Bester and Repatriation Commission
[2000] AATA 890
•10 October 2000
DECISION AND REASONS FOR DECISION [2000] AATA 890
ADMINISTRATIVE APPEALS TRIBUNAL )
) No T1999/91
VETERANS' APPEALS DIVISION )
Re RONALD AKIN BESTER
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr C P Webster (Senior Member)
Date10 October 2000
PlaceHobart
Decision The decision under review is affirmed.
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Senior Member
CATCHWORDS
Veterans' Affairs – Osteoarthrosis of left shoulder – whether caused by war service.
Veterans' Entitlements Act 1986 – s.120
REASONS FOR DECISION
10 October 2000 Mr C P Webster (Senior Member)
The Issues
This is a review of a decision of the Repatriation Commission ("the respondent") of 7 August 1998, subsequently affirmed by the Veterans' Review Board on 24 May 1999, which rejected a claim by Ronald Akin Bester ("the applicant") for osteoarthrosis of the left shoulder on the basis that the condition was not war-caused.
The issue is whether the claimed condition of osteoarthrosis of the left shoulder was caused or contributed to by the applicant's service in the Australian Army between May 1941 and 22 October 1942.
As the applicant rendered operational service the standard of proof is that contained in s.120 (1) and (3) of the Veterans' Entitlement Act 1986 ("the Act").
As the application was lodged after 1 June 1994 s.120A of the Act applies in that the applicant must satisfy the relevant Statement of Principle in this case No. 41 of 1998 as amended.
The HearingA hearing was commenced on 21 March 2000, but was adjourned due to the unavailability of the applicant's medical witness. That witness was not available until 14 September 2000.
The term of appointment of the member of the Administrative Appeals Tribunal who conducted the original hearing expired after 21 March 2000, but was re-appointed prior to 18 September 2000 when the matter came before that member for the resumed hearing.
The parties agreed, in order to overcome any jurisdictional problems caused by the resumed hearing and the expiration and re-appointment of the member of the Tribunal that the hearing of 14 September 2000 would be a fresh hearing rather than a continuation of the earlier commenced hearing and that the parties would tender the transcript of the hearing of 21 March 2000 as evidence in the hearing of 14 September 2000.
The EvidenceThe transcript of the Tribunal hearing of 21 March 2000 was tendered into evidence, that transcript consisted of evidence given at that hearing by the applicant and cross-examination of the applicant.
The 'T' documents were tendered into evidence.
Mr. Howard Bye, an orthopaedic surgeon, gave oral evidence (by telephone) and his reports to the applicant's solicitor dated 24 January 2000 and 25 February 2000 were tendered into evidence.
The evidence of the applicant as contained in the transcript was as follows:-
(a)The applicant served in the Australian Army between May 1941 and October 1942.
(b)During this time he saw active service in the Middle East.
(c)That at Hill 69 in Palestine he attended a field hospital where he initially received pain killers and received treatment for 3 to 4 weeks.
(d)He continued to suffer pain in the shoulder intermittently although he did not consult a medical practitioner until "not very long ago".
The applicant was cross-examined as to his previous accounts to the cause of his shoulder injury particularly the description in his claim of July 1998 when Mr. Bye stated the history given to him by the applicant which attributed his shoulder problem to carrying a rifle and which did not mention a fall.
His service medical records were put to him. These records show that the applicant was hospitalised while serving at Hill 69, but for reasons other than a shoulder injury, namely an upper respiratory tract infection.
The applicant was cross-examined as to the medical history he gave on discharge from the Army and the absence, in these records, of any mention of a fall and injury to his shoulder.
Mr. Howard Bye, an orthopaedic surgeon, gave the following evidence, namely:-
(a) That Mr. Bye had seen the applicant on many occasions.
(b)That a trauma, that is a fall, is described by the applicant could have initiated the applicant's present shoulder condition.
(c)That if the applicant had had a fall such as described by him, he would have suffered symptoms for some time after.
(d)That the applicant originally told Mr. Bye that he thought his shoulder condition related to the applicant carrying a rifle for long periods while in the Army.
(d)That in his opinion that the carrying of a rifle alone would not have been likely to be the cause of the applicant's present condition.
(e)That the first time that the applicant mentioned a fall while serving in the Army to Mr. Bye was January of this year, and that the applicant had never mentioned to him that he had been hospitalised as a result of a shoulder problem.
The relevant 'T' documents tendered appeared to be the following documents namely:
(a)The decision of the Veterans' Review Board which indicated that the applicant's case before that Board was that his shoulder problem was caused by carrying a rife on his shoulder. There was no evidence produced at that hearing that the shoulder problem was the result of any fall or in particular a fall at Hill 69 in Palestine.
(b)Medical discharge papers of 3 October 1942 signed by the applicant in which he states "I am perfectly well" and fails to mention any history of a shoulder problem or a fall.
(c)Claim for disability pension signed by the applicant on 25 March 1997 which claimed a pension for shoulder determination which was caused by "firing of weapons constantly whilst on service and carriage of rifle on shoulder during drill". In answer to the question "When did you first become aware of the disability?" the veteran's answer was "late 1980's".
The Tribunal is satisfied that the applicant has established a reasonable hypothesis which relates his present shoulder condition to his war service.
On the applicant's version he suffered injury to his shoulder when he fell during service in Palestine. Such a fall could have initiated the applicant's present shoulder condition and would satisfy the relevant Statement of Principle. This is conceded by counsel for the respondent.
As the applicant has established a reasonable hypothesis that his shoulder injury was war-caused, the Tribunal is required to find that the applicant's osteoarthrosis left shoulder was war-caused unless it is satisfied beyond reasonable doubt that there is not sufficient grounds for making that finding.
The Tribunal does not accept that the applicant suffered any fall during his service in the Army.
The Tribunal considers that the applicant's evidence that he suffered a fall while serving at Hill 69 in Palestine is not believable in the light of the evidence presented at the Veterans' Review Board; the applicant's history given to his specialist prior to January 2000; the applicant's explanation as to the cause of his shoulder problem given in his application for a pension; and his failure to mention any shoulder problem in his medical discharge documents.
The applicant was unable to explain the discrepancies in his previous versions as to the how he developed shoulder problems and why he only recently attributed that problem to a fall. He was unable to explain why he did not refer to a fall causing shoulder problems prior to January 2000.
The Tribunal accepts the evidence of Mr. Bye that the carrying of a rifle, without any specific incident of trauma, would not have resulted in the applicant's present osteoarthrosis left shoulder.
The Tribunal is satisfied beyond reasonable doubt that the applicant did not suffer a fall during his service or specific trauma to his shoulder during service and is satisfied beyond reasonable doubt that no other war service incident such as the carrying of a rifle for prolonged periods caused the applicant's present shoulder problem.
DecisionThe decision under review is affirmed.
I certify that the 25 preceding paragraphs are a true copy of the reasons for the decision herein of Mr C P Webster (Senior Member)
Signed: .....................................................................................
Personal AssistantDate/s of Hearing 21 March and 14 September 2000
Date of Decision 10 October 2000
Counsel for the Applicant Mr R M Webster
Counsel for the Respondent Mr M Castle (Department of Veterans' Affairs)
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