Sullivan and Repatriation Commission (Veterans' entitlements) - [2023] AATA 3044

Sullivan and Repatriation Commission (Veterans' entitlements) [2023] AATA 3044 (26 September 2023)
Division:VETERANS' APPEALS DIVISION
File Number(s):2021/5746
Re:George Sullivan
APPLICANT

Repatriation CommissionAnd
RESPONDENT

DECISION
Tribunal:Member McLean Williams
Date:26 September 2023
Place:Brisbane

The reviewable decision dated 5 May 2021 is affirmed.
................[SGD]..................
Member McLean Williams
CATCHWORDS
VETERANS’ AFFAIRS – Defence-related claims – whether the Applicant suffered an injury or disease – clinical onset – Statement of Principles – decision under review affirmed.
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
CASES
Benjamin v Repatriation Commission (2001) 64 ALD 411
Boys v Repatriation Commission [2022] FCA 257
Repatriation Commission v Cooke (1998) 90 FCR 307
Repatriation Commission v Gorton [2001] FCA 1194
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
Member McLean Williams

26 September 2023
Background and relevant chronology

This is an Application for Review of a decision made by the Veteran’s Review Board (‘the VRB’) dated 5 May 2021. By that decision, the VRB affirmed a decision of the Repatriation Commission (‘the Respondent’) dated 26 October 2020 to reject

Mr Sullivan’s claims for Lumbar Spondylosis and L4/L5 Spondylolisthesis under the Veterans’ Entitlements Act1986 (Cth) (‘the VEA’).
Mr Sullivan served as a soldier in the infantry from 2 September 1970 until

1 September 1973. Mr Sullivan also performed ‘eligible defence service’ for the purposes of the VEA from 7 December 1972 until 1 September 1973.
The issue for consideration in this application for review is whether Mr Sullivan is entitled to compensation under the VEA for lumbar spondylosis, and/or for L4/L5 spondylolisthesis. This requires the Tribunal to consider whether each of

Mr Sullivan’s claimed conditions were caused by his period of eligible defence service. In addition, there must also be a Statement of Principles (‘SOP’) that upholds the contention that the claimed condition is, on the balance of probabilities, ‘caused by’ Mr Sullivan’s eligible defence service.
Mr Sullivan already has a number of other, previously accepted conditions under the VEA, each referrable to his eligible defence service. The accepted conditions are:
(a)striae Atrophicae (2 April 1998);
(b)haemorrhoids (2 April 1998);
(c)cervical spondylosis (8 May 2002);
(d)osteoarthritis of the right knee (8 May 2002);
(e)sensorineural hearing loss (6 April 2011); and
(f)tinnitus (6 April 2011).
On 23 March 2020 Mr Sullivan lodged a further claim for lumbar radiculopathy (T4). In that application, Mr Sullivan stated that ‘the full weight of my [Army] backpack cantilevered at my L4 – L5 spine joint and began this degeneration.’
On 26 October 2020 (T14), the Respondent rejected Mr Sullivan’s claim in respect of both lumbar spondylosis and L4/L5 spondylolisthesis, and also for a L4/L5 facet joint cyst (‘the determination’).[1]
[1] On 21 April 2021, Mr Sullivan withdrew his application to the VR regarding his L4/L5 facet joint cyst (T18).
On 14 November 2020 Mr Sullivan requested a reconsideration of the determination (T15). In doing that, Mr Sullivan stated:
I am appealing the non-acceptance of my claim for lumbar spondylosis… I have been informed that this condition is degenerative and has been deteriorating for the past 40 years. Dr Timothy Sui (a neurosurgeon at Macquarie Private Hospital) has performed a replacement disc and spinal fusion operation at the L4/L5 lumbar facet joints. This is the region of the spine with the fulcrum of my backpack met my back and is therefore in all probability the initial instigator of the spondylosis of my lumbar region. Dr Sui has stated that this was most likely the cause of this degeneration. Dr Timothy Sui can be reached at Macquarie Neurosurgery [contact details given].
On 5 May 2021 the VRB affirmed the determination, thereby further refusing

