested that liability for the applicant’s lumbar spinal condition, particularised as “chronic musculo-ligamentous low back strain”, be extended to include cervical spondylosis.[11]
[11] Exhibit A, T-Documents (2015/3752), T46, p. 198.
On 20 June 2014, a delegate determined that there was no liability for cervical spondylosis on the basis that there was insufficient evidence to show that the applicant’s military employment was a significant contributing factor to the contraction of the condition.[12]
[12] Exhibit A, T-Documents (2015/3752), T49.
On 30 April 2015, a delegate affirmed the decision under review to deny liability for cervical spondylosis.[13] The applicant received notice of this decision on 25 May 2015.[14]
[13] Exhibit A, T-Documents (2015/3752), T55.
[14] Exhibit A, T-Documents (2015/3752), T2.
On 24 July 2015, the applicant applied to this Tribunal for review of the decision dated 30 April 2015, which is now the decision under review in application 2015/3752.[15]
[15] Exhibit A, T-Documents (2015/3752), T2.
Thoracic spondylosis claim history
On 13 November 2015, a delegate determined that there was no liability for thoracic spondylosis on the basis that the delegate was not reasonably satisfied that the applicant’s military service contributed, to a significant degree, to the contraction of thoracic spondylosis.[16]
[16] Exhibit B, T-Documents (2016/3221), T25.
On 20 May 2016, a delegate affirmed the decision under review to deny liability for thoracic spondylosis.[17]
[17] Exhibit B, T-Documents (2016/3221), T29.
On 17 June 2016, the applicant applied to this Tribunal for review of the decision dated 20 May 2016, which is now the decision under review in application 2016/3221.[18]
LEGISLATIVE FRAMEWORK
[18] Exhibit B, T-Documents (2016/3221), T2.
Transitional provisions and jurisdiction
I recently addressed, in a distinct matter, the applicable legislative framework when an application for review of a decision made by the respondent under the SRC Act, in respect of a claim made by a member of the Defence Force prior to 12 October 2017, and which becomes subject to an application for review prior to that date, but which is determined following that date. The following paragraphs, 13 to 19, are a reiteration of those principles applied in Matthews and Military Rehabilitation and Compensation Commission and their application to the decisions under review in these proceedings.[19]
[19] [2020] AATA 1728.
The claims processes which ultimately lead to the decisions under review were first commenced on 27 March 2015. On 20 June 2014 and 13 November 2015, the respondent made its primary determinations in respect of the claims. On 30 April 2015 and 20 May 2016, the respondent respectively affirmed those determinations. On 24 July 2015 and 17 June 2016, the applicant filed the applications which are the subject of these proceedings. On those dates the applicable legislative provisions were contained in the SRC Act.
It has been settled since the decision of this Tribunal in Costello and Secretary, Department of Transport that:[20]
… where the nature of the decision under review does not involve a consideration of accrued rights or liabilities but rather involves an investigation whether the applicant has a present entitlement to the grant of a right or privilege… unless the amending law otherwise provides we should apply the law as amended as at the date of our decision.
In my following remarks I explain why Parliament has provided that the current law is applicable to the determination of this application.
[20] (1979) 2 ALD 934, at 944.
On 12 October 2017, Schedule 1 (which is in two parts) and Schedule 2 of the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) (“the Defence Force Amendment Act”) commenced operation.[21] With the commencement of those Schedules came two relevant changes in the law, namely:
(a)The enactment of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (“the DRC Act”); and
(b)The insertion of subsection 5(17) in the definition of “employee” in the SRC Act which provides:
(17)To avoid doubt, a member of the Defence Force is not an employee.
Note:For members of the Defence Force, see the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988.
[21] Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 (Cth) subsection 2(1).
Item 64 of Schedule 1 of the Defence Force Amendment Act provides:
64Claims, applications, requests and other processes begun under the Safety, Rehabilitation and Compensation Act 1988
(1) This item applies if:
(a)a process begun (including by claim, application or request) under a provision of the Safety, Rehabilitation and Compensation Act 1988 before the first commencement time was not completed by that time; and
(b)immediately after the second commencement time, there is a corresponding provision in the Safety, Rehabilitation and Compensation (Defence‑related Claims) Act 1988.
(2)Without limiting its effect apart from this item, the process is also taken, after the second commencement time, to have been begun under the corresponding provision.
Item 62 of Schedule 1 of the Defence Force Amendment Act defines the first and second commencement times as:
first commencement time means the time when Part 1 of this Schedule commences.
second commencement time means the time when this Part commences.
Part 1 of Schedule 1 of the Defence Force Amendment Act provides for the enactment of the DRC Act, while part 2 of Schedule 1 of the Defence Force Amendment Act provides for amendments and transitional provisions which affect the DRC Act. As outlined above, Schedule 1, including parts 1 and 2 thereof, of the Defence Force Amendment Act commenced on 12 October 2017.
I have earlier stated that these applications for review were made on 24 July 2015 and 17 June 2016 respectively. By virtue of the operation of item 64 in Schedule 1 of the Defence Force Amendment Act, the claims of the applicant and these applications for review are taken to have been begun under the DRC Act.
The DRC Act
Subsection 14(1) of the DRC Act relevantly provides:
14Compensation for injuries
(1)Subject to this Part, the Commonwealth is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment…
An “employee” is defined in subsection 5(1) of the DRC Act which relevantly provides:
employee means a member of the Defence Force…
As to the definition of an “injury”, subsection 5A(1) of the DRC Act provides:
injury means:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
A “disease” is defined in section 5B the DRC Act which provides:
5BDefinition of disease
(1)       In this Act:
disease means:
(a)       an ailment suffered by an employee; or
(b)       an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth.
(2)In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth, the following matters may be taken into account:
(a)       the duration of the employment;
(b)       the nature of, and particular tasks involved in, the employment;
(c)       any predisposition of the employee to the ailment or aggravation;
(d)       any activities of the employee not related to the employment;
(e)       any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3)       In this Act:
significant degree means a degree that is substantially more than material.
An “ailment” is defined in subsection 4(1) of the DRC Act which provides:
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether or sudden onset or gradual development).
Sections 6 and 6A of the DRC Act provide guidance in determining whether an injury or disease has arisen “out of or in the course of employment”.
Subsection 7(4) provides:
(4)For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a)the employee first sought medical treatment for the disease, or aggravation; or
(b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
MEDICAL EVIDENCE
Report of Dr Bruce Martin, Orthopaedic Surgeon, dated 6 December 2012
In a report dated 6 December 2012, Dr Bruce Martin, Orthopaedic Surgeon, reported the history of injury given by the applicant.[22] Dr Martin reported that the applicant stated that, while at Bulimba (before Holsworthy), the applicant was using a pallet jack and while attempting to put a box onto the pallet he fell onto his back. Then, soon after that, the applicant was operating a trolley jack and twisted his back. Dr Martin remarked that the applicant indicated that the site of pain was the thoracic spinal area rather than lumbar spinal area.
[22] Exhibit A, T-Documents (2015/3752), T32, p. 143.
Dr Martin considered that the applicant had cervical spondylosis and lower thoracic spondylosis as well as mild lumbar spondylosis. Dr Martin opined that these conditions contributed to his partial incapacity for work. Dr Martin reported that the applicant did not suffer from the accepted condition of “chronic musculoligamentous low back strain”.[23]
[23] Exhibit A, T-Documents (2015/3752), T32, p. 145.
Dr Martin remarked that the applicant received some physiotherapy prior to his discharge from the Army; however, this was of no benefit. The applicant was also then not receiving any treatment. Dr Martin suggested that the applicant should pursue a medical and vocational rehabilitation program with only light physical activity permitted.
Dr Martin considered these restrictions were on the basis of cervical, thoracic and lumbar conditions, not on the basis of “chronic musculoligamentous low back strain” as noted above and commented that:[24]
There were inconsistencies during clinical examination so that the client would appear to be exaggerating a level of disability which does not exist. My evaluation leads me to believe that any incapacity results from his neck, his thoracic spine and his lumbar spine and cannot be attributable to the claimed (accepted) condition, namely ‘a chronic musculoligamentous low back strain’.
Report of Associate Professor H Kerry Outerbridge, Consultant Orthopaedic Surgeon, dated 17 May 2013
[24] Exhibit A, T-Documents (2015/3752), T32, p. 149.
In a report dated 17 May 2013, Associate Professor H Kerry Outerbridge, Consultant Orthopaedic Surgeon, recounted the history given by the applicant of his injuries as follows:[25]
[25] Exhibit B, T-Documents (2016/3221), T5.
·Sometime in 1996, the applicant was loading a shipping container with old weapon parts. The applicant and another worker were attempting to push a pallet jack which was loaded with one tonne or more of equipment when the jack became stuck in a rut on a cement loading platform. As they were pushing the jack it lurched free.
·As a result of the event, the applicant suddenly developed pain in the region of the thoracolumbar junction and had pain radiating into the buttock region as well as down the back of his thighs into the calves of both legs.
·Following this, the applicant went to the Regimental Aid Post, was examined and referred for physiotherapy. The applicant continued to work mainly in a supervisory role and over a period of time, the symptoms gradually worsened.
·The applicant commented that at some stage between 1995 and 1998 he was transferred to the Sydney barracks where he was involved in fairly heavy labouring work which tended to aggravate the back symptoms, to the point where he was unable to do physical training.
·The applicant’s symptoms increased in intensity until his discharge due to ongoing back symptoms.
·Following the applicant’s discharge from the Army, the applicant:
obecame quite depressed;
owas unable to be gainfully employed;
owas unable to do physical work and consequently took up a job caring for children with Lifeline for approximately two or three years;
ohad since been unemployed;
ohad not had surgery to his back nor been referred to a back specialist for treatment;
ohis general practitioner would not prescribe pain medication and he has been accused of doctor shopping; and
ohas had a serious drug addiction problem.
Professor Outerbridge recounted the applicant’s then current symptoms as “constant sharp pain localised to the thoracolumbar region” which was quite localised and did not tend to radiate up his back or down into the lumbar spine but did radiate down the back of his thigh into the calf region. It was noted in the report that the applicant described an altered sensation into the lower limbs and the muscles immediately adjacent to the area of pain which were quite tight and sore. Professor Outerbridge also noted that the applicant denied any history of back symptoms prior to the onset in 1996.
Professor Outerbridge considered that the applicant appeared to have generalised stiffness of the neck and upper and lower limbs with a suggestion that this was more due to the sedentary lifestyle the applicant lived. Professor Outerbridge remarked that the applicant appeared quite depressed and angry that doctors “never believe” him.
Professor Outerbridge opined that the x-rays showed evidence of degenerative changes in the lumbar spine consistent with the applicant’s age and there was no evidence of nerve root entrapment. However, Professor Outerbridge opined that the applicant was partially incapacitated for work mainly due to significant psychological problems and recommended that the applicant attend a psychological assessment but could do some light work such as office duties.
Report of Dr David Hayes, Orthopaedic Surgeon, dated 25 March 2014
Dr David Hayes, Orthopaedic Surgeon, assessed the applicant on 10 March 2014 and gave his report dated 25 March 2014. Dr Hayes considered that after liability had been accepted for lumbar spondylosis, there had been a progression of symptoms and physical changes, as seen in the MRI dated 20 February 2013, which showed that the applicant’s lumbar spondylosis had progressed to the point where spinal stenosis was occurring. Dr Hayes considered that this correlated with the applicant’s description of electric shock type pain down both legs and to the soles of the feet. Dr Hayes opined that the symptomology in the applicant’s lower limbs to which this gave rise constituted an impairment in both lower limbs.
Dr Hayes considered that the applicant suffered secondary sciatica as a result of the progressive worsening of his lumbar spondylosis. Dr Hayes considered that the applicant’s left lower limb and right lower limb each have a Whole Person Impairment (“WPI”) rating of 10 per cent.
Report of Dr Peter Sharwood OAM RFD, Orthopaedic Surgeon, dated 25 July 2014

