Martin Leigh Berry and Repatriation Commission
[2013] AATA 78
[2013] AATA 78
Division VETERANS' APPEALS DIVISION File Number
2011/2830
Re
Martin Leigh Berry
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal G. D. Friedman, Senior Member
Date 19 February 2013 Place Melbourne The Tribunal affirms the decision under review.
........................[sgd]................................................
G. D. Friedman, Senior Member
Veterans' Affairs – Veterans’ entitlements – Lumbar spondylosis and intervertebral disc prolapse – Diagnosis - Whether conditions related to service – Decision under review affirmed
Veterans' Entitlements Act 1986 ss 120(4), 120B
REASONS FOR DECISION
G. D. Friedman, Senior Member
19 February 2013
1.Martin Berry served in the Royal Australian Navy (navy) from 30 June 1989 until 9 June 1994. His eligible war service, which is also operational service under the Veterans' Entitlements Act 1986 (the Act) was from 3 January 1993 to 16 June 1993 on HMAS Tobruk in Somali waters. He also rendered defence service from 30 June 1989 to 2 January 1993 and from 17 June 1993 to 9 June 1994.
2.Mr Berry is in receipt of a disability pension at 60 per cent of the general rate as a result of the following accepted service-caused medical conditions: recurrent dislocation left shoulder with putti platt; recurrent dislocation right shoulder with putti platt; crush injury right hand; and internal derangement of the left knee. On 9 June 2010 he lodged a claim for incapacity from conditions diagnosed as lumbar spondylosis and intervertebral disc prolapse L5-S1. His claim was rejected by the respondent and the Veterans' Review Board (VRB). Mr Berry is seeking review of the decision.
LEGISLATIVE FRAMEWORK
3.Section 120(4) of the Act requires the Tribunal to decide whether the veteran’s conditions were defence-caused to the Tribunal’s reasonable satisfaction. The Tribunal is also required to apply a Statement of Principles (SoP) for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Section 120B of the Act requires the Tribunal to decide matters to its reasonable satisfaction in accordance with the SoPs.
4.The relevant SoP concerning in vertebral disc prolapse is SoP No. 40 of 2007 as amended by SoP No. 81 of 2008 and SoP No. 39 of 2010. Factor 6(a) of SoP No. 40 of 2007 states:
(a) having a trauma to the relevant disc within the 24 hours before the clinical onset of intervertebral disc prolapse;
Paragraph 9 of the SoP states:
"a trauma to the relevant disc" means an injury, including G force-induced injury, to the affected intervertebral disc that causes the development of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of that part of the spine. These symptoms and signs 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 and that medical intervention involves either:
(a) immobilisation of that part of the spine by splinting, or similar external agent;
(b) injection of corticosteroids or local anaesthetics into that part of the spine; or
(c) surgery to that part of the spine;
5.The relevant SoP concerning lumbar spondylosis is SoP No. 38 of 2005 as amended by SoP No. 79 of 2008 and SoP No. 37 of 2010. Factors 6(f) and (g) of SoP No. 38 of 2005 state:
(f) having a trauma to the lumbar spine within the twenty-five years before the clinical onset of lumbar spondylosis; or
(g) having a lumbar intervertebral disc prolapse before the clinical onset of lumbar spondylosis at the level of the intervertebral disc prolapse;
Paragraph 9 of the SoP states:
“trauma to the lumbar spine” means a discrete injury, including G force-induced injury, to the lumbar 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 lumbar spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred and that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.
ISSUES
6.There was no dispute that Mr Berry suffers from lumbar spondylosis. He also claimed to suffer from intervertebral disc prolapse. Although Mr Berry rendered a short period of operational service, the issues before the Tribunal refer to his defence service and are:
·Does Mr Berry suffer from intervertebral disc prolapse? If so, is the condition related to his defence service?
· Is lumbar spondylosis related to Mr Berry’s defence service?
DOES MR BERRY SUFFER FROM INVERTEBRAL DISC PROLAPSE?
