Pudney and Repatriation Commission (Veterans' entitlements)

[2019] AATA 5243

Pudney and Repatriation Commission (Veterans' entitlements) [2019] AATA 5243 (16 April 2019)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2016/3805

Re:David Pudney

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Member O'Loughlin

Member Stephan         

Member Ormston

Date:16 April 2019

Place:Adelaide

The decision under review is affirmed.

.........................[SGND]...................................

Member O'Loughlin

Catchwords

VETERANS’ AFFAIRS — Pensions, benefits and entitlements — Disability pension — relationship of neck condition to defence service — Statement of Principles concerning cervical spondylosis No 67 of 2014 — Definition of “trauma” — Meaning of “clinical onset” — Relevant definitions not satisfied — Decision under review affirmed

Legislation

Veterans’ Entitlements Act 1986

Cases

Lees v Repatriation Commission [2002] FCAFC 398

Repatriation Commission v Cornelius [2002] FCA 750

Robertson v Repatriation Commission (AAT 12666, 2 March 1998)

Secondary Materials

Statement of Principles concerning Cervical Spondylosis No 67 of 2014

REASONS FOR DECISION

Member O'Loughlin

Member Stephan  

Member Ormston

16 April 2019

BACKGROUND

1. The applicant served in the defence forces from 13 August 1975 to 14 August 2000. In  January 2015 he lodged a claim form with the Department for Veterans’ Affairs (DVA) seeking an increase in his disability pension due to a neck condition and a depressive disorder, both of which he said were related to defence service. At that time he was receiving a disability pension under the Veterans’ Entitlements Act 1986 (the VEA) at 60% of the general rate.

2. The January 2015 claim was supported by a CT scan report prepared by Dr E Lam (radiologist) dated 27 November 2014 which related to scans of the applicant’s head and cervical spine taken on 24 November 2014. The report concludes:

   No evidence of fracture.  There is moderate to severe degenerative disc change at C6-7 with moderate left C6-7 foraminal stenoisis possibly irritating the exiting left C7 nerve root.  Clinical correlation suggested.[1]

   [1] Exhibit R1 p 46.

3. On 19 May 2015 the Repatriation Commission accepted the applicant’s claim in relation to depressive disorder and increased his pension rate to 80%. On the same date the Repatriation Commission rejected the claim in relation to the neck condition on the basis that the delegate was reasonably satisfied that the applicant’s neck condition was not related to relevant military service.

4. The applicant sought review of the Repatriation Commission’s decision to reject the neck claim but on 10 May 2016 the VRB affirmed that decision on the grounds that it was reasonably satisfied that the material before it did not raise a connection between the applicant’s cervical spondylosis and his defence service. 

5. On 21 July 2016 the applicant lodged an application for review of the VRB’s decision with this Tribunal.

   LEGAL CONSIDERATIONS

6. The Commonwealth’s liability to pay a pension in respect of an incapacitating “defence-caused disease” arises from s 70(1) of the VEA which relevantly provides:

   1)    Where:

   …

   b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence-caused injury or a defence-caused disease;

   the Commonwealth is, subject to this Act, liable to pay:

   …

   d)  in the case of the incapacity of the member--pension by way of compensation to the member;

   in accordance with this Act.

7. The definition of “defence-caused” in relation to a disease is found at s 70(5) which relevantly provides:

   5) …an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:

   a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;

8. That provision is augmented by s 70(7) which provides:

   7)  Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service:

   a)  if the incapacity of the member was due to an accident--that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member; or

   b)  if the incapacity was due to a disease--the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member, for the purposes of this Act.

9. Section 120 of the VEA sets out the standard of proof required of an applicant in demonstrating an entitlement to a pension. It provides that the decision maker decide the matter to its “reasonable satisfaction”.