In his report dated 25 July 2014,[26] Dr Peter Sharwood, Orthopaedic Surgeon, recounted the details of the history given by the applicant surrounding his neck injury as being in relation to a training exercise for a military skills competition in around 1991 which involved jumping from a platform, grabbing a rope and swinging into a cargo net. Dr Sharwood recounted that the applicant, instead of landing in the net, he fell and was struck across the upper thoracic region by the net causing him to hyperextend his neck. Dr Sharwood noted that the applicant recounted that he was then unable to regain balance and fell into the water, however, he attempted again, unsuccessfully, to complete the exercise.
[26] Exhibit A, T-Documents (2015/3752), T51.
Dr Sharwood recounted that the applicant said that for several weeks after this episode he was suffering from neck pain, stiffness and headaches. He had difficulty performing his duties but did not report his injury because he was concerned he would be considered weak and be bullied. The applicant openly admitted to bullying other members because of reported injuries.
Dr Sharwood remarked that the applicant left the Army and between 1993 and 1995, when he worked as a trade’s assistant on oil rigs, which was not a “strenuous” job. Dr Sharwood noted that it was only upon re-entering the Army that the applicant realised he had significant problems with his lumbar spine and was medically discharged.
Dr Sharwood recounted that the applicant: denied having any pre-existing symptoms with his neck or back, confirmed that he is a smoker, stated he ceased drinking in 2013, and had experimented with recreational drugs but never continued their use.
Dr Sharwood recounted that the applicant described his pain in his neck as constant (he rated it 4 out of 10) and had exacerbations of pain into his shoulders and arms (described as electric shocks). Dr Sharwood recorded that the applicant did not sleep well, not necessarily because of his neck and back pain, but because of other mental health problems. The applicant also experienced paraesthesia in the hands at night.
Dr Sharwood recounts that the applicant described the pain in his lumbar area as 6 out of 10, and when exacerbated by bending, lifting and twisting the pain can be 8 out of 10. The applicant described himself as very stiff and sore when he got out of bed in the morning and experienced intermittent pain down both legs (mostly in the calves and the soles of his feet).
Dr Sharwood, after reviewing the applicant and examining the material, including medical imaging scans, considered that the applicant had suffered direct injuries to his thoracic spine and a secondary injury to his neck, most likely in the event described by the applicant to have occurred in 1991. Dr Sharwood considered that the available imaging results confirmed cervical spondylosis of the applicant consistent with him previously suffering a whiplash type injury. Dr Sharwood opined that imaging of the applicant’s thoracic spine revealed direct damage to the T10/11 disc, consistent with having a direct blow to that area. Dr Sharwood considered that the applicant suffered from cervical spondylosis directly related to his military service. Dr Sharwood considered that the applicant had a 5 per cent WPI to the neck with the condition stable and static, and a 10 per cent WPI for the right upper limb and a 10 per cent WPI for the left upper limb in the context of the cervical spine. Dr Sharwood considered that the applicant had a 0 per cent impairment of the right and left upper limbs in relation to grasping, holding and digital dexterity.
Dr Sharwood also commented that the applicant received treatment for his cervical spine at 2 Field Hospital prior to his discharge from the Army and this was recorded in his medical file.
Report of Associate Professor Peter Steadman, Consultant Orthopaedic Surgeon, dated 25 November 2015
In his report dated 25 November 2015,[27] Associate Professor Peter Steadman, Consultant Orthopaedic Surgeon, stated that the applicant reported having an injury in 1990 and was medically discharged in 1998 for problems with his lower back (which he recently realised was his middle back). Dr Steadman reported the history given by the applicant was that in 2011, the applicant’s neck “started playing up” and it was around this time that the applicant started getting pins and needles in his hands with headaches and a feeling of numbness over his head.
[27] Exhibit G.
Dr Steadman reported that the applicant said he had been bullied and a few months before an incident occurred where one of the other soldiers was sent to “rough him up”. The applicant reported that nothing ever “happened” that night but that he was worried about something happening. The applicant also reported that he did not want to complain as he was on a show-cause for his civilian charge for firearms.
The applicant reported to Dr Steadman that in 1990 while he was on a military skills training program involving grabbing a rope and swinging over water, he fell and hit his back on the edge of the cargo rope, suffered whiplash of his head against the rope and then fell into the water. The applicant said to Dr Steadman that he thought he was going to drown and had a sore neck but did he not want to report it. The applicant said that he did not go to the medic or the RAP for any treatment because of the issues with bullying. Dr Steadman recorded that the applicant said he first sought treatment of his neck in 2011.
Dr Steadman considered that a close examination of the documentation did not reveal a specific injury incident in 1991; however, he considered the applicant was suffering from bilateral ulnar nerve neuropathies and upon examination of his neck it was a non-physical disorder. Dr Steadman considered the applicant to have osteoarthritis of the cervical spine and neck, consistent with a person of his age. Dr Steadman considered there to be no evidence that the applicant’s condition arose as a result of the military service that he rendered. Dr Steadman provided a poor prognosis for non-physical reasons.
Supplementary report of Dr Peter Sharwood OAM RFD, Orthopaedic Surgeon, dated 8 March 2016
Dr Sharwood provided a supplementary report after reviewing further material including a report of Dr Steadman. Dr Sharwood maintained his opinion that the injury which was claimed to be sustained by the applicant involving the cargo net was a significant precipitating factor in the causation of the applicant’s diagnosed cervical spondylosis, and which was probably further aggravated by other aspects of military training. Dr Sharwood considered that the degree of cervical spondylosis, described as osteoarthritis of the cervical spine, was more advanced than expected in a patient who had no significant injuries to the neck.
Dr Sharwood also agreed with Dr Steadman that cervical spondylosis is a very common condition and is not necessarily related to trauma however in the applicant’s case, Dr Sharwood attributed the greater degree of cervical spondylosis to the injury as it is more prominent than normally expected.
Report of Dr Price Gallie, Orthopaedic Surgeon dated 5 April 2017
In his report dated 5 April 2017,[28] Dr Price Gallie, Orthopaedic Surgeon, commented that the applicant reported that in relation to the 1991 injury that the applicant “feels as though he recovered from that injury, however it ‘weakened’ his neck and thoracic spine at the time” but he later suffered another injury in 1996 when a trolley jack gave way which “may have been the beginning of pain in his thoracic spine”.
[28] Exhibit E.
Dr Gallie considered that the applicant suffered from a mild to moderate thoracic spondylosis which he considered was a constitutional condition, with no direct relation to any military activity (i.e. degenerative in nature). Dr Gallie considered that despite the applicant referring to events in 1991 and 1996, there was no corroborating evidence in previous reports.
Dr Gallie considered that the applicant had no incapacity due to a work related condition of his thoracic spine; however, he was unable to work due to the combination of the applicant’s cervical and lumbar spine conditions, and his psychological condition. Dr Gallie provided a guarded prognosis on the basis that there was a complexity of multiple physical and psychological conditions.
Further supplementary report of Dr Peter Sharwood OAM RFD, Orthopaedic Surgeon, dated 29 May 2017
On 29 May 2017,[29] Dr Sharwood provided a further supplementary report after reviewing the available material including a report of Dr Gallie. Dr Sharwood maintained his opinion that the applicant’s employment with the Army caused his thoracic spinal injury and considered that the Statement of Principles concerning thoracic spondylosis No. 64 of 2014 at factor 6(g) applied, in that there was a history of thoracic trauma from 1991 which was seven years prior to the reported symptoms.
[29] Exhibit F.
Dr Sharwood disagreed with Dr Gallie’s opinion that the applicant’s condition related to Scheuermann’s disease and was therefore constitutional. Dr Sharwood considered that the changes seen in the imaging undertaken of the applicant’s spine, particularly the disc pathology and the damage to the posterior elements, fit more with the contention that the condition was post-traumatic. Dr Sharwood considered that even if the applicant did have Scheuermann’s disease, the reported injuries in 1997 of higher back pain suggest the onset of symptoms of thoracic spondylosis secondary to kyphoscoliosis caused by Scheuermann’s disease. If this were the case, then this would have meant that the applicant’s military service had aggravated a pre-existing condition, thereby satisfying Statement of Principles concerning thoracic spondylosis No. 64 of 2014 at factor 6(e).
Report of Dr David Rosen, Consultant Neurologist, dated 25 August 2014
In his report dated 25 August 2014,[30] Dr David Rosen recounted that the applicant said that in 1991 injured his neck while serving in the Army and for various reasons did not report the injury. Dr Rosen recounted that the symptoms eventually settled down and “as far as I can tell he made a complete recovery”.
