Schawalder and Repatriation Commission - [2000] AATA 730

DECISION AND REASONS FOR DECISION [2000] AATA 730

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V1999/130

VETERANS'     APPEALS     DIVISION     )
           Re      MARTIN SCHAWALDER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member

Date21 August 2000
PlaceMelbourne

Decision      The Tribunal affirms the decision under review.
  (Sgd.)    B.G. GIBBS
  Senior Member
CATCHWORDS
VETERANS' APPEALS – Entitlement – intervertebral disc prolapse – whether defence-caused – decision affirmed.
Words and Phrases – "Trauma to the relevant disc"
Veterans' Entitlements Act 1986, ss. 9, 120(4), 120B
Smith v Repatriation Commission (1997) 74 ALR 537
Re Jenkins and Repatriation Commission (1997) 24 AAR
Statement of Principles, Instrument No. 131 of 1996 as amended by Instrument No. 93 of 1997 (Intervertebral Disc Prolapse)

REASONS FOR DECISION

21 August 2000 Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Introduction

This is an application by Mr Martin Schawalder for review of the decision of the respondent dated 18 May 1998, affirmed by the Veterans' Review Board ("VRB") on 10 December 1998, that intervertebral disc prolapse is not defence-caused.
Representation
At the hearing by this Tribunal Mr Schawalder was self-represented.
Mr A. Hall, Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.
Material
The Tribunal had before it documents ("the T documents") lodged by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. Several other documents, to some of which it shall be necessary to refer, were also received in evidence during the hearing.
Witnesses
During the hearing evidence was given by:

Mr Schawalder
Mr D. Grant
Dr B. Dooley

Facts Not In Dispute

Mr Schawalder was born on 7 September 1956.
He served in the Australian Army from 17 February 1975 to 18 February 1981.
He rendered what is termed "eligible defence service" within the meaning of the Act.
He has the following defence-caused disabilities:

Right Knee Injury
Sprain or strain of the left ankle

Standard of Proof

The Tribunal is to determine all matters relevant to this matter, to its reasonable satisfaction pursuant to section 120(4) of the Act. A standard of proof on the balance of probabilities is therefore applicable (Smith v Repatriation Commission (1997) 74 ALR 537).
Application of Statement of Principles (SoP's)
Because Mr Schawalder lodged his claim after 1 June 1994 the provisions of section 120B of the Act are relevant. Under that section the reasonable satisfaction is to be assessed by reference to any relevant SoP determined by the Repatriation Medical Authority ("RMA").
The RMA has determined a SoP which is relevant to Mr Schawalder's claim, that is to say Instrument No. 131 of 1996 (Intervertebral Disc Prolapse), as amended by Instrument No. 93 of 1997. The SoP's are binding on decision makers at all levels (Re Jenkins and Repatriation Commission (1997) 24 AAR).
In determining SoP No. 131 of 1996, as amended, the RMA stated as follows:
"Basis for determining the factors
3.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that intervertebral disc prolapse and death from intervertebral disc prolapse can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4.Subject to clause 6, the factors set out in at least one of the paragraphs in clause 5 must be related to any relevant service rendered by the person."

Factor Relied Upon

As indicated, paragraph 5 of SoP No. 131 of 1996 sets out a number of factors. The particular factor upon which Schawalder relies is that which is set out in paragraph 5(a) of the SoP:
"5. (a)suffering trauma to the relevant disc at the time of the clinical onset of intervertebral disc prolapse."

Definitions

SoP No. 131 of 1996 as amended defines trauma to the relevant disc as follows:
" 'trauma to the relevant disc' means an injury to the particular prolapsed intervertebral disc, giving rise to immediate pain, tenderness and altered mobility or altered range of movement of that part of the spine, which persists for at least two weeks, unless medical intervention has occurred (for example bracing, corticosteroid injection, surgery). Where medical intervention for the injury has occurred, and there is evidence relating to the extent of injury and treatment, such evidence may be considered. Examples of activities or events that may result in trauma to the relevant disc include:
(i) lifting, pushing or pulling an object weighing more than 10 kg; or
(ii)jumping from a height, for example, in a parachute jump, or jumping down from a tank; or
(iii)a fall; or
(iv)diving into a body of water; or
(v)participating in sports, for example, football, surfing, gymnastics; or
(vi)spinal manipulation; or
(vii)a motor vehicle accident; or
(viii)a blast explosion; or
(ix)a physical attack."

