Brian Johns and Repatriation Commission
[2013] AATA 415
•20 June 2013
[2013] AATA 415
Division Veterans’ Appeals Division File Number
2012/3858
Re
Brian Johns
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 20 June 2013 Place Perth The decision under review is affirmed.
...............[sgd].....................................
S D Hotop, Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant served in Royal Australian Navy (RAN) from 1966 to 1986 – applicant’s RAN service included eligible defence service – applicant performed duties as electrical fitter during RAN service and as an electrician after RAN service – applicant contracted osteoarthritis in right elbow in 2011 – Statement of Principles concerning osteoarthritis (SoP) – SoP does not uphold contention that osteoarthritis of right elbow on balance of probabilities connected with defence service – applicant’s osteoarthritis of right elbow not defence-caused – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 70(5), s 120(4), s 120B(3), s 196B(3) and s 196B(14)
Statement of Principles concerning osteoarthritis No 14 of 2010
Statement of Principles concerning osteoarthritis No 36 of 2011
CASES
Kattenberg v Repatriation Commission (2002) 73 ALD 365
REASONS FOR DECISION
Deputy President S D Hotop
20 June 2013
Introduction
Brian Johns (“the applicant”), who was born in May 1950, served in the Royal Australian Navy (“RAN”) from 5 January 1966 to 4 January 1986. During that period he rendered “operational service” from 16 February 1972 to 3 March 1972 and “defence service” from 7 December 1972 to 4 January 1986, for the purposes of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”).
On 26 September 2011 the applicant lodged with the Department of Veterans’ Affairs a claim for acceptance of “right elbow pain” and “constant pain in both knees” as defence-caused for the purposes of the VE Act.
On 30 November 2011 a delegate of the Repatriation Commission (“the respondent”) decided that “osteoarthritis affecting both knees” is related to service but that “osteoarthritis of the right elbow is not related to service”.
On 9 August 2012, following an application for review of that part of the delegate’s decision relating to osteoarthritis of the right elbow, the Veterans’ Review Board (“VRB”) affirmed the delegate’s decision that osteoarthritis of the right elbow is not related to service.
On 5 September 2012 the applicant lodged with the Tribunal an application for review of the VRB’s decision of 9 August 2012.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents’ (T1–T14, pp I–XI, 1–64) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·statement of the applicant, dated 20 November 2012 (Exhibit A1);
·copy of the transcript of the applicant’s hearing before the VRB on 9 August 2012 (Exhibit R1); and
·the oral evidence of the applicant.
The Applicant’s Evidence
The applicant confirmed that he had signed a statement, dated 20 November 2012, for the purpose of this proceeding and that its contents are true and correct. That statement is as follows:
“ …
I served in the Royal Australian Navy from 1966 to 1986. I was employed as an electrical fitter throughout this period. As I did not rise above the rank of Leading Seaman during my service, my duties remained essentially unchanged and required the use on a daily basis of a range of manual tools such as screwdrivers, pliers and chisels. Cordless power tools were not widely available at this time. Corded electrical appliances needed long leads and were cumbersome and hazardous to work with, particularly in the confined quarters of naval vessels and installations at naval bases. I preferred to rely on manual tools that I was accustomed to, for their convenience and ease of use.
The Veterans’ Review Board in its decision of 9 August 2012 found that I had stated that during my posting to HMAS Leeuwin from May 1978 to October 1980 I was not employed as an electrical fitter; for that reason, the Board found that I did not have a continuous period of 20 years eligible service performing the same repetitive and forceful activities, as required by the relevant Statement of Principles.
I believe that the finding of the Veterans’ Review Board in this regard is based on a misunderstanding. I was posted to HMAS Stirling in December 1977. However, as HMAS Stirling was only formally commissioned as a Navy establishment on 28 July 1978, my nominal posting at the time was to HMAS Leeuwin while physically located at HMAS Stirling. From December 1977 to October 1980, my duties at HMAS Stirling included watchkeeper of the powerhouse, operating and maintaining supply and distribution equipment; maintaining depot electrical services, repairing and maintaining depot services including power and lighting, galley equipment, power tools and appliances; and repair and maintenance of electrical components in depot support craft.
