Wilson and Repatriation Commission
[2004] AATA 1299
•7 December 2004
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2004] AATA 1299
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2003/1833
VETERANS' APPEALS DIVISION ) Re VIVIAN WILSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr M Griffin, Member Date7 December 2004
PlaceSydney
Decision The decision under review is affirmed. …………………….
Mr M Griffin
Member
CATCHWORDS
VETERANS’ ENTITLEMENTS - lumbar spondylosis with spinal canal stenosis/trauma - decision under review affirmed.
Briginshaw v Briginshaw (1938) 60 CLR 336
Veterans’ Entitlements Act 1986 - sections 119, 120(4)
Statement of Principles No.47 of 2002 as amended by No.77 of 2002 for lumbar spondylosis
REASONS FOR DECISION
7 December 2004 Mr M Griffin, Member 1. This is an application made under section 175 of the Veterans’ Entitlements Act 1986 (“the Act”), for review of a decision of the Repatriation Commission made on 8 May 2003 and affirmed by the Veterans Review Board (“VRB”) on 8 October 2003. The Repatriation Commission decided to refuse Mr Wilson’s claim for lumbar spondylosis with spinal canal stenosis.
2. At the hearing Mr Wilson was represented by Mr Winship, a solicitor. Ms S. Kenny, an advocate for the Department of Veterans Affairs appeared for the Respondent. The Tribunal had before it the documents (T documents: T1-T21, pp 1-101) lodged pursuant to section 37 of the Administrative Appeals Act 1975 and the Exhibits tendered during the hearing. Mr Wilson gave evidence and Dr Benanzio gave specialist medical evidence. The Respondent concedes that Mr Wilson suffers from lumbar spondylosis and vertebral canal stenosis. The Respondent concedes that the clinical onset of lumbar spondylosis was in the early 1960’s.
3. The issue before the Tribunal is whether or not it can be satisfied on the balance of probabilities that Mr Wilson suffered a trauma to his back in accordance with Factor 5(g) of the relevant Statement of Principles (“SoP”). The SoP No.47 of 2002 as amended by No.97 2002 for lumbar spondylosis provides relevantly:
“Trauma to the lumbar spine means a discrete injury to the lumbar 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 spine. These symptoms and signs must last for a period of at least 10 days following the onset; save for where medical intervention for the trauma to the lumbar spine has occurred, where that medical intervention involves either:
(a) immobilisation of the lumbar spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the lumbar spine; or
(c) surgery to the lumbar spine.”
EVIDENCE
4. Mr Wilson is 82 years of age. He enlisted in the Army in 1946. The documentary evidence in this matter commences from that time. His enlistment medical record completed on 28 February 1946 contains a number of handwritten entries and two stamped entries which respectively read “injury to head” and “injury to back”. The two stamps appear immediately after two handwritten entries for the words “No”.
5. Mr Wilson was questioned at length about these entries however I am satisfied that nothing of any significance turns on those entries. The next significant service record is a sick report dated 17 March 1948, which refers to “diagnosis right inguinal hernia, treatment operation later”. This record is contained in Exhibit R1. The next record is a similar sick report for 22 April 1948 again with the diagnosis right inguinal hernia and the treatment is a referral to “115 Australian Military Hospital”.
6. The next document is a hospital or sick list record card; it has a date of admission of 3 May 1948. Under the heading “diagnosis” it has “right inguinal hernia”. Under the heading “history and examination on admission” it notes “first noticed lump in right groin several weeks ago – ‘felt something go’ - general health good. For operation 14 May 1948.” An entry on 12 May 1948 reads “suffering from cold. Transfer back to… for one week.” The next entry is 21 May 1948. It records the operation to treat the inguinal hernia. There are further entries for 25 May 1948 which refer to the removal of stitches and 7 June 1948 which says “May … tomorrow”. The next entry is 8 July 1948 which reads: “returned from leave, wound well heeled, discharged”.
7. The next service record medical document is at T3, p13. It is the record of a medical examination prior to discharge. Part one of the record is headed statement by member and it was completed by Mr Wilson. It records under the heading: “From what disabilities have you suffered while a member…?”, the answer: “Hernia operation”. It states the reasons for the hernia as “lifting cases of paper”. Against the question “Do you suffer from any other persistent disabilities as a result of the above”, Mr Wilson wrote “no”.
