Tognini and Military Rehabilitation and Compensation Commission (Compensation)
[2016] AATA 1038
•16 December 2016
Tognini and Military Rehabilitation and Compensation Commission (Compensation) [2016] AATA 1038 (16 December 2016)
Division
VETERANS’ APPEALS DECISION
File Number
2015/6439
Re
Bruno Tognini
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Date 16 December 2016 Place Perth The decision under review is affirmed.
.....................[sgd]........................................
Deputy President Dr Christopher Kendall
CATCHWORDS
COMPENSATION – service in Australian Regular Army – whether service “significantly contributed” to condition of condition of lumbar spondylosis – relevance of date applicant first sought medical treatment for condition – meaning of “significant degree” as opposed to “material degree” – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 – sections 5A, 5B, 7(4) and 14
Safety Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (number 54/2007) -- item 11 of Schedule 1
CASES
Su v Comcare [2011] AATA 934
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
16 December 2016
INTRODUCTION
This matter requires the Tribunal to determine whether Mr Bruno Tognini is entitled to compensation pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (the “SRC Act”) for his medical condition of lumbar spondylosis. Mr Tognini claims that he suffers from this condition as a result of a fall from a rope that occurred while he was undertaking military service in 1967.
It is not disputed that Mr Tognini suffers from lumbar spondylosis. What is in dispute is whether the fall that occurred while he was employed by the military in 1967 contributed to this condition.
This matter comes to the Tribunal as a result of a decision of the Military Rehabilitation and Compensation Commission (the “Commission”) dated 4 December 2015 (T2 at 7), affirming a decision of a delegate of the Commission dated 28 April 2015 (T29 at 123) that denied liability for Mr Tognini’s lumbar spondylosis.
FACTS
The facts relevant to this matter were outlined by the Commission in a Statement of Facts, Issues and Contentions dated 12 August 2016 at paragraphs 3.1 to 3.18 and by Mr Tognini in a Statement of Facts, Issues and Contentions dated 23 September 2016 at paragraphs 1.1 to 2.6.
Having reviewed the facts outlined by both parties and following discussion of the factual outlines provided during the hearing of this matter, the Tribunal notes the following relevant facts.
Mr Tognini is 71 years old. He joined the Australian Regular Army on 30 June 1965 and was discharged at the end of his engagement on 29 June 1967.
On 17 February 1967, Mr Tognini injured himself when he sustained a fall from ropes mounted between two trees, “during an exercise with 3 CCS at Camp Cable” (T4 at 15). Mr Tognini made a statement at the time as follows:
I climbed the ropes between the two trees, the ropes snapped and I fell about fifteen feet on my shoulders …
After the fall, a medical officer described Mr Tognini’s injury as arising from him falling on his back and shoulders, resulting in pain to his back and shoulders (PT6 at 23).
On 20 February 1967, Mr Tognini was referred for x-rays of his cervical spine as a result of a “fall from 15' onto neck” (T41 at 172-173).
On 5 December 1968, liability was accepted under the Commonwealth Employees’ Compensation Act 1930 for a “musculoligamentous injury to the neck” condition.
By determination dated 29 May 2014, liability was extended to include an acceptance for a “cervical spondylosis” condition pursuant to section 14 of the SRC Act (T13 at 40).
Mr Tognini lodged a compensation claim form dated 17 February 2015 (T21/76) in relation to the condition “lumbar spondylosis” which he claimed was contributed to by the fall on 17 February 1967.
On 16 April 2015, Dr Cairns, Orthopaedic Surgeon, provided a report to the Department of Veterans Affairs (T25 at 100). In his report, Dr Cairns confirmed that Mr Tognini had reported to him that he fell onto his neck and shoulders in 1967 in the course of military training. Mr Tognini also reported to Dr Cairns that he was “immediately aware of low back injury at the time of the fall”.
Dr Cairns diagnosed Mr Tognini with lumbar spondylosis, which he considered to be a standalone condition. Relevantly, Dr Cairns concluded that this condition was “not caused or contributed to at all” (noted as 0%) by any aspect of Mr Tognini’s military service. Rather, Dr Cairns concluded that the lumbar spondylosis was “100%” caused by “constitutional, developmental and degenerative” changes which Mr Tognini “acquired and developed after military discharge”.
By determination dated 28 April 2015, liability was rejected for Mr Tognini’s claimed condition of lumbar spondylosis (T29 at 123).
By reviewable decision dated 4 December 2015 (T2 at 7), the decision of 28 April 2015 was affirmed.
By Application for Review of Decision dated 10 December 2015, Mr Tognini requested a reconsideration of the decision dated 4 December 2015 (T2 at 5).
ISSUES
The broad issue before the Tribunal is whether the Commission is liable to pay Mr Tognini compensation for his condition of lumbar spondylosis.
To determine this broad issue the Tribunal will need to determine:
a) the date of onset of Mr Tognini’s lumbar spondylosis (importantly, was it pre or post 13 April 2007 – the date that relevant provisions of the SRC Act were amended in relation to the degree of contribution required for a successful claim pursuant to section 14 of the SRC Act); and
b) whether Mr Tognini’s military service contributed to the claimed condition to a “material” or “significant” degree (depending on whether the date of onset was pre or post the 13 April 2007 legislative amendments to the SRC Act).
LEGISLATION
At all material times, section 14 of the SRC Act 1988, entitled “Compensation for Injuries” provides:
(1)Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
Prior to 2007, “injury” was defined in s 4(1) of the SRC Act as:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of or in the course of the employee’s employment), being an aggravation that arose out of, or in the course of, that employment;
Post 2007, “injury” was defined in s 5A of the SRC Act as:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), that is an aggravation that arose out of, or in the course of, that employment …
Prior to 2007, “disease” was defined in s 4(1) to mean:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee’s employment by the Commonwealth ...
Post 2007, “disease” was defined in section 5B of the SRC Act as follows:
(a) an ailment suffered by an employee; or
(b) an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a) the duration of the employment;
(b) the nature of, and particular tasks involved in, the employment;
(c) any predisposition of the employee to the ailment or aggravation;
(d) any activities of the employee not related to the employment;
(e) any other matters affecting the employee's health.
This subsection does not limit the matters that may be taken into account.
At all material times “ailment” has been and is defined in the SRC Act as “any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development)”.
The parties in this matter agreed that Mr Tognini does not suffer from “an injury (other than a disease)” as that term is used in the SRC Act. Nor are issues of aggravation relevant to this matter.
It was agreed that Mr Tognini suffers from “an ailment” as that term is used in the SRC Act. Mr Tognini suffers from a medical condition: lumbar spondylosis.
In these circumstances, the question the Tribunal needs to determine is whether this ailment (lumbar spondylosis) was contributed to by Mr Tognini’s military employment. If this is found to be the case, then Mr Tognini will be found to have “a disease” as that term is defined in the SRC Act and the Commission will be liable for compensation payments under section 14 of the SRC Act.