7.Mr Berry told the Tribunal that before joining the Navy he had no back problems. He said that in September 1989 he fell heavily while water skiing when he was undergoing his apprentice training at HMAS Nirimba in Sydney, during a posting from 1989 to 1991. He said that he had been undertaking training as a fitter/machinist and able seaman, and that navy personnel were required to maintain an exercise regime involving participation in sporting activities on Wednesday afternoons. He had been skiing behind a navy speedboat and fell awkwardly, tumbling several times. He explained that immediately after the incident he was aware of low back pain and tenderness. He was taken to the naval base hospital, where he was examined by a navy medical officer and was given a heat pack and was prescribed pain killers. He was required to undertake bed rest.
8.After discharge two days later he was placed on light duties for three days before resuming normal duties. Although he said that the pain remained for a few weeks he did not return to the sick bay or seek further painkilling medication because he did not wish to draw attention to his plight as this would damage his standing with his peers and affect his career prospects as he would be considered to be someone who was not up to the required standard of fitness. Mr Berry explained that his training consisted of about three days or three and a half days per week in the classroom and the remaining time in practical work such as working with a lathe or other equipment.
9.Medical records filed by the respondent show that an In-patient record/summary of treatment in relation to Mr Berry’s admission to the medical facility at HMAS Nirimba on 21 September 1989 described the injury as muscular strain L4-L5. Lieutenant E Royal, the medical officer who examined Mr Berry, made the following notes:
Water skiing and fell face first into water; tumbling at high velocity.
O/E [On examination] tender bilaterally over L4-5
[symbol indicating reduced] SLR [straight leg raising] re ROM [range of movement].
Rested in ward. Comfortable with heat therapy and oral analgesic.
Discharged to 3/7 [three days] light duty 22 September 89.
10.In a report dated 3 May 2012 Associate Professor S Hall, rheumatologist, stated that on examination he found that Mr Berry’s lumbar motion was mildly reduced in forward flexion, moderately reduced in extension and mildly reduced lateral flexion to both left and right. There was no tenderness in the lumbar spine. Neurological examination was normal without restriction of straight leg raising or neurological deficit of sensation or power. All reflexes were intact and there was no muscle wasting. Associate Professor Hall said that Mr Berry did not exhibit features of a lumbar disc prolapse. He said it would be highly unlikely for someone to have lumbar disc prolapse with restriction of straight leg raising and be in a position to return to full work duties within four days. Associate Professor Hall concluded that Mr Berry never had the condition.
11.In oral evidence Associate Professor Hall said that the notes by Lieutenant Royal
did not indicate which leg was used in the straight leg raising test, even though Lieutenant Royal mentioned bilateral pain. Similarly the notes did not specify the angle at which the leg was raised before Mr Berry indicated pain, and the tenderness referred to by Lieutenant Royal could have arisen from a number of factors such as a muscle tear or strain. He explained that the straight leg raising test is useless in the absence of sciatica (involving pain in one or both legs) and is of little use with regard to back pain. He added that later CT scans showed no evidence of a disc prolapse.
12.Under cross-examination Associate Professor Hall agreed that he was not provided with details of Mr Berry's full-time duties and was not aware that these included three to three and a half days per week in a classroom.
13.In a report dated 15 March 2011 Mr R McArthur, orthopaedic consultant, diagnosed intervertebral disc prolapse. He stated that he took a history of Mr Berry experiencing pain in the low lumbar region after standing for five minutes or so, and after sitting for any period. Pain was also experienced at night and after driving a motor vehicle for more than one hour. Bending and lifting were uncomfortable. Mr McArthur found that spinal movement was restricted. Straight leg raising, power, sensation and deep tendon reflexes were normal. Mr McArthur noted that a CT scan of the lumbar spine performed on 4 August 2010 revealed a lumbo-sacral spondylolisthesis. There were bilateral defects in the pars interarticularis of L5. The lumbo-sacral intervertebral disc was markedly narrowed. Mr McArthur concluded that the trauma to the lumbar spine that occurred in the water skiing accident on 21 September 1989 resulted in a rupture of the lumbo-sacral intervertebral disc. As a consequence of the rupture there was degenerative change in the intervertebral disc which led to the development of lumbar spondylosis.