[30] Exhibit A, T-Documents (2015/3752) T52.
Dr Rosen reported that the applicant stated that in 1996 the applicant was involved in stacking military artillery boxes of weapons parts each of which weighed 30 kilograms onto a pallet and then loading them into a shipping container. The applicant told Dr Rosen that on one occasion the applicant attempted to push the trolley jack that was loaded with the boxes into the container as his subordinate was unable to do this. He said that as he twisted and leaned into the load he felt his back “give way” and he instantly fell to the ground due to severe back pain that radiated from the “middle of the back” into the legs to the point he thought he had “broken his back”.
Dr Rosen considered that the applicant presented with consistent, non-specific opioid insensitive chronic pain syndrome, possibly associated with a sensory sensitisation and complicated by depression. Dr Rosen opined that the applicant probably had developed complications from chronic opioid treatments including opioid dependence and opioid-induced hyperalgesia. Dr Rosen suggested that the applicant’s condition should be managed though a multidisciplinary pain management unit.
Dr Rosen considered that the applicant did not have a neurological diagnosis to explain his presentation and did not have sciatic nerve, nerve root or other neurological injury. Dr Rosen considered that the applicant had a chronic widespread non-specific pain syndrome with symptoms widespread “affecting but not limited to head and neck, shoulders, upper and lower back and lower limbs associated with widespread sensory”.
Dr Rosen considered that the applicant’s onset of chronic pain according to his history took place in 1996 as a result of an alleged described injury and the opioid medication complications commenced six years or more prior to his report. Dr Rosen considered that the opioid syndrome developed well after the applicant’s discharge from the Army and was not related directly to his Army service.
Dr Rosen considered that the applicant had minor restrictions of movement in his spine equating to a 5 per cent WPI.
APPLICANT’S EVIDENCE
Applicant’s Statement dated 13 July 1998
In the applicant’s statement dated 13 July 1998 he outlined that:[31]
It was during my posting at SQLG that I sustained the injury to my lower back. Due to the nature of the work and the heavy lifting involved, I believe strongly that this is the reason my back is constantly sore. There were occasions that I would have to move weapons boxes with weights in excess of 90kgs by myself. I know this was not a safe practice, but when you have staff shortages and the job has to get done it becomes common practice.
On another separate occasion I was pushing a pallet of weapons into a conex with a pallet jack, the pallet became stuck and as it did I fell forward awkwardly, hence I hurt my back yet again.
[31] Exhibit A, T-Documents (2015/3752), T5.
Applicant’s Statement dated 5 March 2014
Part of the applicant’s statement dated 5 March 2014 is outlined below:
In approximately 1991, perhaps 1992, while posted to 1^st Field Supply Company, at Holdsworthy Army Base, Holdsworthy in New South Wales, my unit was training for a Military skills competition between the non-infantry Brigade units. Initial training was at Holdsworthy, however the period of training, about six months long, also included us going to the School of Infantry, at Singleton, to do more advanced Military skills training.
Towards the end of the training course, indeed on the last day before return to Holdsworthy, our Sergeant, Glenn Lee, organised our unit section to complete the rope obstacle course which was located above the swimming pool. About 10 men from my unit participated…
I volunteered to go first as I had done the course about one year before on my Corporal’s Course which was designed to qualify me for promotion to the rank of Corporal.
I started this obstacle course activity by climbing up the tower that was part of the course. I got to the top and Private Reynolds was behind me. At the top, I reached out and grabbed the rope which I had to swing out on, unfortunately I grabbed it too high, and then I swung out towards the cargo net which was below and some distance above the surface of the water in the pool. The idea was that after I swung out I had to turn in midair while still holding the rope, then let go of the rope and fall backwards landing in the middle of the cargo net on my back. On landing in the middle of the cargo net on my back I would then climb up it, to tackle the next rope course.
After swinging out on the rope. I let go of the rope, and fell awkwardly, because instead of turning over and landing on my back in the middle of the cargo net, I landed on the edge of the cargo net, on thick roping, with my neck extended backwards over the edge of the net and my back and legs also bent extremely. I then fell off the net into the water in the pool.
Once in the water I knew immediately that I was injured. I was under the water and could not feel my arms and legs. I thought I had broken my spine…
Applicant’s Statement dated 30 September 2015
In his statement dated 30 September 2015, the applicant provided his explanation as to why he did not make a claim for his neck injury earlier. The applicant stated that in 1989/1990 he was charged with a civil offence that sentenced him to a period of two years’ good behaviour. He stated that, as a result, the applicant was given a warning for administrative action from the Army. The applicant explained that he was young and impressionable and made some poor decisions. He stated that in order to give him a fresh start, he was posted to the Holsworthy barracks and for the first six months, he performed well, and was put on a promotion course to the rank of Corporal. The applicant explained that he passed the course but struggled and was criticised by his Sergeant for not asking for more help during the course.
The applicant stated that towards the end of 1991, he had not been promoted to Corporal and there was a lot of bullying in the unit. The applicant remarked that the tension had increased between him and his Sergeant. The applicant explained that:
If people went to the Regimental Aid Post often, or did not complete a physical training (PT) run, or other physical tests, they were seen to be bludging and they copped a hard time from both peers and Military supervisors. I took notice of this practice because I did not want to draw attention to myself due to my past and the fact that I was on an administrative warning…
If a soldier developed a practice of regularly going to a medical centre he quite literally was ostracised openly, called a malingerer or a bludger, and was generally shunned…
I was expected to lead by example, therefore not complain, and simply get on with the job and push others to similarly battle on without complaining or reporting injuries or attending upon the Regimental Aid Post. I was expected to be a mentor and role model and to push others to do things that they would not ordinarily attempt.
The applicant recounted a pool incident from 1992 when he jumped into a pool which was freezing, and jumped out to go to the showers to warm up. He said he did not have permission to do so, but did so because he thought he had onset of hyperthermia due to uncontrollable shaking. The applicant stated that later that evening, Sergeant Price told the applicant that Sergeant Lee had told him to give the applicant a good bashing over the pool incident. Sergeant Price did not bash the applicant but told him, that if anyone asks: “Pricey gave me a touch-up”.
The applicant explained that if he had been assaulted then he could have reported it to a military officer; however, to do so:
would have been the end of any credibility I would have had in my Military Unit. I would have been shunned and all the Sergeants and Warrant Officers would have alienated me. I would have become an outcast in my own Military unit… if it did happen, I probably would have not reported it for fear of being alienated and shunned. That was simply the way the Army worked at that time.
The applicant explained that he was in fear of Sergeant Lee who had previously ordered that the applicant be bashed over the “freezing water” pool incident, the applicant was too scared to go to the Regimental Aid Post regarding the “cargo net” pool incident. The applicant explained that for two weeks after the fall, he was sore and stiff but suffered in silence as he could not risk a negative report from his unit or supervisors. The applicant recounted the events immediately following the incident as follows:
When I fell onto the edge of the cargo net, I honestly thought I had broken my neck and back, as I lost feeling in my arms and legs. When I dragged myself out of the pool I initially rested in the water by the side of the pool just holding myself upright with my fingertips. Eventually I dragged myself out and sat on the edge for about five minutes. Shortly after Sergeant Lee approached me and said, ‘Are you all right?’. Just before he asked me this, he said, ‘Get out and do it again’. At that stage he had not asked if I was all right. Another 15 minutes later, I attempted to do it again, after feeling and sensation had returned to my body. As I approached the ladder to the tower, Private Peter Reynolds approached me and said, ‘Are you okay to do it again?’. Because of my accident, he was hesitant to do it himself.
The applicant explained that he re-injured his neck and back when he was pushing a pallet on a trolley jack into a shipping container loaded with weapons parts. The applicant recounted that as he was pushing the trolley jack forward, his back “cracked” and his upper body rotated around to the right. The applicant recounted that he lost feeling in his legs and as he rotated he fell forward and hit his head on the pallet. The applicant explained that his colleagues asked if he wanted an ambulance called but he said he did not want one as he was trying to “tough it out, and not complain, and to soldier on without complaint”.

