Porter and Military Rehabilitation and Compensation Commission [2010] AATA 968 (2 December 2010)

Last Updated: 2 December 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 968

ADMINISTRATIVE APPEALS TRIBUNAL ) ) VETERANS’ APPEALS DIVISION )			No 2008/4479
	Re	MICHAEL PORTER Applicant

And

MILITARY REHABILITATION AND COMPENSATION COMMISSION Respondent

DECISION

Tribunal

Mr F. D. O’Loughlin, Senior Member Miss E. A. Shanahan, Member

Date 2 December 2010

Place Melbourne

Decision

The Tribunal sets aside the decision under review and remits the matter to the respondent to determine the compensation payable to the applicant and to consider payment of the applicant’s disbursements.

..................[signed].........................
Senior Member

MILITARY REHABILITATION AND COMPENSATION COMMISSION – aggravation of signs or symptoms of a disease or injury – aggravation of underlying disease or injury – decision under review set aside and remitted to respondent to determine compensation payable

Military Rehabilitation and Compensation Act 2004 (Cth) ss 23(1), 23(3), 24, 27, 30, 338, 339

REASONS FOR DECISION

2 December 2010

Mr F D O’Loughlin, Senior Member Miss E A Shanahan, Member

Introduction

This matter concerns disputed entitlements to compensation pursuant to the Military Rehabilitation and Compensation Act 2004 (Cth) (the MRC Act). The applicant has lumbar spondylosis, a degenerative spinal disc disease, between the fourth and fifth lumbar vertebra (L4-5) and between the fifth lumbar vertebra and the first sacral vertebra (L5-S1). The applicant claims that his duties as a flight navigation instructor with the Royal Australian Navy (RAN) in the weeks leading up to November 2006 through to 2007, when he was discharged from the RAN, either aggravated the signs or symptoms of his condition or materially contributed to those signs or symptoms.

The issues

1. Central to the issues in dispute are:
   • (a) whether the performance of the applicant’s duties in 2006 and 2007 (and the period leading up to that time), in particular the jump seat position he was required to occupy in the King Air 350 navigation trainer aircraft (the KA 350), materially contributed to or aggravated his underlying spinal condition. In the terms of the MRC Act, this question turns on whether the applicant’s spinal condition was a service injury or disease as contemplated by ss 23(1)(a) and 27 of the MRC Act, which deal with aggravations of underlying conditions; or
   • (b) whether the performance of the applicant’s duties in 2006 and 2007 (and the period leading up to that time), in particular the jump seat position he was required to occupy in the KA 350, materially contributed to or aggravated the signs or symptoms of that condition. In the terms of the MRC Act, this question turns on whether the applicant’s spinal condition was a service injury or disease as contemplated by ss 23(3)(a) and 30 of the MRC Act, which deal with aggravations of and material contributions to signs and symptoms; and
   • (c) whether the applicant’s claim is governed by Instrument 38 of 2005, the Statement of Principles (SoP) for lumbar spondylosis made pursuant to the Veterans' Entitlements Act 1986 (Cth) (the VE Act) and amended on 16 November 2005?
2. If the applicant’s spinal condition satisfies s 23(3)(a), the applicant and the respondent accept that ss 23(3)(b) and (c) do not prevent the applicant’s claim from succeeding.
3. If the applicant’s spinal condition satisfies s 23(1)(a), the applicant and the respondent accept that ss 23(3)(b) and (c) do not prevent the applicant’s claim from succeeding but that the SoP would.

The competing contentions

4. The applicant contends that:
   • (a) his spinal condition was either aggravated by, or was contributed to, by his Australian Defence Force (ADF) duties, within the meaning of s 30 of the MRC Act, enlivening s 23(3) of that Act; and
   • (b) the SoPs are not applicable to his claim.
5. The respondent contends that:
   • (a) the applicant’s duties did not aggravate or contribute to the signs or symptoms of his condition. Rather, the underlying illness or injury was aggravated and the relevant provision for consideration is s 27 of the MRC Act (and therefore s 23(1)) and not s 30 (and therefore s 23(3)) of that Act – ss 27 and 30 being mutually exclusive. More particularly, the respondent ... does not have any difficulty at all in accepting that [the applicant’s] ... short period of service with the Australian Defence Forces ... has materially contributed to the aggravation of a pre-existing, non-Australian Defence Force caused degenerative disease of his lumbar spine ... [making this an] interesting and extraordinary case ... [which] absent the relevant provisions of this legislation. [The applicant would succeed] if this were a workers compensation case under the Safety, Rehabilitation and Compensation Act ...; and
   • (b) there are applicable SoPs that preclude the applicant from any entitlement to compensation, as the applicant has not satisfied these statements in respect of the illness or injury asserted.
6. The applicant accepts that if the applicable SoP is to apply to determine his claim for compensation, his claim fails, as the prescribed conditions are not satisfied.

