Ryan and Comcare - [2002] AATA 732

DECISION AND REASONS FOR DECISION [2002] AATA 732

ADMINISTRATIVE APPEALS TRIBUNAL )

) No S2000/495

GENERAL ADMINISTRATIVE DIVISION       )
           Re      MARK CHRISTOPHER RYAN
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date27 August 2002
PlaceAdelaide

Decision The Tribunal affirms the decision under review.

(Signed)
J.A. KIOSOGLOUS
(Senior Member)

CATCHWORDS
COMPENSATION – whether respondent is liable to pay compensation for medical expenses for neck and upper back injury beyond 30 May 1973 - whether applicant's ongoing neck and upper back pain is caused by activities during RAAF service in the 1970's - whether applicant entitled to medical expenses for chiropractic treatments since 1973 – medical evidence considered.
Safety, Rehabilitation and Compensation Act 1988 ss.4, 16

REASONS FOR DECISION

27 August 2002 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Mark Ryan (the applicant) for review of a reviewable decision of a review officer of the respondent dated 29 September 2000 (T10) which affirmed a determination dated 2 June 2000 (T7). The determination determined that the applicant suffered an injury arising out of or in the course of his military service, namely musculo-ligamentous strain of the neck and back in mid-1972 and further determined that the respondent was not liable to pay compensation in respect of that injury on and from 30 May 1973.
The Tribunal received into evidence the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T13) as well as eight exhibits, four lodged by the applicant (Exhibits A1-A4) and four lodged by the respondent (Exhibits R1-R4). In addition, the Tribunal heard oral evidence from the applicant and Mr Peter Fry, orthopaedic surgeon, was also called by the applicant to give evidence. The respondent called Dr Robin Jackson to give evidence on its behalf by video link transmission. The applicant was represented by Mr Christopher Swan and Mr Stuart Cole represented the respondent, both of counsel.
issue
The issue before this Tribunal is whether or not the respondent is liable to pay compensation for medical expenses to the applicant on and from 30 May 1973 for the injuries sustained to his neck and upper back in mid-1972 and continuing as a consequence of his military service pursuant to section 16 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
legislation
Section 16 of the Act provides (inter alia) as follows:
"Compensation in respect of medical expenses etc.
16.      (1)       Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.
(2)       Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
(3)       For the purposes of subsection (1), the cost of medical treatment shall, in a case where the treatment involves the supply, replacement or repair of property used by the employee, be deemed to include any fees or charges paid or payable by the employee to a legally qualified medical practitioner or dentist or other qualified person for a consultation, examination, prescription or other service reasonably required in connection with that supply, replacement or repair.
(4)       An amount of compensation payable by Comcare under subsection (1) is payable:
(a)       to, or in accordance with the directions of, the employee;
(b)if the employee dies before the compensation is paid and without having paid the cost referred to in subsection (1) and another person, not being the legal personal representative of the employee, has paid that cost-to that other person; or
(c)if that cost has not been paid and the employee, or the legal personal representative of the employee, does not make a claim for the compensation-to the person to whom that cost is payable.
(5)       Where a person is liable to pay any cost referred to in subsection (1), any amount paid under subsection (4) to the person to whom that cost is payable is, to the extent of the payment, a discharge of the liability of the first-mentioned person.
(6)       Subject to subsection (7), if:
(a)compensation in respect of the cost of medical treatment is payable; and
(b)the employee reasonably incurs expenditure in doing either or both of the following:
(i)making a necessary journey for the purpose of obtaining that medical treatment;
(ii)remaining, for the purpose of obtaining that medical treatment, at a place to which the employee has made a journey for that purpose;
Comcare is liable to pay compensation to the employee:
(c)       in respect of the journey - of an amount worked out using the formula:
specified rate per kilometre x number of kilometres travelled
where:
"specified rate per kilometre" means such rate per kilometre as the Minister specifies by notice under this subsection in respect of journeys to which this subsection applies;
"numbers of kilometres travelled" means the number of whole kilometres Comcare determines to have been the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey);
(d)in respect of the employee remaining for the purpose of obtaining the treatment - of an amount equal to the expenditure so reasonably incurred in remaining for that purpose.
(7)       Comcare is not liable to pay compensation under subsection (6) unless:
(a)the reasonable length of such a journey as it was necessary for the employee to make (including the return part of the journey) exceeded 50 kilometres; or
(b)if the journey made by the employee involved the use of public transport or ambulance services-the employee's injury reasonably required the use of such transport or services regardless of the distance involved.
(8)       The matters to which Comcare shall have regard in deciding questions arising under subsections (6) and (7) include:
(a)the place or places where appropriate medical treatment was available to the employee;
(b)       the means of transport available to the employee for the journey;
(c)       the route or routes by which the employee could have travelled; and
(d)       the accommodation available to the employee.
…"
The Act defines "medical treatment" in section 4 to include:
"…
(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be;
…"
"Therapeutic treatment" is defined in section 4 as follows:
"'therapeutic treatment' includes an examination, test or analysis done for the purpose of diagnosing, or treatment given for the purpose of alleviating, an injury."

background to the application

The applicant, who was born on 11 May 1950, served with the Royal Australian Air Force (RAAF) from November 1967 until November 1973.
The applicant submitted a claim for rehabilitation and compensation dated 9 March 2000 (T3) in which he claimed that he sustained a "neck and back injury" in June 1972 whilst exercising and that he first received medical treatment for the injury in August 1972.
In a determination dated 2 June 2000 (T7/27), a delegate of the respondent determined that the applicant had suffered an injury arising out of, or in the course of his military service, namely musculoligamentous strain of the neck and back in mid-1972 for which he first received treatment on 14 August 1972. The delegate further determined that the Commonwealth was not liable to pay compensation on and from 30 May 1973 as the available evidence indicated that the applicant was no longer suffering from the service related injury after that date.
In a reviewable decision dated 29 September 2000 (T10), a review officer of the respondent affirmed the determination dated 2 June 2000. The review officer stated, inter alia (T10/31-32):
"I see that the first documentary record of your neck pain dates from August 1972 and relates how this pain occurred in June 1972 after exercising. This pain onset in the absence of any identifiable injury nor was there any final medical diagnosis of the condition at that time. Subsequently an x-ray conducted on 14th August 1972 reported some degenerative processes in your cervical spine. It is not clear whether these radiological features were thought to have a work related or a constitutional origin. However in January 1993 [sic] you were sent for examination to Dr Ostinga, an orthopaedic specialist. Dr Ostinga examined you and also referred to further x-rays taken in December 1972. Those x-rays, in contrast to those taken in August, did not disclose any abnormality of the cervical spine. Furthermore Dr Ostinga also reported that you no longer had symptoms. Following Dr Ostinga's examination and review, he therefore reported 'n.a.d.' (ie no abnormality detected).
Although you continued to serve until November 1973, there are no further medical documents referring to neck pain. There is no discharge medical report to inform me whether pain returned during your service, ie following Dr Ostinga's examination or whether you had a continuing impairment at the time of discharge. You assert that you were attending a chiropractor rather than the Defence Medical Service and you 'believe' this chiropractor was Ms Nola Smith; However Ms Smith's records have now been disposed of and she can not therefore provide any independent substantiation.
In my opinion there is after the passage of 27 years insufficient evidence to relate any condition you may now suffer from, to the brief period of neck pain which ended 'no abnormality disclosed' in 1973. On that basis I have affirmed the decision under review."
