WARREN FARMER and REPATRIATION COMMISSION
[2010] AATA 477
•28 June 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 477
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/2099
VETERANS' APPEALS DIVISION ) Re WARREN FARMER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date28 June 2010
PlaceBrisbane
Decision The Tribunal finds as follows:
1. The decision in relation to Cervical Spondylosis with respect to peacekeeping services is affirmed.
2. The decision in relation to Cervical Spondylosis with respect to defence service is set aside. The substituted decision is that the applicant’s condition is related to his defence service. I refer this decision to the Repatriation Commission to determine pension entitlements in terms of this aspect of this decision.
3. The correct diagnosis of the thoracic spine condition is Intervertebral Disc Prolapse T6-7.
4. A diagnosis of Thoracic Spondylosis is not appropriate based on the evidence available.
5. The decision in relation to Intervertebral Disc Prolapse T6-7 is affirmed with respect to Peacekeeping Service.
6. The decision in relation to Intervertebral Disc Prolapse T6-7 is affirmed with respect to Defence Service.
..............[Sgd]................................
Senior Member
CATCHWORDS
VETERANS’ AFFAIRS – Disability pension – Conditions related to relevant service rendered by applicant – Part of the decision set aside and remitted back to the Repatriation Commission for pension entitlements to be determined – Remainder of decision affirmed.
Administrative Appeals Tribunal Act 1975 (Cth) s34J
Veterans’ Entitlements Act 1986 (Cth) ss 5D, 5Q, 13, 68, 69, 70, 120, 120A, 120B
Byrnes v Repatriation Commission (1993) 177 CLR 564
East v Repatriation Commission (1987) 74 ALR 518
Howard v Repatriation Commission [1999] FCA 1030
Lees v Repatriation Commission [2002] 125 FCR 331
Law v Repatriation Commission (1980) 29 ALR 64
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock (2003) FCA 711
REASONS FOR DECISION
28 June 2010 Dr K S Levy RFD, Senior Member INTRODUCTION
1. Warren Farmer, a serving Army Officer, has made application over a period of time for medical treatment and pension for non-accepted neck and back incapacity. Those claims were rejected by the Repatriation Commission on 20 December 2006. Upon further review by the Veterans’ Review Board, the decision relating to the neck and back conditions (determined as cervical spondylosis and intervertebral disc prolapse at T6-T7) was affirmed on 13 January 2009. Mr Farmer now appeals for further review in relation to Cervical Spondylosis and Intervertebral Disc Prolapse.
2. Mr Farmer represented himself at the hearing on 27 November 2009. The Repatriation Commission was represented by Bruce Williams. At the conclusion of the hearing, further and updated medical evidence was to be obtained. This was provided in December 2009 and February 2010. The parties then considered that the matter should be heard on the papers under s 34J of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) without any further hearing.
ISSUES
3.The issues for determination are:
1. Whether cervical spondylosis is related to relevant service rendered by the applicant. In particular, whether the condition is related to service through the applicable Repatriation Medical Authority (RMA) Statement of Principles (SoPs): Instrument Nos 33 or 34 of 2005 as amended.
2. Whether the diagnosis of the claimed condition of “spondylosis degenerative changes to back (thoracic) is answered by intervertebral disc prolapse at T6-T7. In the alternate, the diagnosis of thoracic spondylosis is in issue.
3. If thoracic spondylosis is the appropriate diagnosis, whether thoracic spondylosis is related to relevant service rendered by the applicant. In particular, whether the condition is related to service through the applicable RMA SoPs: Instrument Nos 35 of 36 of 2005.
4. Whether intervertebral disc prolapse at T6-T7 is related to relevant service rendered by the applicant. In particular, whether the condition is related to service through the applicable Repatriation Medical Authority Statement of Principles: Instrument Nos 39 or 40 of 2007 as amended or 130 or 131 of 1996 as amended.
EVIDENCE
4. Mr Farmer served with the Australian Regular Army from 11 July 1979 to 30 January 1990. He then served with the Army Reserve from 1 September 1992 to 31 December 1995 and was reappointed to the Australian Regular Army for a second period from 1 January 1996 to the present time. He undertook operational service in Sinai from 9 April 2002 to 16 October 2002 and in Iraq from 13 February 2005 to 17 August 2005.
5. Relevant to this application is the fact that Major Farmer applied for and was accepted as a Cadet Officer at the Cadet School, Portsea, in 1980. As a cadet, he was undertaking gymnastic exercises involving a springboard and vaulting horse. On one attempt, he landed unexpectedly on the right side of his neck on the end of the vaulting horse. A second attempt was made shortly after the first attempt resulting in a similar fall and injury. His claim is corroborated by a witness who was also a student at that time in Portsea (see statement of Michael Wayne Liddelow). This gymnasium practice was undertaken on a weekend and the Regimental Aid Post (RAP) (the Unit Medical facility) was not open. He returned to the accommodation lines and was treated with an ice pack. He had restriction of movement of his neck and arms “for a few weeks” but the teamship of the cadets was such that the injury could be concealed and he was supported throughout the course by fellow students.