14.In a further report dated 29 June 2012 Mr McArthur said that, based on the history provided by Mr Berry and the clinical notes of Lieutenant Royal, which in particular recorded limitation of straight leg raising indicative of nerve root irritation by a disc prolapse, a reasonable conclusion can be made that the trauma to the lumbar spine, which occurred in the fall while water skiing, resulted in a rupture of the annulus fibrosis of the lumbar-sacral intervertebral disc into the vertebral canal causing local pain or stiffness and clinical evidence of nerve root compression, which in Mr Berry's case was responsible for limitation of straight leg raising. He concluded that Mr Berry sustained an intervertebral disc prolapse of the lumbar-sacral level consequent to trauma which occurred when he tumbled at high velocity while water skiing on 21 September 1989.
15.In oral evidence Mr McArthur said that he disagreed with Associate Professor Hall because of the tenderness in the lumbar spine and limitation in straight leg raising as noted by Lieutenant Royal at the time of the water skiing accident. Mr McArthur stated that straight leg raising is a sensitive and specific physical sign indicating neuro-compression within the lumbar spinal canal and the most likely cause for this neuro-compression is a lumbar intervertebral disc prolapse. He said that in these circumstances a CT scan of the lumbar spine taken 21 years after the initial injury would not demonstrate a lumbo-sacral intervertebral disc prolapse.
16.Under cross-examination Mr McArthur agreed that the injury suffered by Mr Berry in 1989 might be expected to require ongoing treatment but he stated that fit young men often recovered quickly. He agreed that within three months of the accident Mr Berry resumed playing rugby, but said that disc prolapse is common and has varying symptoms. He conceded that there was no record of additional back injuries suffered by Mr Berry, but disagreed that this would prevent a diagnosis of disc prolapse.
17.The Tribunal takes into account that Lieutenant Royal’s notes made on Mr Berry's admission to hospital following the water skiing accident were brief. There was no explanation of how the straight leg raising test was conducted or the angle at which Mr Berry indicated sufficient pain for the medical officer to reach his conclusion. Similarly there was no indication of how Lieutenant Royal concluded that there was bilateral tenderness at L4-L5. The Tribunal takes into account that Mr Berry returned to normal duties after being placed on light duties for three days, and he did not seek further medical treatment despite his evidence that the back pain continued after his discharge from hospital. He resumed playing rugby after three months.
18.The Tribunal accepts the evidence from Associate Professor Hall that tenderness in the lumbar spine noted by Lieutenant Royal may have been caused by a number of factors. There is no evidence of sciatic pain in Mr Berry's legs following the water skiing accident and CT scans taken many years later show no evidence of a lumbar disc prolapse. The Tribunal accepts the conclusion drawn by Associate Professor Hall that a diagnosis of intervertebral disc prolapse based primarily on the notes by Lieutenant Royal is highly speculative, particularly as Mr Berry returned to normal duties after three days of light duties. Although he spent part of the week in a classroom setting, Mr Berry was also required to undertake duties of a physical nature, both in the workshop and in attending to daily tasks such as sweeping and cleaning as was required of naval apprentices. For these reasons the Tribunal prefers the evidence from Associate Professor Hall and finds that Mr Berry does not suffer from intervertebral disc prolapse.
IS LUMBAR SPONDYLOSIS RELATED TO MR BERRY’S DEFENCE SERVICE?
