Smith and Repatriation Commission
[2006] AATA 982
•20 November 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 982
ADMINISTRATIVE APPEALS TRIBUNAL № V2005/807
VETERANS’ APPEALS DIVISION
Re: STEVEN JOHN SMITH
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Miss E.A. Shanahan, Member
Date:20 November 2006
Place:Melbourne
Decision:The Tribunal affirms the decision under review.
(sgd) Miss E.A. Shanahan
Member
VETERANS’ AFFAIRS – Defence Service – cervical spondylosis - injury 1978 – Statement of Principles not satisfied - decision affirmed.
Administrative Appeals Tribunal Act 1975
Veterans’ Entitlement Act 1986 ss 120(4) and 120B
Statement of Principles Instrument № 51 of 2002 as amended by Instrument № 64 of 2002 and Instrument № 82 of 2002
REASONS FOR DECISION
20 November 2006 Miss E.A. Shanahan, Member
1. On 11 August 2000 Steven John Smith lodged a claim with the Department of Veterans’ Affairs for medical treatment and pension for incapacity on the basis that he suffered from a number of medical conditions which were war-caused. The Repatriation Commission accepted some of the conditions as war-caused; for which it assessed pension at 40 per cent of the General Rate. The Commission rejected the other claimed conditions. Mr Smith sought review by the Veterans’ Review Board (VRB), which accepted liability for some additional claimed conditions, but affirmed the rate of pension. Mr Smith then sought review of the decision by this Tribunal. However, as Mr Smith has withdrawn his claims for bi-lateral patellofemoral chondromalacia and tension headaches, the only issue before the Tribunal was whether he satisfies the Statement of Principles (SoP) regarding cervical spondylosis consequent to trauma to his cervical spine.
BACKGROUND TO THE APPLICATION
2. Mr Smith served in the Royal Australian Air Force (Air Force) from 23 August 1976 until 27 January 2002 (T4, p1) and since then has been a civilian employee in the Air Force in an administrative role. Throughout his defence service he was an aircraft spray painter.
3. On 18 February 1978 while painting the wing of a Hercules aeroplane, he fell from a height of 12 feet between two scaffolding stands approximately one foot apart, hitting his head, shoulder and arm on the scaffolding and his left shoulder on the ground. He was taken by ambulance to the Air Force base medical centre where a scalp laceration was sutured and he was observed for a period of four hours. Then he returned to his room at the base. He resumed work on restricted activities the following day; the restricted activities being certified for a period of seven days. He experienced pain in the left shoulder and the right side of the neck for which he self-medicated with panadol and aspirin. Mr Smith was unable to remember if he lost consciousness in the fall or whether his neck movement was restricted immediately after the fall. He continued to self-medicate for neck pain and headaches with panadol until the mid 1980s.
4. In August 1984 Mr Smith sought medical attention for neck stiffness and pain associated with recurrence of the headaches. The latter had commenced in 1983. Over many years the cause of his headaches has been investigated (T5). On 17 November 2003 (T11, p171) Dr A. Munyard raised the possible diagnosis of cervical spondylosis. Radiological investigation revealed degenerative changes at C4/5 and C5/6. An x-ray of the right shoulder was normal (T14, p186). Dr G. Baro, the Applicant’s general practitioner, attributed his headaches to cervical spondylosis (Exhibit R5).
5. Mr Smith withdrew his application for review of the Respondent’s decision regarding his bi-lateral patellofemoral chondromalacia and proceeded purely on the basis that his spondylosis and headaches were defence-caused. Mr Smith has the accepted Defence Force disabilities of right rotator cuff syndrome, right achilles tendonitis, sprain of right ankle and right elbow epicondylitis.
6. Mr Smith was represented by Mr B. Turner, an advocate of the Returned and Services League of Australia. The Respondent was represented by Mr E. Nyhof, an advocate with the Department of Veterans’ Affairs. The Tribunal had before it the documents lodged pursuant to s 37 of the Administrative Appeals Tribunal Act1975 (T-documents).
The parties tendered the following exhibits:
Exhibit A1Report of Dr G. Baro dated 26 January 2006;
Exhibit R1 T-documents;
Exhibit R2 Report of Professor S. Davis dated 6 July 2006;Exhibit R3 Report of Associate Professor S. Hall dated 3 October 2006;
Exhibit R4Transcript of the VRB hearing of 7 June 2005; and
Exhibit R5 Report of Dr G. Baro dated 26 January 2006.
