Bonjour and Military Rehabilitation and Compensation Commission (Compensation)

[2025] ARTA 180

Bonjour and Military Rehabilitation and Compensation Commission (Compensation) [2025] ARTA 180 (5 March 2025)

Applicant/s:  Alistair Michael Bonjour

Respondent:  Military Rehabilitation and Compensation Commission

Tribunal Number:                2023/3109

Tribunal:Senior Member George

Place:Adelaide

Date:5 March 2025

Decision:The Tribunal affirms the Reviewable Decision.

Statement made on 27 February 2025 at 3:36pm

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Senior Member George

CATCHWORDS

VETERANS – Royal Australian Air Force – rotator cuff tendinopathy of the shoulders with features of bilateral rotator cuff syndrome – date of onset – whether condition was contributed to, to a significant degree, by service – no entitlement to compensation – decision under review affirmed

LEGISLATION

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 ss 5B(1), 5B(3), 7(4), 7(4)(a), 14

Statement of Reasons

1. Mr Bonjour enlisted in the Royal Australian Air Force in April 1991, aged 19 years. He attained the rank of Leading Aircraftsman, performing duties in air movements and aircraft refuelling. Mr Bonjour was aged 25 years when he discharged in January 1997. He then worked as a civilian aircraft refueller, before becoming a civilian firefighter at an airfield. Mr Bonjour is now aged 53 years.

2. In February 2021, Mr Bonjour lodged a claim seeking compensation for bilateral rotor cuff syndrome. This is the claimed condition.

3. In September 2022, Mr Bonjour’s claim was refused. This refusal was affirmed in March 2023 following a request for reconsideration. This is the Reviewable Decision.

4. The issues for the Tribunal are:

   (a)is the bilateral rotor cuff syndrome the appropriate diagnosis of the claimed condition?

   (b)what is the date of onset?

   (c)was Mr Bonjour’s condition contributed to, to the requisite degree, by his service?

   (d)is Mr Bonjour entitled to compensation?

5. Tribunal affirms the Reviewable Decision for the following reasons.

   SUMMARY OF MATERIAL FACTS

6. Mr Bonjour’s service record is contained in T23 of Exhibit R1 and need not be repeated in detail. Mr Bonjour completed recruit training. He mustered as a Supplier. Mr Bonjour completed specialist training in dangerous cargo and explosive ordnance handling, as an aircraft loader and refueller, and in ground combat.

7. Mr Bonjour’s extensive service medical and dental records are contained in T24 of Exhibit R1. Materially, Mr Bonjour presented to the RAAF health facility with a sore left shoulder in October 1994. He had a full range of movement. No deformity or bruising was observed. Mr Bonjour presented with pain on lifting his arm above his head in in February 1995.

8. Mr Bonjour gave evidence about his service with the RAAF. The 1990s were a different era to today and Mr Bonjour described a hardworking culture where complaint was discouraged. Mr Bonjour did not attend a medical facility every time he was sore or injured in the course of his duties. Instead, he might have undertaken light duties or iced an injury before returning to work.

9. Both orally, and in writing, Mr Bonjour described his training and duties. He participated in physical training and gym work. Ground defence training was rigorous and occurred approximately every six months following recruit training. Key point defence training involved digging weapons pits, handling equipment such as star pickets, and load bearing in patrol order carrying weapons. Mr Bonjour received extensive firearms training. Mr Bonjour did not deploy overseas on operations, but at one stage was completing ground defence training in anticipation of doing so.

10. Mr Bonjour was variously posted to units at RAAF Base Edinburgh and RAAF Base Pearce. His duties loading and refuelling aircraft were performed on the flight-line at all hours of the day and in all forms of weather. They involved pushing, pulling, lifting, and climbing. Mr Bonjour has provided a report of his carrying and lifting loads.