19.In a Claimant Report-Trauma Lumbar Spondylosis dated 23 August 2010 and submitted to the Department of Veterans’ Affairs in connection with his claim, Mr Berry stated that his back pain was first noticed during his period of training at HMAS Nirimba from 1989 to 1991. He said that the back injury occurred: During compulsory PT sport during a rugby match. Suffered heavy knocks to back and that the pain became progressively worse and has continued ever since. He said that he was admitted to sick bay. In a Diagnostic Report-Back Problems dated 10 September 2010 Dr D Kosenko, general practitioner, diagnosed L5/S1disc degeneration + spondylolisthesis and stated that the clinical onset of the condition was: 1993 – Back pain after playing Rugby in the Navy. In a Medical Report-Trauma to the Lumbar Spine Lumbar Spondylosis dated 10 September 2010 Dr Kosenko stated that Mr Berry had trauma to his lumbar spine in 1993 while playing rugby in the navy, although Mr Berry could not remember how long the symptoms lasted. There was further trauma in 2006 when Mr Berry slipped and lost his footing in a fall on a boat ramp, landing on his lower spine and injuring his coccyx. Dr Kosenko said that clinical onset of lumbar spondylosis was in 2006 and that symptoms lasted several months.
20.In a report dated 13 August 2010 Mr T Han, consultant neurosurgeon, stated:
He injured his back in 1993 while he was doing military service. He had severe low back pain at the time. Over the years the pain had deteriorated. He is now getting weekly pain.
21.Mr Berry told the Tribunal that since the water skiing accident he has suffered back pain and limitation of movement, although this has not required any time off work. He said that after the accident he resumed sporting activities at HMAS Nirimba on Wednesdays but chose less strenuous activities, and conceded that after several months he returned to playing rugby, although he ceased this sport in 1991 after sustaining shoulder and knee injuries that required surgery. He emphasised that his back condition has been aggravated from time to time by activities such as bending and lifting. He said that his duties as a fitter/machinist involved lifting items including heavy machinery, and he was able to avoid heavy lifting by using equipment and/or obtaining assistance from other naval personnel.
22.Mr Berry said that his back pain persisted after his discharge from the navy in 1994, although he did not seek any specific treatment. He stated that in 2006 he slipped on a wet railway track on a boat ramp and landed on his buttocks, injuring his coccyx and lower spine, and suffering trauma symptoms for several months, although he said that he did not take any time off work as a salesperson. He was treated with painkillers and was referred for a CT scan. Mr Berry said that his back pain has become progressively worse since then and in 2008 his general practitioner arranged a further CT scan. He said that although he does not take painkillers at present, occasionally he has a massage and at home he does stretching exercises for his back and shoulders. He said that he still finds driving a motor vehicle painful after one hour and bending is painful, and he said he has taken a demotion with his current employer because of the restriction on his ability to drive long distances.
23.Under cross-examination Mr Berry agreed that despite his concern about visiting the sick bay at HMAS Nirimba and the fear that this might damage his career prospects and his reputation with his peers, he attended on numerous occasions in 1989 and 1990 in relation to other medical conditions including headaches, bronchitis, abdominal pain, lacerations to his feet and injuries sustained while playing rugby. He also agreed that after the water skiing accident there is no reference to back pain in any of the medical records of his naval service. He agreed that he told the VRB that when he saw Mr Han he did not take any files along and he was only estimating the dates, so it could have been 1989. Mr Berry also agreed that he told the VRB that his only back injury since discharge from the navy was the fall on the boat ramp in 2006.
24.In relation to his statements in the Claimant reports that his back injury was caused by playing rugby, he acknowledged that he had not mentioned the water skiing accident, but claimed that this was a mistake made by him and was a misrepresentation of the true situation. The reports were completed by an RSL advocate.
25.Associate Professor Hall stated that Mr Berry's lumbar spondylosis was contributed to by his spondylolisthesis and by constitutional factors including genetic inheritance aggravated by being overweight. He noted that the first reference to Mr Berry's general practitioner becoming aware of lumbar spondylosis was on 16 September 2008, when Mr Berry reported …back pain which initially didn't trouble too much, recently worse. Associate Professor Hall concluded that Mr Berry did not satisfy the criteria for trauma as he was back at work on unrestricted duties within four days of the water skiing accident.
