Le-Van and Military Rehabilitation and Compensation Commission (Compensation)
[2025] ARTA 2177
•17 October 2025
Le-Van and Military Rehabilitation and Compensation Commission (Compensation) [2025] ARTA 2177 (17 October 2025)
Applicant/s: Martin Le-Van
Respondent: Military Rehabilitation and Compensation Commission
Tribunal Number: 2023/8202
Tribunal:Deputy President O'Donovan
Place:Brisbane
Date:17 October 2025
Decision:The Tribunal affirms the decision under review.
Statement made on 17 October 2025 at 11:41am
Catchwords
VETERANS’ AFFAIRS – claim for liability for lumbar spondylosis – claim for liability for chronic low back pain – whether the applicant suffered an ailment or aggravation of ailment – whether applicant suffers from a disease as defined under s 5B of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 - whether an ailment or aggravation was contributed to, to a significant degree by the applicant’s employment – whether applicant suffered an ‘injury’ other than a disease
Legislation
Administrative Review Tribunal Act 2024 (Cth)
Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) s 14Cases
Australian Postal Corporation v Bessey [2001] FCA 266
Statement of Reasons
The applicant served in the Royal Australian Navy (‘RAN’) Reserves from 29 June 1976 to 19 April 1983. In that time, he performed in an RAN band. He presented for service for a combined total of 28 days.
On 15 August 2016 the applicant made a claim in relation to a back problem said to have been sustained as a result of performing various lifting and carrying tasks as a band member. These tasks were said to have aggravated a back problem that had been the subject of back surgery prior to his enlistment.[1] On 6 January 2017 the respondent denied liability for the claimed condition. A delegate affirmed that determination on 11 July 2017.
[1] T Documents, T8, 105.
On 20 April 2021 the applicant made a further claim for compensation for ‘chronic low back pain’. The applicant said that he believed his service caused, contributed to or aggravated this condition because he was ‘ordered to lift, carry and set up band equipment’ and he had ‘long periods of parading, kneeling and standing with the RAN band’.[2] On 3 March 2022 a delegate of the respondent declined liability for the claimed condition under s 14 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (‘DRC Act’).
[2] Ibid, T7, 290.
On 16 October 2023 a delegate of the respondent affirmed the determination dated 3 March 2022. On 2 November 2023 the applicant lodged an application for review with the Administrative Appeals Tribunal (‘AAT’). On 17 January 2024 the applicant provided a statement that asserted that he ‘slipped and fell…sustaining a back injury’ on 18 November 1979.[3]
[3] Statement of Applicant dated 17 January 2024 (Hearing book, A1, 58)
Following the passing of the Administrative Review Tribunal Act 2024 (‘ART Act’), the application was transferred to the Administrative Review Tribunal (‘Tribunal’) for determination. The matter was heard on 8 October 2025. At the hearing the applicant gave evidence that on 18 November 1979 he slipped and fell on his tail bone while on duty with the RAN. Before that fall his back had not been symptomatic and after that he has had pain ever since.
The applicant contends that he suffered an injury on 18 November 1979, namely an aggravation of a previous non-work-related back injury. The applicant contends that Dr Journeaux, an orthopaedic surgeon who prepared a report dated 20 December 2024 at the request of the respondent, supports the claim.[4] It is unclear from the applicant’s statement of facts, issues and contentions whether he contends that he is claiming for a frank injury or a disease. The respondent has responded to the claim on both bases.
[4] Applicant’s Statement of Facts, Issues and Contentions dated 16 July 2025.
The respondent:
(a)accepts that the applicant is suffering from an ailment – namely a multilevel degenerative change of the thoraco-lumbar spine;[5]
(b)denies that the applicants service in the RAN contributed to it at all or to a significant degree and in particular denies that there has been any aggravation, acceleration or recurrence of the claimed condition that is referable to the applicant’s service and consequently the applicant does not meet the requirements for a disease as defined in the DRC Act;[6]
(c)denies that the there is sufficient evidence to be satisfied that the applicant suffered a frank injury on 18 November 1979;[7] and
(d)submits that the Tribunal should reject the frank injury claim on the basis that the applicant failed to give notice as required by s 53 of the DRC Act.[8]
[5] Respondent’s Statement of Facts, Issues and Contentions dated 29 April 2025, [39]-[40]
[6] Ibid, [45]-[49]
[7] Ibid, [50]-[52]
[8] Ibid, [53]-[55].