6. A further incident occurred when he was applying to join the SAS. He attended the SAS Selection Course in 1984. The applicant claims that he sustained a further injury when an 80kg weight fell on his back, when three other stretcher bearers dropped the stretcher before he could disengage from it. He stated there was immediate pain which lasted for several days. He was seen by a medical officer.
7. Major Farmer asserts that his subsequent operational service in Sinai in 2002 required him to wear an old heavy helmet which was later replaced by the Kevlar helmet. He was also required to wear body armour. He stated that both of these aggravated his conditions.
MEDICAL EVIDENCE
8. The applicant has accepted conditions of tinnitus, tinea of the skin and sensorineural hearing loss (left ear).
9. It is noted that he had also previously applied for recognition of depressive disorder which was held to be not related to his service. Major Farmer was referred to Dr Ross, psychiatrist in May 2008. Dr Ross reported in June 2009 that he had verification of the applicant’s claims of harassment from Major Farmer’s wife and that Major Farmer suffered from a psychiatric disorder, Dysthymia, a long term depressive disorder. Dr Ross attributed this condition to a conflict Major Farmer had with his Commanding Officer and to which Major Farmer attributed his sense of hopelessness and decline in health in the mid 2000s.
10. In relation to the medical evidence with respect to the two conditions which are the subject of this claim, the following medical reports were provided on the dates shown (including extracts or summaries of those reports):
Report Dr Bruce Low dated 2 June 2000
11. Dr Low reported as follows:
This man suffers early thoracic degeneration this is an aggravation acceleration of an underlying condition.
QUESTION 2:
Was the employment the principal cause of the condition?
C – Probably.
QUESTION 3:
Would the employee have contracted the disease, suffered aggravation or recurrence if he had not been in the employment?
D – Probably not.
QUESTION 4:
To what extent do you believe the employee employment contributed to the contraction of the disease?
D – Greater than 50%.
QUESTION 5:
Would you describe the extent of the contribution of employment to the contraction of the disease?
- Significant, substantial, major.
Report Colonel Jeffrey V Rosenfeld dated 3 February 2006
12. Colonel Rosenfeld is a specialist neurosurgeon and a senior officer in the Royal Australian Army Medical Corps. He examined the applicant and reported that:
· He has had a lot of wear and tear on his neck over the years.
· On examination he had some restriction in the range of his neck movement on lateral flexion to the right with a click, but this was mild. He had no abnormal neurological signs in his limbs.
· I note the MR cervical spine showing the degenerative changes with the foraminal stenosis particularly C5-6. I think this accounts for his right arm symptoms and I explained to him, may worsen in the future but at the moment is not severe enough to warrant surgery.
Report Dr J D’Souza, Departmental Medical Officer dated 26 September 2006
13. Dr D’Souza summarised the medical reports at that time for internal advice as:
1) “Neck condition”
a)Diagnosis: Cervical Spondylosis a medical report dated 3/2/2006 from Mr Jeffrey Rosenfeld, neurosurgeon.
b)Date of onset would be date of diagnosis on MRI scan in 1997 …
i)Aggravation – no aggravation up to 3/2/06 based on no significant clinical notes of worsening in Annual health assessments of 25/11/05, 15/4/04 and 4/3/02.
2) “Intervertebral Disc Prolapse at T6-T7.”
a) Diagnosis: Intervertebral Disc Prolapse at T6-T7 from MRI scan 20 May 1998
b) Date of onset would be date of diagnosis on MRI scan 20 May 1998.
…
3) “depressive disorder”
…
e)Dr N R Rose, Consultant Psychiatrist: “depression” with a good prognosis.
Diagnosis: depression Date of onset would be about 2003 from Dr Rose’s report and Dr Neath’s clinical notes
There is no evidence of aggravation … may improve with treatment and if his (“perception” of) grievance is resolved in his favour and based on no significant clinical notes in Annual health assessments of 25/11/05, 15/4/04.
Report Dr John Morris dated 16 December 2009
14. Dr Morris reported as follows:
4.Do any diagnosed conditions meet the definitions of the enclosed repatriation Medical Authority Statement of Principles?
With respect to the cervical spine, Mr Farmer has a history of an injury which caused acute pain. This pain lasted for a period of greater than ten days to two weeks.
