Nipperess and Military Rehabilitation and Compensation Commission

[2005] AATA 917

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 917

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2004/1081

VETERANS' APPEALS DIVISION		)
Re		KEVIN NIPPERESS

Applicant

And MILITARY REHABILITATION & COMPENSATION COMMISSION

Respondent

DECISION

Tribunal Ms Robin Hunt, Senior Member
Dr Ion Alexander, Member

Date20 September 2005

PlaceSydney

Decision The Tribunal affirms the decision under review.

…………………………………
  Ms R Hunt
  Presiding Member

CATCHWORDS

COMPENSATION – Claim for back injury arising from service with the Civilian Military Force service between 1960 and 1966 – Geneva method - Spondylosis – Pre-existing kyphoscoliosis – No evidence to support that Applicant suffered injury during the relevant period - Decision under review affirmed.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 s14, s124

REASONS FOR DECISION

20 September 2005             Senior Member Robin Hunt

INTRODUCTION

1.        Mr Kevin Nipperess has back problems.  He believes that these problems, particularly spondylosis, were caused by the cliff roping and climbing activities that he participated in between 1960 and 1966, while he was a member of the Army Reserve. He submits that he suffered cumulative compression injuries as a result of several hundred descents using the Geneva method.  He does not accept that he had a pre-existing spinal condition of kyphoscoliosis and that the degenerative changes now evident reflect the usual sequence of degeneration seen with kyphoscoliosis, compounded by the consequences of ageing. We have considered his claims and medical evidence and are not persuaded that Mr Nipperess suffered vertebral injury during his service period. This means he has not succeeded on his claim and the decision under review is affirmed.

ISSUE

2.        The issue before the Tribunal is a medical one. That is, whether Mr Nipperess suffers spondylosis of the spine as a result of successive injuries or strains that occurred during his years of service. If this is so, he may be entitled to compensation under the Safety, Rehabilitation and Compensation Act 1988.

ANALYSIS

Mr Nipperess’ claim

3.        Mr Nipperess is 70 years old, having been born on 24 October 1933.  He enlisted in the Army Reserve on 30 July 1960 and was discharged at the end of his engagement on 18 March 1966. Mr Nipperess claims his injuries stem from his activities during these years. It is not disputed that Mr Nipperess did substantial service including operational service in Vietnam. His service history is as follows:

·1951 to 1952 – Royal Australian Air Force;

·30 July 1960 to 18 March 1966 – Civilian Military Force (Army Reserve);

·19 March 1966 to 25 September 1967 – Civilian Military Force (full time);

·5 October 1966 to 14 June 1967 – Operational Service in Vietnam;

·24 December 1971 to 1 July 1973 – Re-enlisted in Civilian Military Force (Army Reserve).

4.        Mr Nipperess did not put his claim into any specific legal context when presenting his case to the Tribunal. He gave evidence that he had spinal problems and that all of the years of jumping down cliffs when he was in the Army Reserve must have done some damage to his back. Mr Nipperess made no claim that he had suffered any pain during his jumps but argued there was medical evidence that damage could nevertheless have occurred. Dr Mahoney reported in 1990 that Mr Nipperess had no history of any specific injury to his back, apart from rope burns. Dr Garrick reported at about the same time that Mr Nipperess had no major back injury in the past.

5.        Mr Nipperess submitted that his spinal problems, particularly spondylosis, were caused by the cliff roping and climbing activities that he participated in, between 1960 and 1996, while he was a climbing instructor. He attended many training days and used the Geneva method of descending cliff faces. This method involves the climber facing down and running or jumping to a landing spot where he brakes. He submitted he suffered cumulative compression injuries as a result of several hundred descents using the Geneva method.  He demonstrated this technique to us, explaining that it was not the same as abseiling and involved sideways movements. He further asserted that he did not have any pre-existing spinal condition and that the references to adolescent curvature of the spine, in medical histories before the Tribunal, were spurious.

6.        As well as denying that his occupation during the years of service caused any back injury, the Commission suggested that Mr Nipperess did have a pre-existing spinal condition, namely, kyphoscoliosis. Further, the degenerative changes now evident reflect the usual sequence of degeneration seen with kyphoscoliosis compounded by the consequences of ageing.

Medical Evidence

7.        Between 1989 and 2005, Mr Nipperess was seen by numerous medical specialists who provided a number of reports with differing conclusions. Between 1989 and 1990, the weight of medical opinion favoured the contention that Mr Nipperess suffered from pre-existing kyphoscoliosis with associated degenerative change. Several specialists speculated that the activities described during the relevant service period may have contributed to the degenerative process. An x-ray report noted, “some wedging of the mid dorsal vertebral bodies” and one practitioner suggested, “there is evidence of compression lesions of the thoraco-lumbar area”.