10. That section is affected by s 120B(3) which provides that the decision maker will only be reasonably satisfied that an injury or disease was defence-caused if:

    a) the material before it raises a connection between the injury or disease and some particular service rendered by the applicant; and

    b) there is in force:

    (i) a Statement of Principles determined under subsection 196B(3) or (12); …

    …that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

11. That subsection is in turn regulated by subsection (4) which provides:

    4)    Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:

    a)  the kind of injury suffered by the person; or

    b)  the kind of disease contracted by the person; or

    c) the kind of death met by the person;

    as the case may be.

12. The Tribunal has been referred to the Statement of Principles (SOP) concerning Cervical Spondylosis No 67 of 2014. There does not appear to be any dispute that that SOP is one that relates to the kind of injury or disease suffered by the applicant. As such, pursuant to s 120B(4) it is a SOP that applies to this matter for the purposes of s 120B(3) of the VEA.

13. At paragraph 3(b) the SOP defines “cervical spondylosis” thus:

    For the purposes of this Statement of Principles, “cervical spondylosis” means a degenerative joint disorder affecting the cervical vertebrae or intervertebral discs with: clinical manifestations of local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression; and imaging evidence of degenerative change, including disc space narrowing or osteophytes.

    Other commonly associated features include facet joint arthritis, bone hypertrophy and spinal stenosis. This definition excludes diffuse idiopathic skeletal hyperostosis and bulging of an intervertebral disc in the absence of other signs of disc degeneration. Cervical spondylosis includes spondylosis at the cervicothoracic junction.

14. At clause 5 the SOP specifies that one of the factors set out in clause 6 must be related to the relevant service rendered by the person. Included in those factors is 6(f) which provides:

    …having trauma to the cervical spine at least one year before the clinical onset of cervical spondylosis, and where the trauma to the cervical spine occurred within the 25 years before the clinical onset of cervical spondylosis…

15. “Trauma to the cervical spine” is defined in clause 9 thus:

    …a discrete event involving the application of significant physical force, including G force, to the cervical spine that causes the development within twenty-four hours of the injury being sustained, of symptoms and signs of pain and tenderness and either altered mobility or range of movement of the cervical spine.  In the case of sustained unconsciousness or the masking of pain by analgesic medication, these symptoms and signs must appear on return to consciousness or the withdrawal of the analgesic medication.  These symptoms and signs must last for a period of at least 7 days following their onset; save for where medical intervention has occurred and that medical intervention involves either: immobilisation of the cervical spine by splinting, or similar external agent; injection of corticosteroids or local anaesthetics into the cervical spine; or surgery to the cervical spine.

16. Consideration of factor 6(f) also requires the Tribunal to identify the date of “clinical onset” of the cervical spondylosis. This is not a term that is defined in the VEA but it has been the subject of some judicial consideration.

17. The respondent directed the Tribunal to the decision of the Full Court of the Federal Court in Lees v Repatriation Commission [2002] FCAFC 398 at [13] where the Full Court noted with approval the citation by Branson J in Repatriation Commission v Cornelius [2002] FCA 750 of the formulation adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998):

    ... 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....

    APPLICANT’S EVIDENCE

18. The applicant gave evidence that he was born in Mt Gambier in 1958.  He attended school to year 11 when he decided to join the Army. He started on 13 August 1975 and became an armoured personnel carrier driver, doing his training in Victoria before being posted to Brisbane. He was in Brisbane until 1983 and most of his time in the Army was served on the east coast of Australia.

19. The applicant also described an incident that occurred in 1976 during a swimming carnival when he was thrown into the pool.  He said he was thrown into shallow water and struck his head which gave him a headache and a stiff neck.  He said that these symptoms resolved after a weekend’s rest.

20. In 1981 the applicant was involved in an exchange with the British Army and spent three or four weeks in Germany. He told the Tribunal that during this exchange he and another soldier were ordered to dispose of some “charge bags” (explosives used in blank rounds, in this case for a 76mm gun on a Scorpion armoured vehicle). There was an accidental explosion and the applicant was knocked backwards.  He suffered burns to his arms and face for which he was treated, and a loss of vision that lasted four days.

