Steicke and Repatriation Commission
[2003] AATA 1260
•12 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1260
ADMINISTRATIVE APPEALS TRIBUNAL )
) No V02/54
VETERANS' APPEALS DIVISION ) Re WALTER MORRIS STEICKE Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr J Handley, Senior Member Date12 December 2003
PlaceMelbourne
Decision The decision under review is affirmed. (Sgd) J Handley
Senior Member
VETERANS’ ENTITLEMENTS – Service in Alice Springs – back pain alleged in service – subsequent removal of spinal cordoma – lumbar spondylosis by service not satisfied on balance of probabilities – decision affirmed.
Statement of Principle No.47 of 2002
Statement of Principle No.16 of 1997
Frederick Ian McLeod-Dryden and Repatriation Commission [1998] AATA 819
Kathleen Robertson & Repatriation Commission [1998] AATA 127
Repatriation Commission v Cornelius [2002] FCA 750
REASONS FOR DECISION
12 December 2003 Mr J Handley, Senior Member 1. The applicant applies to review a decision made by the Veterans’ Review Board (“VRB”) on 20 February 2001. The VRB then affirmed a decision previously made by the respondent on 10 August 1999 where claims then made for acceptance of the conditions of malignant neoplasm of the spinal cord, spondylolisthesis and spondylosis, neurogenic bladder and neurasthenia were refused.
2. The hearing of the application commenced in Mildura but was adjourned for resumption in Melbourne. By reason of issues that emerged from the first day of hearing, it was anticipated that extensive medical investigation would be undertaken. By reason of those investigations (made by both parties), when the matter resumed on 13 November 2003, a number of concessions were made by both parties namely:
1.The claims by Mr Steicke for acceptance of the condition of malignant neoplasm of the spinal cord, neurogenic bladder and neurasthenia were withdrawn.
2.The respondent conceded that the applicant presently suffers from the condition of lumbar spondylosis.
3.Upon the basis that the applicant pursued acceptance of the condition of lumbar spondylosis pursuant to factors 5(g) and (i) of Instrument No.47 of 2002 together with a sub-hypothesis of satisfaction of factor 5(f) of Instrument No.16 of 1997, the respondent in turn conceded satisfaction of factor 5(i) to the extent only of lifting the requisite minimum accumulative total of 168,000 kilograms (refer later). Accordingly, the principle issue remaining in issue was identification of the occasion of clinical onset of lumbar spondylosis. Having regard to the applicant being discharged from service on 14 October 1943, the applicant would need to establish that the clinical onset of lumbar spondylosis occurred before 14 October 1968.
3. Mr De Marchi appeared on behalf of Mr Steicke and Mr Douglass appeared on behalf of the respondent. A number of documents were received into evidence and will be referred to in these reasons. Mr Steicke gave evidence in Mildura. Professor Stephen Hall gave evidence in Melbourne.
4. Mr Steicke is 81 years of age having been born on 28 July 1922. He presently receives pension at 60% of the general rate for the accepted conditions of bilateral sensorineural hearing loss and bilateral tinnitus.
5. Mr Steicke enlisted in the Australian Military Forces on 7 January 1942 and was discharged on 14 October 1943. He achieved the rank of Sapper and was seconded to the Fourth Australian Army Troops Company. All of his service was within Australia and entitlement is to be determined upon the balance of probabilities.
6. There appears to be a considerable difference between the recollection of Mr Steicke and his service records as to the extent and location of his service and the reasons for treatment of injury or illness within service. Accordingly, these reasons will recite the evidence of Mr Steicke in Mildura and will summarise the records as found within the documents lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975.