I am not satisfied that the applicant’s RAN service contributed to the multi-level degenerative change of his thoraco-lumbar spine. The ongoing pain from which the applicant suffers is due solely due to an injury suffered by the applicant in 1975 while he was in civilian employment. It is the effects of this injury and its effect on underlying degenerative disc disease in the applicant’s spine that is causing his symptoms of ongoing pain.
I am not satisfied that the applicant suffered any injury on 18 November 1979. Even if I was, there is no evidence that the injury is contributing to the symptoms the subject of the claim.
It is unnecessary for me to determine whether s 53 of the DRC Act should be applied.
The decision under review is affirmed. My reasons for this decision are set out below.
Evidence
The following documents were taken into evidence
Exhibit Description T T Documents, consisting of T1 to T83, paginated 1 to 421
ST Supplementary T Documents, consisting of ST1 to ST4 paginated 422 to 653.
R1 Report of Dr Simon Journeaux, consultant trauma and orthopaedic surgeon dated 20 December 2024 R2 Hadjipavlou et al, ‘The Pathophysiology of Disc Degeneration’ J Bone Joint Srug [Br] 3008;90-B:1261-70. R3 Samartzis et al, ‘ Disk Degeneration and Lower Back Pain: Are They Fat-Related Conditions’ Global Spine J 2013;3:133–144. R4 Brinjikji et al, ‘Systematic Literature Review of Imaging Features of Spinal Degeneration in Asymptomatic Populations’ Am J Neuroradiol 36:811–16 A1 Applicant’s Statement dated 17 January 2024 A2 Applicant’s Statement dated 22 February 2024
In addition to the documentary evidence, the applicant and Dr Simon Jorneaux gave oral evidence and were cross-examined at the hearing.
Facts
The applicant was born on 11 June 1950. Prior to his enlistment in the RAN Reserve, he worked at Trittons Furniture and Electrical. In January 1975 the applicant injured his back while moving a large refrigerator. He felt a sharp pain in his lower back and had to go home and rest. He was referred by his GP to an orthopaedic surgeon and underwent a laminectomy and fusion at L4/5 S1. [9]
[9] T Documents, T8.1, 111.
In June 1976 the applicant joined the RAN as a reserve bandsman drummer.
The applicant has given a number of accounts of what effect his time in the RAN as a bandmember had on his back injury. In a statement dated 2 August 2016 he stated as follows:
During this time I (as a recruit and low ranking member) I was required and ordered to carry out several loading of band equipment, inc heavy instruments eg Drums, heavy boxes of music stands, and brass band instruments etc etc At some time during 19879 and 1981 I cannot remember the exact date I became sore and experienced several bouts of chronic back pain again causing periods of lost work days at my job. I adventually left the RAN band due to the difficulty involved in continueing with my pain in particular long periods of standing, parading, marching etc and having to carry heavy old drums eg bass drum. Unfortunately band equipment back then was very heavy eg drums made of maple wood and stainless steel unlike new instruments now made of lightweight material eg alloys and also carry straps only were used then not lightweight support cradels. We were just told /ordered to do it without question. I recall one Moomba festival day in Melbourne I was placed on a heavy bass drum and we were left to stand on a hard road in Melbourne CBD for the best part of an hour with the thing strapped to my chest before stepping off. I could not down instrument because the straps take too long to unhitch and hitch up also, it was such a big parade we knew the step off order could be given at any moment. I clearly remember my back was killing me even before a 3 mile march. I resigned in April 1983 as a result of poor health due to constant back pain and associated problems attached to it. I left my job in mid 1979 to seek easier physical employment as a sales representative for a brown goods supplier of Toshiba. [sic]
I have suffered constant pain and suffering ever since my service in the RAN Band…[10]
[10] Ibid, T8.1, 111-112.
In his April 2021 claim, the applicant described the cause of the injury as follows:
Ordered to lift, carry and set up band equipment also long periods of parading, marching and standing with the RAN Band caused my injury which has affected my mental state…[11]
[11] Ibid, T47. 290.
In a witness statement dated 17 January 2024 the applicant stated:
During a 14-day continuous training at HMAS Leeuwin, WA, I slipped on a wet galley floor November 18, 1979 sustaining a back injury requiring me to seek medical treatment and being excused from duties.
Pain lasted for 12-14 days and has now progressed to a severe order over the years to the point I need ongoing treatment for pain management.[12]
[12] Exhibit A1.
There is a document in the T Documents that indicates that the applicant got treatment on 19 November 1979, but it does not say what for.[13] According to the document the applicant was excused from duties for one day.
[13] T-Documents, T63, 342.
At the hearing the applicant gave oral evidence. His evidence was that following his surgery he had a few weeks off work. His injury recovered after the surgery, and he had only occasional minor symptoms, until he slipped and fell on 18 November 1979. After that fall he has had pain in his back ever since.
