Lavelle and Repatriation Commission - [2001] AATA 443

DECISION AND REASONS FOR DECISION [2001] AATA 443

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V2000/582

VETERANS APPEALS DIVISION           )
           Re      THOMAS LAVELLE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member Mr I. Campbell, Member Dr P. Fricker, Member

Date18 May 2001
PlaceMelbourne

Decision      The decision under review insofar as it concerned cervical spondylosis is set aside and in substitution IT IS DECIDED that cervical spondylosis is war-caused; the application be remitted to the respondent to determine pension entitlement and the remainder of the decision under review be affirmed.
  ....…...Sgd. Mr J. Handley......
  Senior Member
CATCHWORDS
Veterans Affairs – Applicant pushed into shallow water during service – head and wrist injuries – whether neck injury – whether trauma to cervical spine – discussion of 'acute' & examination of recent Federal Court decisions – decision set aside.
Harris v Repatriation Commission 2000 FCA 873
Arnott v Repatriation Commission 2000 FCA 1336
Harris v Repatriation Commission 2000 FCA 1687
Arnott v Repatriation Commission 2001 FCA 262
Gorton v Repatriation Commission 2001 FCA 286
Repatriation Commission v Thompson 2001 FCA 341
Repatriation Commission v Keeley 2000 98 FCR 108

REASONS FOR DECISION

18 May 2001 Mr J. Handley, Senior Member Mr I. Campbell, Member Dr P. Fricker, Member

On 30 October 1998 the respondent refused a claim made by the applicant for acceptance of the conditions of cervical spondylosis and lumbar spondylosis.
On 11 October 1999 the Veterans Review Board ("VRB") amended the diagnosis of lumbar spondylosis to include lumbar disc prolapse and affirmed the decision previously made by the respondent.
The VRB decided to adjourn the hearing with respect to the claim for acceptance of cervical spondylosis. On 10 April 2000 the VRB then affirmed the decision previously made by the respondent with respect to that condition.
The hearing of this application concerned cervical spondylosis only. The applicant abandoned any review with respect to lumbar spondylosis with lumbar disc prolapse.
At the hearing Mr Croyle appeared on behalf of Mr Lavelle and Mr Herman appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons.
Mr Lavelle is presently 76 years of age having been born on 26 May 1924. He was a member of the Australian Army and all service was undertaken within Australia. Mr Lavelle presently has the conditions of bilateral sensori neural hearing loss with tinnitus and osteoarthrosis of the right wrist accepted as war-caused. He presently receives a disability pension at 50% of the general rate.
The applicable Statement of Principle having regard to the date of the primary decision of the respondent was Instrument No. 57 of 1998 entitled "cervical spondylosis" (refer later).
The relevant factor that must exist before it can be said on the balance of probabilities that cervical spondylosis is connected with the circumstances of service was 5(g), which says-
"suffering a trauma to the cervical spine within 25 years immediately before the clinical onset of cervical spondylosis".
The words "trauma to the cervical spine" are defined at paragraph 8 of the Instrument as follows-
"Trauma to the cervical spine means a discrete injury to the cervical spine that causes the development within 24 hours of the injury being sustained of acute symptoms and signs of pain, tenderness and altered mobility or range of movement of that part of the spine. These acute symptoms and signs must last for a period of at least 10 days immediately after the injury occurs".
The condition of "cervical spondylosis" is defined at paragraph 2(b) of the Instrument as follows-
"for the purposes of this Statement of Principle 'cervical spondylosis' means degenerative changes affecting the cervical vertebrae and/or intervertebral discs causing local pain and stiffness and/or symptoms and signs of cervical cord or cervical nerve root compression attracting ICD code 721.0, 721.1 or 722.4".
The hearing of this application commenced on 20 March. On 16 March, Spender, Marshall and Merkel JJ, published a decision in Arnott v Repatriation Commission 2001 FCA 262. That decision assumed significance in these proceedings and was the subject, in part, of the summissions made by Mr Croyle at the conclusion of the hearing.
