Mark Dawson and Repatriation Commission
[2014] AATA 546
•8 August 2014
[2014] AATA 546
Division VETERANS' APPEALS DIVISION File Number(s)
2013/1877
Re
Mark Dawson
APPLICANT
And
Repatriation Commission
RESPONDENT
Decision
Tribunal Deputy President RP Handley
Date 8 August 2014 Place Sydney (1) The decision under review is set aside and a decision substituted that Mr Dawson’s conditions of intervertebral disc prolapse at C5/6 and cervical spondylosis are defence-caused.
(2) The Tribunal remits the matter to the Respondent to determine the rate of disability pension payable to Mr Dawson.
..........................[sgd]..............................................
Deputy President RP Handley
Catchwords
VETERANS' AFFAIRS – disability pension – intervertebral disc prolapse – cervical spondylosis – whether conditions are defence-caused – consideration of relevant Statements of Principles – decision set aside and substituted
Legislation
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120, 120B
Cases
Kaluza v Repatriation Commission [2011] FCAFC 97
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gorton (2001) 110 FCR 321
Robertson and Repatriation Commission (1998) 50 ALD 668Secondary Materials
Statement of Principles Concerning Cervical Spondylosis, No. 34 of 2005
Statement of Principles Concerning Cervical Spondylosis, No. 67 of 2014
Statement of Principles Concerning Intervertebral Disc Prolapse, No. 40 of 2007REASONS FOR DECISION
Deputy President RP Handley
Mr Dawson has applied to the Tribunal for the review of a decision of the Repatriation Commission (the Commission) to refuse his claim for a disability pension in respect of the conditions cervical spondylosis and intervertebral disc prolapse at C5-C6.
BACKGROUND
Mr Dawson was born in 1964 and is aged 49. He left school at the age of 16, after which he worked as a labourer and apprentice electrician. Mr Dawson served in the Royal Australian Navy (Navy) from 2 April 1986 to 20 February 1995, which constitutes defence service for the purposes of the Veterans’ Entitlements Act 1986 (the VEA). Mr Dawson worked as an engineering sailor and was a Leading Seaman Marine Technical Propulsion on discharge.
After being discharged from the Navy, Mr Dawson worked as a prison officer for the NSW Department of Corrective Services from 27 January 1998 to 7 October 1998. He was medically retired from this position due to back problems. Subsequently, after working at the Army Military Police Training School, and undertaking their training regime, he felt he was fit enough for Army service. He applied and was accepted into the Australian Army in 2001 but was medically discharged after his symptoms returned on the second day of recruit training. Mr Dawson also worked as a clerk in the Department of Defence for about two years and then for the Australian Security and Intelligence Organisation (ASIO) overseeing maintenance contracts. He said he was dismissed from ASIO as a result of the restrictions imposed by his injuries. Mr Dawson said he currently has a part-time clerical position in the Public Service (in the Office of the Director of Public Prosecutions) at a much reduced income from that which he could ordinarily have expected, given his qualifications. However, he has been unable to work for more than a year.
Mr Dawson has a number of conditions which have been accepted as defence-caused:
·intervertebral disc prolapse with referred pain syndrome right leg (17 June 1998)
·haemorrhoids (1 November 2009)
·sensorineural hearing loss (1 November 2009)
·lumbar spondylosis (1 November 2009)
On 15 April 2011, Mr Dawson lodged a further claim for disability pension in respect of cervical spondylosis and intervertebral disc prolapse at C5-C6, and for an increase in the rate of his disability pension. He is currently receiving a pension at 70% of the General Rate.
On 4 April 2012, a delegate of the Commission decided to refuse his claim for the pension on the ground that it was not defence-caused. On 15 March 2013, the Veterans’ Review Board (VRB) affirmed the decision and, on 26 April 2013, Mr Dawson applied to the Tribunal for a further review.
The Applicant provided the Tribunal with expert medical reports from Dr Medhat Guirgis, Orthopaedic Surgeon, dated 9 October 2013 and 3 February 2014. The Respondent provided an expert medical report from Dr David Millons, Orthopaedic Surgeon, dated 11 November 2013. Both Dr Guirgis and Dr Millons gave evidence at the hearing, Dr Guirgis by telephone. Dr Guirgis said spinal conditions are his special interest.
The Relevant Law
8. Section 70(1) of the VEA provides that the Commonwealth is liable to pay a pension by way of compensation to a "member of the Forces" who was incapacitated from a defence-caused injury or a defence-caused disease.
The issue in the present case is whether the two additional conditions in respect of which Mr Dawson has made a claim are defence-caused injuries or defence-caused diseases. Section 70(5) of the VEA provides that an injury suffered, or a disease contracted, by a member of the Forces is taken to be a defence-caused injury or a defence-caused disease if:
(a) the ... injury or disease, as the case may be, arose out of, or was attributable to, any defence service... of the member.