8. Mr Wilson saw a Dr Kalnins, Orthopaedic Surgeon, in November 1996. Dr Kalnins recorded:
“He states that while in the Armed Forces he was helping to lift a heavy cylinder when he developed a right hernia which required operation. He required 18 days in hospital following this. He remembers having back pain at the same time but this settled, requiring no specific treatment and he had no problems with his back until 35 years ago when he states the back ‘went on me’ and he ended in hospital for a period of bed rest. From that date until more recently he had had no specific treatment although he remembers having intermittent backache for which his local medical officer gave him deep heat. Approximately one month ago he also developed left knee pain…
Mr Wilson has degenerative changes throughout his thoracic and lumbo-sacral spines. I do not believe that a lifting episode causing back pain as described would cause the generalized degenerative changes that are present in his spine. He also has degenerative changes in his left knee with no history of injury at any stage…”
In a second report dated 28 November 1996, Dr Kalnins wrote:
“I have viewed the above patient’s CT of his lumbo-sacral spine which was performed on 11/1/1996…
My opinion with regard to the origin of this man’s symptoms remains the same in that I do not believe the one lifting episode which he describes has caused these widespread changes and I believe that the symptoms are related to a generalised degenerative condition in his lumbo-sacral spine.”
9. On the Veterans’ Affairs Claim Form (T10, p46) Mr Wilson wrote:
“In respect of the back injury ‘lifting and moving heavy gas cylinders weighing up to 300 lb each whilst stationed at Bendigo.”
10. Mr Wilson saw a Dr Portek, Consultant Rheumatologist, in August 2003. Dr Portek reported on 2 September 2003 “he will undergo intra articular right hip injection and hopefully this will be of benefit and upon review I will outline my thoughts of further management”.
11. On 23 September 2003 Dr Portek reported:
“I reviewed this man on 23 September and he has obtained good benefit from injection of his right hip. I feel therefore that pain probably arises from his hip rather than his lumbar spine and have re-emphasized the importance of weight reduction and an exercise program.”
12. Mr Wilson gave oral evidence to the Veterans’ Review Board (“VRB”) on 8 October 2003. The transcript of that evidence is Exhibit R3. Mr Wilson was asked what happened in the lifting incident that gave rise to his injury. He described being involved in the lifting with equipment of a heavy printing cylinder. He said at page 10:
“I took the full weight of it…
Straight away I got this hernia and my back was so sore I took time off straight away and when I saw the RAP and they told me what was my trouble, they put me into hospital straight away. “
13. He was asked: “How did you go to RAP?” and he said “probably the same day. I can’t remember now … No I can’t because I thought that it was almost immediate because, as I say… No, I thought it was almost immediate that I went to hospital.”
14. The VRB member pointed out the admission dates being sometime after the first entry on the medical record for the hernia. Mr Wilson said at page 11:
“I can’t answer that. I thought it was straight away. I would have reported it straight away because that’s when my back went as well.”
15. Later, at page 13, Mr Wilson said:
“Look to tell the honest truth I thought I went probably the next day or after I had been to the medical officer and they go through the routine and then make arrangements for me to go to Heidelberg and so on…
Straight away, well, within a certain period of time I would say. I didn’t mean straight away because I would have to go through the normal procedure which would be report to the medical officer, then probably go to some other procedure and then take off for Melbourne. I don’t know how I even got down there.”
16. Mr Wilson saw Dr Benanzio, Orthopaedic Surgeon, on 22 March 2004. Dr Benanzio recorded:
“Sometime in 1944 or 1945, when helping the engineers to lift a heavy cylinder (about 1 tonne), he was suddenly jarred and developed:
A right inguinal hernia with pain in the right groin.
Low back pain not radiating to the lower limbs.
He stopped work and the matter was reported. He does not recollect if he was seen by a Medical Officer. He worked on light duties for some time, and at a date he does not recall was referred to Heidelberg Hospital for repair of the right inguinal hernia. Post-operatively he was in bed for 18 days.
I understand that the low back complaints that developed at the time of the accident, settled…
According to the history as given to me, this patient has never been free from a degree of low back discomfort since the lifting accident of around 1945…
On the grounds of the history received and the clinical and radiological evidence, I am of the opinion that this case satisfies Factor 5(g) of the RMA Statement of Principles concerning lumbar spondylosis (Instrument 47 of 2002): ‘Suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis’.”