7. Mr Smith gave evidence in person and the evidence of Professor S. Davis and Associate Professor S. Hall was taken by telephone.
EVIDENCE BEFORE THE TRIBUNAL
Mr S. Smith
8. Mr Smith’s evidence is summarised under Background to the Application above. He was very honest in stating he could not remember details regarding the level of his neck pain and any diminished range of movement of his cervical spine occurring for at least ten days following the onset of any neck symptoms relating to his injury. Mr Nyhof posed the questions associated with the definition of trauma of the cervical spine outlined in the SoP, items (a), (b), and (c) regarding treatment for cervical spine injury and Mr Smith confirmed that he had never had such treatment.
Professor S. Davis
9. Professor Davis, a consultant neurologist, saw the Applicant and provided a report dated 6 July 2006. He noted Mr Smith’s fall of February 1978 and the onset of periodic headaches some years later. Professor Davis recorded that Mr Smith’s headaches occurred on one to three days per month, commenced in the cervical (neck) region but also involved the frontal regions on the skull, and were associated with tightness in the muscles of the neck. X-rays of the cervical spine in 1995 showed no bony or soft tissue abnormality. However, plain x-rays of 2004 showed degenerative changes at C4/5 and C5/6. Physical examination was entirely normal.
10. Professor Davis diagnosed episodic benign tension headaches and doubted that these were related to Mr Smith’s mild cervical spondylosis or the trauma of 1978. Professor Davis regarded Mr Smith’s radiological evidence of mild cervical spondylosis to be age-related.
11. Professor Davis confirmed his report in his evidence before the Tribunal; and in particular, said that the findings of cervical spondylosis in persons aged 47 was virtually the norm. Professor Davis could not recall any study or publications relevant to age-related cervical spondylosis.
12. The Tribunal asked Professor Davis if any further investigations were indicated. Professor Davis indicated that had he been a treating doctor as opposed to providing a medico-legal opinion, he would have requested a CT scan (CT) of the brain. The Tribunal also asked if Mr Smith’s headache could be due to occipital neuralgia (trauma to the C1 or C2 nerve root). Professor Davis agreed this was a possibility but favoured a diagnosis of headache due to cervical muscle spasm.
Associate Professor S. Hall
13. Associate Professor Hall provided a report dated 3 October 2006 (Exhibit R3), having seen Mr Smith on 27 February 2006. Associate Professor Hall obtained the already known history and on examination recorded a full range of movement of the cervical spine.
14. Associate Professor Hall considered that Mr Smith did suffer from cervical spondylosis and that Mr Smith’s tension headaches were in no way related to his defence service. The report also said I believe that these tension headaches do relate to his neck problems. However, he said the trauma incident of February 1978 did not satisfy the definition of trauma as provided in the SoP. Should a Guide to the Assessment of Rates of Veterans’ Pensions estimation be appropriate, this estimation would yield a score of zero.
15. In his evidence before the Tribunal Associate Professor Hall said that if the trauma of February 1978 had given rise to cervical pathology, this would have been evident in the x-rays of 1995.
16. The Tribunal asked Associate Professor Hall if he had knowledge of any age- related studies or reports with respect to cervical spondylosis. Without stating the exact titles of the reports, Associate Professor Hall summarised the results of numerous studies as showing that:
40 to 50 per cent of people aged 45 have changes of cervical spondylosis;
80 per cent of people at the age of 50 show similar changes; and
100 per cent of people show evidence of cervical spondylosis at the age of 60.
17. These figures were based on plain x-rays. More recent MRI scan (MRI) studies have shown a higher incidence of such change. It was not known why some people where asymptomatic despite marked radiological changes.
18. The Tribunal also asked how long it would take for a person who suffered cervical spinal trauma to develop radiological changes of spondylosis. Associate Professor Hall expected such changes to be discernable within five years of the traumatic event.
19. As the parties and the Tribunal had interpreted part of Associate Professor Hall’s report differently, the Tribunal asked Associate Professor Hall if he had diagnosed one or two patterns of headache. Associate Professor Hall stated that he believed that there were two separate headaches; one sited in the occipital region and due to Mr Smith’s cervical spondylosis and the other being a band like constriction around the head, termed a tension headache.