Pursuant to s 120(4), in determining such issues the Commission (and the Tribunal) is bound to decide matters "to its reasonable satisfaction”. Section 120B(3) states:
(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
The Repatriation Medical Authority has determined Statements of Principles (SoPs) for both claimed conditions: Instrument No 40 of 2007, SoP concerning Intervertebral Disc Prolapse (as amended by SoP No 81 of 2008 and SoP No 39 of 2010), and Instrument No 34 of 2005 concerning Cervical Spondylosis (as amended by SoP No 77 of 2008). SoP No 34, as amended, was revoked when Instrument No 67 of 2014 SoP concerning Cervical Spondylosis took effect on 2 July 2014. The only relevant difference of significance for the purpose of these proceedings is an amendment to the definition of ‘trauma to the cervical spine’ in clause 9 of SoP No 67, which will be referred to in the discussion below.
In Repatriation Commission v Cornelius [2002] FCA 750, at 27, Branson J noted that in the Tribunal proceedings in that matter, the Tribunal accepted the appropriateness of the approach adopted in Robertson and Repatriation Commission (1998) 50 ALD 668, at [23], that:
... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present ...
Branson J noted, at [27], that, by inference, the Tribunal rejected the view of ‘clinical onset’ taken by Professor Sambrook that the earliest date of clinical onset was when the applicant first presented with symptoms suggesting the claimed condition in 1993. Before the Federal Court, neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression "clinical onset" and Branson J said, that “For present purposes, therefore, Professor Sambrook's opinion that "[t]he earliest date of clinical onset of the carpal tunnel syndrome is 1993" … may be disregarded.”
The meaning of ‘clinical onset’ was also considered by the Full Federal Court in Lees v Repatriation Commission [2002] FCAFC 398 (Lees). The Court, at [13-16], found that, in a case involving generalised anxiety disorder, a requirement for the ‘clinical onset’ of the claimed disease of gradual onset was not satisfied by a finding that one of the symptoms prescribed by the relevant SoP might have manifested itself, where other symptoms required by the SoP had not.
The Full Federal Court in Lees also referred to the approach to clinical onset adopted in Robertson. This approach was further clarified by the Full Court in Kaluza v Repatriation Commission [2011] FCAFC 97 (Kaluza). In Kaluza, at [66], the court emphasised that the test for clinical onset is disjunctive. Clinical onset occurs either when symptoms can be identified which would allow a doctor to say that the disease was present at that time or when there is a finding made on investigation when a person attends upon a doctor.
History of Mr Dawson’s Neck and Back Conditions
In a statement dated 17 October 2013 (at paragraph 4), Mr Dawson gave a history of his neck and back pain. The relevant parts of his statement are shown below in italics, followed by reference to further evidence, including Mr Dawson’s oral evidence and relevant medical records.
·7/11/86 – Fall ten feet down metal stairway – pain in left arm and neck, lacerations and dressing on left arm, sling used – 7 days light duties.
Mr Dawson said that after having had lunch at HMAS Penguin, he came out of the mess hall, slipped on wet steps (it had been raining), and fell about 10 feet to the bottom of the steps onto to his bottom and back. He was told to take paracetamol and take it easy, and was given seven days of light duties. A medical record for that day records a soft tissue injury.
·4/01/1987 – Injured back – lower back pain – 5 days light duties.
Mr Dawson said he bruised his bottom and jarred his back and right side at a work function. When he reported to the sick bay, he was told to take paracetamol and given light duties. He did not complain further about this because he was concerned that he would be thought a “malingerer”. A medical record for 5 January 1987 records a diagnosis of low back pain.
·6/01/1988 – Fall down stairs at Redfern Rail Station whilst travelling to Ship – extreme lower back pain and radiating leg pain, Mild Neck pain and radiating pain right arm. Admitted to Rachel Forster Hospital 06/01/1988.
Mr Dawson said he was running to catch a train on the way to joining his ship, while carrying his kit bag over his shoulder, and fell down stairs at Redfern station injuring his back and shoulder. He was taken to the Rachel Forster Hospital (where he had x-rays and was diagnosed as having a soft tissue injury) and was subsequently posted ashore to HMAS Kuttabul on light duties. He was told to take paracetamol and rest.
·2/04/1989 – Fall in Engine Room HMAS Stalwart, Lower back, Neck pain and radiating pain right leg and left arm. Admitted to Hospital at HMAS Penguin from 2/04/1989 to 7/04/1989 – 4 days convalescent leave.
Mr Dawson said he had been working in the engine room. There was oil and grease on the handrail and rungs of a ladder and he slipped and fell, falling on his back and right side. He was hospitalised at RAN Hospital Penguin for two days and was then given convalescent leave, returning on light duties. He said his back was “aching like hell” and he had pain for at least a month afterwards. The Hospital record shows a diagnosis of soft tissue injury to the left hand and back. Mr Dawson said he would take paracetamol as required and, when his back was sore, he would lie down flat for two to three hours and rest. He also had pain in his shoulder and down his right forearm to his hand. A record of a review on 18 April 1989 refers to “Painful left 4th metacarpal”.