…
Mr Farmer said that his symptoms became worse in 2005 … and it is therefore difficult to verify that. If that was the case, then the trauma would have occurred within twenty five years and he would therefore satisfy the criteria of trauma within twenty five years of the clinical worsening of the cervical spondylosis.
…
With respect to the thoracic spine … increased symptoms in 1988 and 1998. In 1998, he certainly had the disc protrusion as was demonstrated on the MRI. This would be able to be verified from his medical history.
At the present time, Mr Farmer does not have thoracic spondylosis, only the disc prolapse.
5.Is there evidence of aggravation or worsening of any diagnosed condition during eligible defence or peacekeeping service?
There is no evidence of aggravation or worsening of any diagnosed condition. In the thoracic spine, he did have a MRI in 1998 and plain x-rays in 1988.
6.Comment on the significance of the x-ray report dated 21 August 2008 in the Newmarket Centre report which notes loss of vertebral height in mid-thoracic vertebral bodies, particularly T7, T8 and T9.
The x-ray report dated 21 August 2008 revealed loss of body height at T7, T8 and T9 with a scoliosis. The scoliosis is a congenital or developmental condition and not related to his service in the Army.
Report of Dr John Morris dated 24 February 2010
15. This is a further clarification of the reported dated 16 December 2009:
Mr Farmer said he had symptoms in his spine which became worse in 1998. He had an MRI which showed a disc protrusion at T7/8.
I believe it is more likely that Mr Farmer had a soft tissue injury to his muscles when he was carrying the stretcher as he was able to continue working. The fact that he had symptoms three weeks later requiring analgesia would suggest that there may have been an injury to the underlying T7/8 disc.
…
In other words, I am implying that the reason I said he had a disc injury is the fact that he had ongoing pain for three weeks which required analgesia.
CONSIDERATION
16. The claims by Major Farmer traverse his military life in operational service and his eligible defence service. The conditions raised must be examined in light of the different statutory requirements relevant to each.
17. The pertinent statutory law is the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).
There is entitlement to pension by way of compensation where a veteran has an injury or disease which is war caused (Section 13). A “war-caused injury” (or disease) or a “defence-caused injury” (or disease) which has resulted in an incapacity of a veteran “is a reference to the effects of that injury or disease and not a reference to the injury or disease itself”. (Section 5D). An injury or disease (or an aggravation and material contribution to an injury or disease) “relates to service” 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)in the case of an aggravation of, or a material contribution to, an injury – it resulted from an accident that would not have occurred:
(i)but for the rendering of that service by the person; or
(ii) but for the changes in the person’s environment consequent upon his or her having rendered that service; [Sections 5Q (1B) and (1C)]
18. The specific and critical provisions of the Act are as follows:
1. In respect of Operational Service:
SECT 120
Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, … relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
(2)Where a claim under Part IV:
(a)in respect of the incapacity from injury or disease of a member of a Peacekeeping Force … relates to the peacekeeping service rendered by the member;
…
The Commission shall determine that the injury was a defence-caused injury, … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note 2:This subsection is affected by section 120A.
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, … related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a)that the injury was a war-caused injury or a defence-caused injury;
…
if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note:This subsection is affected by section 120A.
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:This subsection is affected by section 120B.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;
…
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a)a claimant or applicant for a pension …
(b)the Commonwealth, the Department or any other person …
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
2. In respect of Eligible Defence Service:
SECT 68
Interpretation
"defence service" means:
(a)continuous full‑time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
…
but does not include any period of peacekeeping service.
“member of a Peacekeeping Force“ means a person who is serving, or has served, with a Peacekeeping Force outside Australia as an Australian member, or as a member of the Australian contingent, of that Peacekeeping Force.
“Peacekeeping Force“ means:
(a) a Peacekeeping Force described in an item of Schedule 3; or
(b) a force raised or organised for the purpose of:
(i) peacekeeping in an area outside Australia; or
…
"peacekeeping service", … before or after the commencement of this Act, with a Peacekeeping Force outside Australia, and includes:
(a)any period after the person's appointment or allocation to the Peacekeeping Force during which the person was travelling outside Australia for the purpose of joining the Peacekeeping Force; and
(b)any period (not exceeding 28 days) of authorized travel by the person outside Australia after the person has ceased to serve with the Peacekeeping Force.