Therefore, I submit that I had an uninterrupted continuous period of 20 years eligible service as an electrical fitter in the Navy performing the same repetitive and forceful activities. I continued to work as an electrician on discharge from the Navy in 1986 and did not commence to use power tools on a regular basis until some years later when cordless power tools became accessible and affordable.” (Exhibit A1)
The applicant also gave oral evidence to the following effect:
·in the course of his RAN service he served on ships, namely, HMAS Melbourne, HMAS Torrens, HMAS, Moresby and HMAS Diamantina for a total period of about 14 years;
·while at sea he was under constant pressure to perform his duties as an electrical fitter, especially when there was a “breakdown” on the ship;
·his duties at sea included maintaining the electrical propulsion of the ship, the airconditioning system, continual maintenance of light fittings, fans and motors – in short, “everything electrical on the ship”;
·on a daily basis he performed numerous manual tasks with tools such as screwdrivers, spanners and pliers, involving repetitive activities and forceful activities using, predominantly, his right arm;
·while in harbour or in shore establishments his duties involved general maintenance and much less in the way of repetitive and forceful activities than he performed while at sea;
·for the first year of his service as a junior recruit he was engaged in classroom and training activities and did not start to perform repetitive and forceful electrical tasks “in earnest” until January 1967;
·he took three months’ long service leave (October–December 1985) immediately prior to his discharge from the RAN on 4 January 1986;
·during that period of long service leave he was primarily engaged in developing his own electrical business rather than doing heavy manual electrical work;
·when he was discharged in January 1986 he obtained registration as an electrician in Western Australia and worked as a self-employed electrical contractor;
·he started to use cordless power tools on a regular basis in 1986, but he also continued to use manual tools for 60%–70% of the time;
·his civilian electrical work was not as constant or of the same intensity as the electrical work he performed on RAN ships – he had to “generate” work and he did jobs “when they came up”;
·he ceased working as a self-employed electrical contractor in about 2006 and was then employed as an electrician by Sir Charles Gairdner Hospital in Perth;
·he retired in June 2012.
The Issue
The applicant, notwithstanding that he rendered “operational service” for the purposes of the VE Act from 16 February 1972 to 3 March 1972, did not submit that his osteoarthritis of the right elbow is “war-caused” pursuant to s 9 of the VE Act. Doubtless the applicant’s failure to advance such a submission was based on his acceptance that, having regard to the short period of his “operational service”, it could not reasonably be contended, or even hypothesised, that his osteoarthritis of the right elbow is “related to”, or “connected with the circumstances of”, that service, within the meaning of the VE Act.
Accordingly, the sole issue presented for the Tribunal’s determination is whether the applicant’s osteoarthritis of the right elbow is a “defence-caused injury” or a “defence-caused disease”, for the purposes of Part IV of the VE Act.
The Relevant Legislation
The VE Act
Section 70 of the VE Act, which deals with eligibility for a pension under Part IV of that Act, relevantly provides:
“ …
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…”
The terms “disease” and “injury” are defined in s 5D(1) of the VE Act as follows:
“ disease means
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).”
“ Injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
Section 120 of the VE Act, which prescribes the standard of proof to be applied in making determinations in respect of pensions under that Act, relevantly provides:
“ …
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.
…”
Section 120B of the VE Act relevantly provides:
“ …
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…”
Section 196A of the VE Act establishes the Repatriation Medical Authority (“the Authority”) and s 196B(1) provides that the “main function of the Authority is to determine Statements of Principles for the purposes of the Act …”. Section 196B(3) provides:
“(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces; or
(ba)peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).”
