Neville King and Repatriation Commission
[2015] AATA 36
•27 January 2015
[2015] AATA 36
Division VETERANS' APPEALS DIVISION File Number(s)
2014/0910
Re
Neville King
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal John Handley, Senior Member
Date 27 January 2015 Place Melbourne The Tribunal sets aside the decision under review and in substitution decides that:
1. the applicant has suffered a symptomatic grade 1 anterolisthesis (spondylolisthesis) at L5/S1 due to bilateral L5 pars defects (the condition);
2. the condition is war-caused; and
3. the application is remitted to the respondent for assessment of pension.
.......[sgd].................................................................
John Handley, Senior Member
VETERANS’ AFFAIRS – Applicant a member of crew of HMAS Sydney in 1971 when aged 17 years – engaged in operational service – fell down a stairway– applicant had asymptomatic pre-existing pars defects at L5 – back and leg pain immediately and following the fall – significant quantities of prescribed analgesia consumed – spondylolisthesis at L5/S1 diagnosed – incident not reported or treated until consulting with his general practitioner in 2010 – whether fall did occur – whether clinical onset of the injury occurred at the time of the fall – decision set aside and substituted
Legislation
Statement of Principles concerning Spondylolisthesis and Spondylolysis No. 5 of 2006
Cases
Repatriation Commission v Deledio (1998) 88 FCR 82
Kaluza v Repatriation Commission (2011) 280 ALR 621
REASONS FOR DECISION
John Handley, Senior Member
27 January 2015
Mr King, the applicant, applied to review two decisions made by the Veterans’ Review Board (the VRB) on 3 February 2014, which affirmed decisions previously made by the Repatriation Commission, the respondent, each being a refusal of applications:
(a)for acceptance of spondylolisthesis at L5/S1 (spondylolisthesis) as war-caused (2014/0910); and
(b)an increase in disability pension beyond 100 per cent of the general rate which is being paid by reason of a number of accepted disabilities (2014/0911).
The hearing proceeded only to review the decision refusing acceptance of the spondylolisthesis. Counsel for the applicant conceded that unless the spondylolisthesis was accepted as war-caused, the claim for special rate pension, being the ultimate objective, could not succeed. I am satisfied the concession is properly made.
The applicant is 60 years of age and served with the Royal Australian Navy (the Navy) between 28 April 1971 and 25 February 1972. He was engaged in operational service, during two trips to Vietnam, onboard HMAS Sydney (Sydney) between 26 October 1971 to 18 November 1971 and 24 November 1971 to 17 December 1971.
The Hypotheses
The applicant advanced two hypotheses of connection between service and injury being:
(a)pre-existing bilateral L5 pars defects (destructive bone lesion) à a heavy fall on board Sydney during service à the pars defects became symptomatic or were aggravated à clinical onset of spondylolisthesis; or
(b)a heavy fall during service à caused a fracture or dislocation of the L5 vertebra à clinical onset of spondylolisthesis.
The Injury
The applicant was diagnosed with spondylolisthesis by Mr Bruce Love and Mr John Cunningham, orthopaedic surgeons who examined the applicant on a medico-legal basis.
The applicant had decompression surgery to L4/L5 and L5/S1 and fusion at L5/S1 performed by Mr Michael Johnson on 24 January 2013.
The Applicant’s Evidence
The fall
In his oral evidence and written evidence, being an affidavit dated 21 April 2010 (T5, page 59) and a statement dated 13 February 2014 (Exhibit A1), the applicant stated that he slipped and fell on a steel stairway while descending, outside the ship, located near the weather deck in the early hours during his first trip to Vietnam.
There were some minor variations in the description of that event. Mr Love recorded that the applicant slipped on the top step and somersaulted down the stairway (Exhibit A2). Mr Kelman, an orthopaedic surgeon who examined the applicant at the request of the respondent recorded that the applicant slipped and fell whilst he was walking down the stairway (T27, page 228).
I think little turns on the differences in the description recorded by the doctors when compared to the description provided by the applicant of the mechanism of falling, because it was apparent from the respondent’s Statement of Facts and Contentions and obvious from cross-examination of the applicant during the hearing that the respondent disputed that the fall actually occurred.
