McGuiness and Repatriation Commission

[2002] AATA 1185

DECISION AND REASONS FOR DECISION [2002] AATA 1185

ADMINISTRATIVE APPEALS TRIBUNAL        Nº N2001/1143
VETERANS' APPEALS DIVISION
  Re:         John Leslie McGuiness
  Applicant
  And:       Repatriation Commission
  Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member
Date:             18 November 2002
Place:            Sydney

Decision:The decision under review is affirmed.

. . . . . . . . . . . . . . . . . . . . . . . .
  Senior Member

©        Commonwealth of Australia          (2002)CATCHWORDS Veterans' Affairs – whether veteran's cervical spondylosis defence caused -  whether material contribution to or aggravation of cervical spondylosis –– decision affirmed
Veterans' Entitlements Act 1986 – ss. 68, 70(5), 120(4), 120B
Repatriation Medical Authority Statement of Principles, Instrument No. 51 of 2002 concerning Cervical Spondylosis as amended by Instrument No. 64 of 2002.
Johnston v Commonwealth of Australia (1982) 43 ALR 559
Repatriation Commission v Yates (1995) 38 ALD 80
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Cornelius [2002] FCA 750
Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1. Mr John McGuiness has applied for review of a decision made by the Repatriation Commission (the Commission) on 5 October 2000 refusing his claim for disability pension in respect of cervical spondylosis and fibromyalgia. The Veterans' Review Board (the Board) had affirmed the Commission's decision on 17 July 2001. Mr B. Winship, solicitor, appeared at the hearing for Mr McGuiness and the Commission was represented by Mr J. Marsh, an advocate with the Department of Veterans' Affairs. Mr McGuiness was the only witness to give evidence at the hearing. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 and the exhibits tendered at the hearing.

2. Mr McGuiness served in the Australian Army from 1 July 1975 to 30 June 1981, which is a period of "defence service" as defined in s.68 Veterans' Entitlements Act 1986 (the Act). The Tribunal is required to decide the matters raised in Mr McGuiness' application to its reasonable satisfaction: s.120(4) of the Act. As his claim for pension for incapacity was lodged after 1 June 1994, s.120B of the Act applies. During the course of the hearing, Mr Winship informed the Tribunal that the claim for disability pension in respect of fibromyalgia was formally withdrawn. In determining whether Mr McGuiness' cervical spondylosis was defence caused, s.120B(3) requires the Tribunal to be satisfied that there is material that raises a connection between the disease and service, and that a statement of principles (SoP) issued by the Repatriation Medical Authority upholds the contention that the disease is, on the balance of probabilities, connected with his service. The relevant SoP in force concerning cervical spondylosis is Instrument No 51 of 2002, as amended by SoP 64 of 2002. It states:

   Basis for determining the factors
   3.  On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that cervical spondylosis and death from cervical spondylosis can be related to relevant service rendered by veterans or members of the Forces.

   Factors that must be related to service
   4.  Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.

   Factors
   5.  The factors that must exist before it can be said that, on the balance of probabilities, cervical spondylosis or death from cervical spondylosis is connected with the circumstances of a person's relevant service are:
   …
   (g) suffering a trauma  to  the  cervical  spine  within  the  25  years immediately before the clinical onset of cervical spondylosis;
   …
   (s) suffering a trauma  to  the  cervical  spine  within  the  25  years immediately  before  the  clinical  worsening  of  cervical spondylosis; or
   …

Factors that apply only to material contribution or aggravation
6.  Paragraphs 5(m) to 5(x) apply only to material contribution to, or aggravation of, cervical spondylosis where the person's cervical spondylosis was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.

The SoP, as amended, contains the following relevant definition:

"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  symptoms  and  signs  of  pain,  and  tenderness,  and  either altered mobility or range of movement of the cervical spine.  These symptoms and signs must last for a period of at least 10 days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred, where that medical intervention involves either:

(a)immobilisation of the  cervical  spine  by  splinting,  or  similar external agent; or 

(b)injection of  corticosteroids  or  local  anaesthetics  into  the  cervical spine; or 

(c)surgery to the cervical spine.

Prior to amendment, the definition in SoP 51 of 2002 required the symptoms and signs to be 'acute'.
evidence

1. Mr McGuiness was born on 3 July 1947 and was almost 28 when he enlisted in the Army.  He was a qualified plumber.  He said the pre-enlistment medical examinations found nothing wrong with him.  He did not have an ache or a pain in his body.