In 2011, the applicant stated he was getting pins and needles in his fingers and hands with loss of feeling in the upper arms. Dr Clive Shulman considered it was coming from the applicant’s neck and referred the applicant for a scan. The applicant stated that in 2012, his neck problems worsened – the pins and needles were getting worse and he noted an increase in the numbness from the top of the head, backwards down the neck to his shoulders.
The applicant explained that there was no other event that could have caused his neck problems and the major cause was the cargo net incident in 1991/1992, which was then complicated by the pallet incident and rigorous Army training.
Statement of Peter Colin Reynolds dated 10 March 2014
In his statement dated 10 March 2014,[32] Mr Peter Reynolds stated that enlisted in the Army in March 1990 and discharged administratively in October 1994. Mr Reynolds met the applicant during his employment with the Army where they were both located at Holsworthy Army Base.
[32] Exhibit B, T-Documents (2016/3221), T13.
Mr Reynolds recalled that in around 1991 or perhaps in 1992, the unit was involved in undertaking training to compete in the military skills competition and it was during a training exercise that he witnessed the applicant get injured. Mr Reynolds recounted that during the training they were required to assault a rope obstacle course and the applicant was one of the first people to tackle the rope course which he submitted, from the outset, appeared to look challenging.
Mr Reynolds recalled seeing the applicant:
… swing out over the cargo net and let go the rope (sic) and he was supposed to turn in midair onto his back and then to fall into the centre of the cargo net. However, and unfortunately for Davin, he fell awkwardly and he certainly landed badly on the edge of the net. From memory I recall that he landed partially on the cargo net and partially off it, and then he fell off the net into the water below. I witnessed the accident and I really was quite concerned for him because I thought for sure that he would have injured himself. Davin’s accident caused me to be very anxious over doing the rope swing and drop into the cargo net. In fact, I really did not want to do it for fear of also injuring myself. However, realistically, I knew that I had no choice, as soldiers don’t in circumstances like this.
I was concerned for Davin when I saw the accident because he did fall very awkwardly and the roping on the edge of the cargo net was very thick and if you fell onto it, it had to not only hurt, but it could very well have given rise to broken bones depending on how you fell. I saw him eventually after he fell into the water, get out of the pool very, very slowly and he was in obvious pain.
I do not recall whether he went to the Regimental Aid Post (medical centre) after the accident. I don’t think he would have because it was just not done. Literally, if you could walk you got on with the training. As soldiers we were expected to get on with the task regardless of injury. However, I do remember that he was in obvious pain for some weeks after this accident and he particularly complained about a sore and painful neck and he really was obviously worried about what he might have done to his neck. I seem to recall that his big complaint was lingering stiffness and pain in his neck and also problems with reduced movement in his neck.
File Minute dated 5 June 2014
A file note dated 5 June 2014[33] from Dr S Dormer, Compensation Medical Advisor for the respondent, outlined that:
there is no record of the injury mentioned by Mr Larsen as having occurred in 1991 or 1992 in the available documents. That is not to say that the injury did not occur, but that any injury which was sustained would not have been of a degree to have caused significant damage to the neck.
[33] Exhibit A, T-Documents (2015/3752), T48.
Dr Dormer went on to remark that:
…had there been a very serious injury, Mr Larsen would have required treatment. With a less serious injury he might have had symptoms which he self managed. However in order to link the incident to the development of pathology such as cervical spondylosis the injury would have to have been severe enough to cause significant ongoing symptoms…
The only mention of neck pain I could find was at least six years later on 20/8/98 while Mr Larsen was having physiotherapy for his back. He stated he had awoken with a sore right shoulder and neck, for which he was treated on two occasions. He did not complain of ongoing neck pain either during service or in the many years following, including at specialist examinations in the following years.
SUBMISSIONS
Applicant’s Submissions
The applicant submitted that both of his claimed injuries arose from the applicant falling into a cargo net and pool during training around 1992 and were aggravated by the fall in 1996 in which the applicant sustained the accepted lumbar spine injury. The applicant submitted that the fall in 1991/1992 gave rise to the acceptance of the claim for lumbar spondylosis so therefore there should be sufficient evidence to extend liability for cervical spondylosis. The applicant further submitted that it did not matter whether the aging process of congenital Scheuermann’s disease were superimposed upon the initial service-related cause.
The applicant submitted that his account of the 1992 fall was corroborated by Mr Reynolds who played a material role in reminding him of the significance of the incident, although the applicant was clear that he personally recalled the incident and the pain which followed.
The applicant submitted that the fact that he did not lodge a claim for cervical spine prior to this time because he did not consider it was a cause of any compensation was of no consequence because, pursuant to s 54 of the Act, a claim is made for “compensation” not for an “injury” per se, thus, if no compensation claim arises from an injury then no claim needs to be lodged. The applicant submitted further that, under s 53 of the Act, a notice of injury is to be given as soon as practicable after the employee becomes aware of the injury, and that the injury is not the event or fall, but rather the effect on the body of the event or fall,[34] and the applicant was only required to give notice once he became aware of the cervical injury and not the fall.
[34] See Canute v Comcare (2006) 226 CLR 535; [2006] HCA 47 at [10].
The applicant submitted that he experienced pain in the thoracic spine from the 1992 and 1996 injuries but understood this at the time to be lower back pain, and that it wasn’t until 2009 that the thoracic pain was specifically identified. The applicant submitted that he did not know of the separate existence of the thoracic spine as opposed to the lumbar spine.
The applicant submitted that the medical records support the applicant’s contention of earlier thoracic pain in:
· The respondent’s delegate’s notes: “higher lower back pain’ since 1998”;[35] and
· In 1998 the physiotherapist’s shading on the human figure show the pain extending to the lower thoracic.[36]
[35] Exhibit A, T-Documents (2015/3752), T41.
[36] Exhibit A, T-Documents, (2015/3752), T60.
The applicant submitted that Dr Sharwood and Dr Gallie are at odds as to whether the wedge deformities shown in the CT of the thoracic spine were caused by trauma or congenital Scheuermann’s disease.
The applicant submitted that his oral evidence had been affected by his psychiatric and alcohol conditions which had been persistent for years including as at the date of the hearing.
The applicant submitted that Dr Sharwood supported the ongoing causal link to the 1992 and 1996 falls and accepted that spondylosis may exist in people of varying ages without being symptomatic and may never become symptomatic; there is little correlation between the degree of spondylosis shown on scans and its level of symptomology; trauma can trigger the onset of spondylosis which may take decades to develop to a painful state (SoP 67 of 2014 encapsulates this understanding); and in the present case the falls in 1992 and 1996 were causal trauma in this same sense and contributed to the applicant’s spondylitic conditions.
The applicant submitted that Dr Gallie accepted the above and it was not possible to say how long after a trauma it may be that resulting spondylosis may become symptomatic. The applicant also submitted that Dr Gallie admitted that the applicant complained of pain in the middle of the back from the 1992 incident.
The applicant submitted that Dr Steadman also agreed with the propositions regarding trauma as long as it was limited to fractures and that there could be a lag in time between the trauma and the clinical onset. Dr Steadman’s opinion was that there was no fracture injury in 1992 or 1996; however, the applicant disputes this based on the following:
·There is evidence of a fracture to the thoracic spine in the scans;
·It is a matter for medical dispute whether a fracture is necessary to induce downstream spondylosis; and
·Even if there was no fracture to the thoracic spine, there was an early onset of spondylosis that would not otherwise be expected in someone of his youth (at the time in 1992) and something must have caused it.
The applicant submitted that Dr Sharwood did see the connection between the wedge fractures and the spondylosis. The applicant considered that it did not matter whether Dr Gallie diagnosed Scheuermann’s disease, but rather the issue was the relevance of the wedge fractures and their connection with Scheuermann’s disease as opposed to the fall into the cargo net.
The applicant submitted that it did not matter whether the spinal conditions were characterised as injuries or diseases, but rather, that the relevant test was that applied in Treloar v Australian Telecommunications Commission[37] because the applicant was entitled to the benefit of the definition before the 2007 amendments because the date of injury was 1992. The applicant submitted that because the test for an “injury” after 2007 has a lower causal threshold than that of a “disease” including a temporal connection which is not included in the test for “disease”, the test for an injury would first be applied.
[37] (1990) 26 FCR 316.
Respondent’s Submissions
The respondent submitted:
·Whatever doubt there may be about the occurrence of the subject incident, even if one were to accept that it did occur, there was no contemporaneous evidence then or thereafter to support the applicant’s claim that he continued to suffer neck and upper back symptoms thereafter.
·To the contrary, a reasonable assessment of the contemporaneous medical records revealed a total lack of complaint of any neck or upper back symptoms when one would otherwise expect to find such complaints, until the record of the general practitioner of 6 November 2009.[38]