It is in this regard that the distinction between ‘material’ and ‘significant’ in relation to contribution is important. The distinction arises as consequence of amendments to the SRC Act by item 11 of Schedule 1 to the Safety, Rehabilitation and Compensation and Other Legislation Amendment Act 2007 (number 54/2007). Sections 5A and 5B introduced by that Act replaced the definition of ‘injury’ and ‘disease’ in section 4 (1) of the SRC Act commencing on 13 April 2007. The effect of the amendment in the present instance is to require any liability in respect of a ‘disease’ that occurred after that date to be shown to be contributed to to a significant degree. In relation to a disease that arose prior to the date, contribution to a material degree is required to establish liability.
Section 7(4) of the SRC Act outlines when a disease is deemed to have arisen for the purposes of determining liability. It provides:
(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
a.the employee first sought medical treatment for the disease, or aggravation; or
b.the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
For the reasons outlined further below, the Tribunal concludes that, on the evidence, Mr Tognini did not seek medical treatment for his condition until 2010. As such, the post 2007 provisions apply and Mr Tognini cannot receive compensation unless the Tribunal concludes that his military employment (and specifically the fall that occurred during the course of the employment) contributed to “a significant degree” to his lumbar spondylosis condition.
EVIDENCE
General
This matter was heard in Perth on 24 November 2016.
Mr Tognini was assisted at the hearing of this matter by Mr Carroll. Mr Carroll is not legally trained but has considerable experience in relation to Veterans’ Affairs matters. The Commission was represented by Mr Hawker. The Tribunal thanks both Mr Carroll and Mr Hawker for their invaluable assistance both prior to and during the hearing of this matter.
The evidence before the Tribunal consisted of:
· A 177 page set of T-documents (T1 to T41);
· A Witness Statement from Mr Tognini dated 19 September 2016;
· A medical report prepared by PE Bannan, Consultant Neurosurgeon, dated 29 December 2015;
· A Summary of Medical Costs from Mr Tognini;
· A letter from Dr Jeff Veling (Mr Tognini’s GP) dated 18 July 2011, addressed to Centrelink;
· A bundle of medical/file notes and documents from Sir Charles Gairdner Hospital dated 12.5.2010;
· A further bundle of medical/file notes and documents from Sir Charles Gairdner Hospital dated 16.5.2010;
· Letter from Dr Gig Pisano, Orthopaedic Surgeon, to Dr Veling, dated 14 October 2015;
· A letter from Andrew Lange, Physiotherapist, dated 18 May 2016;
· Herdsman Medical Centre Patient Health Summary Notes dated June 1999 to May 2016; and
· “Briefing letter” to Dr Gig Pisano from Dr Veling dated 8 October 2015;
During the hearing of this matter, the Tribunal raised concerns in relation to the medical evidence provided to the Tribunal (pursuant to a summons request) from the Herdsman Medical Centre. On his own evidence, Mr Tognini has been a patient with this medical practice since the 1970s. Despite that, the Herdsman Medical Centre only provided clinical notes/records for the period after 1999. To assist the Tribunal and Mr Tognini, Mr Hawker telephoned the Herdsman Medical Centre to query whether further medical notes existed. The Tribunal was advised as follows by Mr Hawker (transcript at page 67-69):
MR HAWKER: … we also followed the enquiries that were made with the medical centres. The prior one at 339 Cambridge Street, there is no longer a medical centre there.
DEPUTY PRESIDENT: Okay.
MR HAWKER: There are no records held there. And I was able to then get onto Herdsman Medical Centre and speak directly with the practice manager Dianne, and she has given me some information to clarify the situation with the records.
DEPUTY PRESIDENT: Yes.
MR HAWKER: And so what she has explained is Dr Wilson and Dr Veling, they - they had a practice and they joined with Herdsman Medical Centre in 2008, and they only need to keep the records for seven years, but from 2008 they started scanning everything in, so she was able to readily check if there was any other available records that were available in prior to 1999, and she checked that and said that there aren’t any other records available prior to that date.
DEPUTY PRESIDENT: Okay.
MR HAWKER: And I asked if there’s any other enquiries or other medical centres that may hold it if they don’t, and she said no.
DEPUTY PRESIDENT: Okay.
MR HAWKER: Yes. And so Dianne for - the practice manager was who that information was from.
DEPUTY PRESIDENT: That’s fine. And so the records we have date from 1999, correct?
MR HAWKER: Yes.
DEPUTY PRESIDENT: And you have reviewed those medical records.
MR HAWKER: Yes.
DEPUTY PRESIDENT: And your conclusion is that there is really no discussion of any diagnosis per se until 2010.
MR HAWKER: For the lower back, yes. Yes.
MR CARROLL: The …. patient health summary refers to Mr Tognini’s active past history of hypertension and diabetes, ‘94 and ‘98, so they obviously were treating him from ‘94.
DEPUTY PRESIDENT: Okay.
MR HAWKER: Yes, and that’s not inconsistent with what the information was at (indistinct) availability is.
MR CARROLL: No (indistinct). Yes. Who - did you say they only had to keep the records for seven years?
MR HAWKER: Yes. Yes.
MR CARROLL: So - - -
DEPUTY PRESIDENT: All right. Look, I think we have done our best, gentlemen, and thank you for your cooperation. I just always get concerned when the medical records might be floating somewhere.
MR CARROLL: Yes.
DEPUTY PRESIDENT: But I do think we have made as many enquiries as we can, and I will certainly have a look at all other evidence….
The Tribunal is satisfied that every effort was made to provide access to all medical records relevant to this matter and that no further relevant evidence exists.
The Tribunal has reviewed all of the material before it and highlights the following relevant materials.
Witness Statement of Bruno Tognini dated 19 September 2016
Mr Tognini provided a detailed witness statement which, relevantly, read as follows:
1.In 1967 I fell off training ropes between two trees in the Army from a height of 15 feet. I landed on my shoulders and back resulting in pain to both areas.
2.In the 1970’s I visited my then General Practitioner, Dr Frank Wilson, to assess my back and neck conditions. Dr Wilson subsequently died.
3.In 1999 I visited my new General Practitioner, Dr Veling, who prescribed treatment for my back condition in the form of medication, physiotherapy, radiology and spinal injections.
4.I have also been to a Chiropractor and received hydrotherapy and acupuncture treatment on the advice of my Physiotherapist.
5.I have regular ongoing physiotherapy, 2-3 times per week, to alleviate pain in my back and neck. I constantly take strong pain medication.
6.Throughout my life I have worked in sedentary occupations with no pressure on my back and played several sports, such as tennis and squash, with no back injuries sustained.
7.I attempted to get an Orthopaedic Specialist to examine me and comment on Dr Cairn’s report however they all declined.
8.My General Practitioner, Dr Veling, is of the opinion that my lumbar spondylosis is contributed to by my fall in the Army.
9.I visited a Neurosurgeon who is also of the opinion that my lumbar spondylosis has been contributed to by my fall in the Army.
10.Dr Cairn’s opinion was the fall in the Army caused my Cervical Spondylosis and this condition was accepted by DVA for liability. Dr Cairn’s opinion is that my Lumbar Spondylosis is due to Constitutional Developmental and Degenerative Changes.