17. Mr Wilson told the Tribunal that in March or April 1948 he was changing a printing cylinder in a machine which weighed about a tonne, it was about 18 inches thick and 14 inches long and was being done with a gantry and chain and that he was assisting a Warrant Officer Mechanic. He said he was holding one spindle and the chain slipped and he took the weight of it and felt pain in his groin and severe pain in his lower back. He said that the Warrant Officer told him to report to the RAP where he was given something for the pain and told to rest for a couple of days. He said he went home and rested and then reported after a couple of days back to the camp. He said he had lower back pain and he could hardly walk without some medication. He said he thought the medication was aspro. He said the hernia gave him discomfort in the right groin. He said he was put on light duties by a different Warrant Officer for about two to three weeks. He said he couldn’t be certain of the period. He said after he finished the light duties he had to wait until he went to Heidelberg hospital for the operation for the hernia. He said the back was still paining him after the operation when moving around in bed but he had medication to offset that. He said the medication was for the back and the hernia. He said he was not allowed to get up for 18 days. He said he was sent for rehabilitation for a couple of weeks. He said he still had lower back trouble and regular medication with aspro. He said the back pain persisted but it was not great trouble “just nagging me”. He was asked about the discharge medical record and said that he must have told the medical officer he was lifting cases of paper but he didn’t remember saying it. He said the incident had nothing to do with cases of paper; it was definitely lifting a cylinder. He said after his discharge from the Forces he worked as a printer. He said he had problems with his lower back and started his own business in a supervisory capacity and was able to take it a lot easier in that role. He said he couldn’t do heavy printing work. He said “from nowhere I had a pain in my lower back” in 1965. He said it was a shocking pain in his lower back and he couldn’t move and his wife called the doctor who put a needle in his back and called an ambulance. He said he was placed in traction at the hospital which gave him great relief and he bought his own traction appliance to use at home.
18. In cross examination he was asked about the period of time from the lifting incident to the operation “he said he wasn’t sure”. He was asked if his memory was fairly hazy. He said “to be exact I wouldn’t like to say”. He was asked about the discharge medical examination record. He was asked if the entries were wrong. He said he didn’t know if the question related solely to ongoing back pain or to the hernia alone.
19. He was shown the sick reports for 17 May 1948 and 22 April 1948. He couldn’t remember if the incident had in fact occurred on 17 March 1948. He agreed that he had told the VRB that the next day following the incident he had been taken to hospital. He said “I now believe that’s wrong…I have had time to reflect and my wife helped me to recall.” It was put to him that the timings had been changed because the documentary evidence conflicted with his earlier oral evidence. He said “it’s not that my memory has changed. I was young and you don’t make a big fuss about it. The back pain slowed down through the medication.” It was put to him that he did not have a good memory of the events. He said “oh yes, up to a certain degree. You learn to live with certain things. If I am prompted they come back to me.”
20. Dr Benanzio gave oral evidence. He said that the lumbar spondylosis was not caused by trauma but the trauma could trigger changes in tissue bringing changes leading to spondylosis. He said: “given the history of the trauma and niggling ever since, it can be thought that some pathology started to take place.” He said: “this was more probable than not”. He said “given the history it is likely this specific accident would persistent discomfort, it is the triggering factor or better to say it did contribute to the present condition.” In cross examination Dr Benanzio agreed that the degree of spondylosis in Mr Wilson is consistent with his age. He said that everybody gets it. He agreed that at the multiple levels age is the most likely cause.
21. Mr Wilson saw Dr Bodel, Ortopaedic Surgeon, on 5 April 2004. Dr Bodel recorded:
“The letter from Dr Kalnins confirms the history given to me in that Mr Wilson reported that he did have some back pain at the time of the hernia but it settled without specific treatment. That is a consistent finding.
I was unable to locate any direct reference to a medical examination at the time of the hernia, in the documentation provided but only the examination before admission to the Army and on completion of his period of service. I am therefore unable to confirm from the documentation whether there was any mention of back pain at the time of his hernia.
This gentleman therefore does have quite genuine age related degenerative change in the lumbosacral spine which constitutes lumbar spondylosis and vertebral canal stenosis...
In reviewing the factors in item 5 in the original Statement of Principles I note that he may satisfy item 5(g) ‘suffering a trauma to the lumbar spine within the 25 years immediately before the clinical onset of lumbar spondylosis’. The only basis for this is the history given by Mr Wilson of the existence of back pain at the time that he developed his hernia. Unfortunately the contemporaneous documentation does not confirm that there was back pain at that time and I note that his medical discharge makes no mention of any back problems…
I would indicate therefore that this gentleman does have lumbar spondylosis with spinal canal stenosis. This is primarily a constitutional ailment unrelated to any work activity. It is possible that the lifting incident during his period of operational service, which led to a hernia, could have caused a trauma to the lumbar spine in accordance with the definition in the Statement of Principles provided.
The clinical onset of lumbar spondylosis was in the early 1960s.
In my view he probably does not satisfy factor (g) in this circumstance as there is no clinical indication that he suffered any ‘permanent ligamentous instability of the lumbar spine’. There is also no clinical indication that he suffered a lumbar intervertebral disc prolapse before the clinical onset of symptomatic spondylitis.