Walter Morris Steicke
7. Mr Steicke said that he was initially trained at Bonegilla and was later transferred to Alice Springs. He said that at Alice Springs he was engaged in heavy manual labour, building a camp. He said that he and others mixed cement by hand and transported it by wheelbarrow where it was then tipped and laid. He said that he completed this work over a period of approximately seven months and described it as being “very hard”.. He estimated that he pushed a wheelbarrow up to 100 times per day, on each occasion being loaded with wet cement. He estimated that 40% of his time in Alice Springs involved concreting and the remaining time was engaged in heavy construction type activity. He recalled that he suffered an illness at Alice Springs and was hospitalised for about ten days. He described it as being a “heavy fever”.. Upon discharge from hospital he was placed on lighter duties and was given a driving job. He eventually applied for a temporary discharge to return to his parent’s farm in South Australia which was approved because it was an “essential service”. He later returned to his unit but said that he was transferred to Kapooka where he underwent further training. Whilst at Kapooka, Mr Steicke said that he suffered two falls whilst participating in an obstacle course. He said that on each occasion he fell onto his back but could not recall precise details. He thought that he had undertaken treatment for those injuries but could not recall the nature, the duration, or the location of treatment. Thereafter he said that he suffered continuous back pain and sought treatment from a doctor in Melbourne. He described his back presently as “like steel” and his mobility is assisted by a four leg walking frame.
8. In cross-examination Mr Steicke said that the cause of his “back problems was doing the concreting”. He reaffirmed that he fell on two occasions whilst at Kapooka. Mr Steicke was then taken to a report of a medical examination prior to discharge on 19 October 1943 (T-documents, page 7) where he denied that he had suffered from any disabilities (“wounds, disease, injuries”) whilst a member of the AMF. Mr Steicke said he could not explain why he did not volunteer to the medical officer that he had suffered from back injury and was suffering from back pain.
Service Documents
9.
Service documents applicable to the applicant are found within the
T-documents commencing at page 1. The documents record that Mr Steicke enlisted on 7 January 1942 at Royal Park in Melbourne. He was posted to Bonegilla on 14 January 1942 and on 25 January 1942 was transferred to Alice Springs. On 26 April 1942 he was appointed to “TG III” as a concreter in Alice Springs. On 16 September 1942 he was admitted to the 109 Army General Hospital and discharged on 28 September 1942 where he returned to his unit in Alice Springs. On 19 October 1942 he was detached and referred for duty at Barrow Creek Staging Camp but returned to Alice Springs on 26 October 1942. He was granted leave from 10 January 1943, initially until 12 April 1943 but that leave was extended until 10 May 1943. He later rejoined his unit and was transferred to another unit in New South Wales until 17 October 1943 when he was transferred to the Victorian line of Command in anticipation of discharge.
10. I can find no reference from the service records of the applicant ever having served or been trained in Kapooka.
11. The only medical history applicable to the applicant is found at pages 4 and 5 of the T-documents. Consistent with the service records, Mr Steicke was admitted to the 109 General Hospital on 16 September 1942 and discharged on 28 September 1942. In the column where the disability treated is recorded, the words and numerals appear “T. 1036 Morbilli”. The word “Morbilli” is a word which appears in the “Black’s Medical Dictionary” 38th edition where the meaning given is “another name for measles”. I am unable to comprehend the expression “T. 103 6.” (although “T. 103” may refer to his temperature but the numeral “6” is confusing. The notation definitely reads “6” not “º”).
12. The report of a discharge medical examination on 19 October 1943 found at page 7 of the T-documents fails to disclose any disability, diseases, ailments or persisting disabilities from service. The examination revealed “NAD”, meaning No Abnormality Detected (page 8).
Statement of Principles
13. By reason of the claim having been made upon the respondent after 1994, the applicant is obliged to satisfy the relevant Statements of Principles issued by the Repatriation Medical Authority. Statements of Principles contain a number of factors that must exist before it could be said on the balance of probabilities that the claimed illness, injury, or disease is connected with the circumstances of relevant service. Paragraph four of each Statement of Principle provides that at least one factor must be related to relevant service rendered by a person. Each Statements of Principles contains factors at paragraph five.
14. In the present application Mr De Marchi indicated that he relied on the Statements of Principles with respect to lumbar spondylosis being No.47 of 2002. He advanced the applicant’s case by factor 5(g), namely suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis.