Contentions – Applicant

It was Mr Schawalder's contention that he injured his back in a motor cycle accident on 16 January 1978, and that he suffered trauma to the relevant disc within the meaning of SoP No. 131 of 1996 as amended. That is to say, that he suffered an injury to a particular prolapsed intervertebral disc, giving rise to immediate pain, tenderness and altered mobility, or altered range of movement of that part of the spine, which persists for at least two weeks, unless medical intervention has occurred (for example bracing, corticosteroid injection, surgery).
Contention – Respondent
It was the respondent's contention that during his period of eligible defence service, Mr Schawalder did not suffer "trauma to the relevant disc" as defined in SoP No. 131 of 1996 as amended. Indeed, it was the respondent's further contention that any back problems suffered by Mr Schawalder are a consequence of his post-service employment and fitness regime.
It is noted that upon review the VRB was reasonably satisfied that Mr Schawalder suffers from an intervertebral disc prolapse at the lower level of the lumbo-sacral spine (VRB Reasons for Decision, p. 6 – 10 December 1998).
Having regard for the material before me I concur with the conclusion of the VRB and find accordingly.
Issue
The essential issue before the Tribunal is whether, on the balance of probabilities, the motor cycle accident in which Mr Schawalder was involved on 16 January 1978, resulted in him suffering trauma to a disc in the lower level of the spine, "at the time of the clinical onset of an intervertebral disc prolapse".
Evidence
The factual circumstances of the motor cycle accident in which Mr Schawalder was involved are not in dispute. Those circumstances are set out in the VRB's Reasons for Decision, as follows:
"The accident occurred in Bentleigh or East Bentleigh, at some time between two o'clock and four o'clock on 16 April 1978. He was then travelling to his flat in Nagambie where he intended to stay the night before returning to the Army base at Graytown, where he was required for guard duties on the following day. He said he had been recalled from leave by the duty sergeant because of a shortfall of personnel over the leave period.
The applicant fell off his motor bike when "cut off" by a car, and after hitting the ground, suffered abrasions to the elbow, buttocks and back and was bleeding profusely. He then walked to his parents' home (from where he had commenced his original journey), a distance of some four or five hundred metres, and yelled to his brother to take him to hospital. After his brother had grabbed some towels to stop the bleeding he took the applicant in a panel van to the casualty section of the Moorabbin Hospital. The applicant estimated that he was there for about two or three hours before being transferred by ambulance to another hospital. Mr. Schawalder was uncertain as to which hospital this was but, after discussion of records in his files, agreed that it was RGH Heidelberg. He said that on the day after the accident a doctor at the hospital operated on him to remove glass and other objects which were imbedded in his body as a result of the accident. After two or three days he was released from RGH and travelled to 3 Camp Hospital, Puckapunyal for review. He was then granted convalescent leave and returned to his parents' home in Melbourne. At this time he was able to walk but he found this painful and his movements were restricted." (T2/8)
Mr Schawalder resumed full duties on 6 February 1978. He asserts, however, that he has suffered back pain ever since the accident, but that he has been able to keep himself fit enough to pass his annual fitness tests, which included "sit-ups, push-ups and a "forced march" of five kilometres". He also remained category "FE" (Fit Everywhere) throughout his time in the Army, and made no complaint of back problems to service medical officers.
Mr Schawalder said in evidence that in about December 1978 while driving a car a few kilometres out of Nagambie, a rear tyre blew out, causing the vehicle to continue upside down for a distance of some 750 metres. Mr Schawalder stated that the car roof collapsed to within about two inches of his head. Fortunately he was restrained by his seatbelt, although the back of his seat broke.
Mr Schawalder said that although the accident left him in a state of shock, he was not otherwise injured. No record of this accident appears in Mr Schawalder's service records, nor does there appear to have been any medical examinations carried out. Mr Schawalder did assert, however, that in his opinion the motor car accident may have aggravated his back condition.
During his evidence Mr Schawalder's attention was invited to certain notes of a physiotherapist (Mr Michael Macqueen, deceased), which record (Exhibit R5) that on 30 April 1990 Mr Schawalder had been seen by his local doctor for a "possible sciatic nerve" and that Mr Schawalder had been involved in a "motor car accident 11 years ago". It was Mr Schawalder's evidence that this was a reference to the motor cycle accident in 1978. Further notes refer to Mr Schawalder doing multiple "sit-ups" after the motor cycle accident in 1978 and that "back presses (250 lbs) caused increase in low back pain". Mr Schawalder said that the note should have stated "leg presses", not "back presses". He also stated that leg presses would not increase the back pain, but was "just part of increasing the quadricep muscles".
Mr Schawalder's attention was also invited to a report by Dr G. Grokop of the Meadows Medical Centre, dated 3 September 1998 (Exhibit R8). The report records that Mr Schawalder injured his back at work on 13 March 1996 but that, when seen by the doctor on several occasions, including 31 January 1997 (for a totally unrelated work injury), the latter gained the impression that Mr Schawalder had no further trouble with his lower back/buttock area and had therefore made a 100% recovery.
Mr Schawalder suffered sudden low back pain while exercising at a gymnasium on 8 October 1997. On examination he exhibited spasms; flexion deformity and tenderness at L5-S.
Dr. S.F. Schofield, an Orthopaedic Surgeon, examined Mr Schawalder.
In a report dated 13 May 1998, the doctor reported as follows:
"Thank you for referring this patient who is a production operator with Shell. He said that he has had back pain for 18 years since he was involved in a motor car accident whilst in the army. At that time, he was off work for six weeks with various skin grazes and broken glass around his abrased skin lesions. He left the army one year later but has continued to have back pain ever since. This has gradually increased over the years and he has only taken the advice of gymnasium instructors who have continually told him to extend his spine.
He developed right sciatica six years ago but has only been on sick leave for a total of three months over the 18 years.
Some weeks ago, he was doing a weightlifting exercise in the gymnasium with an extreme force placed on his lumbar muscles when he felt a "rip" and could not walk the next day. Since then, he has had severe back pain and right leg pain to the back of the knee. It hurts when he coughs, his bowels don't work properly and he cannot empty his bladder without manual compression. He does not however, have any numbness around his anal region. He lies flexed in bed to get relief and cannot straighten after flexing his spine.
Examination revealed a very well muscled man who could not stand straight, had marked limitation of spinal flexion, limited straight leg raising on each side to 60 degrees and normal neurology. CT scan showed a mild prolapse of L5/S1 and plain x-rays in my rooms demonstrate moderate degeneration at the lumbo-sacral level.
MRI Scan was arranged urgently and this confirmed that he did not have gross compression in the spine but did have two levels of degeneration and a mild bulge at each level.
It seems as if he developed "spinal shock" after this hyperextension force and I have asked him to rest as much as possible over the next week or two in the hope that his functions will improve. He is therefore not a candidate immediately for surgery but may eventually need surgery to stabilise the lowest lumbar disc. He will be reviewed in two weeks."