Mr Sullivan’s claim for both lumbar spondylosis and L4/L5 spondylolisthesis (T19). In doing so, the VRB noted that on the basis of the available medical evidence, the VRB could not be satisfied that either of these conditions were related to Mr Sullivan’s eligible defence service, as becomes necessary because of the applicable SOPs.
On 10 August 2021, Mr Sullivan made an application for review to this Tribunal (T2). As part of his application for review Mr Sullivan has filed the following:
(a)a statement, filed on 8 November 2021;
(b)a list of treating doctors, filed on 8 November 2021;
(c)an e-mail statement, dated 7 March 2022;[2] and
(d)another e-mail statement, dated 10 March 2022.[3]
[2] Agreed Hearing Book, p.3.
[3] Agreed Hearing Book, p.4.
Mr Sullivan’s contentions when before the Tribunal:
Mr Sullivan contends that he served in 9 RAR is an infantry soldier between 1971 and 1973.[4] During this period Mr Sullivan says that he spent many months in a situation in which he was required to carry a loaded Army battle pack, including an equipment belt with 4 magazines of 7.62 mm ammunition and 4 water bottles, plus the backpack itself, thereby giving rise to a total ‘carried weight’ of approximately 60 pounds.
[4] Applicant’s statement, filed 8 November 2021.
During 1972-1973 Mr Sullivan was also very active competing in service ‘tug-of-war’ competitions. Mr Sullivan represented his company, his battalion, and the army as a whole during inter-service tug-of-war competitions, and Mr Sullivan was even eventually selected as a member of the Australian Defence Force national

tug-of-war team, as a member of an eight-man squad in the ‘120 stone’ division of the

tug-of-war. Needless to say, that was the combined weight of the whole team, and not the weight of any one competitor.
As part of competition preparation, Mr Sullivan says that his tug-of-war squad was required to train five days per week, wherein the squad would run one mile each day, while collectively shouldering a power pole, thus equating to a load of approximately

220 kg, per person. Moreover, this was not the only training undertaken by the 120 stone squad. When combined with all the other ‘ordinary’ training that Mr Sullivan was required to undertake as a member of the infantry, Mr Sullivan now feels that, cumulatively, this would almost certainly be enough to meet the ‘weight carrying over time’ requirements that are specified under the relevant SOPs. Mr Sullivan’s contention is that his two subject conditions were each ‘caused by’ all of the weight bearing activities during his period of eligible defence service, as just described.
Approximately 12 months after being discharged from the army Mr Sullivan says that he began to see doctors for an ache in his mid-back, and hip. Over the next 30 years or so Mr Sullivan received regular treatments for this (in the form of injections), mainly on the basis of a diagnosis of his suffering from ‘bursitis’.
Mr Sullivan now contends that this condition was not properly diagnosed until 2018, and that his condition had been (up until 2018) mis-diagnosed – and thus incorrectly treated – as one of ‘bursitis’.
In 2019, Mr Sullivan underwent a spinal fusion procedure of the L4/L5 facet joints and was also told at around this time that his condition was one of spondylosis (‘new diagnosis’).
This new diagnosis was one given by a Dr Timothy Sui, who had also performed the spinal fusion procedure on Mr Sullivan as just described. Mr Sullivan told the Tribunal that he had been told by Dr Sui post-operatively that there was ‘a lot of deterioration in Mr Sullivan’s spine’, and that this had begun ‘at least 45 years prior’ to Dr Sui having performed that operation. However, there is not a report from Dr Sui before the Tribunal that says that, and nor was Dr Sui called to give any evidence.
Other materials before the Tribunal:
In the course of these proceedings, the Respondent has filed the following:
(a)the T-documents;
(b)supplementary T-documents (comprised by Mr Sullivan’s army personnel records);
(c)further supplementary T-documents (comprising Mr Sullivan’s ‘unit’ medical records, and his ‘army central’ medical records);
(d)a report of a Dr Simon Journeaux, orthopaedic surgeon, dated 18 May 2022;
(e)a supplementary report by Dr Journeaux, dated 28 June 2022;
(f)a further supplementary report from Dr Journeaux, now dated 14 April 2023; and
(g)a further supplementary report from Dr Journeaux, now dated 3 May 2023.
Diagnosis and date of clinical onset
When determining whether an Applicant suffers from a disease, section 120(4) of the VEA applies and the decision is to be made upon ‘reasonable satisfaction’: Repatriation Commission v Cooke (1998) 90 FCR 307; Benjamin v Repatriation Commission (2001) 64 ALD 411.
Analysis of Mr Sullivan’s service medical records reveals the following:
(a)on initial entry to the army Mr Sullivan had completed a history questionnaire and medical examination on 27 July 1970. This noted there to be no pre-existing back or spinal injury;
(b)Mr Sullivan reported lower back pain on 1 and 2 February, 1972. However, an x-ray of the lumbar spine performed on 3 February 1972 detected no abnormality;
(c)Upon his discharge from the army, Mr Sullivan completed another questionnaire and underwent a further (discharge) medical examination. This occurred on 23 July 1973. The discharge process noted Mr Sullivan as having no back or spinal injury;
(d)On 26 August 2003, Mr Sullivan suffered lumbar muscular pain, as a result of a workplace lifting injury. Mr Sullivan had been certified as medically unfit for work for approximately one week after that;
(e)On 26 October 2012, Mr Sullivan consulted his general practitioner, then complaining of a three day history of increasing lower back pain. Mr Sullivan’s general practitioner recorded in his clinical notes that: ‘Seems muscular. After [a] very active weekend arranging a wedding’.[5]
[5] Agreed Hearing book, p.257.
(f)On 30 November 2012, Mr Sullivan again consulted with his GP, who this time noted ‘lower back pain associated with bilateral sciatica worse with bending. Plan: x-ray’.[6]
[6] Agreed Hearing book, p.258.
(g)
An x-ray was conducted on Mr Sullivan’s lumbar spine on 6 December 2012. That x-ray however detected no abnormalities. On 10 December 2012