15. “Trauma to the lumbar spine” is defined at paragraph eight of the above Instrument in the following terms:
“trauma to the lumbar spine” means a discrete injury to the lumbar 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 lumbar spine. These 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 lumbar spine has occurred, where 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.
16. Factor 5(i) of the above Instrument records:
(i)manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of lumbar spondylosis, and where such physical activity has ceased, the clinical onset of lumbar spondylosis has occurred within the 25 years immediately following such activity.
17. The words “clinical onset” are not defined by the Instrument but have been interpreted on a number of occasions by the Tribunal in the cases of Frederick Ian McLeod-Dryden and Repatriation Commission [1998] AATA 819 and Kathleen Robertson & Repatriation Commission [1998] AATA 127 and Repatriation Commission v Cornelius [2002] FCA 750. In Cornelius, Branson J recited part of the decision in Robertson namely:
….. 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… .
18. Mr De Marchi also relied on Statement of Principle No.16 of 1997 entitled “Spondylolisthesis and Spondylolysis”. He relied on factor 5(f) which provides:
(f)suffering from lumbar spondylosis affecting the facet joints at the involved intervertebral level at the time of the clinical onset of degenerative lumbar spondylolisthesis.
Medical Records and Reports
19. A number of medical reports found within the file of the Swan Hill Medical Group together with reports from Dr Stephen Hall, Dr Richard Fox and Dr Byron Collins, all indicate that in 1960 Mr Steicke underwent surgery at the Peter McCallum Hospital in Melbourne for removal of a spinal cordoma. Dr Byron Collins reported that a cordoma “is regarded as a primary bone tumour arising from remnants of the embryonic notochord”. He said its diagnosis is “not always straightforward” with other differential diagnoses often being given. He had some doubts whether a cordoma should have been diagnosed because Mr Steicke has survived well beyond the anticipated survival rate for persons who have suffered cordoma’s.
20. Dr Hall reported that a cordoma “is a tumour found within the spine which is always found at the lumbosacral area. It represents a malignant transformation of the embryonic cells from which the spinal cord developed. It is not a bony tumour and not related to articular cartilage”.
21. Dr Fox reported that the most common site of a cordoma is either the base of the scull and other vertebral bodies including the first cervical vertebrae and the sacrum. He reported that cordoma’s “arise in the middle table of the bone from which they arise. As they expand within this space they erode normal structures from which they are clearly demarcated”.
22. Attempts have been made by a number of treating doctors to obtain the clinical file of the cordoma removal from 1960 but this has proved unsuccessful.
23. Mr Brian Davie, an orthopaedic surgeon, reported in May 1998 that he was concerned that there may have been a recurrence of the spinal tumour by reason of the applicant’s presentation, then, with severe back and leg pain. Investigations by other doctors including MRI and CT scanning indicated that there had not been a recurrence of the spinal tumour. The doctors reported that back pain, bladder weakness and leg pain are commonly associated with, and are a consequence of a removal of a cordoma.
Dr Stephen Hall
24. Dr Hall is the Associate Professor of Medicine at the Cabrini Medical Centre in Melbourne. He provided a report for the respondent on 15 June 2003. He did not examine Mr Steicke and prepared his opinion based on documents that were forwarded to him.
25. It was his opinion that the cordoma suffered by the applicant was a rare tumour. From the notes that he read, the applicant apparently had a period preceding its removal of three months of back pain associated with urinary complications. Mr Steicke has subsequently suffered from leg weakness, bladder difficulty and back pain which he thought might be associated with the surgery.
26. It was his opinion that Mr Steicke presently suffers from lumbar spondylosis.
27. Dr Hall was asked to comment on MRI findings at laminectomy on 11 April 1996 (Swan Hill Medical Group file at page 31). The first of two paragraphs under the sub-heading of “Findings” is in the following terms:
Findings: A laminectomy has been performed from the level of the conus (T11/12) to L3. There is evidence of marked loculation and adhesions within the thecal sac from T12 to L4 with tortuosity and clumping of nerve roots and heterogeneous signal of CSF. The conus appears normal on T2 weighted images, but thin, smooth, discontinuous enhancement is seen of three or four of the ventral nerve roots, giving them a somewhat beaded appearance. (Sheet 10, Series 4, Images 6-8). No solid mass lesions are seen.
