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Marr and Repatriation Commission [2011] AATA 4 (11 January 2011)

Last Updated: 17 January 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 4

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2010/1383

VETERANS' APPEALS DIVISION
)

Re
GRAHAM MARR

Applicant
And
REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Senior Member Dr K S Levy RFD

Date 11 January 2011

Place Brisbane

Decision
The Tribunal affirms the decision under review.

......................[Sgd]........................
Senior Member

Veteran’s Entitlements – Eligible defence service – Applicant claiming condition of either Intervertebral Disc Prolapse or Cervical Spondylosis – Causation – Decision under review affirmed


Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Fox v Percy [2003] HCA 22; (2003) 197 ALR 201

Makita v Sprowles (2001) 52 NSWCA 305

Mason v Repatriation Commission (2000) FCA 1409

Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921
Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948

Roncevich v Repatriation Commission [2005] HCA 40; (2005) 218 ALR 733


REASONS FOR DECISION


11 January 2011
Senior Member Dr K S Levy RFD

INTRODUCTION

  1. The present applicant, Mr Marr, seeks a review of a previous decision determined on 5 May 2009 of the applicant’s claimed condition of Cervical Spondylosis. That claim was rejected although Mr Marr’s disability pension was increased to 80% of the General Rate. That decision was reviewed under s 31 of the Veteran’s Entitlements Act 1986 (“The Act”) and on 1 October 2009, a delegate of the Repatriation Commission determined that the diagnosis should be amended to be that of Intervertebral Disc Prolapse at C5-C6[1]. That determination was reviewed by the Veteran’s Review Board on 11 March 2010 and affirmed[2].
  2. Mr Marr now appeals his unsuccessful claims to this Tribunal.

ISSUES FOR DETERMINATION

  1. The questions for determination of the Tribunal are:

STANDARD OF PROOF

  1. As the applicant’s case is based on eligible defence service and not operational service, the statutory standard of proof is that specified in s 120(4) of the Act, that is, the standard of reasonable satisfaction.

FACTS

  1. The applicant served in the Royal Australian Navy from 7 August 1973 until he was discharged on 16 December 1978. He gave evidence that he was involved in a motor vehicle accident on 2 January 1978 when he was returning from “long leave” in Adelaide and was due back at HMAS Torren at 1200 hours on 3 January 1978[3]. There is evidence that he was travelling officially and independent evidence of a police accident report is available[4].
  2. Mr Marr has no recollection of the accident. According to the decision under review, he had no recollection of the next four days[5]. He told this Tribunal he had no recollection for two months after the accident and believes this was because of the effects of Pethidine he was given while recuperating from the accident. He was hospitalised for 219 days after the accident[6].
  3. The evidence from his hospital discharge medical report describes the accident as being caused by the applicant having a “fainting episode”[7]. The hospital discharge medical documentation implies he had suffered from epilepsy and he was tested for that condition. While firm evidence was not provided to the Tribunal of that possible condition, it is apparent there was a medical investigation and that the applicant was provided information about it for the future prior to discharge from the Royal Australian Navy (“RAN”) hospital. He was on medication for this condition at the time of being released from hospital[8]. Mr Marr believes he was not diagnosed with epilepsy but was on Dilantin for many years afterwards.
  4. The injuries suffered in that accident were :
  5. After almost eight months in hospital, there is no mention of neck pain in his available medical records. The medical board report reveals that he had made excellent progress and, specifically, in relation to his hip, he could run six miles and had full range of movement by the time he left the hospital[10].
  6. The medical evidence includes reports from Dr Paul Robinson where he concluded Mr Marr had a “soft tissue instability, related to his cervical and shoulder regions”[11] and noted he gave up work at one stage at the end of 1994 and said such impairments were to be assessed subjectively, “particularly related to his work activities”[12].
  7. Reports by Dr Noel Langley referred to the applicant’s pain and stiffness[13] and subsequently provided that he thought Mr Marr had “Cervical Spondylosis, that is, degeneration of the cervical spine”, the cause being the motor vehicle accident in 1978[14]. These opinions are noted for the purpose of the Tribunal’s consideration in making the most appropriate diagnoses.
  8. Dr Phillip Frauenfelder, a General Practitioner, in his certification to Mr Marr’s application of 22 July 2009, held the opinion that Mr Marr had Intervertebral Disc Prolapse and this opinion was “confirmed on scans”[15].
  9. There is also radiological evidence which is discussed below under “Diagnosis”.