Thomas Kevin Lavelle
Mr Lavelle completed a proof of evidence on 22 May 2000. It was received into evidence as Exhibit C. Omitting formal parts and the last two paragraphs which referred to a smoking history, the proof of evidence is reproduced as follows-
"I relate my current neck condition to an incident which occurred during war service in October 1943 when I was at Barron Falls (outside of Cairns). Barron Falls was a recreation area. I was pushed from an embankment into the shallow end of a pool. The fall from the embankment was about six feet. The shallow end was only about 18 inches of water deep. I fell headfirst and I suffered a fracture to the right wrist, which I put out to break my fall. The top of my head struck the bottom of the pool and I suffered a laceration wound but also hurt my neck. I still have a scar on the top of my head from the incident. After the fall I got to my feet but I was in severe pain and badly shaken. The mate who pushed me (Tom James-now deceased) clambered down the embankment and assisted me. We immediately went back to camp. I was in the Search Light Station. At the time we were stationed at Fresh Water. There were thirteen of us in the Search Light Station and we had no RAP. The nearest RAP was stationed at Headquarters in Cairns. I did not report my injuries on the evening of the incident even though I had severe pain in the right wrist and neck. I hoped that the pain would settle overnight. I was taken to the RAP the next day because of the severity of the symptoms in my wrist and neck.
The RAP referred me to Cairns Hospital. I complained about both my wrist and neck pain. I was not suffering any pain or altered sensation from my neck referred into the arms at the time. Although I complained of neck pain, arrangements were only made to x-ray my wrist. I was transported to Mareeba for the x-ray. The x-ray revealed a fractured wrist. It was plastered and I was sent back to Cairns Hospital.
I was admitted to the Cairns Hospital. Apparently my records show that I was an inpatient at the Hospital for some seven days but I thought it was a longer period in which I was hospitalised (although I accept that my memory might be incorrect due to the lapse of years).
My neck was not put in a brace whilst I was in hospital but the nursing staff, having been made aware of my neck pain, positioned the pillows on my bed in such a way as to protect and immobilise my neck. The only treatment for my neck was to keep it immobile between the pillows and I was given some medication for pain relief (which I think was Aspro). It was my understanding at the time that I was being kept in hospital because of concern about my neck injury (rather that the wrist injury). I recall that the nursing staff were concerned about my neck and frequently asked after it.
I recall that I had acute pain in my neck and limitation of movement for the whole time I was in hospital. I still had acute pain and limitation of movement of the neck following discharge from the hospital. The neck pain gradually improved thereafter to the point where I was left with a constant dull ache which from time to time flared into a more acute ache. I found that certain activities (such as sharp quick movements with my neck) aggravated the symptoms.
I do recall applying to join the Parachute Battalion within a couple of weeks after discharge from the hospital. I was still having neck pain and wrist pain when I applied but I was determined to serve overseas and saw that joining the Parachute Battalion was the best way of achieving that end.
I had to undergo a full medical examination when applying for a position in the Parachute Battalion. Unfortunately, the results of that medical examination have not been produced by the Department of Veterans' Affairs so far in my claim. It is my recollection that I was rejected from the Battalion because of the pain and limitation in my neck. I recall that I tried out for approximately ten days but I simply could not cope with the activities of that Battalion because of the neck pain (and to a lesser extend the wrist pain – although the wrist pain was improving much faster than was my neck at that stage).
I continued to suffer neck pain throughout my service. I did not report it at my pre-discharge medical examination because I was anxious to be discharged as soon as possible and did not want to jeopardise an early discharge.
After service I became a cartage contractor. I was carting timber and general supplies. I was working as an owner/driver. I did not have to load my truck – although I did supervise the loading. Although I had neck pain I was able to cope with the driving duties initially. I did not drive interstate – I only drove on a local run. By 1963 I found that my neck pain was such that I could no longer cope with the driving duties. At that stage I obtained employment as a dispatch manager with Beecham Wright Pty Ltd.
To the best of my recollection I first saw a doctor after discharge about my neck pain in about 1961. To my recollection, this was Dr Poutsma of Kingsville. He gave me anti-inflammatory medication and suggested that I consult a chiropractor (which I did). Initially I obtained treatment from Footscray Chiropractic Service and later I saw Kevin King (who was a chiropractor).