11.Dr Cairn’s opinion is that my fall in the Army contributed 0% to the development of my Lumbar Spondylosis. He opines my Lumbar Spondylosis is caused by Constitutional Developmental and Degenerative Changes. This is an obscure term with non-specific reference to causation and is unknown by Dr Veling and some other Orthopaedic Surgeons in the medical profession.
12.I believe that my fall in the Army was the catalyst for the development of my Lumbar Spondylosis that manifested in 2004.
Medical Evidence
As noted further below, there was very little medical evidence before the Tribunal that referred specifically to Mr Tognini’s lower back pain and resulting medical condition. That which was available is highlighted below.
Extract from Emergency Registration record of Sir Charles Gairdner Hospital dated 12 May 2010 (R4)
Relevantly, this extract reads as follows:
C/o low back pain, (L) paraspinal area (lumbar) for 3 d. Woke up with it 3 d ago
·Trauma
·L, of CA
·Osteoperosis
·Bladder/bowel sphincter issues
·Saddle area anaesthesia
·Radicular lower limb pain (only pain in (L) buttock/thigh area
·No (R ) leg pain at present
Similar to back pain that he has experienced many times before over the years. When ??, he usually gets back spasm causing him to posture to one side.
Extract from Emergency Registration record of Sir Charles Gairdner Hospital dated 16 May 2010 (R5)
This extract reads as follows:
L/?? Tense lower back muscles
No focal tenderness
No pain on movements
No swelling
No tingling/numbness
Letter from Dr Veling to Centrelink dated 18 July 2011 (R3)
This letter reads as follows:
Bruno has had a large amount of medical problems which have been of a serious nature since May 2010 and has not been able to work in any capacity since. The many issues preventing him from working have been heart related with hypertension and abnormal rhythm disturbances, uncontrolled diabetes, toe amputation due to vascular disease, chronic osteomyelitis in his foot, moderately severe liver insufficiency, memory problems due to werniches encephalopathy etc. etc.
Would you please consider allowing his o [sic] have access to the pension from May 2010 onwards, as he was not able to work in any way at all. Medical records can be produced from hospitals and specialists if required.
Past History:
Active:
Date Condition – Comment
30 May 1994 HYPERTENSION
24 September 1998 NIDDM
12 October 2006 Atrial Fibrillation
11 January 2007 HYPERCHOLESTEROLAEMIA
9 July 2010 Atrial Flutter
2 May 2011 Peripheral Vascular Disease
Report of Dr Anthony Cairns dated 16 April 2015 (T26 at 100)
Mr Tognini was referred by the Commission for a specialist assessment with Orthopaedic Surgeon Mr Anthony Cairns on 26 March 2015.
Mr Cairns conducted an extensive review of the medical and historical evidence available and confirmed Mr Tognini’s medical condition as lumbar spondylosis. That evidence included:
• Copy of report CT lumbar spine 17 December 2014;
• Copy of report CT-guided lumbar epidural injection 15 January 2015;
• Copy of claim form, two pages, 17 February 2015;
• Copy of final medical board 16 January 1967, one page;
• Copy medical report 28 June 1967, three pages;
• Copy of medical examination record 20 June 1967;
• Copy injury history questionnaire 20 June 1967;
• Copy report of an injury or illness 8 March 1967, two pages;
• Copy attendance and treatment card one page;
• Copy sick report 20 February 1967 (neck injury).
Relevantly, Mr Cairns notes in his report that Mr Tognini provided background information when examined confirming that his injury occurred when he fell from a rope approximately 47 years ago and that Mr Tognini was of the view the onset of his low back pain was approximately 20 years ago.
Overall, Mr Cairns concludes that the contribution of Mr Tognini’s Australian Defence Force service to the causation or aggravation of the condition of lumbar spondylosis is 0%. He believes there to be other contributing factors which are constitutional, developmental or degenerative and these contributing factors are very significant (100%). Finally, he concludes that Mr Tognini’s condition had been acquired or developed after his discharge from the army.
The Tribunal notes the following information contained in Mr Cairns’ report:
HISTORY:
I note that Mr Tognini presented for assessment by myself on 19 August 2014, in relation to a claim for neck and shoulder injuries sustained in a fall on or about 17 February 1967 during his period of National Service. I refer to my report of 26 August 2014 arising from that assessment from “Occupation/Work Duties”, page 2 down to and including “Personal/Social History”, page 4 of that report with respect to those background details.
Mechanism of Alleged Injury/Sequence of Events:
Mr Tognini confirmed that as well as the injury sustained to his neck and shoulders in the fall when a rope which he was climbing broke, he also sustained injury to his low back (claim form dated 17 February 2015).
I note that in the claim form dated 17 February 2015, Mr Tognini asserts that he was immediately aware of low back injury at the time of the fall. Dr Veling reporting that the claimant first consulted him regarding his low back impairment on 16 December 2014, stating that the approximate date of onset of the injury or disease based on available notes was around May 2010.
Further, at paragraph “Current Status”, page 3 of my report of 26 August 2014, I have stated, inter alia, “he also advises that he has suffered from low back pain over the past 20 years, also not seeking specific treatment until commencing attendance with the chiropractor about ten years ago”.
When this background was discussed with Mr Tognini, he confirmed that the fall from the rope occurred approximately 47 years ago, the onset of his low back pain approximately 20 years ago.
He also advised that his neck impairment has worsened since the time of my assessment of that injury on 19 August 2014.
Bruno advises that on an unspecified date in 2010, he suffered an acute episode of low-back pain for which he was admitted to Hollywood Hospital where he remained for "a couple of weeks” during which he slowly recovered and was then discharged.
Subsequent Proqress/Specialist Management:
However, thereafter he has continued to experience low back pain, initially not such as to cause him to present to his local doctor. He self-treated with medications including Panadol, Panamax, and Nurofen until about September or October 2014 when symptoms began to increase.
He presented to Dr Veling and was referred for CT scan performed on 17 December 2014, and at review by Dr Veling was advised that his lower back is “ f—d(expletive)”!
He was referred for CT-guided lumbar epidural injection at the L2/L3 level, repeated at the L4/L5 level on or about 12 February 2015, from which he has derived some improvement.
Current Status:
Bruno describes low back pain below belt level radiating to right and left of the midline. It is described as constant though fluctuating in intensity, typically provoked by activities including walking, standing, and of note in the act of personal hygiene following defaecation. While walking the symptoms abate when he stops walking, and he has no low back aggravation when sitting, describing that as his most comfortable posture.
When provoked by walking pain radiates from the low back through both buttocks to the calf muscles of both legs, Bruno emphasising that his low back pain is much more severe than his leg pain. After stopping and resting, pain subsides and he is able to continue until provoked once again. He describes a symptom of “weakness” in his legs, no loss of sphincter control nor disturbance in saddle area sensation, and he is able to obtain and maintain an erection.
….
