Fall and Repatriation Commission [2000] AATA 29 (24 January 2000)

Last Updated: 25 January 2000

DECISION AND REASONS FOR DECISION [2000] AATA 29

) No V1998/651

)

Re GEOFFREY JAMES FALL

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Commodore B.G. Gibbs, AM, RAN (Ret'd), Senior Member Mr I.L.G. Campbell, MC, Member Dr C. Re, Member

Date 24 January 2000

Melbourne

Decision The Tribunal affirms the decision under review.

(Sgd.) B.G. Gibbs

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - Entitlement - Lumbar Spondylosis - whether war-caused - congenital pes planus - whether suffered physical trauma impairing ligamentous or bony structure of feet - whether a malalignment of lumbar spine

Words and Phrases - "physical trauma"; "malalignment"

Veterans' Entitlements Act 1986 - ss. 6,7,8,120, 120B

Smith v Repatriation Commission (1987) 74 ALR 537

Repatriation Commission v Law (1980) 31 ALR 140

Statements of Principles, Instrument No. 28 of 1999; 305 of 1995

REASONS FOR DECISION

24 January 2000 Commodore B.G. Gibbs, AM, RAN (Ret'd), Senior Member Mr I.L.G. Campbell, MC, Member Dr C. Re, Member

Introduction

1. 1986 ("the Act").

Representation

2. Mr Fall was represented before this Tribunal by Mr A. Larkin of Counsel. Ms J. McCulloch, Advocacy Section, Department of Veterans' Affairs, appeared for the respondent.

Material

3. 1975. Other material, to which it shall be necessary to refer, was also received in evidence during the hearing.

Witnesses

4. Evidence was given during the hearing by Mr Fall and evidence on his behalf was given by Mr. R. Westh, who is an Orthopaedic Surgeon, and Mr S. Schofield, who is also an Orthopaedic Surgeon.

5. Evidence on behalf of the respondent was given by Mr P.C. Lugg, who is a surgeon specialising in Orthopaedics.

6. It should be recorded that Dr F. Morgan, who is a Senior Medical Officer (Appeals) with the Department of Veterans' Affairs, was also called to give evidence at the request of the Tribunal.

Issue

7. The issue before the Tribunal is whether lumbar spondylosis is war-caused within the meaning of section 9 of the Act.

Relevant Service

8. the Act. He did not, however, render what is termed "operational service" within the meaning of section 6.

Standard of Proof

9. (1987) 74 ALR 537).

10. vides as follows:

"(3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b) there is in force:

(i) a Statement of Principles determined under subsection 196B(3) or (12); or

(ii) a determination of the Commission under subsection 180A(3);

that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."

Applicant's Contentions

11. In a Supplementary Statement of Facts and Contentions lodged with the Tribunal, it was stated on behalf of Mr Fall that:

s in turn contributed to an altered gait and postural problems and in turn then led to malalignment of his spine.

The following Statements of Principles formulated by the Repatriation Medical Authority "RMA) seem relevant to the subject proceedings:

(1) Instrument number 305 of 1995 dealing with congenital pes planus;

(2) Instruments numbered 166 of 1996, 53 of 1998 and 28 of 1999 dealing with lumbar spondylosis.

appeal to the Full Court of the Federal Court). All of the relevant Statements of Principles dealing with lumbar spondylosis have the following as a factor in the cause of lumbar spondylosis on the balance of probabilities:

'having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis.'

before the Full Court of the Federal Court accordingly is not relevant in these proceedings."

Respondent's Contentions

12. In an Amended Statement of Facts and Contentions lodged with the Tribunal, the respondent stated:

"4.3 The relevant SoPs in this case are:

* *Congenital Pes Planus, Instrument No 305 of 1995

* Lumbar Spondylosis, Instrument Nos 166 of 1996, 53 of 1998 and 28 of 1999.

4.4 Pes Planus

The applicant is relying on factor 1(a) of the Congenital Pes Planus SoP,

'suffering physical trauma which impairs the ligamentous or the bony structure of the affected foot immediately before the clinical worsening of congenital pes planus.'

The respondent contends that there is no evidence of the applicant suffering physical trauma to his feet immediately before the clinical worsening of his congenital pes planus.