In his evidence, the applicant said that he tumbled forwards from the first or second step on the stairway, which was angled. The applicant also described the stairway in his evidence and in other documents as a companion way. A hand rail was located on the left side of the stairway and a wall was located to its right side. He said he had been facing forward and immediately after he commenced falling, he fell against the wall on his right side. He was thrown to the left and his mid-lower back struck the handrail which he also attempted to grab to break his fall, but unsuccessfully. He eventually landed at the bottom of the stairwell, on the deck and onto his chest and left shoulder and left hip. He estimated the length of the stairway to be about two metres.
The fall was not reported
In his statement of 13 February 2014, the applicant recorded that he did not report the fall or back pain subsequently suffered, in the belief that the symptoms may be temporary.
In evidence, the applicant said that he suffered sunburn, with blisters on his legs, on the day before the fall. He said he sought treatment on board Sydney and was attended by a medical orderly. He said he was told that if he was treated for the sunburn it would be regarded as a self-inflicted injury and it was likely he would be disciplined, which would involve a loss of salary and withdrawal of leave.
With that in mind, he said that if he reported the back pain following the fall, which he associated with difficulty in movement because of the sunburn (which he also recorded in his affidavit of 21 April 2010), it was likely that he would be disciplined as a result of the back pain because it would be associated with the sunburn. (The applicant gave similar evidence to the VRB (Exhibit R3, pages 30 and 31)). The applicant acknowledged that he was 17 years of age on the occasion of the fall, he was immature and he had not made a sensible decision.
Symptoms
The applicant said that he suffered severe back pain with pain extending into his legs and feet together with pain around his rib cage and chest. He said the pain lasted for many months, but it eventually settled, it became tolerable but there were some episodes of pain which were severe.
The applicant had previously suffered from migraine and had consumed Bex (either in tablet or powder form) together with the medication Digesic and Mersyndol for pain relief. That medication was prescribed by a doctor on shore before the first trip. The applicant said he consumed that medication also for relief of his back pain. In order to complete his duties on board Sydney, he said at the first sign of increased back pain or discomfort he would consume the medication which masked his symptoms. He said he kept the prescribed medication in his locker onboard Sydney. He could not recall the name of the doctor who prescribed it.
Subsequent to the fall, the applicant said he continued to suffer back pain especially when climbing stairs, when lifting or when moving from a prone or seated position to a standing position. He used his knees when bending in order to keep his back straight.
When he returned to Australia, he was in port for five or six days before Sydney left on its second trip. In the interim, the applicant said he stayed with his girlfriend and did not consult a doctor.
On 16 June 1996 he was admitted to the Maroondah Hospital for seven days as a result of lower back pain/collapse. A record of that event was found in the clinical notes of the North Ringwood Medical Centre. The applicant recalled that he suffered the pain when attempting to lift a heavy pot plant at home. There is no other entry or clinical note in relation to that admission (Exhibit R6, bundle 3, page 130).
Treatment and medication
Following his early discharge from the Navy in 1972, for reasons not associated with the injury, the applicant commenced a career as a long haul interstate truck driver until about 2008. There were a number of occasions when he was incapacitated from work because of back pain. There were also occasions when he would have to stop driving and rest because of low back pain. Despite having attended doctors at the North Ringwood Medical Centre for about 20 years, he did not report his back pain, as a result of falling in November 1971, until 3 June 2010. On 2 June 2010 he completed a lifestyle questionnaire in connection with a claim he made in the previous month to the Department of Veterans’ Affairs for acceptance of a number of injuries, including back problems, the symptoms of which he recorded commenced in November 1971 whilst onboard Sydney in Vietnam (T4 and T5, pages 32 to 68).
In his evidence, the applicant said he saw many doctors between 1972 and 2010 for back pain throughout Australia in the course of his work as a truck driver. He said he saw doctors in New South Wales, the Northern Territory, Western Australia and Queensland. He frequently drove from Melbourne to Darwin, via Brisbane and has travelled the Nullarbor between Perth and Melbourne on many occasions. He said he always had problems with his back and obtained pain relief from medication obtained by prescriptions from doctors that he attended when interstate.
The applicant said he could not recall the identity of the doctors or their locations when he was asked, frequently, for that information during the hearing. He said he did see a physiotherapist in the early 1990s, at a clinic in Springvale Road (in outer Melbourne) and a chiropractor in Coburg in about 2004. He recalled that at about that time he was frequently consuming Panadol and Panadeine Forte for his back pain.
