Page and Repatriation Commission [2009] AATA 49 (23 January 2009)

Last Updated: 23 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 49

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/3121

VETERANS' APPEALS DIVISION		)
	Re		CHARLES PAGE

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

M J Carstairs, Senior Member

Date 23 January 2009

Place Brisbane (heard in Townsville)

Decision

The Tribunal affirms the decision under review.

.......................[sgd].......................
SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – eligible defence service – claim for cervical spondylosis – consideration of Statement of Principles – decision under review affirmed

Veterans’ Entitlements Act 1986 (Cth) ss 70, 196B

Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365

REASONS FOR DECISION

23 January 2009

M J Carstairs, Senior Member

1. Charles Michael Page suffers from cervical spondylosis, a degenerative condition in his neck, which he believes is related to an incident that occurred during his defence service. This service was in the Australian Army between 1975 and 1995.
2. This incident, in February 1979, occurred during physical training. This training involved an exercise in which two soldiers – one being Mr Page – carried another soldier on a “telegraph pole,” some 3m long and 30-50cm in diameter, over a distance of 100 yards. The two soldiers, having completed the first leg, were then required to turn and run back, first repositioning the pole onto the other shoulder. In doing this, Mr Page lost grip at his end of the pole. In his words, the pole hit him on the right side of his head as it fell, and he collapsed under the combined weight of the pole and the soldier they had been carrying. It seems Mr Page sustained significant lower back injuries. He says he also injured his neck.
3. The respondent maintains otherwise, and has refused his claim for pension for cervical spondylosis. The respondent, on the other hand, has accepted Mr Page’s other spinal conditions – lumbar and thoracic spondylosis – as being the result of defence service. There is ample evidence from service medical records that Mr Page suffered from a bad back. There is virtually nothing in the medical evidence during service that suggests he sustained a neck injury.
4. Matters of causation such as arise in Mr Page’s case fall to be determined by the application of Statements of Principles. These provide the statutorily determined “connections with service” upon which any consideration of entitlement to pension proceeds.
5. These words refer back to s 196B of the Veterans’ Entitlements Act 1986 (the Act). As pointed out by the Federal Court in Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365, a Statement of Principles is brought into existence to comply with that section of the Act[1]. Mr Page could demonstrate the necessary connections if there was a trauma to the cervical spine (as defined in the Statement of Principles – see below) that:
   • arose out of or was attributable to service; or
   • was contributed to in a material degree by or was aggravated by service[2].
6. The Statement of Principles here was Instrument No. 34 of 2005 for cervical spondylosis. The issues which arise under that Statement were quite narrowly focussed, the parties agreeing that the matter turned upon a consideration of one specific factor. That was factor 6(f), which provides that the injury (cervical spondylosis), more probably than not, will be connected to a person’s service where the person had:

...a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis...

7. Diagnosis was not in dispute: Mr Page, at the latest, had his cervical spondylosis medically identified in 2003. This date, being within the 25 year period stated by factor 6(f) meant that it was uncontentious that Mr Page was able to satisfy that part of the factor. However he needed to show that he had suffered “trauma to the cervical spine”.
8. The definition provided in the Statement of Principles in regard to “trauma to the cervical spine”, it can be said, is quite demanding in its detail. The trauma must be one in which there is:

a discrete injury...to the cervical spine that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the cervical spine. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to the cervical spine has occurred and that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.

9. The matter came down to whether Mr Page suffered the necessary “trauma to the cervical spine.” The evidence needed to show, within quite an immediate period (24 hours) after the incident, that Mr Page developed signs and symptoms in his cervical spine that lasted for at least 10 days – except if the medical interventions described in the definition had been undertaken. They need to be medical interventions that were specifically treating trauma to the cervical spine.
10. Put simply, rather more was required than to merely identify that the incident occurred as described. As I understood the respondent’s case there was no real challenge concerning its occurrence.
11. However I have real reservations that the incident and its medical follow-up happened in the way Mr Page now describes. I shall turn to the evidence in that regard.

IS CERVICAL SPONDYLOSIS DEFENCE CAUSED?