I had not suffered any injury to my neck either before my war service years or after my discharge. My neck pain has gradually worsened over the years.
My current treating doctor is Dr H Lifson of Altona Meadows Medical Clinic. He has been my treating doctor for about fifteen to twenty years.
I do not have a treating orthopaedic surgeon.
I do not recall suffering any low back pain during service. I started suffering pain in the low back in the late 1960's/early 1970's. I noticed the pain during my duties as the dispatch manager at Beecham Wright. My duties at that company were wholly supervisory and I had no manual work at all. My back simply started troubling me. I did then seek treatment for my low back pain at the Footscray Clinic. To the best of my recollection the Doctor whom I saw there was Dr Phillips. I also saw a chiropractor at the Footscray Chiropractor Service (formerly of Paisley Street, Footscray although I do not know if they are still in existence).
In about 1984 or 1985 I hurt my back at work when I slipped on a pool of oil. I saw Dr McGowan who works in the Spotswood Clinic of Dr Lifson's group. I did make a claim against my employer for the injuries in this accident and was represented by Slater and Gordon. I received a lump sum payment for my injuries. The fact is that the incident did not cause the symptoms in my low back; it aggravated pre-existing symptoms".
Mr Lavelle – in reference to his proof of evidence – said that he was pushed from the edge of a cliff approximately 6 or 7 feet above the level of the water that he fell into. He said he fell head first and put out both hands to break the fall. Mr Lavelle said that his head came into contact with pebbles and gravel at the bottom of the water and he suffered lacerations to the top of his head. He also said that he suffered a fracture of his right wrist.
The applicant recalled severe pain at the back of his neck and across his shoulders and into his right wrist. He said the pain became worse later that day and he attended a regimental aid post the next morning. He was taken to the Cairns Hospital being approximately 10 miles from his camp (which was then located at the Cairns showgrounds). Apparently x-ray facilities were not available at the Cairns Hospital and he was taken by supply truck to the Mareeba Hospital for x-rays. His right wrist only was x-rayed. He said that a doctor "looked" at his neck and said there was nothing wrong. Mr Lavelle recalled returning to the Cairns Hospital on that day by ambulance and was admitted to hospital where he remained as an in patient for approximately 10 days.
Mr Lavelle said that he continued to complain of neck pain when he returned to Cairns and was immobilised in bed. He said that two pillows were positioned against the side of his head and he lay flat on a mattress. He said asprin was given to him each morning and he was examined from time to time by a doctor.
Mr Lavelle said that he was confined to bed because of the neck injury, which continued to remain painful. His wrist had also been immobilised in a plater cast.
After approximately 10 days Mr Lavelle was discharged. He had previously applied to join a parachute battalion and travelled to Brisbane approximately one month after discharge for the purposes of undertaking examination and training to qualify for enlistment. He said he was required to vigorously exercise, including push-ups and climbing ropes but was unable to complete the exercises because of neck and wrist pain. He said it was obvious to the instructors that he was in pain and had limited movement of his neck. He completed a medical examination and was told the following day that his application was refused. Mr Lavelle recalled that on examination at Brisbane his neck was "very sore".
With respect to the pain and limitation of movement in his neck, Mr Lavelle said that immediately after the fall the neck pain was "quite severe". He said pain extended across the back of his neck and at the bottom of his neck across his shoulders. He said he had never suffered pain like it previously. He said the pain was sharp and very severe and whilst it eased later on the day of the fall, it became worse later that night. Mr Lavelle said the doctors placed greater emphasis on his right wrist than his neck despite his persistent complaints. He said his neck was no better on the following day when he was admitted to the Mareeba Hospital for x-rays. At Mareeba he said a doctor held his head and attempted to move his neck which created additional pain for which he complained. He said the doctor instructed the nurses at the Cairns Hospital to admit him with pillows placed beside his head.
Upon discharge from hospital Mr Lavelle said that his symptoms continued and he was placed on light duties. He continued to have pain in his neck and shoulders and since that time he has had a numb sensation and pain in his neck and across his shoulders. Mr Lavelle acknowledged that he did not complain of his neck injury when discharged because he was anxious to "return to Civvy Street".