·2/02/1990 – STI R cubical Fossa – Pain killers and rest – Returned to duty despite mention of radial nerve damage.
Mr Dawson said he attended the sick bay with pain in his right forearm. He had given blood three days earlier (which is recorded as causing mild bruising). He was told the pain was caused by the bruising.
·15/10/1990 – Wry neck – Extreme Pain and movement restrictions – ROM very guarded No x-rays of follow up – pain persisted – 2 days convalescent leave.
Mr Dawson said he went to see the doctor at the weekend complaining of a stiff neck, and was diagnosed as having a “Wry neck” (meaning that the person is unable to turn their neck). He subsequently saw a medical officer at HMAS Nirimba who noted that Mr Dawson had “slept on neck wrong” and that his range of movement (ROM) was “very guarded”. The medical officer recommended physiotherapy.
·13/01/1992 – Misdiagnosed with a Gastrocnemius Tear and Tear Semimembranous Bursa Calf. Suffered from extreme pain in right leg. Posted off ship due to restrictions in employment. Admitted to Hospital at HMAS Penguin from 13/01/1992 to 25/02/1992. 20 days light duties.
Mr Dawson said he was drafted ashore because of right lower leg pain. He was referred to an Orthopaedic Surgeon, Dr Brian W Holt, who provided a report dated 30 January 1992 stating “The differential diagnosis is between a gastrocnemius muscle tear and a semi-membranosis bursa which is symptomatic”.
·12/11/1992 – Cervical and thoracic Spine Pain – Decreased movement in Thoracic and Cervical Spine. Physiotherapy was advised.
Mr Dawson said he had been drafted ashore because of leg pain and it was at that time that he saw a medical officer, Dr Gibson, who diagnosed him as suffering from cervical and thoracic pain, referred him for physiotherapy and told him to take paracetamol. The medical record completed by Dr Gibson on 12 November 1992 refers to Mr Dawson suffering “Back strain”. Dr Gibson referred Mr Dawson for physiotherapy. In a file note dated 26 November 1992, the physiotherapist ([first name indecipherable] Dalton) stated that Mr Dawson had presented on 12 November 1992 with a one day history of right mid 4/5 thoracic spine pain:
ROM of both the Cervical and Thoracic spine was decreased and on palpitation. T4 on the R was very stiff & tender. A diagnosis of R T4/5 zygoappophyseal jt strain/locking was made. He was treated with spinal mobilisation and was given ROM Ex’s. He failed to attend for his appointment on 13/11/92 and has not contacted dept since.
Mr Dawson said he did not complain about neck pain after that because he had lost faith in his medical treatment which only ever consisted of his being told to take paracetamol and given “a pat on the back”. Moreover, he wanted to be classified as Category 1 fitness, so that he could get back to sea and avoid being discharged. However, he continued to take paracetamol and rest when necessary. Mr Dawson said his position involved maintaining the ship’s machinery and included moving heavy machinery manually as well as moving heavy oil drums weighing 20 kgs from one end of the ship to another on a daily basis. If he was ‘on watch’, he was responsible for ensuring that all the ship’s machinery was working properly. By the end of a day, his lower back would be aching, there was pain in his shoulder, across the back of his neck and in his right arm. To have complained of pain would have been considered malingering so he would take paracetamol and rest and “usually it would come good”.
With regard to smoking, Mr Dawson said he did not smoke before he joined the Navy. He started smoking while undertaking training at HMAS Cerberus. Usually, he smoked about a pack a day but there were several periods when he was smoking up to two packs a day. Mr Dawson continued smoking up until he was diagnosed with tongue cancer – in August 2007, about four months before undergoing surgery. Since then, he has been a very occasional social smoker, only smoking when offered a cigarette in a social situation. He did not regard this as smoking because he was not buying cigarettes. He finally stopped completely about a month ago.
Mr Dawson was asked about working as a prison officer in 1998. He applied to be a Correctional Officer with NSW Corrective Services because he thought this might be a new career path. In order to pursue this path, he had to complete a 14 week training program. At the time of entry, he did not have lower back problems beyond having a sore back after a hard day’s work and thought he could cope with the work. However, he found that his back problems prevented him doing the work, he had to take extensive sick leave, and, ultimately, he was medically retired.
Mr Dawson also attempted to join the Australian Army in 2001. He said that, at the time, he had completed fitness training with the Australian Military Police and thought he was fit enough for the Army. However, on the second day of recruit training, his back “collapsed” and he was subsequently medically discharged.
Intervertebral Disc Prolapse
Dr Guirgis diagnosed Mr Dawson as having an intervertebral disc prolapse at C5/6. Dr Millons noted that Mr Dawson had a disc protrusion at C5/6 (report of an MRI dated 17 February 2011) which was treated surgically with a C5/6 discectomy and spinal fusion. He acknowledged that Mr Dawson satisfies the definition of ‘intervertebral disc prolapse’ (in clause 3(a) of SoP No 40). Thus, there is no issue with diagnosis.