8.        Among the specialists who examined and reported on Mr Nipperess during this time, Dr Sambrook,  Rheumatologist, saw him in March 1990 and concluded in his report of 1 March 1990 that:

“It is clear from the history and X-rays that the spondylitis is secondary to the kyphoscoliosis which most probably pre-dates his army service.” 

Dr Sambrook went on to say that:

“it is also clear that with the pre-existing condition, the repetitive activity of roping and climbing he describes could have placed further stress on the scoliosis and it is reasonable to suppose it may have aggravated or exacerbated his scoliosis later in life”.

9.        Dr Sambrook further stated in his 1990 report that he had reviewed Mr Nipperess’ x-rays and that they:

“showed a marked scoliosis concave to the left in the thoracic spine with irregularity of the endplates and extensive spondylosis” but made no reference to vertebral fractures.”

10.      More recent medical opinion is more divergent. In March 2004, Dr Billett, an Orthopaedic Surgeon, in a written report opined that Mr Nipperess has “pre-existing constitutional age-related degenerative changes” in the spine. He states in his report that he viewed X-rays dated 13^th February 2000 and he describes wedging from T7 to T9 but does not describe vertebral fractures.

11.      At the hearing before the Tribunal, Mr Nipperess relied on written and oral evidence from two medical experts. Firstly, he relied on Professor Sambrook, Rheumatologist, who is now known as a professor, and secondly, he referred to written evidence from Dr Jones, who is a Rehabilitation Specialist.

Professor Sambrook

12.      Professor Sambrook saw Mr Nipperess again in 2000 and arranged for further x-rays. Professor Sambrook stated in his letter, dated 9 May 2000, in reply to the referring doctor that, because these X-rays suggest “the possibility of wedge fractures”, he arranged for an investigation to determine whether Mr Nipperess had osteoporosis. The investigation proved to be negative and his conclusion was that Mr Nipperess did not have osteoporosis.

13.      In his written report of March 2005, Professor Sambrook states: "x-rays in 1990 showed multiple wedge compression fractures”; and adds that repeat x-rays on 13^th April 2000 “were reported to show multiple thoracolumbar crush fractures”. We note that Professor Sambrook did not view the 1990 x-rays at this time but relied on the radiologist’s reports, which in fact referred to “some wedging” and “wedge shaped deformities” but with no mention of fracture. In addition, when Professor Sambrook saw Mr Nipperess in 1990, we note again that his report made no reference to vertebral fractures.

14.      From the sequence of reports, we can see that Professor Sambrook has changed his opinion held in 1990 that there were no wedge fractures, to a “possibility” of wedge fractures in 2000, and now gives his opinion that Mr Nipperess suffered multiple vertebral fractures during the relevant period of service. He further submitted to us that these fractures were asymptomatic. He supported his view on the basis that both the past and recent x-rays demonstrate multiple vertebral fractures and that recent medical literature supports the proposition that asymptomatic fracture of vertebrae is relatively common, even in men and women who do not have osteoporosis.

15.      In his oral evidence Professor Sambrook suggested that some of the difficulties in this case arise from the loose application of terminology with terms such as “wedge compression” and “wedge fracture” being used interchangeably but meaning the same thing. He made the distinction between wedge fractures and crush fractures and opined that wedge fractures “are often asymptomatic” and occupationally based with “minor wedging “ occurring over a period of time resulting in deformity of the spine, such as seen in Mr Nipperess. He claimed support for this opinion in the medical literature.

16.      In cross-examination, Professor Sambrook admitted changing his opinion with regard to the earlier x-rays, although he did not see them again. He in fact based his opinion on the more recent x-rays taken in 2005. Professor Sambrook went on to concede that there is no doubt that Mr Nipperess has kyphoscoliosis and had scoliosis when he was younger but that this has been “complicated by the development of fractures as well”. He further admitted that wedging is consistent with kyphoscoliosis but that, in his opinion, the degree of wedging in Mr Nipperess is greater than expected in this condition. He further conceded that Mr Nipperess’ spondylosis and late onset of symptoms is consistent with the natural history of the kyphoscoliosis but added that there were aggravating factors in this case.

17.      Professor Sambrook referred to two articles in the literature purporting to support his submission that young men commonly suffer from occupationally based vertebral fractures without symptoms of acute pain or episodes of defined trauma. These articles were subsequently submitted to the Tribunal and were the subject of further submissions by both parties.

Dr Jones

18.      Dr Jones, a Rehabilitation Specialist, saw Mr Nipperess on 23 December 2004 and, in a relatively brief written report, noted Mr Nipperess “produced an X-ray which shows compression fractures of T8, which was done in 2000.” She arranged further x-rays that purported to show compression fractures of T8, T5 and T4. Dr Jones concluded that Mr Nipperess has “severe osteoarthritis in his lumbar spine and compression fractures in 3 areas of his spine”. She further wrote that, as he did not have osteoporosis, the “compression fractures are old and probably related to his time in the army”. Her report does not address the issue of kyphoscoliosis.