11. In his written evidence, Mr Bonjour described what was required of him to refuel various aircraft types. These included large aircraft such as a Boeing 707, through to small aircraft such as the PC9. Mr Bonjour’s duties were hazardous. On one occasion, Mr Bonjour was injured by the nose cone box of a P3 Orion.

12. The Reviewable Decision considered Mr Bonjour’s claims for left rotator cuff syndrome, right rotator cuff syndrome, and osteoarthritis bilateral hips. The delegate found that there was no formal diagnosis of osteoarthritis bilateral hips, and that claim has not been pressed in these proceedings.

13. The delegate found a diagnosis of left rotator cuff syndrome based on an imaging report dated 9 September 2019, which was found to be the date of injury for the purposes of s 7(4) of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRCA). Similarly, the delegate found a diagnosis of right rotator cuff syndrome based on an imaging report of 13 August 2013, which was found to be the date of injury.

14. The delegate considered Mr Bonjour’s contention that his rotator cuff syndrome was caused by his RAAF service working in a warehouse as a storeman and as an aircraft refueller. Mr Bonjour contended that these roles involved heavy, repetitive, and sustained lifting.

15. The use of a Statement of Principles is not contemplated under the DRCA. The delegate nevertheless applied them as a guide to establish whether Mr Bonjour’s service caused or contributed to his service. The Tribunal does not embrace this approach.

16. The delegate noted the duration between the cessation of Mr Bonjour’s service and the dates of onset, finding that post-service activities were the contributing cause to the development of Mr Bonjour’s rotator cuff syndrome. Accordingly, the delegate was not satisfied that Mr Bonjour’s service significantly contributed to the onset of his rotator cuff syndrome. In these proceedings, the Respondent no longer regards a diagnosis of bilateral rotator cuff syndrome to be strictly accurate.

17. Mr Bonjour’s post-RAAF career has been in physical roles. He has worked as an aircraft refueller and as an airfield firefighter. Mr Bonjour is presently a Station Officer.

18. Mr Bonjour’s civilian employment has not been without incident. A radiology report with a service date of 17 January 2013, contained in T6 of Exhibit R1, notes a “?Spinal fracture following a fall”. An earlier report with an examination dated of 25 May 2012, contained in T5 of Exhibit R1, noted a fall from a truck at work the day before. The Tribunal also notes that Mr Bonjour reported to Dr David Colvin that he aggravated his shoulder in August 2019 when he slipped out of a truck and held onto the handrails. This caused a wrenching type of injury to Mr Bonjour’s right shoulder.

19. There is a substantial quantity of medical evidence before the Tribunal. Materially, on 13 August 2013, an ultrasound of the right shoulder revealed that the tendons of Mr Bonjour’s “rotator cuff are intact and normal”. An x-ray and ultrasound of 30 November 2016 did not find any cause for symptoms in Mr Bonjour’s right shoulder. A subsequent x-ray and ultrasound of the right shoulder on 26 February 2019 found:

    1.    Moderate subacromial bursitis with impingement.

    2.    Partial rim rent tear supraspinatus.

    3.    Subscapularis tendinopathy.

20. An x-ray and ultrasound of the left shoulder on 9 September 2019 found:

    1.    Partial thickness tear anterior articular fibres of suprspinatus.

    2.    Infraspinatus tendinopathy.

    3.    No subacromial bursitis.

21. Mr Bonjour has provided medical and allied health support evidence in support of his application.

22. Dr Leonard Henson is Mr Bonjour’s general practitioner. In April 2020, Dr Henson completed an injury or disease details form and reported a diagnosis of ‘rotator cuff tendinosis due to Type II acromion (R + L)’. In Dr Henson’s opinion, the date of onset was 1990 and Mr Bonjour’s claimed condition arises from Mr Bonjour’s RAAF service.

23. Mr Bonjour has also relied upon the evidence of his physiotherapist Mr Andrew Georgy. This evidence is brief. Mr Georgy is of the opinion “Mr Bonjour’s history of repetitive shoulder use during his service could have contributed to his ongoing shoulder pain”.