4.5 Lumbar Spondylosis:

The applicant is relying on the factor 5(d) of the Lumbar Spondylosis SoP,

'having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis'

and contends that he suffered a physical trauma to his Congenital Pes Planus that led to the requisite malalignment of the spine.

The respondent contends that there is no evidence of malalignment of the spine or of any service related activity that impinged on the anatomy or function of the spine.

The respondent contends that the whole causal chain relied on to form the connection between service and a medical condition needs to be supported by SoPs (Repatriation Commission v Kevin John McKenna - Full Federal Court Decision, unreported 29 March 1999). In this case, the applicant's Pes Planus cannot be accepted via the Congenital Pes Planus SoP. In addition, the respondent submits that the veteran has not suffered any malalignment of the spine as defined in the Lumbar Spondylosis SoP."

Definitions - Congenital Pes Planus

13. SoP No. 305 of 1995 states that, for the purposes of the SoP:

tarsal anomalies.

r joint."

Definitions - Lumbar Spondylosis

14. SoPs No. 166 of 1996, No. 53 of 1998 and No. 28 of 1999 all provide that, for the purposes of the SoP:

"'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."

Evidence - Mr Fall

15. On 9 June 1998 Mr Fall signed a written statement for the purposes of these proceedings (Exhibit A1).

16. At the hearing Mr Fall confirmed that to his belief the content of the statement is true and correct.

17. Examination of the statement reveals that its content is both comprehensive and relevant to the issue for determination, and for that reason it is convenient to set out the statement in full:

I was born on 25 December 1926. I served in the RAAF from 10 January 1945 to 29 April 1946. I never served outside of Australia; the furthest north that I served was Brisbane.

For about the last twelve months of my service my duties were as a cypher assistant. These duties were mainly sedentary.

I suffered no back pain prior to enlistment. I first became aware of back ache during my service years.

Prior to enlistment I did suffer flat feet and hammer toes. When I was about fourteen years of age my family doctor (Dr Bartram then of Canterbury) prescribed arch supports which were made and fitted. I wore them until my enlistment. Prior to enlistment I wore the arch supports whilst undertaking normal activities although I did find them uncomfortable when running and I therefore did not use them whilst playing sport. To the best of my recollection I had suffered leg pain for a reasonable time before being taken to Dr Bartram by my mother. I cannot now recall how long I had put up with the symptoms before being referred to Dr Bartram but I imagine that it would have been a reasonable time as I certainly was embarrassed and resistant to having to wear the orthotics. To the best of my recollection the arch supports did alleviate my leg symptoms prior to enlistment.

I did not mention the trouble with my feet to the RAAF at any stage. I had been embarrassed by having to wear the arch supports prior to enlistment. There was peer pressure during service not to complain about ailments and I did not know of anyone else who wore arch supports. I did not want to become somewhat of an oddity and therefore I put up with the symptoms during service without complaint. The fact is that the pain in my feet did return during service and I think that the symptoms were further exacerbated by the service issue boots which I wore. I had not worn boots before service. I put up with the symptoms in my feet and back during service without complaint.

I suffered no injury to my back as such during service or at any other time of my life. To the best of my recollection the back ache commenced during my training with the RAAF (and also the route marches and drills were particularly uncomfortable). I recall suffering callouses and sore feet.

By discharge I was suffering an ache in my low back. It was then intermittent. After discharge I undertook an engineering course at Swinburne Technical College and I recall suffering back ache when sitting and studying. The ache developed to the point that in 1948 I first consulted a doctor about it. The doctor was Dr Judkins then of Box Hill. I do not believe that he is still in practice. I do recall that Dr Judkins advised bed rest but I cannot recall if he prescribed any medication. I did re-commence using arch supports after discharge but cannot recall whether I was using them again before the referral to Dr Judkins. In any event, I have worn arch supports for most of the time since discharge. I am wearing orthotics to the current day.

I believe that my back complaint is related in part to my altered posture during war service years which was consequent upon the pain in my feet. I believe that the fact that I did not wear orthotics during my war service years did contribute to the back complaint and certainly it was during this period that I first developed back ache.

