Walker and Repatriation Commission
[2003] AATA 1097
•31 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1097
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2001/1011
VETERANS’ APPEALS DIVISION
Re: PAUL JAMES WALKER
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: M.J. Carstairs, Member
Date: 31 October 2003
Place: Melbourne
Decision:The Tribunal sets aside the decision under review insofar as it relates to lumbar and thoracic spondylosis and substitutes the decision that lumbar and thoracic spondylosis are defence‑caused, with effect from 17 February 1999. The Tribunal remits the matter to the respondent for assessment of the rate of pension.
In all other respects the Tribunal affirms the decision under review.
(sgd) M.J. Carstairs
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements ‑ lumbar and thoracic spondylosis ‑ osteoarthrosis ‑ whether defence‑caused
Veterans’ Entitlements Act 1986 ss70, 120(4), 120B
Law v Repatriation Commission (1980) 29 ALR 64
Repatriation Commission v Yates (1995) 57 FCR 241Repatriation Commission v Cornelius [2002] FCA 750
Telstra Corporation Ltdv Treloar (2000) 102 FCR 595
Repatriation Commission v Gorton (2001) 110 FCR 321
REASONS FOR DECISION
31 October 2003 M.J. Carstairs, Member
1. This is an application by Paul James Walker (the applicant) for review of a decision of the Veterans’ Review Board (VRB) dated 3 May 2001. The VRB varied the decision of a delegate of the Repatriation Commission (the respondent) dated 23 June 1999 to refuse a claim for disability pension for back pain and osteoarthrosis of the right ankle.
2. At the hearing of this matter on 24 April 2003 and 23 July 2003 Mr D. De Marchi, solicitor, represented the applicant and Mr G. Purcell of counsel represented the respondent.
3. The Tribunal received into evidence the documents lodged under s37 of the Administrative Appeals Tribunal Act 1975 (the T documents), nine exhibits (Exhibits A1‑A9) lodged by the applicant and thirteen exhibits (Exhibits R1‑R13) lodged by the respondent.
BACKGROUND
4. The applicant was born on 1 November 1968 and trained as a chef. In 1985 he underwent surgery for the reconstruction of his left knee. On 26 June 1986 he suffered multiple injuries, including damage to his left knee, both femurs and his right foot, in a motor vehicle accident. The applicant served in the Australian Army (the army) from 4 October 1989 to 17 February 1997, and this period constitutes defence service under the Veterans’ Entitlements Act 1986 (the Act). He was discharged as medically unfit for service in 1997.
5. During his army service, the applicant trained as a fitter armourer and then as a vehicle mechanic. He was a member of the Royal Australian Electrical and Mechanical Engineers Corps (RAEME). From 1992 to 1997, he worked as a motor mechanic at the Army School of Transport (the AST). The work included lifting medium to heavy tyres and vehicle parts. After his discharge he worked as a picture framer.
6. Shortly after joining the army, and following a route march, the applicant received treatment for a sore left knee. He aggravated this injury in 1990 and 1992. There was a recurrence of symptoms in his left knee in 1994, following another march.
7. In 1995 the respondent accepted the applicant’s osteoarthrosis of the left knee as defence‑caused. In a form signed by the applicant on 18 March 1999, and by his doctor on 13 May 1999, the applicant claimed compensation Act for back pain and the aggravation of a previous ankle injury. On 23 June 1999 a delegate of the respondent decided that the applicant had no diagnosed back condition, and that osteoarthrosis of the right ankle was not related to his service (T7). The VRB accepted that the applicant suffered from lumbar spondylosis and thoracic spondylosis, but was not satisfied that the material before it connected those conditions, or the ankle condition, with the applicant's service. On 10 August 2001 the applicant sought review by the Tribunal.
EVIDENCE
8. The applicant gave oral evidence that he suffered multiple fractures to both femurs, as well as fractures to his right talus and clavicle in the 1986 motor vehicle accident. As a result of the extensive injuries he was unable to work for eighteen months. He said that, when he applied to join the army, he disclosed all previous injuries, and was classified as fit to work anywhere. His fitness was later downgraded.
9. In his written statement dated 26 December 2002 (Exhibit A4), the applicant said that, after training as a fitter armourer and vehicle mechanic, he worked as a motor mechanic from 1992 to 1997 in the AST. In that role he was required to lift tyres, gearboxes and other car and truck parts. He estimated that he would have lifted 35kg on average, five times per day, totalling 175kg per day, so that over his seven years of service he would have lifted a total of 275,625kg.
10. The applicant said that he experienced no back pain prior to service. However, he experienced a sharp pain in his back when lifting truck tyres at Puckapunyal in 1992 and since then he has continued to suffer back pain. After the lifting incident in 1992, he said he took it easy that day and later went to a Regimental Aid Post. He was placed on light duties for the weekend, followed by work in Stores for a week. He said he recalled having trouble bending, crouching and rotating. He said the pain was severe enough for him to take Panadeine Forte. He said that it had initially been prescribed for knee pain, but he continued to take it to relieve back pain, until he was advised to cease taking it in 1996. Under cross‑examination, he agreed that his service medical records did not show any prescriptions for Panadeine Forte, but said that he obtained it privately. After the hearing the Tribunal requested the applicant's original service medical reports from the respondent. The Tribunal noted two reports (one dated 1 June 1994, T‑documents p139 and one dated 24 September 1994, now marked as exhibit R13) where the applicant was prescribed Panadeine Forte after surgery to his left knee.
11. The applicant confirmed his evidence to the VRB that he attended a chiropractor from 1995 onwards; and his wife, who worked as a masseuse for the chiropractor, massaged his back.
12. Under cross-examination, the applicant agreed that he had not mentioned back pain during the medical examination for his discharge from the RAAF. However, the service medical records of the discharge medical examination (T8) noted that the applicant had a back injury and suffered low back pain and a pars defect without slip. It was further noted that the applicant had difficulty climbing on and off Mack truck bonnets and that he could not carry webbing and a pack. In the record of his final Medical Board Examination, dated 29 January 1997 (T-documents p234) diagnosed disabilities were identified as chronic left knee pain, chronic right ankle pain and bilateral lumbar spondylosis with low back pain. The examining medical practitioner noted that the applicant had chiropractic treatment for low back pain for three to four years and had a fair range of movement with tenderness at L5/S1. His back was noted as abnormal.