DOCUMENTARY EVIDENCE
Service Documents (T4)
20. Mr Smith’s clinical service notes record an entry on 18 February 1978 as follows:
Fell off scaffold at work – not KoD. On examination lacerated scalp, abrasion to right shoulder – movements treatment suture laceration.
On 19 October 1982 Mr Smith report pain in the right shoulder and denied any neck injury. The entry of 29 September 1983 described right side of headaches in the setting of an upper respiratory tract infection. On 30 April 1985 Mr Smith reported pain in the right occipital area and the neck and on examination was recorded as being normal. On 3 June 1989 he again complained of pain in the right occipital area of eight months duration and physiotherapy was prescribed. On 1 July 1991 Mr Smith reported recurrence of headaches in the region of the right occiput and was noted to be tender over the right occipital foramen. The service medical officer queried the possibility of occipital neuralgia and arranged referral to a specialist neurologist. Dr A. Johnson, flight lieutenant, referred Mr Smith to Dr Rice, neurologist, for an opinion as to whether Mr Smith’s headaches could be due to occipital neuralgia (T4, p61). Dr Rice advised that in his opinion the pain/headaches were musculo-skeletal in origin and not a true neuralgia (T4, p62). (Tribunal Note: occipital neuralgia classically affects the C1 and/or C2 nerve root as it exits from the spinal canal and is commonly traumatic in origin giving rise to severe pain in the occipital area.) On examination Dr Rice found a full range of cervical movement and no cervical tenderness. Further investigation was not advised but if the episodes of severe headaches persisted, he recommended a local anaesthetic injection into the site of the pain on a trial basis. (Tribunal Note: the method does not appear to have been pursued.)
21. On 11 January 1993 Mr Smith complained of left side headache and pain in the left side of neck. Physical examination was normal and no treatment was recommended.
22. On 2 February 1993 Mr Smith reported pain in the right side of his neck with reduced range of movement. In particular he described pain on turning his head to the right. The diagnosis of spasm of the trapezius muscle was made and physiotherapy was prescribed. On 29 May 1995 Mr Smith reported a sore neck and pain in his left shoulder. The entry states there were no previous problems in these areas. Examination revealed a diminished range of movement of the cervical spine and tenderness over C6-T1. On 23 October 2000 Mr Smith again reported occipital headaches which he said were of 15 years duration. Physiotherapy was prescribed.
Dr G. Baro (Exhibit R5)
23. Dr Baro provided several reports from 18 July 2003 onwards, summarising his findings and treatment given. Dr Baro examined Mr Smith’s service record noting nine attendances to the service medical officer between 1 August 1984 and 23 October 2000 for headaches and neck pain, which in light of the radiological evidence supported his conclusion that Mr Smith’s recurring occipital headaches were due to second cervical dorsal nerve root irritation.
Dr A. Munyard (T11, T12)
24. Dr Munyard, orthopaedic surgeon, assessed Mr Smith for many joint problems, most of which have since been accepted as defence-caused including his neck and headaches. Examination did not reveal any neck abnormality. X-rays of the cervical spine (6 February 2004) showed degenerative changes at C4/5 and C5/6. Dr Munyard concluded that these degenerative changes were consistent with Mr Smith’s fall of 18 February 1978.
Veterans’ Review Board Decision (T2)
25. The VRB found that Mr Smith suffered from cervical spondylosis but did not meet the SoP concerning this condition in accordance with the definition of cervical trauma and also that the symptoms had not occurred within the 25 year period delineated in the SoP.
Legislation
26. Mr Smith has eligible defence service and thereby attracts s 120(4) of the Veterans’ Entitlement Act 1986 (the Act). Section 120(4) states:
Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
27. As the claim was lodged after 1 June 1994 s 120B of the Act also applies:
Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1) This section applies to any of the following claims made on or after
1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b)there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.
26. The parties agreed that the SoP Instrument № 51 of 2002 concerning cervical spondylosis as amended by Instrument № 64 of 2002 and Instrument № 82 of 2002 concerning cervical spondylosis was the relevant SoP.