2. During his period of service, he was given a number of different postings in engineers' units and he worked as a maintenance plumber.  Eventually he was posted to the School of Military Engineering (SME) at Liverpool, near Sydney.  His duties involved the supervision of apprentices and was mainly an office job.  Once a week, he and others were required to attend a supervised fitness session, which was held in a makeshift gym that had been set up on the SME base.  Records were kept of attendance and performance. Mr McGuiness said that his exercise regimen involved circuit training, requiring him to jog, do sit-ups, chin-ups, star-jumps and lift bar-bells.  He said most of the equipment used in the circuit training had been made by engineers on the base.  The weights equipment was constructed of concrete filled, 2 litre paint tins attached to lengths of water pipe.

3. In his statement dated 7 February 2002 (Exhibit A1) Mr McGuiness said:

   One morning during training I dropped a make shift bell on the back of my skull and neck ('make shift' – water pipe, paint tins filled with concrete on either end of the pipe.)  I was knocked to the floor.  Immediate pain, then area became numb.  As far as I can remember I was attended by two corporals and taken to the RAP.  I remember wearing a soft neck collar supplied by the RAP and being given medication at the RAP.  As pain increased I was x-rayed at 2 Mil. Hospital.  Due to increased pain after the accident a firm collar and stronger medication were given and I was put on restricted duties.  A few weeks later I was changed back to a soft collar.  I was still on light duties.
   After this injury I suffered from bad headaches. I remember getting medication from the RAP for these headaches. …

1. Mr McGuiness' evidence was that he felt a lot of pain after the accident.  He attended the RAP every morning for about three weeks to pick up medication for his pain.  He worked light duties, wearing his soft neck collar.  Some time later, he thought it was about two or three weeks, he was taken off base to an Army hospital for a medical examination and xrays because his pain was getting worse.  He recalls wearing the soft collar while on a visit home to see his family.  Although he did not suffer from headaches immediately following the accident, they started later and increased in intensity.

2. Mr McGuiness' service records show that he was medically examined at the SME's medical centre on 1 June 1981.  The report noted (T3 fol.5) that "Weight fell onto the base of skull & neck posteriorly 2/52 ago. Felt alright initially but started to have pain especially on rotation 1/52 after.  Felt worse after the P.T. test.  No shoulder pain.  No neurological signs. … "  The medical officer arranged for xrays to be taken and for Mr McGuiness to be provided with a soft neck collar.  In evidence, Mr McGuiness disagreed with the report because he said he had pain all the time after the accident, and it became worse.  There is also a report of Mr McGuiness being examined on 2 June 1981 at a military hospital, 2 Mil Hosp.  That report (T3 fol.6) noted that xrays had been viewed but they did not clearly indicate whether there had been an old injury to C6/C7 or possibly a recent injury. In his evidence, Mr McGuiness denied ever having previously injured his neck.  The possibility of further xrays was noted and Mr McGuiness was to be given a firm neck collar.  In evidence, he said he wore the hard collar for only a few days.  A radiology report (T3 fol.11) dated 3 June 1981, when Mr McGuiness was 33,  noted:

   There are no fractures seen of the cervical vertebrae, and the odontoid peg and atlas and axis are intact and normal. The vertebral appendages are intact. The vertebral alignment is normal, and there is satisfactory movement in the functional studies with no subluxation between the vertebrae. There is an advanced degenerative disc lesion present between C5 and 6, with giant anterior marginal osteophytes and disc space narrowing.  No other vertebral or disc lesion is seen, and the intervertebral foramina are clear, apart from some slight encroachment on the C5-6 foramen on the left side.

1. The following week Mr McGuiness was re-examined at the SME medical centre.  The report dated 9 June 1981 (T3 fol.7) noted that an xray report was to be received and that the applicant was tender at C7-T1, but his condition otherwise was satisfactory.  It recorded his discomfort with the hard collar and that he would therefore be given a soft collar.

2. Mr McGuiness was classified 'FE', fit everywhere, when he was medically examined on 24 June 1981, prior to discharge (T3 fol.8).  It was a non-medical discharge.  The examination occurred within weeks of Mr McGuiness' accident in the gym, but there was no change to his medical classification as a result of the accident.  

3. Mr McGuiness' evidence was that at the time of his discharge, his neck was not too bad but he was having headaches that have continued more or less ever since.  However, during his first week at work as a plumber, a few weeks after having left the Army, he said his neck locked up on him necessitating treatment and further xrays.  He said that it was the change from a desk job to the physical work of plumbing that tested his neck and made him realise the problem was still there.

