Pedder as the Legal Representative of John Pedder (Deceased) and Repatriation Commission [2011] AATA 829 (24 November 2011)

Last Updated: 24 November 2011

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 829

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2008/2768

VETERANS' APPEALS DIVISION )
	Re	PATRICIA ANNE PEDDER AS THE LEGAL REPRESENTATIVE OF JOHN FREDERICK PEDDER, [Deceased]

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

Mr John Handley, Senior Member

Date 24 November 2011

Place Melbourne

Decision

The decision under review is affirmed.

........[sgd] John Handley............
Senior Member

VETERANS’ AFFAIRS – Back pain suffered during a period of defence service - back pain again suffered during a later period of operational service - Whether veteran suffered a trauma to the lumbar spine before any clinical worsening - Whether depressive disorder and erectile dysfunction were a consequence of the lumbar injury - decision affirmed.

Administrative Appeals Tribunal Act 1975 (Cth) s 34J

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Veterans’ Entitlements Act 1986 (Cth) ss 126, 120(1)

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

Statement of Principles – Depressive Disorder – Instrument No 58 of 1998

Statement of Principles – Depressive Disorder – Instrument No 17 of 2007

Statement of Principles – Depressive Disorder – Instrument No 27 of 2008

Statement of Principles – Erectile Dysfunction – Instrument No 17 of 2005

Statement of Principles – Lumbar Spondylosis – Instrument No 37 of 2005

REASONS FOR DECISION

24 November 2011

Mr John Handley, Senior Member

1. A hearing in an application lodged by the late Mr John Frederick Pedder commenced on 8 February 2010. The proceedings were adjourned part heard because of an absence of medical evidence and the unavailability of a medical witness.
2. Regrettably, Mr Pedder died on 23 April 2010 before the hearing resumed. Considerable delay then followed locating a person who the Repatriation Commission (the Commission) was prepared to approve as the legal personal representative of the deceased in order to permit the application to proceed (refer s 126 of the Veterans’ Entitlements Act 1986 (the Act)).
3. Ultimately Patricia Anne Pedder, the deceased’s daughter was approved on 26 July 2011.
4. At a Directions Hearing on that day, the representatives of the parties consented to the Tribunal reviewing the decision by consideration of documents and other material lodged without the holding of a hearing (refer s 34J Administrative Appeals Tribunal Act 1975).
5. Mr Pedder was born on 6 November 1946 and was 63 years of age at the date of his death. He was then receiving a pension at 30 per cent of the general rate for accepted disabilities of bilateral sensori neural hearing loss and skin cancers.
6. He subsequently made claims for a number of other illnesses which were rejected at the primary level. At or about the time of review by the Veterans’ Review Board (the VRB) some of those claims were withdrawn. The only applications for which he sought acceptance were lumbar spondylosis, depressive disorder and erectile dysfunction. On 29 May 2008 the VRB affirmed decisions previously made by the respondent with respect to those conditions. The deceased sought review of that decision.
7. The deceased was a member of the Australian Army between 26 April 1965 and 1 March 1967. He served for seven months in Malaysia between June 1966 and January 1967. Operational service was confined to the period 1 July 1966 until 11 August 1966, a period of 42 days.
8. In a Statement of Facts and Contentions lodged by the respondent for the purposes of completing this review, it was conceded that the deceased did suffer the condition of lumbar spondylosis, depressive disorder and erectile dysfunction. That concession was made on the balance of probabilities. I am satisfied, on the medical reports lodged, that the concession was properly made.
9. It emerged during the hearing that the applicant had, or was, receiving compensation under the Safety, Rehabilitation and Compensation Act 1988 for a back injury. It was learnt that the deceased had previously had treatment by way of a laminectomy and in the week before the hearing he had a further review by his doctors by an MRI scan. The results of that scan were not known. The absence of that medical data and the clinical file of his treating neurologist was another reason that the hearing did not conclude on 8 February 2010 and was adjourned part heard.