13. The applicant said that when he was undertaking basic training after enlistment he had trouble with his left knee but downplayed it, as he did not want to be discharged. He said that because of the soreness in his left knee, he started limping and favouring his left knee, and this put additional pressure on his right ankle. The applicant agreed under cross-examination that he could not recall a limp being referred to in medical reports, but he pointed out that a discrepancy in leg length had been noted by his podiatrist during his service. He also said that stamping his right foot during drill or jumping down from trucks caused further injury to his right ankle. The applicant said that he saw a podiatrist for his right ankle and had arthroscopic surgery to remove bony spurs in 1994. In a report dated 5 February 1996, when the applicant was referred to a physiotherapist for injury to his left ankle, the previous surgery to the right ankle was noted and it was recorded that there was no problem with the right leg (T documents p205). The applicant is recorded as reporting a family history of bony spurs in the feet. It was further noted that the applicant had occasional back pain and a limp, but no limp was noted on examination.
14. The applicant also prepared a response (Exhibit A5) to a report prepared by Lieutenant Colonel H. Conant, Retired, of WriteWay Research Services (the WriteWay report). The applicant pointed out that, in addition to the vehicles cited in the report, he had worked on motor cycles, semi-trailers, prime movers, large buses and half-ton trailers. He said that the AST had limited lifting equipment, and he disagreed about the provision of other aids. He said that the WriteWay report was incorrect in stating that issued tools weighed only 20kg and he pointed out that mechanics kept personal and special tools in the toolbox in addition to issued tools. The applicant said that the cab tilt ram and pump for the Unimog vehicle weighed approximately 20kg and parts for some vehicles weighed 20 to 25kg and could only be lifted and fitted by hand. In oral evidence he estimated that a tyre for a Unimog vehicle weighed 60 to 90kg and a Landrover tyre about 35kg. He said that in major and minor servicing of vehicles AST practice was to remove all wheels and place them under vehicles for safety reasons. This removal and refitting of tyres was done manually. He acknowledged in cross-examination that safe work practices were encouraged in AST and devices were provided to avoid heavy lifting. However, he said these were not always available.
15. The Medical History completed prior to discharge, signed by the applicant and dated 29 January 1997 (T-documents p232), stated, in regard to a question on present disability, that the applicant had an …inability to lift tools 30kg.
16. In a written report dated 15 January 2003 (Exhibit R9), Lieutenant Colonel Conant stated that his research suggested that heavy items in the AST workshop were rolled or skidded to where they were needed, or a forklift was used. He said the normal range of lifting devices was available and tyres were moved using a hand-operated device similar to a forklift. Occupational safety measures were implemented to avoid heavy lifting. He said that weights above 30kg would be handled with the assistance of workshop equipment.
17. Lieutenant Colonel Conant estimated that the applicant had undertaken 2055 working days. In his first report he estimated that a mechanic's toolbox weighed less than 20kg. However, in a second report dated 21 April 2003 (Exhibit R10), Lieutenant Colonel Conant revised the estimate after weighing a complete set of tools matching the Defence Materiel Organisation – Complete Equipment Schedule for Tool Kit – Generic Automotive Mechanic’s (Exhibit A8).. The Lieutenant Colonel’s revised estimate, with four kilograms allowed for personal tools, was 35kg. Under cross-examination, the Lieutenant Colonel said that he considered his estimate of 35kg for the toolbox was generous. He noted that a mechanic would not carry his toolbox from one vehicle to another, but would take certain tools to the job. He agreed that the weight of some tyres might be in excess of 40kg and he accepted that the applicant had removed tyres from vehicles manually.
18. A Mr G.A. Jarvis also prepared a response to the WriteWay report dated 20 March 2003 (Exhibit A6). Mr Jarvis said that he had twenty years service with the army, including as a mechanic, and five years service with the Department of Defence, where he was involved with vehicle and equipment maintenance. In his army service he had worked with and supervised the applicant. He said that the AST was responsible for field level repairs and maintenance of a wide array of vehicles, ranging form motor cycles to army commercial vehicles (such as sedans, station-wagons, small buses, large passenger buses and Kenworth prime movers) and army general service vehicles (such as Landrovers, Mercedes, Unimog, Mack and International S-Line prime movers) and trailers (such as half-a-tonne, one tonne, eight tonne trailers and semi-trailers). He said the AST was poorly equipped for its role as a vehicle workshop. There was one vehicle ramp situated outdoors, which could be used to work under vehicles, and there were no vehicle lifting hoists or servicing/inspection pits in the area. No overhead crane or heavy lifting device was available and all lifting and materiel handling was done with a five tonne manually operated hydraulic, one mechanically operated wheel-lifting machine and various trolley jacks and safety stands.
19. Mr Jarvis said that heavy lifting was part of everyday work and he estimated that a toolbox could weigh up to 65-70kg. In oral evidence, he said that workshop mechanics would lift weights of 15 to 30kg, more than five times a day. He said a mechanic supported the full weight of a tyre when removing and refitting tyres. He estimated the weight of a Land Rover tyre was 20kg and noted that about 50 to 60 Landrovers were regularly serviced at the AST. He agreed in cross-examination that normal practice was to seek assistance with heavy items. He also agreed that, when he was supervising him, the applicant was frequently on restricted duties in the AST.
20. The applicant’s service medical records were part of the T‑documents. A medical report by Dr A. van der Rijt dated 4 December 1989 (T‑documents pp90‑91) stated that, on examination, the applicant had no deformity or reduction in the range of movement in the ankle joint. On 5 October 1993, the applicant reported to the Puckapunyal Medical Centre with a sore right foot. X-ray reports showed that the bones of the foot were normal. However, the applicant continued to suffer pain in the ensuing months. He was referred to a podiatrist, who noted a five-millimetre difference in leg length and suggested the use of a heel raiser. The use of a heel raiser was referred to in several places in the service medical records. The podiatrist also queried osteoarthritic changes in the talo-tibial joint. The applicant was referred for a CT scan in early 1994, which showed …Changes at the neck of the right talus…consistent with old united fracture and …associated adjacent small bony ossicles and minor soft tissue swelling. The applicant had arthroscopic surgery to the right ankle to remove anterior spurs on 31 May 1994.
21. The service medical reports in regard to the applicant’s back include a report dated 26 June 1992 (T4) noting that the applicant, having undertaken training exercises, woke that day with back pain that became severe. It was noted that the applicant had no prior history of back pain. The applicant had limited range of movement and was placed on light duties for two days. A medical report dated 29 March 1993 (T-documents p118) noted that the applicant had developed pain in the lower spine after physical training, and lost sensation in his lower leg, which returned after ice packs were applied. He was placed on light duties for one day. Mr T. Waite, physiotherapist, reported on 18 May 1993 (T-documents p 119), the applicant had continuous back pain after exercises in the bush on 6 May 1993. However, he noted also no restriction in range of movement and treatment was ceased.