4. Dr Millons, orthopaedic surgeon, examined the applicant on 10 January 2002 and prepared a report dated 14 January 2002 (Exhibit R4) for the Department of Veterans' Affairs.  He referred to a number of xrays and reports and an MRI scan that have been taken since 1981.  Dr Millons reported that Mr McGuiness had trouble with his neck when working as a plumber in the initial three years or so after discharge.  However, Dr Millons reported that Mr McGuiness recalled, and later confirmed, that his neck improved and for the next four years he had no trouble with it at all.  The history taken was that he then started to get neck pain about nine or ten years ago, which would be around 1991.

5. In Dr Millons' opinion, Mr McGuiness already had cervical spondylosis at C5-C6 at the time of his gym accident.  Referring to the radiology report dated 3 June 1981, he stated that by that date there was " … clearly evidence of marked degenerate change at C5-6 which would clearly have been of long standing and which may perhaps relate to some injury in the past that has passed from his memory."   Further, he stated that the accident with the bar bell could have temporarily aggravated degenerate changes in Mr McGuiness' neck but it did not appear to have caused any major pathological change.  Xrays taken in 1992 evidenced degenerate changes to other parts of the applicant's neck, at C6-7. In 1995 they showed the development of changes at C3-4 and an MRI in 1998 showed marked changes at C5-6-7, as well as C3-4.  The applicant's current problems with his neck, in Dr Millon's opinion, were the result of constitutionally based attritional change.  Dr Millons said in his report that "Such problems as he has in his neck now would be a result of the constitutionally based development of attritional change in the neck which has come about as a result of the normal processes of attrition rather than specifically as a result of the single incident recorded on 1.6.81."   It was his opinion that "… there is nothing to suggest that that trauma has been responsible for the ongoing progression of the attritional change particularly in light of the four year period when he claims he was asymptomatic."
   submissions

6. It was submitted for the applicant that there was clinical onset of cervical spondylosis at the time of the accident with the bar-bell when he felt pain in his neck. In the alternative, Mr Winship argued that the injury clinically worsened Mr McGuiness' cervical spondylosis. For the Commission, it was submitted that the injury was not covered by the definition of 'trauma to the cervical spine' in SoP 32 of 1999. Mr Marsh submitted, further, that Mr McGuiness did not satisfy factor 5(g) of the SoP concerning trauma within 25 years before the clinical onset of cervical spondylosis, since clinical onset had occurred before the accident albeit at an indeterminate time. Mr Marsh submitted that for there to be clinical worsening, s.70(5)(d) of the Act requires the service related circumstances to have made a material contribution or aggravation to Mr McGuiness' condition. There was no aggravation in his view because the service related circumstances neither accelerated the worsening of the condition (Johnston v Commonwealth of Australia (1982) 43 ALR 559) nor made the condition other than temporarily worse (Repatriation Commission v Yates (1995) 38 ALD 80).
   findings and consideration

7. The parties agreed that cervical spondylosis was the appropriate diagnosis.  Further, there was no dispute as to the nature and circumstances of the injury to Mr McGuiness' neck caused by his dropping the bar-bell.  The Tribunal makes findings accordingly.

8. The Tribunal is satisfied that the injury to Mr McGuiness' neck sustained in the gym accident occurred in mid May 1981 (T3 fol.5).

9. At the time of the Commission's decision, the relevant SoP was 32 of 1999.  However, the Full Federal Court's decision in Repatriation Commission v Gorton (2001) 110 FCR 321 is that the Tribunal must first consider the SoP in force at the time of its decision. Between the time of the claim and the time of this decision, the definition of 'trauma to the cervical spine' has changed, but the terms of the relevant factors claimed to connect Mr McGuiness' cervical spondylosis with his service did not alter. In the earlier SoP, that definition referred to an injury that caused "the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility of range of movement of the cervical spine.  These acute symptoms and signs must last for a period of at least 10 days following their onset,…".  SoP 51 of 2002, as amended by SoP 64 of 2002, removed the word 'acute' from the definition, and inserted a comma after the word 'pain'. Mr McGuiness' recollection of details, such as the location of the military hospital that he was taken to and whether, while there, he was asked if he had previously injured his neck, may not be perfect.  Given that these events happened to him over 20 years ago, that is understandable.  The Tribunal accepts Mr McGuiness' evidence that he felt immediate pain in his neck where the bar-bell struck, was helped to his feet and taken to the RAP where a soft collar was put on.  Daily thereafter for approximately three weeks he went to the RAP to pick up pain killers and the pain grew worse.  It is the Tribunal's view that on balance Mr McGuiness' account can be reconciled with the medical record that he "felt alright initially but started to have pain especially on rotation 1/52 after".  The Tribunal is satisfied, therefore, that within 24 hours of the injury, Mr McGuiness developed symptoms of pain and tenderness, and had altered mobility in his cervical spine.  In addition, the Tribunal finds that these symptoms continued for at least ten days and that the injury comes within the definition of 'trauma to the cervical spine' in amended SoP 51 of 2002.