SECT 69
Application of Part to members of the Forces
(1) Subject to this section, where a person:
(a)has served in the Defence Force for a continuous period that commenced on or after 7 December 1972 and before the terminating date; or
(b)is serving in the Defence Force on or after the terminating date and has so served continuously since a date before that date;
this Part applies to the person:
(c)if the person:
(i)has served on continuous full‑time service as a member of the Defence Force after 6 December 1972; and
(ii)has, whether before or after that date, completed 3 years' effective full‑time service as such a member; or …
SECT 70
Eligibility for pension under this Part
…
(b) a member of the Forces or member of a Peacekeeping Force is incapacitated from a defence‑caused injury or a defence‑caused disease;
the Commonwealth is, subject to this Act, liable to pay:
…
(d)in the case of the incapacity of the member--pension by way of compensation to the member;
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence‑caused, an injury suffered by such a member 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;
…
(c)the death is to be deemed by subsection (6) to be defence‑caused, the injury is to be deemed by subsection (7) to be a defence‑caused injury or the disease is to be deemed by subsection (7) to be a defence‑caused disease, as the case may be; or
…
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; or
(7)Where, in the opinion of the Commission, the incapacity of a member of the Forces or member of a Peacekeeping Force was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for his or her having rendered defence service or peacekeeping service, as the case may be, or but for changes in the member's environment consequent upon his or her having rendered any such service:
(a) if the incapacity of the member was due to an accident--that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence‑caused injury suffered by the member; or
(b) if the incapacity was due to a disease--the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence‑caused disease contracted by the member, for the purposes of this Act.
Standard of Proof
19. In respect of Operational Service, the standard which must be met is set out in s 120(1) and (2) i.e. beyond reasonable doubt. The mechanism for applying that standard is specified in s 120(3).
20. Application of the standard in s 120(1) to (3) is amplified by s 120A which requires consideration of any Statement of Principles issued by the Repatriation Medical Authority and which are relevant to a particular injury or disease in the context of operational service. There is no dispute that the applicant in this case has rendered peacekeeping service.
21. Section 120B applies similarly to s 120A but in the context of eligible defence service (non operational service). It is common ground that the applicant had eligible defence service. The standard to be applied there is the standard of reasonable satisfaction. That is the standard specified in s 120(4) of the Act, which applies to determinations not covered by s 120(1), (2) or (3). The application of s 120(4) includes determining the “kind of injury or disease” (s 120A and s 120B) or other relevant issues such as “diagnosis” and the “date of clinical onset” of any condition.
22. The appropriate Statements of Principles (SoPs) in determining Major Farmer’s claims are:
Cervical Spondylosis
Peacekeeping Service No 33 of 2005
Defence Service No 34 of 2005
Interverbral Disc Prolapse T6-T7
Peacekeeping Service No 39 of 2007
Defence Service No 40 of 2007
23. In respect of Intervertebral Disc Prolapse, if the applicant is unsuccessful in respect of SoP Nos 39 or 40 of 2007, he has a residual right to have his claim reconsidered under the earlier SoP; i.e. No 130 of 1996 and 131 of 1996.
24. The applicant’s service as a veteran is not in issue (Repatriation Commission v Hancock [2003] FCA 711).
Diagnosis and Clinical Onset
25. Identification of “clinical onset” is fundamental to satisfying relevant SoP criteria. It means that there must be some indicia of symptoms by which a doctor can form a professional opinion about an injury or disease (Re Robertson and Repatriation Commission (1998) 50 ALD 668; and Repatriation Commission v Cornelius [2002] FCA 750). The symptoms and medical diagnosis must also coincide with the schema set out in the relevant SoP (see Full Court decision in Lees v Repatriation Commission [2002] 125 FCR 331).
Cervical Spondylosis
26. The diagnoses of Major Farmer’s conditions have been subject to some variability since the incidents which are the basis of his claims. In relation to Cervical Spondylosis:
· Colonel Rosenfeld in 2006 identified MRI evidence which showed “degenerative changes” to the cervical spine C5-C6. That opinion was not specific as to diagnosis or clinical onset (at least not in terms of “cervical spondylosis”).
· Dr D’Souza in 2006 summarised Dr Rosenfeld’s report as diagnosing “cervical spondylosis”. He said date of onset would be date of MRI scan in 1997. This was an MRI privately obtained by the applicant. Dr D’Souza commented that the applicant had downplayed the 1997 date as the date of onset as it was not mentioned in clinical notes of 22 January 2004. At that time, the applicant stated he had “neck pain over the last two years”.
· Dr John Morris on 16 December 2009 reported the clinical onset of “cervical spondylosis” as being in 1980.
Intervertebral Disc Protrusion
27. In relation to Intervertebral Disc Protrusion:
· Dr Low in 2000 attributed the pain to thoracic degeneration. He did not address clinical onset.
· Dr D’Souza reports that there is a diagnosis of Intervertebral Disc Prolapse at T6-T7 based on the MRI Scan of 20 May 1998. He attributes a date of clinical onset of 20 May 1998 based on that material. He also reported there was no aggravation to this condition based on annual health assessments dated 4 March 2002, 15 April 2004 and 25 November 2005.