The relevant factors that may be relied on by applicants in establishing that the condition is connected with the circumstances of their service are set out in clause 6 of SoP No 40. The Applicant relies on the following of these factors:
(a) having a trauma to the relevant disc within the 24 hours before the clinical onset of intervertebral disc prolapse; or
…
(c) physically carrying or lifting loads of at least ten kilograms, to a cumulative total Load-Factor of at least 300,000, within the five years before the clinical onset of intervertebral disc prolapse; or
…
(f) smoking at least ten cigarettes per day, or the equivalent thereof in other tobacco products, for a continuous period of at least five years before the clinical onset of intervertebral disc prolapse, and where smoking has ceased or been reduced below that level, the clinical onset of intervertebral disc prolapse has occurred within one year of that cessation or reduction; or
…
The term “Load-Factor’ is defined in clause 9 as follows:
"Load-Factor" means T, where:
(a) W is the weight of the load lifted or carried in kilograms; and
(b) T is the time the load was lifted or carried in hours;
Dr Millons said Mr Dawson’s disc prolapse was diagnosed on radiological evidence in 2011. There was insufficient evidence to support such a diagnosis before 2011 when, on 17 February 2011, a MRI of the cervical spine revealed a disc protrusion and also degenerative disc disease at C5/6. Dr Millons said a stiff neck is indicative of something not right in the neck and it is not unusual for a 27 year old to have a stiff neck. A disc prolapse cannot be diagnosed merely on the basis of a history of a stiff or sore neck. In his opinion, Mr Dawson’s cervical spondylosis would have preceded the disc prolapse.
Dr Millons stated that factor (a) does not apply because the disc prolapse was diagnosed in 2011 and Mr Dawson claims to have had pain in his neck and right upper limb from the time of a fall at Redfern Railway Station in January 1988, the fall in the engine room in April 1989 or at the time he suffered a “wry neck” which was described on 15 October 1990. These incidents do not satisfy the meaning attributed to “a trauma to the relevant disc” stated in clause 9 which says that the symptoms and signs of pain and tenderness, and either altered mobility or range of movement of that part of the spine must last for a period of at least ten days following their onset, save for where medical intervention for the trauma to the relevant disc has occurred.
Dr Millons said factor (c) probably does not apply because the disc prolapse was not diagnosed until 2011, Mr Dawson left the Navy in 1995, and so the carrying and lifting could not have occurred within five years of clinical onset.
With regard to factor (f), Dr Millons said given Mr Dawson’s having said that he stopped smoking when he had cancer of the tongue in 2007, he does not meet the requirement for having smoked for a period of at least five years within one year of clinical onset.
Dr Guirgis disagreed with Dr Millon’s opinion and said he could not see why, in 2011, Mr Dawson would suddenly develop a disc prolapse at C5/6. Dr Guirgis said his approach to determining the date of clinical onset is to take a proper history. In his report dated 3 February 2014, Dr Guirgis gave a date of onset of 15 October 1990, the first recorded neck complaints during Mr Dawson’s Naval service. Dr Guirgis referred to the two documents evidencing Mr Dawson’s neck problems – the medical record dated 15 October 1990 diagnosing a “wry neck”, and the records of 11 and 26 November 1992 about the physiotherapy he received having complained of thoracic and cervical spine problems. The latter refers to a decreased range of movement in the cervical and thoracic spine and to T4 being “very stiff & tender”. A diagnosis of “R T4/5 zygoappophyseal jt strain/locking” was made, apparently, by a physiotherapist on referral from a medical officer, Dr M.R. Gibson.
Dr Guirgis only identified factor (c) as relevant, on the basis of the disc prolapse having occurred in 1990. In his report dated 3 February 2014, Dr Guirgis calculated the total Cumulative Load Factor based on Mr Dawson’s carrying and lifting over the period of his service and found that this significantly exceeded the required 300,000 cumulative Load-Factor stipulated in factor (c). Dr Guirgis said in his opinion the nature and conditions of Mr Dawson’s work – in particular, his having to carry heavy weights over a period of more than five years - have significantly affected the progress of the degenerative changes in his spine. The jarring of his spine in the various incidents would have diminished the elasticity of the spine. If a spine is unable to take abnormal stress, this will lead to an injured disc and ultimately to a disc protrusion.
cervical spondylosis
Dr Guirgis diagnosed Mr Dawson as suffering from cervical spondylosis and Dr Millons stated that Mr Dawson’s condition satisfies the definition of cervical spondylosis (in clause 3(a) of SoP No 34). Thus, there is no issue as to diagnosis. Dr Millons noted that Mr Dawson’s cervical spondylosis was first diagnosed on x-rays taken in March 2010.
