SLOAN and REPATRIATION COMMISSION

[2011] AATA 424

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION     [2011] AATA 424

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/3122

VETERANS' APPEALS DIVISION		)
Re		RUPERT GEORGE SLOAN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal G. D. Friedman, Senior Member

Date21 June 2011

PlaceMelbourne

Decision The Tribunal affirms the decision under review.

.................[signed].............................

Senior Member

VETERANS' AFFAIRS – veterans’ entitlements - lumbar spondylosis - fall while carrying machine gun tripod - date of clinical onset - whether service-caused

Veterans' Entitlements Act 1986 ss 70(5)(a), 119(1)(h), 120(4)

Kaluza v Repatriation Commission [2010] FCA 1244

Lees v Repatriation Commission [2002] FCAFC 398

Mason v Repatriation Commission [2000] FCA 1409

Re Jurey and Repatriation Commission [2011] AATA 393

Repatriation Commission v Cornelius [2002] FCA 750

REASONS FOR DECISION

21 June 2011 G. D. Friedman, Senior Member

1.        Rupert Sloan served in the Australian Army within Australia from 1942 to 1946.  He claims that his medical condition of lumbar spondylosis is related to his army service when he fell while carrying a machine gun tripod during a training exercise.

LEGISLATIVE BACKGROUND

2.   Mr Sloan’s service in the Australian Army from 23 January 1942 until

24 September 1946 is eligible service under the Veterans’ Entitlements Act 1986 (the Act). Section 120(4) of the Act requires the Tribunal to decide, to its reasonable satisfaction, whether his lumbar spondylosis was defence-caused. The Tribunal is required to apply a Statement of Principles (SoP) for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Under s 70(5)(a) of the Act a condition is defence-caused if it arose out of, or was attributable to, any defence service. The relevant SoP is No. 38 of 2005 concerning lumbar spondylosis.

3.        The respondent has previously accepted that perceptive deafness right and left and deviated nasal septum are service-related.  Mr Sloan is in receipt of disability pension at 100 per cent of the general rate. 

Paragraph 6 of SoP No. 38 of 2005 provides:

…

(f) having a trauma to the lumbar spine within the twenty-five years before the clinical onset of lumbar spondylosis;

4.        Paragraph 9 states:

…

“trauma to the lumbar spine” means a discrete injury, including G force-induced injury, to the lumbar spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the lumbar spine has occurred and that medical intervention involves either:

(a) immobilisation of the lumbar spine by splinting, or similar external agent; or

(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or

(c) surgery to the lumbar spine.

ISSUES

5.        There was no dispute that Mr Sloan suffers from lumbar spondylosis.  The issues before the Tribunal are:

·What is the date of clinical onset of lumbar spondylosis?

·Did Mr Sloan have a trauma to the lumbar spine within the twenty-five years before the clinical onset of lumbar spondylosis?  

WHAT IS THE DATE OF CLINICAL ONSET OF LUMBAR SPONDYLOSIS?

6.        In Re Jurey and Repatriation Commission [2011] AATA 393 the Tribunal noted that there is no definition of the term clinical onset in the SoPs or in the Act, and referred to Lees v Repatriation Commission [2002] FCAFC 398 where the Full Federal Court of Australia stated at [13] in respect of the expression clinical onset:

... It is an expression whose meaning has been considered by the Tribunal on several occasions including in Re Robertson & Repatriation Commission (1998) 50 ALD 668 and Re Witten & Repatriation Commission (1998) 54 ALD 605. It was also considered by Branson J in Repatriation Commission v Cornelius [2002 FCA 750 ... Her Honour said at [26]:

Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression "clinical onset" as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that

"... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present ...."

7.        The Tribunal also noted that in Kaluza v Repatriation Commission [2010] FCA 1244 Jacobson J stated:

92. The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is aclinical onsetof a disease, either:

·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or

·when a finding is made on investigation which is indicative to a doctor that the disease is present.

93. The definition therefore emphasises the need for a determination of theclinical onsetby medical evidence. It is for the doctor to say when theclinical onsetoccurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.

