Neilson and Repatriation Commission
[2004] AATA 599
•13 May 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 599
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2003/23VETERANS’ AFFAIRS DIVISION )
REGRAEME PAUL NEILSON
Applicant
AND REPATRIATION
COMMISSION
Respondent
DECISION
Tribunal Mr G A Mowbray Date13 May 2004
PlaceCanberra
DecisionFor reasons given orally the Tribunal affirms the Commission’s decision of 25 February 2002 which was affirmed by the Veterans’ Review Board on 14 October 2002.
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Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – incapacity – cervical spondylosis – lumbar spondylosis – trauma to the cervical/lumbar spine - defence-caused injuries – aggravation or clinical worsening – decision affirmed
Veterans’ Entitlements Act 1986, sections 70, 120, 120B
Deledio v Repatriation Commission (1997) 47 ALD 261
Repatriation Commission v Gorton (2001) 33 AAR 370
Harris v Repatriation Commission (2000) 62 ALD 161Statements of Principles no 51/2002 as amended by no 64/2002 and no 82/2002 and no 47/2002 as amended by no 78/2002
REASONS FOR DECISION
11 June 2004 Mr G A Mowbray Background
1. Mr Graeme Neilson served in the Royal Australian Air Force from 3 May 1966 to 25 August 1989. His defence service was from 7 December 1972 to 25 August 1989. It is common ground that on 23 July 1980 and again on 4 November 1980 Mr Neilson was involved in motor vehicle accidents when on his way home from work with the RAAF.
2. The relevant facts concerning Mr Neilson’s claim for compensation are that
·on 25 September 2001 Mr Neilson made a claim for a disability pension in respect of incapacity from cervical spondylosis and lumbar spondylosis
·on 25 February 2002 a delegate of the Repatriation Commission, the Respondent, determined that cervical spondylosis and lumbar spondylosis were not defence-caused injuries or diseases in this matter
·on 19 March 2002 Mr Neilson applied to the Veterans' Review Board which on 14 October 2002 affirmed the decision of the delegate of the Commission
·on 22 January 2003 Mr Neilson applied to this Tribunal for a review of the Commission's decision as affirmed by the Board.
3. The application was heard on 13 May 2004. Mr John Orr represented Mr Neilson and Mr Adrian Breen was advocate for the Department of Veterans’ Affairs. Oral reasons were given later that day affirming the decision under review.
4. On 26 May 2003 the Tribunal received a request for written reasons for the decision from Mr Neilson pursuant to section 43 (2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the oral reasons with appropriate minor editing.
The Legislative Framework
5. Under section 70(1) of the Veterans' Entitlements Act (the Act) the Commonwealth is liable to pay a pension by way of compensation to a member of the defence force where the incapacity of a member is due to an injury or disease which was defence-caused. Section 70(5) specifies those circumstances where an injury or disease shall be taken to have been defence-caused.
6. Where a claim is made that an injury or disease was defence-caused, in accordance with section 120(4) the Commission or Tribunal must decide that claim to their reasonable satisfaction. Section 120B (3) qualifies section 120 (4), providing as follows
(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.
7. In Deledio v Repatriation Commission (1997) 47 ALD 261 at 275 Justice Heery said that Statements of Principles have no role to play in the proof or disproof of the particular facts of a veteran's case. Statements of Principles set out a subset of proved scientific fact and where applicable are statute-backed declarations of what is proved or known scientific fact. A Statement of Principles upholds a contention that the injury, disease or death of a person is on the balance of probabilities connected with the particular service rendered by the person only if each element of the Statement of Principles is so satisfied, that is on the balance of probabilities.
The Applicable Statements of Principles
8. In Repatriation Commission v Gorton (2001) 33 AAR 370 the Full Federal Court decided that the Tribunal should look first at the current Statements of Principles. Only if a favourable decision could not be made for the applicant should it then look at a Statement of Principles operative at the time of the reviewable decision of the delegate of the Commission.
9. In light of Gorton the parties agreed that the following Statements of Principles were relevant to the present matter
·cervical spondylosis no 51/2002 as amended by nos 64/2002 and 82/2002
·lumbar spondylosis no 47/2002 as amended by no 78/2002.
These are the current Statements of Principles. They are more favourable to Mr Neilson than those which applied at the time of the reviewable decision: cervical spondylosis, no 32/1999, and lumbar spondylosis, no 28/1999.
10. The relevant provisions of Statement of Principles no 51/2002 are
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.
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.
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…
…
8."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 …
The Statement of Principles for lumbar spondylosis is worded almost identically except with the substitution of the words "lumbar spine" for "cervical spine".
Issues
11. It is agreed between the parties that
·Mr Neilson suffers from cervical spondylosis and lumbar spondylosis
·he experienced the two motor vehicle accidents on 23 July 1980 and 4 November 1980
·these occurred when he was travelling from his work with the RAAF to his home.
