STOTT and REPATRIATION COMMISSION
[2011] AATA 677
•30 September 2011
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2011] AATA 677
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/4069
VETERANS' APPEALS DIVISION ) Re ALLEN STOTT Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N Bell, Senior Member
Dr M E C Thorpe, MemberDate30 September 2011
PlaceSydney
Decision The decision with respect to cervical spondylosis and intervertebral disc prolapse is set aside and instead the Tribunal decides that:
i) the correct diagnosis of Mr Stott’s lumbar disease is lumbar spondylosis;
ii) Mr Stott’s cervical spondylosis and lumbar spondylosis are war caused; and
iii) Mr Stott’s claim is remitted to the Repatriation Commission for assessment.
......................[sgd].......................
Ms N Bell, Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – whether condition war caused – whether intervertebral disc prolapse is the correct diagnosis of back condition – correct diagnosis lumbar spondylosis – decision under review set aside and substituted
Veterans’ Entitlement Act 1986
Benjamin v Repatriation Commission (2001) 70 ALD 622; [2001] FCA 1879
REASONS FOR DECISION
30 September 2011 Ms N Bell, Senior Member
Dr M E C Thorpe, Member1. Allen Stott was just 15 years old when he joined the Royal Australian Navy in 1961. He had three periods of operational service in his 20 year Navy career:
· 24 May to 26 June 1964 in Sabah, Sarawak and Brunei;
· 27 May to 26 June 1965 in Vietnam; and
· 14 September to 20 October 1965 in Vietnam.
2. After his discharge from the Navy Mr Stott was employed by the Fire Brigade as a store supervisor. He was medically retired from this position in 2001 due to his physical and psychiatric conditions.
3. Mr Stott has the following accepted conditions:
· Generalised anxiety disorder;
· Post traumatic stress disorder;
· Osteoarthritis of the left knee; and
· Solar keratosis.
4. Mr Stott’s claims for gastro-oesophageal reflux disease with ulcerative oesophagitis, hiatus hernia, cervical spondylosis and lumbar spondylosis were rejected. Mr Stott seeks a review of the decision in respect of cervical spondylosis and what was originally claimed as lumbar spondylosis but substituted by the Commission with, as a different diagnosis, intervertebral disc prolapse.
5. Mr Stott relies on the carrying he did on service to establish conformity with the Statements of Principles relevant to his conditions. The parties agree, and we concur, that he meets the weight and frequency aspects of the carrying factors in the SoPs. The Repatriation Commission concedes that in all respects Mr Stott’s circumstances conform with factor 6(i) of SoP No. 33 of 2005 concerning cervical spondylosis (carrying loads of at least 15 kilograms on the head while upright to a certain cumulative total during a certain period). We agree.
6. As we mentioned, Mr Stott, in his claim form dated 16 October 2008 claimed, together with cervical spondylosis, lumbar spondylosis – the only condition affecting his back.
7. On 12 November 2008 an MRI was reported as showing a disc protrusion at the L1-L2 intervertebral disc space.
8. On 26 November 2008 Dr Peter Leung, general practitioner, provided a medical impairment assessment noting lumbar spondylosis as the only condition affecting Mr Stott’s back.
9. On 2 January 2009 the Repatriation Commission wrote to Mr Stott to advise of its decision to reject his claim in relation to cervical spondylosis and “intervertebral disc prolapse”. This was the only condition mentioned that affected Mr Stott’s back and no mention was made of the lumbar spondylosis for which he had claimed. The letter said: “I am satisfied that the appropriate medical diagnoses for the claim are:…intervertebral disc prolapse at L1-L2”.
10. No reason was provided for the Commission’s diagnosis but we note that the Veterans’ Review Board stated that it was satisfied with this diagnosis based on the report of Dr Toos Sachinwalla, the author of the report of the MRI.