On 19 December 2000 the applicant applied to this Tribunal for review of the reviewable decision (T1).
applicant's evidence
The applicant was born on 11 May 1950 and is currently 52 years of age. He grew up in Woomera and joined the RAAF on 19 November 1967 at 17 years of age. His initial training took place at Edinburgh Air Base in South Australia, before he spent nine months at Wagga Wagga RAAF Base and then at Pearce RAAF Base, Western Australia. Prior to joining the RAAF, the applicant stated that he played in the "colts" at the Sturt Football Club and his health was good apart from a small back complaint four months prior to joining the RAAF from football. The applicant stated that his initial training went smoothly and he did three to five mile runs in boots. There were no problems for the following three years.
The applicant told the Tribunal that when he joined the RAAF he became an aircraft engine fitter, which involved lifting starter generators weighing approximately 35 kilograms into confined spaces above his head. The applicant attributes some of his neck and back problems to this work.
When the applicant was transferred to Pearce RAAF Base in Western Australia, his engine fitting work continued. In 1970 the applicant was instructed to undertake fitness training as he had started to put on weight. In addition to playing basketball and football, the applicant was required to run every day to increase his fitness. The applicant stated that there was a group of about 20-30 people who would all run for five miles during their lunch hour. The applicant stated that his neck and back problems started in about 1972, after he had been running for about two years. The applicant stated that initially he ran in "Dunlop Volley" shoes and did not recall any problems with his back and neck whilst wearing them but rather when he was wearing Adidas "Rome" shoes, which the runners paid for themselves.
The applicant stated that he started to experience pain in his mid and upper back region and then in his neck. He stated that no sporting injury triggered this pain but rather it was just the daily running, climbing fences, running up sandhills and back down bitumen roads. The applicant was referred to his service records (T4) and in particular to an entry in his service records dated 10 August 1972 (T4) which stated: "2/12 ago was doing exercises on mat when pain started 5/7 later in neck". The applicant stated that he believed he might have been doing sit-ups after running.
The applicant told the Tribunal that he sought treatment at the infirmary for this pain approximately two weeks after the pain started, around 12 June 1972, and the doctor in charge referred him to a physiotherapist. The applicant stated that he continued to receive physiotherapy treatment right up until the time he left Pearce RAAF Base (4½ months in total). To receive the physiotherapy treatments administered by a Mr Crossley, the applicant had to travel 17 kilometres to Midland, Perth two to three times per week. The applicant stated that he was also referred an orthopaedic specialist, Mr J. Collibee, for opinion in August 1972.
The applicant stated that at this time he was still able to do his job and his transfer to RAAF Williamtown on 14 November 1972 had no connection to his medical condition. The applicant said that he continued to have problems with his neck and back in Williamtown and when he complained at the infirmary, he was sent by minibus to a physiotherapist in Newcastle for treatment. He stated that one day upon leaving the physiotherapist, whilst waiting for the RAAF bus to pick him up, he spotted a chiropractic clinic. He went in and was treated by Dr Nola Smith who investigated his back and neck problem by taking x-rays and the area was manipulated. The applicant said that this chiropractic treatment relieved some of his pain so he went to chiropractors after that as well as physiotherapists. The applicant stated that the Base doctor also referred him to Dr Ostinga, orthopaedic specialist, in Newcastle, who saw the applicant in January 1973 and noted the problem in his back and neck but said that it was not permanent. During cross-examination the applicant stated that he did not tell Dr Ostinga at the time that he was symptom-free nor did he tell him that his neck was causing no problems. When asked why Dr Ostinga would have recorded in 16 January 1973 "no abnormality", the applicant stated that Dr Ostinga must have misdiagnosed him.
The applicant stated that he had to stop running in March 1973 when he injured his ankle playing basketball and the ankle had to be immobilised in plaster. The applicant stated that he was not sure when the plaster came off. He stated that at the time of discharge he was still running but he could not recall whether or not he was playing basketball. The applicant did not recall seeing Dr Ostinga again in March 1973 regarding his ankle injury, nor that he had physiotherapy on his left ankle afterwards. He only remembered having physiotherapy through to the end of 1973 in relation to his neck and back problem.
The applicant stated that he underwent a re-engagement assessment on 8 March 1973 (T4) and he was certified as fit for re-engagement and the RAAF offered to promote him to corporal and post him to Butterworth, Malaya. The applicant stated that at the assessment they knew that he had neck and back problems and still assessed him as fit. He stated that they re-engaged a lot of people and just used to "rubber stamp" them. The applicant stated that he did not want to sign up for another three years after having done six years in the RAAF already.
The applicant stated that he saw the Williamtown Base doctor on four to five occasions up to mid-June 1973 and he also saw Dr Smith four to five times during the three to four months he had left in the RAAF before being discharged. The applicant stated that he flew back to RAAF Edinburgh, South Australia to be discharged and was there for one week. During that time, the applicant had his final medical assessment. The applicant stated that they asked him if he had any problems and he said that he was still having neck and back problems, and he was then discharged.
The applicant stated that after leaving the RAAF he played football for Burnside. He commenced work as a real estate agent in 1974 after waiting for nine months for his real estate licence, during which time he worked at the Repatriation Hospital as a trainee artificial limb fitter.
The applicant stated during cross-examination that he stopped jogging during the mid-1980's. He stated that since his discharge he ran virtually every day with chiropractic treatment being one to two times per week until the mid-1980's. He further stated that he started playing football in 1956 and stopped in 1977. He agreed that he played football consistently after his discharge and until 1977 but stated that he was unable to play on various occasions.
The applicant stated that since his discharge he has continued with his physiotherapy and chiropractic treatments. The applicant stated that his chiropractic treatments have relieved the pain but do not take away the problem. The applicant referred the Tribunal to a spreadsheet setting out his chiropractic treatments over the years following his discharge from the RAAF (Exhibit A4). The applicant explained that the reason he went to see so many different chiropractors was because he was always looking for pain relief, which some of the chiropractors were unable to deliver. The applicant stated that he was unable to obtain some bits of documentation relating to his chiropractic treatments because if he had not visited the particular clinic for more than ten years the clinic often had destroyed the x-rays and records.
The applicant stated that between May and October 1976 he attended Victoria Park Chiropractic Clinic once every three to four weeks. The applicant further stated that he attended various chiropractors between December 1976 and May 1979, including Terry King, George Belle, Errol Harding and David Stapleton but he was unable to obtain records for these visits. The applicant stated that in 1990 he believed that he went to see David Kimber on five occasions and between July 1991 and 1993 he also went to see Glenn Worthington for chiropractic treatment every three to four weeks.
The applicant told the Tribunal that he currently has chiropractic treatment once per month, costing $32.50 a consultation. He consults Dr Bernard Nadolny of Christies Beach Chiropractic Centre. The applicant stated that he did not know the cost of his chiropractic treatments from Dr Nola Smith and Dr Anthony Human but his treatments with Mr Glenn Worthington-Eyre in 1980 cost about $24. The applicant stated that he had been attending Christies Beach Chiropractic Centre for treatment since 1993 but he cannot recall how much he paid in the past. He recalled that the fee has increased as time has gone by.
The applicant saw Mr P.L. Fry, orthopaedic surgeon, on 14 February 2001. The applicant stated that Mr Fry first read through the applicant's medical notes, did a physical inspection of the applicant's body, asking him to bend over, roll around and move his head, arm and shoulders, took a fairly detailed history and then did a detailed assessment of the applicant. The applicant told the Tribunal that he also saw Dr Robin Jackson, orthopaedic surgeon, for assessment. The applicant stated that in the half-hour appointment, Dr Jackson got him to move his back, neck and shoulders around, and did a detailed assessment. The applicant stated that Dr Jackson was very easy to get along with but that Dr Jackson did not ask him some of the questions that he subsequently put into his report. The applicant stated that he was frustrated that Dr Jackson had asked him how his health was and he had replied that he believed he was healthy but then in his report (Exhibit R2, page 8) Dr Jackson made mention of the fact that the applicant did not tell him about his diabetes, his low back pain, his broken knee and his leg fracture. The applicant stated that he had not mentioned these things to Dr Jackson because he believed that they had nothing to do with his neck and back condition.