My back pain progressed and I developed referred pain into both legs. I underwent a laminectomy in 1956 and this did relieve the symptoms in my right leg.

After completing my engineering diploma I obtained work as a civil engineer. I worked as a civil engineer until my retirement in 1982. My duties required me to visit sites but mainly my duties were sedentary. When I did visit sites I was not required to lift or undertake repeated bending activities.

My current family doctor is Dr G. Walsh of Fairhills Clinic, Glen Waverley. He has referred me to an orthopaedic surgeon, Mr S Schofield."

18. drilling.

19. Mr Fall stated that because of this he developed callosities under the balls of both feet and small toes and his feet became very sore.

20. ", Mr Fall explained that at first his mother thought he was simply experiencing "growing pains", but later became aware that the pain occurred mostly in the arch of his left foot and up into the calf of that leg.

21. without complaint, and that he did not seek medical treatment.

22. When asked why he did not seek medical treatment, Mr Fall stated that he did not want to jeopardise his chances of completing his training and eventually being posted overseas.

23. When questioned about his attitude towards wearing orthotics, Mr Fall responded by saying:

(Transcript, p9)

24. at the Signals School, Point Cook, from 30 March 1945 to 29 May 1945.

25. trative work at RAAF, East Sale, for a period of some four months before being discharged from the Air Force.

26. It was Mr Fall's evidence that while under training in Adelaide he was still required to march and that as a result he continued to experience the same problems with his feet.

27. Mr Fall said that while serving at Point Cook he had to participate in parades, however there was no marching.

28. It will be noted that in his written statement Mr Fall stated that to the best of his recollection he first began to experience back ache during his period of Air Force training, and that the pain in his feet worsened during that period.

29. In his oral evidence Mr Fall was somewhat less precise when asked about the onset of pain in his back, stating that:

(Transcript, p10)

30. Mr Fall was of the view that because of the pain that he experienced in his feet there were times when he was not walking properly and that to compensate for this he may have altered his posture.

31. It was Mr Fall's evidence that he continued to suffer back pain during the remainder of his Air Force service.

32. Mr Fall said that his recollection is that he first sought medical attention for back pain towards the end of 1948. He would then have been 22 years of age.

33. As he has recorded in his written statement, Mr Fall underwent a laminectomy in 1956.

34. When asked as to the success of the operation, Mr Fall stated in evidence:

I started getting the pain back again and I can remember in the '60's and the '70's I had many occasions where I was off work for three weeks at a time, which was prescribed bed rest, my doctor used to give me, to relieve the pressure."

Evidence - Mr R. Westh

35. Mr Westh, who as indicated earlier practises as an orthopaedic surgeon, saw Mr Fall on 14 October 1998, later providing four reports for the purposes of these proceedings.

36. In his report dated 10 November 1998 (Exhibit A2), Mr Westh, after taking Mr Fall's service and medical history, said of him as follows:

"There were no Xrays accompanying the patient. However, accompanying medical reports describe gross degeneration at L4/5 and L5/S1 with loss of the normal lumbar lordosis and degeneration with retrolisthesis at L3/4.

Thus in summary, Mr Geoffrey Fall is a seventy-one year old man who served in the RAAF between 1945 and 1946. During this period he had a lot of trouble with his painful flat feet and as a result he had problems with posture and he developed an aching discomfort in his lower back. There was no history of any injury during his service but subsequently when he resumed civilian life.

Of significance, he was experiencing back pain at the time of his discharge when he was only aged twenty and his pain progressed. He subsequently experienced left [sic] sided sciatica and ultimately he required a laminectomy in 1956. Thus, Mr Fall had very early onset of back pain which can only be attributable to his service in the RAAF. Following his surgery he has gone on to develop severe degenerative changes in his spine with loss of the normal curve and also instability in his spine.

Thus, in my opinion Mr Fall has developed a malalignment of his spine with resultant development of marked lumbar spondylosis. In my opinion, the claimed condition, i.e. lumbar spondylosis does fit within the Statement of Principles and this can be demonstrated using Instrument No. 52 of 1998, Factor 5(c), having a malalignment of the lumbar spine before the clinical onset of lumbar spondylosis."