It is also unlikely that he satisfies Item 5(j) which is the repetitive lifting item. As mentioned earlier however I believe that he probably does satisfy Item (g), the trauma provision in the Statement of Principles.”
22. That is, Dr Bodel appears on the one hand to be saying that there is no clinical evidence to support a finding that Mr Wilson satisfies Item 5(g), but on the other hand saying that he probably does satisfy Item 5(g) the trauma provision.
CONSIDERATION OF ISSUES
23. It is clear on this evidence that the issue turns on the accuracy of the history of trauma reported by Mr Wilson. The service medical records contain no reference to back pain and deal only with the inguinal hernia. That is a consistent record from March 1948 through until Mr Wilson’s discharge later that year. Each medical report including the one completed by Mr Wilson himself makes reference only to the hernia and is completely silent in respect of back pain. Mr Wilson’s consistent reporting is that the back pain settled quickly after the hernia operation. Mr Wilson has given inconsistent evidence about the period of time following the hernia incident for his hospitalization and treatment of the hernia condition. His evidence is that his wife was able to help him recall the events.
24. Mr Winship submits that Mr Wilson’s evidence about difficulty walking after the incident is consistent with his claim of suffering back pain at the time. Mr Winship submits that Dr Benanzio said 18 days in bed was a long time for a hernia operation and the inference that can be drawn is that there was something more preventing his quick recovery. Mr Winship submits that the fact Mr Wilson was on light duties for some time and told this to Dr Benanzio is some form of corroboration. Mr Winship submits that Dr Benanzio’s questioning of Mr Wilson is important for the astute nature of his questioning and that the history of niggling pain indicates that the trauma did contribute to the degenerative process.
25. Ms Kenny referred the Tribunal to the test in Briginshaw v Briginshaw (1938) 60 CLR 336 of indefinite testimony. Ms Kenny submits that the Applicant’s case is all about “inexact proof”. She says for example the suggested inference from 18 days in hospital that there was something more to his condition without anything in the documents or evidence to support this inference is typical of the indefinite testimony in this matter. Ms Kenny submits that there needs to be a discrete injury to the lumbar spine within 24 hours resulting in altered mobility and lasting 10 days at least to satisfy this particular claim. Ms Kenny points to the absence of any contemporary documentary records of back pain where Mr Wilson had the opportunity to complain about it and notes the discharge medical makes no reference to the back pain nor do the sick reports mention back pain. Ms Kenny points to the inconsistency in Mr Wilson’s own recording on the discharge medical document that he suffered the injury while lifting cases of paper rather than the later claim about the printing cylinder. Ms Kenny submits that Dr Benanzio agrees that the whole matter turns on the accuracy of the history and that Dr Benanzio said Mr Wilson’s condition is consistent with his age. Ms Kenny submits that Mr Wilson’s evidence can only be given very little weight because of his admitted difficulty with recall and his admission of having to have the assistance of his wife to remember events. Ms Kenny points out that at the VRB, Mr Wilson’s claim was presented as an immediate admission and 18 days in hospital which covered the 10 days in the SoP, however the documentary evidence contradicted this and that is why he now presents a different version of events.
26. Mr Winship referred the Tribunal to section 119 of the Act and submitted that the Tribunal should give the Applicant “the benefit of the march of time”. Mr Winship submitted that “to deny beneficial legislation because of lack of documentary records is unfair”.
27. Mr Wilson is an 82 year old man who has admitted that he has some difficulty recalling these particular events. Given the passage of time of some 60 years that is perhaps not surprising. However, the contemporaneous service medical records are significant. They contain no reference at all to the claimed back pain which is said to have occurred contemporaneously with the inguinal hernia. The sick reports in March and April 1948 are silent on back pain. The most significant document in the Tribunal's view is the medical examination prior to discharge record. This was completed in his own hand by Mr Wilson. He refers only to the hernia operation and says that the hernia was incurred as a result of “lifting cases of paper”. In answer to these specific questions “Do you suffer from any other ailments of any kind?”, he wrote “No”. His oral evidence to the VRB was entirely inconsistent with the documentary record of these events. The Tribunal formed the clear impression that Mr Wilson was unable to remember the history of events with accuracy. In all the circumstances, the Tribunal is not satisfied there was trauma to the back as required by the Statement of Principles.
DECISION
28. The decision under review is affirmed.
I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of
Signed: Neil Glaser
AssociateDate of Hearing 24 August 2004
Date of Decision 7 December 2004
Counsel for the Applicant Mr B Winship
Solicitor for the Respondent Mr S Kenny
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