24. Mr Bonjour has been receiving chiropractic management from Dr Brendan Maunders. In a report of 25 October 2022, Dr Maunders gave an opinion that Mr Bonjour’s rotator cuff “injuries are as a result of his service in the Air Force”. In forming this opinion, Dr Maunders outlined his understanding of Mr Bonjour’s military duties that are consistent with other evidence before the Tribunal. Dr Maunders’ evidence does not address the date of onset of the claimed condition or any impact of his post-service career.

25. The Tribunal has documentary evidence before it from orthopaedic surgeons Dr Colvin and Dr Vara Mukundala.

26. The substance of Dr Colvin’s evidence is that Mr Bonjour is suffering an insubstance rotator cuff tear that is progressing very slowly and will likely require surgical repair in due course. The right shoulder has progressed further than the left.

27. In his report of 14 June 2023, Dr Mukundala agreed with Dr Colvin’s opinion regarding surgery for Mr Bonjour. Dr Mukundala also noted arthritic changes and changes of a degenerative nature in Mr Bonjour’s right shoulder.

28. The Respondent has principally relied upon the expert evidence of Mr Fredrick Phillips. Mr Philips is a consultant orthopaedic surgeon and he appeared before the Tribunal.

29. Mr Phillips’ evidence is that the correct diagnosis for Mr Bonjour’s condition is rotator cuff tendinopathy of the shoulders with a date of onset between 2015 and 2019. Mr Phillips regarded the imaging of Mr Bonjour’s shoulders to reflect age related and constitutional degenerative changes. In Mr Phillips’ opinion, the imaging of Mr Bonjour’s shoulders was what he would expect from a person in Mr Bonjour’s age group. Mr Phillips does not attribute the degeneration Mr Bonjour suffers to his RAAF service.

30. The Tribunal finally notes an expert report prepared by Dr John Bell, an orthopaedic surgeon, dated 28 October 2015, contained at T9 of Exhibit R1. This report is only relevant to the extent that Mr Bonjour had a full range of movement of his shoulders at the time of examination, and that he did not suffer discomfort or tenderness.

    CONSIDERATION

31. In his written closing argument, Mr Bonjour submitted that his rotator cuff syndrome is a spectrum of conditions that has its origins in specific injuries and degenerative processes. The main injuries that Mr Bonjour relies upon are those reported and unreported injuries he suffered in the RAAF in the 1990s.

32. The Respondent has submitted that the correct diagnosis to be rotator cuff tendinopathy of the shoulders with features of bilateral rotator cuff syndrome. The Respondent has submitted that Mr Bonjour’s claimed condition is appropriately described as an ‘ailment’ of gradual onset within the meaning of s 5B(1) of the DRCA. The Respondent also submits at that the date of injury was no earlier than 2019.

    Is the bilateral rotor cuff syndrome the appropriate diagnosis of the claimed condition?

33. The balance of the medical evidence does not support a finding that Mr Bonjour suffers bilateral rotor cuff syndrome as claimed.

34. Dr Henson’s evidence indicates that Mr Bonjour suffers from rotator cuff tendinosis, whilst Dr Colvin and Dr Mukundala’s evidence indicate that he is suffering from an insubstance rotator cuff tear. The evidence of Mr Georgy and Dr Maunder assist the Tribunal insofar as they are evidence that Mr Bonjour has suffered injury and pain.

35. The Tribunal notes that Mr Phillips gave evidence in proceedings and this evidence was tested in cross-examination. Mr Phillips’ evidence that Mr Bonjour is suffering rotator cuff tendinopathy of the shoulders is consistent with the other medical evidence before the Tribunal. To the extent that Mr Bonjour’s rotator cuff tendinopathy of the shoulders is causing him pain and is degenerative, the Tribunal is satisfied that it has features of rotator cuff syndrome.