37. ".

38. When asked to explain what he understood to be the process leading to the development of a malalignment of Mr Fall's lumbar spine, he stated as follows:

(Transcript, p23)

39. in turn, contributed to an altered gait and postural problems which, in turn, led to malalignment of the spine.

40. of his foot, due to the loss of the normal longitudinal arch of his foot.

41. When asked whether Mr Fall has a malalignment of the lumbar spine, Mr Westh replied that this was definitely the case.

42. During his oral evidence Mr Westh confirmed that in the past 10 years he has not come across any literature or medical studies showing that flat feet lead to malalignment of the lumbar spine.

43. Mr Westh further gave it as his view that the impairment of the ligamentous or the bony structure of Mr Fall's feet, as an exacerbation of his pes planus, would have occurred irrespective of whether or not he was wearing orthotics.

44. e added, however, that:

(Transcript, pp33-34)

Evidence - Mr S. Schofield

45. As indicated earlier, Mr Schofield, an orthopaedic surgeon, gave evidence at the hearing.

46. Mr Schofield first saw Mr Fall in 1990 and has since provided four reports (T19, p45; T20, p48 and Exhibits A5 and A6).

47. In his report dated 18 May 1999, which is addressed to the solicitors acting for Mr Fall, Mr Schofield stated as follows:

I further stated that the development of hammer toes could further add to that imbalance.

Retrolisthesis also means instability of the ligamentous structures supporting the lumbar spine and these x0ray changes are usually consistent with periods of pain in the spine and/or in the legs.

The predisposition to spondylosis occurring as a result of the flat feet did produce symptoms of backache during his war service. As stated in my previous report, my experience as a Consultant for the Navy was one of seeing many recruits and other male personnel developing back problems and stress fractures as a result of the route marching, doubling and gymnastics associated with their routine daily physical exercise. I have no doubt that ongoing problems of back ache will occur in many of these serviceman in future years as a result of their military, naval or air service. Arch supports do not alter the shape of flat feet and in fact, can do more harm than good. The patient did state that route marches and drills made his back and feet worse. This is consistent with the development of spondylosis and malalignment due to the flat feet and due to the drills required as part of his service."

48. When asked whether the pain which Mr Fall said he experienced in his feet as a result of marching and drill work was consistent with Mr Fall suffering some sort of trauma to the ligamentous in his feet, Mr Schofield stated that:

(Transcript, p43)

49.

"by doing some sort of balancing situation on the foot so that he can get out of the pain and that would be some postural realignment, I suppose, which would be involuntary but still it upsets a normal lumbar spinal balance."

50. In oral evidence, Mr Schofield was asked at what point in time did he consider Mr Fall's malalignment may have first begun. In response he stated:

(Transcript, pp45-46)

51.

52. The opening sentence of the article states":

"It is well established that low back pain is caused in large part by structural and functional abnormalities of the lower extremities as well as the lumbar spine and pelvis."

Evidence - Mr P. Lugg

53. As indicated earlier, Mr Lugg, who is an orthopaedic surgeon, gave evidence at the hearing.

54. Mr Lugg examined Mr Fall on 19 January 1999 and provided a total of four reports.

55. In the last of his reports dated 22 November 1999, Mr Lugg stated:

"Certainly standing in army boots would not cause the sort of injury which meets the definition. Marching in army boots with underlying pes planus may cause some ligamentous strain or pain. I think it probably would not impair the ligamentous structure as outlined in the definition.

Finally, I think that even if one accepted that there was some ligamentous damage to this man's flat feet, because he already had such significant pes planus, it is very unlikely that this ligamentous damage caused by his army service, not just very unlikely but extremely unlikely that there would be any long term effect on his spine."

56. The definition to which the doctor refers is the definition of "physical trauma" provided in the Congenital Pes Planus SoP No. 305 of 1995.

57. By way of explanation, Mr Lugg said in oral evidence:

"Yes, well, a traumatic disruption of the plantar ligament is a moderately painful injury and for that to occur during the sort of service that Mr Fall described, he would be suffering from moderate to severe pain and also to then go and say it happened in both feet I think it would be most unlikely. The diagnosis of Mr Fall's condition is a congenital pes planus and an acute rupture of the plantar ligament or any of the structures in the foot is irrelevant to that. This was a thing he was born with." (Transcript, p67)

58. It should also be recorded that it was Mr Lugg's observation that if Mr Fall, due to marching and drills, had suffered traumatic disruption of the plantar ligament, then he would be "hobbling".

