Turner and Repatriation Commission

[2004] AATA 1374

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 1374

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No T2003/21

VETERANS' APPEALS  DIVISION		)
Re		PETER DAVID TURNER

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Associate Professor B W Davis AM (Part-time member)

Date21 December 2004

PlaceHobart

Decision The decision under review is affirmed.

[Sgd B W Davis]

Part-Time Member

CATCHWORDS

Veterans' Appeals - claimed disabilities - naval service - Statements of Principles - thoracic spondylosis - lumbar spondylosis - trauma - clinical onset - accident - Veterans' Review Board (VRB).

Legislation

Veterans' Entitlements Act 1986 - s120(4)

Statements of Principles (SoPs) for specific medical conditions issued by the Repatriation Medical Authority.

Authorities

Bushell v Repatriation Commission (1992) 109 ALR 30

Byrnes v Repatriation Commission (1993) 116 ALR 210

Deledio v Repatriation Commission (1998) FCA 391

Brand v Repatriation Commission (2004) FMCA 270

REASONS FOR DECISION

21 December 2004 Associate Professor B W Davis AM (Part-time member)   

Decision Under Review

1.           The decision under review is a decision made by a delegate of the Repatriation Commission dated 19 July 2002, subsequently affirmed by the Veterans’ Review Board (VRB) on 3 December 2002, to refuse disability pension for lumbar and thoracic spondylosis on grounds these conditions were not defence service caused.

Issue

2.           The issue is whether the applicant’s  claimed conditions or any of them were caused or contributed to by his service in the Royal Australian Navy between 13 July 1973 and 13 October 1977.

Standard of Proof

3.           As the applicant rendered eligible service and not operational service the standard of proof is that contained in s120(4) of the Act, namely on the balance of probabilities and to the reasonable satisfaction of the Tribunal.

Background

4.           The applicant, Peter David Turner, was born on 1 October 1957 and joined the Royal Australian Navy on 13 July 1973 when 16 years old.   He served four years of eligible service until 13 October 1977.

5.           Mr Turner claims to have suffered back trauma after slipping on a diving board while undergoing initial training at HMAS Leeuwin in late 1973.    He did not report this injury initially, but after back pain during his Christmas leave period when he felt “pins and needles”, reported to a doctor in January 1974.    The doctor did not attribute the “pins and needles” to the diving board incident.   Six months later he was transferred to HMAS Cerberus where he experienced more study and less exercise, nonetheless suffering a sore back which became worse after strenuous exercise.

6.           Mr Turner claims he first sought medical help for his back in the early 1980’s via his GP, Dr Krishna.     He saw Dr Jones, an orthopaedic specialist, in 1999 and is currently taking an analgesic called Trammel.   He needs to be very careful when bending and lifting.   He had seen a physio-therapist but was told such treatment was not useful, since it made his legs numb.

Initial Decisions

7.           On 4 October 2001, Mr Turner lodged a claim for disability pension claiming “arthritis of the upper and lower back and sciatica, arthritis of right shoulder, hearing loss and tinnitus, and severe shortage of breath”.    A delegate of the Repatriation Commission considered the claims under appropriate medical diagnosis and in respect of thoracic and lumbar spondylosis found there was no history of trauma to the thoracic or lumber spine and therefore rejected the claim.

8.           Mr Turner appealed to the VRB on 17 September 2002.    The case was heard in Hobart on 3 December 2002, in the presence of the applicant and his advocate Mr Bob Gibbs.

9.           The VRB considered all evidence anew, including medical information, but decided the injury sustained by the applicant during the diving board incident, did not meet the definition in Statements of Principles, of suffering a trauma to the thoracic or lumbar spine.     They therefore affirmed the decision under review.   The veteran then appealed to the Administrative Appeals Tribunal on 4 February 2003.

AAT Hearing

10.          The AAT hearing was conducted in Hobart on 24 November 2004.   Mr Turner was represented by Mr C Webster of counsel and the respondent (Repatriation Commission) by Mr M Castle.

11.          Peter David Turner was affirmed and responded to a number of questions put by counsel.   He explained the diving board incident and aftermath, claiming that even several years after leaving naval service he had experienced back pain and lack of sleep.   He had to be extremely careful about employment situations, since there were clear limits to his physical capability and activity.

12.          Under cross-examination by Mr Castle, Mr Turner admitted he did not report to medical authorities until January 1974, several weeks after the initial accident.    He had been undergoing survival training at the time and needed to continue until he qualified.   Given his back pain he later sought medical advice on other occasions, but on discharge from the Navy had not been recorded as having any significant disability.

13.          In amplification Mr Turner stated he had experienced a further injury during naval service, when a deck plate fell on him during bilge cleaning operations.

14.          Timothy Craig Turner was then affirmed and stated that his brother, Peter, had been unable to ride a mini motorcycle during the Christmas period December 1973 – January 1974, due to a back injury.   Peter spent most of the holiday period talking to relatives, since he found it painful to engage in physical activity.   Under cross-examination Timothy Turner said the bike involved was small and could not go fast over a floodplain, so Peter must have experienced pain sufficient to deter him from pursuing his normal holiday recreation.

15.          In closing submissions Mr Webster indicated there was clear evidence of an injury sustained by Mr Turner during Navy service and the disability was ongoing.   While the initial trauma may not have appeared severe, it was still evident some weeks later.    The relevant Statement of principles for spondylosis did not discuss severity, but tenderness and other disability symptoms.   The respondent had not produced any witnesses or refutations of Mr Turner’s evidence, thus the claims for lumbar and thoracic spondylosis disability should be accepted.