Mr Sullivan discussed the results of the x-ray with his general practitioner. Notes made by his doctor at that time indicate: ‘discussed results now has more pronounced right hip pain seems like trochanteric bursitis’.[7]
[7] Agreed Hearing book, p.258.
(h)On 26 May 2014 Mr Sullivan had reported ongoing low-back pain to his general practitioner such that Mr Sullivan was referred to see a pain specialist.
(i)In June 2014 Mr Sullivan saw Dr Nathan Taylor, a pain specialist. Dr Taylor reported that Mr Sullivan ‘does have widespread spondylosis in his cervical spine but has not had thorough scanning of his lumbar spine at this stage yet’.
(j)A bone scan was conducted on 19 November 2014. This detected mild to moderate degenerative change, present in Mr Sullivan’s axial skeleton. The report specifically noted there to be moderate bilateral L4/L5 facet arthropathy.
(k)Mr Sullivan underwent radiofrequency de-nervation of his lower lumbar facet joints in late January 2015, as performed by Dr Taylor. Even after that procedure, Mr Sullivan continued to complain of lower back pain.
(l)On 17 November 2017 an MRI of the lumbar spine was performed. This found a large left-sided cyst, arising from the L4/L5 joint, as well as ‘severe bilateral facet joint arthritis at this level’.[8] At that point Mr Sullivan was referred to see Dr David Bell, an orthopaedic surgeon.
[8] Agreed Hearing book, p.335.
(m)On 29 November 2017 Dr David Bell performed lumbar spine surgery in the form of a decompression and rhizolysis of L4/L5. According to Mr Sullivan’s oral evidence before the Tribunal this procedure resulted in a considerable improvement in his pain levels, at least for approximately the next six months.
(n)On 1 November 2018, an x-ray of the lumbar spine was performed. This found ‘grade 1 spondylolisthesis of L4 over L5, with anterior slip of L4 by approximately 6 mm’ and ‘facet joint arthritis at L4/L5 and L5/S1 levels’.[9]
[9] T8, p.43.
(o)On 16 November 2018, an MRI of Mr Sullivan’s lumbar spine found there had been a re-accumulation of the left-side facet joint synovial cyst at the L4/L5 level.
(p)
On 4 October 2019 a further MRI of the lumbar spine found that there had been a ‘spontaneous’ resolution of the previously noted left-sided L4/L5 facet joint cyst, and for there to also be clear evidence of L4/L5 spondylolisthesis

(6 mm, 14%).
(q)
Mr Sullivan was then referred to see Dr Timothy Sui, orthopaedic surgeon.

