Coleman and Military Rehabilitation and Compensation Commission (Compensation)
[2015] AATA 955
•11 December 2015
Coleman and Military Rehabilitation and Compensation Commission (Compensation) [2015] AATA 955 (11 December 2015)
Division
VETERANS' APPEALS DIVISION
File Number
2015/0157
Re
Gerard Coleman
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President Dr Christopher Kendall
Date 11 December 2015 Place Perth The decision under review is affirmed.
.....................[sgd]...................................................
Deputy President Dr Christopher Kendall
CATCHWORDS
MILITARY COMPENSATION – injury to shoulders – member of Australian Army Reserves – peacetime service – whether injury attributable to defence service – lack of evidence in relation to occurrence and circumstances of injury – decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004 – sections 6(1)(d), 23(1), 23(4), 27, 335(3), 339(3).
Administrative Appeals Tribunal Act 1975 – section 43(1)
Rotator Cuff Syndrome Statement of Principles No. 101 of 2014 – factor 6(a)
CASES
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
REASONS FOR DECISION
Deputy President Dr Christopher Kendall
11 December 2015
NATURE OF APPLICATION
Gerard Coleman enlisted in the Australian Army Reserves on 13 August 2012. He was medically discharged on 21 October 2014. Mr Coleman was engaged in peacetime service at all times during the period of his enlistment.
Mr Coleman contends that he hurt both of his both shoulders on the evening of 11 December 2013 performing exercise at his place of Parade as a Reserve Army soldier. Specifically, he contends that he hurt his shoulders while lifting a heavy tyre (A3), resulting in considerable pain the following morning and in the weeks that followed.
Mr Coleman seeks review of a decision of the Veterans' Review Board (the “'VRB”) dated 7 October 2014 (T18) that affirmed a determination dated 10 December 2013 (the “Determination”) (T14).
The Determination rejected Mr Coleman’s claim for liability for “full thickness tear of the supraspinatus tendon of the left shoulder; subacromial bursitis of the left shoulder; partial thickness, articular surface tear of the supraspinatus tendon of the right shoulder and subacromial bursitis of the right shoulder” (the “claimed conditions”) under s 23(1) of the Military Rehabilitation and Compensation Act 2004 (Cth) (the “MRC Act”).
There is a Statement of Principles (“SOP”) in force in relation to Mr Coleman’s claimed conditions. In proceedings before this Tribunal, Mr Coleman (represented very ably by Mr J Boland) contended that he relied only on factor 6(a) of the “Rotator Cuff Syndrome Statement of Principles No. 101 of 2014” – that is, “having an injury to the affected shoulder within the 30 days before the clinical onset of rotator cuff syndrome”. This differed from earlier proceedings wherein Mr Coleman relied on factors (a), (b) and (c), with a particular emphasis on factor (b). This Tribunal conducted this hearing on the basis that only factor 6(a) was relied on. All parties agreed that this was the correct approach.
BACKGROUND
In relation to the injury to his shoulders that he says occurred on 11 December 2012, Mr Coleman contends that he was part of a team required to compete against teams made up of other soldiers. He was to lead the team and commenced the first task by lifting a large truck tyre weighing about 40 kilograms a number of times over a ten meter distance. He says that during these lifts he felt a sharp vertical pain in his left shoulder but continued on with the competition so that he would not let his team down. He explains that his left shoulder hurt more than his right shoulder, which was also painful (A3).
Mr Coleman contends that he awoke on the morning of 12 December 2012 with frozen shoulders and intense pain. In addition to the pain and soreness of his upper body he found he had lost the ability to raise his arms and was forced to take painkiller medication. He hoped that with rest over the Christmas holidays the pain would dissipate and he would gain full mobility of his arms and shoulders. The Tribunal notes that no evidence in relation to pharmaceutical scripts for Mr Coleman’s pain medication was presented to the Tribunal.
A summary of Mr Coleman’s medical appointments in relation to his injuries was outlined by the Military Rehabilitation and Compensation Commission (the “Commission”) in its Statement of Facts, Issues and Contentions dated 13 July 2015 at paragraphs 2.2.1 to 2.2.22 (R3). Mr Coleman agreed with the summary provided, which is highlighted where relevant below (A1 at para.2.1).