22. The applicant was referred for an x-ray, and the x-ray report dated 9 June 1993 (T-documents p120) noted …defects in the pars inter-articularis at L5 without spondylolisthesis or bone abnormality. A report dated 12 August 1993 (T‑documents p121) stated that the applicant complained of low back pain three days previously. He was placed on light duties for three days. On 17 July 1996, an Outpatient Clinical Record (T‑documents, at the first of two pages numbered p221) stated that the applicant complained of increasing thoraco-lumbar pain in the previous year. It was noted on 23 July 1996 (T-documents p221) that the applicant continued to suffer back pain despite having been prescribed Feldene on 10 July 1996. A CT scan of the lumbo‑sacral spine on 16 July 1996 (T-documents p219) noted no significant abnormality:
…
Vertebral alignment is normal.
Slight depression of the nucleus pulposis into the superior aspect to the L1 is noted, but otherwise the appearances of the vertebrae, the width of the intervertebral discs, the facet joints and the soft tissue surrounds all appear normal.
There is no sponylolysis.
The sacro‑iliac joints are normal.
Vertebral alignment is normal.
23. In a report dated 5 September 1995 (T-documents p188), Mr T.S. Perera, orthopaedic surgeon, stated that a CT scan showed early osteoarthritic changes in the ankle joint and osteophytes at the neck and the medial aspect of the talus. Mr Pererra also noted that x-rays of the lumbosacral spine suggested a spina bifida at S1 and he queried a pars defect of the L5 vertebra, with possible Scheuermann's disease at T10 and L1/L2. A CT of the thoraco-lumbar spine from T10 to L4, taken on 22 July 1996, also demonstrated no abnormality in that area of the spine.
24. In a written report dated 2 December 2002 (Exhibit A3), Mr H. Hadley, orthopaedic surgeon, stated that an x-ray of the applicant’s lumbar spine showed previously healed Scheuermann’s disease in the mid and lower thoracic spine and upper lumbar regions. He said there was wedging at L1 and spondylitic lipping in the mid to lower thoracic area. In regard to the right ankle, Mr Hadley noted from x‑rays that bony ossicles were present and mild osteoarthritic changes at the right talonavicular joint. After noting the history of knee reconstruction in 1985 and the fractures sustained in the motor vehicle accident in 1986, Mr Hadley stated:
…
With him sustaining trauma to his thoracic and lumbar spine in June 1992 with lifting heavy truck tyres weighing 60 to 70 kilograms and having pain, tenderness and stiffness in his upper and low back for about 2 weeks he satisfies the principles concerning thoracic and lumbar spondylosis. Also with having Scheuermann’s disease in his thoracic and lumbar regions with old anterior wedging affecting the body of his first lumbar vertebra he had disordered joint mechanics in his thoracolumbar spine before the clinical onset of thoracic and lumbar spondylosis. With him doing frequent heavy lifting of at least 35 kilograms weight he may well have lifted a cumulative total of 168,000 kilograms within his period of service…
With him suffering an intra-articular fracture of the talus in his right ankle before the clinical onset of osteoarthrosis he therefore satisfies the statement of principles concerning osteoarthrosis. …
25. In oral evidence, Mr Hadley said that Scheuermann's disease makes a person more vulnerable to injury, through the degeneration of the discs and altered mechanics of the back. He said that altered mechanics of the back arising from Scheuermann's disease were characterised by wedging of the first lumbar vertebrae and that this fell within the definition of disordered joint mechanics, as the Statement of Principles (SoP) for lumbar spondylosis defined this as including (at 5(e) of the definition) an alteration of the loading forces on the spine arising from a deformity of the vertebrae. Mr Hadley said that the applicant’s back condition did not show features of permanent ligamentous instability as defined in the SoP, as that would require that sideways movement was present and Dr Hadley said he was not aware of the applicant having any such instability.
26. Dr Hadley confirmed that Scheuermann's disease fell within the definitions of lumbar and thoracic spondylosis in the SoPs as the definition in each SoP referred to degenerative changes affecting vertebrae or intervertebral discs. He said that the Scheuermann's disease may have remained asymptomatic except for the heavy lifting undertaken by the applicant in the army. He said also that the applicant had a five millimetre shortening of the left leg, which allowed the pelvis to drop, putting the spine out of alignment. He said that, if the applicant were suffering pain in the left knee or foot, he would be liable to transfer weight to the right side, which also would alter the mechanics of his back.
27. Mr Hadley said that he disagreed with Mr B.J. Dooley, orthopaedic surgeon, in that he found tenderness in the thoracic and lumbar areas, whereas Mr Dooley did not. He also disagreed that, after the injury sustained on 29 March 1993, the applicant largely recovered. In Mr Hadley’s view the applicant continued to have back pain from that time. He also disagreed with Mr Dooley’s view that the applicant had a full range of movement of the back. Mr Hadley considered that there was radiological evidence of degenerative changes in the back in an MRI scan dated 16 October 1997, as this showed Schmorl’s nodes, where the vertebral discs bulge into the vertebrae. Dr Hadley concluded that the applicant’s spondylosis was a consequence of the Scheuermann's disease combined with heavy lifting, so that the lifting was an aggravating factor to the pre-existing condition of Scheuermann's disease.
28. Mr Hadley considered that the applicant met two risk factors identified in the relevant SoPs for osteoarthrosis as he suffered an interarticular fracture of the affected joint before the clinical onset of osteoarthrosis and before the clinical worsening of osteoarthrosis in that joint. Mr Hadley also said that the applicant had disordered joint mechanics in relation to the ankle, as there was degeneration of the articular cartilage of the ankle joint after he fractured his talus in the motor vehicle accident; and that route marches would have aggravated this degeneration. Mr Hadley said that the applicant had disordered joint mechanics in his left knee as well, and this would have placed further pressure on the right ankle as the applicant favoured the left knee.
29. In a written report dated 28 June 2002 (Exhibit R7), Mr Dooley referred to the injuries resulting from the motor vehicle accident in 1986 and the aggravations to the knee in 1989, 1990 1992 and 1994 after the applicant joined the army. The applicant told him that he continued to have back pain intermittently after sustaining a back injury when lifting a tyre in 1992.