· Dr John Morris on 16 December 2009 said the diagnoses of the thoracic spine condition is T7/8 centrolateral disc protrusion. He emphasized that Major Farmer “does not have thoracic spondylosis, only the disc prolapse”. Dr Morris provided further justification in his supplementary report of 24 February 2010. He said Major Farmer had symptoms which got worse in 1998. An MRI in 1998 disclosed “a disc protrusion at T7/8”. He further explained that he thought it was “more likely” in relation to the stretcher incident, that Major Farmer “had a soft tissue injury to his muscles” which caused this pain. However, the fact that he had symptoms extending for three weeks which required analgesia “would suggest that there may have been an injury to the underlying T7/8 disc”. He concluded that he was “relying entirely on Mr Farmer’s history that he had medical treatment by Army doctors on two occasions with the provision of analgesia. If this was found to be inaccurate, then I would feel that this initial injury was just a muscle strain. In other words, I am implying that the reason I said he had a disc injury is the fact that he had ongoing pain for 3 weeks which requires analgesia”.
28. What diagnoses and clinical onset can be made on the balance of probabilities under s 120(4)? In relation to cervical spondylosis, the condition is noted by Dr D’Souza with attribution of that diagnosis to Colonel Rosenfeld and with a date of clinical onset in 1997, based on the MRI Scan. Dr John Morris also concluded a diagnosis of cervical spondylosis. There is ample evidence of the injuries sustained as a Cadet Officer at the Cadet School, Portsea with sufficient corroborating evidence of the injury. It had not been treated for some years and the activity of sport and training in an Infantry Regiment and overseas postings gives credibility to the claim. Dr Morris put date of clinical onset as 1980. That was the year he had the gymnasium injury while at Portsea. On the balance of probabilities, I find he has cervical spondylosis, with its origin in the gymnasium at Portsea in 1980.
29. In relation to Intervertebral Disc Prolapse this condition is supported by Dr Low (in 2000). It is also noted by Dr D’Souza as a summary of clinical notes given by the applicant to an Army Doctor, Dr Neath. Those notes refer to a 1998 MRI which was privately organised by Major Farmer (not by the Army medical system).
30. Dr Morris refers to disc protrusion in 1998. This appears to be based on the MRI in 1998. Dr Morris refers to an X-Ray in August 2008 and reports that the X‑Ray shows a scoliosis. He commented “The scoliosis is a congenital or developmental condition and not related to his service in the Army” (emphasis added).
31. The subsequent report by Dr Morris dated 24 February 2010 says the “more likely” injury to the thoracic spine is “a soft tissue injury to his muscles when he was carrying the stretcher as he was able to continue working”. However, Dr Morris says if there is evidence in the medical records to suggest he was taking analgesia for three weeks after that injury, he may have had a disc injury. The corroborating evidence is an initial report of 20 March 1984 which indicates he has “thoracic back pain, no spasms, tender in region T9-10” but with full range of movement and no other abnormalities detected. Analgesia was prescribed but he was also considered fit for “full duties” at the same time.
32. The medical attendance and report by the Regimental Medical Officer three weeks later on 12 April 1984 was almost the same as the report of 20 March 1984 i.e. he had “no muscle spasms”, “all range of movements” and “no major pathology”.
33. A copy of a further Injury Report was submitted to his Army Unit on 27 April 1984 by the applicant, again reporting back pain. He attributed this also to the Special Aid Service Regiment selection course attended in March 1984 but did not on this occasion mention the stretcher incident. He outlined the circumstances of the injury as: “I was required to march considerabl[e] distances with many weights on my back – causing back pain and numbness”. The applicant notes in his claim report at folio 58 of the T Documents that he was “seen by the medical officer who inspected me but who seemed sceptical of my condition …”. The medical reports of 20 March 1984 prescribed analgesia but the fact that an infantry officer is put back immediately on “full duties” is indicative of the medical officer at the time regarding it as not a particularly serious injury.
34. In the absence of any objective medical evidence of the disc protrusion, I would find on the balance of probabilities in accordance with Dr Morris’s report of 24 February 2010 (the diagnosis resulting from the injury of 20 March 1984 was a soft tissue injury). However, I note (and as accepted by the VRB decision), there was a report by a Dr Giles of 20 May 1998 referring to the MRI scan of 19 May 1998. I therefore find on the balance of probabilities, a diagnosis of intervertebral disc prolapse at T6-7, with a date of clinical onset of 19 May 1998.
Were the conditions attributable to Peacekeeping Service or Defence Service?
35. To be entitled to compensation under s 13, the applicant must have an injury or disease, or an aggravation or material contribution to that injury or disease which is causative of (arose out of or was attributable to) the peacekeeping service or defence service. The test is not as high as proving direct causation (Law v Repatriation Commission (1980) 29 ALR 64). However, the standard of proof in s 120(3) or s 120(4) as the case may be, must be established. The SoP and the provisions of s 120A and s 120B set out the means by which the standard of proof is to be deduced.