Mr Coleman did not seek medical attention until 7 January 2013. At that time, he attended at the rooms of Dr Viviers GP for a consultation. Dr Viviers’ clinical note of that date reads: “sore shoulders – 1 month. Been resting it. Normally it helps but not this time” (A2).
A further clinical note from Dr Viviers dated 11 January 2013 states “aggravation of subacromial bursitis” (A2).
An ultrasound report dated 16 January 2013 stated: “full thickness complete supraspinatus tendon tear” and “subacromial bursal effusion and bursal impingement on abduction” of the left shoulder and “mild subacromial bursal effusion and bursal bunching on abduction (noting no sonographic evidence of a rotator cuff tear) of the right shoulder” (ST3).
In a further medical report dated 18 January 2013 (T4) Dr Viviers reported that the ultrasound demonstrated a full thickness complete supraspinatus tendon tear, subacromial bursal effusion and bursal impingement on abduction in regards to the left shoulder, and mild subacromial bursal effusion and bursal bunching on abduction in regards to the right shoulder.
In a medical report dated 5 February 2013 Dr Michael Edwards, orthopaedic surgeon, stated: “while there have been no particular traumatic events, he has joined the Army reserves recently, performing a lot of physical activities which have probably flared the shoulder” (R3, Attachment 4).
An x-ray report of both of Mr Coleman’s shoulders dated 5 February 2013 found as follows: “on both sides, the glenohumeral and acromioclavicular joints have a normal appearance. Acromion shape bilaterally is type II with mild to moderate lateral downsloping. There is no subacromial spurring or soft tissue calcification” (R3, Attachment 4).
On 20 April 2013, Captain Andrew Diong emailed Mr Coleman and recommended that he fill in an incident form (R3, part of Attachment 1).
On 27 May 2013, Mr Coleman had a left shoulder subacromial decompression and rotator cuff repair (T7).
In a Defence Work Health and Safety Incident Report dated 10 September 2013 (T20 at 82) Captain Diong stated that he first became aware of Mr Coleman’s condition when following up on an extended leave application. The details of the incident were documented as having occurred on 11 December 2012 on a sports oval in Western Australia as a result of Army training with high amounts of repetitive arm and shoulder motion caused by “excessive amounts of push-ups, military presses and the like.”
The Tribunal notes that in this report, Mr Coleman describes the incident as most likely caused by “excessive amounts of push-ups and military presses etc.” The report makes no mention of what was referred to before this Tribunal as the “tyre incident”.
In a medical report dated 5 September 2013 (T7) Dr Edwards reported that Mr Coleman sustained a left shoulder full thickness tear of the supraspinatus tendon and was recovering from surgery but that it would take 12 to 18 months for a maximal recovery. Dr Edwards further stated that heavy repetitive work of the sort that is required as an Army Reservist was not appropriate for the long term protection of Mr Coleman’s shoulder and light occupation/activities would thus be appropriate. He further reported excessive push-ups, weights, carrying of heavy packs would almost certainly lead to an aggravation of his shoulders.
On 13 October 2013 (T9), Mr Coleman signed a workers’ compensation claim form for left and right shoulder conditions (T9).
On 17 October 2013 (T10), Mr Coleman signed an Injury and Disease Details Sheet for right shoulder injury, which he described as resulting from “over compensation for his left shoulder injury”. He stated he first noticed the condition on 12 December 2012. The form was completed by Dr Linton at Leeuwin Medical Centre.
On 17 October 2013 (T11), Mr Coleman signed an Injury and Disease Details Sheet for left shoulder, which he described as resulting from “high amounts of repetitive arm and shoulder motion due to army training” which he stated happened on 11 December 2012 and which he claimed he first noticed on 12 December 2012. Mr Coleman stated he first sought medical treatment on 11 January 2013. The form was completed by Dr Linton from Leeuwin Medical Centre.
The Tribunal notes that neither the claim form (T9) or detail sheets (T10 and T11) refer to the tyre incident.
In a medical report dated 29 November 2013, Dr Johan Yin, Department Medical Officer (T13), reported that the diagnoses were full thickness tear of the supraspinatus tendon and subacromial bursitis of the left shoulder and partial thickness articular surface tear of the supraspinatus tendon and subacromial bursitis of the right shoulder.