30. Mr Dooley noted that, at the time of his report, the applicant had a normal range of movement of the lumbo-sacral spine, apart from a minor loss of flexion. Mr Dooley said:
…
I consider that any disabilities that this man has with his left knee joint or his right ankle relate to injuries received in the motor car accident in 1986. I do not believe there have been any significant aggravations of his right ankle problem relating to his service in the Army. If there had been any problems in his right ankle, they would have been natural exacerbations of the problem received in the motor car accident in 1986, with injury to his right ankle.
…
Mr Walker does suffer from minor disc degenerative changes at the thoraco-Iumbar junction of the spine, but his symptoms are Iow lumbar. I believe that the original injury to his Iow back on 29 March 1993 was probably an aggravation of pre-existing disc degenerative change or back strain that recovered quickly, and any further recurrences of minor back pain resulted from the minor degenerative changes at the thoraco-Iumbar junction, which pre-existed this injury.
I do not believe, therefore, that his service has caused any permanent injury to his thoraco-Iumbar spine. He has a full range of movement present in his thoraco‑Iumbar spine, and minor degenerative changes only evident on x-ray…there is no measurable impairment in his thoraco-Iumbar spine.
31. In oral evidence, Mr Dooley said that the applicant did suffer low-grade thoraco and lumbar spondylosis, which he considered were natural developmental changes. In a further report dated 8 February 2003 (Exhibit R8), having been provided with Mr Hadley's report dated 2 December 2002 and radiological reports of the applicant's spine (Exhibit A3), Mr Dooley said that radiological appearances of Scheuermann's disease reflected adolescent disc degeneration in the growing child and this resulted in the wedging noted in the reports. He disagreed with Mr Hadley’s description of well healed Scheuermann's disease, stating that, if Scheuermann's disease is present, it does not heal, and he was almost certain the applicant had this condition from adolescence. He said that, because of the nature of the disc pathology in Scheuermann's disease, there is a direct connection between the existence of Scheuermann's disease in the adolescent and the development in adulthood of thoracic or lumbar spondylosis.
32. In Mr Dooley’s view, the back incident in 1992 would have caused a temporary aggravation of the existing disc degenerative changes that the applicant had as a result of Scheuermann's disease.. He said that the state of the discs as a result of the Scheuermann's disease did not fit the definition of disordered joint mechanics in the relevant SoP. He said that the applicant’s five millimetre discrepancy in leg length would have minimal effect, although it might have some effect if the applicant was not using a shoe rise. He said that leg length discrepancy below half-an-inch (12.5 millimetres) is not regarded as clinically significant.
33. He said it was doubtful that heavy lifting would have caused a severe deterioration in the applicant‘s back condition and that it was more likely that his back pain was a natural progression of the adolescent disc degenerative changes. He conceded in cross-examination, however, that, if it were shown that the applicant lifted in excess of 168,000kg in a ten-year period, then the lifting might have had some effect on his back.
34. In oral evidence, Mr Dooley said the applicant’s intra-articular fracture of the talus was a fracture between the tibia and the body of the talus, so that the affected area was at the margin in front of the ankle joint (he marked Exhibit R12 to indicate the spot). He said that a CT scan on 20 January 1994 showed an old united fracture of the neck of the talus, without damage to the bones of the rest of the ankle joint. He said it was unlikely that there was displacement of the bone when it was fractured as no surgery was undertaken to reposition the two pieces. He referred to x-rays of the ankle, showing minor degenerative changes, and said that these would almost certainly be the result of the motor vehicle accident. He said that the area of damage now showing was to the front margin of the ankle not to the main bulk of the ankle. He did not accept that the wearing of army boots, undertaking army drill, or marching would have affected the ankle, although he said they might have caused a temporary aggravation.
35. Mr Dooley said that the spurs removed from the right ankle in 1994 would not have arisen without the damage to the ankle in the motor vehicle accident. Mr Dooley did not accept that limping to favour the left knee contributed to a worsening of the right ankle symptoms, because the discrepancy in leg length was not sufficient to have any effect. He did not accept that the applicant put increased weight on his right ankle because of a discrepancy between the length of his legs, and even if the applicant had, it would have been a minor contributing factor. He said any worsening of the ankle condition due to marching would only be temporary.
36. Mr Dooley said that there were no significant differences between his clinical findings and those of Mr Hadley. Mr Dooley concluded that the primary pathology in this case was as a result of the motor vehicle accident and there was nothing that occurred during the applicant's service that caused further damage, though there might have been temporary symptoms, which did not alter the primary pathology.
CONSIDERATION OF THE ISSUES
37. Section 70(5) of the Act provides:
70(5) For the purposes of this Act,…an injury suffered…shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(d)the injury or disease from which the member…has become incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease;…
38. For claims made after 1994, it is necessary to apply any relevant SoP. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the applicant's condition and his or her service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities, connected with the applicant's service (s120B(3)(b)). The relationship to service must be one of the relationships prescribed in s196B(14) of the Act:
196B(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service; or
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or…
39. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the applicant fits within or is consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail.
40. There was no dispute between the parties that the veteran had rendered eligible service, so that s120(4) and s120B of the Act apply, and the Tribunal must decide the matter to its reasonable satisfaction. The Tribunal is first required to ascertain the relevant SoPs in force. The applicable SoP for lumbar spondylosis is Nº 47 of 2002 (as amended by Nº 78 of 2002), replacing Nº 28 of 1999, which was in force at the time of the primary decision. The applicable SoP for thoracic spondylosis is Nº 49 of 2002 (as amended by Nº 80 of 2002), replacing Nº 30 of 1999, which was in force at the time of the primary decision. The applicable SoP for osteoarthrosis is SoP Nº 82 of 2001, replacing Nº 42 of 1998, which was in force at the time of the primary decision. The Tribunal must apply the SoP in force at the time of the Tribunal’s decision; unless the current SoP does not uphold the connection, in which case the applicant may argue an accrued right to consideration under an earlier SoP in force at the time of the respondent’s (primary) decision (Repatriation Commission v Gorton (2001) 110 FCR 321).