·The opinions of Dr Gallie and Dr Steadman were that the various investigations of the applicant’s cervical and thoracic spines only revealed the existence of degenerative change as opposed to any change caused by acute trauma.
[38] Exhibit H.
The respondent acknowledged that the medical evidence supported that the applicant suffered from both cervical spondylosis and thoracic spondylosis. However, the crucial issue before this Tribunal was whether these conditions were attributable to the trauma as alleged by the applicant or whether these conditions were a result of constitutional degeneration. The respondent accepted that the conditions could be categorised as a disease within the meaning of the Act. The respondent relies on the reasoning articulated in the case of Comcare v Sahu-Khan[39] for the test between a service event and the disease:
[39] (2007) 156 FCR 536; [2007] FCA 15.
13. The modern approach to statutory interpretation, as is now well accepted, attributes a greater significance to context and legislative purpose than previously was the case: see CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384, at 408. That approach, in my respectful view, was adopted unexceptionably by French and Stone JJ in Canute in their treatment of the legislative history of the definition of ‘disease’ in the SRC Act. I agree with what their Honours have said and, in particular, in their conclusion that the inclusion of the word ‘material’ imposes an ‘evaluative threshold’ below which a causal connection may be disregarded.
14. What is problematic is identifying where that threshold lies. Treloar’s case set its own threshold of sorts for satisfying the 1971 Act’s ‘contributing factor’ requirement. It would, for example, exclude a de minimis contribution or one which did not influence the course of events. But once an employment was found to be a contributing factor to the condition in question, it did not matter whether the contribution was of any particular size or degree: Treloar, at 329. It has not been uncommon for courts, in dealing with statutes requiring such a contribution to be found, to describe that contribution as ‘material’: see eg Repatriation Commission v. Bendy (1989) 10 AAR 323 at 325. That usage is not how the term ‘material’ in the phrase ‘in a material degree’ is used in the SRC Act. The legislative history of this definition makes this plain.
15. There are, in my view, obvious hazards in allowing finely nuanced differences in dictionary definitions to contrive the answer to this question, given as I have noted, that the word ‘material’ in this context had its legislative meaning set in part by the qualification it imposed on the nature of the contribution required to be demonstrated before the provisions of the SRC Act were engaged. This said I consider that one of the meanings of the word ‘materially’ in the Shorter Oxford English Dictionary probably captures the essence of what the legislature was conveying. That meaning is –
‘4. In a material degree; substantially, considerably.’
An example given of this usage is that of contributing ‘materially to the funds required’ for a purpose. This usage probably comes closer to what Davies J in Bendy described (at 325) as the ‘loose sense’ of the definition of ‘material’ in the Macquarie dictionary ‘namely, “of substantial import or much consequence” [rather than the] legal sense of “pertinent” or “likely to influence”’.
16. bearing in mind that the course of statutory construction is often not aided by substituting for the word used in an enactment, another word which is not so used, probably the best that can ultimately be said is that the s.4 definition:
(i) requires a stronger causal relationship between the employment and the ailment, etc suffered than that exacted by the 1971 Act;
(ii) ‘in a material degree’ requires an evaluation of all relevant contributing factors for the purpose of asking whether the employee’s employment did or did not contribute materially to the suffering of the ailment, etc, in question (‘the threshold evaluation’);
(iii) whether this will be so in a given case will be a matter of fact and degree.
The respondent submitted that it seemed incongruous for the applicant to now remember in much detail an event occurring 27 to 28 years ago, but claimed to have “forgotten” about it until he was “reminded” of it after having a “whinge about it on the internet”.[40] He confidently asserted this was an “honest answer” but “put it in the back of his mind”.[41] The respondent adopted the same position regarding Mr Reynolds evidence.
[40] Transcript 13 February 2018, p.9.
[41] Transcript 13 February 2018, p.9.
The respondent considered that the applicant first raised symptoms of his upper back on 9 November 2009 with his general practitioner and there was no record in the applicant’s service records of him suffering from cervical or thoracic spine issues or an incident occurring in 1991/1992. The respondent submitted that it was open to the applicant to disclose any neck and upper back complaints prior to 2009 on numerous occasions, including:
·25 May 1993 – medical examination at the time of his first discharge. It is incomprehensible that the applicant would fail to mention neck and upper back symptoms but still make reference to nail biting and a right thigh injury from rugby.
·30 August 1995 – re-enlistment medical.
·January 1996 – in a statement which the applicant compiled regarding his lower back condition, he sets out in some detail how he was injured. There was no mention of any neck symptoms in that statement.
·T-Documents – there are a number of references to the applicant presenting with low back symptoms.
·All of these attendances seem at odds with someone who has neck symptoms but does not wish to complain because of fear of being branded a malingerer.
·20 August 1998 – the applicant complained of a sore neck when he woke up. The applicant received physiotherapy treatment. When the proposition was put to the applicant that having complained about neck pain, he failed to mention what would have been a longer history of neck pain, he replied that he had “no answer” to that question.
·26 June 1998 – medical examination for second discharge. It is incomprehensible that the applicant would fail to mention his alleged neck symptoms at this time, especially because at the same time he was pursuing compensation for his lower back complaint.
·Post discharge – in the years following the applicant’s discharge from the Army, he was examined by a number of specialists in respect of his lower back (Dr Boys, Dr Grant, Dr Hayes, Dr Nowitzke and Dr Walters). All of those specialist reports make no reference to any neck or upper back complaints.
·12 August 2014, the applicant was examined by Dr Rosen in respect of a “sciatica condition” and it was noted in the report that, in 1991 the applicant “injured his neck while serving in the Army… eventually his symptoms settled down. As far as I can tell he made a complete recovery”.
The respondent submitted that the Tribunal should be hesitant to accept medical evidence predicated upon the applicant’s self-reporting and contended that while Dr Martin diagnosed the applicant with cervical spondylosis on 27 November 2012, Dr Martin was not given the history of the cargo net incident. Dr Martin did not consider the cervical spondylosis was attributable to the accepted “chronic musculo ligamentous low back strain” condition. The respondent submitted that it was only after this assessment that the applicant submitted a claim for compensation in relation to thoracic and cervical spondylosis.
The respondent submitted that none of the reports of Dr Sharwood referred to an incident in 1996 and Dr Sharwood’s oral evidence did not disclose any knowledge of this. Further, as confirmed during cross-examination, Dr Sharwood was mistaken about asserting the diagnosis of Scheuermann’s disease to Dr Gallie. The respondent submitted there are issues of credibility and reliability particularly where the applicant said that he aggravated his neck condition in a fall in 1996 which was given importance by Dr Sharwood who opined that the falls in 1992 and 1996 contributed to the applicant’s spondylitic conditions.
The respondent further submitted that, although in the applicant’s statement of 30 September 2015 he asserted he hit his head on a pallet in an incident, that blow to the head had never been mentioned before. The respondent considered that this inconsistency is further compounded by the history provided to Dr Gallie.
The respondent submitted that SoP 67 of 2014[42] is not relevant, relying on Rana v Military Rehabilitation and Compensation Commission,[43] and the comments below made in El-Terek v Comcare:[44]
93. During cross examination counsel for the respondent sought to rely on a Statement of Principles (SoP) issued by the Repatriation Medical Authority by the authority given to it under s 196A of the Veterans’ Entitlements Act 1986. The SoP concerned lumbar disc prolapse and purported to have the absence of any factor associating operational or defence service with activity undertaken in a seated position. I indicated to counsel that I thought the question was an irrelevance and the answer would carry no weight. On review, I remain firmly of that opinion.
94. In Deledio v Repatriation Commission (1997) 47 ALD 261, Heerey J decided at p275:
…the SoP has no function in relation to the proof or disproof (under s 120(1) of the particular facts of a veterans’ case. The SoPs function is limited to prescribing a medical-scientific standard with which a hypothesis must be consistent – so that the SoP can “uphold” the hypothesis… The SoP is a subset of proved…or known…scientific fact. Where an SoP is applicable it is a statute backed declaration of what is a proved or known scientific fact.
95. It is difficult, having regard to the above analysis, to conceive how any SoP determined by the Repatriation Medical Authority, can have any relevance at all to proceedings under the Safety, Rehabilitation and Compensation Act 1988 (SRC Act). Proceedings for review of decisions made under the SRC Act involve findings, on the balance of probabilities, of connection between employment and injury or disease and of entitlement to compensation. Evidence is heard and witnesses are cross-examined. SoP’s are relevant only to assess liability under the Veterans’ Entitlements Act or the Military Rehabilitation and Compensation Act 2004. I have heard from Interstate colleagues that attempts have been made to agitate for affirmation of decisions under review made under the SRC Act by reliance on factors contained within a SoP. For the reasons given above, such attempts have no validity in proceedings under the SRC Act.
[42] Statement of Principles concerning cervical spondylosis No. 67 of 2014 (Cth).
[43] (2010) 53 AAR 387; [2010] AATA 937.
Further submissions made by the respondent in reply to additional issues raised