Dr Sui diagnosed Mr Sullivan as having an L4/L5 spondylolisthesis following an L4/L5 fusion procedure, which was conducted by Dr Sui on

29 November 2019. After that procedure Mr Sullivan undertook physiotherapy and hydrotherapy post-operatively, and reached what was assessed as being his maximum extent of post-operative medical improvement.
Medico-legal examination
At the request of the Respondent Mr Sullivan was also assessed by

Dr Simon Journeaux, orthopaedic surgeon, on 11 May 2022. Mr Sullivan told

Dr Journeaux that he suffers from constant pain in his lumbar spine of an ‘aching character’ which varies between ‘3 and 7 out of 10’ on a visual analogue scale.[10]

Mr Sullivan also reported that his symptoms are aggravated by significant bending, twisting and lifting; and by periods of either prolonged sitting, or standing. Mr Sullivan informed Dr Journeaux that he gets relief from these symptoms via weekly hydrotherapy. Mr Sullivan also reported his having no radicular symptoms.
[10] Agreed Hearing Book, p.20.
Relevant Statement of Principles:
Mr Sullivan has two medical conditions, lumbar spondylosis and L4/L5 spondylolisthesis. Although sounding similar, these are separate conditions, not covered by the same SOP.
The hearing of this matter before the Tribunal was conducted on 12 December 2022. At the time of the hearing, the relevant SOPs for these two conditions were
·the Statement of Principles concerning lumbar spondylosis (No. 63 of 2014); and
·the Statement of Principles concerning spondylolisthesis and spondylolysis(Balance of probabilities) (No. 25 of 2017).
At the time of reserving the matter for a decision, the Tribunal was required to consider the question of Mr Sullivan’s entitlement in light of the decision by the Federal Court in Boys v Repatriation Commission [2022] FCA 257 (delivered 23 March 2022) (‘Boys’).
Yet after the decision by the Federal Court in Boys, the Repatriation Medical Authority (‘RMA’) saw fit to release a new Statement of Principles for thoracolumbar spondylosis, intended for commencement on 27 March 2023 (‘the new SOP’).
On 26 March 2023 the parties requested that the Tribunal defer the making of any decision in this matter, in light of the RMA having foreshadowed the introduction of the new SOP.
The advent of the new SOP (No. 14 of 2023) necessitated provision of further evidence, and more submissions to the Tribunal in light of the new SOP; and also necessitated that the Respondent obtain a further supplementary medico-legal reports from Doctor Journeaux, which have since been provided, and are now dated 14 April 2023 and 3 May 2023. Further submissions from the Respondent, were then also filed in the Tribunal, on 23 May 2023.
Which SOP applies in respect of Mr Sullivan’s claimed conditions?
The relevant SOP in respect of Mr Sullivan’s L4/L5 spondylolisthesis has not changed, and still remains as the Statement of Principles with respect to spondylolisthesis and spondylosis (No. 25 of 2017).
Meanwhile, the new SOP as referenced above, Thoracolumbar Spondylosis (Balance of probabilities) (No. 14 of 2023) has the effect of assuming the position held by the previously extant SOP for lumbar spondylosis (No. 63 of 2014). In consequence, the relevant SOPs as currently in force as at the time of the making of the Tribunal’s decision in respect of lumbar spondylosis is now different to that which was in force and considered by both the Repatriation Commission, and then on review by the VRB.
In these precise circumstances, the correct approach for the Tribunal to adopt during its reasoning regarding Mr Sullivan’s lumbar spondylosis condition is that as was described by Heerey J (with whom Emmett J also agreed), in Repatriation Commission v Gorton [2001] FCA 1194 (‘Gorton’) at [43]-[44]:
… the system operates in the following way. Assume an SOP in force at the time of the claim is revoked by another SOP which is in force at the time of the AAT decision. The starting point is that the AAT must consider the reasonableness of the hypothesis advanced by reference to the SOP which “is in force”: s 120A(3): see s 43 AAT Act. If the current SOP “upholds” the claimant’s hypothesis then the AAT moves, pursuant to s 120(1), to consider whether it has been disproved beyond reasonable doubt.
If, however, the current SOP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SOP. That contention is accepted then again the hypothesis has to be to be disproved beyond reasonable doubt under s 120(1).
On the basis that the SOP has not changed, the Tribunal will first proceed to deal with Mr Sullivan’s L4/L5 spondylolisthesis condition, before returning to a consideration of Mr Sullivan’s Lumbar Spondylosis, for which there are now two potentially applicable SOPs.
Mr Sullivan’s L4/L5 spondylolisthesis
As indicated above, the relevant SOP in respect of Mr Sullivan’s L4/L5 spondylolisthesis has not changed, and remains the Statement of Principles concerning spondylolisthesis and spondylolysis (No. 25 of 2017).
So far as is relevant, SOP No. 25 of 2017 provides:
7Kind of injury, disease or death to which the statement of principles relates
(1)this statement of principles is about spondylolisthesis and spondylolysis and death from spondylolisthesis and spondylolysis.
Meaning of spondylolisthesis and spondylolysis
(2)For the purposes of this Statement of Principles:
(a)spondylolisthesis means forward displacement (anterolisthesis) or backward displacement (retrolisthesis) of one vertebra over the vertebra below; and
(b)spondylolysis means a defect or fracture, unilateral or bilateral, involving the pars interarticularis of a vertebra.
…
9Factors that must exist