10. It was learnt at the hearing that the objective of the applicant was ultimately to be issued with a Gold Card. In order to satisfy that objective the deceased needed to have one or more of his claimed conditions accepted as war-caused and then to be assessed by regard to lifestyle ratings as having an entitlement to pension at 100 per cent of the general rate.
11. The claim for acceptance of lumbar spondylosis arising out of operational service was put on the basis that the deceased suffered an aggravation of a pre-existing back injury whilst on service at Butterworth in Malaysia on 5 August 1966. It was alleged that the aggravated injury arose out of the deceased having fallen during a game of football. The primary injury, which the deceased alleged was aggravated in Malaysia was alleged to have occurred on 25 October 1965 when he slipped and fell on a stairwell at the Woodside army barracks in South Australia.
12. The hypothesis advanced by the deceased is found in a Statement of Facts and Contentions lodged by the deceased’s representative on 10 August 2011 namely:
    1. Suffering a trauma to the lumbar spine before the clinical worsening of it and/or having a condition of the lumbar spine from a specified list of spinal conditions before the clinical worsening pursuant to Statement of Principles No 37 of 2005. That Instrument has subsequently been amended but not in any manner material to this review. It was the Statement of Principles (the SoPs) with respect of the condition of lumbar spondylosis in force at the date of application to the respondent. The specified list of spinal conditions is defined at paragraph 9 of the SoPs as meaning either; a scoliosis, a spondylolisthesis, a retrospondylolisthesis, a deformity of a vertebra, a deformity of a joint of a vertebra or a necrosis of bone.
    2. Suffering chronic pain from the lumbar spondylosis caused a dysthymic disorder being an illness defined as a psychiatric condition within the meaning of depressive disorder pursuant to paragraph 3 of Statement of Principles No 27 of 2008 which is entitled Depressive Disorder. Specifically the hypothesis was alleged to embrace Factor 6(ix) of this SoP by reason of the deceased having suffered chronic pain for at least three months duration at the time of clinical onset of a depressive disorder. SoPs No 27 of 2008 was current at the date of review. It was not in force at the date of primary claim. At that date Instrument No 58 of 1998 applied and by Factor 5(e) the suffering of chronic pain prior to the clinical onset of depressive disorder must have had a duration of at least six months. Intervening between the SoPs in force at the date of claim and the SoPs in force at the date of hearing was SoPs No 17 of 2007 which, by Factor 6(i), provided for a period of chronic pain of at least three months duration at the time of the clinical onset of depressive disorder. Factor 6(i) of Instrument No 17 of 2007 is a mirror of Factor 6(ix) of Instrument No 27 of 2008. Both are more beneficial than the Instrument in force at the date of claim. Instrument No 27 of 2008 was the Instrument in force at that date and I propose to have regard to it in this review.
    3. The claimed condition of erectile dysfunction is the subject of Statement of Principles No 17 of 2005 which was in force at the date of primary claim and it remains current. The applicant relies on Factor 5(a) namely having a clinically significant mood disorder with depressive features or a clinically significant anxiety disorder at the time of the clinical onset of erectile dysfunction.
13. As may be seen from the above hypotheses and the manner in which they are constructed, the condition of dysthymic disorder is dependent upon the condition of lumbar spondylosis being found to be war-caused. If it is not, any dysthymic disorder could not be found to be a consequence of chronic pain from an accepted back injury. It also follows that the claim for acceptance of erectile dysfunction, having its relationship to acceptance of dysthymic disorder will also not be found to be war-caused in the absence of acceptance of the condition of lumbar spondylosis.
14. Acceptance of the condition of lumbar spondylosis is dependent on there being a nexus between operational service and suffering of that condition, having regard to Factors 6(n) and 6(p) of Instrument No 37 of 2005. That is to say, a reasonable hypothesis connecting lumbar spondylosis with service will only be raised if at least one of these two factors exists as a minimum. Acceptance of that condition is not to be confused with the concession by the respondent that that condition exists on the balance of probabilities.
15. For reasons which follow I am not satisfied that the condition of lumbar spondylosis is connected with the circumstances of the service of the deceased.