PHYSICAL EXAMINATION:
This pleasant man, whose appearance is consistent with his stated age and is unchanged as to that as previously described, updated his history in no overt distress, and without manifestation of exaggeration, embellishment or feigning of injury. He is of short, solid physique, somewhat slimmer than previously and possibly slightly fitter, height measured at 170 cm, weight 90 kg, a body mass index calculated as 30.5 kg/m2, just within obese range.
Back/Spine:
Inspected at rest in upright stance there is an increase in thoracic kyphotic curve resulting in a forward-thrust posture of the head and neck, and associated flattening of the lumbar lordotic curve.
Bruno confirmed the location of pain as across the upper sacral level, three small bruises in the midline overlying the lumbar levels consistent with the reported injections, and locally tender to firm pressure. Palpation confirmed loss of the lumbar lordotic curve, with a relative kyphosis extending from the thoracolumbar junction to the sacral level.
There was no paravertebral muscle spasm, and Trendelenburg’s sign was negative bilaterally. Active lumbosacral movements were estimated as to flexion 40° with no reversal of spinal rhythm on resuming up right stance, extension 0°, right and left lateral flexion to no more than 5° to 10°, rotation to no more than approximately 5°.
He ambulated with a normal gait and was able to climb on to the examination couch without difficulty.
Sitting straight leg raising was to 90° bilaterally and there was no neurologic abnormality apparent in either lower extremity, although deep tendon jerk responses were hypoactive, knee jerks elicited with reinforcement, ankle jerks absent.
Amputation of the toes of his left foot was noted, and there were widespread trophic changes throughout both feet and legs.
INVESTIGATIONS:
Reports of imaging investigations within the documentation provided included:
CT Scan Lumbosacral Spine of 17 December 2014, on referral by Dr Veling with clinical notes of, “bilateral sciatica and back pain”, reported by Dr Weerakkody as:
“Conclusion: Advanced degenerative changes are seen throughout the lumbar spine as described. This is associated with a varying degree of moderate to severe central canal narrowing at the L2/3, L3/4 and L4/5 levels. There is also severe reduction in neuroforaminal narrowing bilaterally at the L3/4 level where exiting nerve root compromise is highly likely. Other areas of considerable neuroforaminal narrowing with probable exiting nerve root compromise include the L4/5 and L5/S1 levels bilaterally. Widespread hypertrophic facet joint arthropathy also noted and this most affects the right L3/4 and bilateral L4/5 levels. Advanced bilateral sacroiliac joint degenerative changes are also noted”.
CT-guided lumbar epidural injection at L2/L3 level was described by Dr Hamlin on 15 January 2015.
SUMMARY AND ASSESSMENT:
In summary therefore, this 69.9 year-old claimant presents with history, clinical findings and reported imaging investigations consistent with multi-segmental lumbar intervertebral disc degeneration and related pathology, resulting in significant spinal stenosis extending from L2/3 to L5/S1 levels.
Therefore, in response to the questions within your referral of 18 March 2015, I have the following answers to offer:
SCHEDULE OF QUESTIONS
BRUNO TOGNINI File Number: TOG0007-01
Please note: Your answers should be on the balance of probability (not possibility) and be based on current mainstream medical opinion and medical/scientific research.
...
PART 1 DIAGNOSIS
Note: If there is more than one condition, please answer the following questions for each separate condition. Please use a separate sheet for additional conditions.
1.From what conditions does the employee suffer? Please specify the exact diagnosis using ICD-10 or DSM-IV codes and having regard to the definitions above, would you please classify each condition as a 'stand-alone condition’, a ‘sequela’, a ‘secondary condition’ or a ‘symptom’.
No Condition Diagnosis Definition ICD10/DSM-IV 1 Lumbar spondylosis Spinal stenosis Stand-alone M 47.0
M 48.0
Please describe the symptoms of each condition, ie.: back pain/lumbar spinal loss of range of motion with stiffness, etc.
1 Lower back pain and symptoms of spinal stenosis both lower extremities.
Please describe the functional impact of each condition, i.e.: difficulty with lifting heavy weights, seated in an armoured tank, etc.
1Limited mobility, general restriction on mobility and walking.
2.Does the employee continue to suffer from the condition(s)?
1Yes No (please advise when it resolved)
2Yes No (please advise when it resolved)
Yes.
3.When do you anticipate that the condition could resolve and when should a review of the condition(s) take place or is it a permanent condition?
Note:If the condition is not permanent because the condition has not been fully and adequately investigated and maximally treated, please indicate. Comment upon what needs to occur in terms of further investigation, management or specialist assessment for an opinion to be formed as to whether the condition is likely to be temporary or permanent. Please provide a timeframe for review after the above takes place.
1 Permanent.
PART 2 CAUSATION
Note: If there is more than one condition, please answer the following questions for each separate condition.
4.Was the condition(s) diagnosed at Question 1 caused by some feature or aspect of the employee’s military employment? Please indicate by placing a yes or no in each cell.
Condition Prior to 1 July 2004 On or After 1 July 2004 1. Lumbar Spondylosis No No 2. and/or aggravated, accelerated or caused to recur by some feature of aspect of the employee’s military employment? Please indicate by placing a yes or no in each cell.
Condition Prior to 1 July 2004 On or After 1 July 2004 1. Lumbar Spondylosis No No 2. 5.To what extent do you consider that service in the Australian Defence Force (ADF) contributed to the causation or to the aggravation, acceleration or recurrence of the condition? (Please place condition number against the relevant percentage)
Causation Aggravation/Acceleration/Recurrence
(a) 0% (a) 0%
(b) 1-9% (b) 1-9%
(c) 10-20% (c) 10-20%
(d) 21-50% (d) 21-50%
(e) greater than 50% (e) greater than 50%
a) 0% (a) 0%
6.How would you describe the extent of any such contribution? Tick no more than 3 answers)
nonetrivial negligible
very minorinsignificant unimportant
inconsequential incidental minor
moderatesignificant influential
substantially important major
principalno other cause
None
7.For the condition(s) claimed please describe how this injury or illness was caused, aggravated, accelerated or recurred as a result of ADF employment related factors. Please do so in terms of the underlying condition, its symptoms and functional impact?
1. Nil contribution.
8.Are the employment related aspects of the condition likely to continue indefinitely?
1. Yes No
2. Yes No
1. Not applicable.
9.If temporary, when did the ADF employment effects cease to exist or when are they likely to cease?
1.
2.
1. Not applicable,
10.Are there any other factors not related to the employee’s ADF employment that are relevant to the causation or aggravation of the condition and if so, please specify?
Yes. Constitutional, developmental and degenerative.
11.For each condition that there are other contributing factors please specify:
Condition 1 Condition 2 What the factor(s) is As per 10 above. Whether it causes, aggravates or continues the condition Causes. Was the factor(s)
(a) inherited, congenital or developmental;
(b) acquired or developed pre- enlistment;
(c) acquired or developed during military employment; or
(d) acquired or developed after military discharge?