At least one of the following factors must exist before it can be said that, the balance of probabilities, spondylolisthesis or spondylolysis or death from spondylolisthesis or spondylolysis is connected with the circumstances of a person’s relevant service:
[Factors (1)-(19) are then listed, however these not replicated here]
‘Clinical onset’ is a concept frequently referenced in the ‘factors that must exist’ in Clause 9 of SOP No. 25 of 2017. There is no definition of ‘clinical onset’ in SOP No. 25 of 2017, however the recent decision of the Federal Court in Boys provides that the ‘date of clinical onset’ is to be taken as being when there is imaging evidence of degenerative change. The Court’s key findings are set out at paragraphs [33]-[42] in Boys:
33At first blush, it might seem unusual, in circumstances where a tribunal has made errors as fundamental as those conceded by the respondent, that a court would consider doing anything other than remitting the matter for a rehearing according to law
34However, in this case, having heard from Ms Maud in oral argument, it is clear that because the appellant did not produce, and on appeal to this court did not seek to produce, any “imaging evidence of degenerative change” within the meaning of clause 3(b)(ii) of SoP No 67, his case, if remitted, would be doomed to fail.
35The cases establish, and it is hardly surprising given the language of clause 3, that the existence of such evidence is a necessary factor before any finding can be made about the existence of the relevant condition. Compare, by way of example, Lees v Repatriation Commission (2002) 125 FCR 331 at 337 [16] (Heerey, Moore and Kiefel JJ); and Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690 at 704 [64] (Weinberg J).
36By virtue of clause 6(f), the “trauma to the cervical spine” must have existed within 25 years before the clinical onset of cervical spondylosis, as defined in clause 3(b). Here, and counsel for Mr Boys did not seek to contend otherwise, the first “imaging evidence of degenerative change” was the evidence of the radio imaging brought into existence in June 2014. That was, on any view, more than 25 years since the occurrence of the three “traumas” which occurred as a result of the motor car or motor bike accidents that occurred in 1981, 1982, and 1983.
37Given that Mr De Marchi, counsel for Mr Boys, did not say how else the case would or could be re run below, it seems to me, for the reason I have explained, that it would be bound to fail. Accordingly, an order remitting it for rehearing would be futile.
38Another way of putting the point is that, despite the conceded errors made by the tribunal, paragraph [30] of its reasons, set out at [24] above, contained a summary of what would be in any event the complete answer to Mr Boys’ case on any remittal.
39Counsel for Mr Boys explained during his oral submissions that the case was run before the tribunal on the basis of evidence given by the neurosurgeon, Professor Graeme Brazenor. His written report relevantly opined as follows:
WITH RESPECT TO YOUR SPECIFIC QUESTIONS:
1.Is it reasonable to state that the whiplash injury suffered by Mr Boys started the disease process that eventually resulted in the diagnosis of cervical spondylosis?
All three of the motor vehicle accidents are highly likely to have injured Mr Boys’ cervical spine in a significant fashion. In fact the head injury of 22 September 1983 is likely to have caused greater damage than the earlier two accidents in which whiplash symptoms were documented.
2.Could your opinion be stated on the balance of probabilities standard of proof?
On the balance of probabilities Mr Boys had well established symptomatic cervical spondylosis, probably before but certainly by, the medical board examination of 25 October 1985.
3.What would be the earliest possible date that a diagnosis of cervical spondylosis could be made?
The medical board examination of 11 October 1984.
4.Mr Boys has suffered headaches for many years which have been described as migraines. Is it possible that a more correct cause of his headaches is cervicogenic in origin?
I believe this is highly likely.
40In the course of his cross examination before the tribunal, Professor Brazenor gave the following evidence:
Okay. Just finally the date that you’ve given there for the date of clinical onset, would you say that that date represents perhaps the date upon which the process, relevant to eventually arriving at a diagnosis, really begins for the cervical spondylosis or ? No, look
I mean appreciating it’s a degenerative condition? Sure. Firstly, I wouldn’t accept the condition to be progressive, except by multiple car accidents. That’s the first thing. But I picked 25 October [1985] because he was examined and interviewed that day by the Medical Board and I felt that their description of headaches, migraines and the history, together with what we knew of him having at least three accidents until then, I thought that was good days in which to say, well, look here’s some people who examined him at this time and I think their description is consistent with cervical spondylosis of some degree.
41It was this evidence that Mr Boys relied on before the tribunal to support his submission, recorded at [30] of its reasons, that “13 June 2014 is the date at which the diagnosis is ‘confirmed’, submitting that that would be the ‘norm’ as to a condition described as degenerative in nature”.
42But as the tribunal correctly went on to say, “[f]or the purposes of the Statement of Principles there is not ‘cervical spondylosis’ until 13 June 2014, in that there is not until that time … imaging evidence of degenerative change, including disc space narrowing or osteophytes, as required by sub paragraph 3(b)(ii)”.