10. While it may be accepted that Mr McGuiness had not experienced symptoms of cervical spondylosis prior to the accident, Dr Millons, taking into account the applicant's history, the radiology report of 3 June 1981 and the investigation that it entailed, and xrays of the cervical spine dated 22 October 1982, determined that Mr McGuiness already had cervical spondylosis at C5-6 at the time of the accident.  Determining clinical onset on this basis conforms with the approach approved by Branson J in Repatriation Commission v Cornelius [2002] FCA 750 at par 26 (citing a decision by the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670:

    … 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 at that time.

This finding in relation to the clinical onset of cervical spondylosis results in factor 5(g) not being satisfied. Whether the clinical onset of the applicant's cervical spondylosis, which Dr Millons noted was long standing, could have occurred before or during Mr McGuiness' service, it is not possible to say. However, in rejecting the submission that clinical onset occurred immediately upon Mr McGuiness' feeling symptoms, the Tribunal notes that par 2(b) of SoP 51 of 2002 states that 'cervical spondylosis' means "… degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical root compression…" [emphasis added].

1. Clause 6 of SoP 51 of 2002 states that factor 5(s) will apply only where the trauma has been a material contribution to or aggravation of the cervical spondylosis. It refers to s.70(5)(d) of the Act, which relevantly provides:

   (5) For the purposes of this Act, … a disease contracted by such a member [of the Forces] shall be taken to be a defence-caused disease if:…
   (d) the injury or disease from which the member died, or has become incapacitated:
   …

   (ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;

   and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or…

First, the Tribunal notes that the applicant was discharged 'FE' and he did not report suffering or ever having suffered from a head, back or joint injury, in his discharge questionnaire (T3 fol.9).  Secondly, the Tribunal is mindful that Dr Millons considered that the injury was not responsible for the ongoing progression of what he termed the attritional change in the condition.  The problems that Mr McGuiness had with his neck in the years subsequent to his discharge were due to normal daily living activities including work.  Dr Millons formed this opinion because of Mr McGuiness' statement to him that, while he had some intermittent catching with his neck during the first three years after leaving the Army, his condition then improved and for the following four years he was asymptomatic. The Tribunal accepts Mr Marsh's submission in respect of Johnston's case, being satisfied on the basis of Dr Millons' evidence, that the trauma did not make Mr McGuiness' cervical spondylosis worse.  Rather, it being an attritional condition, it has gradually become worse over time. 

1. The submission based on Yates' case is also accepted.  It was held in that case that the aggravation need not be permanent but it was emphasised that a temporary worsening of symptoms is not equivalent to a temporary aggravation of the underlying disease.  Lindgren J said (at 88) " ... I would expect, in the absence of medical evidence to the contrary, that an aggravation of an underlying disease would have a duration at least longer than the period of worsening of symptoms caused by service, although it may not necessarily be as long as the duration of the disease itself."   For a period, the injury made Mr McGuiness' symptoms worse.  There was neck pain and restriction of movement.  Going back to plumbing work resulted in intermittent problems with his neck.  But after three years, approximately mid 1985, he became symptom free.  This lasted for four years and it was only around 1991 that the neck pain started again. The xrays taken in 1982 showed degenerative change at C5-6 with large anterior osteophytes; but the C6-7 level was normal.  Xrays were taken in 1992 showing additional changes to his cervical spine, suggesting to Dr Millons that normal processes of attrition were at work, not the injury.  In his opinion the trauma was not responsible for the attritional change and accordingly the Tribunal is satisfied that, although the trauma resulted in worsening of symptoms possibly for a few years, there was not an aggravation of Mr McGuiness' cervical spondylosis.  

2. The Tribunal is unable to be satisfied that the applicant's cervical spondylosis was defence-caused within the meaning of the Act. 

3. The decision under review should be affirmed.

   I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of 

   Signed:         .....................................................................................
     Associate

   Date of Hearing  16 May 2002
   Date of Decision  18 November 2002
   Solicitor for the Applicant         Mr B. Winship

   Advocate for the Respondent Mr J. Marsh