(a) Developmental
(d) Acquired/developed after military discharge
The extent of the contribution of the other factor(s) is:
(a) 0% (none)
(b) 1-9% (less than minimal)
(c) 10-20% (minimal)
(d) 21-50% (significant)
(e) >than 50% (very significant).
(e) 100% (very significant)
PART 3 TREATMENT
12.What treatment (including surgery) has the claimant received so far for the condition(s)? If possible, please specify dates of treatment and the treatment provider’s name?
Condition No Type of Treatment Date(s) of treatment Provider 1 Physiotherapy Not known Unknown 2 Details would be available from the client.
13.Do you believe that the treatment undertaken to date has been the most appropriate for the condition(s)? Comment on the nature and effectiveness of treatments in terms of condition, symptoms and function. Can you advise of any future treatments which could be beneficial for the claimant to improve the condition, symptoms or functioning?
1.Possibly. Not likely to influence course of condition. May present for spinal decompression surgery if general health/medical status allowed.
For each condition please advise if the treatment (including surgery) has had no effect on the condition(s), worsened the condition(s), improved the condition(s) and/or caused a subsequent condition to manifest? Please provide details.
1.No affect.
14.Is it medically reasonable and feasible for the employee to pursue a medical and/or vocational rehabilitation program? Please describe any restrictions that may impact on the assessment of suitability of a vocational rehabilitation program.
Probably not feasible due to general health status.
15.Are there any other factors which you consider relevant to the assessment of this client?
No.
Report of Mr Gig Pisano, Orthopaedic Surgeon, dated 14 October 2015 (R6)
Mr Tognini’s General Practitioner, Dr Jeff Veling, referred Mr Tognini to Orthopaedic Surgeon, Mr Gig Pisano, for review. Mr Pisano provided a very short report, which reads as follows:
I have seen Bruno today. I note past history of pacemaker application 12 months ago, noninsulin dependent diabetes, hypertension and gout, all of which he is on treatment for.
He is currently retired.
History: He has enquired about support, for re-engagement or appeal for reassessment of a DVA assessment for low back status. He has had an injury circumstance in 1967 and left the Armed forces not long later. He has not returned to the Armed Forces since.
I note he has had a recent assessment for cervical spine and lumbar spine. I believe the cervical spine condition was accepted but the lumbar spine condition was rejected.
I have advised Bruno that should he consider re-opening his file or appeal on the lumbar spine condition, he would be reasonably required to deliver information about his lumbar spine injury in 1967 ? hospital admission, medical notes or similar from that time.
It may be a big call to jump a near 50-year gap to current without substantive evidence of injury circumstances upon the occasion (1967).
Report of Mr Paul Bannan, Consultant Neurosurgeon, dated 29 December 2015 (A3)
Mr Tognini then saw Consultant Neurosurgeon, Mr Paul Bannan, who provided the following opinion:
Bruno has come for an opinion about the cause of his back pain.
He had a fall in 1967 onto his bottom and had back pain for a week and was in hospital for a week. At the time, the DVA accepted his neck as an injury but has never accepted his back as being a DVA injury.
His current CT scan shows advanced degenerative changes at L2/3, 3/4 and 4/5 with facet joint changes in the sacroiliac joints. These are age related changes.
The fall in 1967 was 38 years ago. There is not enough evidence either way - there is no CT scan from 1967 and there are no x-rays - to say whether or not this man suffered a back injury. If he was in hospital with back pain for a week, historically he did suffer a back injury and I do not think that one can categorically say no.
I would say on the balance of probabilities that he did suffer a back injury with his fall in 1967, but there is no x-ray to confirm this. He may have had a fractured coccyx or some other injury that caused him to go to hospital.
There is nothing surgical that can help his back pain. I hope this helps with his case but I do not believe a categorical denial of liability is appropriate given the history.
Letter from Dr Jeff Veling dated 8 September 2015 (T37 at 154)
Mr Tognini’s legal representatives sent a letter to Mr Tognini with a list of questions they wanted answered by his General Practitioner, Dr Veling. Dr Veling responded as follows:
1. Probability (In Percentage Terms) of the fall and resulting back injury sustained in the Army in 1967 causing the manifestation of Lumbar Spondylosis in 2004
I do not know how to do percentages but age and previous injury are probably playing an equal part
2. Definition of Constitutional Development Degenerative Change.
I have never heard of this term
3. Most likely causes of Lumbar Spondylosis in society. Are they predominantly linked to genetics, accidents or occupation such as brick laying where there is a constant strain on the back.
Commonest cause is ageing and previous injury will accelerate it. More likely to happen in repetitive lumbar use in labouring or bending occupations
4. Causation of Spinal Stenosis
Generally ageing but injury can worsen it and occupation could contribute
5. Causation of acute back pain requiring hospitalisation in Hollywood Hospital for 3 weeks in 2010
I know nothing about this nor have anything in the notes
Letter from Life Ready Physiotherapy dated 18 May 2016 (R7)
Relevantly, this letter from Mr Tognini’s physiotherapist states:
Bruno Tognini has attended Life Ready Physio Inglewood and has been managed by Andrew Lange and Caitlin Thorn in a collaborative effort since the 5th September 2014. Since his initial assessment Bruno has complained of chronic lumbar spine pain worse on his right side. Bruno claims that an incident in 1967 was where his lumbar spine pain comes from. Due to only treating Bruno over the recent period I am not able to say that an incident that happened that long ago definitively contributed to the current pain that Bruno experiences.
The current pain that Bruno has in his lumbar spine we would diagnose as chronic non-specific lumbar spine pain with a hypomobility classification. His current symptoms are partly mechanical in nature from his spondylosis and degenerative changes and partly centrally driven changes which occur with chronic pain. Bruno's exacerbations of his pain are most likely occurring due to a poor loading pattern on his right side during gait due to the injuries to his foot.
Throughout we have attempted different treatment strategies to help improve Bumo's pain in his lower back. We have tried manual therapy and soft tissue releases which Bruno claims to be most beneficial in helping to decrease his pain. We have also strongly encouraged exercise based rehabilitation and treatment for Bruno in the form of Hydrotherapy and Gym based exercise. Although he has attempted these very shortly, Bruno refused to continue with these treatments as he did not see any short term improvement in his pain. He reports that he finds greater improvements in symptoms from manual therapy based treatment. It is our goal to decrease the frequency of these treatment sessions however due to his current co-morbidities and prolonged hospital admissions, frequent manual therapy has been most effective in managing his current condition.
It is noteworthy that his cervical injury which occurred during the same incident in 1967 is currently asymptomatic
Prior Decisions
Prior to hearing this matter, Mr Tognini’s matter was heard by the Department of Veterans’ Affairs on 28 April 2015. A decision of that date was then appealed to Department of Veterans’ Affairs, who handed down a decision denying liability on 4 December 2015. These decisions provide the Tribunal with an accurate overview of the medical evidence available and, as such, are highlighted below where relevant.
Decision of Department of Veterans’ Affairs dated 28 April 2015 (T29 at 123)
Relevantly, this decision provides as follows:
In making this decision I have considered the contention you have provided on your claim form, the D2049 - Injury or disease details sheet dated 17th February 2015 completed by Dr Veling, CT results dated 17th December 2014 and the report dated 16th April 2015.