Although the SOP for lumbar spondylolisthesis does not specifically require imaging evidence for a diagnosis of that condition, subparagraph 7(2)(a) of SOP No. 25 of 2017 does specify that spondylolisthesis is determined by either a forward displacement (ie: ‘anterolisthesis’) or backward displacement (ie: ‘retrolisthesis’) of one vertebra over the vertebra immediately below. In this context, the Respondent submits – and the Tribunal now accepts as obvious and sensible – that this is a matter that could only be reasonably practically identified on the basis of an availability of medical imaging.
On the basis of the medical evidence currently available for review by the Tribunal, the earliest date on which there is any medical imaging to demonstrate that

Mr Sullivan had L4/L5 spondylolisthesis was in an X-ray conducted on

1 November 2018.
Mr Sullivan was examined on behalf the Respondent by Dr Journeaux, who has now provided four reports, those dated 18 May 2022; 28 June 2022; 14 April 2023; and

3 May 2023.
In his initial report dated 28 May 2022, Dr Journeaux opined that Mr Sullivan does suffer from both ‘lumbar spondylosis’ and ‘L4/L5 spondylolisthesis’, with a date of clinical onset for ‘L4/L5 spondylolisthesis’[11] of approximately October 2012, on the basis of this being when Mr Sullivan had first consulted with his general practitioner with a three-day history of increasing back pain. However, Dr Journeaux had not been instructed to prepare his 28 May 2022 report in light of the ‘state of the law’ regarding the concept of ‘date of clinical onset’ arising in consequence of the decision of the Federal Court in Boys. At the time of his initial report, Dr Journeaux also opined that:
Mr Sullivan’s condition is degenerative and the pathology has not been caused by his service in the Australian Army from September 1970 to 1973…
…The medical evidence suggests that he developed low back pain referrable to this pathology circa 2011.
… The condition has arisen as a result of constitutional age-related degeneration.
… It is my view the clinical onset more likely than not and based on the medical evidence, was circa October 2012.
…I have considered the factors outlined in clause 9 of SOP no. 25 of 2017 from (1) to (19). There are no factors that apply in this case.
[Emphasis included, by the Tribunal].
[11] A diagnosis of spondylolisthesis rather than spondylolysis was confirmed by Dr Journeaux in his further report, dated 28 June 2022.
The solicitors acting for the Respondent then wrote to Dr Journeaux again on