21. On 7 October 1999 the applicant was playing touch football as part of his training. He said that sport was an important part of Army culture. During this game, the applicant suffered a broken jaw and cheek, and a neck injury. The mechanism of the neck injury was not completely clear, but the applicant submitted that a blow to the head of sufficient force to break his jaw and cheek was likely to have been the cause. The incident occurred when the applicant chased an opposition player to the try line, but both he and a team mate fell. He said that his right cheek caved in, that he believed there had been a head clash, but he did not believe he had blacked out. 

22. The applicant was taken to the medical centre and given pain killers. He was then taken by ambulance to the Brisbane Mater Hospital where he underwent reconstructive facial surgery including the insertion of three titanium plates.  He says that he was in hospital for seven to ten days.

23. The applicant conceded that he was not confident in his recollection of the exact detail of the accident. He said his own memory is more suggestive of a clash between his head and another player’s foot, but that he had read that there was a suggestion of a head clash and he is not prepared to dispute that given that he was dazed. The applicant submits that the important thing is that he suffered a blow to the head of sufficient force to cause him significant bony injuries to his face, and that it is the force of the blow rather than the precise way it happened that is important.

24. The applicant said that after that incident he would suffer neck pain from time to time but that he never needed a neck brace.

25. The applicant also submitted that the work he did driving an armoured personnel carrier throughout his career in the Army meant that he suffered constant minor blows to the head and that neck pain was common.  He said that generally the headwear that was used was a beret which did not afford any protection at all.

26. The applicant said that there had been incidents in which the personnel carrier hit a tree causing part of it to break and fall, and that he had been struck on the head that way as well, which could cause neck pain.  He also said that sometimes he was aware of neck pain after emergency braking.

27. The applicant gave evidence that the nature of army life could lead to bouts of neck pain particularly with sleeping in awkward positions.

28. The applicant’s evidence was that he could not pinpoint when the neck problems became an issue, and he had not sought medical treatment for neck pain alone when he was in the Army.

29. The applicant said that about six months after he left the Army he was driving a car and turned his head to the right to check for traffic.  His neck locked and he ended up going to see his doctor who told him he was suffering from early onset arthritis and gave him Panadol.

30. The applicant said that he tried to live on his pension alone for about a year but that it was difficult so he bought about 10 acres of land in Mt Gambier on which he grew vegetables and lavender.  He also agisted some horses and fattened some cattle. 

31. During this time he got a stiff neck from time to time.  The applicant said that he generally preferred not to go to the doctor.  He had accepted the diagnosis of early onset arthritis and when his neck was a problem he treated it with Panadol. He said that stronger analgesics may have been available but that he does not like using them, so he did not bother getting a prescription.  He said that when his neck was sore it would usually be in the morning and he would work through it.

32. Mr Pudney explained to the Tribunal that after about 12 months working his landholding, he took work stacking timber.  He said that the timber was in 1.6 metre lengths and that he would take it from some type of milling machine and stack it which required him to turn 180 degrees. He did that work for about four years and then ceased when he had the opportunity to subdivide his property. Undertaking the subdivision did not require physical effort from the applicant except for some fencing.  His neck was generally not painful but his back occasionally gave him problems both with the timber stacking and with digging postholes for the subdivision fences.

33. The applicant advised that the subdivision was successful enough that he did not need to work after that and was able to retire.

34. In about 2010 the applicant started seeing a new doctor, Dr Milan.  The applicant said that there was no particular reason for the change of doctors as he was not dissatisfied with his previous GP and had not experienced a change in symptoms.  He said that when he started going to Dr Milan he got a full check-up, and his hips, knees and back were x-rayed.