The respondent submitted that the crucial issue for the applicant is whether he can establish liability for both conditions by reference to the cargo net incident which is said to have occurred at some time in 1990 to 1992 in the course of his military career. The respondent submitted that Dr Sharwood’s evidence was paramount to the applicant’s case, namely, with respect to cervical spondylosis: Dr Sharwood’s opinion that the imaging studies confirm cervical spondylosis consistent with the applicant previously suffering a whiplash type injury; and with respect to thoracic spondylosis: Dr Sharwood’s opinion that the imaging studies reveal direct damage to T10/T11 disc, consistent with a direct blow to that disc.
The respondent submitted that the applicant’s primary submission was that trauma can be a starting point for the development of spondylosis conditions; however, the respondent contended that the evidence of Dr Steadman and Dr Gallie focussed on the peculiar circumstances of the applicant’s cervical and thoracic spines and the absence of any indicia of trauma presently impacting upon any spondylosis conditions. The respondent considered that, in the applicant’s reply submissions, the applicant sought to argue that he suffered a spinal injury when he fell onto the cargo net in 1990/1992, however, the respondent submitted that this was of no utility for the applicant as it could not be shown to result in any: incapacity, need for medical expenses, nor permanent impairment compensation, until it can be shown that there was a causal link between that injury and the precise condition which the applicant suffered and for which he specifically sought compensation, that is, the spondylosis conditions. The respondent submitted that the question of primary liability under section 14 of the Act can only be resolved by the Tribunal in addressing whether those conditions are “diseases” within the meaning of the Act.
The applicant submitted that if the Tribunal was to merely find that the applicant suffered an “injury” in 1992 and accept the general evidence that trauma can be the starting point for spondylosis conditions, then applying the Treloar test and the contention that “it does not matter whether the spinal conditions are regarded as ‘injuries’ or ‘diseases’”, then the Tribunal would find that liability had been established for the spondylosis conditions. The respondent considered this submission from the applicant misconceived.
The respondent submitted that the Treloar test was confined to applying the “contributing factor” test in section 29 of the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”) as opposed to the “contributed to a material degree” test in the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 Act (Cth) (“the 1988 Act”). The respondent submitted that the wording of section 29 of the 1971 Act is in contrast to that adopted in the corresponding provisions of the 1988 Act.
The respondent submitted that the “significant contribution” test as it appears in the Act in its present form applies as the applicant first disclosed upper back symptoms to his general practitioner in November 2009 and was diagnosed by Dr Martin with both cervical spondylosis and thoracic spondylosis in November 2012. The respondent submitted that the spondylosis conditions could only be regarded as “diseases” within the meaning of the Act.
Applicable Legislation
The applicant submitted that there are six potentially relevant schemes depending on the date and location of injury:
·The Commonwealth Employees’ Compensation Act 1930 (Cth);
·The Compensation (Commonwealth Government Employees) Act 1971 (Cth);
·The Veterans’ Entitlements Act 1986 (Cth) (“the VEA”);
·The Safety, Rehabilitation and Compensation Act 1988 (Cth);
·The Military Rehabilitation and Compensation Act 2004 (Cth); and
·The Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth).
The applicant submitted that some of the schemes overlap in the sense that an injured person can elect between the schemes and, as highlighted by the Senate inquiry into the discontent with the operation of these schemes and the level of suicides among injured veterans due to the maladministration of the schemes, the major concerns expressed in the report from the inquiry were the complexity and inconsistency between schemes. The applicant submitted that the respondent’s view was that the Tribunal is confined to the narrow task of ruling on entitlement under the scheme before it, which perpetuates an unhelpful approach that caused the Senate inquiry in the first place. The applicant submitted that the present case highlighted this very point, in that the same injury could be compensable under one scheme but not another, or under two schemes with different benefits flowing. The applicant submitted that the VEA and the SRC Act contain the same test of causation – “whether out of or in the course of the employment”, And that the Statements of Principles then intervene in the VEA.
The respondent submitted that this was not the appropriate forum to embark on a “socio-political review” of the military compensation scheme and the Tribunal must pursue the objective of providing a mechanism of review that is accessible, fair, economical, information and quick.[45]
[45] Administrative Appeals Tribunal Act 1975 (Cth) section 2A.
I refer to my earlier comments in paragraphs 12 to 19 as to why it is the DRC Act only that is applicable to the present applications.
The VEA Determination
The applicant’s claims for lumbar spondylosis, thoracic spondylosis and depressive disorder were accepted under the VEA and the applicant was granted a disability pension at 100 per cent of the General Rate of Pension with effect from 30 May 2017. The delegate accepted the lumbar spondylosis and thoracic spondylosis conditions by reference to the factor, “carrying or lifting loads while bearing weight” under the applicable SoPs.
The respondent submitted the following regarding the VEA determination:
·that it is not a relevant mandatory consideration for the Tribunal in undertaking its statutory task of review in the present applications (Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24).
·that it was issued under a different statutory scheme established by the VEA which includes SoPs.
·that SoPs have no place in proceedings under the Act (Rana and Military Rehabilitation and Compensation Commission [2010] AATA 937 at [68]-[74]).
·the VEA determination did not deal with the same claim based on the same injury and the same causative factor. The causative factor was clearly different to that relied on in these applications before the Tribunal.
CONSIDERATION
Learned counsel for the applicant in his final submissions highlighted what he regards as the complexity and inconsistency in the schemes that provide for military compensation. He submitted that I should prefer a construction of the Act that promotes consistency in decision making across related legislation. However, I do not accept that in reviewing these applications my construction of the Act should be informed by provisions of other legislation which make provision for military compensation.
After the conclusion of the evidence of the applicant the applicant sought an adjournment of the hearing. The purpose of the adjournment was to enable the applicant to seek advice from the RMA as to the medical research literature that was relied upon by the RMA in respect of SoP No 67 of 2014. I refused the adjournment for a number of reasons. First, I considered that the SoP regime had no relevance to the construction of the Act. This was certainly settled by the decision of Deputy President Forgie in Rana v Military Rehabilitation and Compensation Commission.[46] Secondly, the respondent had arranged to call two expert medical witnesses to give evidence later that day and it was apparent that the applicant had not foreshadowed an application for an adjournment to the respondent. To adjourn the proceedings at that juncture would be to not be an economical[47] approach in involving the respondent in more expense. In any event, the final submissions of the applicant do properly recognise that the SoP regime applies under the VEA but not under the Act that I am now administering.
[46] (2010) 53 AAR 387; [2010] AATA 937.
[47] Administrative Appeals Tribunal Act 1975 (Cth) section 2A.
The applicant stated that he suffered cervical spondylosis and thoracic spondylosis because of an incident that he claimed occurred during his military training in 1991 or 1992 when he fell onto a cargo net. In his statement dated 5 March 2014 the applicant stated that he suffered from pain and stiffness in his neck and upper back but did not seek medical attention at that time because he then did not want to let his mates down and to be seen as a “bludger”.[48] In his statement he remarked that after the claimed incident he had continually experienced varying degrees of pain, varied sensation and stiffness in the neck. In his oral evidence he reiterated that after the claimed incident he had varying degrees of neck pain which had worsened over the years since the incident, he described the pain as “nagging”.
[48] Exhibit A, T-Documents, T42 (2015/3752).
Because the applicant did not seek any medical assistance after the claimed incident there is no contemporaneous medical evidence of the incident. It is fair to say that the applicant himself appears to have forgotten about the claimed incident until he was reminded of the claimed incident by a friend after the applicant took to the internet to share his complaints. That friend was Mr Reynolds who asserted that he recalled the incident but was unable to pinpoint when he first reminded the applicant about the claimed incident. I will determine the applications on the basis that the incident is claimed to have occurred in 1991 or 1992 when the applicant was on duty.
It is important for me to consider the symptoms that have been experienced by the applicant after the incident that is claimed to have occurred in 1991 or 1992.
Oral evidence
The applicant