12. There was an abundance of medical information recorded in Mr Page’s service medical records[3] over the years. Indeed these records ran to some one hundred and fifty pages. The records did reveal an earlier back injury, in 1977. Apparently, Mr Page fell from a balcony, a distance of 28 ft, but Mr Page did not report the fall at the time.
13. Curiously, there was no reference to the 1979 incident in the medical and other materials until sometime after it occurred. The first real mention of it comes later, in a document that came into existence in August/September 1979[4]. Mr Page and his treating doctors signed a “Report of an Injury or Illness” form (AAF D11) referring to the incident as occurring on 6 February 1979, and describing the incident thus:

I was lifting and running with a log whilst somebody was sitting on it. While lifting and running I strained my back.

14. Then in 1980, Mr Page lodged a compensation claim for an “acute chronic back strain” described as happening “when lifting and carrying logs during a PT lesson”.
15. This absence of any earlier mention of the details of the incident is surprising, in light of the description Mr Page gives of it and of his extensive medical treatment throughout 1979. Mr Page’s account includes that he was taken from the scene of the incident by ambulance and admitted to the nearby field hospital, given an injection into his spinal cord, sedated, and placed under observation. His wife’s statutory declaration provided to a Veterans' Review Board hearing, in 2005, was to the same effect[5].
16. The documentary materials from the service medical files presented a rather different picture in some important respects. Those records show:
    • Mr Page was referred for “review” on 7 February 1979 to Lieutenant Colonel Lewis. Mr Page told me Lt Col Lewis was an orthopaedic surgeon and Commanding Officer at 4 Camp Hospital. Lt Col Lewis saw Mr Page the same day and noted “pain from back now down both legs (to) ankles....RIB (which I understand to be an abbreviation for “rest in bed”) then jacket”[6].
    • An in-patient admission form noted Mr Page as having been admitted to 4 Camp Hospital on 14 February 1979. The history was recorded as follows: “Admitted for one week of traction for lower back pain”[7]. (I would note here that Dr R Watson, in a report dated 1 February 2003, stated that Mr Page had been placed in both pelvic and cervical traction, but this does not appear to have been the case at all. Dr Watson later acknowledged that he had not seen the service medical records, so was not in a position to comment[8]). Elsewhere, the documents reveal that this admission was for an “exacerbation lower lumbar back pain which has had intermittently over past 18/12”[9]. Mr Page was to be reviewed the following week.
    • Another admission was noted as occurring on 22 February 1979, for “acute on chronic back strain”[10]. The hospital notes (which seem to have been completed in August 1979) recorded Mr Page as then being treated for the next 172 days, including with traction; the application of a body plaster; the use of a corset; and physiotherapy. In that respect, this confirms a number of the treatments Mr Page had mentioned in his oral evidence as having been given that year.
17. What was conspicuous by its absence from either admission record is any reference to a traumatic injury having taken place which precipitated Mr Page being admitted to hospital. Equally, there was no reference to the incident to be found in a physiotherapist’s clinical entry dated 20 February 1979 when physiotherapy was commencing. That clinical note merely stated that Mr Page had been “in traction 1/52. Fell onto back 2 years ago – gets recurring problems now”[11].
18. Mr Page maintains that he did suffer significant neck pain at the time of incident, but because he was heavily sedated, this may have masked his neck pain. He said, in any event, that his back pain was worse. Mr Page said that he continued to complain to doctors about neck pain, but they dismissed his concerns attributing any neck pain to his spinal injuries.
19. I would be more prepared to accept this, if Mr Page had availed himself of any of the many opportunities that he was given to complain about a neck problem. One of these opportunities was the previously mentioned “Report of an Injury or Illness”. On every other occasion, when relevantly asked about symptoms, Mr Page referred only to having back pain. A few examples will suffice:
    • at the time of his discharge (1995) Mr Page acknowledged problems with his back – referred to as mechanical LBP[12] and made no mention of a neck problem;
    • earlier, there are numerous Medical Board examinations that note the presence of a back problem[13]; and