DECISION
I determine that the claim is disallowed.
REASONS FOR DECISION
You contend the following as to how the injury occurred which has now led to your lumbar spondylosis, "Rope failed and I fell 20 feet to the ground and injured my cervical spine and neck (accepted disabilities). As well as my lumbar spine which has now become very sore."
On the D2049 - Injury or disease details sheet dated 17th February 2015 provided with the claim your treating GP Dr Jeff Veling notes the diagnosis as lumbar spondylosis and the basis for diagnosis is x-rays
On the results dated 17th December 2014 it is noted there are advanced degenerative changes seen throughout the lumbar spine.
You were referred for specialist assessment with consultant orthopaedic surgeon Mr Anthony Cairns of MLCOA on 26th March 2015.
In his report dated 16th April 2015 Mr Cairns opines that the diagnosis is confirmed as lumbar spondylosis.
Mr Cairns notes in his report that you provided background information at this examination confirming that your injury occurred when you fell from a rope approximately 47 years ago and the onset of your low back pain was approximately 20 years ago.
Mr Cairns opines that the contribution of your Australian Defence Force service to the causation or aggravation of the condition of lumbar spondylosis is 0%.
Mr Cairns opines that there are other contributing factors which are constitutional, developmental or degenerative and these contributing factors are very significant (100%).
He opines that your condition has been acquired/developed after military discharge.
Decision of Department of Veterans’ Affairs dated 4 December 2015 (T2 at 7)
This decision reads as follows:
DECISION
It is my decision to affirm the determination dated 28 April 2015.
REASONS
I have examined all the evidence available to me and I have taken note of the reasons put forward in your request for reconsideration, namely that you disagree with the opinion of Dr Cairns and believe that your fall in 1967 has contributed to the development of your lumbar spondylosis condition.
By way of background, I note that you served in the Royal Australian Army between 1965 and 1967.
I note that liability has previously been accepted for the following conditions as a result of a fall from ropes on 17 February 1967:
·Musculoliagmentous injury to the neck.
·Cervical spondylosis
On the 17 February 2015 you submitted a claim for lumbar spondylosis/degenerative disease as a result of the fall that you suffered in 1967.
To assist with the investigation of your claim arrangement [sic] were made for you to be examined by Dr Anthony Cairns, Consultant Orthopaedic Surgeon on the 26 March 2015.
In his subsequent report dated 16 April 2015 Dr Cairns noted:
“When this background was discussed with Mr Tognini, he confirmed that the fall from the rope occurred approximately 47 years ago, the onset of his low back [sic] approximately 20 years ago.”
In considering the contribution of your military service to your lumbar spondylosis condition Dr Cairns stated that there was nil contribution from you [sic] military service and that this condition was a constitutional, developmental and degenerative condition.
You have requested a review of this determination, with your request for review you have provided a letter from Dr Jeff Veling, General Practitioner dated 8 September 2015 in which he has stated:
“I do not know how to do percentages but age and previous injury are probably playing an equal part”.
Dr Veling does not state if he has reviewed the report of Dr Cairns, nor provide any reasons for disagreeing with Dr Cairns’ opinion.
On review of your file I have noted the following:
• Report of an injury or illness dated 8 March 1967 states:
“While on exercise with 3CCS at Cam Cable I was asked to test the ropes for tightness. I climbed the ropes between the two trees, the ropes snapped and I fell about fifteen (sic) feet on my shoulders. This occurs or (sic) approximately 0830 am”.
• Final Medical Board dated 29/06/1965 stated:
“Back Injury. Perth 1961”
“20/02/1967 [sic] Injury to neck”
•Commonwealth Employees’ Compensation Act 1930-67 claim information dated 21 May 1968:
“It is true that I suffered a back injury in 1963 at the bottom left side of my back. It did not require an x-ray and did not bother me during National Service Training in which I did a lot of strenuous exercise involving my back.”
·Dr Anthony Cairns report dated 26/08/2014:
“Mr Tognini advised that while participating in an exercise at Kunungra Army Base on 17 February 1967, and negotiating a rope, he fell an alleged 15 feet (the documentation suggests 7 feet). Notwithstanding, he landed on his upper back, shoulders and neck, and suffered injury to the neck and shoulder region.”
·Injury Disease Details Sheet completed by Dr Jeff Veling dated 17/02/2015 at the question please advise the approximate dated of onset of the injury or disease based on available noted: “around May 2010”.
By letter dated 22 September 2015 it was requested that if you did not agree with the opinion of Dr Cairns then specialist medical opinion to counter his opinion was required. By email dated 3 December 2015 you [sic] advocate Mr Steve Carroll advised that no further medical evidence would be provided and requested that your review be completed on the basis of the existing evidence.
I note that the only specialist medical opinion on file is that of Dr Anthony Cairns who has stated in his opinion that your lumbar spondylosis is not related to your military service.
This is based on the lack of evidence of issues with your lumbar spine at the time of your fall in 1967 and your report that you first experienced low back pain 20 years following this incident.
Whilst I have noted Dr Veling’s opinion that previous injury and age are probably playing an equal part to your condition, as Dr Veling has not provided any information in relation to any specific injury or provided any justification for this statement, I have preferred the opinion of Dr Cairns to Dr Veling based on Dr Cairns taking into consideration your full medical history when considering the causation of your condition.
Consideration
For liability to be accepted for your lumbar spondylosis, I must be satisfied, on the balance of probabilities, that you suffer from this condition and that this condition was contributed to, to a material degree by your military employment.
Based on the opinion of Dr Cairns I am not satisfied that you suffer from lumbar spondylosis.
After carefully reviewing the available evidence I am not satisfied, on the balance of probabilities, that the available evidence supports a conclusion that your military employment contributed to the onset of your lumbar spondylosis to a material degree.
I have therefore affirmed the determination under review.
DISCUSSION
The Tribunal is required to determine the date that Mr Tognini first sought medical treatment for his condition of lumbar spondylosis. This is relevant as it will dictate whether the Tribunal is required to determine whether Mr Tognini’s military service contributed “materially” or “significantly” to his condition.
On the evidence before it the Tribunal finds that Mr Tognini did not seek medical treatment for his medical condition until 2010 at the earliest. The medical records before the Tribunal make no mention of lower back pain (ultimately diagnosed as lumbar spondylosis) until 2010. In that regard, the Tribunal notes the handwritten notes from Sir Charles Gairdner Hospital dated 12 May 2010 and 16 May 2010. The Tribunal also notes Dr Veling’s comments of 18 July 2011 that Mr Tognini has had “a large amount of medical problems which have been of a serious nature since May 2010 and has not been able to work in any capacity since” (R3). The Tribunal also notes that on the Injury Disease Details Sheet completed by Dr Jeff Veling and dated 17/02/2015, in response to the question “please advise the approximate dated of onset of the injury or disease”, Dr Veling responded: “around May 2010” (T22 at 87). This timeline was also confirmed in the written report of Report of Dr Anthony Cairns dated 16 April 2015 (T26).