Section 196B(14) relevantly provides:
“(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
(f)in the case of a factor causing, or contributing to, a disease – it would not have occurred:
(i)but for the rendering of that service by the person; or
(ii)but for changes in the person’s environment consequent upon his or her having rendered that service; or
…”
The Statement of Principles
Pursuant to s 196B(3) of the VE Act, the Authority has determined Statements of Principles (“SoPs”) concerning osteoarthritis. The SoP which has been at all material times, and is presently, in force is:
·Statement of Principles concerning osteoarthritis No 14 of 2010, as amended by Statement of Principles concerning osteoarthritis No 36 of 2011 (“the SoP”).
The SoP relevantly states:
“ …
Kind of injury, disease or death
3.(a) This Statement of Principles is about osteoarthritis and death from osteoarthritis.
(b) For the purposes of this Statement of Principles, ‘osteoarthritis’ means a degenerative joint disorder with:
(i)clinical manifestations of pain, impaired function and stiffness; and
(ii)radiological, other imaging or arthroscopic evidence of loss or articular cartilage or osteophytes.
…
Basis for determining the factors
4.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that osteoarthritis and death from osteoarthritis can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must exist before it can be said that, on the balance of probabilities, osteoarthritis or death from osteoarthritis is connected with the circumstances of a person’s relevant service is:
…
(j) for osteoarthritis of a joint of the upper limb only, performing any combination of repetitive activities or forceful activities for an average of at least 30 hours per week, for a continuous period of at least 20 years before the clinical onset of osteoarthritis in that joint; or
…
Other definitions
9.For the purposes of this Statement of Principles:
…
‘forceful activities’ means:
(a) tasks requiring the generation of force by the hand equivalent to lifting or carrying loads of more than three kilograms; or
(b) holding or carrying an object in the hand greater than one kilogram in excess of 10 times per hour;
…
‘lifting loads’ means manually raising an object;
‘relevant service’ means:
(a) eligible war service (other than operational service) under the VEA; or
(b) defence service (other than hazardous service) under the VEA; or
(c) peacetime service under the MRCA;
‘repetitive activities’ means:
(a) bending or twisting of the affected joint; or
(b) carrying out the same or similar movements that involve the affected joint, at least 50 times per hour;
…”
Analysis
It is common ground, and the Tribunal finds, that the applicant suffers from osteoarthritis of the right elbow. The Tribunal so finds on the basis of the diagnosis of Dr Mark Daykin included in the applicant’s claim form and Dr Daykin’s statement therein that the basis of that diagnosis was x-ray and ultrasound changes consistent with his clinical examination of the applicant and the applicant’s history (see T4, p 14). The Tribunal also finds that the applicant’s osteoarthritis of the right elbow is a “disease”, not an “injury”, as defined in s 5D(1) of the VE Act.
As regards the time of “clinical onset” (within the meaning of the SoP) of the applicant’s osteoarthritis of the right elbow, the Tribunal finds, on the basis of Dr Daykin’s statement in the applicant’s claim form that the applicant first consulted him for that condition on 27 July 2011 (see T4, p 14), that the “clinical onset” of the applicant’s osteoarthritis of the right elbow occurred in 2011.
Pursuant to ss 120(4) and 120B(3) of the VE Act, the Tribunal will be reasonably satisfied that the applicant’s osteoarthritis of the right elbow is “defence-caused” only if:
·the material before it raises a connection between that “disease” and his “defence service”; and
·the SoP “upholds the contention that [that] … disease … is, on the balance of probabilities, connected with that service.”
There is no dispute that the material before the Tribunal – in particular, the applicant’s evidence referred to in paragraphs 7-8 above – “raises a connection” between his osteoarthritis of the right elbow and his “defence service”, within the meaning of s 120B(3)(a) of the VE Act.