After Mr Lavelle returned to civilian life he was initially employed as a truck driver which he said caused neck pain when driving. He was eventually offered a job as a dispatch clerk, and as a supervisor and because it did not involve any physical work he "jumped at it".
The applicant has attended a chiropractor on a number of occasions at the referral of Doctor Poutsma in Kingsville in the early 1960's. He said Doctor Poutsma also prescribed medication which provided some help. Mr Lavelle acknowledged that he had back pain also in the 1960's and the medication provided by Doctor Poutsma relieved both neck and back pain.
When Doctor Poutsma retired Mr Lavelle commenced treatment under Doctor Lifson.
Mr Lavelle said that he is unable to sleep lying down and uses a horseshoe shaped pillow where he sleeps in an upright position. He said his neck continues to be "very tender".
In cross-examination Mr Lavelle said that his right wrist was strapped following the fall and before admission to Mareeba. He had no recollection of a slab being also applied to the wrist but his attention was drawn to the medical records within the T-documents which referred to a plaster slab having been fitted. He acknowledged that a plaster cast was applied to his wrist following x-rays at Mareeba. Mr Lavelle was adamant that he was informed that his wrist was fractured despite the medical records indicating that no fracture was detected. He said his right wrist was encased in plaster because of the fracture and the plaster remained fitted for three weeks.
Mr Lavelle said his neck was examined at the Mareeba Hospital but the doctors "didn't think anything was seriously wrong". He said he returned to Cairns in an ambulance which travelled on an unmade road. He described the journey as "dramatic".
Upon discharge from hospital Mr Lavelle said that he was told to be careful and was confined to light duties. He agreed that he would have been confined to light duties in any event because of his wrist injury. He said he was unhappy about being discharged but he was a member of a searchlight station only, which required him to exercise little physical activity. He said the only work that was undertaken after discharge was polishing of the glass lens of the searchlights and turning a wheel attached to radar apparatus which was about three or four inches in diameter only and required no physical exertion.
Mr Lavelle acknowledged that the records within the T-documents indicated that he travelled to Brisbane to participate in the examination prior to entering into the parachute battalion approximately 10 or 12 days after discharge. Mr Lavelle thought that it was approximately two months after discharge. Nonetheless he said that he had applied for the parachute battalion three weeks before his fall and was still anxious to become a member of it, despite his neck and wrist injuries.
Approximately 9 months after the fall Mr Lavelle was transferred from the searchlight station to a salvage unit in Darwin where he supervised other drivers and eventually became a staff driver and a stretcher-bearer. He said he continued to have neck pain and discomfort and was supplied with asprin which he acquired from supply trucks which visited the base. Mr Lavelle said the asprin provided temporary relief only.
With respect to the medical records within the T-documents, Mr Lavelle agreed that he frequently attended sick parade for a number of other illnesses and injuries. He said he did complain from time to time of neck injury and was given asprin.
After discharge Mr Lavelle was initially employed as a labourer on the waterfront driving a crane and then became an owner/driver of a 7 tonne tray/truck which carried timber. He said the work on the waterfront was not heavy and the truck driving caused discomfort because the steering was not power assisted. He said the truck was loaded by crane or by forklift and was unloaded by tipping.
Some years later he suffered an injury at work where he injured his hip and back and was awarded a lump sum of compensation.
Mr Lavelle was taken to a medical report taken by Doctor Lifson on 19 October 1998 found at page 35 of the T-documents. The document records the opinion of Doctor Lifson that the "clinical onset of the cervical spondylosis" was "+/- 7-8 years ago". It was put to Mr Lavelle that if this opinion was accurate it would suggest that the clinical onset of cervical spondylosis was in the early 1990's. Mr Lavelle rejected this and said that he could not understand why Doctor Lifson would make this recording. He said it was not discussed with him at the time the report was made and he did not know the source of the information relied on by Doctor Lifson.