SERVICE EVENTS

16. In the transcript of the hearing of 8 February 2010 the deceased asserted that he fell at Woodside in October 1965 when he was descending some steps whilst running to the Mess. He said that he suffered pain from my backside upwards (Transcript page 15). He also said that he chipped the bone tissue in seven places and was immobilised in traction for a long time in the Repatriation hospital in South Australia, having initially been treated at a Regimental Aid Post (RAP) (refer Transcript page 16). The deceased also said that he was an inpatient in hospital for two or three weeks (Transcript page 17).
17. At T3, page 20, a report was completed on 5 November 1965 which recorded that the deceased fell on 25 October 1965 whilst descending some steps and was an inpatient from that date until 5 November 1965. An x-ray of his lumbar spine did not demonstrate any fracture and there was narrowing at the L3/L4 disc space which was thought to result from Scheuermann’s disease which had healed but with residual deformity. There was also a suspicion of disc degeneration at that level. The doctor first attending the deceased recorded that he had suffered direct trauma to upper lumbar spine 5 days ago. However, on examination, whilst there was local tenderness at L3 it was also observed that he moves well, and a diagnosis of soft tissue contusion was made. Treatment was recorded as rest, infra-red lamp and analgesics. At discharge the applicant was noted to be able to walk fairly freely, and he was certified for light duties only, for two weeks.
18. The contents of the above report have their origin in some handwritten reports at T3, pages 16-19 inclusive. Those notes are accurately reflected in the report found at T3, page 20.
19. The applicant said he was placed in traction to keep my spine straight. When he was asked if he could remember if he was told the diagnosis the applicant said I can’t remember if the doctor told me anything to be honest. All I know they told me that I had seven bone tissues chipped to my spine (Transcript page 18). The applicant said that he had continuing back pain after the fall at Woodside until March 1966 (so far as he could recall) but was not suffering back pain prior to falling during a football game at Butterworth in August 1966.
20. In evidence the applicant said that he fell onto his back after he attempted to mark the ball. He said that he then had immense pain, and I tried to put up with it for about 10 days, then I just couldn’t take any more. I went to the Butterworth Medical Base (Transcript page 10). He was then placed on light duties for about five or six weeks and was relieved from undertaking his normal duties as a panel beater but was capable of undertaking some other lighter work.
21. At T3 page 21, a report of injury or illness dated 18 August 1966 records that the applicant was knocked heavily to the ground landing on his back ... whilst playing football at Butterworth on 5 August 1966. The injury was described as backache R sacrum. It was reported that the applicant would not be incapacitated and it was thought that it was not likely that the incident would cause any permanent ill effect nor was it likely to impair future efficiency. It was reported that the present condition of the member did not result from the injury of 5 August 1966 rather it was thought that there was evidence of a pre-existing disability which had been aggravated. In conclusion it was reported that the injury was of a minor nature.
22. I can find no other records concerning the episode at Butterworth (and no other records were brought to my attention) save for a treatment card found at T3, page 26 which (the handwriting is difficult to interpret) appears to record sore back – injury last year. (illegible) at football. o/e very tender R SI region. The treatment cards subsequently record attendances by the applicant at service clinics for a number of other illnesses. Despite the poor quality of handwriting I can find nothing which appears to refer to any treatment of or complaint of pain in respect of a back injury.