41. The applicant relied on several factors within the SoPs as the bases of his claims. In regard to osteoarthrosis, the applicant relied upon factors 5(d), (g), (h), (r), (s) and (v) of SoP Nº 82 of 2001; and factors 5(d), (g), (h), (p), (q), and (t) of SoP Nº 42 of 1998. In regard to lumbar spondylosis, the applicant relied on factors 5(d), (f), (g), (i), (q), (s) and (v) of SoP Nº 47 of 2002 (as amended by Instrument Nº 78 of 2002), and on factors 5(d), (f), (g), (o), (q) and (r) of SoP Nº 28 of 1999, the SoP for lumbar spondylosis at the time of the respondent’s decision. In regard to thoracic spondylosis, the applicant relied on factors 5(d), (f), (g), (i), (q), (s), (t) and (v) of SoP Nº 49 of 2002 (as amended by Instrument Nº 80 of 2002), and factors 5(d), (f), (g), (o), (q) and (r) of SoP Nº 30 of 1999. All factors upon which the applicant relies within the relevant SoPs are set out in the Attachment below, with definitions of key terms used within the SoPs.
42. Mr De Marchi submitted that, under s120(6) of the Act, there was no onus on either party, and that the Act merely requires a connection linking the condition with service. He referred the Tribunal to the cases of Law v Repatriation Commission (1980) 29 ALR 64 and Telstra Corporation Ltd v Treloar (2000) 102 FCR 595 in regard to issues of causation.
43. Mr De Marchi submitted that Mr Dooley had conceded that, if it were shown that the applicant had lifted the total weight referred to in the SoPs, then weight bearing was a contributory factor to his present conditions. In regard to weight bearing (factors 5(i) and 5(v) in SoPs Nº 47 and 49 of 2002 for thoracic and lumbar spondylosis), Mr De Marchi said that there were 2055 days to be taken into account, accepting Lieutenant Colonel Conant’s evidence. Mr De Marchi further said that the evidence suggested that the applicant lifted 35kg up to three times a day, and therefore the cumulative weight lifted by the applicant exceeded 168,000kg. Taking into account the evidence about the nature of the applicant’s duties, he submitted that factor 5(i) and 5(v) of the SoP Nº 47 and Nº 49 of 2002 were met.
44. Mr De Marchi also submitted, in regard to the applicant's back condition, that there was evidence of trauma as defined in the SoPs for lumbar and thoracic spondylosis, and also of malalignment of the back as referred to in factors 5(d) in SoPs Nº 28 and Nº 30 of 1999.
45. Mr De Marchi submitted in regard to the ankle injury that factor 5(g) in SoP Nº 82 of 2001 referring to permanent ligamentous instability required abnormal mobility and instability of the joint and the applicant’s tendency to favour the leg because of the left knee injury meant this factor was met. He further submitted that the surgery on the ankle in 1994 was a trauma as defined in the SoPs and, because surgery occurred on service, it was related to service and meets factors 5(h) and 5(v) of SoP Nº 82 of 2001. Mr De Marchi contended that the trauma to the lumbar spine in 1992, occasioned by lifting a heavy tyre, came within factor 5(g) and 5(t) of SoP Nº 27 of 2002 and satisfied the factor for thoracic spondylosis. He said that the trauma in 1992 led to permanent ligamentous instability, as defined and provided for in SoPs Nº 28 and Nº 30 of 1999. He referred the Tribunal to the discharge medical reports where tenderness at the L5-S1 centrally was noted.
46. Mr Purcell submitted that the Tribunal could be satisfied that the applicant had the claimed conditions, but should find that the clinical onset of lumbar and thoracic spondylosis was at the time of the development of Scheuermann's disease, based upon Mr Dooley's evidence that Scheuermann's disease was present from adolescence.
47. Mr Purcell submitted that the ankle injury was caused by the motor vehicle accident in 1986. This was the clinical onset of osteoarthrosis. Therefore, no factor involving clinical onset of osteoarthrosis could be met (factors 5(d), (g) and (h)) in either SoP for osteoarthrosis. He submitted that there was no evidence that the applicant suffered from a permanent limp of the left leg sufficient to satisfy the definition of disordered joint mechanics in factors 5(d) and 5(s) of SoP Nº 82 of 2001. In regard to the earlier SoP for osteoarthrosis (Nº 42 of 1998), Mr Purcell submitted that there was no evidence of malalignment of the ankle joint (factor 5(d) and 5(q)). Nor was there evidence of permanent ligamentous instability (factor 5(t) of SoP Nº 42 of 1998 and 5(v) of SoP Nº 82 of 2001).
48. Mr Purcell submitted that Mr Dooley’s evidence did not support any clinical worsening of the ankle injury. In regard to factor 5(r) of SoP Nº 82 of 2001 and 5(p) of SoP Nº 42 of 1998, Mr Purcell said that Mr Dooley’s evidence was that there had been no clinical worsening in that joint after the intra-articular fracture that occurred in the motor vehicle accident in 1986. He said factor 5(q) in SoP Nº 42 of 1998 could not be met because there was no evidence of malalignment of the joint. Mr Purcell submitted that there was no acceptable evidence of the applicant having a permanent limp, so as to satisfy the definition of disordered joint mechanics in factor 5(s) of SoP Nº 82 of 2001.
49. In regard to the back condition and whether the applicant satisfied the definition of trauma, Mr Purcell submitted that the injury sustained in lifting a heavy tyre did not fit the definition. Mr Purcell submitted that the applicant’s evidence to the VRB differed materially from his evidence before the Tribunal and was unreliable. He submitted that the Tribunal should not accept that the applicant was taking Panadeine Forte for his back during service. He said the first reference to Panadeine Forte was in the clinical notes of Dr Slutzkin in 1998. He submitted that the applicant’s medical records showed no medical treatment for a back problem from 1993 until his discharge in 1997. He said that the discharge medical examination made no reference to a back condition.
50. In regard to SoP Nº 47 of 2002, Mr Purcell submitted that the applicant did not meet the definition of having disordered joint mechanics as any deformity of the vertebrae (5(e) within the definition) arising from the Scheuermann's disease could not be related to service. He submitted that the applicant did not meet the definition of disordered joint mechanics in the SoPs for lumbar and thoracic spondylosis, excepting perhaps the definition numbered (e): a deformity of a vertebra. He submitted that deformity of the vertebra resulting from Scheuermann's disease, however, could not be causally related to service. In regard to the definition of permanent ligamentous instability of the lumbar and thoracic spine (factors 5(f) and 5(s) of SoPs Nº 47 and Nº 49 of 2002) he said that there was no evidence of recurring abnormal mobility and instability of the lumbar spine and Mr Hadley had ruled this out.