11. In relation to disc prolapse, Mr Stott’s circumstances fail to comply with the carrying weights factor ((6(j)) in SoP No. 39 of 2007 concerning intervertebral disc prolapse in that there is no material pointing to the clinical onset of his disc prolapse within 10 years of the carrying he did on service. Rather, disc prolapse was identified in 2009. In all other respects, Mr Stott satisfies the factor. The parties agree, and we concur, that there is no material pointing to compliance with the disc prolapse SoP.
12. However, Mr Stott submitted that the originally claimed diagnosis – lumbar spondylosis – remains available and is the preferable diagnosis of his lumbar spine condition. It is agreed, and we concur, that there is material pointing to conformity with factor 6(i) in SoP No. 37 of 2005 concerning lumbar spondylosis.
13. The issue for us to consider is therefore the correct diagnosis of Mr Stott’s back condition and, it follows, the SoP relevant to that diagnosis.
diagnosis
14. SoP No.37 of 2005 concerns lumbar spondylosis and defines that disease as follows:
For the purpose of this Statement of Principles, “lumbar spondylosis” means degenerative changes affecting the lumbar vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of lumbar cord, cauda equine or lumbosacral nerve root compression, but excludes diffuse idiopathic skeletal hypertosis and Scheuermann’s kyphosis.
15. SoP No.39 of 2007 concerns intervertebral disc prolapse and defines the condition as:
For the purposes of this Statement of Principles, “intervertebral disc prolapse” means protrusion, herniation or rupture of the nucleus pulposus or annulus fibrosis of an intervertebral disc into the vertebral canal of the cervical, thoracic or lumbar spine, causing:
i) local pain or stiffness;
ii) clinical evidence of nerve root compression; or
iii) clinical evidence of spinal cord compression.
This definition excludes bulging of the intervertebral disc and Schmorl’s nodes.
16. Dr Peter Giblin, orthopaedic surgeon, in his report dated 29 June 2010, noted the November 2009 lumbar spine MRI report and the evidence of disc protrusion. However, he went on to identify lumbar spondylosis as the condition affecting Mr Stott’s back. In evidence to the Tribunal, Dr Giblin characterised Mr Stott’s back condition as “spondylosis encompassing degenerative changes”. When referred to the SoP for intervertebral disc prolapse, Dr Giblin agreed that Mr Stott suffered from intervertebral disc prolapse, but said that from a clinician’s standpoint it is all “part and parcel of the same thing – different pieces in a jigsaw puzzle”. He also noted that radiological evidence is open to various interpretations.
17. Dr Giblin also said that spondylosis cannot be diagnosed immediately and develops over a long period. He said that disc protrusions are soft tissue changes.
18. Professor Sambrook, rheumatologist, in his report of 4 March 2011, diagnosed Mr Stott as suffering from lumbar spondylosis. However, he said this overlaps with the SoP for intervertebral disc disease. He said Mr Stott’s condition can also be considered a disc prolapse at L1-L2.
19. Dr David Millons, orthopaedic surgeon, in evidence to the Tribunal, said Mr Stott suffers from lumbar spondylosis in addition to disc prolapse. He noted that the two conditions can be mutually exclusive but also noted that lumbar spondylosis involves the wear and tear in discs. He said a disc prolapse can be caused by a sudden injury or by a long term process of degeneration.
20. Dr Millons said the disc disturbance in Mr Stott’s case fits into the definition, in the SoP, of lumbar spondylosis. Dr Millons said that, while the two conditions remain concurrent in Mr Stott’s case, he has “difficulty” with the diagnosis of intervertebral disc prolapse and considers that lumbar spondylosis is a more appropriate definition and diagnosis in Mr Stott’s case. He described disc prolapse as an “end point” of the condition of lumbar spondylosis and that for Mr Stott lumbar spondylosis is the chronic condition. He said: “I think, in Mr Stott’s case, it’s a chronic condition (lumbar spondylosis) with a disc that’s just gradually given way”.
21. We note that each of the expert medical witnesses agreed that Mr Stott’s condition could be diagnosed as lumbar spondylosis or disc prolapse or both. We also note that all expressed a preference for lumbar spondylosis as a diagnosis.