The applicant agreed that in his application he wrote the summary of the basis of his claim as being for "neck spasm and upper back pain" but when he saw Mr Van der Linden, physiotherapist, (Exhibit A3) he told him that he had symptoms in his neck and left shoulder. He stated that he was equating the left shoulder with the upper back.
The applicant stated that after his discharge in 1973, he went to see Dr Anne Evans, medical practitioner, at Hallett Cove who referred him to a physiotherapist at Reynella whom the applicant consulted for two to three months. The applicant stated that he did not chase up the records of this physiotherapist because he did not remember the physiotherapy until now as he found the chiropractic treatments to be a lot more helpful than physiotherapy. The applicant agreed that his attendance on chiropractors was of his own choice, stating that medical practitioners generally did not refer people to chiropractors.
When it was pointed out to the applicant that Mr de Conte, chiropractor, referred to the applicant's neck and low back pain up to the end of 1975 (Exhibit A4), the applicant stated that at the time he had lots of problems in all of his back and neck into 1976 and since 1976, but that the only reason he went to see chiropractors was because of his neck and upper back pain. The applicant stated that his low back pain started when he was in the RAAF but went away when he started to use Indocid (non-steroidal anti-inflammatory medication). The applicant stated that he might still have had the low back pain when he began to see Dr Anthony Human, chiropractor in 1976. When referred to Dr Human's medical record (Exhibit R3) and in particular the symptoms mentioned: "Neck, lumber – L Feb 1975", the applicant stated that these were the symptoms he presented to Dr Human. In relation to a letter from Mr Weatherall, chiropractor, dated 9 April 2001 (Exhibit A4) which stated that the applicant saw him for treatment in 1975 and 1976, the applicant stated that he was not sure whether he still had low back pain in 1975 and therefore he did not know if he had treatment for such pain, but he stated that when one goes to the chiropractor, one is treated from head to toe.
In relation to the letter the applicant wrote to Ms Nola Smith dated 5 January 2001 (Exhibit R4), the applicant stated that when he referred to the chiropractor x-raying his back rather than his neck, he meant that his whole back was x-rayed from top to bottom. The applicant stated that despite the diagnosis of "twisted hips" he was treated for everything and there were significant improvements in the symptoms in his neck.
The applicant stated that during his first visit to Christies Beach Chiropractic Centre in 1980 he complained of neck pain and low back pain and he may have told them he thought the cause was football. The applicant stated that he might not have told the Centre about his running the first time because they did not ask the right question.
Mr Cole for the respondent cross-examined the applicant at length about his chiropractic records from Christies Beach Chiropractic Centre (Exhibit A4). The Tribunal does not propose to set out in detail the content of these appointments as set out in the notes from the Centre as they cover an extensive period of time (1980-1981, 1987-2001) with an average of two visits per week at some points in time. In addition, much of the notes are incomprehensible and written in chiropractic abbreviations. The Tribunal has, however, taken all of the evidence into account in making its findings and notes that over the course of 16 years, the applicant went to the Centre for treatment, but it is unclear whether he complained of particular symptoms or whether the chiropractor diagnosed him as having problems with the particular areas mentioned in the records. Some of the various symptoms, conditions or areas referred to in the notes are: "long and short leg", "right hip pain and left groin pain", "right Achilles tendon sore, cervical pain", "low back and dorsal pain on right", slight occipital pain, right backache low", "some left trapezius pain", "left anterior leg pains, left stomach aches", "left and right rotator cuff", "neck pain, left scapula pain", "left inguinal hernia", "low back pain and left calf pain", "some neck twinges", "? left groin m. –snapped", "right hamstrings", "left TMJ sore", "bilateral ankle snap", "right knee and calf pain", "left 12th rib, left 4th and 2nd ribs", "numbness left hand", "rupture Achilles Tendon Sept '86", "bit stressed lately", "left hand tingling", "coccyx pain", "sore legs – shins", "a few niggles", "very stiff in neck", "when chew has vibration in left ear", "left groin, pain after running", "left clavicle, left bicep tendon", "twinge in left shoulder", "reflux" and "low back pain and left shoulder". For many of these conditions and symptoms, the applicant stated during cross-examination that he did not recall the nature or cause of these symptoms and only reiterated that his reason for going to the chiropractor was always to do with his neck and back pain.
The applicant stated that he was not running as at April 1980 when he complained to the Christies Beach chiropractor of Achilles tendon soreness and other leg pains (Exhibit A4). However, he stated that he was still jogging on the beach and in the water to strengthen his kneecap, which he broke in 1977. He stated that he did not think his jogging caused the pain in his Achilles tendon. The applicant agreed that some of the neck pains mentioned in the chiropractic notes may well have been linked to his jogging but he did not know.
In relation to the entry dated 3 December 1980 which stated "?left groin m. – snapped", the applicant explained that he had been riding a mechanical horse which bucked and spun around in Houston, Texas, when he had snapped his groin muscle. He stated that he had some neck and back pain at the time but it was not enough to stop him getting on the horse although he did ask for it to be turned down. The applicant stated that after this incident he stayed in the United States for five to six weeks and had left pelvic and groin pain for quite a while, but managed to avoid chiropractic treatment for it.
In relation to the entry dated 8 December 1980 which stated "low back, neck and scapular pain after run cross country", the applicant stated that he could not have been running at that time because his groin muscle had been snapped. He denied that his running included cross-country running prior to December 1980 and stated that the only cross-country running he did was in the RAAF.
In relation to an entry dated 11 February 1981 which stated "physically improved", the applicant stated that he did not believe that this meant that he had no symptoms but rather that he was probably feeling better at this time.
In relation to an entry dated 3 June 1981 which stated "bilateral ankle snap", the applicant stated that he was unsure what this related to but after his service in the RAAF he needed lateral ligament repair for which the Department of Veterans' Affairs acknowledged responsibility.
When referred to an entry dated 12 August 1987 which stated "Rupture Achilles tendon Sept '86", the applicant recalled that he snapped his Achilles tendon whilst playing basketball for the first time since 1978 after being asked to stand in for someone.
When referred to various references to his left and right "TMJ" being sore, the applicant could not recall having any jaw problems, but when referred to the entry dated 13 July 1994 (Exhibit A4) which stated "when chew has vibration in left ear, left TMJ", the applicant stated that the chiropractor was trying to remedy his problem of vibration when chewing, which was caused by defence service related hearing loss.
In relation to the entries "left hand tingling" (17 December 1988) and "left clavicle, left bicep tendon" (20 September 1994) the applicant stated that his neck was causing these problems and that this was "referred pain".
In relation to the entry "a few niggles" (5 January 1990), the applicant stated that it was not the case that the chiropractor was struggling to find anything wrong but rather that with his neck and back he would get general soreness and at the appointment when asked what was wrong would say "a few niggles".
The applicant stated that during the 1980's after a chiropractic visit, about half of the chiropractors would organise for the next appointment date and some chiropractors wanted him in every week. The applicant stated that now he decides when he will see the chiropractor. He stated that at Christies' Beach Chiropractic Centre he would ring up and make an appointment when his neck and back were playing up. When he was referred to various entries which stated: "Did not turn up – left message to ring", the applicant stated that the chiropractor's secretary would ring him and make another time for him to attend. He agreed that they did not ask him whether he needed to attend.