28. Dr Hall said that this indicated to him that the applicant was suffering from spinal canal stenosis and arachnoiditis.
29. The second paragraph within the MRI report is in the following terms:
Moderate to severe desiccation is seen in all lumbar and lower thoracic discs, and there are mild disc bulges at multiple levels that do not contact neural structures. There is a moderate anterolisthesis of L5 on S1 due to bilateral L5 pars defects, and this together with marked loss of disc height causes marked narrowing of the neural foramina with compression of the L5 nerve roots, more marked on the right. The neural foramina are not significantly narrowed at other levels.
30. Dr Hall said that this paragraph suggested to him that there was the presence of lumbar spondylosis because of disc degeneration present at multiple levels of the spine.
31. Dr Hall was then taken to the applicant’s claim for acceptance of a number of injuries (T-documents, page 15) where against the claimed condition of “back problems” he recorded that he first became aware of the disability in 1960. Dr Hall said that the “Back Problems” in 1960 would have been a manifestation, then, of the spinal tumour (cordoma) and upon the materials that he read, there was nothing to indicate that Mr Steicke suffered from lumbar spondylosis in 1960.
32. Dr Hall was also asked to comment on a questionnaire completed by Dr Moynihan found at page 28 of the T-documents where the diagnosis given by him for the condition claimed of “back problems” was “Spinal Cordoma; Laminectomy; L5-S1 Spondylolysis; Spondolyothesis”. Dr Hall said that diagnosis as recorded by Dr Moynihan, was a reflection of the applicant’s present disabilities.
33. The presence of back pain subsequent to the removal of the cordoma was explained by Dr Hall to be a consequence of the surgery.
34. In cross-examination Dr Hall said that he could not confirm that lumbar spondylosis was longstanding. He said he did not retain x-ray films which were forwarded to him and unless he presently had the benefit of interpreting them, he was unable to give this opinion. He agreed that the MRI findings indicated widespread degeneration indicated by the radiologist in his reference to “moderate to severe desiccation is seen in all lumbar and lower thoracic discs”.
35. Dr Hall was asked to consider the applicant’s evidence of back pain during service in 1943. He was asked to consider whether in the event that the applicant did suffer trauma to his lumbar spine, whether it would be the origin of his lumbar spondylosis. Dr Hall said that a cordoma was embryonic in nature and would have commenced its growth from birth. He said there would need to be a well documented and described traumatic event – because of the presence then also of a cordoma (although not necessarily manifesting) for lumbar spondylosis to have then had its origin.
36. He was then asked to consider the applicant’s evidence of labouring and construction activity in Alice Springs particularly the mixing, lifting, and laying of cement. Dr Hall was unaware of that history but when it was put to him, and considered in the context of the applicant’s evidence of having fallen on two occasions at Kapooka with ten days rest by way of subsequent treatment, he said that he would not necessarily associate that history with lumbar spondylosis in a person who was then young in age. He said there would need to be other severe trauma and at best, on the history as he learnt when giving evidence, it was only a possibility that lumbar spondylosis could be associated with service.
37. With respect to the hypothesis based on the spondylolisthesis and spondylosis Instrument No.16 of 1997 (factor 5(f)) Dr Hall said that spondylolisthesis or spondylosis would only arise in the circumstances of this factor in the context of a severe traumatic injury. He said a lumbar spondylosis affecting facet joints at the time of clinical onset of degenerative lumbar spondylolisthesis would be applicable – by way of example – to a fast bowler in cricket who suffered severe bony injury necessitating many months of incapacity and requiring many months of rehabilitation.
38. In re-examination Dr Hall said that spondylolisthesis is not degenerative in nature and typically emerges in children by the age of three. He said it progressively becomes worse and it was likely that the veteran suffered it at the time that his cordoma was removed.