THE LAW AND ITS APPLICATION TO THE EVIDENCE

  1. As a preliminary point, I note that the applicant apparently work at Bond University from May 2008 – October 2008, as a Facility Manager. This was not noticed in the papers until after the conclusion of the hearing. I have a fractional academic appointment at the University but have never met or seen the applicant there as far as I am aware. I therefore consider no conflict or issue in that respect arises in my consideration of the legal issues in this matter.
  2. I have taken account of all the oral and documentary evidence presented to the Tribunal.
  3. As the applicant’s relevant service is eligible defence service, s 70(1) and s 70(5) of the Act apply.

ISSUE 1 - DIAGNOSIS

  1. The history of claims in this case and the oscillating determinations in relation to the most appropriate diagnoses reflect the close descriptions of the clinical definitions of the two conditions in dispute and the relative lack of certainty of the medical facts. The two conditions and their requirements to be satisfied in this case depend on the relevant Statements of Principles (“SOP’s”) which are set out below.

Relevant SOPs


  1. Intervertebral Disc Prolapse is detailed in SOP No. 40 of 2007. Subsequent amendments in SOPs 81 of 2008 and 39 of 2010 are not relevant for the present facts. This condition is defined, relevantly as follows:
“"intervertebral disc prolapse" means protrusion, herniation or rupture of the nucleus pulposus or annulus fibrosis of an intervertebral disc into the vertebral canal of the cervical, thoracic or lumbar spine, causing:
(i) local pain or stiffness;
(ii) clinical evidence of nerve root compression; or
(iii) clinical evidence of spinal cord compression.[16]”

  1. Both parties say if this SOP is relevant, Factor 6 (a) is the only relevant factor, which connects his condition with his naval service. It provides as follows:
“(a) having a trauma to the relevant disc within the 24 hours before the clinical onset of intervertebral disc prolapse;”

  1. A “trauma to the relevant disc” is defined in paragraph 9 as :
“"a trauma to the relevant disc" means an injury, including G force-induced injury, to the affected intervertebral disc that causes the development of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of that part of the 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 relevant disc has occurred and that medical intervention involves either:
(a) immobilisation of that part of the spine by splinting, or similar external agent;
(b) injection of corticosteroids or local anaesthetics into that part of the spine; or
(c) surgery to that part of the spine;”

  1. The requirements for Cervical Spondylosis are detailed in SOP No. 34 of 2005. An amendment is contained in SOP No. 77 of 2008 but is not relevant in this case. This condition is defined as:
““cervical spondylosis” means degenerative changes affecting the cervical vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of cervical cord or cervical nerve root compression, but excludes diffuse idiopathic skeletal hyperostosis.[17]”

  1. Both parties say if this SOP is relevant, Factor 6 (f) is the only relevant factor, which connects his condition with his naval service. It provides as follows:
“(f) having a trauma to the cervical spine within the twenty-five years before the clinical onset of cervical spondylosis;”

  1. A “trauma to the cervical spine” is defined in paragraph 9 as :
“trauma to the cervical spine” means a discrete injury, including G force-induced 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.”