In response to some questions from me, the applicant said that the doctors that he attended whilst he was driving interstate were always located at bulk billing clinics. He recalled attending clinics in Perth and Brisbane near depots occupied by his employer. He said he would take the empty cartons of medication previously prescribed to demonstrate that he was in need of and had previously been prescribed medication for pain relief.
He was also readily able to purchase Bex medication which he continued to consume. A combination of Bex and the prescribed medication was also taken to relieve continuing migraine, which occurred frequently, was often out of control and doctors were generally prescribing painkilling medication for relief of it. He understood that medication, specifically for migraine, was not available for many years whilst he was driving. (A clinical note (Exhibit R6, bundle 3, page 83) of 2 November 1988 found in the file of the North Ringwood Medical Centre records that the applicant had been prescribed Sandomigran. On 9 November 1998, Doctor Symington, a neurologist, (Exhibit R6, bundle 3, page 113) reported the applicant had been consuming Deseril which he had been previously prescribed. Sandomigran and Deseril are medications prescribed for treatment of migraine. Doctor Symington also reported that the applicant presented with chronic daily headache and his intake of analgesic agents was a real problem in that he was consuming up to 100 tablets weekly of Dymadon).
During the 1990s, the applicant said he would be regularly taking 8 to 10 Panadol tablets per day and on occasions, Panadeine Forte, Mersyndol and Digesic. He also consumed Codral Forte, which was readily available at chemists for relief of colds or flu and which he said gave him some relief from pain.
There were also occasions when he attended doctors at a number of clinics, on or about the same day and obtained multiple prescriptions for Digesic and Mersyndol. He would then attend a number of different pharmacies and obtain the medication. He did not disclose to licensing authorities that he was driving his truck having consumed the medication. He also acknowledged that he was taking other medication, whilst driving, to stay awake to meet delivery expectations imposed by his employers.
Statement of Principles
The evidence of the medical witnesses – Mr Cunningham and Mr Love, who both examined the applicant on a medico legal basis – referred to factors within the Statement of Principle in force during the assessment period, being Instrument No.5 of 2006 entitled Spondylolisthesis and Spondylolysis (the relevant SoP). To assist comprehending the evidence and their opinions, the factors in paragraph six of the relevant SoP to which the doctors referred are reproduced as follows:
(a) experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the six weeks before the clinical onset of spondylolisthesis or spondylolysis;...
…
(f) having a destructive bone lesion, involving the affected vertebra, at the time of the clinical onset of spondylolisthesis or spondylolysis;
…
(h) experiencing a high impact trauma to the spine resulting in an acute fracture of the vertebral arch or dislocation of the involved vertebra within the 6 weeks before the clinical worsening of spondylolisthesis or spondylolysis;
The relevant SoP does not contain a definition of the expression high impact trauma to the spine. However, an earlier (revoked) Statement of Principle, Instrument No.15 of 1997 (the revoked SoP), having the same title as the relevant SoP contained a number of factors incorporating the expression severe, high energy trauma. Counsel for the respondent drew attention to the definition of it to assist interpreting or comprehending factors 6(a) and (h) of the relevant SoP.
In so far as the definition in the revoked SoP applied to the lumbar spine, it was in the following terms:
“a severe, high energy trauma to the lumbar spine” means a major, high impact, direct injury to the lumbar spine, giving rise to immediate lumbar pain and precluding unaided ambulation for a period of at least two weeks, and associated with other fractures and/or significant soft tissue injuries. Examples would include: a fall from a significant height directly onto the back; a major motor vehicle accident; being struck across the back by a heavy, high momentum object such as a falling tree;
In the relevant SoP, the expression destructive bone lesion is defined at paragraph 9 as follows:
“destructive bone lesion” means lytic or erosive lesion of the bone resulting from pathology such as benign and malignant tumours, tuberculosis or osteomyelitis;
Medical Evidence
Clinical Records of the North Ringwood Medical Centre
A very significant bundle of documents were received into evidence from the North Ringwood Medical Centre where the applicant has been treated for many years. Amongst those records was a bundle of typed clinical notes of attendances between 14 July 2000 and 3 June 2014. The applicant attended very frequently for treatment of a wide range of illnesses and injuries within that period.
There were many attendances where the applicant sought treatment for a chronic right rotator cuff injury and a neck injury. Many certificates were issued by the doctors certifying incapacity by reason of those injuries. Both eventually resulted in surgery. A significant quantity of painkilling medication was prescribed with respect to those injuries being MS Contin, Codalgin, Panadeine Forte, Mersyndol, Mersyndol Forte, Oxycontin, Celebrex and Norspan Patches. The doctors were also aware the applicant suffered migraine and prescribed Epilim as a prophylactic.