12. Therefore there are two broad issues before the Tribunal.
·were Mr Neilson's conditions of cervical spondylosis and lumbar spondylosis caused by his defence service
·was there an aggravation of these conditions due to defence service.
Mr Orr, Mr Neilson’s representative, abandoned at the hearing a further claim relating to sub-standard medical treatment
Did Mr Neilson Suffer Trauma to the Cervical or Lumbar Spine
13. Each of the relevant factors in the Statements of Principles requires that Mr Neilson suffer trauma to the cervical spine or to the lumbar spine in accordance with clause 8 of the relevant Statements of Principles. The definition in clause 8 requires an injury to the cervical and/or lumbar spine resulting in symptoms and signs of pain and tenderness, and altered mobility or range of movement. The definition further requires that the signs and symptoms in respect of each of these elements arise within 24 hours and last for at least 10 days. These elements must be present in order that the definition of trauma be satisfied.
14. The Commission referred me to the decision of the Full Court of the Federal Court in Harris v Repatriation Commission (2000) 62 ALD 161, 172 which considered an earlier Statement of Principles applying to lumbar spondylosis. The Full Court held
52. … Bearing in mind that the SoP [Statement of Principles] was concerned with "medical-scientific evidence" (s 196B(2)), the primary judge's conclusion is reinforced by medical definitions. Butterworths Medical Dictionary, 2nd ed, 1978, for example, contains the following definitions:
Symptom The consciousness of a disturbance in a bodily function; the subjective feeling that there is something wrong in the working of the body and of which the patient complains, eg shortness of breath, pain, fatigue, palpitation, etc. The symptom may or may not be accompanied by observable signs.
Sign Objective evidence of disease or deformity.
...
53. Once regard is had to these uncontroversial medical usages, it is apparent that the definition in SoP No 105 of 1995 required objective evidence of altered mobility or range of movement, such alteration lasting for a period of at least a week. Ordinarily, of course, the objective evidence would be accompanied by symptoms appreciated by the patient. This supports what his Honour described as the “balance” between the two clauses, the first of which required the “development” of what, for practical purposes, are objective symptoms “within 24 hours”, and the second of which required that they “last for a period of at least 1 week immediately after the injury occurs”. In our opinion, the requirement that symptoms, once developed, endure for a minimum period (in the absence of medical intervention) was intended to extend to “altered mobility or range of movement”.
15. Mr Neilson gave oral and written evidence of the accidents and his condition. In his statement of 10 May 2004 he said
1.On 23 July 1980 I was driving my car home from work travelling up Swanston Street in Melbourne when I stopped at a traffic light. I then heard a screech and looked up to my rear vision mirror and at that instance my car was hit in the back.
2.The car was pushed forward and due to the impact the right side of the back of the driver's seat broke away from the seat base twisting me sideways and falling back until I was arrested by the back seat base. I can remember trying to pull myself forward with the steering but do not remember getting out of the car.
3.I exchanged information with the other driver, this part is hazy, and then checked the damage to my car and decided that it was drivable if I could fix the seat. Not too much damage to my vehicle as I had a tow bar with a steel brace fitted. I then remember a lot of pain down my spine as I attempted to pull the seat forward and jam it back into the base mechanism using the spring tension of the left hand bent bracket to hold it in place. At this time I was in shock and I can remember my back hurting. I then drove home partly supporting myself with the steering wheel so that I did not put too much pressure on the broken back of the seat and my back was hurting whilst I was doing this.
4.I rested on my recliner chair when I got home and had a restless night in bed, as the pain was still present.
5.The pain was still bad the next morning. I drove to the Honda dealer in Melbourne, who opened early, and had them look at the car so that they could order the parts for the seat and fix it that day. I then went to work and reported to the Medical Section as I was still suffering pain.
6.I then saw the doctor but do not clearly remember the examination. Now that I have seen the medical records, I realise the doctor only marked two vertebrae as being painful but I would argue that the two vertebrae mentioned may have been the most painful at that time but that was not the only area from which I was suffering. The doctor prescribed anti-inflammatory medicine and Dencorub and did not specify a follow up visit. Because the pain gradually eased over 2-3 weeks, and as I did not have much faith in the existing medical treatment in Support Command, I did not visit them again for this condition.
7.…
8.The second accident happened on 4 November 1980. Once again I was on my way home travelling in Clarendon Street South Melbourne when a semi-trailer travelling in the same direction but in the outer lane turned left across the nose of my car. The semi should not have been in the outside lane as there was a sign before the railway bridge that said that all trucks must use the inside lane.