51. In regard to the factors referring to manual lifting, Mr Purcell submitted that the evidence showed that the applicant lifted weights of less than 35kg regularly in the period of five years in which he was working as a mechanic. While he conceded that the toolbox weighed 35kg, he said that mechanics were issued with a canvas bag in which tools for a particular job could be transported. He said it was unlikely that the applicant would have lifted and moved the toolbox for every job as it was unnecessary and inefficient to do so. Mr Purcell said the Tribunal should accept that the applicant’s supervisor, Mr Jarvis, was aware that the applicant was frequently on restricted duties, as he knew of his injuries from the motor vehicle accident in 1986. He said that Mr Jarvis's evidence was that the practice in the workshop was for mechanics to seek assistance when lifting. Mr Purcell asked the Tribunal to draw the inference that it would be unlikely that the applicant would have lifted weights of 35kg regularly given the work practices of the AST and his own medical restrictions.
52. Mr Purcell submitted that the applicant could not satisfy the requirement of having lifted a cumulative weight of 168,000kg as he worked only 1405 days as a mechanic. Assuming the applicant lifted 35kg, three times each day, he would have lifted a total of 134,880kg in 1405 days. (In fact, the total weight would have been 147,525 kg). He submitted that it was not open to the Tribunal, on the evidence, to find that the applicant lifted those weights, bearing in mind that he was frequently on restricted duties and care was taken in AST to avoid injury.
53. Mr Purcell referred the Tribunal to Repatriation Commission v Yates (1995) 57 FCR 241 for the proposition that symptoms of an injury worsened by service do not compel the inference that there has been an aggravation of the underlying injury caused by the service. He submitted that Mr Dooley’s evidence was clear that there may have been a temporary worsening of symptoms, but this did not amount to an aggravation of the primary pathology of the conditions.
54. In reaching its decision, the Tribunal takes into account the written and oral evidence and submissions made at the hearing. The standard of proof to be applied is that set out in s120(4) of the Act. The Tribunal must first be satisfied that an applicant suffers from the claimed conditions. In this case there was no dispute between the parties, and the Tribunal finds to its reasonable satisfaction that the applicant has established that he has each of the claimed conditions.
55. Accepting Mr Dooley's evidence, the Tribunal is reasonably satisfied that the clinical onset of thoracic and lumbar spondylosis dated from the applicant's suffering from Scheuermann’s disease as a teenager. This being so, the applicant cannot meet any of the factors in the SoPs for lumbar and thoracic spondylosis that refer to clinical onset of either condition, as the conditions developed prior to his service: (that is factors 5(d), (f), (g), and (i) of SoPs Nº 47 (as amended by SoP Nº 78 and Nº 49 of 2002 (as amended by Nº 80 of 2002), as well as factors 5(d), (f) and (g) of SoPs Nº 28 and Nº 30 of 1999).
56. This means that in regard to his back condition, the applicant may only raise those connections that rely on clinical worsening of a condition that was in existence prior to his service. The medical reports did not point to permanent ligamentous instability (as defined in SoPs Nº 47 and Nº 49 of 2002, as well as Nº 28 and Nº 30 of 1999). Therefore, that factor cannot be met, on the evidence, in any of the SoPs for thoracic and lumbar spondylosis.
57. With respect to the factors referring to trauma in regard to lumbar and thoracic spondylosis, the Tribunal accepts the applicant’s evidence that he had incidents of back pain in 1992 and 1993. However, his evidence to this Tribunal and to the VRB was insufficient to meet the definition of trauma in regard to the early development and continuity of the symptoms and signs (SoPs Nº 47 and Nº 49 of 2002, and Nº 28 and Nº 30 of 1999. Therefore, the applicant cannot satisfy factor 5(t) of the 2002 SoPs or 5(r) of the 1999 SoPs.
58. In regard to factor 5(v) in SoPs Nº 47 and Nº 49 for lumbar and thoracic spondylosis:
…manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168,000 kg within any 10 year period, before the clinical worsening of lumbar spondylosis, and where such physical activity has ceased, the clinical worsening of lumbar spondylosis has occurred within the 25 years immediately following such activity…
The Tribunal takes into account that the applicant worked in the AST from 22 April 1992 until his discharge in February 1997. The Tribunal does not accept the evidence of Lieutenant Colonel Conant, that the relevant figure on which to calculate weight bearing was 2055 working days. Taking into account weekends, annual leave, and some 60 days (calculated from the references in the service medical records) when the applicant was on restricted duties, the evidence points to some 1200 days on which the applicant could rely to calculate weight bearing undertaken by him. The evidence suggests the weight of the toolbox as about 30 to 35kg, and the discharge medical examination record unable to lift tool 30kg confirms the Lieutenant Colonel's evidence in regard to the weight of the toolbox.
59. The Tribunal notes that the applicant sustained serious injuries in the motor vehicle accident in 1985 and, although he recovered from them, he had trouble on service from the beginning particularly when undertaking physical training. He frequently attended medical practitioners for injuries resulting from training. Because of his history of injury, he was more likely to take care to protect himself in the workplace, particularly because of his left knee condition. His evidence was that he was protecting his knee. The Tribunal accepts the respondent’s submission that the combination of observed safe practice in AST, mechanical aids to assist with the lifting of weights, the practice of calling for assistance with loads and the applicant’s own awareness of his limitations, means that the applicant would rarely have been lifting 35kg while weight bearing in the sense of taking the load on his joints. The Tribunal was reasonably satisfied that the applicant would have lifted weights of 30 to 35kg no more than twice a day, if that. Working for 1200 days, the cumulative total for weight bearing is 84,000kg. The Tribunal considered that the applicant could not meet factor 5(v) in SoP Nº 47 and Nº 49 of 2002.
60. In regard to the evidence concerning factor 5(q) in SoPs Nº 47 and Nº 49 of 2002, the Tribunal accepts the evidence of Mr Hadley, that the wedging noted in the spine as a result of Scheuermann's disease satisfied 5(e) in the definition section as a deformity of a vertebra.. Mr Dooley acknowledged that wedging of the vertebrae was present as well as osteophyte formation. He considered however that the disc degenerative changes were a natural process of aging, regardless of service, and that any back incidents during service were no more than temporary aggravations. This evidence suggested that there was no clinical worsening of the lumbar or thoracic spondylosis, only episodic flare-ups. In forming his views, Mr Dooley does not appear to have taken into account the great number of instances where the applicant was treated during service for back problems, nor does he refer to the note, in the discharge medical report, of the applicant receiving chiropractic treatment for the back for 3 to 4 years.