The first report of back pain associated with the fall in 1971 was made on 3 June 2010. The entry then made by Doctor Scully was in the following terms:
dva application back pain – injury nov 1971 – fell down stairs on hmas sydney (sic) dev pain low and middle back straight away and conflicted c chronic limiting pain since spent time in hospital many years ago with back restricted c walking distance
An x-ray and CT scan were then arranged. An x-ray of the applicant’s lumbar spine conducted on 7 June 2010 (Exhibit R6, bundle 1, page 95), four days after the applicant first reported his back injury to Doctor Scully, revealed:
Grade 1 anterolisthesis of L5/S1. Disc degenerative changes of L4/5 and L5/S1, with moderate to severe disc space narrowing. Marginal osteophytosis at L5/S1.
…
Mild osteophytic lipping at L3/4 and L4/5.
No focal bone lesion.
A CT scan of the applicant’s lumbar spine was also undertaken on 7 June 2010. Relevant parts of the radiologist’s report (Exhibit R6, bundle 1, pages 96) are reproduced as follows:
…
L4/5:
Mild to moderate broad based disc bulge mildly effaces the anterior theca. The central canal is patent. Mild facet joint arthropathy bilaterally. On the right, together with disc bulge, cause moderate foraminal stenosis, in effacing the right exiting L4 nerve.
L5/S1:
Grade 1 anterolisthesis due to bilateral pars defects. Anterior slip and broad-based disc bulge cause moderate right and moderate to high grade left foraminal stenosis compressing both exiting L5 nerves. The central canal is patent.
Conclusion:
Grade 1 anterolisthesis of L5/S1 due to bilateral L5 pars defects. Bilateral foraminal stenosis at this level compress both exiting L5 nerves. Moderate to severe disc degenerative changes at L4/5 and L5/S1. No significant central canal stenosis elsewhere.
Right L4/5 foraminal narrowing, effaces the right exiting L4 nerve.
The applicant was subsequently prescribed significant quantities of painkilling medication. On 10 June 2010 the entry made by Doctor Scully was of the applicant suffering chronic lbp. He eventually referred the applicant to Mr Johnson who performed surgery on 24 January 2013.
Mr Michael Johnson
The applicant’s treating surgeon, Mr Michael Johnson did not give evidence in this review but did provide a number of reports found within the clinical file of Doctor Scully. One of his reports dated 1 March 2013 (T32, page 267) is reproduced as follows:
I originally saw Mr King on the 8th March 2012 at request of Doctor Scully, his GP.
At that time he was complaining of bilateral sciatica which was caused by bilateral L5 foraminal nerve compression secondary to a lytic lumbar sacral spondylolisthesis.
He subsequently had a lumbar sacral instrumented decompression and fusion performed with significant improvement in his sciatic pain.
He told me that there is some confusion about the relationship of his accepted complaint of spondylosis and lytic spondylolisthesis.
Spondylosis refers to a stress fracture across the pars interarticularis of a vertebra and it is frequently associated with the development of an anterior slippage of the upper vertebra on the lower one.
This type of slippage is called a lytic spondylolisthesis.
A spondylolisthesis, therefore, is a direct consequence of the presence of the spondylosis.
Mr John Cunningham
In his report of 14 October 2013 (T33, pages 269 to 270) Mr Cunningham, having viewed the x-ray and CT scan of the applicant’s lumbar spine, was satisfied that the applicant suffered an L5/S1 isthmic spondylolisthesis. Additionally, he was satisfied that the applicant had a pre-existing destructive bone lesion (the pars defects). In his opinion, the applicant satisfied paragraph 6(f) of the relevant SoP because he had a destructive bone lesion involving the effected (sic) vertebra at the time of the clinical onset of the spondylolisthesis or spondylolysis.
In response to some questions from the respondent, Mr Cunningham completed another report on 26 June 2014 (Exhibit R1) and recorded:
(a)he agreed with the conclusions of the radiologist that the applicant did have a grade 1 anterolisthesis of L5/S1 due to bilateral L5 pars defects;
(b)the pre-existing destructive bone lesion is the pars defects. Anterolisthesis is an anterior slip of one vertebra on another. An isthmic spondylolisthesis is … effectively … the same condition.