36. The method to be applied in assessing the requirements of s 120 is the four step process set out by the Full Court of the Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82, as follows:
1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. [this is now accepted as partially inaccurate; see the discussion of Gosewinckel below.]
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the ‘template’ to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person’s service (as required by s196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be ‘reasonable’ and the claim will fail.
4. The tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved. (at 49 ALD 206)
37. This process is applied to each of the conditions claimed.
CERVICAL SPONDYLOSIS
Peacekeeping Service
38. At the first stage of the Deledio process, Major Farmer has raised a hypothesis connecting his cervical spondylosis with his peacekeeping service. The hypothesis raised does not involve any finding of fact. If the material does not raise a connection hypothetically the claim fails at this stage. This stage is satisfied as a hypothesis of connection is raised.
39. The second step of the Deledio process requires identification of any relevant SoP. This is No 33 of 2005. The appropriate criteria (factors) against which to gauge the evidence are contained in paragraph 6 of SoP 33 of 2005. The applicant claims:
1. Factor 6(q) - having a trauma to the cervical spine before the clinical worsening of cervical spondylosis.
A “trauma to the cervical spine” means a discrete injury … to the cervical spine that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either mobility and range of movement of the cervical spine. These symptoms and signs must last for a period of at least seven days following their onset …”. (see definition in paragraph 9 of SoP 33 of 2005).
40. The respondent submits that the factors in SoP 33 of 2005 that are relevant are:
1. Factor 6(g) – having a trauma to the cervical spine before the clinical onset of cervical spondylosis;
Or
2. Factor 6(s) – carrying loads of at least 15 kilogram on the head while upright to a cumulative total of at least 72 kilograms within any ten year period before the clinical worsening of cervical spondylosis.
41. Step 2 is satisfied.
42. The third Deledio principle requires the Tribunal to form an opinion of whether the hypothesis raised is a reasonable one. I am required to find in favour of Major Farmer unless the material before me is disproved because one of the premises in the material is not true or there is a further fact proved which is inconsistent with the hypothesis. The standard of proof in each of those criteria is proof beyond reasonable doubt (Byrnes v Repatriation Commission (1993) 177 CLR 564 at 567).
43. This step also does not involve any fact finding process. The material presented and the diagnosis and date of clinical onset already determined shows that cervical spondylosis occurred prior to his peacekeeping service.
44. Assessment of Step 3 of the Deledio process is to determine whether the hypothesis is reasonable. It must be pointed to by the material. It must not merely be left open by inference; there must be some assertion of substance. In East v Repatriation Commission (1987) 74 ALR 518 it was held that the hypothesis must be more than a possibility and must be consistent with the ‘known’ facts, not be too tenuous, remote, fanciful or impossible. In addition, where an SoP is in force, the hypothesis must also be “consistent with the template” of the factor(s) in the SoP (Howard v Repatriation Commission [1999] FCA 1030).
45. The respondent submitted in its statement of facts and contentions that it understood Major Farmer did not intend to rely on trauma during the period of his peacekeeping service. The applicant’s supplementary statement (Exhibit 5) also refers to the corroborating evidence of Mr Liddlelow as to the duration of his symptoms immediately following the injury. There is considerable evidence of the range of route marches, physical training and drills undertaken. The context of his success at Portsea in particular as being due to coursemanship is reiterated in the supplementary statement as was admitted into evidence previously. This is probably consistent with the respondent’s contention but given this decision is being finalised “on the papers” without express response by the applicant to the respondent’s contention about this issue, I will assess the diagnosed condition for the purpose of peacekeeping service.
46. I make the following findings of fact:
1. The applicant received trauma to his neck and cervical spine in 1980.
2. The symptoms lasted in excess of 10 days.
3. The range of physical activities in terms of marches, physical training and drills was of a high order.
4. The applicant’s colleagues at Portsea provided considerable assistance to him at various times during many of these activities.
5. Major Farmer is a witness of truth.
47. Having made those findings, items (a) to (d) above demonstrate the circumstances around the time of the applicant’s Portsea training. They do not reveal any circumstances which point to any incident on peacekeeping service which might have “worsened” this condition since its clinical onset in 1980. The applicant refers to a requirement to wear Kevlar helmets and body armour in the Sinai for prolonged periods. In relation to the proposition that Kevlar helmets aggravated his condition, the respondent argues the helmets do not meet the 15 kilogram requirement in factor 6(s). No further evidence is provided by the applicant in relation to either Kevlar helmets or body armour and no medical opinion is provided on that issue. The applicant says that the condition is also now exacerbated by his current duties of sitting for long periods and doing computer work. The aggravation experienced even in his present duties may be true, but are not relevant to his peacekeeping service which pre-dated his current duties. I therefore find that the hypothesis relating to peacekeeping service is a possibility but is not consistent with the template factors and is too tenuous or remote and therefore, the claim for this condition in relation to peacekeeping service fails. In these circumstances, it is not necessary to consider Step 4 of the Deledio process.