61. Contrary to the submissions of the respondent’s counsel, the service medical records show clearly that the applicant reported back pain throughout his service, including the period 1993 to 1997. The applicant’s evidence of increasing back problems was well supported by the medical records. The Tribunal considers that there was clear evidence of clinical worsening and not the mere temporary worsening of a condition without change to underlying pathology (Yates). For these reasons, the evidence points to the factor of the applicant having disordered joint mechanics before the clinical worsening of lumbar and thoracic spondylosis, and the Tribunal was reasonably satisfied that the applicant’s conditions of lumbar and thoracic spondylosis are defence‑caused, within the meaning of s70 (5) of the Act.
62. In regard to osteoarthrosis, the Tribunal accepts the evidence of Mr Hadley and Mr Dooley that the applicant had degeneration of the articular cartilage of the ankle joint after he fractured his talus in the motor vehicle accident. This sets the date of clinical onset of osteoarthrosis as the time of the motor vehicle accident in 1985 (Repatriation Commission v Cornelius [2002] FCA 750). For similar reasons to those stated above in regard to lumbar and thoracic spondylosis, the applicant cannot rely on any factors that refer to clinical onset of osteoarthrosis, that is factors 5(d), (g) and (h) of SoPs Nº 82 of 2001 and SoP Nº 42 of 1998.
63. In regard to the question of clinical worsening of osteoarthrosis, Mr Hadley referred to the factor of having an intra-articular fracture of the talus (though he addressed his views to clinical onset of osteoarthrosis). However, the SoP requires that the factors must be related to service, and the intra-articular fracture was not so related. If there is no clinical worsening of the condition, that factor cannot be satisfied. The evidence pointed to the applicant having a flare‑up of the right ankle in 1994 which was treated surgically and on the evidence when he later had problems with his left ankle, his right ankle had recovered. The Tribunal rejects the submission that the surgery in 1994 was trauma to a joint, as that submission fails to distinguish between injury and treatment of injury. Taken as a whole, the evidence suggests that, as a result of the motor vehicle accident, conditions during service might lead to temporary exacerbations of his previously injured ankle. But, as Mr Dooley said, this would not alter the underlying pathology of the ankle (Yates).
64. Factor 5(s) of SoP Nº 82 of 2001 refers to having disordered joint mechanics which affect the joint, before the clinical worsening of osteoarthrosis in the joint, where the definition refers to a maldistribution of loading forces on the joint, resulting from a permanent limp involving either leg, as a result of joint pathology. While the Tribunal accepts the applicant's evidence that he favoured the left knee, the evidence does not point to a permanent limp and the report dated 5 February 1996 was to the contrary. Furthermore, there was evidence that the leg length discrepancy was dealt with by the use of a heel riser. The Tribunal does not consider that the condition of the right ankle or the left knee enables the applicant to rely on disordered joint mechanics in SoP Nº 82 of 2001. Nor was there evidence of malalignment of the joint (SoP Nº 42 of 1998). For these reasons, the Tribunal decides that the applicant’s osteoarthrosis of the right ankle was not defence‑caused within the meaning of s70(5) of the Act.
DECISION
65. The Tribunal sets aside the decision under review insofar as it relates to lumbar and thoracic spondylosis and substitutes the decision that lumbar and thoracic spondylosis are defence‑caused, with effect from 17 February 1999. The Tribunal remits the matter to the respondent for assessment of the rate of pension. In all other respects the Tribunal affirms the decision under review.
I certify that the sixty‑five [65] preceding paragraphs are a true copy of the reasons for the decision of:
M.J. Carstairs, Member
(sgd) Catherine Thomas
Clerk
Date of hearing: 24 April 2003
23 July 2003
Date of decision: 31 October 2003
Solicitor for applicant: Mr D. De Marchi, De Marchi & AssociatesCounsel for respondent: Mr G. Purcell, Department of Veterans' Affairs
ATTACHMENT
Factors within the relevant Statement of Principles
relied on by the applicant
Condition & SoPs
Factor
Osteoarthrosis -
SoP N° 82 of 2001
5(d) for osteoarthrosis of a hip, knee or ankle joint, having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis in that joint; or
5(g) suffering from permanent ligamentous instability of the affected joint before the clinical onset of osteoarthrosis in that joint; or
5(h) suffering a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint; or
5(r) suffering an intra‑articular fracture of the affected joint before the clinical worsening of osteoarthrosis in that joint; or
5(s) for osteoarthrosis of a hip, knee or ankle joint, having disordered joint mechanics affecting that joint before the clinical worsening of osteoarthrosis in that joint; or
5(v) suffering from permanent ligamentous instability of the affected joint before the clinical worsening of osteoarthrosis in that joint.
Osteoarthrosis
SoP N° 42 of 1998
5(d) having a malalignment of a joint before the clinical onset of osteoarthrosis in that joint; or
5(g) suffering from permanent ligamentous instability of a joint before the clinical onset of osteoarthrosis in that joint; or
5(h) suffering a trauma to a joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint; or
5(p) suffering an intra-articular fracture of a joint before the clinical worsening of osteoarthrosis in that joint; or
5(q) having a malalignment of a joint before the clinical worsening of osteoarthrosis in that joint; or
5(t) suffering from permanent ligamentous instability of a joint before the clinical worsening of osteoarthrosis in that joint.
Lumbar Spondylosis
SoP N° 47 of 2002
5(d) having disordered joint mechanics affecting the lumbar spine before the clinical onset of lumbar spondylosis; or
5(f) suffering from permanent ligamentous instability of the lumbar spine before the clinical onset of lumbar spondylosis; or
Lumbar Spondylosis
SoP N° 47 of 2002
(Cont'd)Amended by Instrument N° 78 of 2002 with effect from 27 November 2002:
5(f) suffering an injury to the lumbar spine which has resulted in permanent ligamentous instability of the lumbar spine before the clinical onset of lumbar spondylosis; or
5(g) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or
5(i) manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of lumbar spondylosis, and where such physical activity has ceased, the clinical onset of lumbar spondylosis has occurred within the 25 years immediately following such activity; or
5(q) having disordered joint mechanics affecting the lumbar spine before the clinical worsening of lumbar spondylosis; or
5(s) suffering from permanent ligamentous instability of the lumbar spine before the clinical worsening of lumbar spondylosis; or
Amended by Instrument N° 78 of 2002 with effect from 27 November 2002:
5(s) suffering an injury to the lumbar spine which has resulted in permanent ligamentous instability of the lumbar spine before the clinical worsening of lumbar spondylosis; or
5(v) manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical worsening of lumbar spondylosis, and where such physical activity has ceased, the clinical worsening of lumbar spondylosis has occurred within the 25 years immediately following such activity.