The relevant tests

7. An injury or disease is a service injury or disease if the ADF member suffers an aggravation of a sign or symptom of the injury or disease and that aggravation relates to defence service or defence service makes a material contribution to a sign or symptom of an injury or disease.[1] It does not matter whether the applicant contracted the injury or disease before or after defence service commenced. However, it is necessary for the Military Rehabilitation and Compensation Commission (the MRCC), and the Tribunal in the MRCC’s shoes, to form an opinion that defence service contributed causally to the signs or symptoms of the injury or disease or aggravated the signs or symptoms of the injury or disease, after the applicant sustained the injury or contracted the disease.[2]
8. An aggravation of signs or symptoms of an injury or disease can be taken to have occurred if the pain or restrictions associated with the condition increase or intensify. If those signs or symptoms are aggravated by relevant defence service without aggravation of the underlying condition, then ss 30 and 23(3) are the tests to be applied, without the need to prove a claim by reference to the SoP.
9. If the aggravation of symptoms or signs is a manifestation of an aggravation of the underlying pathological condition, then ss 27 and 23(1) are the tests to be applied; with the need to prove a claim by reference to the SoP.
10. It would be an extraordinary outcome, if the statute were to be construed to allow an outcome that a person who suffers a degenerating underlying condition, without worsening signs or symptoms, was forced to comply with the s 23(1) tests to be eligible for compensation, whereas another person who suffers an underlying degenerative condition accompanied by worsening signs and symptoms would only need to comply with the s 23(3) tests to be eligible for compensation.
11. Where applicable, SoPs detail events or conditions that must occur before a claim is to be allowed. SoPs do not apply to all claims allowable under the MRC Act.[3] Relevantly, SoPs apply to claims made pursuant to s 23(1).[4] They are not expressed to apply to claims made pursuant to s 23(3).
12. The terms of ss 338 and 339, limiting the applicability of SoPs to claims made under particular subsections of ss 23 and 24 of the MRC Act, are consistent with the overview of the SoP system. This is to the effect that For some claims for acceptance of liability for an injury, disease or death the standard of proof can only be met if the injury or disease, or the cause of death, is covered by a Statement of Principles (emphasis added), which are intended to set out all factors related to defence service that have been found to cause specific injuries, diseases and deaths.[5] Such statements are unlikely to be able to set out all the factors that might aggravate a pre-existing injury or disease; and, appropriately, do not apply to an aggravation or material contribution to signs and symptoms of such an injury or disease.

Applying the tests to the applicant’s circumstances

13. Applying these tests calls for a consideration of the applicant’s service history and duties and the medical evidence

The applicant’s service history and duties

14. From 1992 to August 2004 the applicant was a member of the Royal New Zealand Navy and for a period (2002-2004) was seconded to the ADF as an instructor at the RAAF base at Sale in Victoria, flying in aircraft similar to the KA 350.
15. In August 2004 the applicant joined the RAN and worked as a flight navigation instructor.
16. In September 2007 the applicant was discharged from the RAN.
17. The usual (flying) work of a flight navigation instructor was trainee assessment flights for each trainee intake, which occurred after trainees completed formal instruction sessions. As a consequence, there were periods of up to three months when there was not much flying.
18. The applicant’s flight duties required him to sit in the confined space of the instructor's jump seat of the KA 350 aircraft for prolonged periods, in a flexed position, leaning forward and slightly twisted to the right. In or about March 2007 approval was given for reconfiguration of these aircraft so that the instructors had more ergonomically correct and comfortable seating.