The relevant factors that may be relied on by applicants in establishing that the condition is connected with the circumstances of their service are set out in clause 6 of SoP No 40. The Applicant states that he relies on the following of these factors:
(f) having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis; or
…
(g) having a cervical intervertebral disc prolapse before the clinical onset of cervical spondylosis at the level of the intervertebral disc prolapse; or
…
Commenting on the applicability of factor (f), Dr Millons said Mr Dawson’s descriptions of the incidents involving injury to his back do not appear to meet the requirement of having a ‘trauma’ within 25 years before clinical onset given the definition of ‘trauma’ in clause 9 (referred to above). Dr Millons said it seems more likely that the degenerate change occurred before the degenerate disc protruded in 2010 or 2011.
In his report dated 9 October 2013, Dr Guirgis said Mr Dawson’s cervical spondylosis “was triggered accelerated and or aggravated by the nature and conditions of his service with the Navy”. Dr Guirgis said Mr Dawson satisfied factors (f) and (g) of SoP No 34.
Submissions
Applicant’s Submissions
Ms Rebehy, for the Applicant, noted that the Navy did not keep detailed medical records for Mr Dawson and there should be no onus on him to produce radiological evidence in order to establish a date of clinical onset. She contended that in the absence of clear records, the Tribunal should accept Mr Dawson’s evidence of what occurred. She submitted that specialist opinion is sufficient to establish the date of onset. Dr Guirgis said the restrictions on the range of movement of Mr Dawson’s cervical and thoracic spine reported on 26 November 1992 should have led to his having had an x-ray of the spine at that time.
Ms Rebehy said Mr Dawson has provided evidence to establish that he was carrying or lifting loads of at least 20 kgs daily and that he satisfied factor (c), as Dr Guirgis’ calculation of the total cumulative Load-Factor demonstrated:
His duties during his service with the RAN as an Engineering Sailor included lifting at least 20 kg weights for at least one hour per day every day of service Including Oil and grease drums, motors, pumps, valves, and other machinery for maintenance, all weighing over 20 kg and were moved using physical strength within an Engineering environment for the period before the ‘Wry Neck’ episode and continued after diagnosis. Cumulative Load-Factor 1 hour 300 days average per year 9 years of service = 400 300 4 = 1,080,000 exceeding the required 300,000 Cumulative Load Factor.
Ms Rebehy also referred me to a report prepared by Mr Dawson’s treating Neural and Spinal Surgeon, Dr Renata Abraszko. This is a report dated 22 July 2014, albeit that it was requested by Mr Dawson’s lawyers by letter dated 21 February 2014, which was only provided to the Tribunal and the Respondent’s representative, Mr Purcell, at the commencement of the hearing. While in those circumstances I should give little weight to the report, I note Dr Abraszko states that “Most likely he [Mr Dawson] injured his C5/6 disc on 7.11.1986 as a result of a fall from the stairs and then re injured his cervical spine on 6.1.1988, and developed right sided C5/C6 disc protrusion with first onset of right sided arm pain.”
Ms Rebehy contended that Mr Dawson also satisfied factor (a), noting his evidence that he had pain within 24 hours of the falls, notwithstanding that this is not recorded in the medical records.
Ms Rebehy contended, further, that Mr Dawson satisfied factor (f). His evidence is that he generally smoked one pack of cigarettes per day, although sometimes two packs per day. Ms Rebehy accepted that Mr Dawson’s smoking history has been unreliable. His attitude towards smoking after his tongue surgery was that if he was not buying cigarettes, he was not smoking, even if, occasionally, he did smoke socially if offered a cigarette. However, she said that he smoked during his defence service.
Ms Rebehy noted that at the time Mr Dawson completed the application forms for appointment as a Correctional Officer and for entry into the Army, he was asymptomatic and had not, at that time, been diagnosed with an intervertebral disc prolapse at C5/6 or with cervical spondylosis. Ms Rebehy said it is clear that Mr Dawson was making genuine attempts to get back to work and thought that he did not have a condition that he needed to report. However, once he starting working, he was proved wrong.
With regard to Mr Dawson’s claim in respect of cervical spondylosis, Ms Rebehy contended that factor (g) of SoP No 40 is satisfied because Mr Dawson suffered a cervical intervertebral disc prolapse before the clinical onset of cervical spondylosis. She said factor (f) is also satisfied because Mr Dawson suffered a trauma to the cervical spine within 25 years before the clinical onset of cervical spondylosis. The definition of ‘trauma to the cervical spine’ in clause 9 states that this means a discrete injury to the cervical spine that causes the development within 24 hours of symptoms and signs of pain and tenderness, and either altered mobility or range of movement. These symptoms and signs must last for at least 10 days (or in the newest version of the SoP – in the SoP concerning Cervical Spondylosis No 67 of 2014, which took effect on 2 July 2014 – the definition of trauma has reduced the period to “at least seven days”). Ms Rebehy said Mr Dawson’s evidence supports a finding that he meets the definition.