Dr McGill

19.      Dr McGill, a Rheumatologist, saw Mr Nipperess in November 2004 and, following a detailed medical history, physical examination and review of relevant documents available to him, he provided a report. Dr McGill concluded that Mr Nipperess had kyphoscoliosis dating from his teenage years and now has superimposed degenerative changes reflecting:

“the usual sequence of degeneration secondary to kyphoscoliosis in addition to ordinary spinal degeneration”.

20.      From the limited x-rays that were available to him at the time, Dr McGill stated that he could not identify any vertebral fractures. He based his conclusions on the history of spinal curvature since Mr Nipperess’ teenage years, the diffuse nature of the degenerative changes and the lack of any history of spinal pain at the time or in the years following the relevant service.

21.      In oral evidence, Dr McGill reinforced his written conclusion with the explanation that Mr Nipperess had all three components of spinal curvature characteristic of constitutional kyphoscoliosis, that is, scoliosis, kyphosis and rotation. This conclusion is supported by the radiology reports of 1989 and 1990. In response to questioning about wedge fractures, Dr McGill said that wedging can be seen in association with kyphoscoliosis as well as vertebral fractures. He re-affirmed that on viewing the x-rays, dated 13^th April 2000, he was unable to see any definite vertebral fractures. He went on to say that spinal curvature following vertebral fractures typically develops kyphosis, rarely scoliosis, and almost never rotation. In response to questioning about the possibility of a vertebral fracture having occurred during the described activities, he gave evidence that as Mr Nipperess had no pain at the time and no pain in the following weeks, months or years. As a result, this does not support such a conclusion and the later onset of symptoms described by Mr Nipperess was consistent with the natural history of kyphoscoliosis.

Dr Maxwell

22.      Dr Maxwell saw Mr Nipperess on the 11 November 2004 and provided a written report. He concluded that Mr Nipperess suffers from:

“idiopathic thoracolumbar scoliosis with a typical scoliosis convex to the right and increased thoracic kyphosis at one end of the normal distribution.”

He viewed the X-rays of 13^th April 2000 and stated there was no evidence of any compression fracture of the thoracic spine and there was “normal” wedging associated with the increased kyphosis. He also stated that the degenerative changes on x-ray, which may be called spondylosis, are “typical of a 71 year old man.”

23.      In oral evidence, Dr Maxwell confirmed his opinion that Mr Nipperess has longstanding kyphoscoliosis with spondylosis that is most likely due to ageing. He conceded that the kyphoscoliosis may have contributed to the spondylosis. With respect to the proposition that Mr Nipperess may have suffered a vertebral compression fracture during the relevant period, Dr Maxwell stated that, in his experience, such an injury in a young man with no osteoporosis would require considerable force and would result in significant pain with incapacity for at least a week. With regard to the issue of wedging, Dr Maxwell asserted that “a contentious area arises because everybody’s spine has wedging of the thoracic vertebrae to allow for the normal curve” and varies with posture.

24.      He confirmed that he could not see any significantly wedged vertebra in Mr Nipperess and expressed an opinion that, in recent years, there has been an “explosion” in the diagnosis of wedge fractures. He refected on the fact that people needing treatment for osteoporosis must have a demonstrated wedge fracture to get the rebate for treatment that is very expensive. In his view, there was a tendency for radiologists to over-diagnose.

25.      Dr Maxwell also confirmed Mr McGill’s opinion that, with vertebral fracture, rotation of the spine would be very rare and that acute scoliosis can occur but only when there is unequal compression on one side compared to the other. He then described Mr Nipperess’ x-ray as showing a spine with a gradual curve associated with significant rotation that is indicative of developmental scoliosis rather than scoliosis secondary to trauma.

REASONS FOR THE TRIBUNAL’S FINDINGS

26.      In deciding this case, we are faced with three propositions, the first is:

(a)  Mr Nipperess did not have a pre-existing curvature of the spine and as a result of minor repetitive trauma during 1960-1966, he suffered injury to his spine that resulted in spinal curvature and secondary spondylosis.

This submission was made by Mr Nipperess himself but is not supported by any of the medical evidence. In addition, in his evidence given under oath, Mr Nipperess was a little confused about the issues but conceded that he does have kyphoscoliosis. He indicated that he is only claiming for spondylosis but was unable to clearly explain his reasons.

27.      Mr Nipperess admitted to not having any notable symptoms until 1984 and suggested this might be attributable to excessive alcohol intake and “Aspros”. He was also unable to articulate the nature of the compensation that he was seeking. In response to a question as to why he set out on this course of action he said: “Now I wonder. Well, it’s worth something.”