35. The applicant said that he did not specifically complain to his GP about the increase in neck pain until 2014 because the pains, though worse, generally went away and he did not go to the doctor frequently. He did not complain until the experience of neck pain coincided with a visit to the doctor. He said that the frequency and severity of his neck problems increased in about 2014 and so he was sent for a CT scan. This scan identified the problems at the C6-7 cervical vertebrae.

36. Mr Pudney said that in 2015 he had bilateral hip replacements. Around that time he started taking stronger analgesia, osteo Panadol, although he was not sure whether he started taking it before or after the hip replacement.   The applicant said he gets prescriptions for that medication. Mr Pudney acknowledged that the osteo Panadol addresses a range of problems that he suffers from, including his neck, his back, his hips, and his ankle.

37. In relation to his neck the applicant said that it went from being an occasional nuisance to something that was bothering him more regularly.  It worsened to the point that it was troubling him in a range of weekly to monthly. The applicant found he could get some relief by massaging it himself, and could often avoid the pain altogether if he adjusted his posture.  He also found that he could avoid aggravating his neck if he avoided sitting without moving his neck for too long, yawning, or looking up by tilting his head.

38. The applicant was cross examined about the complaints he made of neck pain to various medical practitioners. He agreed that the GP’s notes refer to neck pain on 3 June 2001, which the applicant believes was the incident in which his neck locked when he was checking for traffic.  He agreed that there did not appear to be further complaints of neck pain for about the period of about two months after that incident until the complaints in 2014 that gave rise to the scans that are referred to above.  The Tribunal notes that that is a period of about 13 years.

39. The applicant was also asked about a medical report dated 13 April 2015 prepared by Dr Kevin Angel, a consultant orthopaedic surgeon retained by the respondent. Dr Angel obtained a history of ongoing headaches and a feeling of pressure on the top of the applicant’s head, together with occasional pain low on the right side of the neck with no significant radiation. 

40. Mr Pudney told Dr Angel about the incident in which he was thrown into a swimming pool, saying that he got a headache which resolved in a couple of days. He also said that the work as armoured personnel carrier driver often gave him a headache when he bumped his head. Mr Pudney agreed that he did not mention the football incident to Dr Angel and said that at that time (19 March 2015) he did not associate the neck pain with the football injury. 

41. It appears from the report that Dr Angel did not concern himself with the fractured cheek bone as it was not in his area of expertise.[2]

    [2] Page 3 of Dr Angel’s report of 13 April 2015.

42. Mr Pudney mentioned to Dr Angel the neck pain that he suffered in about 2000 when he was checking for traffic and said that it settled but that he started to get headaches which worsened over about 5 years. 

43. Mr Pudney said that he did not concentrate particularly on his neck problems with Dr Angel because he believed that Dr Angel was reviewing his accepted conditions and the neck was not one of them.

44. Mr Pudney was referred to a report dated 13 April 2015 provided by Associate Professor PMJ Brinded, a consultant psychiatrist, whom he saw on 19 March 2015 — the same day as Dr Angel.  It was put to the applicant that he referred to the facial fracture,[3] but not to the football injury nor to any neck pain.  Mr Pudney agreed and said that he did not associate that injury with his neck pain at that time.

    [3] Exhibit R1 p 71.

45. Cross examination also addressed the applicant’s reporting of the football injury. In a statement of 19 October 1999, he described the incident as a head collision, and in an Accident or Injury Report of the same date he described it as a head clash. It was put to the applicant that neither of these descriptions was consistent with his evidence that a clash occurred between his head and another player’s foot. Ultimately the applicant conceded that he was not sure about the precise nature of the blow to his head.  The Tribunal does not find that the applicant’s credibility was impugned on the basis of this possible inconsistency.

1. It was put to the applicant that he did not make any complaint of neck pain at the time of the football injury. On questioning, the applicant confirmed that he did not make any complaint of neck pain at any time that he was being investigated for injury arising from the football incident. Specifically, the applicant conceded that he did not report neck pain to Dr Rimmer who saw him at the Brisbane Mater Hospital on the day of the injury.  The applicant believed that he may have been affected by pain killers and not noticed the neck pain.