(c)a pars defect is a developmental lytic abnormality of the L5 vertebra;
(d)the pars defects were likely present in the applicant from an early age and were also likely to be asymptomatic. It is common for them to become symptomatic following trauma. Therefore the clinical onset of the spondylolisthesis as far as I am aware is following the fall in November 1971.
In evidence, Mr Cunningham said the pars defects, which occur sometime between birth and teenage years, affects about 10 per cent of the population and is usually found at the L5/S1 level. Over time, the L5/S1 disc fails, the L5 vertebra slips forward, causing nerves to be pinched with resulting back pain and sciatica.
Mr Cunningham said that spondylolisthesis, sometimes also described as an anterolisthesis, is the consequence of the L5 vertebra slipping forward. He said the applicant had an isthmic spondylolisthesis and on the history that he obtained of the applicant first experiencing symptoms of back pain following the fall (as a consequence of the L5 nerve root being pinched), he was satisfied the clinical onset of spondylolisthesis then occurred. Although he did not have a history of the applicant experiencing leg pain following the fall, when he learnt that the applicant had given that evidence he said it was possible that the sciatic nerve could also have been pinched.
Mr Cunningham explained that he was not satisfied that the applicant suffered an acute fracture at the time of the fall (factor 6(a) of the relevant SoP) – being an opinion reported by Mr Love – because a traumatic spondylolisthesis was rare and it would be regarded as major because it would involve dislocation of the spine and paraplegia. It was for those reasons that he was satisfied that factor 6(f) of the relevant SoP was applicable.
Mr Cunningham was aware of the opinion expressed by Mr Johnson in his report of 1 March 2013 (see paragraph 36). The only issue he took with it was the description of spondylosis being a stress fracture across the pars interarticularis of a vertebra. He said it would be preferable to describe the pathology as a defect of the pars articularis. He was satisfied, and otherwise agreed with the opinion reported by Mr Johnson.
Mr Bruce Love
Mr Love, who reported at the request of the applicant’s solicitors (Exhibit A2) on 6 May 2014, obtained a history that the applicant tripped, somersaulted and fell down a stairway to the bottom of the stairs during service. He reported that [i]t is well recognised that high impact and excessive extension in the lumbar spine which may have been part of the mechanism of injury in 1971 can be responsible for the development of the spondylolisthesis as described. He was satisfied the applicant did suffer a high impact injury which could have caused either a fracture of the pars interarticularis in the lumbar spine or, if there had been a pre-existing defect, a significant aggravation of it. He concluded that the applicant did suffer a post-traumatic spondylolisthesis of the lumbar spine. Mr Love agreed with Mr Cunningham, in evidence, that pars defects develop in infancy and are usually asymptomatic and commonly become symptomatic following trauma.
Mr Love, who had previously reported that it was possible that the applicant had suffered a fracture of the pars interarticularis following the fall, agreed with the opinion expressed by Mr Cunningham that it was unlikely the applicant did suffer a traumatic spondylolisthesis. He said it was more probable that the applicant suffered a congenital lesion that’s been aggravated rather than an acute traumatic condition.
When it was put to him that Mr Cunningham was of the opinion that the pars defects had become symptomatic, as opposed to an aggravation of it, Mr Love said the only way one might know that the condition possibly exists is that there are symptoms. He said that would be an accurate way to put what’s happened to Mr King.
Mr Love said he was satisfied that the symptoms experienced by the applicant after the fall, being pain in his lower back and in his legs, were an indication, then, of the clinical onset of the spondylolisthesis. He also obtained a history of the applicant suffering a continuation of symptoms between the fall in 1971 and his subsequent surgery.
Under cross-examination, Mr Love supported propositions put to him that the applicant had suffered an aggravation of a pre-existing spinal condition, however during re-examination he agreed that the description given by Mr Cunningham of the pars defects becoming symptomatic was an accurate description of the consequences of the fall to the applicant. I regret that I found some of the evidence of Mr Love to be disappointing and often inconsistent.
Diagnosis
On the basis of the evidence heard and read in this review, principally that of Mr Cunningham (who I found to be an impressive witness and to hold opinions which were credible), I am satisfied, on the balance of probabilities, that the applicant has suffered a grade 1 anterolisthesis (spondylolisthesis) at L5/S1 due to bilateral L5 pars defects which were not aggravated but became symptomatic by the fall.