By way of the Determination dated 10 December 2013 (T14), liability was declined for “full thickness tear of the supraspinatus tendon of the left shoulder, subacromial bursitis of the left shoulder, partial thickness articular surface tear of the supraspinatus tendon of the right shoulder and subacromial bursitis of the right shoulder” conditions under s 333 pursuant to s 23 of the MRC Act.
On 8 January 2014 (T15), Mr Coleman’s representative made an application for review to the VRB. Mr Coleman’s representative stated that Mr Coleman was previously unaware of the Statement of Principles (“SOP”) and what was required and was now able to gather the evidence required and explain his training routine to meet the applicable SOP’s factor 6(b).
In a medical report dated 7 May 2014 (T16 at 51), Dr Edwards reported that it was possible that Mr Coleman’s “heavy repetitive training activities” in the Army Reserves, particularly when he was not used to such a high level of activity and then had sudden high-intensity activities, led to and contributed to his supraspinatus tendon tear. He reported, however, that he could not be definitive about this. No mention of the tyre incident is made in this medical report.
A letter dated 22 July 2014 (T16 at 52) from Mr Coleman, submitted to the VRB, confirmed that he had had a home gardening and maintenance business for 15 years and had not sustained any injuries to his shoulders.
In a statement submitted to the VRB dated 29 July 2014 (T16 at 48), Mr Coleman stated that he trained one hour each day between 19 March 2012 until enlistment on 13 August 2012 and continuing to 2 November 2012 when he commenced recruit training at Kapooka. He stated during this time he trained eight hours per day and had sore shoulders. He stated upon returning to Perth he immediately commenced one hour training every day until 11 December 2012.
Mr Coleman contends that his civilian work prior to his enlistment into the Reserve Army did not cause the injury to his shoulders. Nor, he states, did anything he did after 11 December 2012 aggravate the injuries to his shoulders.
On 7 October 2014 (T18), the VRB made a Reviewable Decision affirming the Determination declining liability.
On 26 May 2015, Dr Viviers wrote that Mr Coleman “had not had any previous shoulder problems recorded until January 2013. He came to me and advised that he had shoulder pain for approximately one month prior to attending. During that month he would rest it to make it better but, prior to attending, rest did not seem to help him anymore.” Dr Viviers does not mention the tyre incident in this report.
On 18 February 2015, Dr John Ker examined Mr Coleman at his request. Dr Ker wrote that he believed “there is prima facie evidence based on this man’s history to indicate that the onset of the bilateral shoulder bursitis with accompanying rotator cuff tear on the left emanates from the incident of 11 December 2012. The Tribunal notes that Dr Ker’s letter does not mention the tyre incident, referring instead to “significant lifting exercise”.
ISSUES
It was not disputed before this Tribunal that Mr Coleman has diagnoses of “full thickness tear of the supraspinatus tendon of the left shoulder, subacromial bursitis of the left shoulder, partial thickness articular surface tear of the supraspinatus tendon of the right shoulder and subacromial bursitis of the right shoulder” conditions.
The Tribunal is asked to determine whether Mr Coleman’s claimed conditions are service injuries. If it is found that Mr Coleman’s claimed conditions do constitute service injuries, then, pursuant to section 23 of the MRC Act, the Commission will be liable for those injuries and will be required to compensate Mr Coleman accordingly.
LEGISLATION
Mr Coleman seeks an acceptance of liability for the claimed conditions under section 23(1) of the MRC Act.
By virtue of section 23(1) of the MRC Act, the Commission must accept liability for an injury sustained by a person if:
a)The injury is a service injury under section 27 of the MRCA; and
b)The Commission is not prevented from accepting liability by the exclusions in Part 4 of Chapter 2 of the MRCA; and
c)A claim has been made in the prescribed manner under section 319 of the MRC Act.
Section 23(4) of the MRC Act states that “a reference to acceptance of liability for an injury or disease is taken to include a reference to acceptance of liability for an aggravation of an injury or disease.”
The Commission accepted before this Tribunal that none of the exclusions apply and there is no suggestion that an appropriate claim was not made by Mr Coleman.
Section 27 of the MRC Act deems an injury to be a service injury if, relevantly, the injury resulted from an occurrence that happened while the person was a member rendering defence service.
It is agreed that Mr Coleman’s service with the army was “peacetime service”. This constitutes “defence service” as per section 6(1)(d) of the MRC Act.