26 April 2023 seeking still further clarification regarding the date for clinical onset for both Mr Sullivan’s lumbar spondylosis and grade one L4/L5 anterolisthesis.
In his further supplementary report (now dated 3 May 2023) Dr Journeaux further opined regarding the date for clinical onset for both conditions. In relation to the grade one L4/L5 anterolisthesis, Dr Journeaux stated:
This [sic] date of clinical onset is 20 March 2007. The condition would have been confirmed on the radiological imaging undertaken on 20 March 2007 although not specifically mentioned. This imaging was organised by

Dr Eichner (chiropractor). I have not been able to find the original report in the brief available to me originally but note that the condition is a constitutional/developmental condition and would have been present on the imaging taken on this date. Note the 3-region spine imaging was undertaken for neck symptoms and not low back symptoms. In other words, the claimant was not apparently symptomatic in respect of the lumbar spine.
[Emphasis included, by the Tribunal].
In his report dated 28 June 2022 (R7), Dr Journeaux had confirmed that Mr Sullivan suffers from a spondylolisthesis as defined in section 7(2) of SOP No. 25 of 2017. In his report dated 28 May 2022, Dr Journeaux expressed that he had considered the factors outlined in clause 9 of SOP No. 25 of 2017 and that none of the causative factors were applicable in this case.
Mr Sullivan’s lumbar spondylosis:
In Dr Journeaux’s further supplementary report dated 3 May 2023, the date of clinical onset for Mr Sullivan’s lumbar spondylosis is given as March 2011, on the basis of a medical records entry indicating that Mr Sullivan had seen his GP on 7 March 2011, and the GP having recorded on that date that: ‘Has had arthroscopy improved, new sciatica rhs again ++, Off Mobic at present’. Later in that same report, Dr Journeaux however concedes that lumbar spondylosis was only ultimately confirmed via a bone scan undertaken on 19 November 2014.
Meaning of ‘clinical onset’ under the now extant SOP - No. 14 of 2023:
Relevantly, the dictionary contained in Schedule 1 in SOP 14 of 2023 contains the following definitions:
clinical onset means the point backwards in time from the first date of imaging confirming thoracolumbar spondylosis, to the date at which the symptoms of thoracolumbar spondylosis were persistently present, as assessed by a registered medical practitioner.
imaging evidence of degenerative change means an image of the interior of a body obtained by medical techniques, including X-ray radiography or magnetic resonance imaging, showing prior degenerative change that is usually obtained at a date after the date of clinical onset of the disease.
The solicitors acting for the Respondent again wrote to Dr Journeaux on 4 April 2023, asking this time whether the fact of the new SOP impacted on Dr Journeaux’s opinion regarding the onset date of October 2012 for Mr Sullivans lumbar spondylosis. In a further report dated 14 April 2023, Dr Journeaux advised as follows:
..the medical evidence has not changed and suggests that he developed persistent low back pain referrable to the above pathology circa 2011 (reference GP records) of March 2011.
I have referred to the statement of principles concerning thoracolumbar spondylosis (balance of probabilities), number 14 of 2023 and all the relevant factors in section 9 (1) – (33). It is my view that none of these factors apply.
On 26 April 2023 the solicitors acting for the Respondent sought still further clarification from Dr Journeaux. In the report now dated 3 May 2023 Dr Journeaux reiterated the date of clinical onset for Mr Sullivan’s lumbar spondylosis as being March 2011, and that for the clinical onset of Mr Sullivan’s grade 1 L4/L5 anteriolisthesis was 20 March 2007.
Tribunal’s Assessment
The Tribunal accepts that Mr Sullivan has lumbar spondylolysis.
Under SOP No.14 of 2023, the date of clinical onset for this condition is defined as being ‘the point backwards in time from the first date of medical imaging confirming thoracolumbar spondylosis, to the date at which the symptoms of thoracolumbar spondylosis were persistently present as assessed by a registered medical practitioner.’ The first available medical imaging for this condition was conducted on 19 November 2014 (T8, p.38), yet Dr Journeaux noted that Mr Sullivan’s GP had made a clinical diagnosis of spondylosis in March 2011. Accordingly, the Tribunal finds that, at least under SOP No. 14 of 2023, the date of clinical onset for Mr Sullivans lumbar spondylosis was March 2011.