  1. The most recent report of an expert witness is that of Dr Langley. He opined that Mr Marr has Cervical Spondylosis[18]. The Veterans Review Board rejected that opinion in its decision of 11 March 2010 as it was uncertain of the material he relied upon and said “[H]is report lacks substance and does not provide a reasoned diagnosis”[19]. That seems to me to be a perfectly acceptable legal reason to reject a doctor’s report where a Tribunal cannot be sure of the basis of the doctor’s diagnosis[20]. The relevant material will be examined here in order to make a legal determination about diagnosis.
  2. It seems to me that the best evidence to determine the most appropriate diagnosis in this case must come from the radiological evidence, as far as practicable. This is because of the passage of time, the circumstantial nature of the evidence and therefore any conclusion about satisfying the definitions of the conditions in dispute must be inferential. The language of the radiologists is not always very clear and none of the medical practitioners were called to give evidence except Dr Langley, who is not a radiologist. The Veteran’s Review Board was unsure of whether Dr Langley’s opinion was based on any of the radiological evidence. There appears to be some imprecision in some of the medical evidence or at least some variability in the doctors diagnoses over time. This does facilitate the making of the most appropriate diagnosis. But it is undoubtedly the case from the evidence presented, that the neck pain condition was slowly developing over at least 20 years and a judgment by radiologists is more likely to be indicative of the condition, particularly where, as here, there is a paucity of other medical evidence and the applicant has no memory of some earlier critical events. Also, the greater clarity and confidence with which radiologists make clinical judgements with later technology such as CT Scans and MRI radiography, makes it likely that recent reports will be more reliable than earlier ones.
  3. The applicant’s case, based on his advocate’s most recent submissions of 23 September 2010, seems to rely heavily on a case theory of Cervical Spondylosis. The radiographical reports show there was a “[V]ery minor spondylotic lipping at 5/6 disc spaces”[21]. Later Dr Catchlove found there was no evidence of spondylosis and no evidence of narrowing of disc spaces, in particular, at C5/C6 level[22]. It was subsequently reported that a “mild spondylitis particularly at C5-6 was observed”[23].
  4. On the other hand, looking at the symptoms which resemble a condition of Intervertebral Disc Prolapse, Dr Bruce Jack noted in earlier times that there was no evidence of disc protrusion[24]. The other evidence is very recent and is a MRI of the cervical spine[25]. It was observed that Mr Marr has disc degeneration at the C5/6 and C 6/7 levels (a comment which would also be consistent with a presence of Cervical Spondylosis), although the report does not make any comment on the scale or degree of such degeneration, but merely notes a presence of it. It also noted that “[t]he craniovertebral junction and atlanto-axial articulation are normal.[26]” The report then goes on to make specific conclusions based on the radiography as follows:
“Right posterolateral C5/6 disc protrusion with impingement on the right C6 nerve root.
Left posterolateral to foraminal C6/7disc protrusion which may impinge on the left C7 nerve root”.[27]

  1. I think it is fair to say that there is evidence over the last 22 or more years that there may be a presence of some aspects of both these conditions based on the reports and the definitions in the SOP’s. There does not seem to be sufficient radiological evidence to say that a diagnosis of Cervical Spondylosis could be sustained at the present time and the only recent conclusion of that is by Dr Langley. He gives a definitional explanation of his diagnosis (as per the SOP) but does not explain why he makes that diagnosis. An expert’s evidence is only admissible if it is probative of the issues before the Tribunal and is wholly or substantially based on that knowledge[28]. If the basis of the opinion is not apparent, it is inadmissible[29]. Equally, if an expert performs the role of an advocate for a party, it must be rejected[30]. I did not find that Dr Langley’s reports and his evidence at the Tribunal explained the basis of his opinions, even after further probing.
  2. Dr Frauenfelder’s report of 28 July 2009 diagnosed Intervertebral Disc Prolapse which he said was “confirmed on scans”[31]. That appears consistent with the radiography report of Dr Mark Ready.
  3. Based on the objective evidence of the radiography, I prefer the report of Dr Ready and the subsequent diagnosis of Dr Frauenfelder to that of Dr Langley and conclude the most appropriate diagnosis is Intervertebral Disc Prolapse.

ISSUE 2 – IS EITHER CONDITION DEFENCE CAUSED?

