Tapps and Repatriation Commission

[2002] AATA 358

DECISION AND REASONS FOR DECISION [2002] AATA 358

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D 2001/37

VETERANS' APPEAL DIVISION           )          
           Re      BRIAN TAPPS       
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr D W Muller, Senior Member   

Date17 May 2002 

PlaceBrisbane

Decision      The Tribunal affirms the decision under review to reject the applicant's claim for medical treatment and pension for cervical spondylosis pursuant to the provision of the Veterans' Entitlements Act 1986.   
  ...............…(Sgnd)..................
  Senior Member
CATCHWORDS
VETERANS – cervical spondylosis – no trauma to the cervical spine as defined in the SoP 

Veterans' Entitlement Act 1986

REASONS FOR DECISION

17 May 2002          Mr D W Muller, Senior Member               

1. This is an application to review a decision to reject the applicant's claim for medical expenses and pension for his cervical spondylosis.

2. The applicant, Brian William Tapps, served in the Australian Army for three years between 22 August 1966 and 22 August 1969.  His Army service included a period in Vietnam from 13 August 1968 to 2 July 1969.

3. The applicant claims that his current neck problems were caused by an incident, which he experienced while serving in Vietnam.  He gave evidence to the Tribunal that in or about March or April 1969, he was driving a Land Rover as part of his duties as a delivery driver around the Base at Nui Dat.  He said that he drove around a corner and was confronted with a large low loader onto which a bulldozer was being loaded.  He had to swerve sharply and in so doing the Land Rover tipped over.  The vehicle he was driving had no roof and no doors.  He was thrown out of the vehicle and hit the ground fairly hard.  The people who had been loading the bulldozer went over to him to see if he was all right.  They also rolled the Land Rover back on its wheels.  Mr Tapps stood up, got in the Land Rover and drove back to his camp, a distance of about one kilometre.  Mr Tapps took the Land Rover back to the motor pool.  He was admonished by the motor pool sergeant because there was a dent in the mud guard of the Land Rover.

4. Mr Tapps told the Tribunal that after he delivered the Land Rover to the motor pool he took the afternoon off.  He had a headache and some aches and pains up and down his body.  He took some aspirin tablets and rested on his bed for "a couple of hours".  He then had "things to do" later in the afternoon.

5. Mr Tapps took no other time off work.  He reported for duty the next day.  He had to go bush for some land clearing for a few days.  He had to operate an armoured personnel carrier.  He said that he still had a headache and some aches and pains.  He continued to take aspirin.  He had pain for almost a week.  He did not report the matter to anyone in authority or to the sick bay.  He did not want to be seen as a "whinger".

6. Approximately 3 months after the incident with the Land Rover, Mr Tapps left Vietnam.  Soon after that he left the Army because his 3-year term was up.  At his medical examination before he left the Army he was asked if he had any injuries or illnesses.  He said that he did not.  Mr Tapps told the Tribunal that he did not say anything about his neck because he just wanted to get out of the Army.  He was 20 years of age at the time.  He finished his time in the Army with the physical classification of FE (fit everywhere).

7. After he left the Army, Mr Tapps went to work for his father who ran a panel beating business in a small country town.  He worked for his father for about 8 years.  During that time he drank heavily and played football in his spare time.

8. Mr Tapps then worked as a Telecom linesman, operating a trench-digger, for about 14 years.

9. For the last 10 years, Mr Tapps has worked as a council parks employee doing landscaping and watering trees.  He worked in Alice Springs and in Gladstone for the respective shire councils.

10. Mr Tapps gave evidence that he first noticed that his neck was painful when he was about 28 years of age.  He is now 52.

11. An x-ray report, dated 14 April 1999 contains the following:

    "Cervical Spine:
    Chronic cervical spondylosis is seen.  There is universal disc degeneration with narrowing.  Osteophyte formation is seen and there are also sclerotic changes surrounding the disc spaces.  The exit canals are fairly free from any impingement.  Facet joints are still quite well preserved also. (mt/lr)"

12. The relevant Statement of Principles concerning cervical spondylosis is No 31 of 1999.  The relevant factor in this case which must be related to service and which as a minimum must exist before it can be said that a reasonable hypothesis has been raised connecting the applicants cervical spondylosis with his relevant service is:

    "5(h) suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis:
    'trauma to the cervical spine' means a discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of acute 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 seven 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."

1. The fact that Mr Tapps has universal disc degeneration with narrowing, indicates that his cervical spondylosis has not come about because of a discrete injury but has developed evenly throughout his cervical spine as a result of naturally occurring, age-related degeneration.

2. The trauma envisaged by that part of the SoP, set out above, is a trauma of sufficient severity to disable a person to the extent where their mobility or range of movement is restricted for about seven days.  Anything less is not responsible for the onset of cervical spondylosis.  The fact that Mr Tapps was able to go bush the following day and continue working indicates that he did not suffer the type of trauma envisaged by the SoP.

3. The Tribunal finds that Mr Tapps did not suffer a "trauma to the cervical spine", within the meaning of that term in SoP No 31 of 1999, while he was serving in Vietnam.

4. There is no reasonable hypothesis which links the applicant's service in Vietnam with his cervical spondylosis.

5. The decision to refuse his application is affirmed.

   I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr D W Muller, Senior Member

   Signed:         .....................................................................................
     Associate

   Date of Hearing  26 April 2002
   Date of Decision  17 May 2002
   Counsel for the Applicant        Mr R Duthie
   Counsel for the Respondent    Mr G Doube
   Solicitor for the Respondent    Department of Veterans' Affairs