8.        Mr Sloan told the Tribunal that prior to his army service he had experienced no problems with his back.  He said that he served in a machine gun company and his duties included carrying a tripod for a Vickers machine gun on his shoulders.  He explained that he suffered a specific injury to his back when he fell over while carrying the tripod (which weighed about 23 kilograms) and a full pack during a training exercise in the jungle on Horn Island, Queensland in 1943 (the tripod incident).  Mr Sloan stated that he had been running and tripped, falling forward and he suffered immediate pain and loss of movement in his back, neck and shoulders.  He said that he lay still for some minutes before his colleagues helped to remove and carry the tripod, and he continued to carry his pack and resumed the training exercise.  He did not have time to report his injuries until the completion of the exercise about ten days later, and when he was examined at the Regimental Aid Post (RAP) three weeks after the incident there was some residual back pain.  He was given some tablets by the sergeant on duty and was placed on light duties for about three weeks.  The acute pain symptoms resolved over time, although there was intermittent pain.

9.        In relation to post-army activities, Mr Sloan stated that after discharge he completed a carpentry course and worked for a builder but was dismissed in 1954 because the employer believed he had taken excessive time off work because of back pain.  He became a self-employed carpenter, working in the building industry.  He said that he continued to suffer back pain periodically, especially when lifting heavy objects and bending, and he took measures such as wearing a back brace for support and employing others to assist him.  He told the Tribunal that he recalls consulting doctors from the 1950s about his back pain, which gradually worsened over the years, although he did not have any significant work incapacity before 1982, when his last job finished and a Centrelink officer told him that he was effectively retired at the age of 59 years.  

10.      Under cross-examination Mr Sloan agreed that in relation to the tripod incident he told the Veterans’ Review Board that after falling and injuring himself he was helped to place the tripod on his back once more before the exercise continued.  He also agreed that on his medical discharge form that he signed in 1946 several conditions were listed but there was no reference to lower back pain.  Mr Sloan could not offer any explanation and said that the form was not completed in his handwriting.  He agreed further that there was no reference in the service medical documents to lower back pain in the three years from the tripod incident to his discharge from the army.  Mr Sloan agreed that his general practitioner’s clinical notes referred to an accident in which he suffered a back injury in July 1982 and was unable to work for two weeks, but he said that he had no recollection of any incident at that time.  He also agreed that his memory is not good and he does not have a clear recollection of the tripod incident. 

11.      Mr Sloan acknowledged that in a Claimant Report - Trauma Lumbar Spondylosis signed by him on 7 May 2009 in connection with his claim he said that the symptoms of lumbar spondylosis were first noticed in 1954 and he ticked a box indicating that there had never been an injury to his back.  However he said that the form was not completed by him and he did not remember signing the form.           

12.      In a written report dated 2 February 2011 Mr G Grossbard, orthopaedic surgeon, stated that the first back injury occurred on Horn Island during army service and that Mr Sloan had ongoing problems that required regular visits to the RAP and persisted throughout his working life, with an exacerbation of the pain in 1982. 

Mr Grossbard noted that Mr Sloan was required to wear a back brace.  He concluded that the recurrence of symptoms without a significant symptom-free period suggests a relationship between the pain and the original fall.  Mr Grossbard also noted that the radiology in 1982 reveals the presence of spondylosis, which must have been initiated many years previously.

13.      Mr Grossbard found that X-rays taken in 1982 show that there may have been a minor compression fracture of the L1 vertebra which would be consistent with significant trauma at the time of the 1943 injury, although he acknowledged the lack of medical records at the time of the injury.  Under cross-examination he maintained that the initial cause of lumbar spondylosis was the tripod incident in 1943 and that radiology and events such as termination of employment because of back pain indicate an exacerbation of the condition in 1982, with clinical onset occurring much earlier. 

14.      In a written report dated 10 December 2010 Dr G Markov, rheumatologist, stated that he examined Mr Sloan and X-rays taken in 1982 (showing osteoarthritis) and 2009 (showing moderate degeneration of the lumbar spine), and CT scans taken in 2006 and 2009 which revealed degeneration of intervertebral discs and osteoarthritis   of multiple facet joints.  Dr Markov concluded that the lower back pain was caused by the 1982 accident and chronic degeneration which began some years earlier as part of the ageing process, or degeneration itself.  He said that the tripod incident was fairly minor as Mr Sloan had continued his training for ten or eleven days before reporting for treatment; there was no consultation with a medical officer; and the medical records make no mention of the incident.  Dr Markov considered that clinical onset of lumbar spondylosis was the late 1970s or early 1980s.

15.      Under cross-examination Dr Markov agreed that he had not been provided with complete information regarding the wearing of a back brace by Mr Sloan or the circumstances of Mr Sloan’s military service, and he acknowledged that the tripod incident may have been more severe than he was led to believe.  However he said that he took a detailed history and carried out a thorough examination.  He said that radiological abnormalities which are referred to as lumbar spondylosis do not necessarily correlate to clinical symptoms, and that age-related changes may or may not have a bearing on symptoms.  Dr Markov maintained that clinical onset was mid-1982 because that was the first time that the symptoms were clear enough for

Mr Sloan to seek medical attention and the first time his medical practitioner felt that investigations were appropriate.     