Mr Lavelle was also taken to page 31 of the T-documents where another report completed by Doctor Lifson is found. It records trauma to the cervical spine "+/- '43" and also records that the trauma occurred when the applicant "dived into shallow water (? Pushed) – landed on head and R wrist".

The form also asks the question "Did the trauma to the joint result in" either "permanent ligamentous instability from the time of the trauma" and/or "symptoms within 24 hours of pain, tenderness and altered mobility or range of movement, and "neither". Doctor Lifson ticked the box against the word "neither". Mr Lavelle was unable to explain this answer.
In re-examination Mr Lavelle said that following the fall into the water which he said was from a height of between 6 and 8 feet into water which was between 6 and 8 inches deep, he had his head wound cleaned and sticking plaster was applied after his hair was shaved. He said sutures were not applied "because there was not enough flesh".
Mr Lavelle said that the documents provided by the respondent were incorrect. He said he was admitted to Cairns Hospital and Mareeba Hospital on the same day. He said asprin was provided only for his neck pain and not for wrist pain.
Max Wearne
Mr Wearne is an orthopaedic surgeon. He examined the applicant on 6 March 2000 and provided a report dated 9 March 2000. In his report Mr Wearne had a history of the applicant suffering neck and wrist injuries in September 1943 when in Cairns. He noted that the applicant told him that most of the force was taken with his right hand but he did strike the top of his head and suffered lacerations.
Mr Wearne said that he believed that the applicant did suffer form cervical spondylosis and that he satisfied the applicable Statement of Principle. He noted that the applicant suffered immediate neck pain which had "slowly subsided" since the day of injury but that the applicant has continued to suffer a numb sensation in the back of his neck. He noted that there was clinical evidence of cervical spondylosis confirmed by CT and MRI scans.
Mr Wearne was of the opinion that the clinical onset of cervical spondylosis started at the time of the fall. That is the clinical onset occurred at the time the applicant struck his head.
When he was asked to comment on the absence of documented records concerning the neck injury Mr Wearne said that he thought it was very unusual for the applicant to be detained as an in patient in a hospital if he was being treated for a fractured wrist only. He said it was inconceivable that the applicant would be detained for between 7 and 10 days and confined to bed rest with his head positioned between two pillows if he was being treated for a wrist injury only.
He noted that the applicant had his wrist x-rayed at Mareeba but thought that the x-ray equipment would have been primitive and would have been difficult to x-ray his neck at that time.
Mr Wearne was also of the opinion that the applicant satisfied the definition of 'trauma to the cervical spine'. It was his opinion that the applicant did suffer from pain and tenderness and altered mobility or range of movement. He believed that the symptoms were "acute" and he believed that the symptoms were "sharp" and "acted keenly on the senses" (refer Finn J, in Harris v Repatriation Commission 2000 31 AAR 270).
In cross-examination Mr Wearne maintained his view that the applicant must have been hospitalised for reasons other than his wrist injury alone. He thought that confining the applicant to bed with his head resting between two pillows was a form of splinting which was common treatment then for neck injuries.
Mr Wearne also maintained the view that the x-ray equipment would have been primitive and was not satisfied that the applicant did not suffer a fracture of his wrist. He noted that the records indicated that a fracture was not present however he noted that the applicant was tender over the navicular bone, which he said was notorious for fractures. He said that it was common for the navicular bone to fracture but "snap shut" and may not have been seen on x-ray however a "wise Doctor" will confine the wrist to a plaster cast on the assumption that a further x-ray 3 or 4 weeks after the trauma would then note the presence of a fracture.
Mr Wearne thought that the applicant would not have been kept in hospital for between 7 and 10 days pending the results of x-rays being known. He thought it was surprising that there was no documented record of neck injury or treatment for it but assumed that the hospital must have been preoccupied with the applicant's wrist injury. He thought the applicant was a truthful witness and would not "invent a story" involving his head being propped between pillows. Additionally he thought that an explanation for an absence of recording of any advice concerning future management of the applicant's neck was because the Doctor's were of the opinion that he had no long term neurological problem.
When asked to comment on the report of Doctor Lifson who thought the clinical onset of the cervical spondylosis was in the 1990's, Mr Wearne said that on the history that he obtained the clinical onset would have been much earlier.