Respondent’s Submissions
Mr Purcell contended that the Tribunal should accept Dr Millons’ opinion that the clinical onset of Mr Dawson’s intervertebral disc prolapse was at the time of the radiological evidence in 2011. As Dr Millons pointed out, there is no documentary evidence of Mr Dawson having neck problems between 1992 and 2011.
Mr Purcell questioned the credibility of Mr Dawson’s oral evidence about his smoking which is contradicted by the written evidence. In his application for entry into the Army on 15 March 2000 he stated that he did not smoke. (In oral evidence, Mr Dawson explained that he was not smoking at that time.) In a ‘Claimant Report – Smoking’ completed by Mr Dawson on 1 May 2010, he stated that he smoked on a regular basis between October 1989 and June 1991. He stated that he was smoking 10-20 cigarettes per day in 1989 and that this increased to 25 to 35 cigarettes per day in 1990 and 1991. Moreover, Dr Robin Chase, Occupational Physician, recorded in a report dated 30 November 2010, that on examination on 14 October 2010 Mr Dawson told him that:
He had been a smoker for three years in the navy and he smoked more than 20 cigarettes per day but he gave up after three years. He has not smoked since.
I note that Mr Dawson was diagnosed with cancer of the tongue in August 2007 and was admitted for surgery on 26 September 2007. A report by Dr Allan Fowler of the Macarthur Health Service Cancer Therapy Centre dictated on 31 August 2007 records Mr Dawson saying that he was previously a smoker but stopped 10 years ago.
Mr Purcell also noted that on his application form for employment as a Correctional Officer and for entry into the Army he did not reveal that he was suffering from a back condition. (However, Mr Dawson said that, at those times, he was not suffering from back pain.)
The Tribunal’s Consideration
Mr Purcell has pointed to the inconsistencies between Mr Dawson’s evidence to the Tribunal and the documentary evidence, both the lack of information about his claimed conditions in the medical records and the answers he gave to questions asked in the forms he completed when applying for a position as a NSW Correctional Officer in 1998 and for entry into the Army in 2001. My impression of Mr Dawson is that he gave evidence genuinely, believing it to be true. I agree with Mr Purcell that there is a lack of contemporary medical documentation attesting to the claimed conditions between 1992 and 2001. However, the claimed conditions must be considered in the context of Mr Dawson also suffering from the accepted conditions of intervertebral disc prolapse (at L5/S1) with referred pain syndrome right leg for which he had spinal surgery in October 2012, and lumbar spondylosis. These accepted conditions have also been a focus of Mr Dawson’s attention and have required medical treatment.
I am not satisfied that Mr Dawson has sought to mislead the Tribunal. I agree with Ms Rebehy that the evidence indicates that he has gone to considerable lengths to try and obtain employment and get his life back on track. At the time that he sought an appointment as a Correctional Officer and, a few years later, entry into the Army, he had not been diagnosed with either of the claimed conditions, he was symptom free, and he believed his back condition had improved such that he could undertake the required work. Unfortunately for him, in each case this quickly proved not to be so.
With regard to his smoking, I accept that Mr Dawson has continued to be a ‘social smoker’ until very recently but, particularly since he was diagnosed with tongue cancer in 2007, he has not purchased cigarettes. It is, however, less clear whether he smoked continually through the period of his Navy service. In the ‘Claimant Report – Smoking’ that Mr Dawson completed on 11 May 2010, he stated that he smoked between October 1989 and June 1991 when he stopped smoking permanently. Mr Dawson’s evidence to the Tribunal contradicts this. While I accept that he has continued to smoke at various times, including very likely during other periods in his Navy service, I am not satisfied that he meets the requirement stated in factor 6(f) of SoP No 40 of 2007 of smoking the required number of cigarettes for a continuous period of at least five years before the clinical onset of intervertebral disc prolapse.
I acknowledge that it is difficult to identify the date of the clinical onset of Mr Dawson’s intervertebral disc prolapse at C5/6 with any great precision given the paucity of the medical evidence, and the fact that that the incidents to which Mr Dawson attributes the claimed conditions occurred between 24 and 28 years ago. I do not accept, however, that Mr Dawson’s claims should be disadvantaged by the lack of relevant documentation provided that there is other credible evidence to support his claims.
I note the case law on clinical onset referred to above, which indicates that it is a doctor’s finding that clinical onset occurred at a particular time which will usually be critical for a Tribunal in determining the relevant date. In this instance, the Tribunal is faced with conflicting evidence. On the one hand, the Applicant’s expert witness, Dr Guirgis, an Orthopaedic Surgeon with a special interest in the spine, has provided an opinion that clinical onset of Mr Dawson’s intervertebral disc prolapse at C5/6 occurred on 15 October 1990 when Mr Dawson was diagnosed with a ‘Wry Neck’, with his neck being described as stiff and the range of movement stated to be “very guarded”. I note that this diagnosis follows a number of incidents described by Mr Dawson, set out above, in which he fell and subsequently suffered neck pain. These incidents took place on 7 November 1986, 6 January 1988, and 2 April 1989. Mr Dawson is also recorded as suffering cervical and thoracic pain in a file note by a physiotherapist who treated Mr Dawson on referral from a medical officer, Dr Gibson, on 26 November 1992.