I am not satisfied on the balance of probabilities, that the applicant has suffered a vertebral fracture or dislocation. I am satisfied that the evidence of Mr Cunningham, on this issue, is to be preferred to the evidence of Mr Johnson as recorded in his report of 1 March 2013.
Conclusion and Reasons for Decision
The applicant advanced two hypotheses (see paragraph 4). The findings made above under Diagnosis, namely, the applicant did not suffer a vertebral fracture or dislocation precludes consideration of the second hypothesis. Put another way, he would only satisfy factors 6(a) and 6(b) of the relevant SoP, being the basis of the applicant’s second hypothesis, if he suffered a high impact trauma which resulted in a fracture or dislocation.
There is a Statement of Principles in force during the assessment period being Instrument No.5 of 2006. Relevant factors have been reproduced earlier.
The remaining hypothesis raised is reasonable because it fits within and is consistent with the template of the relevant SoP, more particularly, factor 6(f).
Having reached the fourth stage of the Deledio analysis (Repatriation Commission v Deledio (1998) 88 FCR 82 at 97) a decision must now be made whether I am satisfied beyond reasonable doubt that the applicant has not suffered incapacity by war-caused injury. If not so satisfied, the applicant’s claim must succeed. Only at this stage are findings of fact permissible.
The issue dominating this review was whether the applicant did, as a fact, suffer the fall as he alleged in November 1971 whilst a member of the crew of Sydney.
The applicant said he suffered sunburn during the day immediately preceding the fall. He said he was told by a medical orderly that if there was a documented record of treatment for sunburn, he would be disciplined. He decided not to report it. He said the fall was precipitated by difficulty walking, as a consequence of the sunburn, which caused the trip or stumble at the top of the stairway and subsequently falling. He believed that if he had reported back pain as a consequence of the fall he would have been obliged to disclose the difficulty walking as a consequence of the sunburn. He therefore decided not to report the fall and consequent back pain. He also believed that the symptoms of back pain would be temporary.
The applicant said that he had previously suffered from migraine and had a supply of Bex tablets, together with the prescribed medication Digesic and Mersyndol, which he consumed for pain relief. He consumed that medication after the fall also for relief of back pain.
Having read the extensive documentation lodged in this review, observing the applicant in evidence, hearing the submissions of Counsel and reviewing the totality of the evidence, I am satisfied on the balance of probabilities that the applicant did fall down a stairway in November 1971.
I acknowledge that there were different explanations given by the applicant and recorded by number of doctors in their histories of the nature and dynamics of the fall, that is, whether he slipped, tripped or stumbled and whether he fell forward or somersaulted. In my view it would be wrong and unfair to criticise the applicant for the variation in his descriptions of an event which occurred 43 years earlier. To do otherwise would not allow for the imperfections of memory.
The applicant acknowledged that he was 17 years of age at time of the fall and that he had been stupid for not reporting it. It is not uncommon, having heard many applications in the Veterans’ Appeals Division of this Tribunal, for veterans to desist from reporting an incident or seeking treatment of an injury. The reasons given are numerous. The circumstances in this application of the applicant consciously deciding not to report it might appear bizarre but when the totality of his circumstances are examined, I do not draw any negative consequence against him by the absence of a report of the fall and seeking treatment soon thereafter. The explanation given by the applicant deciding not to report the fall because of the sunburn was not a recent invention. It was an explanation given by him to an officer of the respondent during a telephone conversation on 20 September 2010 (Exhibit R3, pages 30 to 31 and applicant’s statement of 21 April 2010 at page 59 of Exhibit R2).
The applicant said he suffered severe pain initially which extended into both legs and into his feet. He said the severe pain lasted for some months. Eventually the intensity of it reduced and it became tolerable with bouts of severity.
This incident occurred during the applicant’s first voyage to Vietnam. He completed one more voyage before he was discharged. During the time he remained onboard Sydney he consumed pain killing medication which he said masked his symptoms and gave him mobility.
Thereafter, he was employed for many years as an interstate truck driver. He said he continued to suffer back pain which he was able to tolerate but did suffer episodes of severe pain on a regular basis. He obtained relief from it by consuming enormous quantities of painkilling medication which he was also taking to relieve migraine pain. Later, in addition to also taking Mersyndol and Digesic, he consumed Codral Forte and Panadeine Forte which were available without prescription. During the 1990s, he said it was not unusual for him to consume Panadeine Forte on a regular basis and between 8 to 10 Panadol tablets per day.