Mr Wearne was of the opinion that the fall would not have been the only explanation for cervical spondylosis. He noted that the applicant's age may have some responsibility but in his report he referred to the fall being a "significant contributory cause". On the history that he obtained of the applicant striking his head on the bottom of a shallow pool of water with sufficient force to lacerate his scalp and cause a jarring of his spine, there would have been sufficient damage to the soft tissues of one or more intervetebral discs which would have precipitated cervical spondylosis.
Conclusion & Reasons For Decision
In this application the entitlement of the applicant, if any, is to be determined upon the balance of probabilities.
In order to determine whether "it can be said" that cervical spondylosis is connected with service the factor "that must exist" and relied upon by the applicant was factor 5(g) of Instrument No 57 of 1998.
We are satisfied upon the evidence of Mr Wearne and upon the reports of the CT scan and MRI scan as found within the T-documents that the condition "cervical spondylosis" as defined at paragraph 2 of the above instrument has been satisfied.
Whether it is "connected with the circumstances" of service depends on whether the applicant suffered a "trauma to the cervical spine within the 25 years immediately before the clinical onset of the cervical spondylosis".
"A trauma to the cervical spine" is defined at paragraph 8 of the Instrument. "Clinical onset" is not defined.
We are satisfied that Mr Lavelle is a witness of truth. We are satisfied that he was either pushed or he fell from an embankment being 6 to 8 feet above the level of water into which he fell. We are satisfied that the water depth was between 6 to 8 inches. We are satisfied that he reached out with both hands to break his fall but regrettably he suffered a right wrist injury in addition to lacerations to the top of his head which were occasioned with him striking his head on gravel at the bottom of the pool.
Despite Mr Lavelle being of the understanding that he suffered a wrist fracture, it would appear from the documents filed that no fracture was detected at x-ray. Nonetheless we are mindful of the evidence of Mr Wearne that an injury to the navicular bone is notorious with not demonstrating fracture upon x-ray if the x-ray is taken within a matter of days of the traumatic event. It is, according to his evidence, more likely to be observed some weeks later. Nonetheless his wrist was initially placed into a plaster splint and wrapped in a crepe bandage. It was later placed into a plaster cast following x-rays.
Mr Lavelle said that he initially suffered severe pain in the back of his neck and pain across his shoulders. He said he continued to suffer a numb sensation in his neck and shoulders to the present day, together with pain. He is unable to sleep conventionally and uses a horseshoe shaped pillow and adopts a partially seated position whilst sleeping.
Mr Lavelle said that he was taken to a regimental aid post shortly after the episode but by reason of inadequate facilities he was transferred to a hospital in Cairns. Apparently x-ray facilities were not available and he was transferred to Mareeba. We note that it is some 58 years since this event occurred and it would be unreasonable to expect that Mr Lavelle's memory would be accurate. We adopt the records found within the T-documents as to a contemporaneous chronology of the events and accept that there was some delay between admission to Cairns and referral to Mareeba for x-rays. Nonetheless on the evidence heard and from the documents read there was a period of at least 10 days between the initial event and the discharge eventually from Cairns Hospital, during which time the symptoms referred to within the definition of "trauma to cervical spine" did exist (refer later).
Mr Lavelle was largely unable to explain the absence within the records of the treatment to his neck as he described. He said he was treated by Doctors and given asprin. He said that a doctor examined his neck at Mareeba and he was confined to bed at the Cairns Hospital by lying flat on the mattress with his head immobilised between two pillows.
Mr Wearne said that the applicant would not have been confined to hospital for 10 days with a fractured wrist only (this has become even more controversial when it has now become known that there was no fracture). It is inconceivable that he was confined to hospital because there was little else to do at the base. However, it is conceivable that he was confined to hospital in a supine position as he described because of concern for a neck injury.
The respondent invited us to infer that a non-existent or trivial neck injury is the explanation for an absence of records. We were not prepared to accept this submission. That the applicant was confined to bed with his head immobilised between pillows suggest to us that the injury could not be trivial. Whilst we can think of no reason why that confinement could not have at least have been recorded it would suggest that by reason of a doctor attending apparently only on every third day and then to prescribe asprin that there was little by way of treatment offered to Mr Lavelle.