16.       In a written report dated 14 October 1982 Mr K King, orthopaedic surgeon, stated that the most likely cause of pain in the right renal angle is referred pain from the degenerative changes in the lumbar spine.  On 20 June 1983 Dr J Lazdins,

Mr Sloan’s general practitioner, recorded … recurrent severe lower back pain brought on by accident on 30.7.82, requiring extended periods of rest, analgesics and physiotherapy… In a medical report for the Department of Veterans’ Affairs on 29 April 2009 Dr Lazdins said that clinical onset of lumbar spondylosis was the late 1970s.

17.      Clinical notes by Dr R Bartram, Mr Sloan’s previous general practitioner, for the period 1958 to 1976 refer to … hurt back at work … in 1961 but there is no mention of lower back pain in any entry during this period. 

18. The Tribunal notes that s 119(1)(h) of the Act requires the Tribunal to take into account the difficulties attributable to the passage of time and the absence or deficiency of relevant records resulting from the fact that an occurrence was not reported to appropriate authorities. In Mason v Repatriation Commission [2000] FCA 1409 Weinberg J stated at [76]:

… In the AAT's view, Mr Mason's evidence simply did not point to a connection between his lumbar spondylosis and war service, as required by the SoP. The role of s 119 is not to invent evidence which may serve to establish that connection. Inevitably cases of this type will involve problems of remembering details of events, and s 119(1)(h) is designed to ensure that those matters are taken into account. Those matters are not, however, to prevail over the structure and text of the remaining provisions of the VE Act.

19.      The Tribunal accepts that the tripod incident occurred in 1943 and that
Mr Sloan hurt his back after falling, although he continued his training for a further ten or eleven days before seeking medical treatment three weeks after the incident, which involved tablets given by a non-medically qualified person at the RAP.  The Tribunal also notes that the contemporaneous medical records contain no reference to back pain, particularly in the medical discharge form signed by Mr Sloan and in any medical records during the three-year period from the tripod incident to the date of discharge.  The Tribunal takes into account that the clinical notes of Dr Bartram contain no reference to lower back pain during the period 1958 to 1976. 

20.      These matters, together with the clinical notes by Dr Lazdins, who has treated Mr Sloan for a lengthy period and who referred to back pain suffered by Mr Sloan as a result of an accident in 1982, suggest that this incident, plus degeneration caused by ageing, was the cause of the lower back pain, rather than an aggravation of any pain caused by the tripod incident.  Dr Lazdins’ conclusion that the date of clinical onset was the late 1970s is consistent with the conclusion by Dr Markov and
Mr King.  The weight of medical evidence suggests strongly that these views are preferable to Mr Grossbard’s conclusion that the initial onset of back pain in 1943 represents clinical onset.

21.      For these reasons, and applying the principles set out in Lees and Kaluza, the Tribunal finds that the date of clinical onset of lumbar spondylosis is the late 1970s or early 1980s.   

DID MR SLOAN HAVE A TRAUMA TO THE LUMBAR SPINE WITHIN THE TWENTY-FIVE YEARS BEFORE THE CLINICAL ONSET OF LUMBAR SPONDYLOSIS?

22.      In view of the Tribunal’s findings that the date of clinical onset of lumbar spondylosis is the late 1970s or early 1980s and that the tripod incident occurred in 1943, the Tribunal finds that any trauma arising from the tripod incident would have occurred more than twenty-five years before the clinical onset of lumbar spondylosis.  Therefore Mr Sloan cannot satisfy factor 6(f) of SoP No. 38 of 2005 and there is no causal connection between Mr Sloan’s lumbar spondylosis and his eligible service, so there is no need for the Tribunal to determine whether Mr Sloan had a trauma to the lumbar spine in the tripod incident.

DECISION

23.      The Tribunal affirms the decision under review.

I certify that the twenty-three [23] preceding paragraphs are a true copy of the reasons for the decision of:

G. D. Friedman, Senior Member

………[signed]……………………….
Kate Conners

Associate

Date of hearing:  10 May 2011, 15 June 2011

Date of decision:  21 June 2011

Counsel for the applicant:            Ms A Magee

Solicitor for the applicant:            Williams Winter

Advocate for the respondent:       Mr K Rudge

Solicitor for the respondent:         Advocacy Section, Department of Veterans’ Affairs