The applicable standard of proof that applies to a claim that an injury is a service injury or disease that relates to peacetime service is that which is outlined in s 335(3) of the MRC Act. That section reads:
Other determinations to be made to its reasonable satisfaction
(3) Except in making a determination to which subsection (1) applies, the Chief of the Defence Force or the Commission must, in making any determination or decision in respect of a matter arising under this Act, the regulations, or any other instrument made under this Act or the regulations, decide the matter to his, her or its reasonable satisfaction.
Note:This subsection, to the extent that it relates to subsections 23(1) and 24(1), is affected by section 339.
Relevantly, section 339(3) of the MRC Act states:
(3) In applying subsection 335(3) to determine a claim, the Commission is to be reasonably satisfied that an injury sustained, or a disease contracted, by a person, or the death of a person, is a service injury, a service disease, or a service death, only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular defence service rendered by the person while a member; and
(b)there is in force:
i.a Statement of Principles determined under subsection 196B(3) or (12) of the Veterans' Entitlements Act 1986; or
iia determination of the Commission under subsection 340(3) of this Act; and
(c)the material, and the Statement of Principles or the determination (as the case may be), upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
The connection between the claimed injury and the rendering of service is to be tested by reference to the applicable SOP made by the Repatriation Medical Authority.
In this case, the relevant SOP is Rotator Cuff Syndrome No.101 of 2014.
This SOP provides that rotator cuff syndrome means “an inflammatory or degenerative disorder of the musculotendinous cuff of the shoulder joint (comprising supraspinatus, infraspinatus, subscapularis and teres minor) or the long head of biceps and their associated bursae (subacromial or subdeltoid bursae)."
Paragraph 6 of the SOP sets out the factor or factors that must exist before it can be said that the claimed condition is, on the balance of probabilities, connected with the circumstances of a person’s relevant service.
As agreed between the parties, only factor 6(a) has any potential relevance to Mr Coleman’s claim.
Paragraph 6(a) of the SOP refers to “having an injury to the affected shoulder within the 30 days before the clinical onset of rotator cuff syndrome.”
EVIDENCE – STATEMENTS
Statement from Mr Coleman dated 13 October 2013 (T19 at 34)
This statement reads:
As a result of my injuries, I am currently restricted to light duties in my Home and Garden Maintenance business. I am unable to lift my left arm above my shoulder unassisted. I cannot lift heavy weights above my waist, i.e. no digging, heavy pruning, tree climbing, raking, painting, changing light globes and smoke alarm batteries, lowering myself into cavities and voids etc.
I was unable to work when I had my operation for a number of weeks. I had to buy an automatic work van due to my inability to drive my existing manual van. Also my son who has a provisional automatic licence assisted me pre and post surgery.
The injury has also affected my social and sporting life as I was very fit and active i.e. swimming, casting for fishing, indoor rock climbing, kayaking, kite flying, camping, football etc. Also the maintenance of the home is a burden and I have to sleep in a separate single bed to my wife due to restlessness and pain management.
Statement from Mr Coleman dated 22 July 2014 (T16 at 52)
This statement reads:
I have had my home gardening and. maintenance business for 15 years now. My main work duties consist of maintaining gardens, that is regular lawn mowing, weeding garden beds, fixing reticulation, trimming and pruning shrubs and gutter cleaning during the winter months. During this time I have not sustained any injuries to my shoulders.
Pre and post enlistment medical examinations have been passed with ease, with no concerns from medical staff.
Statement from Mr Coleman dated 29 July 2014 (T16 at 93)
This Statement reads as follows:
My application to join the ADF was accepted on 22/2/2012. I was advised by the recruiting staff to keep myself physically fit pre-enlistment. I am extremely enthusiastic and put 100% effort into everything I do with one hour of physical training every day, consisting of push ups, burpies and military presses. This was from March 19th 2012 until enlistment on 13th August 2012. After enlisting I trained for one hour every day until November 2nd 2012 when I went to Kapooka to commence reserve recruit training (RRTC). Each day was 16 hours with 8 hours physical training which included marching and drill, field craft, weapons training, endurance and obstacle courses. During this training I had sore shoulders which I put down to muscle fatigue. Upon returning to Perth l immediately commenced one hour training every day until 11th December 2012.