9.As the semi turned left I saw that the trailer was going to hit me and tried to get out of the way. I moved my car up the lane a little hoping that I could also turn left and was beeping my horn at the semi driver, but apparently he did not see or hear me. I then ran out of space and could not mount the kerb as it was a very high kerb and there was also a telegraph pole in the way. Due to the angle between the prime mover and the trailer as it negotiated the corner the back wheels of the trailer hit the back of my car slewing it sideways until the trailer wheels gripped the car and mounted up on the back of the car breaking the back window and crushing the hatch door and all associated metal work at the back of the car.
10.I was vigorously shaken around inside the car while this was happening. The first thing I remember after this was walking around the corner to speak to the semi driver. I think that the police arrived but the tow truck driver told them all was in hand. My memory during this time frame is very sketchy.
11.The tow truck driver promised me a loaner car from the repair station to which he would take my car and I remember that I had great difficulty climbing up into the tow truck due to intense pain down my spine. I was loaned a VW Beetle for the 3 to4 weeks it took to repair my car and I remember how my back pained due to the poor seating. When I received my car back after repair I remember the improved back support in the shaped back of my drivers seat. It was not as painful to drive.
12.I suffered very bad pain on the night of the accident and the next day, I reported to Medical Section where I saw a doctor. He looked at my back and once again prescribed an anti-inflammatory medicine and sports rub. My medical record shows that the doctor did not make any mention of his observations of my back, did not refer me for X-ray or other treatment and did not specify a follow-up visit. My back gave me a great deal of trouble, pain and stiffness after this accident for many weeks and still continues to do so.
13.I did not go back to the medical section for this problem due to my dissatisfaction with the staff at that time.
16. Mr Neilson confirmed these statements in his oral evidence. He also gave testimony that he had not been involved in any contact sports, apart from a couple of games of football. His work was clerical and supervisory and he had not suffered back or neck problems before the first motor vehicle accident.
17. After the first motor vehicle accident he felt pain all the way down his spine, but he couldn't remember a specific location. After each accident he had a stiff or sore neck and spine, but he could move them. That is, he could move both his neck and his spine. On both occasions the doctor did not order x-rays or further return consultations. Mr Neilson did not take time off work after either of the two accidents.
18. Currently, Mr Neilson suffers symptoms to his back involving a dull pain for 99 per cent of the time. He also often has a very sharp pain in the middle of the back; for example when he moves quickly. He suffers pain in the lower back if he bends. He also suffers pain in the neck if he lies on the floor, reads a lot or looks down.
19. Mr Neilson gave evidence that he was also involved in motor vehicle accidents in 1981, 1985 and 2002. He said that none of these resulted in any injuries, they were just minor. For example he said that while the 1981 accident may have looked like a major accident, no one was hurt. He has experienced no other major trauma.
20. The contemporaneous clinical notes from the RAAF record were tendered in the Tribunal stating that
24 July 1980 Car accident – ran up back yesterday. aches and pains in back.
O/E [On examination]: tender L2-3. Movements all NAD [No Abnormality Detected]
[Medication]: Indocid and Dencorub.
5 November 1980 Backache again – again due to MVA [motor vehicle accident]
P[rescribed] Indocid, Metsal.
21. I also note that there are entries for 11 August 1980 in which there is no mention of any back or neck problem. Similarly on 14 November 1980 there is no mention of any neck or back problem. On 17 November 1980 the entry made by the RAAF doctor does refer to pains in the upper arm but also has the note NAD – No Abnormality Detected.
22. Dr David McGrath, a specialist physician in musculoskeletal and occupational health, provided a report which he confirmed in oral evidence. In that report of 4 August 2003 his conclusions and opinion were as follows
There is no independent medical documentation which supports a significant neck injury in either of the two motor vehicle accidents recorded on 23rd July 1980 and 4th November 1980. The medical officer who saw him on both occasions records only backache and by his first entry specifies the L2/3 region of the spine. It is highly unlikely that a qualified doctor would fail to record significant signs and symptoms relating to the neck if they were present. With respect to the second accident on 4th November 1980 there are specifically two entries on the 14th and 17th November 1980 without any reference to spinal pains. This would be highly unusual in the context of continuing symptoms. Applying the statement of principles (instrument number 51) Graeme does not satisfy the criteria needed to establish service related cervical spondylosis (as it pertains to these two accidents). In particular there is no documented evidence of a neck injury and with respect to the second accident there is no record of continuing symptoms for at least ten days. His radiology does establish a diagnosis of cervical spondylosis. Other causes for his radiological changes include the possibility of the motor bike accident in November 1971 and postural causes.