27. Clause 8 of the relevant SoP defines trauma to cervical spine as:
… a discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These acute symptoms and signs must last for a period of at least 10 days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred, where that medical intervention involves either:
(a)immobilisation of the cervical spine by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.
28. Clause 5 deals with:
The factors that must exist before it can be said that, on the balance of probabilities, cervical spondylosis … is connected with the circumstances of a person’s relevant service are:
…
(g)suffering a trauma to the cervical spine within the 25 years immediately before the clinical onset of cervical spondylosis;…
SUBMISSIONS TO THE TRIBUNAL
29. Mr Turner identified the only issue before the Tribunal as being whether Mr Smith satisfied the requirements of the relevant SoP. He submitted that the requirements were met, as Mr Smith:
·had suffered a discrete traumatic injury on 18 February 1978;
·experienced pain and a probable reduction of movement within 24 hours of the incident, although his self-medication with panadol reduced the pain;
·had suffered the injury on a Sunday and was rostered for light duties following the injury for the next seven days; and
·could not recall if his symptoms persisted for ten days (but given his self-medication it was submitted that he probably met the ten day requirement).
30. The Respondent submitted that Mr Smith does not meet the definition of trauma to the cervical spine and relied on the opinion of Associate Professor Hall that Mr Smith first presented with symptoms of neck pain and headache in 1984; X-rays in 1995 were normal and radiological evidence of cervical spondylosis was not found until 2004. In addition, Mr Smith could not recall how long he had had neck pain and any reduction in the range of movement of his cervical spine after the injury of 18 February 1978.
TRIBUNAL’S DELIBERATION AND REASONING
31. The Tribunal finds that Mr Smith has mild cervical spondylosis commensurate with his age; this finding being primarily based on the evidence of Associate Professor Hall.
32. Associate Professor Hall attributes Mr Smith’s right occipital pain to cervical spondylosis and distinguishes this pain from the tension headaches that Mr Smith also suffers. The latter have been determined by the VRB not to be defence-caused and the Tribunal affirms this decision with respect to the tension headaches.
33. The Tribunal finds that Mr Smith did report right occipital pain in April 1985 and in 1991 this pain was sufficient for a service medical officer to seek the opinion of a neurologist (Dr Rice) regarding the possibility of occipital neuralgia. This diagnosis was rejected by Dr Rice. Cervical spine plain x-rays in 1995 were reported as normal. Plain x-rays would only detect major pathology and would not exclude early or minor changes as detected in the plain x-ray of 2004. However, no service medical officer apparently considered Mr Smith’s symptoms to be of a severity that warranted a CT or more latterly an MRI. The Tribunal can only be guided by the available radiological investigations. Associate Professor Hall’s evidence was that changes secondary to acute trauma should be apparent radiologically within five years of the injury.
34. While Mr Smith had symptoms of occipital pain commensurate with cervical spondylosis in the 1980s, radiological confirmation was not provided until 2004; that is, 16 years after his fall. On a purely symptomatic basis the Tribunal finds that clinical worsening (i.e. symptomatic worsening) occurred within the 25 year period dictated by factor 5(g) of the relevant SoP concerning cervical spondylosis; although this is not supported by the x-ray findings. The gap between x-rays was approximately nine years and the changes detected in 2004 may well have been present at an earlier date.
35. Despite the above, the Tribunal finds that Mr Smith did not meet the definition of clause 8 of the relevant SoP concerning cervical spondylosis, as there is no evidence of local tenderness or restricted range of movement following the fall; and Mr Smith resumed work, albeit on light duties, the following day. Mr Smith has been very honest in stating he can’t recall how long he was affected by the trauma to his neck inflicted by the fall. The Tribunal cannot be reasonably satisfied Mr Smith meets the definition of trauma to the cervical spine. Expert opinion has been that Mr Smith’s cervical spondylosis is mild and commensurate with his age of 47 years.
36. Therefore, the Tribunal affirms the decision under review.
I certify that the thirty-six [36] preceding paragraphs are a true copy of the reasons for the decision herein of:
Miss E.A. Shanahan
Signed: Ursula Noyé
ClerkDate/s of Hearing 6 October 2006
Date of Decision 20 November 2006
Advocate for the Applicant Mr B. Turner
Advocate for the Respondent Mr E. Nyhof
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