Number of days training:
19/3/2012 – enlistment 13/8/2012 148
14/8/2012 - 2/11/2012 80
3/11/2012-12/11/2012 10-1RTB Kapooka
13/11/2012 -11/12/2012 29
267 days in total
Number of hours training:
19/3/2012 – 13/8/2012 148
14/8/2012 – 2/11/2012 80
3/11/2012 – 12/11/2012 10
13/11/2012 – 11/12/2012 29
267 hours in total
Statement from Mr Coleman dated 26 June 2015
This statement reads as follows:
I enlisted in the Army Reserve on 13 August 2012. On 11 December 2012 I sustained a serious shoulder injury during PT training at Karrakatta Brigade Recruiting Cell (BRC) in Perth. The Defence Work Health and Safety (WHS) incident Report of 10 September 2013 states:
“Member has a gardening business. He initially thought injury was work related. After consultation with his medical advisor he formed an opinion that the injury was ADF related. Also reluctance to complete form,”
This was stated by Major Shane Edmonds who is the officer commanding (OC) the BRC. None of this is true so I emailed Major Edmonds respectfully requesting that he rescind these comments. His reply was:
“The comment made by me was based on preliminary advice from Training staff here. I have been advised that, as the comments were correct on the preliminary information available and the advice that I received at the time from the staff, no further action by me is required.”
Initially my platoon commander and head of training staff Captain Andrew Diong misunderstood (6 April 2013) as he states in the WHS:
“The condition was initially misunderstood as caused by civilian work but clarified two weeks later that it is believed to have been caused by activities with Army over a period of time.”
Whether the OC misunderstood or was misinformed, almost five months after the initial misunderstanding was cleared up it still remains an issue as it was taken into consideration and commented on by the Department of Veterans’ Affairs when my claim for liability was lodged under the Military Rehabilitation and Compensation Act 2004.
I have never formed an opinion that the injury was civilian work related, I have not signed any documentation to this effect, and there is no evidence to substantiate such a claim by the OC. I would like these comments to be removed from this official document with an explanation as to how and why they were allowed to appear in the first place. As I was at the time at the lowest level in the Army Reserve as a recruit, I did not wish to appear disrespectful to a Commanding Officer by challenging his integrity; I felt somewhat intimidated by the possible consequences and uncomfortable badgering my superiors.
Major Edmonds also states that “the delay in the completion of AC563 (WHS) was related to a combination of overseas leave, sick leave, and reluctance to complete form.” As my shoulder injury was serious with a substantial tendon tear and bursal impingement and effusion, I could not drive to the BRC to complete an AC563. I was informed by Mr Neville Bourke, Customer Service Officer (orderly room) that he would not post me one; and that I was to fill out the AC563 once my shoulder had been operated on, and I was rehabilitated and had returned to training in September. Under no circumstances whatsoever was I reluctant to complete the form.
Prior to enlistment I was advised by Defence Recruiting to exercise and train as much as possible to maintain optimal fitness. I was extremely fit (above average) on enlistment and training staff at BRC and at Kapooka Training Camp singled me out as a 52 year old to show younger recruits the correct way to do certain exercises such as push-ups and military presses.
I never had any previous injury whatsoever to my shoulders before enlisting but during my physical training as a recruit I developed sore shoulders, which I thought was muscle soreness due to the fact that l always went hard. On the evening of 11 December 2012, the last training day before Christmas with the BRC closing until the first Tuesday in February 2013, we split into three sections for the purpose of a training competition and l was made a section leader. Some of the exercises included many push-ups off the side wall of tractor tyres (at that time I was the only person at the BRC to have done this unassisted) and also lifting and rolling the tyres end over end. My section won the competition. I had very sore shoulders from this training night and when l awoke the next morning I found it difficult to move my left shoulder due to the pain. I subsequently started taking painkillers, Panadol Forte and Panamax Plus to ease the pain, and I rested the shoulders. Unfortunately taking painkillers was masking the pain without reversing the damage, I did not go to the doctor immediately as the pain was bearable with painkillers and rest, and I was hoping the condition would improve over the Christmas period. As time went on I realised that this was not the case and I attended the local medical centre on reopening after the Christmas break. The doctor prescribed the painkillers Naprosyn, Tramadol, Hydrochloride, Tramadol SZ and Oxynorm, and two cortisone injections.