The applicant, in giving evidence, confirmed the assertion in his statement of his experiences of neck pain after the incident: “Throughout my army career after this I continually experienced varying degrees of pain, various sensation and stiffness in my neck”. My review of the medical documentation does not confirm that this assertion is accurate. There is one entry in 1998 when the applicant received physiotherapy after having woken with a stiff neck but there has been no other reference to neck pain in the medical records until 6 November 2009. The applicant agreed in cross-examination that it was on that date that thoracic pain is first mentioned in the records.
Dr Peter Sharwood OAM RFD, Orthopaedic Surgeon
The applicant called Dr Peter Sharwood, Orthopaedic Surgeon, who confirmed he did not wish to change any of the contents in his 25 July 2014,[49] 8 March 2016,[50] and 29 May 2017[51] reports, other than to say that in the 25 July 2014 report he noted that the applicant’s date of enlistment in the army should be 1987, not 1997.
[49] Exhibit B, T-Documents (2016/3221), T16.
[50] Exhibit D.
[51] Exhibit F.
Dr Sharwood, in giving evidence, commenced by remarking that spondylosis and osteoarthritis of the spine are the same condition, that they take years to develop as a result of trauma, and it is recognised that it is usually between 10 and 15 years following an injury that one actually sees radiological changes. Dr Sharwood remarked that radiological changes can be observed earlier than that, and that if symptoms are to arise as a result of trauma, they will develop within 25 years of the original single event.
Dr Sharwood was asked whether he agreed that the applicant suffered from Scheuermann’s Disease; he opined that the applicant did not suffer from Scheuermann’s Disease as he did not have 40 degree wedging, endplate changes, or Schmorl nodes. Dr Sharwood remarked that the wedging is most likely to be post-traumatic. Dr Sharwood agreed with the proposition that Dr Gallie did not diagnose the applicant with Scheuermann’s Disease and rather, he was quoting the findings of a CT undertaken of the applicant’s thoracic spine on 7 January 2015.
In cross-examination, it was put to Dr Sharwood that the imaging studies of the applicant he referred were actually undertaken more than 13 years after the claimed injuries, as had been noted by Dr Sharwood in his report; Dr Sharwood agreed that, given that the imaging studies were undertaken in 2012, this would be anywhere from 20 to 22 years after the claimed injury. However, Dr Sharwood remarked that this did not alter his opinion at all.
It was put to Dr Sharwood that the findings of the 16 July 2012 imaging studies undertaken of the applicant’s spine were no more than what would have been expected for a person of his age, being naturally occurring constitutional expected degermation; Dr Sharwood replied:
That could well be the case; however, if he has had trauma 15 or 25 years before, I would strongly suggest that, in fact, the trauma was a significant, if not major, you know, determining factor. Had somebody not had trauma and you saw that you say definitely it is constitutional. He has, however, had trauma.
Dr Sharwood confirmed that he relied upon the history given by the applicant and did not have any other thing upon which to rely.
Dr Sharwood did not agree that minor longstanding wedge compression of the T5 to T10 vertebral bodies is a diffuse finding consistent with constitutional degeneration. Dr Sharwood remarked that traumatic injury to the disc is very uncommon and remarked:
Traumatic injury to vertebrae with wedging is very common and the nature of his fall, having been on that cargo net myself, I can easily imagine how he would suffer that sort of injury.
Dr Sharwood confirmed that his explanation of the applicant’s disc injury was direct damage to the T10/11 disc consistent with a direct blow to that area. Dr Sharwood was taken to the part of his report where he remarked: “He stated that when doing this, instead of landing in the net, the net struck him across the upper thoracic region causing him to hyperextend his neck.” It was put to Dr Sharwood that the T10/T11 disc is in the lower thoracic vertebrae, “well away” from the T10/T11 disc and vertebral area; Dr Sharwood agreed that the T10/T11 vertebrae are not in the upper thoracic region. It was put to Dr Sharwood that the history given to him by the applicant was at odds with the area of damage he found; Dr Sharwood remarked:
Well, I agree that when you - when you analyse it in that way that is correct; however, this history was given to me in 2014, his injury occurred in 1990 and if he can remember exactly what happened at that length of time afterwards, I would think it very unusual. I certainly couldn’t remember over that period of time and I am looking at his injury having - being aware of that particular apparatus and if you do fall onto that net, it’s a net, it’s got multiple ropes, it’s got multiple knots and whichever one you remember actually hit you or where it hit you, he’s got wedging of his vertebrae from, what, T5 to T10 which would indicate that, you know, the area of injuries and that has been over that period, I think anywhere in that area could’ve been injured and he may have interpreted as high up. I mean, he had an injury to his neck, a lot of the symptoms from - from the neck are in - actually appear in the upper thoracic region. So symptoms about his thoracic region may, in fact, have been a region from his neck and I don’t think a person who has no knowledge of anatomy and that could possibly give a detailed specific thing, “it hit me there”. I would strongly suggest to you that he was hit all over the place.
Dr Sharwood remarked that the history given by the applicant is that the applicant fell from the net once, was advised not to repeat the activity, and proceeded to repeat it and fall again. Dr Sharwood opined that it could have been either fall that caused the injury.
Dr Sharwood was advised by the respondent’s counsel that a submission would be made that he had “become a bit of an advocate” for the applicant; he remarked: “I’m reporting what he said”.
Dr Price Gallie
The respondent called Dr Price Gallie, Orthopaedic Surgeon, who stood by his report of 5 April 2017.[52] Dr Gallie denied diagnosing the applicant with Scheuermann’s disease and remarked that in his report he was merely restating a 2015 CT report which suggested, based on the CT findings, that that was a possible diagnosis. Dr Gallie confirmed his diagnosis that the applicant suffers from mild to moderate thoracic spondylosis which he considered was a constitutional condition. Dr Gallie stated that he based his conclusion on the history provided, his physical examination and the documentation that he was able to review. Dr Gallie remarked that there is evidence of multi-level, mild to moderate degenerative changes in the thoracic spine, which he opined would be consistent with natural aging, as opposed to any specific injury or event. Dr Gallie remarked that if there are changes at multiple levels of the spine it suggests that the condition is more likely to be a constitutional rather than a traumatic event. Dr Gallie remarked that an isolated trauma is likely to cause a localised injury, as opposed to the applicant’s changes, which are present at multiple levels.
[52] Exhibit E.
Dr Gallie was asked about the findings in the CT radiological report dated 7 January 2015 of Dr Ravi Sidhu[53] as to the constitutionality of the state of his thoracic spine. Dr Gallie remarked that Dr Sidhu has described changes consistent with degeneration, both in the discs and of the facet joints at multiple levels and this includes slight wedging from T5 to T10 and that those findings would be consistent with degeneration and spondylosis as opposed to any traumatic event.
[53] Exhibit B, T-Documents (2016/3221), T23, p. 157.
Dr Gallie confirmed that he had regard to an MRI of the applicant’s thoracolumbar spine undertaken on 11 June 2013.[54] Dr Gallie was asked about the finding in the report concerning hyperintense haemangioma within the T10 vertebral body which Dr Gallie explained was a benign vascular growth which is usually seen as an incidental finding. Dr Gallie, when asked about the prospect of any trauma “vis a vis constitutional degeneration”, remarked that there is no note of any specific evidence of bony changes in the thoracic vertebrae consistent with any injury.
[54] Exhibit A, T-Documents (2015/3752), T37, p.164.
Under cross-examination, Dr Gallie was referred to the CT radiological report dated 7 January 2015 of Dr Sidhu[55] which contained findings of “Slight interior wedging of the T5 to T10 vertebral bodies, compatible with long-standing minor compression injuries”.
[55] Exhibit B, T-Documents (2016/3221), T23, p. 157.
Dr Gallie confirmed that the level of degeneration as shown in the T5 to T10 is something that would have been occurring over many years. Dr Gallie was asked about the term “compression injuries” in to the context of “injuries”; Dr Gallie remarked: “An injury can be used to express any condition that leads to a change in the morphology or structure. So, it doesn’t necessarily have to be traumatic”. Dr Gallie was asked if he saw any significance in the word “compression” preceding the word “injury”; he answered: “No, compression merely described the shape of the vertebrae”.
Dr Gallie was referred to a clinical note of Dr Clive Shulman, General Practitioner, which records the applicant having experienced thoracic pain in 2009.[56] Dr Gallie was asked if he accepted that the longstanding nature of the applicant’s condition may account for his thoracic pain in 2009. Dr Gallie stated that he would be unable to comment on that without having examined him in 2009. Dr Gallie was again referred to the radiological report dated 7 January 2015 of Dr Sidhu[57] where there is a reference to “longstanding”. He was asked how longstanding he considered the applicant's condition was at the time the scan was taken; Dr Gallie answered: “I think it’s constitutional, that’s developed over the course of his life. So, it may have been there in 2009 when he was suffering the back pain. It may have been there at any stage of his life”. Dr Gallie added: “constitutional means degenerative and longstanding. So, it’s not normally associated with a specific time point, but yes he may have had degenerative changes present in 2009, but I’m not aware that any scan was done at that stage”.
[56] Exhibit H.
[57] Exhibit B, T-Documents (2016/3221), T23, p. 157.