22. The Repatriation Commission submitted that where two diagnoses are available then both must be adopted and both of the relevant SoPs must be applied. In support of this submission we were referred to the following passage in Benjamin v Repatriation Commission (2001) 70 ALD 622; [2001] FCA 1879:
“[54] Section 120(1) of the Act assumes the existence of a relevant injury or disease and provides a standard of proof for the determination of whether that injury or disease was war caused. When the Commission, or the tribunal on review, is required to determine whether a veteran is suffering from a particular injury or disease, that issue must be decided to the reasonable satisfaction of the decision maker, in accordance with s 120(4) of the Act: see Repatriation Commission v Budworth (2001) 116 FCR 200 at 204, [15]; 66 ALD 285 at 289.
[55] The first question for the tribunal will be how to characterise the psychiatric problems exhibited by the veteran. If the tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s 120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s 120(1). The standard of proof laid down by s 120(1) has no application to the former question.
[56] However, if the tribunal is reasonably satisfied that the psychiatric problems presently suffered by the veteran fall within an SoP that is in force, it will be necessary to apply s 120(1) as qualified by s 120(3), as that provision is in turn qualified by s 120A(3).”
23. The Commission submitted that the Tribunal cannot go behind the SoPs and delve into causation. We agree, but in this case it is not necessary to go behind the words of the SoP because the words of the lumbar spondylosis SoP definition are so broad as to include the disc disturbance described in more precise terms in the disc prolapse SoP as disc prolapse. In Mr Stott’s case, the SoP concerning lumbar spondylosis covers the field.
24. The definition of “lumbar spondylosis” in the SoP includes the words “degenerative changes affecting the lumbar … intervertebral discs”. These words are broad and encompass the disc prolapse now suffered by Mr Stott as an “end point”, as Dr Millons put it, of his chronic lumbar spondylosis. Dr Millons referred to lumbar spondylosis as the chronic disease and said that the disc disturbance suffered by Mr Stott, which he considered to be degenerative, fits into the lumbar spondylosis definition. Dr Millons spoke of the disc “giving away”. We note that neither definition excludes features of the other.
25. We conclude that, while both definitions and consequent diagnoses are available, the diagnosis of lumbar spondylosis covers all of the features of the disease relevant to Mr Stott’s condition.
26. We are also mindful that the words of their Honours above echo the words of section 120A and refer to “an SoP” and also to “a” disease and “an” injury. If it were as the Commission urges, and we must identify every available diagnosis, rather than the most appropriate one in the context of all of the veteran’s symptoms and the opinion of all expert medical witnesses (and within which another separately defined condition fits) and then apply every SoP that is in force in respect of each of those diagnoses, then we would expect that the section would refer to “every” SoP and “every” injury or disease.
27. The diagnosis of Mr Stott’s lumbar disease is lumbar spondylosis and the relevant SoP is SoP No. 37 of 2005 concerning lumbar spondylosis.
28. It follows from the matters agreed by the parties as noted above, and with which we concur, that Mr Stott’s lumbar spondylosis and cervical spondylosis are war caused.
decision
29. The decision with respect to cervical spondylosis and intervertebral disc prolapse is set aside and instead the Tribunal decides that:
i) the correct diagnosis of Mr Stott’s lumbar disease is lumbar spondylosis;
ii) Mr Stott’s cervical spondylosis and lumbar spondylosis are war caused; and
iii) Mr Stott’s claim is remitted to the Repatriation Commission for assessment.
I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell, Senior Member and Dr M E C Thorpe, Member
Signed: ................................[sgd]...............................................
AssociateDate/s of Hearing 8 and 9 August 2011
Date of Decision 30 September 2011
Counsel for the Applicant Mr C Colborne
Solicitor for the Applicant Mr G Isolani, KCI Lawyers
Advocate for the Respondent Mr K Rudge
Solicitor for the Respondent Ms J Warmoll, Department of Veteran Affairs'
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