2. The applicant further conceded that he did not mention any neck problem to Dr MacMillan.[4] This may not be surprising as Dr MacMillan is an oral and maxillofacial surgeon whose main concern was the applicant’s facial fracture.

   [4] Exhibit R6.

3. The applicant also conceded that he did not complain of neck pain to Dr Higgins, a GP who provided a standard form report dated 29 November 1999.[5]

   [5] Exhibit R6.

4. He did not concede that he was not suffering from neck pain at that time.

5. Examination of the applicant’s medical records does not reveal any complaint of neck pain while he was in the armed forces. The first complaint of neck pain appears in the notes of his then GP Dr Elliot-Smith who notes that on 3 June 2001 the applicant complained that for the previous 18 months he had experienced a feeling like pressure on the top of his head and crunching noises when he turned his head.[6] He said that he had tried physiotherapy and chiropractic treatment without success. The doctor suggested paracetamol and a review in two months. It does not appear in the notes but the applicant says that Dr Elliot-Smith diagnosed arthritis.

   [6] Exhibit R2.

6. He said that he had a diagnosis of arthritis and did not think it was worth raising the matter again. The applicant said that he believed that at some point he had sought chiropractic help with his neck but was not sure and could not say when.

7. The applicant attended his doctor fairly regularly over the following years for monitoring of a range of conditions. The applicant next mentioned neck pain on 24 November 2014 to Dr Milan when he complained of headaches which had been troubling him for two months and a stiff neck.  Dr Milan arranged CT scans and degenerative disease of the cervical spine was subsequently diagnosed.

   MEDICAL WITNESSES

   Dr Bridget Sawyer

8. Dr Sawyer is a medical practitioner who provided a report dated 28 September 2017.[7] In that report Dr Sawyer explained that she had been with the International Spine Centre for about two years in which time she had been involved in management of spinal conditions. She also has 20 years’ experience in sports medicine. Under cross examination she did not concede that she should defer to an orthopaedic surgeon’s opinion in this matter.

   [7] Exhibit  A1.

9. Dr Sawyer’s report is based on her examination of the applicant on 25 September 2017. The applicant provided a history of the football incident in which he described his face coming into contact with another player’s foot. Dr Sawyer said, in the first paragraph of the second page of the report that an injury occurring that way “..would have been associated with cervical spinal hyper extension which can be consistent with the development of cervical spondylosis.” Dr Sawyer noted in her report that Mr Pudney’s description of the accident to her differs from the head clash described elsewhere, however she gave evidence that the mechanism of the injury was not critical and that the blow to the applicant’s face was of such force that it could be the source of a neck injury, no matter which of the descriptions was correct.

10. Dr Sawyer also sent Mr Pudney a letter dated 8 February 2018,[8]  in which she said that although the facial injuries may have caused the neck injury, “without contemporaneous records, it is difficult to be conclusive that this incident was a sole cause of subsequent degenerative changes to the neck”. She suggested that Mr Pudney seek a report and assessment from another doctor but the applicant did not pursue that.

    [8] Exhibit  R8.

11. Under cross examination Dr Sawyer agreed that she could not say what caused the applicant’s neck condition although she maintained that the football injury was potentially a cause. Dr Sawyer concluded her evidence by agreeing that the applicant’s neck condition is degenerative.

    Mr Ronald Haig

12. Mr Haig, an orthopaedic surgeon, examined the applicant once on 9 August 2017 and prepared a report dated 18 August 2017.[9] Mr Haig obtained a history from Mr Pudney of having been thrown into a pool and landing on his head in 1976 or thereabouts, after which he had a stiff neck for “a period of time” but that he “soldiered on” and recovered. Mr Haig further heard about the incident in Germany when the applicant was blown backwards in an explosion and suffered burns and a loss of consciousness. The applicant told Mr Haig that he was in hospital for two weeks but that he did not know if he hurt his neck then. The applicant also explained the regular blows to the head that he suffered as an armoured personnel carrier driver, and in particular of being hit from time to time by falling branches.