With my home and garden maintenance business, I mainly concentrate on gardening, weeding, fixing reticulation, hedge trimming, lawn mowing and rose pruning; none of these activities involves heavy lifting or carrying, and l most definitely did not sustain any shoulder injuries in the past 16 years in the course of my gardening work.
I went on a brief sightseeing holiday to Indochina (Vietnam, Lao (sic) and Cambodia )for 16 days, from 7 May to 23 May 2013; I was on sick leave from the Army Reserve from 3 February (first Tuesday training) 2013 until medical discharge. I think discharge may have been in July or August 2014 but cannot be sure as the ADF did not even bother to send me confirmation of discharge, or for that matter send me an appreciative letter for having done the hard work and enlisted in the first place.
As the Brigade Recruiting Liaison Officer and member of training staff Warrant Officer Joe Ring wrote:
“REC Coleman stood out for his ability to perform well during the Preliminary Fitness Test ... REC Coleman was able to achieve a very high standard. Particularly noteworthy given he is an older soldier... REC Coleman showed a positive approach to training ...and certainly set a high standard in Physical Training.”
W01 Joe Ring said I was “like a bull out of a gate and somebody should have told you to slow down instead of encouraging you to be a leading example in physical training given that you were 52 years old.”
Statement from Mr Coleman dated 18 August 2015 (A3)
This statement reads as follows:
I am 55 years of age, married and reside at 11a Harcourt Street, Bassendean, WA 6054.
Prior to joining the Australian Army as a Reserve soldier I made inquiries with the Recruitment Section about a few things one being the physical testing that took place to enable a person to join the Army.
I was given information and went about doing the training exercises that were recommended.
In my normal work I mowed lawns, weeded gardens, did some rose pruning and hedge trimming with a motorised trimmer.
In winter I did some gutter cleaning. I never took on landscaping or other heavy gardening duties.
In due course I passed the entry exam and physical testing and commenced parades and the work we had to do on parade nights. Part of the duties was physical training and running.
Because l was one of the older recruits I felt I had to prove myself to the younger recruits so I went at everything harder than most. I was accused at going at everything like a bull at a gate.
I was then sent to Kapooka for further training. I had difficulty with the firearm part of the training and was returned to Perth without completing that part of the training.
Back in Perth it was decided that a new date would be selected and I would try and learn the part of the training I had not completed. Each parade night I attended after returning to Perth still included physical training.
On the last night of training prior to the Christmas of 2012 Tuesday the 11th of December the group of recruits gathered together to enter into a competition of physical work. It was decided that the members would be divided into three teams of 6 members. I was to lead my team.
I was keen to win the competition so I tried to motivate our team.
The first exercise was to lift a truck tyre which lay flat on the ground. The tyre weighed 40 kilograms. The lift had to be end over end and a number of lifts had to be done over a 10 metre distance. I lead my team off. I began to lift the tyre and during one of the lifts I felt a sharp pain in my left shoulder. It hurt but I carried on as I did not want to fail my team.
This is a photograph of a similar tyre that was lifted. [attached to statement]
After the tyre lift I was required to do 10 push ups off the side wall of the tyre which I did as fast as I could and pushed through the pain I was feeling.
Naturally the pain made it difficult but others were waiting on my finishing so they could start their turn.
I then had to sprint a distance of 50 meters and complete 10 military-presses with a 10 kilogram steel plate. This comprises of starting with the plate on the ground. You have to squat down in front of the plate pick it up with two hands, stand up brining the plate to your waste (sic), then lift the plate to your shoulders and push the plate as high as you can above the shoulders and above your head. You then reverse the process by bringing the plate down to the shoulders, waste (sic) and squatting to the ground. Ten presses of this nature had to be completed.
I did the presses as fast as I could and whilst both shoulders hurt, my left shoulder hurt more than the right I pushed on to motivate my team. One reason I think I got through was that I had warmed up before starting the physical work.
After the military-presses l had to sprint a further 50 meters to the end mark. It was then the next team person would commence their turn.
I have no doubt that the lifting of the truck tyre was the cause of the pain and tear in my shoulder. I was in pain with the shoulder from that moment onwards.
Our team won the competition.
During that night we also were required to complete some jogging, sprinting, stepping through a rope fence-wall without touching it.