I accept Mr Dawson’s explanation that he stopped complaining about his neck pain because the treatment he received when he did complain was always the same - paracetamol and rest, with no further investigation – and he did not want to be thought of as a malingerer when it was not uncommon for others in similar positions in the Navy to have a sore back at the end of a hard day’s work.
On the other hand, the contrary expert opinion, provided by the Respondent, is that of an Orthopaedic Surgeon, Dr Millons. His report of 11 November 2013 is extremely thorough. In his opinion, there is insufficient evidence to support a diagnosis before 2011 when a disc protrusion at C5/6 was revealed by a MRI of the cervical spine. I also note his opinion that Mr Dawson’s cervical spondylosis would have preceded the disc prolapse based, it appears, on his finding that the cervical spondylosis was first diagnosed from x-rays in March 2010.
I have referred to an additional report provided by the Applicant on the day of the hearing from Mr Dawson’s treating Neurosurgeon and Spinal Surgeon, Dr Abraszko. As stated, I have given this report little weight given the circumstances of its being tendered at the hearing. However, I note Dr Abraszko’s opinion that Mr Dawson is most likely to have injured his C5/6 disc on 7 November 1986 when he fell down a metal stairway and then re-injured his cervical spine on 6 January 1988 when he fell down stairs at Redfern Station.
I note Dr Millons’ reservations with respect to the evidence. It should be noted, however, that the test for clinical onset does not necessarily require a diagnosis to be made following appropriate investigations: if a doctor can say from the onset of symptoms at a particular time that this indicates the presence of disease at that time, that is the date of clinical onset (see Lees and Kaluza, discussed above). Having weighed the evidence, I have concluded that there is sufficient evidence to find that the clinical onset of Mr Dawson’s intervertebral disc prolapse was on 15 October 1990 when he was diagnosed with a ‘Wry Neck’ or, if not then, in November 1992 when, on a referral from Dr Gibson, he was treated by a physiotherapist who described the restricted range of movement in Mr Dawson’s thoracic and cervical spine. The prolapse may have occurred before those times, as a result of the three earlier falls sustained by Mr Dawson, but there is insufficient evidence to establish a specific date.
Turning to whether any of the relevant factors in SoP No 40 of 2007 are satisfied, I have already stated that I am not satisfied that factor (f) is met because I am not satisfied of Mr Dawson smoking the required number of cigarettes for a continuous period of at least five years before the clinical onset of intervertebral disc prolapse.
With regard to factor (a), which requires a trauma to the disc to have been experienced 24 hours before clinical onset, I am not satisfied that the requirements of factor (a) are met. Noting my finding of a date of clinical onset on 15 October 1990 or in November 1992, there is a lack of specific evidence as to whether a particular incident caused the trauma (as defined) to the relevant disc and when such an incident took place in relation to 15 October 1990 or November 1992.
The other factor on which Ms Rebehy sought to rely, and which Dr Guirgis said was satisfied, is factor (c). Mr Dawson gave evidence about the lifting and carrying required for him to perform his role as an engineering sailor. He said that, when on watch, he was responsible for ensuring all the ship’s machinery was working properly. Generally, his role involved maintaining the ship’s machinery, including lifting heavy machinery manually, and moving heavy oil drums weighing 20 kgs from one end of the ship to the other on a daily basis. Factor (c) and the definition of ‘Load-Factor’ in clause 9 of SoP No 40 requires the decision-maker to calculate the Load-Factor based on the weight of the load lifted or carried (which must be of at least 10 kgs) expressed in kilograms and the time involved in lifting or carrying expressed in hours. To satisfy factor (c), the cumulative total Load-Factor must be of at least 300,000 within the five years before the clinical onset of the intervertebral disc prolapse.
The Load-Factor is calculated from the formula Mr Dawson joined the Navy on 2 April 1986 and I have determined that the date of clinical onset was 15 October 1990 or in November 1992. For the purposes of calculating the Load-Factor, it is, in my view, reasonable to assume the period in question before clinical onset (assuming this to be 15 October 1990) is four years and six months (the approximate period between Mr Dawson’s enlistment and 15 October 1990) and to calculate the hours of lifting and carrying in each full 12 month period based on his working a conservative 250 days in that 12 months. If one assumes, also conservatively, having regard to Mr Dawson’s evidence, that Mr Dawson was lifting and carrying a load of 20 kgs for one hour a day, the resulting calculation is 400 ( being ) 450,000. This exceeds the required Load-Factor of 300,000 and thus I am satisfied that the requirements of factor (c) are met. A calculation based on clinical onset in November 1992 would result in a Load-Factor of 500,000. Whilst acknowledging that these figures lack precision, in my view, this is the best than can be done given the time that has passed since the events in question and the lack of any detailed evidence upon which to base the calculation. It is for this reason that I have used what appear to me to be conservative figures in the calculation.