The applicant said he obtained the medication by prescription from doctors in bulk billing clinics he attended whilst driving interstate. He could not recall the names of any of those doctors. He also agreed that there were occasions when he would attend doctors in other clinics and obtain multiple prescriptions and have the drug supplied to him by also attending multiple pharmacies. He said he adopted that practice in order to ensure that he had an adequate supply of medication (for him) to consume when needed (which was frequent) when he was away from Melbourne driving interstate. Although not the subject of evidence during the hearing, I note Doctor Symington reported in 1998 that the applicant tells me that he has been moving around and that he has seen a few doctors to have repeat prescriptions…(Exhibit R6, bundle 3, page 113).
His history of consumption of painkilling drugs was noted by Mr Johnson in his report to Doctor Scully of 30 November 2012 and by Doctor Dorevitch in a report of 4 February 2013 (Exhibit R6, bundle 4, pages 249 and 254) and by Doctor Scully on 9 March 2007 (being three years before the back pain was reported to him when the applicant was being treated for shoulder and neck injuries). Doctor Symington, who was treating the applicant’s migraine, also noted the excessive use of pain medication in 1998.
The chronicity of his back pain from 1971 is consistent with the histories obtained by Doctor Scully at the consultation on 3 June 2010 and by Mr Cunningham and Mr Love. In addition to his evidence in this review, the applicant also recorded the presence of back pain (and his consumption of painkilling drugs) in his statement of 21 April 2010 and his report to the respondent of back problems on 2 June 2010 (Exhibit R2, page 58).
The applicant said he did not report back pain to his employers when he worked as a truck driver or when applying for work because he feared he would either lose his job or would not obtain employment. He said the consumption of medication and the relief that he obtained from pain permitted him to undertake his work.
Factors 6(a) and (h) of the relevant SoP are not applicable because to have experienced a high impact trauma there must be a resulting acute fracture of the vertebral arch or dislocation of the involved vertebra, which the applicant did not sustain. Mr Cunningham was satisfied the applicant did not sustain an acute fracture, being a traumatic spondylolisthesis because that would have caused dislocation and paraplegia. Despite his reported opinion on this issue, Mr Love agreed with the opinion of Mr Cunningham when he gave his evidence.
On the basis of the evidence of Doctor Cunningham, factor 6(f) applies because the applicant did have a destructive bone lesion, being the bilateral pars defects, affecting L5 immediately before the fall. It had been asymptomatic. The clinical onset of spondylolisthesis occurred following the fall by a forward slippage of L5 on S1. Proximate nerves were then pinched and the applicant suffered severe back and leg pain. The bilateral pars defects became symptomatic by the fall. They were not aggravated.
Doctors Cunningham and Love were satisfied that the presence of pain immediately following the fall was indicative of the clinical onset of spondylolisthesis. Their evidence on this issue is consistent with the decision of the Full Federal Court in Kaluza v Repatriation Commission (2011) 280 ALR 621 at [66], that is:
(a)if his symptoms were observed by a clinician following the fall, the diagnosis would then have been made; or
(b)the clinicians have subsequently been satisfied that the symptoms described are consistent with the onset of spondylolisthesis following the fall.
I am also satisfied that the applicant’s complaint of back pain to Doctor Scully on 3 June 2010 and the findings at surgery with Mr Johnson in January 2013 were each referable to the spondylolisthesis following the fall in 1971.
For all of the above reasons. I am not satisfied that the applicant’s spondylolisthesis is not war-caused. Therefore, I will set aside the decision under review and in substitution decide that the applicant’s spondylolisthesis is war-caused.
The remaining application lodged by the applicant – 2014/0911 – concerns a claim for special rate pension. That application remains current in this Tribunal. Having regard to the above decision, I anticipate the respondent will determine its liability for payment of special rate pension. I direct that that application be listed for a telephone directions hearing on a date to be fixed in three months. If the respondent rejects the claim for special rate pension, directions will be issued at the telephone directions hearing to cause that application to be listed for hearing without delay.
I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of John Handley, Senior Member ...[sgd].....................................................................
Associate
Dated 27 January 2015
Date(s) of hearing 8 December 2014 Counsel for the Applicant Fiona Spencer Solicitors for the Applicant Williams Winter Counsel for the Respondent Gerald Purcell Solicitors for the Respondent Department of Veterans’ Affairs
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