For Defence Service
48. SoP number 34 of 2005 is relevant here. Factor 6(f) which is the appropriate factor to be considered is:
1. Factor 6(f) - having a trauma to the cervical spine within the 25 years before the clinical onset of cervical spondylosis.
49.The definition of “trauma to the cervical spine” in this SoP states the symptoms must last for at least 10 days.
50. The respondent submits that the material points to pain and tenderness but does not point to altered mobility or range of movement. I cannot accept that submission. It seems inconsistent with the impact or magnitude of damage which would have resulted from two falls on his neck area as it struck the end of a vaulting horse. In any event, the statement by Mr Liddlelow dated 10 July 2007 (T4/112) is supportive of the fact that “he had restriction of his neck and arms for a few weeks after the incident and he appeared to be in considerable pain”.
51. Much of the evidence outlined above from the applicant’s supplementary statement would not, in my view, be inconsistent with the life of this infantry officer serving in a battalion environment. The medical evidence shows over that time however, that he had declared himself to be fit for service or has been assessed as being fit for duty. There is evidence of a consistent pattern of reporting pain in the cervical spine area over his military career. That evidence alone would not necessarily be sufficient to satisfy the template of SoP 34 of 2005. However, the report of Colonel Rosenfeld dated 3 February 2006 noted that on his examination of the applicant, he has some restriction in the range of his neck movement on lateral flexion to the right (although mild). He noted degenerative changes at C5-6 on the MRI of the cervical spine. Consistently with that opinion, Dr Morris reported in December 2009 that accepting that the applicant’s symptoms deteriorated in 2005, the trauma which occurred within the previous 25 years pointed to a clinical worsening of the cervical spondylosis. On that basis, there is support for the hypothesis that there is a clinical worsening of cervical spondylosis. I find accordingly.
52. Step 4 of the Deledio process must also now be addressed. This is the last step to be undertaken where a reasonable hypothesis has been found. This step reverts to s 120(1) of the Act and provides that the injury must be accepted as defence caused unless I am satisfied to the standard of proof beyond reasonable doubt, that there is no sufficient ground for making that determination (Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571).
53. This stage requires an examination of the evidence. I find that recent medical opinion (particularly Dr Morris) strengthens the case for cervical spondylosis being caused by defence service, and there are no other facts which are proved beyond reasonable doubt and which could disprove the reasonable hypothesis.
54. I find therefore that the applicant satisfies SoP No. 34 of 2005 based on the standard of proof being on the balance of probabilities as required by s 120(4).
INTERVERTEBRAL DISC PROLAPSE
55. I have previously determined a diagnosis of Intervertebral Disc Prolapse at T6-7. The question for determination is whether that condition satisfies the current SoPs for this condition for Peacekeeping Service or Eligible Defence Service (and if necessary, the earlier SoPs).
56. At the outset in considering this aspect of the claim, I note Major Farmer’s strong dissatisfaction that consideration was not given to the SoP for Thoracic Spondylosis or more particularly, worsening of Thoracic Spondylosis. The applicant argues that he can satisfy Factors 6(o), (p) and (q) in relation to thoracic spondylosis or a worsening of such a condition. However, with respect, that shows a misconception of the role of the Tribunal (or Veterans’ Review Board or the Department of Veterans’ Affairs) in making a determination as to legal questions of diagnosis. The Tribunal must, in determining entitlement to pension or compensation, apply the statutory law. In doing so, it must first determine the most appropriate diagnosis. It does not diagnose a condition, but rather, must determine the most appropriate diagnosis where there is inconsistency in professional opinions. It must make a determination based on the most credible evidence (Benjamin v Repatriation Commission (2001) 70 ALD 622). Consequently, I now turn to assessment of the diagnosed condition of Intervertebral Disc Prolapse.
Peacekeeping Service
57. The relevant SoP is No. 39 of 2007. The relevant factor submitted by the respondent in that SoP is factor 6(j) as follows:
Physically carrying or lifting loads of at least ten kilograms, to a cumulative total Load-Factor of at least 150,000, within the ten years before clinical worsening of intervertebral disc prolapse.
58. The applicant submits factors 6(o), (p) and (q) are satisfied. These refer to the SoP concerning Thoracic Spondylosis. As outlined above, the Tribunal has made a determination that Invertebrate Disc Prolapse T6-7 is the most appropriate diagnosis.