    • on occasions, reports make reference to the 1977 back injury[14]; there is scant reference, however, to the 1979 incident, despite its documentation in September 1979[15].
20. The difficulty for Mr Page’s case is that there is no medical evidence (or other record at the time of the incident), nor, indeed, later in Mr Page’s service, suggesting that he had any neck pain or injury. Yet Mr Page described ongoing neck problems which he says he continued mentioning to doctors. The documentary evidence does not support him having done this. Mr Page did not even mention concerns about his neck when filling out the document reporting the incident for the first time[16]. This, I would observe, could not be said to be a document hastily filled out at the time of the incident, when Mr Page might have been unaware of the extent of his injuries. This was completed some eight months after the incident, and after he had undergone an extensive range of treatments.
21. I cannot be satisfied on the evidence before me, which includes the two histories of admissions to the Camp Hospital in February 1979, that Mr Page suffered “a discrete injury to his cervical spine”. There was no evidence that he developed within twenty-four hours symptoms and signs of pain, and tenderness, altered mobility or range of movement, of the cervical spine. I do not accept his evidence that he was taken directly by ambulance to the Camp Hospital. I prefer the hospital admission records in that regard, as I do not accept that medical practitioners, including an orthopaedic surgeon, would have failed to note the circumstances of the incident, if it had occurred as described.
22. Not only was there no medical evidence supporting what Mr Page said with regard to experiencing neck symptoms, there was no evidence to suggest the presence of symptoms and signs lasting for more than 10 days as is required by the Statement of Principles. Further, these had to be symptoms and signs of cervical spondylosis unless there had been medical intervention involving the cervical spine. No such interventions were suggested on the facts here. I do not accept that Mr Page’s symptoms were masked by medication or blurred by his greater back pain.
23. The absence of later complaint of neck pain reinforces the view to which I have come. Whilst there are numerous references to back problems in the service records there is none in relation to Mr Page’s neck. (One entry, dated 21 September 1981, referring to “headaches” and “stiffening of neck”[17] was a record of symptoms answered by a diagnosis 4 days later confirming that Mr Page had “a viral illness with mild meningitis”[18], not a neck injury).
24. Accordingly I am unable to conclude that Mr Page meets the requirement of having suffered a trauma to the cervical spine, as defined. He cannot satisfy factor 6(f) of the Statement of Principles for cervical spondylosis, and his claim therefore fails.
25. Before leaving the matter I should say something about the medical evidence – in particular the report of Dr P Vecchio[19]. Dr Vecchio was the only specialist who directly addressed causation. He said the crucial question was whether Mr Page sustained a significant traumatic blow to the cervical spine during the 1979 incident. If he did, then Dr Vecchio agreed that degenerative changes could reasonably have followed later in Mr Page’s life. However Dr Vecchio commented upon the paucity of documentation to suggest such a sequence. I think the doctor is right. The contemporaneous as well as the later medical evidence does not support the sequence. I very much doubt that the incident happened as Mr Page now describes.

DECISION

26. The Tribunal affirms the decision under review.
    

I certify that the 26 preceding paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member

Signed:..........................[sgd].....................................................

Joan, Torbey Associate

Date of Hearing 20 November 2008

Date of Decision 23 January 2009

Counsel for the Applicant Mr D Honchin

Solicitor for the Applicant Purcell Taylor Lawyers

Advocate for the Respondent Mr J Stoner, Department of Veterans' Affairs

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[1] Kattenberg v Repatriation Commission (2002) 73 ALD 365.
[2] Veterans’ Entitlements Act 1986 (Cth), ss 70 and 196B.
[3] Exhibit R5.
[4] Folio 9; T4.
[5] Exhibit R4 at 15-16.
[6] Exhibit R5 at 85.
[7] Exhibit R5 at 83.
[8] Exhibit R3 at 22.
[9] Exhibit R5 at 64.
[10] Exhibit R5 at 132.
[11] Exhibit R5 at 71.
[12] Folio 6; T4.
[13] See for instance, Folio 6; T4.
[14] Folio 8; T4.
[15] Folio 9; T4.
[16] Folio 9; T4.
[17] Exhibit R5 at 103.
[18] Exhibit R5 at 47.
[19] Exhibit R2, Report dated 30 August 2005.