59. During his evidence Mr Lugg's attention was drawn to the American Podiatry Association Journal article to which Mr Schofield had referred, and when asked whether there is any evidence in the medical literature that pes planus can cause a malalignment of the lumbar spine in terms of "malalignment" as defined in the SoP's concerning lumbar spondylosis, he responded as follows:

"No, look, I have got to say I was intrigued by this connection that Stan threw up because, I thought, crikey, I missed out somewhere, so, I did ask, first of all, a number of colleagues, not Stan, I didn't think that would be useful, and could find no one who could find that connection and I thought maybe we're just old fuddy-duddies, we don't know this stuff, so, then I asked the best people to ask and that's the Registrars about to sit the exam - couldn't bring it up. So, then one of the Registrars and I did several searches on the medical research through the Internet and all the orthopaedic literature and the [sic] in the last 10 years - we did limit it to the last 10 years, but in the last 10 years on the University of New South Wales we did a full research and we could find no connection between pes planus and any malalignment, any degenerative change of the lumbar spine. I then went back to every orthopaedic text book I've had because I think this is an important point this man [sic], and looked up every orthopaedic text book I've got in my house at the moment and could find no connection."" (Transcript, p70)

Mr Lugg's reference to "Stan" is a reference to Mr Schofield.

60. Mr Lugg commented further concerning the article:

"I just point out that this article, of course, will not come in a search of orthopaedic literature because it's made - it's a podiatry article. There's a couple of comments I'd make. First of all, it's a difficult article to read. When I scanned through it it's vague; it talks about low back pain being connected to foot imbalance and pelvic imbalance but when you read through it they don't quantify the imbalance well - it's a murky sort of science. They don't talk about it, suggesting that neurological pain, whatever they mean by that, myofascial syndromes - I'm sure you've come up against them in your work here, which is basically a name for pain we don't know where it comes from, whatever source, and such sort of syndromes are all due to this problem with feet and they call it 'foot patho mechanics' which is also a vague term. So, it's an article that is more anecdotal than scientific and I think you have got to look at the article and I say this in no deprecating way that podiatrists, particularly in the United States where they are, but also here, their main way of treating people with cleft arches, the only way of treating people, is to offer arch supports. So, it's going to be in their interest if you've got someone who has got flat feet to show that arch supports do them good and furthermore, it will be in their interest to show that all the other things that might come from it, such as knee pain, leg pain, sacroiliac strain they talk about in there, will be helped by an arch support." (Transcript, pp71-72)

61. Mr Lugg stated in evidence that Mr Fall has severe degenerative disease of the lumbar spine. When asked whether there is evidence that Mr Fall has a malalignment of the spine the doctor said that this is so in that, due to his severe degenerative disease, Mr Fall has subtle changes in the facet joints. He does not, however, have a malalignment like a scoliosis.

62. In cross-examination Mr Lugg said that he did not subscribe to the view that a person with an altered gait will develop lumbar spondylosis.

63. In a report dated 7 July 1999 Mr Lugg stated, in part:

"I do think it is possible that pes planus can contribute to symptoms of lumbar spondylosis by altering gait pattern, but I doubt that the period of service within the Armed Services has contributed significantly to the gait change and therefore the lumbar spondylosis."

The doctor explained that by the use of the word "contributed" he was not referring to causation, but to the aggravation of symptoms of pre-existing lumbar spondylosis.

64. In a report dated 22 January 1999, Mr Lugg observed in regard to Mr Fall that:

"His failure to wear orthotics over sixteen months of Defence Force service probably has also been a further factor in the development of postural problems and would be a part factor in the cause of his severe spondylosis."

When questioned about this statement, the doctor explained that it was made prior to the research referred to in paragraph 59 above, and that as a consequence the statement should be retracted.