The medical evidence

19. When the applicant joined the RAN he had a back condition that caused him periodic discomfort and pain. He had developed a degenerative disease of the lumbar spine, affecting either the discs or the facet joints, or both, sometime before 2006. The applicant suffered from postural low back pain in 1998 and low back pain with prolonged flying in 2000; as well as a particular incident of low back pain after a long flight in February 2003. A Defence Services medical officer noted that in 2004 the applicant suffered intermittent low back pain.
20. After lifting and moving furniture in 2005, the applicant again suffered low back pain for which he was treated by an injection. He described this as a muscle strain with an acute onset of pain, which was different to the sort of pain he experienced when engaged in prolonged flying. This pain eased after a few days.
21. The pain the applicant suffered in the period up to late 2006 differed from the pain he suffered thereafter. Before late 2006 the applicant did not require treatment for the pain, the pain was intermittent and it did not incapacitate him for flying duties. When he stopped flying his pain would go away. He remained pain free whenever he was not flying during the period of his service with the RAN after August 2004.
22. In the weeks leading up to November 2006 through to his discharge, the applicant’s symptoms and signs progressed from intermittent symptoms when engaged on and following flying duties, to chronic low back pain as well as right lower limb pain, both of which continue to the present day. That the pain came on with his flying duties such that he would be bent over and could not stand up for half a minute after getting out of the aircraft. Walking was painful to the lower back and into the right leg to the knee. The pain in the back did not then go away although it became less severe after half an hour.
23. The applicant’s condition has stabilised with constant low back pain, varying in severity, with dull pain through the right buttock and hamstrings fairly constantly, which is exacerbated by bending forwards.
24. The examination and radiological medical evidence identified the presence of disc degeneration and facet joint degeneration. The medical experts indicated that the degeneration was present in some form prior to the onset of the aggravated symptoms in 2006.
25. Associate Professor Bittar, a practicing neurosurgeon and spinal surgeon, who was engaged by the applicant, gave evidence that:
    • (a) the applicant’s condition had stabilized;
    • (b) the applicant suffers constant low back pain, varying in severity, with dull pain through the right buttock and hamstrings fairly constantly which is exacerbated by bending forwards;
    • (c) the pain was discogenic (denoting a disorder originating in or from an intervertebral disc) and the aggravation of the condition was permanent;
    • (d) the condition was contracted before the applicant commenced service with the RAN with the onset in or around 1998;
    • (e) before 2004 the applicant’s back pain was generally intermittent and mild, save for the one episode in February 2003;
    • (f) the applicant’s condition deteriorated during service with the RAN;
    • (g) the service was a significant contributor to and aggravation of the applicant’s lower back and leg pain. The applicant experienced frequent exacerbations of pain related to his flying activities ... [which]... strongly supports the notion that these activities were causing an aggravation of his lumbar spine condition. ... [and this] .... condition did not stabilise until ... [the applicant] ... ceased employment with the Australian Defence Force;
    • (h) The applicant’s disc protrusion and annular tears are not degenerative. Prolapse precedes desiccation. Work could have accelerated as well as aggravated the applicant’s condition.
26. Dr Rowe, a specialist occupational physician, who was engaged by the applicant, diagnosed that the applicant had suffered aggravation of degenerative disc disease at L4-L5 and L5-S1 with disc protrusion without neural compromise in August 2004 (when the applicant joined the RAN) but this was not symptomatic at that time. Dr Rowe gave evidence that:
    • (a) the applicant’s condition was permanent and was aggravated qualitatively i.e. symptomatically by his employment in the RAN;
    • (b) the minor back pain while the applicant was a member of the Royal New Zealand Navy had been insufficient to warrant investigation;
    • (c) in his opinion, the applicant’s duties aggravated his condition, indicating that "as a result of his Defence service ...[the applicant’s] ... symptoms were made worse"; and
    • (d) he disagreed with Mr Ian Jones. In Dr Rowe’s view it was quite possible that changes disclosed by MRI scans existed before August 2004 but became qualitatively (his term) worse during the applicant’s Australian Defence Force Service.
27. Mr Mander, a consultant orthopedic surgeon engaged by the respondent, also indicated that the applicant’s condition was aggravated by the nature of his duties with the RAN. Mr Mander gave evidence that:
    • (a) in his view, the increased lower back pain extending into the right thigh after three months of flying in 2006, which resulted in chronic low back pain, was an aggravation of the symptoms of diagnosed degeneration at L4/5 and L5/S1. This was likely to stabilise but unlikely to be corrected;
    • (b) in the absence of radiological scans that would date the onset of the condition, he did not know when the degeneration started but was of the view that the disc degeneration would have predated the symptoms and RAN service;
    • (c) with the benefit of viewing MRI scans taken in 2010, he was of the view that there was not any evidence that any of the claimed incidents aggravated the underlying condition i.e. the patho-physiological status;
    • (d) time spent in ‘helicopters’ would not have an affect on the applicant’s degenerative process in the long term;
    • (e) the aggravation of the signs or symptoms of the applicant’s condition were not likely to have had any aggravation of the underlying condition; and
    • (f) his conclusion was that the applicant suffered symptomatic aggravation.
28. Mr Jones, another consultant orthopedic surgeon who was engaged by the respondent, was the only medical witness who did not accept that the applicant’s service aggravated his back condition. He gave evidence that:
    • (a) in his view, the state of degeneration in the applicant’s spine was typical of a person of the applicant’s age and that the degeneration could have been present 5 years before the onset of symptoms in late 2006, when the applicant was in his late twenties;
    • (b) he did not accept that service activities of the type engaged in by the applicant would aggravate the applicant’s condition or symptoms and signs. He suggested that, at best, it was only possible that it might do so;
    • (c) he agreed with the report of the 2006 MRI scan;
    • (d) all changes and symptoms were unrelated to the applicant’s RAN service;
    • (e) the applicant does not satisfy the SoP;
    • (f) the changes in the applicant’s condition were consistent with age;
    • (g) the 2010 MRI scan did not show significant change compared to the 2006 scan; and the aggravation (from service) had not hastened the degenerative process in the spine;
    • (h) there wasn’t any evidence that the trauma experienced by the applicant, as a flight instructor:
      • (i) was sufficient to influence degenerative changes; and
      • (ii) would cause mechanical irritation of spinal disorder;
    • (i) in his view it would take five years to attain the level of degeneration seen on the 2006 MRI spine;
    • (j) he agreed that the applicant’s position in the plane would exacerbate his pain;
    • (k) he believed the change in the experience of pain, from intermittent to chronic and constant, indicated the back pathology had deteriorated and that the symptoms reflected the underlying process; and
    • (l) he disagreed that the applicant’s activity contributed to his condition.
29. In summary:
    • (a) all the experts agreed that the applicant had pre-existing lower back pain, indicating an underlying pathological process. His earliest back pain (in 1991, when aged 18) was at the mid-thoracic level (not lumbar). This suggests the applicant may have had Scheuermann’s disease, an oesteochondritis of spine seen in adolescents, which had it been proven would satisfy the SoP. However, there isn’t any evidence to support this; nor did the experts turn their mind to the possibility;
    • (b) all the experts were unable to estimate the degree of lower back pain. They were not asked to estimate the pain; only pre-existing disease;
    • (c) Mr Jones postulated it would take 5 years to arrive at the changes seen in the 2006 MRI;
    • (d) all the experts but Mr Jones opined that employment was a material contributor to the applicant’s aggravation;
    • (e) Mr Jones believed any increased pain was indicative of an underlying spinal pathological progressive disease;
    • (f) Associate Professor Bittar said that work could contribute to the acceleration of the disease process. In contrast, Dr Rowe and Mr Mander said there was only symptomatic change i.e. aggravation;
    • (g) the only objective evidence before the Tribunal are the MRIs of late 2006 and early 2010. Mr Jones said there wasn’t any significant change; Mr Mander said there wasn’t any aggravation of the underlying process; and Dr Rowe said there was only a qualitative change i.e. symptomatic change. Associate Professor Bittar did not address or compare the two MRI’s;
    • (h) the written reports indicate, if anything, an improvement; in that, as of 2010, there is no longer any disc protrusion and both the disc desiccation and the facet joint changes appear stable. Whether the improvement is clinically significant is debateable but for the purposes of the decision irrelevant. The important point is that there has not been a deterioration of the underlying pathology in three years. The preferred conclusion from this is that there has been an aggravation in the form of increased symptomotology, namely pain.
30. The applicant’s representative invited the Tribunal to reject Mr Jones' evidence because it left unexplained why there was such deterioration in a man so young without any contribution from employment duties, which on the history, was so closely bound to the production of symptoms and the aggravation of those symptoms to go from occasional to intermittent to being chronic by 2006. The Tribunal was urged to conclude that Mr Jones’ evidence was not credible and lacked any strong reasoning and was against the balance of the remaining witnesses, including the Respondent's other medical witness, Mr Mander.