59. The hypothesis raised for this condition during Peacekeeping Service is that this injury had onset on 19 May 1998, and that his duties in the Sinai Desert in 2002 resulted in a clinical worsening. The Tribunal is reminded that the applicant’s service with the Australian Regular Army was for one period from 1979-1990 (11 years). He then served with the Army Reserve from 1 September 1992 to 31 December 1995. He was reappointed to the Australian Regular Army for a second period on 1 January 1996 and continues to serve. In sequence, the injury resulting in the Intervertebral Disc Prolapse T6-7 had clinical onset in 1998. Subsequently, he served in Sinai from 9 April 2002 to 16 October 2002.
60. The Veterans’ Review Board did not find that any factors of the SoP were satisfied and therefore concluded that a reasonable hypothesis was not raised under either SoP 39 of 2007 or under the accrued right to SoP No. 13 of 1996. The respondent now says that the material does not point to a clinical worsening.
61. Applying the Deledio principles, the applicant raises a hypothesis linking his injury to his overseas service (Step 1). A SoP (No. 39 of 2007 and No. 13 of 1996) exists (Step 2).
62. There must then be an assessment of Step 3 i.e. whether the hypothesis is reasonable. The assertions made by Major Farmer in respect of the criteria in Factor 6(j) are not supported by corroboration or independent evidence. Dr Low examined the applicant in 2000 in relation to his thoracic spine and attributed his military service to the contraction of this condition (greater than 50% contribution). Colonel Rosenfeld did not report on the applicant’s thoracic spine. Dr D’Souza identified a diagnosis of intervertebral disc prolapse T6-7 with onset on 20 May 1998. Dr Morris more recently, has examined all of the evidence of the applicant and concluded Major Farmer “does not have thoracic spondylosis, only the disc prolapse”. Dr Morris also made conclusions as to other medical issues which are of importance:
1. there is no evidence of worsening of any diagnosed condition (based on X‑Rays (1988) and a MRI (1998)).
2. an X-Ray taken on 21 August 2008 “revealed a loss of body height at T7, T8 and T9 with a scoliosis. The scoliosis is a congenital or developmental condition and is not related to his service in the Army”.
63. Dr Morris’ opinion is expert evidence and is comprehensive and has taken account of previous medical records and other reports. This may be disappointing for Major Farmer given that he has been claiming for thoracic spondylosis for a long period of time now.
64. I have noted Major Farmer’s claims about the history and medical evidence and his claim as to symptoms. I have looked also at the medical evidence and note the injury occurred in 1984. That has not been supported by the doctors (other than Dr Low in 2000). However, given the history of medical reports, I find Dr Morris’ opinion very persuasive. He has given an independent opinion based on all of the available evidence.
65. I understand that the applicant experiences back pain. That is undoubtedly distressing. However, the evidence from medical specialists amount to expert opinions that quite objectively opine that the only condition is intervertebral disc prolapse at T6-7. In addition, it is a degenerative condition unrelated to the applicant’s military service. No conflicting medical opinion has been presented by other experts.
66. Regrettably, this claim is not satisfied for peacekeeping service. I have also reviewed the relevant factors in SoP No. 130 of 1996 and find the claim asserted by the applicant under that SoP is not satisfied.
Defence Service
67. I have considered SoP 40 of 2007 and the factors in the applicant’s accrued right under SoP 131 of 1996 (amended by SoP 93 of 1997).
68. I have again considered the claims in light of the whole of the evidence. I have formed the view that those SoPs provide no support for the applicant’s claim and the medical evidence is not corroborative of Major Farmer’s claims for the thoracic spondylosis or intervertebral disc prolapsed on the basis of his eligible Defence Service.
69. I find the decision under review relating to the thoracic spine is correct.
70. I find as follows:
Issue 1
1. The decision in relation to Cervical Spondylosis with respect to peacekeeping services is affirmed.
2. The decision in relation to Cervical Spondylosis with respect to defence service is set aside. The substituted decision is that the applicant’s condition is related to his defence service. I refer this decision to the Repatriation Commission to determine pension entitlements in terms of this aspect of this decision.
Issue 2
3. The correct diagnosis of the thoracic spine condition is Intervertebral Disc Prolapse T6-7.
Issue 3
4. A diagnosis of Thoracic Spondylosis is not appropriate based on the evidence available.
Issue 4
5. The decision in relation to Intervertebral Disc Prolapse T6-7 is affirmed with respect to Peacekeeping Service.
6. The decision in relation to Intervertebral Disc Prolapse T6-7 is affirmed with respect to Defence Service.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member
Signed: ....................[Sgd].........................................................
Kate Slack, Research AssociateHearing on the Papers 27 April 2010
Date of Decision 28 June 2010
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