The applicant’s various reports of the aggravation of his back condition are inconsistent with each other. I am not satisfied that he has any reliable memories of how his back condition came to deteriorate. It is noteworthy that the applicant made no mention of a 1979 frank injury when he first reported on the origin of his back pain. It is also significant that in his 2016 statement he reported that he remembered changing jobs in mid-1979 due to back pain. That is inconsistent with the evidence he gave at the hearing. At the hearing he said he had a largely resolved back injury that was not aggravated until November 1979.
I am sure that the applicant is doing his best to remember how his back problems developed, but too much time has elapsed for him to be able to give a reliable account.
Consequently, I am not satisfied that the applicant’s back condition significantly resolved after his surgery. I am satisfied that he had ongoing symptoms after his back surgery. I am satisfied that these residual symptoms caused him to change jobs in mid-1979 as reported in the statement accompanying his 2016 claim.
I am not satisfied that the applicant slipped and fell in November 1979 and injured his back. The applicant did not mention such an incident until 2024 and the contemporaneous documents shed no light on the nature of the incident that caused him to be given a day off from duties in November 1979.
The applicant ceased performing duties for the RAN Reserve in 1983. Back pain was an issue at that point. I am satisfied that there was symptomatic aggravation of the lower back during performances with the RAN Band until that time. The applicant continued to play in bands after he left the RAN.
The applicant’s back pain continued to increase in the years that followed until he made a claim in 2016.
Medical Evidence
On 20 December 2024 Dr Journeaux, Consultant Orthopaedic Surgeon prepared a report in relation to the applicant having been briefed with documents concerning the applicant’s claim and medical history.
Dr Journeaux concluded as follows:
Having reviewed all the medical evidence, it is evident the claimant had an injury to his low back in 1975. This was a work- related injury. As a result of this injury, he ended up having a lumbar laminectomy and fusion. On the balance of probability, the work related injury would be considered a soft tissue injury to the lumbar spine with an aggravation and acceleration of a degenerate disc pathology at the L4/5 level. A normal disc would not require this surgery and therefore, I can reasonably surmise that on the balance of probability, there was an abnormal disc presenting at that time at the L4/5 level.
After that time, he has developed significant multilevel degenerative change of the thoracolumbar spine because of the natural history of constitutional pathology. The fact he has had a fusion procedure is additive in terms of an acceleration and aggravation due to the higher biomechanical forces/stress imparted to the lumbosacral spine…
It is my view that the claimant’s current presentation relates to the natural history of constitutional multilevel degenerative change of the thoracolumbar spine in the presence of a work-related lumbar spine laminectomy and fusion.[14]
Consideration
[14] Exhibit R1, 20.
On the basis of Dr Journeaux’s report I am satisfied that the applicant is suffering from a physical ailment, namely constitutional multilevel degenerative change of the thoracolumbar spine.
However, to be compensable the ailment or an aggravation of such an ailment must have been contributed to by the applicant’s RAN service.
None of the symptomatic aggravations that the applicant describes as resulting from his performances with the RAN Band are sufficient to constitute an aggravation. Experiencing pain from a pre-existing condition while performing duties is not sufficient to establish an aggravation.[15] There is no evidence to support the conclusion that the applicant’s service contributed to the applicant’s ailment or any aggravation of that ailment. On this issue Dr Journeaux concluded as follows:
In theory, the claimant because of lifting activities and in this case lifting heavy instruments, possibly suffered from an exacerbation in symptomatic terms of lumbar spondylosis. There is no evidence that a pathological aggravation occurred as a result of duties in the RAN Reserve.[16]
[15] Australian Postal Corporation v Bessey [2001] FCA 266 at [12]
[16] Exhibit R1, 23.
In those circumstances the applicant’s disease claim is not made out.
In the alternative the applicant claims that he suffered a frank injury. To succeed the applicant must establish that on 18 November 1979 he suffered an injury arising out of or in the course of his employment. Although the applicant has given evidence that he suffered an injury on that day, the evidence does not persuade me that he suffered the injury he describes in his evidence. Prior to January 2024 the applicant had never given a history of an asymptomatic back condition with a specific aggravation on 18 November 1979. He had given statements previously that were inconsistent with such a history of his back pain. In those circumstances I am not satisfied that the applicant suffered the injury he now describes. For that reason, the claim cannot succeed.
Conclusion
I am satisfied that the decision under review should be affirmed.
Date of hearing 8 October 2025
Applicant’s representative Mr Ken Cullen
Respondent’s solicitor Australian Government Solicitor
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