Even though I had experienced the sharp vertical pain in my left shoulder and it hurt from then on I did not bring it to the attention of my Trainers as I did not want to appear weak, soft or like a girl in front of my much younger recruits. My right shoulder was also sore and hurt but not like my left shoulder.
I kept in my mind what PT Instructor Warrant Officer Musto had said, "You push yourself as far as you can physically go until failure. Do not give up under any circumstances as it is "letting your mates down" which is akin to leaving them on the Battle field."
That night I pushed myself as far as I could and was extremely sore at the end of the night but I did not say anything because it was the last night for a few weeks and I thought that with a break the pain in my shoulders would get better. I was proud of what we had done
I was extremely sore that night and started taking painkillers the next morning because when I awoke both my shoulders were frozen and I found it difficult to move. The pain killers were for the pain. My upper body and shoulders in particular were so painful just changing my shirt hurt touching myself to get the shirt over my head. I had no ability to move my arms and kept them as still as possible. I found it difficult to lift both arms above shoulder height. I was taking pain killers to help me and I was resting as much as I could. I was not able to work as I had done previously.
By the 7th of January I was feeling that I was not getting much better so I went to Doctor Viviers and told him what had happened. I also said I had rested as much as I could whilst taking the pain killers. I believe he diagnosed sub acromial bursitis in both shoulders. He gave me a referral to obtain an ultrasound. On the 11th January I went back to Dr Viviers with a lot of pain in both shoulders and he gave me a steroid injection in my left shoulder because it was more painful of the two. I was not able to get in until the 16th January 2013 and they provided a report on the 18th January 2013.
When I was sent to Dr Edwards I told him about joining the Reserve Army but I never went into any detail about the events of the 11th December 2012. I told him I was involved in a lot of physical exercise during training.
After being hurt on the 11th December 2012 I never took on any new clients and restricted myself to just lawn mowing and weeding. I kept taking pain killers and kept my arms as low as possible and did not extend them much higher than my waist.
The left shoulder has always been the worst of the two and on the 27th May 2013 I had an operation called a supraspinatus tendon repair.
Statement from Major Andrew Diong dated 26 October 2015
This statement reads:
I, Andrew Diong, formerly of Irwin Barracks, Stubbs Terrace, Karrakatta in the state of Western Australia, states as follows:-
1I am a Major in the Australian Army, currently serving as a reservist posted as a Liaison Officer to Head Quarters Australian Army Cadet Brigade in Western Australia.
2I was previously a Captain, posted to 13th Brigade Recruiting Centre (13BRC) from January 2012 to December 2013 as a Platoon Commander at Hamel Platoon.
3On 06 April 2013, I sent an email to Warrant Officer Class Two Fleetwood and carbon copied Mr Coleman in relation to Mr Coleman’s shoulder injury. A copy of that email can be found within a series of emails which was presented to me by the Respondent’s legal team and is attached and marked ‘Annexure A’.
4On 20 April 2013, I received an email from Mr Coleman informing me that he did not sustain a shoulder injury through civilian work. A copy of that email can be found within a series of emails which was presented to me by the Respondent’s legal team and is attached and marked ‘Annexure A’.
5On 20 April 2013, I replied to Mr Coleman’s email informing him that if he believes activities conducted in the Army caused the Inflammation, it is recommended that he fills in an incident report form (AC563). A copy of that email can be found within a series of emails which was presented to me by the Respondent’s legal team and is attached and marked ‘Annexure A’.
6I endeavour to keep notes of each recruit by noting down my observations (directly or via observing third party reports) that relate to their work performance and career progression, within a Platoon Commander’s Notebook. The entries during my posting at 13BRC normally include a date stamp with handwritten notes. This Notebook was handed over to the in-coming Platoon Commander on my posting out from 13BRC. It is my usual practice to contemporaneously make records of notes. A copy of my note book entry was presented to me by the Respondent’s legal team and is attached and marked ‘Annexure B’
7My entry in relation to the 22 January 2013 is related to Mr Coleman returning to the unit (RTU) having failed weapon component of training. Although I cannot specifically recall, it is likely there would have been an email in relation to Mr Coleman failing and I would have entered it into my notebook after I returned to work after the Christmas break in 2012 – 2013, which would explain the reason it is dated 22 January 2013.