CONCLUSION AND REASONS FOR DECISION

23. A review of the clinical notes of St Vincent’s Hospital and the Lorsam Family Clinic indicate that the deceased did suffer lumbar spondylosis for many years before he progressed through the public hospital system to undertake a laminectomy at three levels and a fusion at two levels of this lumbar spine in December 2008.
24. Subsequently – although not related to this review – the deceased had also been diagnosed with cervical spondylosis which was also treated in the Neurosurgery Clinic at the St Vincent’s Hospital.
25. Save that a number of medical reports within the files of the St Vincent’s Hospital and the Lorsam Family Clinic refer to lower back pain over the years, there is nothing which points to any history given by the deceased or taken by any medical practitioner of the episodes of 1965 or 1966 having any responsibility for the lumbar spondylosis.
26. The respondent obtained a copy of a clinical record obtained by Mr Peter Kudelka, an orthopaedic surgeon who attended the applicant in October 1979 and on a second occasion in August 1982.
27. Mr Kudelka recorded – as evident by his handwritten notes – that the applicant did suffer a fall in 1965, was referred to the Repatriation Hospital in South Australia for two weeks and subsequently suffered a recurrence o’seas. He also recorded that the deceased had, subsequent to discharge, suffered five attacks back pain. Works as panel beater and had been prescribed tablets and physiotherapy.
28. On 10 August 1982 Mr Kudelka recorded back pain. Legs pain. Back support. Off work 2 years.
29. Mr Richard McArthur, an orthopaedic consultant provided two reports to the deceased’s advocate on 7 April 2008 (T24, pages 162-170) and on 22 April 2010.
30. Mr McArthur obtained a history from the deceased of the two episodes in service. He also obtained a history of the applicant, subsequent to discharge from service, of being employed as a panel beater.
31. It was his opinion that the deceased did suffer a significant injury to his lumbar spine in August 1966 when he fell playing football. Having regard to SoPs No 37 of 2005 which was apparently provided to him, he was satisfied that the deceased did suffer a trauma to the lumbar spine. It was his opinion that the deceased did sustain a significant injury to his lumbar spine and for a subsequent period of at least 10 days the deceased was stiff and sore. He concluded that the applicant therefore suffered an injury to his lumbar spine which was the genesis for the subsequent diagnosis of lumbar spondylosis. A similar opinion was expressed in his report of 22 April 2010.
32. The deceased was examined by Mr Peter Scott a consultant surgeon at the request of the respondent. He obtained a history of the episodes in 1965 and 1966 and was satisfied that the applicant did suffer from lumbar spondylosis. Additionally the history that he obtained was a Chronic low back pain which has become increasingly severe between 1967 and 1978 and gradual deterioration since that time since he ceased work.
33. He reported that the applicant had undertaken a decompression laminectomy in 2008.
34. However, he was not satisfied that there was any relationship between the episodes in service and the subsequent diagnosis. He regarded lumbar spondylosis as being degenerative in nature, consistent with an aging process but did acknowledge that it could be initiated following specific episodes or aggravated by physical work.
35. On the clinical material available to him, he was not satisfied that the x-rays taken in 1965 demonstrated any convincing evidence of the lumbar spondylosis and preferred the opinion of minor disc space narrowing at L3/4. He reported the x-ray was not convincing evidence of any other changes at any other vertebral body and he preferred a diagnosis then of Scheuermann’s disease.