In oral evidence before the Tribunal, Mr Tognini indicated that he discussed his injury with his doctors long before 2010. He also indicated to Mr Cairns when examined by him that he had had lower back pain for many years. Under cross examination, Mr Tognini stated that his lower back pain started “20 years ago”.
Unfortunately, there is no medical evidence to support Mr Tognini’s version of events. Further, the Tribunal notes that, when examined and cross examined, Mr Tognini struggled with his memory when recalling past events. In that regard, Mr Carroll for Mr Tognini pointed out to the Tribunal that Mr Tognini’s own doctor (Dr Veling) has advised that Mr Tognini has “memory problems due to ‘werniches enceplopathy’” (R3). It was evident to the Tribunal during the hearing of this matter that Mr Tognini struggled with the chronology and details of his medical history (see: transcript at pages 50-52).
While the Tribunal found Mr Tognini to be an entirely honest witness, it is clear that in relation to the history of his relevant medical condition, his version of events are unclear and indeed contradicted by the medical evidence available (even, notably, from his general practitioner Dr Veling). His evidence is thus unreliable in relation to the date he first sought medical treatment for his medical condition of lumbar spondylosis.
In relation to the date Mr Tognini first sought medical treatment for his lower back condition (ultimately diagnosed as lumbar spondylosis) the Tribunal prefers the evidence of Dr Veling and the other medical records before the Tribunal.
Accordingly, the Tribunal finds that for the purpose of section 7(4) of the SRC Act, Mr Tognini did not seek medical attention in relation to his claimed condition until May 2010.
In the circumstances, the SRC Act as it reads post the 2007 amendments (outlined above) applies.
As such, the question to be determined by this Tribunal is whether Mr Tognini’s ailment (lumbar spondylosis) was contributed to a significant degree by his employment with the military. If this is found to be the case, then Mr Tognini will be found to have suffered an injury as that term is defined in the SRC Act.
Overall, the Tribunal must be satisfied on the balance of probabilities that contribution by Mr Tognini’s employment with the military was to a significant degree. This assessment should not be left in the area of mere possibility or conjecture. Further, whether his employment contributed to a significant degree is a question of fact to be decided by the Tribunal in each case.
In relation to the term “significant degree”, the Tribunal notes the decision in Su v Comcare [2011] AATA 934, wherein the requirement of contribution to a significant degree was expressed as follows:
When determining whether any contribution of the employment is of ‘a significant degree’, matters that may be taken into account are set out in section 5B(2). The assessment of causal factors that contribute to a disease is not simply relativistic. The threshold question for the purposes of the Act is whether the employment contributes to ‘a significant degree’ ‘that is substantially more than material’. This is the “evaluative threshold below which a causal connection may be disregarded”. If the contribution is to a significant degree, it is beside the point that one factor contributes to a greater extent than another. Nor does it matter that factors outside the frame of employment also contribute to a significant degree. The Act does not require employment to be the sole, proximate or dominant cause of an injury.
In relation to this issue, the Commission contrasted the two medical reports of Dr Veling and Dr Cairns and argued as follows in its Statement of Facts, Issues and Contentions:
4.4The evidence of Dr Veling is that ageing is the most common cause of lumbar spondylosis and that a previous injury would accelerate the condition. The respondent contends that this report does no more than give a general comment about possible causes of lumbar spondylosis and does not establish, on the balance of probabilities, that there is any connection between the claimed condition and the applicant’s service.
4.5In contrast, Dr Cairns considered the applicant’s specific circumstances and the injury reported by the applicant and came to a conclusion that the fall which the applicant had in 1967 made no contribution to the development of the claimed condition. The respondent contends that the evidence of Dr Cairns should be preferred over that of Dr Veling as Dr Cairns is a specialist who has provided detailed reasons for his opinions.
The Tribunal can only rely on the evidence before it. The Tribunal is satisfied that concerted efforts were made to ensure that all available medical evidence was before the Tribunal. The Tribunal also notes Mr Tognini’s considerable frustration with what he claims to be a refusal on the part of numerous medical specialists in Perth to respond to Dr Cairns’ report. Unfortunately, as sympathetic as the Tribunal is to the concerns raised, there is nothing the Tribunal can do to assist him in that regard.
Of the medical evidence before it, Mr Cairns has provided the most detailed overview of Mr Tognini’s medical condition based on his interview with Mr Tognini and by reference to the available medical reports and history. In effect, Mr Cairns concludes that because of the nature of lumbar spondylosis as a disease and the nature of what happened to Mr Tognini in 1967 when he fell, there is absolutely no connection between that accident and the degenerative progression of the disease.
Mr Cairns appeared as a witness before the Tribunal. He struck the Tribunal as professional, reasoned and, importantly, entirely objective in his assessment of Mr Tognini’s medical history.
During the course of the hearing, Mr Tognini demonstrated for Mr Cairns’ benefit the nature of his fall in 1967 and why, he believes, this has caused his lumbar spondylosis. The Tribunal notes the following conversation in that regard (transcript at pages 44 – 47):
MR CARROLL: Well, I suppose what I’m looking for is extra comments or some clear explanation of - in the event that you - you have a major fall in the army on your shoulders/neck/back and you don’t have another fall in the next 50 years or so, and you have sedentary occupations and you play sport, to have a zero attribution towards the manifestation of lumbar spondylosis is - is difficult to understand. So I’m just looking for why you would categorically say from your examination why zero per cent was attributable to service and 100 per cent is virtually attributable to non-service, which is age, et cetera, and what you said before about gout and diabetes?
[MR CAIRNS]: Okay. I - I think I understand the question. The answer is that in a situation where someone is developing chronic low back pain from degeneration, age, gout, whatever the factors might be, then at some point in time that back pain is going to develop. In other words, one day you have got it -haven’t got it, the next day you have. So that happens at a point in time. So when you’re assessing in this particular instance what the possible background causation of the pain with which he presents, then if the incident in - during national service was of significance, in other words, it caused a permanent structural change in the person’s back, then there would not be a gap of 20 years before symptoms from that problem began to manifest. Do you follow?
[MR CARROLL]: Yes
[MR CAIRNS]: Secondly, my understanding of the fall was - and accepting the gentleman’s report to me that it was 15 feet, I understood that the impact was across the neck and shoulder area, and as far as I could determine from the record, that was correct, and that was why he was assessed and treated at the time, and there was then a hiatus of some 20 years, as I understand it, before he began to develop back pain. In that instance, there is no temporal connection between the event and the subsequent development of the back pain, for which there are many other explanatory factors.
…
MR TOGNINI: Do you understand
...
MR TOGNINI: how the fall happened?
[MR CAIRNS]: You explained that to me.
[MR TOGNINI] Well, you tell me what I told you?
[MR CAIRNS]: You told me that you were ascending a rope during an
[MR CAIRNS] You were on a rope during an exercise. The rope broke and you fell to the ground, impacting on your upper back and neck and shoulders, and then continued on to land on the ground, as I recall.