The applicant was also questioned as to the severity of his neck injury by reason of him presenting for entry into a parachute battalion within 10-12 days of discharge from hospital. It was said this was inconsistent with a severe neck injury.
Mr Lavelle explained that he infact had applied to join the parachute battalion prior to his neck injury (as opposed to what he recorded in his proof of evidence) but was apparently an abject failure at the manoeuvres designed to test applicant's for this battalion. He said he failed the entry qualification because he was unable to complete manoeuvres by reason of his neck and wrist injuries. This does not suggest to us that the applicant had an insignificant or trivial injury. That he failed the entry qualification – he being a person who prior to the neck injury was otherwise fit and healthy – suggests to us that it was his neck injury (in whole or part because of his wrist injury) which precluded him from qualification, that being the same neck injury which occurred following the fall into water some weeks earlier.
Mr Lavelle said that he largely worked light duties at the searchlight station following discharge from hospital and then worked in Darwin either supervising or being a staff driver. Upon discharge from the Army he was engaged on the Melbourne waterfront operating a crane and then he became a self-employed truck driver but happily gave up that employment (which required him to drive a truck without power steering) when he was offered a supervisors position.
We can find nothing in his work as a civilian which would suggest that there has been any contribution to the neck injury by employment or otherwise. In all probability his present age – 77 years – would account for some degenerative process in his spine but the precipitator of the cervical spondylosis was the fall into water in 1943.
We are not satisfied that the "clinical onset" occurred at the time of the fall as was the opinion of Mr Wearne. We are satisfied that cervical spondylosis is a degenerative disease process which would not have had its onset at the time of the traumatic episode. We are satisfied that it would have occurred sometime later and relevantly in or about the early 1960's when Mr Lavelle was being treated by Doctor Poutsma and the chiropractors to whom he was referred by Doctor Poutsma. The onset then – in a clinical environment – would have been within 25 years of the "trauma" thereby satisfying part of factor 5(g). It follows that we are satisfied that the entries made by Doctor Lifson are incorrect and are inconsistent with the evidence.
The issue which has caused us the greatest concern and which was a prominent issue at the hearing was whether the definition of "trauma to cervical spine" had been satisfied. The word 'acute', as it appears in the definition has particularly attracted some recent judicial analysis.
On 4 July 2000, Finn J in Harris v Repatriation Commission at 2000 FCA 873 decided that the word "acute" (adopting a shorter Oxford English dictionary definition) meant that the signs and symptoms must be "sharp or act keenly on the senses …. there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends the definition contemplates a significant injury".
On 19 September 2000, Sundberg J, in Arnott v Repatriation Commission 2000 FCA 1336 decided that "acute" contemplates-
"symptoms etc that are severe or significant".
On 24 November 2000 a Full Federal Court of Whitlam, Sackville and Mansfield JJ in Harris v Repatriation Commission 2000 FCA 1687 (being an appeal against the decision of Finn J – above), whilst not specifically referring to "acute" said at paragraph 50 and part of paragraph 51-
"For its part the Commission relied on the primary judges construction which has since been adopted in two judgements at first instance. In Arnott v Repatriation Commission 2000 FCA1 336, Sundberg J, followed a similar approach to that of the primary Judge. In Mason v Repatriation Commission 2000 FCA 1409 Weinberg J said that an interpretation of the definition of the AAT consistent with the approach of the primary Judge in the present case was correct.
In our view the construction adopted by the primary judge accords with the ordinary meaning of the words in the definition."
On 16 March 2001 a Full Federal Court of Spender, Marshall and Merkel in Arnott v Repatriation Commission 2001 FCA 262 (being an appeal against the decision of Sunberg J, - refer above), decided at paragraph 30, 31 & 32-
"in substance Harris was concerned with whether there was material before the AAT that raised a case of "acute" altered mobility or range of movement for at least a week after the injury for the purposes of the 1995 SoP. However in my view, the views expressed at first instance and on appeal of the meaning of "acute" symptoms or signs in the sense of being "sharp" acting "keenly on the senses" or being "significant manifestations" appropriately define the word "acute" as used in both the 1995 and the 1999 SoP's. The Macquarie dictionary definitions of "severe" cannote relevantly a pain that is extreme or harsh. Thus although the difference in degree may not be substantial, an "acute" pain does not necessarily equate with a "severe" pain.