CONCLUSION

36. I am not satisfied, having regard to the totality of the medical evidence that the deceased did suffer a trauma to the lumbar spine before the clinical worsening of lumbar spondylosis.
37. The application was advanced on the basis that the condition of lumbar spondylosis had its origin in a trauma to the lumbar spine following the fall on some stairs in 1965 before it was clinically worsened by falling whilst playing football at Butterworth in 1966.
38. Without any disrespect to Mr McArthur, his interpretation of the definition of trauma to the lumbar spine omits consideration of the totality of the definition as found within paragraph 9 of Instrument No 37 of 2005. Whilst it is true the applicant did present with back pain and was then suffering from pain and tenderness with altered mobility, the foundation for satisfying the definition is having sustained a discrete injury.
39. The clinical data of 1965 does not point to the applicant then having suffered a discrete injury. The applicant was then found to have tenderness, soft tissue contusion, an absence of any fracture upon x-ray, and restricted spinal movements. Disc space narrowing at L3/4 and the suggested appearances of Scheuermann’s disease at L3 and L4 would not have occurred as a result of falling down the stairs on 25 October 1965. The x-ray report is dated on that same day. The conclusion of the radiologist of vertebral narrowing suggesting disc degeneration is in my view well founded. The degeneration would have been pre-existing. Had the narrowing been traumatic in nature, it would have been reported. There was nothing from the radiology or any clinical notes to support the applicant’s evidence that he suffered chipped bone tissue in seven places (Transcript page 16).
40. The complaints of pain, tenderness and bruising (T3, page 17) do not point to a discrete injury.
41. I acknowledge that the reporting medical officer at Butterworth on 15 August 1966 recorded that the deceased did have evidence of a preexisting disability which in his opinion had been aggravated by the recent injury. It is not known what pre-existing disability the medical officer was referring to, nor is there anything which would indicate the basis for his opinion that there had been an aggravation of it. His conclusion that the injury is of a minor nature would suggest on the one hand that the opinion of aggravation of pre-existing disability is difficult to comprehend or aggravation, if any, may have been of a temporary nature.
42. I do not propose to speculate, save that the hypothesis of an aggravation in Butterworth of an injury having occurred at Woodside cannot in my view be sustained.
43. The remaining hypothesis with respect to lumbar spondylosis was of having a condition of the lumbar spine from the specified list of spinal conditions also found in paragraph 9 of the SoP.
44. It is not clear whether this hypothesis is put on the basis of a clinical worsening confined only to the asserted injury of 1965 then having been aggravated or the clinical worsening occurring at some later time but having a relationship to some pre-existing service related episode.
45. So far as the latter is concerned, there is nothing that points to the occasion of clinical worsening. If there was any reference to that occurrence in the clinical data lodged – which is voluminous – it was not the subject of any submission.
46. The specified list of spinal conditions refers to conditions of scoliosis, spondylolisthesis, retrospondylolisthesis or necrosis of bone, references to which I cannot find in any of the clinical data. The remaining two conditions within the definition refer to a deformity of a vertebra and deformity of a joint of a vertebra. Those conditions may have become apparent in or about the 1990s when the deceased was placed on the waiting list for a laminectomy. Perhaps those conditions occurred earlier. But there is nothing which points to any deformity of a vertebra or deformity of a joint of a vertebra having its origin in service which existed, or at all, before the clinical worsening of lumbar spondylosis.
47. Insofar as the four stages of analysis as dictated by Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97 is concerned, and having regard to the concessions properly made by the respondent of diagnosis it is hopefully apparent from the foregoing that:
    1. hypotheses have been advanced by the advocate for the deceased;
    2. there are Statements of Principles with respect to the injuries and illnesses which form part of the hypotheses;
    3. the hypotheses as raised are consistent with the templates of the Statements of Principles and are deemed in the circumstances to cause the hypotheses as raised to be reasonable; however
    4. having regard the provisions of s 120(1) of the Act I am satisfied beyond reasonable doubt, for the reasons above, that there is no sufficient ground to determine that lumbar spondylosis was war-caused. It follows that the remaining conditions of dysthymic disorder and erectile dysfunction are also, on the balance of probabilities, not war-caused, because of their dependence on satisfaction of meeting the hypothesis for lumbar spondylosis they cannot be found as a fact to be war-caused.

DECISION

48. In the circumstances the decision under review is affirmed.

I certify that the forty-eight [48] preceding paragraphs are a true copy of the reasons for the decision herein of:

Mr John Handley, Senior Member

Signed: ...............[sgd] E. Montalto...................................

Associate

Dates of Hearing 8 February 2010 &

Hearing on the papers

Date of Decision 24 November 2011

Representative for the Applicant Mr B Turner, Returned & Services League of Australia

Representative for the Respondent Ms T Chant, Department of Veterans Affairs