Lumbar Spondylosis
Instrument N° 28 of 1999
5(d) having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis; or
5(f) suffering from permanent ligamentous instability of the lumbar spine before the clinical onset of lumbar spondylosis; or
5(g) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis; or
5(o) having a malalignment of the lumbar spine before the clinical worsening of lumbar spondylosis; or
5(q) suffering from permanent ligamentous instability of the lumbar spine before the clinical worsening of lumbar spondylosis; or
Lumbar Spondylosis
Instrument N° 28 of 1999
(Cont'd)
5(r) suffering a trauma to the lumbar spine within the 25 years immediately before the clinical worsening of lumbar spondylosis.
Thoracic Spondylosis
Instrument N° 49 of 2002
5(d) having disordered joint mechanics affecting the thoracic spine before the clinical onset of thoracic spondylosis; or
5(f) suffering from permanent ligamentous instability of the thoracic spine before the clinical onset of thoracic spondylosis; or
Amended by Instrument N° 80 of 2002 with effect from 27 November 2002:
5(f) suffering an injury to the thoracic spine which has resulted in permanent ligamentous instability of the thoracic spine before the clinical onset of thoracic spondylosis; or
5(g) suffering a trauma to the thoracic spine within the 25 years immediately before the clinical onset of thoracic spondylosis; or
5(i) manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of thoracic spondylosis, and where such physical activity has ceased, the clinical onset of thoracic spondylosis has occurred within the 25 years immediately following such activity; or
5(q) having disordered joint mechanics affecting the thoracic spine before the clinical worsening of thoracic spondylosis; or
5(s) suffering from permanent ligamentous instability of the thoracic spine before the clinical worsening of thoracic spondylosis; or
Amended by Instrument N° 78 of 2002 with effect from 27 November 2002:
5(s) suffering an injury to the thoracic spine which has resulted in permanent ligamentous instability of the thoracic spine before the clinical worsening of thoracic spondylosis; or
5(t) suffering a trauma to the thoracic spine within the 25 years immediately before the clinical worsening of thoracic spondylosis;
5(v) manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical worsening of thoracic spondylosis, and where such physical activity has ceased, the clinical worsening of thoracic spondylosis has occurred within the 25 years immediately following such activity.
Thoracic Spondylosis
Instrument N° 30 of 1999
5(d) having a malalignment of the thoracic spine before the clinical onset of thoracic spondylosis; or
5(f) suffering from permanent ligamentous instability of the thoracic spine before the clinical onset of thoracic spondylosis; or
5(g) suffering a trauma to the thoracic spine within the 25 years immediately before the clinical onset of thoracic spondylosis; or
5(o) having a malalignment of the thoracic spine before the clinical worsening of thoracic spondylosis; or
5(q) suffering from permanent ligamentous instability of the thoracic spine before the clinical worsening of thoracic spondylosis; or
5(r) suffering a trauma to the thoracic spine within the 25 years immediately before the clinical worsening of thoracic spondylosis.
DEFINITION of terms in factors relied upon —
lumbar and thoracic spondylosis
Factor
Definitions
Instruments N° 47 and N° 49 of 2002
Definitions
Instruments N° 28 and N°49
of 2002
Trauma to the lumbar/thoracic spine
"trauma to the lumbar spine" means a discrete injury to the lumbar/thoracic spine that causes the development, within 24 hours of the injury being sustained of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the lumbar/thoracic spine. These 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 lumbar/thoracic spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar/ thoracic spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar/thoracic spine; or(c) surgery to the lumbar/thoracic spine.
“trauma to the lumbar spine” means a discrete injury to the lumbar/thoracic 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/thoracic spine. These acute symptoms and signs must last for a period of at least 10 days following their onset save for where medical intervention for the trauma to the lumbar/thoracic spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar/thoracic spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar/thoracic spine; or(c) surgery to the lumbar/thoracic spine.
Disordered joint mechanics
"disordered joint mechanics" means maldistribution of loading forces on the lumbar spine that has resulted from:
(a) scoliosis; or
(b) loss or enhancement of the normal anterioposterior curvature of the vertebral column; or
(c) spondylolisthesis; or
(d) retrospondylolisthesis; or
(e) a deformity of a vertebra; or
(f) a deformity of a joint of a vertebra; or(g) necrosis of bone.
Malalignment
“malalignment” means the presence of significant displacement out of line resulting from the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length.
Permanent ligamentous instability
"permanent ligamentous instability" means continuing or recurring abnormal mobility and instability of the lumbar/thoracic spine, which is characterised by the regular recurrence of episodes of pain and/or tenderness affecting the lumbar/ thoracic spine.
Replaced by Instruments N°78 and N°80 of 2002:
"permanent ligamentous instability of the lumbar/thoracic spine"
means radiological evidence on flexion and extension lateral radiographs of either:(i) anteroposterior motion of one vertebra over another in the lumbar/thoracic spine that is greater than 4.5 mm.
Defined as in Instruments N°47 and N° 49.
DEFINITION of terms in factors relied upon — OSTEOARTHROSIS
Factor
Definitions
Instruments N° 82 of 2001
Definitions
Instruments n° 42 of 1998 (amended by Instrument N° 20 of 1999)
Trauma…
“trauma to the affected joint” means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint."trauma to a joint" means a discrete joint injury 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 joint. These acute symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or(d) surgery to that joint.
Disordered
joint
mechanics"disordered joint mechanics" means maldistribution of loading forces on that joint resulting from:
(a) a rotation or angulation deformity of the long bones of the affected limb; or
(b) a rotation or angulation deformity of the hip, knee or ankle joint of the affected limb; or
(c) necrosis of bone near the affected joint; or
(d) amputation involving either leg; or
(e) permanent limp involving either leg resulting from pelvic,thoracolumbar spine, long bone or joint pathology.
Malalignment
“malalignment” means the presence of significant displacement out of line resulting from the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length.
Permanent ligamentous instability
"permanent ligamentous instability" means continuing or recurring abnormal mobility and instability of the joint which is characterised by the regular recurrence of episodes of pain and/or swelling of that joint.
"permanent ligamentous instability" means continuing or recurring abnormal mobility and instability of the joint which is characterised by the regular recurrence of episodes of pain and/or swelling of that joint.
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