  1. The applicant has been in pursuit of recognition for his condition (by whatever diagnosis) for a long time. On an initial and visceral impression of the evidence, one gets a feeling that if there was no other traumatic injury since the motor vehicle accident, then no other explanation could be found for Mr Marr’s present condition other than the motor vehicle accident while he was on eligible defence service. In addition, he seemed to me to be a witness of truth and was genuinely affected by the long term pain. His presentation at the Tribunal was consistent with those observations.
  2. Nevertheless, the test to be satisfied is not that of a visceral feeling. It is the standard specified in s 120(4) of the Act, that is, of reasonable satisfaction or what is commonly called the civil standard of proof. That standard is set out statutorily in s 140 of the Evidence Act (Cth). It requires satisfaction of the statutory test, not a test of a case theory which is less improbable than one’s opponent’s case theory but one which is more likely than any other theory[32]. A Tribunal must also be satisfied, not by a mere comparison of probabilities independently of a belief in the reality of the evidence, but must actually be persuaded of the occurrence of the facts or the existence of the facts[33]. In cases such as this, substantial justice of the case is important[34] but that does not permit imputing evidence which is not available[35] or reading more liberally, statutory requirements.
  3. Here, it seems to me that there is no evidence (either direct or from which there can be a reasonable imputation), of any neck injury from the motor vehicle accident. No substantive evidence appears in the RAN hospital records. Even if a temporal connection was shown (which it is not), that of itself is not sufficient[36].
  4. It is not fatal to Mr Marr’s claim that he was unconscious for a period of time after the accident and therefore, succeeding is not prevented merely because there cannot be firm evidence of trauma within 24 hours of the clinical onset of the claimed injury. However, in the absence of such evidence, a regulated requirement is substituted such that medical intervention is required to be shown. That requirement is contained in the definition “a trauma to the relevant disc” where the “medical intervention” in the definition under SoP 34 of 2005 requires at least one of three requirements to be shown. These and the degree to which they are satisfied by the evidence are as follows:
  5. There is no medical evidence to explain the present condition as a degenerative condition (as appropriately suggested by Dr Langley as part of his diagnosis of Cervical Spondylosis). If there had been, the question for the Tribunal would then have been whether there is a constitutional or genetic based degeneration as opposed to a trauma based condition. But other more specific evidence is offered in the opinion of Dr Langley who also summarises the differences in Mr Marr’s present condition compared with his previous capacities. Dr Langley reported that Mr Marr used to run and play rugby union. If Mr Marr could play sports such as rugby union, the Tribunal is left in some serious doubt whether any possible trauma which may have occurred to the cervical spine during the motor vehicle accident, was as severe in 1978 as the applicant’s case contends. Evidence to differentiate whether the likely cause was from the motor vehicle accident or from traumatic sports injuries would be necessary to overcome the gap in explaining causation, if the Tribunal was to be satisfied to the standard of reasonable satisfaction. There is therefore, some suggestion of possible contributions to the present neck pain from a degenerative condition and/or other injuries such as from playing rugby union. Because of these factors, and the fact that there is no direct evidence to support the claim that there was a “trauma to the relevant disc” from the evidence of the motor vehicle accident while in the RAN, I cannot be satisfied to the standard of reasonable satisfaction that there is a causal connection with defence service.

CONCLUSION

  1. The applicant’s Intervertebral Disc Prolapsed cannot be connected to service. The decision under review must be affirmed.



I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr K S Levy RFD


Signed: ...................................[Sgd]..........................................

Alex Seagar, Research Associate


Date/s of Hearing 25 November 2010

Date of Decision 11 January 2011

For the Applicant Anthony Hornby and

Michael Rohov, Advocates

For the Respondent Bruce Williams, Departmental Advocate


[1] Folio 111 of exhibit 1
[2] Folios 130 – 136 of exhibit 1
[3] Folio 1 of T4
[4] Folio 2 of T4
[5] Folio 133 of exhibit 1
[6] Ibid
[7] Folio 125 of exhibit 1
[8] Folio 123 of exhibit 1
[9] Folio 125 of exhibit 1
[10] Ibid
[11] Report of 25 November 1994 - Folio 5 of T4
[12] Report of 2 February 1995 – Folio 6 of T4
[13] Report of 18 December 2008 – Folio’s 25-43 of exhibit 1
[14] Report of 19 August 2010 – exhibit 2
[15] Folio 96 of exhibit 1
[16] Paragraph 3(b) of SoP 40 of 2007
[17] Paragraph 3(b) of SoP 34 of 2005
[18] Report of 19 August 2010 – exhibit 2
[19] Folio 134 of exhibit 1
[20] Makita v Sprowles (2001) 52 NSWCA 305
[21] Dr O’Connor 1988 – Folio 3 of exhibit 1
[22] Report of 11 April 1994
[23] Report by Dr Peter Ross dated 11 June 2002
[24] See report of 14 May 1994 – Folio 4 of exhibit 1
[25] Report of Dr Mark Ready of 15 October 2008 - Folio 9 of exhibit 1
[26] Ibid
[27] Emphasis in the original - Folio 10 of exhibit 1
[28] Section 79 Evidence Act 1995 (Cth)
[29] Arnotts Ltd v Trade Practices Commission (1990) 97 ALR 555
[30] Fox v Percy [2003] HCA 22; (2003) 197 ALR 201 at [151] cited in Heydon, J, D Cross on Evidence (Eighth Australian ed, LexisNexis Butterworths, 2010) at [29080]
[31] Folio 96 of exhibit 1
[32] Rhesa Shipping Co SA v Edmunds [1985] 1 WLR 948
[33] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361 - 362
[34] See s 119 Veterans Entitlement’s Act 1986 (Cth)
[35] Re Ahrenfeld and Repatriation Commission (1992) 28 ALD 921; Mason v Repatriation Commission (2000) FCA 1409
[36] Roncevich v Repatriation Commission [2005] HCA 40; (2005) 218 ALR 733 at [23], [27] and [55]
[37] Folio 5 of exhibit 1

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