Importantly for present purposes as the AAT addressed only the question of whether the pain was "sudden" and "severe" it failed to address the question of whether the pain was "acute" as defined in Harris which was the question required to be addressed in stage 3 in Deledio; see Harris at 281 per Finn J. Similarly the AAT also erred in law in incorrectly requiring that for a pain to be "acute" it must be "severe".
It follows from the foregoing that the primary Judge also erred in dismissing the appeal to him on the ground that it was "plainly open" to the AAT to conclude "on the evidence" that the pain was not "acute" because there was no evidence that it was "severe"".
The significant difference appears to be that the Full Federal Court in Arnott has determined that there is no warrant for use of the word "severe" when comprehending what is intended to be meant by the word "acute" as it appears in the Statement of Principle.
In the present case, from the evidence heard and read and being guided by the above decisions we are satisfied that the applicant did suffer trauma to the cervical spine because-
"i) he did suffer a discrete injury to his cervical spine which
ii) caused the development within 24 hours of it being sustained of
iii) acute symptoms and signs of pain, tenderness and altered mobility or range of movement being
iv) symptoms and signs, which were "sharp" and "acted keenly on the senses" and on the evidence there were "significant manifestations, variously of pain, of tenderness, and of altered mobility"; and
v) the acute symptoms and signs did last for a period of at least 10 days immediately after the injury occurred".
We are satisfied that the trauma to the cervical spine did occur within 25 years of the clinical onset of cervical spondylosis. The onset is impossible to identify, but it was at some time after the date of the fall in October 1943 and before consulting with Doctor Poutsma in the early 1960's. We are also satisfied from the reports read and from the evidence of Mr Wearn that the condition of cervical spondylosis as defined does exist.
Subsequent to preparing these reasons, we heard of a decision of Stone J, in Gorton v Repatriation Commission 2001 FCA 286 decided on 23 March 2001. We also learnt of a decision of Drummond, Whitlam and Emmert JJ, in Repatriation Commission v Thompson 2001 FCA 341, decided on 2 April 2001.
Having learnt of these decisions we then invited both representatives to make any submissions concerning the applicability, if at all, of both Gorton and Thompson. Both representatives did subsequently lodge written submissions.
Gorton is a departure from the principles enunciated in Repatriation Commission v Keeley 2000 98 FCR 108. Keeley decided that the entitlements of a veteran to a pension should be determined by reference to a Statement of Principle in force when the Commission determines the claim.
Stone J, in Gorton decided that a more favourable Statement of Principle, irrespective of its date of issue, should be applied. Thompson involved a case where an applicable Statement of Principle was issued after the Veteran's Review Board hearing but before the AAT review. Whilst the factual foundation differs, the Full Court by majority decided Keeley should apply.
We have decided, without any disrespect intended towards Stone J, to follow the Full Court decision in Thompson and therefore continue to apply Keeley. This is because Thompson is later in time than Gorton, it is a decision of a Full Federal Court and to continue to follow Keeley is consistent with what has become settled law.
It follows that Statement of Principle 57 of 1998 applies. For the reasons given earlier we are satisfied that cervical spondylosis is therefore connected on the balance of probabilities to the service of the applicant. The decision under review should be set aside and a new decision substituted to reflect these findings. The application should be remitted to the respondent to assess entitlement to pension in accordance with these findings.
I certify that the 78 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member, Mr I. Campbell, Member
& Dr Fricker, Member.
Signed:         .....................................................................................
  Personal Assistant
Date/s of Hearing  20 March 2001
Date of Decision  18 May 2001
Counsel for the Applicant        Mr Croyle, Williams, Winter & Higgs
Solicitor for the Applicant
Counsel for the Respondent    Mr Herman, Departmental Representative
Solicitor for the Respondent