With respect to his lumbar spinal impairment some of the difficulties encountered with his cervical spondylosis claim would apply to his claim for lumber spondylosis. With respect to the lumbar spine the two motor vehicle accidents reported above are documented to have produced low back pain. Treatment given on both of these occasions was minimal and highly suggestive of a non-significant injury. Additionally and with respect to the second accident 4th November 1980 this is certainly implied by the null entries of the 14th and 17th November 1980. The first record of significant lower spinal impairment or pain did not arise until 1992. The back ache which he currently describes is consistent with wear and tear changes in the lumbar spine common to people in their forties and fifties.
On the balance of probabilities he does not fulfil the criteria as set out in the statement of principles for lumbar spondylosis (instrument numbers 78, 47, 28). Specifically he fails the definition of “trauma to the lumbar spine”. This states that the symptoms and signs must last for a period of ten days following the onset. This is unlikely to be the case for the 23rd July 1980 accident (minor treatment schedule) and disproven for the 4th November 1980 accident with a null entry on the 14th November 1980. He also fails other criteria in respect of the first motor vehicle accident 23 July 1980, which requires “an altered mobility or range of movement of the lumbar spine”. The documenting doctor specifically records no defects or alteration of movement 24th July 1980.
23. This evidence was reinforced in Dr McGill's oral testimony. Here he also noted the examination for this sort of accident was relatively simple and elementary and it would include examination of ranges of movement. From the notes made by the RAAF doctor he would conclude that no movement abnormality was seen on either occasion. Likewise the treatment suggests there was no significant injury.
24. Dr McGrath concluded that there was no evidence that the car accidents contributed to Mr Neilson's cervical or lumbar spondylosis. Many people have back and neck pain for which no cause can be determined. In his view the cause of Mr Neilson’s cervical or lumbar spondylosis also cannot be determined.
25. I am not satisfied on the balance of probabilities that Mr Neilson suffered trauma to the cervical or lumbar spine as defined in the Statements of Principles from either of these motor vehicle accidents. I found Mr Neilson a trustworthy, honest and straightforward witness. But unfortunately the contemporaneous medical evidence and that of Dr McGrath point to significant gaps in the evidence which have not been filled by Mr Neilson's evidence. I also point to some inconsistencies as well.
26. The elements in the two definitions for trauma to the cervical spine and trauma to the lumbar spine have not been satisfied
·there is no evidence of signs of altered mobility or range of movement of either the cervical or lumbar spine
·there is no medical entry for a neck injury at all on either occasion
·it is unlikely that the signs and symptoms lasted for 10 days, given that the entries in the clinical notes make no mention of them.
27. I adopt Dr McGrath’s reasons, as quoted above, in their entirety. Further I accept his opinion that the cause of Mr Neilson's difficulties is unknown.
Was the Cervical or Lumbar Spondylosis Defence-Caused
28. As I am not persuaded that Mr Neilson experienced trauma to his cervical spine or his lumbar spine, he cannot satisfy the relevant factors in clause 5 in each of the Statements of Principles. Therefore for the purposes of the Act his cervical and lumbar spondylosis is not defence-caused.
Has Mr Neilson Suffered an Aggravation or Clinical Worsening of his Cervical or Lumbar Spondylosis
29. I agree with Mr Breen for the Commission that the Statement of Principles also apply here and the relevant factors are clause 5(s) in Statement of Principle no 51/2002, and clause 5(t) in no 47/2002 for lumbar spondylosis. To quote clause 5(s)
Suffering a trauma to the cervical spine within the 25 years immediately before the clinical worsening of cervical spondylosis.
30. Both of these factors again require that Mr Neilson suffer a trauma to the cervical or lumbar spine. For reasons given above I am not satisfied he has suffered such a trauma as defined in the Statements of Principles. I am not satisfied that he suffered such trauma in those motor vehicle accidents. Further there is no evidence of any other trauma which would meet the definition and which would result in worsening cervical or lumber spondylosis. Therefore, for the purposes of the Act, Mr Neilson's cervical and lumbar spondylosis are not defence-caused by virtue of any aggravation or clinical worsening.
Conclusion
31. In summary
·Mr Neilson did not suffer trauma to the cervical spine or to the lumbar spine in accordance with clause 8 of Statement of Principles no 51/2002 or the equivalent clause of no 47/2002
·Mr Neilson’s cervical and lumbar spondylosis were not defence-caused
·Mr Neilson’s condition is not defence-caused by virtue of any aggravation or clinical worsening
·therefore, Mr Neilson is not entitled to a pension under section 70(1) of the Act.
Decision
32. The decision of the Tribunal is that the reviewable decision, being that of the Commission of 25 February 2002, as affirmed by the Veterans' Review Board on 14 October 2002, is affirmed.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray.
Signed:........................................................................
AssociateDate of hearing 13 May 2004
Date of decision 13 May 2004
Date of Written Reasons 11 June 2004
Solicitor for the Applicant John Orr
Manuka Legal Services
Advocate for the Respondent Adrian Breen
Department of Veterans’ Affairs
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