The applicant stated that he used to walk to keep up his fitness but stopped in 1997. Since April 1997 he has had 19 recorded attendances at Christies Beach Chiropractic Centre and has had more attendances since March 2001, the date of the last recorded entry provided to the Tribunal. The applicant stated that the chiropractors relieve his pain and he has gone to two different chiropractors in two days if the pain relief is not sufficient. The applicant agreed that the pain relief he experienced was only ever temporary and was never ongoing.
mr peter fry, orthopaedic surgeon
Mr Peter Fry, orthopaedic surgeon, saw the applicant on 14 February 2001, and on 26 February 2001 he provided a report in relation to the applicant (T13). In his report, Mr Fry states, inter alia (T13/38-39):
"The usual appearance of symptoms in his neck was a tensioning feeling to the left around the root of the neck and the top of the left shoulder blade, it would become painful, his neck would stiffen and seem to lock up, and the pain would then spread up the left side of the neck to the base of the skull, where he could get a headache. Movements of his neck were normally quite free and unaffected unless he was having these troubles and then principally, he would have difficulty turning his head to the left. There appeared to be, too, a connection between any pain in the mid back area, which lay centrally between the shoulder blades, and the neck pain. Both came on together, both seemed to go together. Neck manipulation would in fact make everything go for a while. These days he was going perhaps once a month to the chiropractor.
This pattern of neck and upper back behaviour, once it starts, generally persists, unbroken, unless the basic, root cause is dealt with, and even then, if it is not attended to quite early in the piece, the pattern may persist anyway.
This appears to have been the case with Mr Ryan. He began running, it apparently disturbed his neck and upper back joints, a pattern of behaviour manifested itself, and it was not until some considerable time later that he began attending the chiropractor. He then got relief, and has patronised chiropractors since for they help his problem. They can make it go away for a reasonable while.
I read the decision rejecting his medical claim; evidently much of the decision taken on the basis of a poor evidential chain over a number of years. It appears to be a matter of absent records in that period. Be the legalities of the situation as it may, as far as the medical aspect of things is concerned I think there can be little doubt that what he suffers from today is directly linked to events of 1970, and it is most improbable that any other outside events or processes have a part in this."
Mr Fry stated in his oral evidence that his assessment on 14 February 2001 was basically a question-and-answer session – the applicant was asked to explain what was wrong, what treatment he received and the current position and from this information Mr Fry formed his conclusion. Mr Fry stated that he was also provided with x-ray reports dated 14 August 1972 (T4/17) and 14 December 1972 (T4/13).
Mr Fry stated that since preparing his report dated 26 February 2001 he has seen the report of Dr Robin Jackson, orthopaedic surgeon (Exhibit R2). Mr Fry stated that his findings differ from those of Dr Jackson in that Dr Jackson accepts that applicant has a degenerative condition of the neck and spine and that such was aggravated by jogging but the condition should have stabilised since leaving the RAAF. Mr Fry stated that it was Dr Jackson's view that any aggravation would have ceased when he left the RAAF or shortly thereafter. Mr Fry stated that the aggravating factor may well have ceased but the applicant's symptoms did not. Mr Fry stated that it is Dr Jackson's opinion that the applicant has early degenerative changes in the neck and that this had caused his symptoms. Mr Fry agreed with this opinion but was of the view that the applicant's activities in the RAAF constituted an aggravating factor which have caused him to experience symptoms ever since. Mr Fry stated that when there are degenerative changes in the joint, the condition could change from non-symptomatic to symptomatic. Mr Fry stated that in the applicant's case, it started to be symptomatic and continued to be so as an ongoing pattern with relief perhaps for only a few days at a time. Mr Fry stated that the applicant's problems now are directly traceable back to the original factor, his running whilst in the RAAF. When asked by the respondent whether, if there was a period of quiescence for six months, this meant that the condition had settled, Mr Fry stated that when there are long periods of quiescence, one could start looking at other factors in a person's life, but five or six months was too short a time frame to dismiss the old cause. Mr Fry stated that five years was long enough to represent a total settling of the condition and to decide that something else was setting it off again.
Mr Fry stated that he did not discuss the applicant's low back pain with him. Mr Fry stated that the applicant was in his twenties when his neck troubles started and he stated that "any chap with degenerative change in his neck I'd bet would have it in his lower back too and would get soreness from it down the track".
During cross-examination, Mr Fry agreed that the applicant had changed activities since leaving the RAAF and worked in real estate. Mr Fry also agreed that it was relevant that despite changing his activities the applicant kept running after this RAAF service since it was the running that caused his problems. Mr Fry stated that he could not say if the applicant's running subsequent to leaving the RAAF had caused his problems but stated that when a person has what the applicant had in the RAAF it was unlikely to completely settle down afterwards, whether the person runs or not.
When it was put to Mr Fry that Dr Ostinga, orthopaedic surgeon, assessed the applicant on 16 January 1973 (T4/14), and found "6/12 neck; no neurolog. symptoms; now gone; causing no trouble" and "n.a.d." (no abnormality detected), Mr Fry stated that it appeared that nothing was wrong with the applicant at that point in time and the condition had settled.
When told that the applicant had said that after January 1973 he felt well enough to play basketball up to March 1973, Mr Fry stated that the applicant was obviously not experiencing any symptoms at that point in time and was "having a good period".
Mr Fry agreed that it appeared that the applicant had a degenerative condition which flared up with activity but stated that the applicant's condition was not caused by activity. Mr Fry stated that the degenerative process was innate and affected the joints which stiffen and become aggravatable. Mr Fry stated that the pattern might have been maintained by jogging or other activities. Mr Fry agreed that playing football from 1967 was a possible contributing factor to his symptoms, as was continuing to play football up to 1978. He stated that such activity did not break the chain of causation but may well have aggravated his symptoms, particularly if he was working, for example, as a clerk. Mr Fry agreed that it was possible that factors outside the RAAF aggravated his symptoms after leaving the RAAF.
When it was put to Mr Fry that the applicant was content to get on a "bucking bull" machine which was so vigorous that the applicant snapped a muscle in his left groin, Mr Fry agreed that this suggested that the applicant felt well enough at the time. Mr Fry stated that the applicant's history is of aggravations and remissions such that he may well have felt up to going on the mechanical bull. Mr Fry stated that the mechanical bull incident had the potential to stir up a neck that was already causing trouble.
When asked whether with age the impact of degenerative change upon a person increases, Mr Fry stated that this was quite possible and that people do tend to get worse as they get older until the pain becomes constant.
Mr Fry stated that the applicant's chiropractic treatments have had no physiological effect but do provide him with pain relief. Mr Fry stated that it was very normal for a chiropractor to manipulate a patient's joints to help the symptoms settle down. However, the joints eventually get stiff again and the person must go back for more treatment. Mr Fry stated that the level of relief one gets from the treatment depends upon the chiropractor concerned – Mr Fry stated: "It's an art form, not a science, therefore the variation". When asked during cross-examination whether manipulative chiropractic treatment itself contributes to a person's problems, Mr Fry gave the opinion that chiropractors doing sensible manipulation do not cause trouble. Mr Fry stated that chiropractic treatment involves moving the joint to an extreme position and then slightly more in a controlled fashion, and if done properly it is just stretching the capsular ligaments. Mr Fry stated that as joints age, the elasticity of the ligaments decreases and they get tight and sore and manipulation of the joints helps for a time to relieve this. Mr Fry stated that if there is a mechanical problem with a joint, physiotherapy does nothing at all because it uses heat and longitudinal stretching, which is less effective than manipulative treatment. Mr Fry stated that the chiropractor can do something for the applicant's type of problem and the results are often quite dramatic, although sometimes the results can be very short-term.