Dr Gallie was asked if spondylosis in the thoracic spine can exist but be non-symptomatic; he answered that radiographic changes can be present and asymptomatic. Dr Gallie was also asked if a degenerative condition of spondylosis can be rendered symptomatic by trauma; Dr Gallie answered that if someone has had trauma, then they may develop symptoms from that trauma, regardless of what is underlying in their pathology. Dr Gallie was asked whether the symptoms would be coming from the underlying spondylosis; he answered: “No, the symptoms would be as a result of the trauma…the natural history of spondylosis is for it to become symptomatic”. Dr Gallie was asked whether there is any correlation between the fact of having a radiologically demonstrated spondylosis and a time in one’s life in which it becomes symptomatic; he answered that it is quite variable. He was asked whether it is so variable that people can go decades with no symptomatology arising from their radiologically demonstrated spondylosis; he replied: “I think that would be unlikely”. Dr Gallie was asked what he based that answer on; he replied: “Most people have symptoms in some way, shape or form and tolerate those symptoms”. He was asked how long after the radiologically evident commencement of spondylosis would he say most people would be suffering symptoms, to which he answered: “I think that’s impossible to answer”.
It was put to Dr Gallie that he could not say whether the applicant should have been manifesting symptoms from his spondylosis five years, ten years or even fifteen years after its onset; Dr Gallie answered: “Well, it’s a constitutional, progressive disorder. So, unless you took X-rays every six months of someone who was asymptomatic, you would never be able to find that out”. Dr Gallie agreed that he was aware of circumstances where he had the benefit of historical scans at different points in a person’s life, showing that there is spondylosis, and yet the person has not become symptomatic by virtue of that spondylosis until some considerably later point in time. Dr Gallie was asked if that considerably later time might be ten years after the first noticeable onset in radiological terms. Dr Gallie remarked that he was not sure that he could answer that question with regards to a period of ten years. Dr Gallie stated that he did not think one can put a time point on a degenerative, progressive condition. Dr Gallie confirmed that he could not state with any certainty the point in time in which the degenerative condition will become symptomatic and that it could be at any point later, depending upon the vicissitudes of the individual’s life.
Dr Gallie was asked if he had been directed to SoP No 67 of 2014.[58] Dr Gallie stated that he was not familiar with the document. The respondent submitted that the SoP is a complex document and the witness is entitled to be able to see the entire document and have considered it as well. The respondent also submitted that the document was an irrelevance. The Tribunal stated that it could email the document to the witness if the applicant wished to pose a question to the witness about the document: however, the applicant did not wish to press any questions about the SoP.
[58] Statement of Principles concerning cervical spondylosis No. 67 of 2014 (Cth).
Dr Gallie confirmed that he was aware of the cargo net and he was asked about the history that he took from the applicant. He confirmed that he described an injury to his neck and upper back at that time but did not describe an injury to his thoracic region. Dr Gallie remarked that the applicant was a vague historian, and he offered very limited detail as to what the nature of the injury was. Dr Gallie in re-examination confirmed that in his report he recorded that the applicant: “described significant neck and upper back pain at the time, but it was not reported or specifically treated”.
Associate Professor Peter Steadman, Consultant Orthopaedic Surgeon
The respondent called Associate Professor Peter Steadman, Consultant Orthopaedic Surgeon. Dr Steadman confirmed that he conducted an assessment of the applicant which is the subject of his report dated 25 November 2015.[59] Dr Steadman referred to a reference in his report to an MRI report as being issued on a “date unknown”, he stated that it was established that the MRI report is dated 16 July 2013 which is the same date as the bone scan.
[59] Exhibit G.
The report of Dr Steadman concerned whether or not there was any traumatic force applied to the neck of the applicant. Dr Steadman was referred to the findings of the CT scan of the cervical spine on 16 July 2012;[60] he opined that the report shows that the applicant has osteoarthritis of the cervical spine and shows the osteoarthritis of the facet joints, which are the posterior part of the spine as well as some calcification of the anterior longitudinal ligament of the spine in the lower cervical section. Dr Steadman opined that those findings are indicative of degenerative disease.
[60] Exhibit A, T-Documents (2015/3752), T29.
Dr Steadman was referred to the report of Dr Peter Sharwood, Orthopaedic Surgeon, of 25 July 2014 where Dr Sharwood reported: “I have reviewed images of his cervical spine dated 16 July 2012 and would confirm that these show evidence of cervical spondylosis, nerve root impingement at the C7 level”.[61] Dr Steadman agreed that there is evidence of osteoarthritis in the lower cervical spine, presumably in correlation with the clinical signs at that time, and some evidence of osteophytes irritating one of the lower cervical nerves.
[61] Exhibit A, T-Documents (2015/3752), T51, p. 218.
Dr Steadman was referred to the conclusion in the report: “Mr Larsen has suffered direct injuries to his thoracic spine and secondary injury to his neck, I believe most likely in the event described in 1991”. It was pointed out that in that report the factual assertion that there were imaging studies performed 13 years later was incorrect because Dr Sharwood had conceded that he was mistaken about the time gap from 1991 to 2012. Dr Steadman was asked about the conclusion: “the medical imaging studies performed 13 years later certainly confirm cervical spondylosis consistent with him previously suffering a whiplash type injury”. Dr Steadman remarked that he did not make the connection in terms of the diagnosis and the assumption that a whiplash type injury had caused that change. Dr Steadman remarked:
I don’t think there is any evidence based medicine to support that conclusion. That’s not doubting an event occurred where he did injure his neck, but from the point of view of the argument being presented there, that is that the changes in the neck are due to an injury 20 years before, there is no evidence based medicine to support that conclusion, that a whiplash injury could lead to cervical degeneration.
Dr Steadman re-stated that the scan and the findings reported do not support Dr Sharwood’s conclusion.
The claimed traumatic events
I must determine whether the cargo net incident occurred in the period of 1991 to 1992 during the service of the applicant, in the course of his military career. After considering all the evidence before me I have unfortunately concluded that the cargo net incident did not occur. In my opinion it is not plausible that the applicant had to be reminded by a colleague of an incident that could have caused him serious injury. The applicant has asserted that for several weeks after the cargo net incident he suffered from neck pain, stiffness and headaches. The colleague who reminded the applicant of the incident was vague in relating how he had reminded the applicant of the incident. I later explain further that I do not accept that the cargo net incident had occurred when the applicant failed to mention the injury when he was discharged from the Regular Army in 1993, and again in 1998.
In his statement of 22 December 2015, the applicant had asserted that he experienced traumatic injury to his head from a pallet after his back “cracked” while he was operating a trolley jack and he subsequently “fell forward and hit [his] head on the pallet”.[62] However, that assertion had not been made by the applicant in his earlier statement which was in the form of a statutory declaration which he declared before a solicitor just one year earlier in 2014. The applicant did not mention the pallet incident to Dr Gallie in 2017. The applicant informed Dr Gallie that he had experienced a pain in his neck when a trolley jack had given way in 1996; however, there is no mention in the report of Dr Gallie that the applicant had stated that he experienced a trauma to his head. I consider that the applicant is not a credible witness because he given inconsistent accounts of his history. Not only do I consider that the pallet incident did not occur, but this inconstancy reinforces my conclusion concerning the credibility of the applicant. I should mention that in 1998 the applicant gave a statement about a different account of a pallet incident that caused him to fall back.
[62] Exhibit B, T-Documents (2016/3221), T26, p. 173.
Prior to making his 22 December 2015 statement, the applicant had informed Dr David Rosen, Neurologist, on 12 August 2014, that in 1993 he had a stiff neck for a few weeks and his symptoms had settled down. In his report, Dr Rosen remarked: “As far as I can tell he made a complete recovery”. These remarks in Dr Rosen’s report were put to the applicant who responded: “I would have given him an answer to say that I made a recovery but it doesn’t mean I didn’t have neck pain at varying stages of playing a football match or sleeping, waking up with a sore neck”. The fact that in 2014 the applicant told Dr Rosen said that he made a recovery is inconsistent with his later assertion that after 2012 the symptoms from his neck injury persisted and became more severe. This is another example of the inconsistency of the applicant in giving accounts of his history.
The applicant had not mentioned the cargo net incident when he attended a medical examination on 18 May 1993.[63] The cargo net incident would have then been relatively recent when he first discharged from the Regular Army. At this time, he would have had no interest in withholding any complaint of his injury for fear of being regarded as a “bludger”. The applicant had at that medical examination referred to his thigh injury from rugby and his nail biting. It is not plausible that the applicant did not mention, in May 1993, that he had sustained a serious injury to his neck and thoracic spine, within the previous two years, if that was indeed the case. The applicant informed Dr Sharwood that for several weeks after the cargo net incident he suffered from neck pain, stiffness and headaches. I do not accept that the applicant had given an accurate history to Dr Sharwood. It is for this reason that I do not accept the diagnosis of Dr Sharwood.
[63] Exhibit A, T-Documents (2015/3752), T60, p. 293.
On 26 June 1998 the applicant attended a further medical examination when he was again being discharged, this time for medical reasons. The applicant had a lower back complaint at that time but did not disclose any cervical or thoracic spine complaints. It is not plausible that the applicant had experienced a serious injury to his neck and thoracic spine by that time if he did not mention it. This was when he had, for the second time, discharged from the Regular Army and he would have again had no interest in withholding any complaint of a neck injury.
After the applicant was discharged in 1998 he saw a number of medical specialists and the reports from these specialists did not refer to any cervical and thoracic spine complaint. The report of Dr Boys in 1998,[64] the report of Dr Grant in 1998,[65] the report of Dr Nowitzke in 2004,[66] the report of Dr Hayes in 2007,[67] and the report of Dr Walters in 2008[68] do not refer to cervical and thoracic spine compliants.
[64] Exhibit A, T-Documents (2015/3752), T8.
[65] Exhibit A, T-Documents (2015/3752), T13.
[66] Exhibit A, T-Documents (2015/3752), T25.
[67] Exhibit A, T-Documents (2015/3752), T16.
[68] Exhibit A, T-Documents (2015/3752), T27.
I rely upon the reports of Dr Gallie and Dr Steadman to conclude that the neck and thoracic spine conditions are constitutional conditions These specialists have properly investigated the conditions of the applicant and have not found any evidence of any trauma. Both specialists gave cogent evidence in support of their conclusions.
Dr Gallie, in giving evidence, remarked that the applicant had evidence of multi-level degeneration of the cervical spine which was constitutional. Dr Steadman examined the report of the MRI of the cervical spine that was conducted on 16 July 2013. Dr Steadman remarked that all of the applicant’s cervical vertebrae are wedged and show extensive wedging, of which the C5 vertebra is the among worst with about 50 per cent wedging at that level. Dr Steadman remarked that “the extensive nature of the wedging over what would be seven segments is not a traumatic picture, it is a congenital picture”.
Dr Steadman remarked that the condition of applicant’s thoracic spine had a constitutional appearance rather than showing a traumatic event had occurred.
Certainly, Dr Gallie and Dr Steadman recognise that trauma can impact upon and accelerate degenerative processes. However, the applicant in the cross-examination of both specialists quite properly did not challenge the conclusions that these specialists reached after their investigations of both the cervical and thoracic spines of the applicant.
I have undertaken a thorough review of the medical documentation and I find that the only reference to the applicant having treatment for symptoms relating to his neck was on 20 August 1998 when he received physiotherapy for a sore neck; there was no mention in the records of the applicant having experienced any injury to his neck prior to that point in time.[69] The applicant attended a physiotherapy appointment on 7 January 1998 after playing touch football, however, the physiotherapy chart does not refer to any cervical and thoracic spine complaints. There is also a notation on the chart that the applicant had no previous back pain or injuries.[70]
[69] Exhibit A, T-Documents (2015/3752) T60, p. 332.
[70] Exhibit A, T-Documents (2015/3752), T60, p. 315.
CONCLUSION
The applicant claims that the cargo net incident caused his cervical spondylosis and thoracic spondylosis conditions. However, I am not satisfied on the balance of probabilities that the cargo net incident occurred. I accept the evidence of Dr Gallie and Dr Steadman that the cervical spondylosis and thoracic spondylosis conditions of the applicant are the result of constitutional and degenerative changes and are not the result of a traumatic injury or event. Therefore, I do not consider that the claimed cervical spondylosis and thoracic spondylosis conditions of the applicant are an injury suffered by the applicant that arose out of, or in the course of, his employment.[71] There is no evidence before me which would allow me to find that, on the balance of probabilities, the cervical spondylosis and thoracic spondylosis conditions of the applicant are an ailment suffered by the applicant that was contributed to, to a significant degree, by his employment.[72] It is not asserted by the applicant that the cargo net incident caused an aggravation of any existing injury or ailment of the applicant.[73] In any event, as I am not satisfied, on the balance of probabilities, that the cargo incident and the pallet jack incident occurred, they could not be said to have caused an aggravation of an existing injury or ailment of the applicant. Therefore, I am not satisfied on the balance of probabilities that the cervical spondylosis and thoracic spondylosis conditions of the applicant are injuries for which the respondent is liable to pay compensation under the DRC Act.[74]
[71] Safety, Rehabilitation and Compensation Act (Defence-related Claims) 1988 (Cth) paragraph 5A(1)(b).
[72] Safety, Rehabilitation and Compensation Act (Defence-related Claims) 1988 (Cth) paragraph 5A(1)(a) and paragraph 5B(1)(a).
[73] Safety, Rehabilitation and Compensation Act (Defence-related Claims) 1988 (Cth) paragraph 5A(1)(c) and paragraph 5B(1)(b).
[74] Safety, Rehabilitation and Compensation Act (Defence-related Claims) 1988 (Cth) section 14.

DECISION
I affirm the decisions under review.

I certify that the preceding 149 (one hundred and forty-nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

........................................................................
Associate
Dated: 22 June 2020

Dates of Hearing: 13, 14 February 2018

Date final submissions received: 27 November 2018

Counsel for the Applicant: Mr Allan Anforth

Solicitor for the Applicant: Mr James Pattison, Watt & Severin Solicitors

Counsel for the Respondent:

Mr Charles Clark

Solicitor for the Respondent: Mr Matthew Hawker, Sparke Helmore Lawyers

Dates of Hearing:	13, 14 February 2018
Date final submissions received:	27 November 2018
Counsel for the Applicant:	Mr Allan Anforth
Solicitor for the Applicant:	Mr James Pattison, Watt & Severin Solicitors
Counsel for the Respondent:	Mr Charles Clark
Solicitor for the Respondent:	Mr Matthew Hawker, Sparke Helmore Lawyers