36. Given the degenerative nature of Mr Bonjour’s rotator cuff tendinopathy of the shoulders, the Tribunal is satisfied that it is an ailment.

    Conclusion:

37. The appropriate diagnosis of Mr Bonjour’s claimed condition is rotator cuff tendinopathy of the shoulders with features of bilateral rotator cuff syndrome, which is an ailment.

    What is the date of onset?

38. The balance of the medical evidence indicates that Mr Bonjour’s shoulders were intact and normal until approximately 2019, when he also consulted Dr Henson. Under section 7(4)(a) of the DRCA, the Tribunal is satisfied that this is when Mr Bonjour first sought medical treatment for his rotator cuff tendinopathy of the shoulders with features of bilateral rotator cuff syndrome.

39. In the making this finding, the Tribunal places weight on the report of Dr Bell that Mr Bonjour did not report a limitation of movement, discomfort, or tenderness or his shoulders in 2015.

40. The Tribunal has also considered Mr Bonjour’s evidence, and the evidence contained in his service medical records. Despite any injury he suffered as a RAAF member, be it reported or not, the Tribunal is not satisfied that Mr Bonjour’s rotator cuff tendinopathy of the shoulders with features of bilateral rotator cuff syndrome first caused him impairment whilst serving.

    Conclusion:

41. The date of onset is 2019.

    Was Mr Bonjour’s condition contributed to, to the requisite degree, by his service?

42. Given the date of onset is 2019, the requisite degree is a ‘significant degree’ under section 5B(3) of the DRCA. This is a degree that is substantially more than material. The evidence before the Tribunal does not allow it to be reasonably satisfied that Mr Bonjour’s rotator cuff tendinopathy of the shoulders with features of bilateral rotator cuff syndrome was contributed to, by a significant degree, by his service.

43. Mr Bonjour’s evidence has been summarised and need not be repeated. It is his submission that his duties in the RAAF between 1991 and 1997 contributed to his claimed condition. During the hearing, Mr Bonjour placed particular emphasis on the lifting that he undertook in the RAAF. The Tribunal acknowledges that Mr Bonjour’s duties were inherently physical.

44. The Tribunal is unconcerned that Mr Bonjour did not make his claim for many years after leaving the RAAF. The Tribunal’s most serious concern is that Mr Bonjour discharged in 1997 and the date of onset of his rotator cuff tendinopathy of the shoulders with features of bilateral rotator cuff syndrome was 2019. In the interim decades, Mr Bonjour both worked as a civilian firefighter and aged.

45. The Tribunal does not discount that there may be some contribution of his RAAF service to the degeneration in his shoulders. The Tribunal readily accepts that service life in the 1990s was different to the present day and that numerous minor injuries may not have been reported or recorded. Nevertheless, the best evidence before the Tribunal is that of Mr Phillips which indicates that the degeneration that Mr Bonjour now suffers is predominantly age related. This evidence outweighs any alternative opinion, particularly from Dr Henson and Dr Maunders.

46. Accordingly, on the evidence before it, the Tribunal is not reasonably satisfied that Mr Bonjour’s rotator cuff tendinopathy of the shoulders with features of bilateral rotator cuff syndrome was significantly contributed to by his RAAF service.

    Conclusion:

47. Mr Bonjour’s condition was not contributed to, to the requisite degree, by his service.

    CONCLUSION

48. Mr Bonjour’s application cannot succeed given the findings made above. He is not therefore entitled to compensation for his claimed condition under section 14 of the DRCA. The Reviewable Decision must therefore be affirmed.

    DECISION

49. The Tribunal affirms the Reviewable Decision.

I certify that the preceding 49 (forty-nine)
paragraphs are a true copy of the
reasons for the decision herein
of Senior Member George 

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Associate

Date of Decision:	5 March 2025
Date of Hearing:	15 January 2025
Representation for the Applicant:	Self-represented
Solicitor for the Respondent:	Sparke Helmore