    [9] Exhibit R9.

13. Mr Haig’s report says that later in the consultation the applicant told him about the football incident.  His report is not specific about the mechanics of the accident, only that there was a facial injury. Mr Haig says that the supporting documentation that was provided to him does not mention any complaint of neck pain at that time.

14. Mr Haig noted the CT scan of 27 November 2014, and noted that the report of that scan concluded:

    No evidence of fracture. There is moderate to severe degenerative disc change at C6/7 with moderate left C6/7 foraminal stenosis possibly irritating the exiting left C7 nerve root...

15. Mr Haig diagnosed Mr Pudney as suffering from cervical spondylosis affecting the C6/7 level. He was asked to consider the relevant SOP[10] and indicate of the prerequisite factors at clause 6 apply. He asserted that the only factor that could be relevant would be 6(f).  That factor relevantly reads as follows:-

    6. The factor that must exist before it can be said that, on the balance of probabilities cervical spondylosis or death from cervical spondylosis is connected to the circumstances of a person’s relevant service is:

    …

    (f) having trauma to the cervical spine at least one year before the clinical onset of cervical spondylosis, and where the trauma to the cervical spine occurred within the 25 years before the clinical onset of cervical spondylosis;…

    [10] Statement of Principles concerning Cervical Spondylosis No 67 of 2014.

16. Mr Haig noted clinical onset was the date of the CT scan being 26 November 2014.  He further noted that the incident in which the applicant was thrown into the pool fell outside the 25 years before clinical onset and so that trauma could not bring the applicant within the SOP. He did not believe that any of the other matters that the applicant described to him included any single episode that was particularly significant.

17. In response to a question about the football incident, Mr Haig advised that the applicant referred to it (the Tribunal observes that it appears to be mentioned in the penultimate paragraph on the second page of Mr Haig’s report) but that he did not think it was relevant as there was no complaint of neck pain or trauma to the cervical spine.

18. Mr Haig was asked if analgesia given for the applicant’s other conditions may have masked any pain from a neck injury to which he replied that the applicant would have complained of pain before the administration of analgesia, and that even if it was a matter of a relatively minor trauma giving rise to the degenerative condition, he would expect complaints of pain and investigation.

19. On being asked if the mechanism of the football injury could have resulted in trauma to the cervical spine, Mr Haig agreed that it could have but he did not believe that it was in this case due to the absence of any complaint at the time.

20. It was put to Mr Haig in cross examination that the force of a blow to the face that caused shattering of facial bones, and the need to have three plates inserted is a substantial force and sufficient to cause traumatic injury to the neck. Mr Haig did not accept that there could have been a traumatic neck injury without contemporaneous pain.  He conceded that the sort of analgesia that the applicant would have received would have had an overall painkilling effect for 10 days, but thereafter neck pain would have been quite noticeable if there had been a traumatic injury to the cervical spine.

    SUBMISSIONS

21. The applicant in closing said that he “would have” made complaints of neck pain at the time of the 1999 football incident.  He also suggested that he had suffered a small crack in his cervical spine which has since enlarged. There was no evidence to support either of those contentions.

22. The applicant said that he did not believe that it mattered for the purposes of neck trauma whether his facial injury in 1999 was caused by a head clash or some other way, and that the important thing is that it was a substantial blow to his face which would logically result in some force being applied to his neck.

23. The respondent noted that there was a complaint of neck pain in 2001 to the applicant’s then GP Dr Elliot-Smith, but that that was an isolated incident in the context of numerous attendances to various doctors for a range of conditions. The respondent submitted that the applicant would presumably have made some complaint of neck pain during the period 2001 to 2014 if neck pain had been an issue. There was no evidence of any such complaint.