28.      We are not persuaded to consider this proposition any further as it is unsupported by any evidence. The further two propositions before us depend on consideration of the evidence for and against the presence of multiple vertical fractures.

29.      The second proposition is:

(b)  Mr Nipperess had pre-existing kyphoscoliosis but he also suffered multiple vertebral fractures during the relevant period of service. These fractures have aggravated his underlying condition and have contributed to the severity of his current spinal problems including the spondylosis.

This proposition was put by Professor Sambrook and depended strongly on whether we accept that Mr Nipperess does in fact have multiple vertebral fractures and that they occurred during the relevant period of service. We have considered this further after stating proposition C below.

30.      The third proposition is:

(c)  Mr Nipperess has degenerative spinal disease consistent with his age on a background of pre-existing kyphoscoliosis and does not have vertebral fractures.

The weight of the medical evidence supports this proposition, particularly when considering the fact that Mr Nipperess was asymptomatic during the relevant period and for the subsequent 18 years. It follows that a key issue is whether or not Mr Nipperess does in fact have vertebral fractures. The medical evidence before us on this issue is both confusing and contradictory and does not allow us to make a definitive decision. We have therefore set out to make the preferable decision based on the material before us.

31.      If we were to accept that Mr Nipperess does not have vertebral fractures, then Mr Nipperess’ case fails in that there is no evidence to support the argument that he suffered any injury during the relevant period of service. If, however, we were to accept that Mr Nipperess does now have vertebral fractures, we would have to consider whether we are reasonably satisfied that Mr Nipperess suffered such fractures during the relevant service period, notwithstanding the fact that he did not complain of any injury, suffered no symptoms and had no medical treatment for any problems with his spine either during the relevant service period or for the subsequent 18 years.

32.      Drs McGill and Maxwell not only refute the existence of fractures but also are clearly of the view that a history of a lack of symptoms is not consistent with a proposition that multiple fractures can occur in a fit young man who does not have osteoporosis. Professor Sambrook has a contrary opinion. He submits that in radiographic surveys of the general population, approximately half of the people with radiographic evidence of vertebral fractures report having no back pain. He submits that this applies to people who do not have osteoporosis, as is the case with Mr Nipperess. He goes on to assert that these fractures occur in the context of exposure to low-grade cumulative occupational trauma. The importance of osteoporosis is that it is accepted that vertebral fracture, with no pain at the time of fracture, is a recognised clinical occurrence with people who suffer from osteoporosis.

33.      To support his view, Professor Sambrook relies on two papers published in 1997. We have read these papers as well as several additional written submissions provided by both parties. We are satisfied that recent medical literature does support the proposition that, in population based radiographic surveys, patients who do not have osteoporosis are frequently identified with vertebral fractures and that, at the time of the surveys, these patients report having no back pain. What is not so clear is whether the patients remain pain free and for how long.

34.      Professor Sambrook, in evidence, indicated that these patients do get symptoms and have “poor quality of life, less mobility and more episodes of back pain in time”, but he was unable to provide a clear perspective as to the span of time. He indicated that the studies have been cross-sectional with some data over three years but there is no real data for longer periods.

35.      In his written submission, Dr McGill points to a suggestion by the author of one of the papers before us that painless vertebral fraction is, in fact, uncommon:

“Furthermore back pain of mild to moderate severity may not be reported if it seems insignificant in comparison to co-morbid conditions or traumatic life experiences. Of course, it is also possible that some vertebral fractures truly are not associated with pain.” [emphasis added]

Although the possibility of painless vertebral fracture is supported by the evidence before the Tribunal, the proposition that a fit young man suffered asymptomatic multiple vertebral fractures and remained asymptomatic for 18 years is not so supported.

36.      It follows that we are not persuaded, on balance, that Mr Nipperess suffered vertebral injury during the relevant service period. We therefore find in favour of the Commission. He did not suffer any injury under the Safety, Rehabilitation and Compensation Act 1988 on the basis that non-operational military service duties contributed to his claimed injury. As well, Mr Nipperess did not sustain an injury within the meaning of the Safety, Rehabilitation and Compensation Act 1988 or any predecessor Act.  He has not established an entitlement to compensation pursuant to the Safety, Rehabilitation and Compensation Act 1988 in relation to spondylosis. It follows that Mr Nipperess’ claim has been unsuccessful.

DECISION

37.The Tribunal affirms the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Robin Hunt

Signed:         .....................................................................................
Zoe McDonald
Associate

Dates of Hearing: 4 May 2005 and 4 August 2005         
Date of Decision: 20 September 2005      
Solicitor for the Applicant: Self 
Counsel for the Respondent: Mr Polin     
Solicitor for the Respondent: Sparke Helmore