When it was put to Mr Fry during cross-examination that Dr Jackson gave the opinion that the applicant could get relief from self-stretching exercises, Mr Fry agreed and stated that orthopaedic surgeons suggest that a patient's own exercises can deliberately stretch the affected area. Mr Fry stated that self-stretching gives a person long term relief and that chiropractic treatments can only give short-term relief but a combination of both would be very beneficial to a person.
Mr Fry stated that chiropractors know nothing about the diagnosis of problems and their disease theories are "rubbish". He stated that a chiropractor will manipulate a person's whole spine and other parts of their body when only the neck needs to be manipulated.
dr robin jackson, orthopaedic surgeon
Dr Robin Jackson was called by the respondent to give evidence via video link. Dr Jackson is an orthopaedic surgeon with experience as an independent medico-legal consultant. He stated that he saw the applicant on 3 October 2001 for the purposes of a medical assessment and he prepared a report in relation to the applicant dated 12 October 2001 (Exhibit R2). In his report, Dr Jackson stated, inter alia (Exhibit R2, page 7-10):
"Clinically, Mr Ryan has cervical spondylosis, that is, he almost certainly has disc degenerative disease together with facet joint arthritic change. He also exhibits symptomatology suggestive of nerve root irritation affecting his left arm.
…
In my opinion, the condition mentioned above has not been caused by his employment in the RAAF. I accept that he has had an aggravation of degenerative change in his neck both by running activities and by field exercises. Any aggravation factor would have ceased either at the time he left the RAAF or within a very short period of time thereafter.
All that has really happened over an extended time frame is the fact that he has experienced a progression of degenerative change in his neck which was noted to be present on x-ray at the time of service.
…
As stated, it is unlikely that he will ever be symptom-free and it is more than likely that he could experience acute aggravations of the problem at any time, possibly related to trauma but often occurring in a spontaneous manner.
…
In my opinion, the effects of the incidents described in 1972 are not permanent. They caused a temporary aggravation and he sought treatment appropriately.
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Mr Ryan has chosen to attend a chiropractor for ongoing medical treatment. The chiropractor, by means of adjustment, alters the position of facet joints giving rise to symptom relief and it is well known that this does occur.
It is also accepted that this provides temporary symptom relief only which is confirmed by Mr Ryan. It is recognised that such treatment can be of a very long term duration and, again, this is apparent in the case of Mr Ryan. It is likely to continue on an indefinite basis and may, indeed, be at increasing frequency as this, again, is the natural history of such a complaint.
…
It is difficult to recommend treatment for him. I am not convinced that chiropractic therapy is therapeutic in the sense that it alters the course of the natural history of the condition. It is not achieving this, it is simply providing him with some temporary relief of symptoms.
…
As stated, I consider that he achieves temporary symptom relief from chiropractic therapy. He may, in fact, achieve a much more longer term relief by simple stretching and strengthening exercises, in other words, performing his own self-manipulation.
On the same account that chiropractic therapy provides only temporary symptom relief, there is little that physiotherapy can offer him and I would not recommend referral for same. It may have a part to play for a very acute aggravation of symptomatology and it would need to be on a restricted basis only. Similarly, massage therapy provides a feel good factor, does absolutely nothing to treat the underlying problem and is to be discouraged.
Unfortunately, all forms of treatment are counter-productive to a large extent and are to be actively discouraged. They are usually non-therapeutic and they are, to some extent, self-perpetuating. This relates to future treatment and to past treatment.
It is difficult to know what treatment would have been reasonable in the past as this would go back a period of 27 years.

Dr Jackson stated in oral evidence that the applicant did not tell him during his interview that he continued jogging and running after his discharge up until the mid-1980's but stated that assuming it to be so, it could be a contributing factor to his ongoing symptomatology. He agreed that basketball could also be a contributing factor and that football, as a semi-contact sport, could be a strong contributing factor. Dr Jackson agreed that the applicant's ongoing degenerative changes could also be a contributing factor.
Dr Jackson gave the opinion that the applicant's ongoing problems are caused by the degenerative changes in his spine. Dr Jackson agreed that on the history provided the applicant suffered an aggravation of his degenerative condition after running in the RAAF and that any dispute between him and Mr Fry related to the cause of the applicant's problems in that that Dr Jackson is of the view that whatever happened in 1972 is now spent and it is now the applicant's own jogging, football, etc that has caused a continuation of his symptoms. Dr Jackson stated that after a game of football, the applicant may have felt okay as he was still warmed up and it was possible for him not to feel any pain for 24 hours afterwards.
It was put to Dr Jackson that Mr Fry's evidence was that if the applicant had experienced pain every day since 1972-1973, then it would appear that the effect of the RAAF service had never been spent but if a period of five years had elapsed then he would be hard-pressed to show a link. Dr Jackson stated in reply that these are two extreme positions and that if a period of five years went by then one would have to go back to re-examine the initial episode and there may possibly still be a link but it would be unlikely. On the other hand, he stated that if the applicant had regular daily or weekly episodes of pain, there may very well be a link between his activity in 1972 and his current symptoms, but that current lifestyle and activity would come into it too. When it was put to Dr Jackson that Mr Fry had stated that the effect of initial trauma in 1972 or 1973 was not necessarily spent by a lapse of time of six months in between treatments, Dr Jackson agreed that this was a greyish area and that there was not just a time factor present but also lifestyle, eg, financial constraints might limit visits to the chiropractor.
Dr Jackson stated during cross-examination that he just did not know the extent of the pain the applicant has had over the last 30 years and agreed that he had premised his opinion based upon the applicant's reports of pain. Dr Jackson commented that sporting activities could have aggravated the applicant's degenerative condition but he found it difficult to accept that the applicant played sports if he had pain almost every day.
Dr Jackson stated that self-manipulation could be carried out by the applicant without supervision. Dr Jackson stated that long-term therapy is to be discouraged because the patient becomes dependent upon the person administering the treatments and therapy becomes habitual. Dr Jackson gave the opinion that people should take responsibility for their own wellbeing and health and that self-strengthening and stretching exercises are much better for a person.
When it was put to Dr Jackson in cross-examination that Mr Fry had stated in evidence that patients get a benefit from the manipulation of joints which cannot not be done by themselves, Dr Jackson stated whilst such manipulative therapy can have benefits for a person, the relief may not last for very long and some people derive no benefit whatsoever from such treatment. Dr Jackson agreed that the applicant could derive some benefit from swimming but not the same relief as he would get from a chiropractic treatment. Dr Jackson stated that as the applicant suffers from considerable neck stiffness, he would suggest that after the chiropractic manipulation, the applicant should then follow an exercise regimen to maintain looseness in the joint and therefore there would be less necessity for protracted treatment.
applicant's submissions
Mr Swan submitted on behalf of the applicant that the issue in this case is whether or not the applicant since 1973 up until now has a neck and cervical spine condition arising out of the running that he did in the RAAF and if so, then appropriate treatment would be compensable under section 16 of the Act.
Mr Swan submitted that during the applicant's RAAF service he hurt his neck and back whilst running and went to see the medical officer, who referred him to Dr Collebee, orthopaedic surgeon. When posted to Williamtown, NSW, he was sent to Newcastle to see Dr Ostinga, orthopaedic surgeon, reporting six months of neck ache. On the day that he saw Dr Ostinga, the applicant was not in pain and his neck was causing him no trouble. It was submitted that the applicant had given evidence that he was still doing his job at the time and he also still played football and basketball. It was submitted that the applicant is still working today and simply wants compensation for his treatment expenses.