In the event that SOP No. 63 of 2014 were to be determined as still applicable, in accordance with the approach identified in Gorton (ibid, at [29], above), then the date for clinical onset for Mr Sullivan’s lumbar spondylosis would become the date of first imaging evidence.
Ultimately however, the Tribunal does not need to determine between which of these two SOPs is applicable. Under SOP No. 14 of 2023, the potential causative factors – which include lifting of specified cumulative loads over time – in paragraph 9 must have caused a clinical onset of thoracolumbar spondylosis within 25 years of the relevant defence service. Meanwhile, under SOP No. 63 of 2014, the direct analogue cumulative load lifting over time requirements are expressed in paragraph 6, yet the clinical onset must still have been within 25 years of the relevant defence service. This becomes relevant for what is expressed by the Tribunal, further below.
Does the material before the Tribunal raise the necessary connection?
Mr Sullivan has performed eligible defence service. Accordingly the connection to service is to be considered pursuant to section 120(4) and 120B(1) of the VEA, that is the ‘reasonable satisfaction’ test. The Tribunal is to be reasonably satisfied that an injury or disease was defence-caused only if:
(a)the material before the Tribunal raises a connection between the injury or disease and some particular service rendered by the person; and
(b)there is in force:
(i)a statement of principles; or
(ii)determination of the commission;
that upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.
Where a decisionmaker has to be satisfied that the material raises a connection between service and the injury, disease, or death, the decision maker is required to make this assessment on the balance of probabilities, which requires them to weigh the evidence and to distinguish ‘between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful’ (Repatriation Commission v Smith (1987) 15 FCR 327 at 335 (‘Smith’)), wherein it was also noted that ‘reasonable satisfaction’ should not be obtained by inexact proofs, indefinite testimony, or indirect inferences (at 334).
Mr Sullivan contends that his lumbar spondylosis and L4/5 spondylolisthesis were each caused by the weight of his army backpack during his period of service and/or tug-of-war training (particularly carrying the power pole), in conjunction with all of his other regular infantry training. However, (and significantly,) beyond Mr Sullivan now merely asserting that these things caused his conditions there is no other evidence available to the Tribunal to demonstrate that connection. Mr Sullivan’s contention is a mere possibility and not in the realm of a probability as identified in Smith. And, irrespective whether SOP No. 63 of 2014, or SOP No.14 of 2023 is applicable, the relevant SOP factors under either SOP must have had a clinical onset within 25 years after the eligible defence service. In this case, Mr Sullivan completed his army service in September 1973, such that between 33 and 38 years transpired before the clinical onset for his condition in either of 2007 or 2011.
Mr Sullivan’s L4/L5 spondylolisthesis.
As indicated above, the date for clinical onset of Mr Sullivans L4/L5 spondylolisthesis is 20 March 2007, on the basis of Dr Journeaux’s report dated 3 May 2023. Under SOP No. 25 of 2017 at least one of the factors listed in clause 9 must be in existence before it can be said on the balance of probabilities that spondylolisthesis is connected with the circumstances of the person’s relevant defence service. On the basis of the further evidence of Dr Journeaux as given in his report dated

28 June 2022 – which is accepted by the Tribunal – none of the causative factors in clause 9 of SOP No. 25 of 2017 are applicable. It follows therefore that Mr Sullivan’s L4/L5 spondylolisthesis is not connected with Mr Sullivan’s eligible defence service.
DECISION
The decision under review is affirmed by the Tribunal.

1. I certify that the preceding 53 (fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams

.......................[SGD]...........................
Associate

Dated: 26 September 2023

Date of hearing:

Date of final submission:

12 December 2022

25 May 2023

Applicant

By Telephone

Solicitors for the Respondent

Ms Gillian Gehrke

Sparke Helmore Lawyers