65. Mr Lugg stated that he accepted the existence of retrolisthesis, however it was his view that this is secondary to degenerative change of Mr Fall's facet joints, which have become elongated.

Findings

66. From the material before us we make the following findings:

(a) That prior to enlistment with the Air Force Mr Fall suffered from congenital pes planus;

(b) That prior to enlistment he was in the habit of wearing orthotics;

(c) That upon enlistment and for a period of some 11 weeks thereafter and of his own volition he did not wear orthotics;

(d) That during the same period of time he was required to undergo marching and other physical training;

(e) that while undergoing such training he was required to wear military issue boots with the result that he experienced sore feet and developed callosities;

(f) That rather than report the condition of his feet he again, of his own volition, opted to put up with the situation. This was because he did not want to jeopardise his chances of later being posted for service overseas;

(g) That from the end of March 1945 to the time of his discharge from the Air Force on 29 April 1946, his duties were of a sedentary nature, without the requirement to march, although he was required to attend the occasional parade;

(h) That he did not, as a consequence of his war service, and in particular as a result of marching and performing other military duties, aggravate his pes planus through suffering physical trauma, that is to say physical trauma which impaired the ligamentous or bony structure of the feet (SoP No. 305 of 1995);

(i) That he did not have a malalignment of the lumbar spine before the onset of lumbar spondylosis within the meaning of SoP No. 28 of 1999 or earlier SoPs concerning lumbar spondylosis.

67. It will be noted that findings (a) to (g) inclusive accord with the evidence given by Mr Fall.

68. As to findings (h) and (I), we have on the balance of probabilities preferred the evidence of Mr Lugg to that of Mr Westh and Mr Schofield.

69. As we have recorded, Mr Lugg's opinion is:

(a) That although marching in military type boots may, in the case of a person with underlying pes planus, cause some ligamentous strain or pain, this would probably not impair the ligamentous or bony structure of the feet;

(b) That if due to marching and drills Mr Fall had suffered traumatic disruption of the plantar ligament, he would have been "hobbling". That was not the evidence of Mr Fall, although he did refer to soreness and the development of callosities;

(c) That the American Podiatry Association Journal article, to which Mr Schofield made reference, should be disregarded for the purposes of these proceedings;

(d) That he is not aware of any evidence that pes planus can cause a malalignment of the lumbar spine. In this connection we note that Mr Lugg conducted an extensive search of any such connection having been reported in the medical literature over the past 10 or so year, but to no avail;

(e) That any malalignment of Mr Fall's spine is due to severe degenerative disease;

(f) That a person will not develop lumbar spondylosis due to an altered gait but that pes planus can contribute to the symptoms of pre-existing lumbar spondylosis;

(g) That the existence of retrolisthesis is secondary to degenerative changes in Mr Fall's facet joints.

70. As was observed by the respondent, in Repatriation Commission v Law (1980) 31 ALR 140 (affirmed on appeal to the High Court - 147 CLR 652), the Full Court of the Federal Court, in interpreting the words "attributable to", which appear in section 8(1)(b) of the Act, said:

"It seems clear that the expression 'attributable to' in each case involves an element of causation. The cause need not be the sole or dominant cause: It is sufficient to show 'attributability' if the cause is one of a number of causes provided it is a contributing cause."

As we have recorded, our finding is that Mr Fall did not suffer physical trauma which impaired the ligamentous or bony structures of his feet.

71. In the circumstances it cannot be said that, on the balance of probabilities, lumbar spondylosis is connected with the circumstances of Mr Fall's relevant service.

Decision

72. The decision of the Tribunal will be that the decision under review is affirmed.

I certify that the 72 preceding paragraphs are a true copy of the reasons for the decision herein of Commodore B.G. Gibbs, AM, RAN (Ret'd), Senior Member, Mr I.L.G. Campbell, MC, Member and Dr C. Re, Member

Signed: Judith Holt, Associate

Dates of Hearing 9 March, 25 October and 7 December 1999

Date of Decision 24 January 2000

Counsel for the Applicant Mr A. Larkin

Solicitor for the Applicant Mr M.E. Jorgensen, William Winter Higgs

Respondent Ms J. McCulloch, Advocacy Section,

Department of Veterans' Affairs