Mr Swan asked the Tribunal to find that the neck pain the applicant has today and has had consistently since he left the RAAF in 1973 was caused by his asymptomatic degenerative condition becoming symptomatic after his running programme in the RAAF. It was submitted that the symptoms have continued ever since albeit with some breaks. Mr Swan further submitted that this is supported on the orthopaedic ground by Mr Fry who stated that he agreed with Dr Jackson that he would have expected it to resolve after discharge but in fact it did not – it continued on. Mr Swan submitted that the evidence of Mr Fry is not totally black and white in that he acknowledges that if there had been some specific trauma or episode then that could have changed things. Mr Swan submitted that there has been no such trauma or episode in the applicant's case and he specifically excluded the bucking horse incident. Mr Swan submitted that the applicant has done lots of things since 1973 but he has continued to have neck pain. If that is found to be true it was submitted the applicant should succeed in having his claim for treatment expenses accepted. Mr Swan submitted that Dr Jackson's evidence is in opposition to this in that his opinion is that the applicant has a degenerative condition that became symptomatic but any aggravation would have ceased either at the time the applicant left the RAAF or within a very short period of time thereafter. Mr Swan asked the Tribunal to prefer the view of Mr Fry to that of Dr Jackson.
Mr Swan submitted that the applicant had regular chiropractic treatment since his discharge and he might have had periods of six months even when he had not had treatment but this does not deny the ongoing effect of his RAAF service on his degenerative condition.
It was submitted that at the time the applicant saw Dr Ostinga in January 1973, he was still having physiotherapy but there is only a note before that time of a referral for physiotherapy. Mr Swan submitted that there would have been documentation of payments to physiotherapy providers but such documentation does not appear to be available even for before January 1973. Mr Swan submitted that the discharge medical summary document also appears to be missing but the applicant's evidence was that he told the doctors at discharge about his neck. Mr Swan submitted that the evidence as it stands reveals only that the applicant up until November 1973 made complaint about his neck.
Mr Swan asked the Tribunal to find the applicant to be a genuine person who has gone to see the chiropractor because of his neck pain. Mr Swan submitted that the chiropractors were not called because the chiropractors did not diagnose the applicant's problem but rather the diagnosis has been made by the two orthopaedic surgeons who were called to give evidence. Mr Swan submitted that as revealed in the evidence of Mr Fry, chiropractors are good at manipulation but not so good at diagnosis and analysis of medical conditions. Therefore, to attempt to interpret the chiropractor's notes would be to go off into speculation. Mr Swan submitted that the applicant's evidence was that when he went to the chiropractor he complained about his neck.
In relation to the number of chiropractic consultations, Mr Swan referred the Tribunal to the applicant's statement of facts and contentions where at item 12, the applicant sets out that he had eighteen visits with Mr Ralph de Conte, sixteen visits with Dr Anthony Human, several visits with Kevin Weatherall, Mr Errol Harding, Mr Brian Rodger, David Stapleton, Dr George Belle and Mr Terry King but there are no records available, nine consultations with Dr Richard Pagano, 27 consultations on Dr Athol Taylor, five visits to Dr David Kimba, 58 visits with Dr Anica Rant and he has seen Dr Barnard Nadolny at Christies Beach Chiropractic Centre on 150 occasions up until now.
Mr Swan submitted that the applicant's evidence as to the cost of this chiropractic treatment was that it was formerly $24 a visit and is now $32.50.
respondent's submissions
Mr Cole stated that there appeared to be no dispute between Dr Fry and Dr Jackson that there was a degenerative condition identified in 1972 and a comment in the x-ray report of August 1972 that the applicant "was definitely a candidate for spondylosis" (T4/18). It was submitted that in looking at the cause of his symptoms and problems since 1972 the applicant has not given adequate weight to the identified existing degenerative changes present in August 1972. It was submitted that it was not in dispute that the degenerative condition was not caused by the applicant's RAAF service but that because of the degenerative condition, activity gives rise to some symptoms. Mr Cole submitted that the evidence suggests that the applicant's running and exercise in the RAAF did at least in 1972 appear to cause the applicant to develop some symptomatology in the context of that degenerative change, but that by January 1973, there is a record from the assessing orthopaedic surgeon that the condition was not causing the applicant any trouble.
Mr Cole submitted that the evidence before the Tribunal indicated that the first treatment was given to the applicant on 10 August 1972 with a history of some neck and back problems which appear as early as June 1972. There was a referral for treatment, medication was prescribed and physiotherapy continued until late 1972. Mr Cole submitted that in view of x-ray findings and persistent symptoms, the applicant was referred to Dr Ostinga, orthopaedic surgeon, for opinion on 16 January 1973, who recorded that the applicant had had a neck ache for six months with no radiation and no neurological symptoms - "now gone, causing no trouble" (T4/14) and "NAD" (no abnormality detected).
Mr Cole submitted that there was no further reference to physiotherapy to the neck or the back and it was evident that the applicant continued with activity, namely basketball up until March 1973, when he fractured his ankle and it was placed in plaster. Thereafter the reference to physiotherapy in the service medical records is in relation to the ankle once the plaster was removed, although it was the applicant's evidence that he continued to receive physiotherapy for his neck in the period after January 1973. Mr Cole submitted that the applicant was mistaken about that and that it is notable that when the applicant had physiotherapy for his neck in the period up to January 1973 that is recorded in the medical notes but the medical notes after January 1973 only record physiotherapy in relation to the applicant's ankle injury of March 1973.
Mr Cole submitted that if, as the applicant reported, there have been intermittent and to some extent ongoing complaints, then the explanation lies in the original degenerative condition which was not caused by the applicant's military service and activities which he has pursued since his discharge. Mr Cole submitted that the applicant continued to play basketball whilst in the RAAF and that after his discharge he continued with running and jogging until the mid-1980's, football until -1977 or 1978 and basketball until 1986. Mr Cole stated that the applicant was also and confident enough about his condition in 1980 to get on a mechanical bucking horse during his visit to the United States.
It was submitted that Dr Fry has taken a somewhat superficial approach to the matter in that he states that there were problems manifest in 1972 and 1973 and some problems thereafter and that therefore those later problems have been caused by the events in 1972 and 1973. Mr Cole stated that this opinion denies the obvious likely impact of the ongoing exercise, the jogging and running, basketball and football and other aspects of the applicant's lifestyle.
Mr Cole submitted on behalf of the respondent that there is no sufficient evidence that the applicant has had a need for chiropractic treatment since May 1973. It was submitted that for the period between November 1973 to 1980 there is nothing to identify attendances at a chiropractor, isolating neck and upper back problems. Mr Cole further submitted that although the Tribunal has before it a letter from Ms Nola Smith dated 19 March 2001 (Exhibit A4) stating that she had no hesitation in confirming that the applicant had treatment from her in 1973, she was unable to provide any documentation from that period and hence there is nothing before the Tribunal to indicate what treatment was provided and for what complaint. Mr Cole also referred the Tribunal to the letter from Mr de Conte dated 19 June 2001 which set out a number of consultations between 18 November 1974 and 8 November 1975 but for neck and low back pain, the latter a condition for which the applicant does not make claim in these proceedings. Mr Cole submitted that there are various references to treatment from Dr Human, Victoria Park Chiropractic Clinic, Dr Richard Pagano, Dr Anica Rant and Dr Athol J. Taylor, but there is in fact nothing that records what treatment was provided and for what complaints. Therefore, between 1973 and immediately prior to 5 February 1980, it is impossible to determine what treatments were given for what complaints by these chiropractors.