26.Mr McArthur disagreed with Associate Professor Hall and stated that Mr Berry satisfies the criteria for trauma to the lumbar spine because of the documented history that Mr Berry sustained significant trauma to the lumbar spine in the water skiing accident, followed by back pain which Mr Berry stated that he continued to experience for a period of 4 to 6 weeks after the accident, and discomfort in the lower lumbar region during the remainder of his naval career. This has continued into civilian life and has now become chronic. Mr McArthur noted that Associate Professor Hall had referred to a CT scan which resulted from Mr Berry reporting back problems in 2006. These problems were back pain and stiffness attributed to spondylosis and spondylolisthesis at the lumbo-sacral level, which Associate Professor Hall conceded had developed within a 25 year period from 1989 when Mr Berry injured his lumbar spine in the water skiing accident.
27.The Tribunal takes into account that in the Claimant reports that accompanied his claim in 2010, on a number of occasions Mr Berry referred to his back pain which he said was caused by playing rugby at HMAS Nirimba. The Tribunal does not accept his explanation that these references were a mistake or a misrepresentation of the situation. The Tribunal notes that at the VRB hearing Mr Berry was given an opportunity to explain the references to rugby and the absence of any reference to the water skiing accident, but that he did not do so. Similarly the Tribunal notes that Mr Berry told Mr Han, neurosurgeon, that the back pain first started in 1993, and Dr Kosenko stated in his report in 2010 that Mr Berry had trauma to his lumbar spine in 1993 while playing rugby in the navy and in the fall on the boat ramp in 2006.
28.The Tribunal also takes into account that there is no reference to back pain in any of the service medical documents other than the report by Lieutenant Royal after the water skiing accident, and that Mr Berry returned to normal duties four days after the accident and did not seek further medical treatment for back pain during the remainder of his naval service or for many years afterwards. The Tribunal does not accept that the failure to seek further treatment was due entirely to a perception by Mr Berry that such action would be viewed adversely by his peers, or that his future in the navy might be jeopardised, if he chose to attend the medical facility in relation to his back injury.
29.Mr Berry acknowledged that he suffered trauma to his back in 2006 in the fall on the boat ramp, and that he presented to his general practitioner in 2008 with back pain. These matters are consistent with Associate Professor Hall’s opinion that Mr Berry's lumbar spondylosis is contributed to by his spondylolisthesis and by constitutional factors including genetic inheritance aggravated by being overweight.
30.For these reasons the Tribunal is reasonably satisfied that this there is no causal connection between Mr Berry's lumbar spondylosis and the circumstances of his defence service.
31.In any event, in respect of factor 6(f) of SoP No. 38 of 2005 there was no dispute that medical intervention following the water skiing accident did not involve:
(a) immobilisation of that part of the spine by splinting, or similar external agent;
(b) injection of corticosteroids or local anaesthetics into that part of the spine; or
(c) surgery to that part of the spine;
In addition, Mr Berry returned to normal duties following three days of light duties as prescribed by Lieutenant Royal during Mr Berry's admission to hospital on 21 September 1989 and did not seek further medical treatment. The Tribunal finds that the symptoms and signs of pain and tenderness did not last for a period of at least 10 days following the onset on 21 September 1989. Therefore any back injury sustained in the water skiing accident does not constitute trauma to the lumbar spine and Mr Berry does not satisfy factor 6(f).
32.In respect of factor 6(g) of SoP No. 38 of 2005 the Tribunal has found that Mr Berry did not have a lumbar intervertebral disc prolapse, so he does not satisfy factor 6(g).
DECISION
33.The Tribunal affirms the decision under review.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for the decision of G. D. Friedman, Senior Member. ...........................[sgd].............................................
Associate
Dated 19 February 2013
Dates of hearing 16 November 2012 and 15 February 2013 Counsel for the Applicant Ms A McMahon Solicitors for the Applicant Williams Winter Counsel for the Respondent Mr G Purcell Solicitors for the Respondent Department of Veterans' Affairs
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