On 27 July 1998 the doctor further reported:

"The patient states that he is a 41 year old production manager for Shell who injured his back 18 years ago whilst in the army. He said that at the time, he was involved in a motor vehicle accident in which he was on a motor bike and was thrown to the ground, where he suffered abrasions to his buttocks elbows and heels. He was admitted to the Repatriation General Hospital and he required a general anaesthetic the following day to remove debris from the subcutaneous tissues. He remained off work for 6 weeks and said that he initially developed his back pain after that injury. He left the army in 1981 and states that he has had continuous pain of an increasing nature in his back every (sic) since. He also stated that he has had a lot of treatment to his spine in an attempt to keep him fit and to prevent the back pain getting worse. He further states that right sciatica commenced about 6 years ago. He had only taken sick leave for a total of 3 months in the last 18 years.
He was referred to me by an orthopaedic colleague, because of my experience with spinal problems. The patient stated that, on or about the first week of April, he was doing an extension exercise with a squat and then extending his legs with a weight behind his neck at the gymnasium when he developed severe, acute back pain and the feeling of a "rip" in his spine. He was unable to walk the next day and from then on, had severe back and right leg pain to the back of the knee. He had dysfunction of both bowel and bladder when he saw me. His only relief was to lie in a very flexed position.
Examination revealed a well built man who could not stand erect because of pain, had marked limitation of spinal movement, limited straight leg raising to 60 degrees on each side and normal neurology. CT scan showed a prolapse at the lumbo-sacral level and plain x-rays revealed moderate degenerative change at that level with reduction of disc space. MRI scan was urgently arranged and this confirmed that he did have a prolapse of the lumbo-sacral level which was not to such a degree that he required urgent surgery in the presence of a degenerate disc. There was also some degeneration at L4/5.
I advised the patient to cease doing extension exercises and change to flexion. I also warned him that he may need surgery fairly soon if his symptoms did not settle and his abdominal functions did not return to normal. I have not seen the patient since.
Opinion
This patient's current x-rays show quite marked degenerative change at the lumbo-sacral level and MRI scan confirms degeneration at the lower 2 levels with a prolapse at the lumbo-sacral level. The x-rays therefore indicate that the degeneration has been there for many years and that the extension force caused a rupture of the degenerate disc. The patient gives a clear history of quite a severe jolt to his spine from a motor bike accident which caused bruising in the pelvic and leg region. He also complained of back pain at the time although this apparently is not documented. It seems likely that the severe bruising caused sufficient pain to override the back pain that developed as a result of that injury. His accident in my view, is therefore consistent with the development of a degenerate disc or aggravation of a previous degeneration and this disc has slowly desiccated and become narrow. The extension force caused a complication of this degeneration.
In the "Statement of Principles", the section on "Trauma to the Relevant Disc" lists various causes for such trauma. One is a fall which obviously occurred as he came off his motor bike causing the severe abrasions, and another is – a motor vehicle accident – which is exactly what happened. The injuries suffered in this accident in my view, were sufficient to produce trauma to a disc and thus initiated the onset of chronic back pain which has gradually become more severe and may eventually require surgery."