[MR TOGNINI]: Well, if - if I was climbing a rope then I would be falling on my legs; would you agree with that? If the rope broke? No? It was a monkey rope, understand? Back like that, head up like that as you fall. The rope broke at this end, so the rope has a - an end like that, so went like - so what I’m saying is that’s how the bottom part - the initial and the hardest part was the neck, 91 kilo blow hitting like that?
[MR CAIRNS]: Yes.
[MR TOGNINI]: If the rope was - if both ends had have gone - broken, I would have fallen flat on my back. There probably wouldn’t have been any injury. But because of the fact that I was at an angle falling and falling on my neck - as you know, if you hit like that, that’s what happen. Your body hits first then the other part comes down. That was the second hit, not as hard as the back of the neck because that was the initial impact.
...
DEPUTY PRESIDENT: …. Dr Cairns, does that change your assessment?
[MR CAIRNS]: No, because essentially what Mr Tognini has just described to me is what he described to me at the beginning. As to whether he was climbing or the orientation of the rope or whatever, that’s in my opinion academic. What’s at issue is the way in which he landed and what parts of his body may have been injured as a consequence.
...
MR CARROLL: So Mr Tognini has advised us previously, before you attended, that he actually had pain in his lower back after service. So it could have happened ‘67. He went and saw his doctor about a range of issues including his back. So we have the cervical spondylosis, which I assume when you are of 100 per cent of the view that that was caused by the fall is because he showed immediate symptoms of pain, et cetera, and damage in the neck when - that was accepted by you. And you have said on this occasion, because he didn’t - if there was any structural damage to his lower part of his back, the pain and that would have become evident more than 20 years ago from today. So it’s conceivable that if Mr Tognini in - post-1967 actually had back pain - lower back pain and was taking strong painkillers, that that would suffice until such time as the - the lumbar spondylosis worsened or deteriorated to the extent that it has today. Is that reasonable?
[MR CAIRNS]: No.
[MR CARROLL]: No?
[MR CAIRNS]: Simply because you suggested that I attributed his cervical spondylosis to the fall, which I don’t.
[MR CARROLL]: Yes?
[MR CAIRNS]: What I accepted was that he suffered an injury to his neck in the fall.
[MR CARROLL]: Yes?
[MR CAIRNS]: My commentary and opinion regarding the lower back is based entirely upon what Mr Tognini told me himself, and that is there was a hiatus of some decades between the incident to which he attributes the back problem and the onset of symptoms with which he presented to some form of medical attendant. So that’s the history that I was given and that’s the history that I work with.
The Tribunal contrasts this evidence with that of the written reports provided by Dr Veling, Dr Bannan and Dr Pisano. Unfortunately, none of these medical experts were called as witnesses. This is unfortunate because the medical reports prepared by them are brief and not particularly informative.
Relevantly, Dr Veling was asked (T36 at 153) to comment on the “Probability (In Percentage Terms) of the fall and resulting back injury sustained in the Army in 1967 causing the manifestation of Lumbar Spondylosis in 2004”. His response (T37 at 154) was simply “I do not know how to do percentages but age and previous injury are probably playing an equal part”. When asked further to outline the “most likely causes of Lumbar Spondylosis in society. Are they predominantly linked to genetics, accidents or occupation such as brick laying where there is a constant strain on the back”, Dr Veling responded that the “commonest cause is ageing and previous injury will accelerate it. More likely to happen in repetitive lumbar use in labouring or bending occupations.”
These comments lack detail and are not helpful. Dr Veling lacks expertise in relation to Mr Tognini’s lumbar spondylosis and this is evident in the responses he provides. It is unclear what medical documents or history he has referenced and why he concludes as he does. His briefing notes to Dr Pisano are similarly uninstructive.
In relation to the opinion provided by Dr Pisano dated 14 October 2015, the Tribunal notes that this opinion simply confirms that Mr Tognini was injured in 1967 and that more medical evidence will be required if he is to succeed in his compensation claim. The letter does not address whether the fall in question is in any way related to his condition of lumbar spondylosis.
Finally, in relation to the medical report provided by Dr Bannan on 29 December 2015, Dr Bannan simply states:
The fall in 1967 was 38 years ago. There is not enough evidence either way - there is no CT scan from 1967 and there are no x-rays - to say whether or not this man suffered a back injury. If he was in hospital with back pain for a week, historically he did suffer a back injury and I do not think that one can categorically say no.
I would say on the balance of probabilities that he did suffer a back injury with his fall in 1967, but there is no x-ray to confirm this. He may have had a fractured coccyx or some other injury that caused him to go to hospital.
There is nothing surgical that can help his back pain. I hope this helps with his case but I do not believe a categorical denial of liability is appropriate given the history.
This opinion does not assist the Tribunal. It addresses little more than what is accepted –that Mr Tognini injured himself in 1967. It does not outline the nature of that injury (primarily, it would appear, because there is little evidence available to Dr Bannan to do so), and fails to provide any explanation as to why, precisely, Dr Bannan believes that a categorical denial of liability is inappropriate. Without more detail and analysis, Dr Bannan’s opinion is also of little assistance and little weight can be attached to it.
Overall, the Tribunal prefers the medical opinion of Mr Cairns. He concludes that there is no connection between Mr Tognini’s military service and his lumbar spondylosis. Rather, the condition is degenerative in nature and not linked to the 1967 fall injury sustained by Mr Tognini. On the available evidence, the Tribunal agrees.
In the circumstances, the Tribunal is unable to conclude on the balance of probabilities that Mr Tognini’s military service significantly contributed to his lumbar spondylosis condition. Further, had the Tribunal been required to make a determination of whether there was a “material contribution” (which the Tribunal did not do because it found on the available evidence that Mr Tognini did not seek medical assistance for his lower back condition until 2010) the Tribunal would nonetheless have found that no material contribution existed in the circumstances of this case. There is simply no credible evidence before the Tribunal that links to a material degree Mr Tognini’s current medical condition to his past military service. In that regard, the Tribunal again accepts Mr Cairns’ evidence that there is a 0% connection.
CONCLUSION
Overall, the Tribunal finds that Mr Tognini suffers from a recognised medical ailment or condition, that being lumbar spondylosis. Unfortunately for him, although he is clearly in pain and suffering from considerable discomfort, there is insufficient evidence upon which to conclude that Mr Tognini’s prior military service (and, in particular, the events surrounding a fall in 1967) significantly contributed to this ailment or condition.
As Mr Tognini cannot thus be found to be suffering “an injury” as that term is defined in the SRC Act, the Commission is not liable to him for compensation payment pursuant to section 14 of the SRC Act.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 81 (eighty-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall ......................[sgd]..................................................
Administrative Assistant
Dated 16 December 2016
Date of hearing 24 November 2016 Representative of the Applicant Mr S Carroll Counsel for the Respondent Mr M Hawker Representative of the Respondent Mr A Burgess Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
-
Administrative Law
-
Negligence & Tort
Legal Concepts
-
Appeal
-
Causation
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
0