As regards the question whether the SoP “upholds the contention” that the applicant’s osteoarthritis of the right elbow is, on the balance of probabilities, connected with his “defence service”, within the meaning of s 120B(3)(b) of the VE Act, the only factor in clause 6 of the SoP on which the applicant sought to rely was the factor set out in para (j). Pursuant to para (j) of clause 6 of the SoP, the relevant factor that must exist before it can be said that, on the balance of probabilities, the applicant’s osteoarthritis of the right elbow is connected with the circumstances of his defence service is:
“for osteoarthritis of a joint of the upper limb only, performing any combination of repetitive activities or forceful activities for an average of at least 30 hours per week, for a continuous period of at least 20 years before the clinical onset of osteoarthritis in that joint”.
Furthermore, pursuant to clause 5 of the SoP, the factor set out in para (j) of clause 6 “must be related to the relevant service rendered by the [applicant]”, namely, his “defence service” from 7 December 1972 to 4 January 1986.
In determining whether the factor set out in para (j) of clause 6 of the SoP is “related to” the applicant’s “defence service” within the meaning of s 196B(14) of the VE Act, the Tribunal must not confine its consideration to the period of the applicant’s “defence service” from 7 December 1972 to 4 January 1986 and must also have regard to relevant activities performed by the applicant before and after that period: Kattenberg v Repatriation Commission (2002) 73 ALD 365.
Having regard to the entire period of the applicant’s RAN service from 5 January 1966 to 4 January 1986, the Tribunal is reasonably satisfied, on the basis of the applicant’s evidence, that he performed a combination of “repetitive activities” and “forceful activities” for an average of at least 30 hours per week, within the meaning of para (j) of clause 6 of the SoP, for the total period of approximately 14 years which he served on board the ships referred to in paragraph 8 above. The Tribunal notes, however, that that period of 14 years was not a “continuous period”, within the meaning of para (j) of clause 6 of the SoP.
As regards the remainder of the applicant’s RAN service, in shore-based establishments, the Tribunal, having regard to the vagueness of the applicant’s evidence regarding the nature and frequency of the electrical activities performed by him in those circumstances, is not reasonably satisfied that he performed “forceful activities” and/or “repetitive activities” for an average of at least 30 hours per week, within the meaning of para (j) of clause 6 of the SoP, in that period. Nor is the Tribunal, having regard to the applicant’s evidence, reasonably satisfied that he performed “forceful activities” and/or “repetitive activities” for an average of at least 30 hours per week, within the meaning of para (j) of clause 6 of the SoP, in the post-discharge period from 1986 to 2012.
Accordingly, the Tribunal is not reasonably satisfied, on the whole of the evidence before it, that the applicant performed “any combination of repetitive activities or forceful activities for an average of at least 30 hours per week, for a continuous period of at least 20 years before the clinical onset of osteoarthritis” of his right elbow in 2011, within the meaning of para (j) of clause 6 of the SoP. The Tribunal finds, therefore, that the factor set out in para (j) of clause 6 of the SoP does not exist, or is not met, in the applicant’s case.
As previously indicated, the applicant did not seek to rely on any other factor set out in clause 6 of the SoP. The Tribunal, furthermore, is not reasonably satisfied, having regard to the evidence before it, that any other factor set out in clause 6 of the SoP exists, or is met, in the applicant’s case.
Conclusion
The Tribunal concludes, therefore, that the SoP does not uphold the contention that the applicant’s osteoarthritis of the right elbow is, on the balance of probabilities, connected with his “defence service”, within the meaning of s 120B(3) of the VE Act. Accordingly, the Tribunal, pursuant to s 120B(3), cannot be reasonably satisfied, for the purposes of s 120(4) of the VE Act, that the applicant’s osteoarthritis of the right elbow is a “defence-caused injury” or a “defence-caused disease” for the purposes of Part IV of that Act.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop.
..............[sgd D Brodie]........................
Administrative Assistant
Dated 20 June 2013
Date of hearing 5 June 2013 Representative of the Applicant Mr A Endrey Representative of the Respondent Mr C Ponnuthurai
Compensation and Review Branch
Department of Veterans’ Affairs
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