16.          Mr Castle, for the respondent, said that the Tribunal needed to be satisfied a significant trauma had occurred and any disability fully met the template specified in the Statement of Principles.    There was no evidence of lack of mobility during the remainder of Naval service and Dr Rossi had indicated he could not be precise about the claimed disability, given some symptoms had improved and others worsened following epidural and cervical block treatments carried out by Dr Michael Jackson at the applicant’s request.

Analysis

17.          The Tribunal is required to stand in the shoes of the original decision-maker, considering all evidence anew and noting any relevant statutory provisions or prior case determinations.

18.          The specified Statement of Principles (SoP) for thoracic spondylosis is Instrument No 49 of 2002, as amended by No 80 of 2002.    The SoP for lumbar is Instrument No 47 of 2002, as amended by No 78 of 2002.   The only factor raised by the applicant, Peter David Turner, is Factor 5(g) in each Statement, which states:

“(g)suffering a trauma to the thoracic spine within the 25 years immediately before the clinical onset of thoracic spondylosis; or….

(g)suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or …..”

19.          “Trauma to the lumbar spine” is defined as a discrete injury to the lumbar 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 lumbar spine.    These acute symptoms and signs must last for a period of 10 days following their onset save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:

(a)Immobilisation of the lumbar spine by splinting, or similar external agent; or

(b)Injection of corticosteroids or local anaesthetics into the lumbar spine; or

(c)Surgery to the lumbar spine.”

20.          The definition of “trauma of the thoracic spine” is identified to that for the lumbar region, except the word “thoracic” replaces “lumbar”.

21.          In evidence presented to the Tribunal the applicant claims he suffered a back injury from slipping on a diving board during initial naval training in late 1973.   He admits he went back to work the next day and did not report for medical examination until several weeks later (24 January 1974).   The examining officer does not appear to have related Mr Turner’s claimed “pins and needles in the upper thigh” to the diving board incident and did not prescribe treatment, as there was a full range of mobility and movement in his back.

22.          The applicant appears to have continued normal naval duties without complaint, until a further medical assessment was sought on 11 August 1975 where back pain, upper lumbar and lower thoracic were recorded, attributed to some heavy work and bending in bilge cleaning.   Back movement was full, but medication prescribed.    One further incident is noted on 1 May 1977, when he was admitted to naval hospital with acute alcoholism, head injury and local trauma.   Mr Turner believed he had been assaulted, but details were never discovered.   He returned to duty the next day and completed the remainder of service without further incident.   His discharge certificate, dated 13 October 1977 does not mention any disabilities.

23.          The veteran does not appear to have sought further medical assistance until the 1980’s, but here the information available to the Tribunal is incomplete, although indicating he ascribed his disabilities to injury in 1974-75 and assault in 1977.   A report dated 11 February 2000 by Dr Graeme Jones indicates the applicant claimed to have suffered joint symptoms for 15 years, possibly longer.   However there was a near full range of movement in all joints, while an imaging report dated 30 April 2001 indicated no thoracic protrusions or prolapses and the same for lumbar spine.   Dr Jones considered Mr Turner had only mild osteoarthritis, but suffered fibro myalgia, a pain syndrome which he regarded as due to a combination of shift work and lack of exercise in civilian employment.

24.          Dr K Krishna, Mr Turner’s treating GP, continues to believe his client’s current medical condition (November 2004) was caused by the fall in 1974, which aggravated a pre-existing spinal condition.   Dr Krishna does not provide any medical evidence to support his contention that a prior spinal problem existed.

25.          A report from Dr Umberto Rossi, consultant neurosurgeon, dated 31 October 2003, states that Mr Turner claimed the intensity of neck and back pain had significantly intensified during the past five years.   Dr Rossi expressed an opinion that the applicant’s neck symptoms had markedly improved following cervical blocks performed by Dr Michael Jackson, while lumbar symptoms had not improved following an epidural block.   Dr Rossi felt it could be argued the pool incident initiated or rendered clinically symptomatic his spinal degenerative disease.   He also considered it possible the cervical spondylosis was aggravated by the later assault head injury.

26.          The applicant relies upon Factor 5(g) of the relevant SoP’s for thoracic and lumbar spondylosis.   As earlier noted, this involves a discrete injury that causes the development of acute pain and tenderness within 24 hours, the symptoms must last for at least 10 days following onset, save for where medical intervention occurs.   While there is clear evidence Mr Turner suffered from an injury in late 1973, it did not prevent him returning to duties next day and he did not report the matter until several weeks later.    He then resumed duties for the remainder of his naval service; with only one further consultation for back pain and overnight hospitalisation for an unexplained assault.   This fails to meet the template for Factor 5(g), especially in the period immediately following the diving board incident.   Despite subsequent ongoing medical problems it did not prevent the applicant from continuing naval duties and pursuing civilian employment thereafter.

27.          The Tribunal has considered other factors in the SoPs for lumbar and thoracic spondylosis, but has not identified any relevant to Mr Turner’s case, given that he was not exposed to repeated lifting or carrying heavy weights, not flying high performance aircraft, not is there medical evidence of any major joint disorder prior to Naval service.

28.          Having considered all evidence anew, the Tribunal finds on the balance of probabilities and in accordance with s120(4) of the Act, that Mr Turner’s claimed disabilities are not service related.

Decision

29.          The decision under review is affirmed.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor B W Davis AM (Part-time member)

Signed: K L Miller (Administrative Assistant)       

Date/s of Hearing  24 November 2004
Date of Decision  21 December 2004
Counsel for the Applicant         Mr C Webster
Solicitor for the Applicant          Wallace, Wilkinson and Webster
Counsel for the Respondent     Mr M Castle
Solicitor for the Respondent     Department of Veterans' Affairs