On this basis, I am satisfied on the balance of probabilities that Mr Dawson’s intervertebral disc prolapse is connected with the circumstances of his defence service and, therefore, that his intervertebral disc prolapse is defence-caused.
Turning to Mr Dawson’s claim in respect of cervical spondylosis, and whether factor 6(g) in SoP No 34 of 2005, relied on by the Applicant, is satisfied, I have already determined that the clinical onset of Mr Dawson’s intervertebral disc prolapse took place on 15 October 1990 or in November 1992. Factor (g) requires a determination of when the clinical onset of cervical spondylosis took place at C5/6. That date must be preceded by the occurrence of the intervertebral disc prolapse in order for factor (g) to be satisfied. Dr Millons noted that the first radiological evidence of degenerate change in the neck was on a CT scan of the head and neck performed on 16 March 2010. He also states that cervical spondylosis was first diagnosed from the MRI performed on 17 February 2011. He does not give a specific date of clinical onset, but given his opinion on the clinical onset of the intervertebral disc prolapse being at the time of first diagnosis, it is reasonable to assume that his opinion would be that the clinical onset of cervical spondylosis was in about 2010.
Dr Guirgis stated, in his report dated 9 October 2013, that Mr Dawson’s cervical spondylosis was “triggered accelerated and or aggravated by the nature and conditions of his service with the Navy”. He does not specify a date of clinical onset but says the clinical onset of the intervertebral disc prolapse at C5/6 occurred before the clinical onset of cervical spondylosis at that level.
Having determined that Mr Dawson’s intervertebral disc prolapse took place on 15 October 1990 or in November 1992, Dr Guirgis’s evidence is, in my view, sufficient for me to be reasonably satisfied that Mr Dawson had a cervical intervertebral disc prolapse before the clinical onset of cervical spondylosis at C5/6. Thus, I am satisfied that the requirements of factor (g) of SoP No 34 are met.
The Applicant also seeks to rely on factor 6(f), having a trauma to the cervical spine within the 25 years before the clinical onset of cervical spondylosis. Dr Millons said that Mr Dawson does not appear to have had a trauma to the cervical spine that meets the definition of ‘trauma to the cervical spine’ stated in clause 9. The recent, slightly more beneficial, version in clause 9 of SoP No 67 of 2014 is set out below. (On the applicability of a more recent SoP, see, for example, Repatriation Commission v Gorton (2001) 110 FCR 321.)
"trauma to the cervical spine" means a discrete event involving the application of significant physical force, including G force, to the cervical spine that causes the development within twenty-four hours of the injury being sustained, of symptoms and signs of pain and tenderness and either altered mobility or range of movement of the cervical spine. In the case of sustained unconsciousness or the masking of pain by analgesic medication, these symptoms and signs must appear on return to consciousness or the withdrawal of the analgesic medication. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention has occurred and that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent;
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.
Mr Dawson’s evidence is that he injured his neck in falls on 7 November 1986, 6 January 1988 and 2 April 1989. I have examined his medical records for those dates, which confirm the falls and, in each case, refer to him suffering soft tissue injuries. The records are brief and lack detail. The records concerning the fall on 6 January 1988 refer to lower back bruising and pain. On 2 April 1989, the medical record refers to “low lumbar sacral pain”. The record concerning the fall on 7 November 1986 does not appear to refer to Mr Dawson’s back although most of the copy provided to the Tribunal is so faint as to be illegible. Thus, while I accept Mr Dawson’s evidence that on each of those occasions he also experienced neck pain, the medical records do not provide any information about this. I note that an explanation for this could be that his principal complaint on these occasions was low back pain.
In order to be satisfied that Mr Dawson suffered a trauma to the cervical spine meeting the requirements of the definition set out above, I would need further evidence. Therefore, I make no finding on this issue or on whether factor 6(f) is satisfied.
However, on the basis of my being satisfied that the requirements of factor 6(g) are met, I am satisfied on the balance of probabilities that Mr Dawson’s cervical spondylosis is connected with the circumstances of his defence service and, therefore, that his cervical spondylosis is defence-caused.
Decision
(1) The decision under review is set aside and a decision substituted that Mr Dawson’s conditions of intervertebral disc prolapse at C5/6 and cervical spondylosis are defence-caused.
(2) The Tribunal remits the matter to the Respondent to determine the rate of disability pension payable to Mr Dawson.
I certify that the preceding 66 (sixty -six) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley .................................[sgd].......................................
Associate
Dated 8 August 2014
Date(s) of hearing 25 July 2014 Date final submissions received 25 July 2014 Counsel for the Applicant M Reheby Solicitors for the Applicant KCI Lawyers Counsel for the Respondent G Purcell Solicitors for the Respondent Department of Veterans' Affairs
0
2
0