The Tribunal’s consideration

31. In this matter we do not accept the respondent’s submission that there is ... a correlation between the worsening of the disease and the worsening of the symptoms. In this case, it’s a classic set of circumstances with a degenerative disease of this nature that is still degenerating.
32. It is not extraordinary that signs and symptoms of a disease can worsen without the underlying condition altering. A condition can stabilise in its state of degeneration and signs or symptoms of a stabilised underlying condition may change for the better or worse.
33. It is undoubtedly the case that the applicant suffered deterioration in the signs and symptoms of his condition. However, that is not a complete answer to the questions in issue. The weight of evidence before the Tribunal leads us to be reasonably satisfied that the deterioration in the applicant’s signs or symptoms of his condition was not a manifestation of the deterioration in the underlying condition. That being the case, the present matter calls for consideration of whether the applicant is entitled to compensation under s 23(3) of the MRC Act. The necessary conclusion is that the applicant is so entitled.

Conclusion

34. Accordingly, the Tribunal sets aside the decision and remits the matter to respondent to determine the compensation payable and to consider payment of the applicant’s disbursements.
    

I certify that the thirty-four [34] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr F. D. O’Loughlin, Senior Member

Miss E. A. Shanahan, Member

Signed: ............................[signed]..................................................

Associate Grace Horzitski

Dates of Hearing 29 March 2010, and 2, 3 June 2010

Date of Decision 2 December 2010

Counsel for the Applicant Mr M. Carey

Solicitor for the Applicant Slater and Gordon Lawyers

Counsel for the Respondent Mr J. Wallace

Solicitor for the Respondent Australian Government Solicitor

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[1] MRC Act: s 26 and 30.

[2] MRC Act: s 30.

[3] MRC Act: s 332.

[4] MRC Act: ss 338 and 339.

[5] MRC Act: s 22.