Conclusions and Reasons for Decision
39. This is a very unfortunate application. Mr Steicke has endured considerable pain and discomfort for many years. He had extensive spinal surgery in 1960 to remove a cordoma which, on the description given by Dr Hall, would have been causing an erosion of bony structure as it was expanding. Surgery to remove it would have also been extensive. Whilst the tumour was removed and there is no present indication of it having metastasised or returned, the surgery did produce complications of back pain, bladder difficulty and leg weakness which are apparently recognised as a consequence of the surgery.
40. MRI and CT reports found within the Swan Hill Medical Group file at pages 24, 31 and 51, being prepared between 1995 and 2001, indicate widespread degenerative change throughout the lumbar spine together with disc bulging, canal stenosis and pars defects. It is not difficult to comprehend that Mr Steicke is presently in considerable pain and has suffered it for many years.
41. On the evidence of Dr Hall, Mr Steicke does now suffer from lumbar spondylosis.
42. The issue in this application is whether he suffered lumbar spondylosis before 1968, being 25 years after he ceased lifting the weights prescribed in factor 5(1) of Instrument No.47 of 2002.
43.
Even accepting the history given to him by Mr De Marchi in evidence, Dr Hall said that the very highest of which the applicant’s case could be put was no greater than a possibility that there is a connection between service and lumbar spondylosis. A “possibility” does not convert to a probability, which must exist in the present case. Further, the opinion of Dr Hall was based on the fact that the events at Kapooka did occur. I have considerable doubt on the service records and medical histories whether Mr Steicke ever did serve or train at Kapooka. If he did, there is no medical records of any fall or treatment for any fall. The period of ten days of incapacity put to Dr Hall was upon the basis that it followed back injury or was the consequence of back pain associated with a fall. The only period of incapacity referred to in the
T-documents was of 12 days and it was as a consequence of having suffered measles in Alice Springs (T-documents, page 2,4).
44. Mr Steicke did refer to service at Kapooka in his claim form (page 11). The service records indicate he was transferred to “NSW L of C area” in July 1943 but Kapooka is not recorded as the location. He only referred to falling during training at Kapooka, at the VRB hearing, when one of the Members asked him why he considered that his back “problems” were caused by service (VRB transcript, page 13). His description of the incident is consistent with this description at paragraph 7 earlier in these reasons.
45. Mr Steicke described a “big fall” in training at Kapooka (page 13) which caused “pains in the back”. He said he had “days off” but could not recall how many. His treatment at an RAP was “they just rubbed stuff on” and he then was given ten days of light duties (page 14).
46. If the service records are deficient and Mr Steicke did serve or train at Kapooka, on the probabilities and particularly having regard to the evidence of Dr Hall – the incident at Kapooka could not have precipitated lumbar spondylosis or spondylolisthesis.
47. To the extent that the applicant sought to rely on factor 5(g), I cannot be satisfied on the evidence heard or read that he did suffer a trauma to the lumbar spine as defined. There is nothing in the material, or from the evidence of the applicant, that he suffered a discrete injury to the lumbar spine causing the development, within 24 hours of that injury, of symptoms and signs of pain and tenderness and either altered mobility or range of movement which symptoms and signs lasted of at least ten days.
48. I cannot be satisfied on the probabilities therefore that either of the factors in Instrument No.47 of 2002 do exist permitting a finding of connection with service, because the clinical onset of lumbar spondylosis did not occur before 1963, being 25 years after the expiration of service.
49. In so far as Instrument No.16 of 1997 is concerned, the evidence of Dr Hall satisfies me that factor 5(f) cannot be found to exist on the balance of probabilities. On the evidence of Dr Hall, spondylolisthesis has its origin in infancy. There is nothing which points to the presence of lumbar spondylosis at the time of the clinical onset of lumbar spondylolisthesis.
50. The decision under review is affirmed.
I certify that the 50 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J Handley,
Senior Member.Signed: Elsa Genovese
Personal AssistantDate/s of Hearing 21 May (Mildura) & 13 November 2003 (Melbourne)
Date of Decision 12 December 2003
Solicitor for the Applicant Mr D De Marchi
Counsel for the Respondent Mr R Douglass
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