Mr Cole submitted that the Tribunal gets the first hint of the reason for the applicant's attendance at the chiropractor in the Christies Beach Chiropractic Clinic notes, commencing in February 1980. It was submitted that these notes commence quite some time after discharge from the RAAF and very few of the notes identify as solely or predominantly neck problems as the reason for attending.
Mr Cole submitted that when looking at the Christies Beach Chiropractic Centre notes commencing on 5 February 1980 the presenting complaint recorded was neck pain, "H/A" (which Mr Cole assumed to mean headache) and low back pain and where the possible cause for these problems was raised, the entry recorded "? football". Mr Cole submitted that there is no history in the records of ongoing problems and difficulties since 1972.
Mr Cole submitted that in any event if one looks at the Christies Beach Chiropractic Centre notes there are some entries which in the absence of explanation are of no assistance to the Tribunal at all in that it appears that the chiropractors who recorded the notes used a particular shorthand and abbreviations and it is not apparent from the notes what they do mean. It was submitted that there may be arguments about the strange way in which chiropractors record matters and the way that they identify the reason for attendance but the fact of the matter was that no chiropractor was called to give evidence in relation to this and in particular the person who wrote the Christies Beach Chiropractic Clinic notes has not been called to explain them. Mr Cole submitted that therefore, the Christies Beach Chiropractic Clinic notes do not take the Tribunal very far. Mr Cole submitted that whilst the chiropractors may not have been able to assist in terms of diagnosis of the applicant's condition, they may have been able to assist in the interpretation of what was recorded in the notes to give the Tribunal a better understanding of the complaints which were presented, to indicate what treatments were given and to which part of the body they were carried out upon.
It was submitted that it was equally clear that there are multitudes of attendances on Christies Beach Chiropractic Centre between February 1980 and April 1997 where either the neck does not feature at all or if it does, it is not apparent on the face of the record. Mr Cole acknowledged that there were some references to a neck or cervical spine but submitted that there were also references to legs, hips, low back, left groin, Achilles tendon, inguinal hernia, calf pain, hamstrings, right and left rotator cuff, left and right biceps tendon, ribs, all of which make it largely impossible to determine what if any of the treatments related to if at all any aggravation in the RAAF in 1972.
Mr Cole submitted that once the applicant began to attend the Christies Beach Chiropractic Centre, if the applicant did not attend he was called up and another appointment made, which, on the records it appears he attended. It was submitted that this fits with the self-perpetuation of reliance upon chiropractic treatment as indicated by Dr Jackson – that rather than people simply managing if they have symptomatology with exercises and stretching, they become dependent upon a chiropractor to manipulate the area.
Mr Cole also drew the Tribunal's attention to various gaps from time to time in the applicant's chiropractic treatment and submitted that this may simply reflect the fact that there was no particular aggravation activity at those times which is consistent with the respondent's position that it is activity which aggravates the applicant's degenerative condition. Mr Cole pointed to the following periods when there were gaps in attendances: May - October 1976; December 1976 - May 1979; 16 May 1979 - 10 October 1979; 6 July 1982 - 6 December 1982; 19 April 1983 - 25 January 1984; and December 1989 - July 1990. Mr Cole submitted that all of this is consistent with activity being what brings on symptomatology and that if the aggravating activity is stopped or reduced then the symptoms subside to a manageable level. Mr Cole submitted that such a pattern is completely consistent with there being some degenerative change which will produce symptoms with particular activity and if the activity is not pursued the condition improves or settles to some extent.
Mr Cole submitted that from November 1993 there is a reasonably consistent picture as to the applicant's chiropractic treatments but that such may simply represent that the time had come where the degenerative changes were such that there was likely to be some sort of symptomatology in any event. Mr Cole submitted that therefore it is no surprise that after 20 years, the spondylosis which the radiologist referred to in August 1972 was starting to have some significant impact. Mr Cole concluded that there is no ongoing effect or significant period of ongoing effect after discharge.
Turning to address the reasonableness of the treatment in accordance with section 16, if the Tribunal found for the applicant that there is an ongoing effect from the applicant's service, Mr Cole submitted that up until 1980 the Tribunal does not know what the applicant's chiropractic treatment was and what it was for. Mr Cole submitted that the records and details of consultations, the treatments and the complaints are all essential to the applicant's case and the onus of proof is on him to prove these things. Mr Cole submitted that after February 1980 there were chiropractic treatments for a variety of conditions which included neck problems but included many other problems as well.

Mr Cole submitted that there was also the evidence of Dr Jackson that, leaving aside some intermittent chiropractic treatment, stretching and self-exercises would have been the answer for the applicant. Mr Cole submitted that in those circumstances most of the chiropractic treatments could not be regarded as reasonable and none of the chiropractic treatments had been carried out on the basis of a recommendation or referral by a medical practitioner but rather had been taken on board by the applicant.
Mr Cole submitted that if the Tribunal was against him in relation to the submission that there has been no compensable treatment since May 1973, then it was submitted that if there has been any entitlement after discharge it is for a very short period but in circumstances where the Tribunal cannot identify the treatment, when it was provided and for which condition. The Tribunal does not even know the cost of the treatments at that time, something the applicant needs to prove to discharge any quantum in relation to the matter.
discussion and findings
The applicant stated that his neck and back problems started in about 1972, after he had been running for about two years in the RAAF. He blamed the daily running, climbing fences, running up sandhills and bitumen roads for the pain experienced in his mid and upper back region and then in his neck. He stated that he stopped running in March 1973 when he injured his ankle playing basketball. After discharge from the RAAF he stated that he played football from 1956 to 1977. In his evidence he stated that he stopped jogging during the mid-1980's.
The applicant has and continues to receive treatment for his condition. In particular he had received some physiotherapy treatment and considerable chiropractic treatment. The first orthopaedic specialist seen by the applicant was Dr Ostinga to whom he was referred by the base doctor in January 1973. Dr Ostinga noted the problem in his back and neck but said that it was not permanent. When asked why Dr Ostinga would have in January 1973 recorded "no abnormality", the applicant stated that Dr Ostinga must have misdiagnosed him. This was also put to Dr Fry who stated that it appeared that nothing was wrong with the applicant at that point in time in January 1973, and that the condition had settled.
As well as seeing Dr Ostinga, the applicant also saw orthopaedic surgeons Dr P.L. Fry and Dr R. Jackson. He stated that both Drs. Fry and Jackson did a detailed assessment of him. He further stated that he had made no mention of his diabetes, low back pain, broken knee and leg fracture because he believed that they had nothing to do with his neck and back condition.
When in attendance at the Christies Beach Chiropractic Centre in 1980 he stated that he complained of neck pain and low back pain. He agreed that he may have indicated that he thought the cause of such pain was due to his playing football. However, in his evidence he stated that he may not have told the Centre about his running the first time he attended as the right questions were not put to him. He agreed that some of the neck pains mentioned in the chiropractic notes (Exhibit A4) may have been linked to his jogging but he did not know.
The applicant also referred to the injury to his left groin muscle whilst riding a mechanical horse/bull when visiting Houston, Texas, on 3 December 1980. He stated that he stayed in the United States for some five to six weeks until able to travel. Dr Fry in his evidence stated that this incident had the potential to stir up a neck that was already causing trouble.
An entry in the Centre notes dated 8 December 1980 stated that the applicant suffered "low back, neck and scapular pain after run cross country". In response to this the applicant stated that he could not have been running at that time because of the fact that his groin muscle had been snapped. He further denied that his running included cross-country running and that the only cross-country running he did was whilst in the RAAF.