24. The respondent submitted that the version of the football incident that was provided by the applicant at hearing differed significantly from the version that he gave elsewhere, and urged on the Tribunal that this difference should reflect adversely on the applicant’s history.

25. The respondent also submitted that Dr Sawyer’s evidence is not conclusive and cannot suffice to establish the applicant’s claim.

    FINDINGS

26. The Tribunal finds that the applicant suffered neck pain after he was thrown into a pool in 1976 or thereabouts, and accepts that the pain lasted for about two weeks before it resolved.

27. The Tribunal finds that during his time in the Army the applicant suffered episodes of neck pain and soreness. The Tribunal finds that these episodes were of short duration and that they resolved either without medical treatment or with limited medical treatment.

28. The Tribunal observes that none of the documentation it was asked to consider suggests that there were complaints of neck pain at the time of the football injury in 1999. Consequently, the Tribunal finds that there was no contemporaneous complaint of neck pain associated with the football incident.

29. The Tribunal accepts that the applicant complained of neck pain to his GP in 2001.  The Tribunal finds that there is no evidence of ongoing complaint of neck pain at that time and that any neck condition from which the applicant may have been suffering did resolve. The Tribunal finds that there was no further complaint of neck pain until 2014.

30. The Tribunal finds that the applicant suffers from cervical spondylosis and, further, that the SOP concerning Cervical Spondylosis No 67 of 2014 applies to this application. The Tribunal, therefore, may only be reasonably satisfied that the applicant’s cervical spondylosis was defence-caused if that SOP upholds the contention that the applicant’s injury or disease is, on the balance of probabilities, connected with that service.[11]

    [11] Veterans Entitlements Act 1986 (Cth) s 120B(3)(b).

31. The Tribunal has regard to the definition of “clinical onset” discussed above. The Tribunal observes that factor 6(f) in paragraph six of the SOP is the only factor that might apply to this application. The Tribunal finds that the report on the CT scan of 24 November 2014 was the first finding made on investigation which indicated to a doctor that cervical spondylosis was present, and thus 24 November 2014 is the date of clinical onset.

32. Given that the football incident was on the 7 October 1999, it falls within the 25 years before the onset of cervical spondylosis specified in factor 6(f). That being the case it is incumbent on the Tribunal to consider whether the football incident satisfies the definition of “trauma to the cervical spine”. The Tribunal finds that the football incident may have caused physical force to the cervical spine but that there is no evidence of symptoms, or signs of pain, tenderness, and altered mobility or range of movement of the cervical spine. 

33. Further, the Tribunal finds that although the applicant may have suffered a period of unconsciousness or masking of pain by reason of analgesic medication, these symptoms and signs did not appear on return to consciousness or the withdrawal of the analgesic medication.

34. The Tribunal therefore finds that the football incident does not satisfy the definition of “trauma to the cervical spine”. Consequently, the Tribunal finds that the applicant’s cervical spondylosis does not fit within factor 6(f) of the SOP concerning Cervical Spondylosis No 67 of 2014.

35. It follows that pursuant to s 120B(3) of the VEA, the Tribunal cannot be reasonably satisfied that the applicant’s cervical spondylosis was defence-caused.

36. In these circumstances the Tribunal finds that s 70(1) does not impose on the Commonwealth any liability to pay a pension to the applicant in relation to his cervical spondylosis.

    DECISION

37. The decision under review is affirmed.

83.     I certify that the preceding 82 paragraphs are a true copy of the reasons for the decision herein of Member M O’Loughlin, Member Stephan, and Member Ormston

...................[SGND]..........................................

Administrative Assistant Legal

Dated: 16 April 2019

Date of hearing:	22 and 23 August 2018
Applicant:	Self-represented
Solicitors for the Respondent:	Ms N McGowan, Australian Government Solicitor