On 3 September 1998 Mr Schawalder attended the Emergency Department, South Eastern Hospital after he carried a number of six foot pine logs, which resulted in him experiencing back spasm.
The treating doctor at the hospital (Dr D.S. Van Gelderen), reported that Mr Schawalder had "tender lumbosacral spine, especially the right lumbosacral spine especially right lower side. Complains lumbar range to 90 degrees with no back pain".
As Mr Hall, for the respondent, observed during the hearing, the medical records relating to Mr Schawalder's admission and subsequent treatment following his motor cycle accident on 16 January 1978, reveal no mention of any complaint of or treatment for back injury, either at the Moorabbin Hospital, or the Repatriation General Hospital, Heidelberg. Nor does the Ambulance Report (Exhibit R14) contain any reference to any treatment other than "TLC" (tender loving care), nor to any back injury.
Mr Schawalder confirmed that following the motor cycle accident in 1978 he went on to play football regularly until about 1988, and that he also participated in baseball, skiing, swimming and jogging.
As indicated earlier, Dr Dooley gave evidence (by telephone) during the hearing. Dr Dooley is an Orthopaedic Surgeon. He examined Mr Schawalder on 19 July 1999 and later provided a report dated 21 July 1999 (Exhibit R6), for the purposes of these proceedings.
In his report the doctor stated that the diagnosis is that of lumbar disc degeneration, with acute back pain coming on after a gymnasium incident, with strain of his lumbar spine, in early April 1998. He further stated that in his opinion Mr Schawalder's clinical condition commenced at the gymnasium in April 1998, namely onset of back pain with referred pain to the right proximal leg, but probably not due to a lumbar disc prolapse on the right side.
Dr Dooley went on to report thus:
"Whilst possible, I think it highly unlikely that the Applicant's hypothesis as to war service causation of the condition is upheld, for the following reasons:
(a)He did not complain of thoraco-lumbar spinal pain following the motorcycle accident.
(b)No investigations were carried out for any thoraco-lumbar spinal injury.
(c)He recovered fairly quickly, to return to normal duties and later to sport.
(d)It is possible that he suffered a lumbar back strain in the motorcycle fall, but it would have quickly recovered.
(e)He sought no treatment for back problems, and had no investigations for back problems until around 1996. The first x-rays and imagings were done in 1998.
(f)These imagings show lumbar disc degeneration only, and these changes, had any imagings been done, would have been much the same even before the motorcycle accident. In other words, they represent lumbar disc degeneration only, a condition which is common in young adults, and in the vast majority of them, asymptomatic.
Therefore, on the balance of probabilities, I believe that his current back condition relates to the gymnasium incident in April 1998. Whilst possible, it is unlikely that the motorcycle accident has in any way contributed to his current condition. It should be emphasised that the motorcycle accident in question did not cause lumbar disc degeneration, and did not aggravate his lumbar disc degeneration. His subsequent back problems are the result of the natural progression of lumbar disc degeneration, in particular, the aggravation of it by the gymnasium incident in 1998."

Findings

From the whole of the material before me I am reasonably satisfied that the SoP factor upon which Mr Schawalder relies, being the factor set out in paragraph 5(a) of the SoP, does not exist.
As I have already mentioned, there was no complaint of back pain at the time of the motor cycle accident in 1978, nor was there an investigation in respect of a back injury, notwithstanding that, as recorded in various medical documents, he was treated by a number of doctors at the time. As stated by Dr Dooley, Mr Schawalder made a fairly rapid recovery. Following discharge from hospital he proceeded on a couple of weeks convalescent leave and then returned to his normal duties full-time and without restrictions.
It should be recorded that in respect of a claim for compensation made by Mr Schawalder pursuant to the Compensation (Commonwealth Government Employees) Act 1971, no mention is made of back injury or back pain, but rather the claim was in respect of large superficial grazes on both buttocks, elbows and right heel.
Mr Schawalder did not seek either investigation, diagnosis or treatment until about 1996, some 18 years after the motor cycle accident. Indeed, disc prolapse was not evidence upon tests conducted prior to 1998.
Decision
The decision of the Tribunal will be that the decision under review is affirmed.
I certify that the 41 preceding paragraphs are a true copy of the reasons for the decision herein of:
Commodore B.G. Gibbs, AM, RAN (Retd), Senior Member
Signed: .....................................................................................
  Personal Assistant
Date/s of Hearing  13/7/2000
Date of Decision  21/8/2000
Counsel for the Applicant        -
Solicitor for the Applicant         Self-represented
Counsel for the Respondent    Mr A. Hall
Solicitor for the Respondent    Department of Veterans' Affairs