The Tribunal in addition to what at times can be best described as conflicting evidence of the applicant had also before it the evidence of the two orthopaedic surgeons, Drs. Fry and Jackson. The evidence of both doctors is in conflict. In fact Dr Fry stated in his evidence that his findings differ from those of Dr Jackson except in that Dr Jackson accepts the applicant as having a degenerative condition of the neck and spine and that such was aggravated by jogging. However, Dr Jackson was of the view that the applicant's condition should have stabilised since his leaving the RAAF.
Dr Jackson was of the view that any aggravation would have ceased when the applicant left the RAAF or shortly thereafter. However, Dr Fry stated that whilst the aggravating factor may well have ceased, the applicant's symptoms did not. Dr Fry also stated that it is Dr Jackson's view that the applicant had early degenerative changes in the neck causing his symptoms. Dr Fry agreed with this but was of the view that the applicant's activities in the RAAF constituted an aggravating factor which caused the applicant to experience symptoms ever since. He stated that the applicant's condition is directly traceable back to the original factor, namely the running whilst in the RAAF. Dr Fry agreed that it was possible that factors outside the RAAF, including the playing of football, may have aggravated the applicant's symptoms after leaving the RAAF.
Dr Fry agreed that it was the running whilst in the RAAF that caused the applicant's problems but he was unable to say if the running subsequent to leaving the RAAF had caused the applicant's problems. Notwithstanding this he stated that such condition suffered whilst in the RAAF was unlikely to completely settle down afterwards, irrespective of whether the applicant runs or not.
In his report (Exhibit R2) Dr Jackson, inter alia, was of the opinion that the applicant's condition was not caused by his employment in the RAAF. He accepts that the applicant has had an aggravation of degenerative change in his neck caused by running activities and by field exercises. However, he opined that any aggravation factor would have ceased either at the time he left the RAAF or within a very short period of time thereafter. He described the incidents in 1972 as not being permanent but that rather that the ongoing problems are caused by the degenerative change in the applicant's spine.
Dr Fry did not discuss with the applicant any low back pain but opined that the applicant was in his twenties when the neck troubles started. He stated that degenerative change in the neck would also affect the lower back and create soreness. He agreed that it appeared that the applicant had a degenerative condition. He further stated that the degenerative process was innate and affected the joints which stiffen and become aggravatable. The Tribunal notes that Dr Fry stated that such pattern "might" have been maintained by jogging or other activities such as the playing of football from 1967 up to 1978.
Dr Jackson was satisfied that the applicant suffered an aggravation of his degenerative condition as a result of running in the RAAF. He stated that any difference of opinion between him and Dr Fry related to the cause of the applicant's problems. He was of the view that whatever happened in 1972 whilst in the RAAF is now spent and that it is now the applicant's own jogging, playing of football, basketball and other activities that have caused a continuation of his symptoms.
Dr Jackson gave the opinion that the applicant was able to obtain relief from self-stretching exercises. In his evidence Dr Fry agreed and stated further that orthopaedic surgeons suggest that a patient's own exercises can deliberately stretch the affected area. Dr Fry stated that self-stretching gives a person long-term relief and that chiropractic treatment gives only short-term relief. In fact Dr Jackson also stated (Exhibit R2) that the applicant only received temporary symptom relief from chiropractic therapy.
In his submissions Mr Swan stated that both Drs Fry and Jackson agreed that the applicant would have expected the symptoms pertaining to the neck pain to be resolved after discharge. Mr Swan further submitted that the evidence of Dr Fry is not totally black and white in that he acknowledges that if there had been some specific trauma or episode then that could have changed things. He also submitted that there had been no such trauma or episode and that Dr Fry excluded the mechanical horse incident. On the other hand Dr Jackson disputes this and he is of the opinion that the applicant has a degenerative condition that became symptomatic but that any aggravation would have ceased either at the time the applicant left the RAAF or within a very short period of time thereafter.
Mr Cole in his submissions stated that there did not appear on the evidence before the Tribunal to be any dispute between Drs Fry and Jackson that there was a degenerative condition identified in 1972 and that a comment in the x-ray report (T4/18) stated that the applicant "was definitely a candidate for spondylosis". The Tribunal is satisfied and accepts this fact as right and so finds. It was submitted that the applicant has not given adequate weight to the identified existing degenerative changes that were present in August 1972. Mr Cole also submitted that it was not in dispute that with this degenerative condition, activity gives rise to some symptoms. He referred the Tribunal to Dr Ostinga's notation in January 1973 that the condition was not causing the applicant any trouble although he did not dispute that prior to this at least in 1972 the applicant's running appeared to cause the development of some symptomatology in the context of that degenerative change. Mr Cole further emphasised the notation of Dr Ostinga which stated that the applicant had had a neck ache for six months with no radiation and no neurological symptoms and that no abnormality was detected.
Mr Cole submitted that there was no further reference to physiotherapy to the neck or the back and emphasised that it was evident that the applicant continued with activity, namely basketball, up until March 1973, when the applicant fractured his ankle and it was placed in plaster. He further submitted that the applicant was mistaken in reference to further physiotherapy treatment for his neck after January 1973 as medical records indicate that the only physiotherapy treatment thereafter related to the applicant's ankle injury of March 1973.
The Tribunal also had submitted to it that if there have been intermittent and to some extent ongoing complaints then the explanation lies in the original degenerative condition. On the evidence before the Tribunal such was not caused by the applicant's service and the activities pursued since discharge. On the applicant's own evidence he continued to play basketball whilst in the RAAF and that after discharge he continued with running and jogging until the mid-1980's, playing football until 1977 or 1978, and basketball until 1986. The Tribunal also notes that the applicant on his own evidence was confident enough about his condition in 1980 that he got onto the mechanical bucking horse whilst on a visit to the United States. These facts are found to be correct by the Tribunal and accepts such to be the case.
In reference to Dr Fry's evidence it was submitted that he has taken a somewhat superficial approach to the matter and denies the obvious likely impact of the ongoing exercise, the jogging and running, basketball and football and other aspects of the applicant's lifestyle. The Tribunal is satisfied that this is the case and accepts this fact. In relation to the need for chiropractic treatment since May 1973 there is nothing for the period between November 1973 to 1980 identifying attendances at a chiropractor, isolating neck and upper back problems. The Tribunal has before it a letter from a chiropractor, Ms Nola Smith, wherein she stated that the applicant had treatment from her in 1973. Apart from this she was unable to provide any documentation from that period. There is nothing before the Tribunal to indicate what treatment was provided and for what complaint.
The Tribunal in considering the reasonableness of the treatment in accordance with the provisions of section 16 of the Act is satisfied, after considering the evidence as a whole, that the applicant did suffer some injury during his period of service. However, in considering the medical evidence of Drs. Ostinga, Fry and Jackson for the reasons previously outlined, the Tribunal prefers that of Drs Ostinga and Jackson. The Tribunal is satisfied and accepts the notation of Dr Ostinga that the applicant's condition ceased by the time of his discharge from the RAAF. Likewise Dr Jackson reiterated this but went further in his description of the effect of the applicant's degenerative condition which was not due to factors of injury to the neck and upper back in mid-1972.
For the reasons previously outlined the Tribunal is satisfied that the respondent is not liable to pay compensation for medical expenses to the applicant on and from 30 May 1973 for the injuries sustained to his neck and upper back in mid-1972 pursuant to section 16 of the Act. Accordingly, the decision under review is affirmed.
I certify that the 107 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE.
Signed:   (Signed)
  Barbara Armstrong, Associate
Date/s of Hearing  11-12 February 2002
Date of Decision  27 August 2002
Counsel for the Applicant        Mr Christopher Swan
Solicitor for the Applicant         Swan Lawyers
Counsel for the Respondent    Mr Stuart Cole
Solicitor for the Respondent    Sparke Helmore