A March 2022 decision of the Federal Court – Boys v Repatriation Commission – found that the date of clinical onset of cervical spondylosis was the date the veteran had the x-ray that was used to diagnose the illness.
This is contrary to DVA policy and existing law regarding clinical onset and diagnosis. How did it go wrong?
During Mr Boys’ ADF service he was involved in three (service related) vehicle accidents between 1981-83.
Mr Boys was diagnosed with cervical spondylosis in 2014, following x-rays that showed degenerative change. Mr Boys’ medical expert evidence was that he had well established symptomatic cervical spondylosis, probably before but certainly by, his medical board examination of 25 October 1985.
Mr Boys submitted Veteran Entitlement Act claims though DVA, to have cervical spondylosis accepted as a service-related condition. His claim was initially rejected, and Mr Boys has navigated the appeals process to the Federal Court.
Federal Court Decision
In the Federal Court, the Repatriation Commission argued that according to the statement of principles, the clinical onset of Mr Boys’ cervical spondylosis was the date in 2014 when he had x-rays showing degenerative change.
The relevant statement of principles says:
(b) For the purposes of this Statement of Principles, “cervical spondylosis” means a degenerative joint disorder affecting the cervical vertebrae or intervertebral discs with:
(i) clinical manifestations of local pain and stiffness, or symptoms and signs of cervical cord or cervical nerve root compression; and
(ii) imaging evidence of degenerative change, including disc space narrowing or osteophytes.
Based on the Repatriation Commission’s argument, the Federal Court found that the date of onset of Mr Boys’ cervical spondylosis was in 2014, which meant that it was not service related.
Why is this wrong?
This is an absurd and dangerous interpretation of the statement of principles. It confuses clinical onset and diagnosis.
A Legal Precedent Already Exists
In 2011, the Full Federal Court – which sets precedents for the court and lower courts – found in Kaluza v Repatriation Commission, that the distinction between clinical onset and diagnosis is clear:
…a person might say ‘I noticed [symptoms] in March last year but I didn’t see a doctor until July’. If a doctor can say from the onset of those symptoms in March that that indicates the presence of disease at that time, that is the date of clinical onset.Kaluza v Repatriation Commission
The DVA Policy Manual – the “Consolidated Library of Information and Knowledge (CLIK)” covers this issue and makes it clear that clinical onset and diagnosis are two different concepts. Usefully, the CLIK provides a case study, stating:
A diagnosis for a specified condition is confirmed by a test result. However, symptoms consistent with the diagnosis have been present in the claimant in the three months prior to the test. Based on this information, the date of clinical onset would be three months prior to the test.CLIK Policy Manual 3.4.4—Establishing Clinical Onset and/or Worsening
In 2018, the Chief Health Officer and Principal Medical Advisor of DVA, Professor Ian Gardner, highlighted that DVA delegates sometimes mistake date of confirmation of diagnosis, with clinical onset. He specifically highlights cervical spondylosis as a condition that delegates frequently make this mistake:
The bottom line: DVA delegates should not be using the date of imaging evidence as the [clinical onset]. They should be getting medical advice from our Contracted Medical Advisers or the veteran’s own Treating Doctor as to when the clinical onset occurred. In most cases this will be some time before the date when the confirmatory imaging evidence was first obtained.VetAffairs Vol 34 (4) Summer Edition p7—Clarifying ‘Clinical Onset’; More on Prostate Cancer
Professor Gardner also said
There have been some cases within DVA where decisions by delegates have been inconsistent in this arena, and our policy people have run a workshop and issued informal guidance to delegates to help overcome this issue.
It is not just common sense that says in most cases clinical onset and diagnosis are different things; it is established law and DVA policy.
Aside from the serious and unnecessary impact on—and expense to—a veteran, this case raises some serious questions:
- Why has DVA/the Repatriation Commission run a litigation that is both counter to its own policy and to existing precedential case law?
- Has the Repatriation Commission acted as a model litigant in the Boys case?
- How is this not a failure of governance, and quality assurance and control, within DVA and the Repatriation Commission?
At the time of writing, Mr Boys legal team has filed an appeal in the Federal Court. DFWA will watch with keen interest as this case progresses, particularly the approach taken by the Repatriation Commission.