8My entry in relation to 12 February 2013 reads "Leave 5/2/13 – injured shoulder@civil”. Although I could not specifically recall the act of writing this note, I have no reason to doubt that the notes were written by me.
9My general response to reported injuries at work (Army) is to remind the injured member directly or through my staff to ensure that an incident report, being an AC563 form, be completed as soon as practicable as per standard requirements, to allow for the appropriate processes to commence. With respect to entries into the Notebook, I would write contemporaneous notes where possible on being made aware of injuries that may have the potential to affect performance or career progression, regardless if the injury is sustained at work (Army) or away from work (Army).
10My general practice in relation to leave applications is to make a short entry within my notebook. This is to ensure that once the leave application has been dealt with l will still have record of the application including basic information such as the leave period and the reason for leave.
The Tribunal has reviewed the emails and note book summaries referred to above by Major Diong and confirms the accuracy of the summary of these emails and entries provided by him.
MEDICAL EVIDENCE
Progress notes for Gerard Coleman – various dates
These clinical notes read as follows:
Monday January 7 2013 12:39:22
Dr Gerhard Viviers
History:
sore shoulders -1 mnth
been resting it – normally it helps but not this time
Examination:
+ painful arc neurovasc intact good ROM
impression – subacromial bursitis
Actions:
Diagnostic Imaging requested: US – Shoulder R + L review with results in hand Prescriptions printed:
NAPROSYN SR 1000 SR TABLET 1,000mg 1 daily c.c.
Friday January 11 2013 14:25:40
Dr Gerhard Viviers
History:
unable to move left shoulder at all now due to pain
Examination:
can abduct passively to 90 degrees with minimal discomfort
neurovasc intact
impression – aggravation of subacromial bursitis
will ask Dr JOS to do local steroid injection
explained to pt about $50 charge
Friday January 11 2013 15:05:53
Dr John O’Sullivan
History:
asked to inject steroid left shoulder
Examination:
painful arc +++ – unable to abduct beyond 5d
Management:
Consent confirmed for procedure
Sterile approach
LA 3 ml xylocaine 1% to skin
Injection 1 amp celestone chronodose left shoulder SAB Sterile dressing applied.
Verbal & written instructions given
Friday January 18 2013 15:15:23
Dr Gerhard Viviers
History:
here for results
left shoulder feel much better after steroid injection discussed results needs ortho opinion
Actions:
Result notified by Dr Gerhard Viviers – ULTRASOUND BOTH SHOULDERS 16/01/2013 Letter Created – re. a REFERRAL STANDARD to MR MICHAEL EDWARDS
Report of Dr Gerhard Viviers dated 18 January 2013 (T4 at p 21)
This letter is addressed to Mr Michael Edwards, Mercy Medical Hospital. It details the results of an ultrasound to Mr Coleman’s left and right shoulder which was conducted on 18 January 2013 and reads as follows:
Thank you for seeing Mr Gerard Coleman, age 52 yrs, for an opinion and management. He presented with bilateral subacromial bursitis and a full thickness tear in his left supraspinatus tendon.
Clinical Details: Bilateral subacromial bursitis.
ULTRASOUND LEFT SHOULDER
Findings: The biceps tendon is located within the bicipital groove.
Small biceps sheath effusion is noted. The subscapularis and infraspinatus tendon insertions are intact.
There is a full thickness complete supraspinatus tendon tear which measures AP diameter of 18mm and transverse diameter of 20mm. Subacromial bursal effusion and bursal impingement is seen on abduction.
The acromioclavicular joint is enlocated.
Comment:
1. Full thickness supraspinatus tendon tear.
2. Subacromial bursal -effusion and bursal impingement on abduction.
ULTRASOUND RIGHT SHOULDER
Findings: The biceps tendon is located within the bicipital groove.
The subscapularis, infraspinatus and supraspinatus tendon insertions are intact.
There is no sonographic evidence of a rotator cuff tear. Mild subacromial bursal effusion and bursal bunching on abduction.
The acromioclavicular joint is enlocated.
Comment: Mild subacromial bursitis and bursal bunching on abduction.
…
Report of Mr Michael Edwards dated 5 February 2013 (R3 Attachment 4)
This report reads as follows:
DIAGNOSIS: Left shoulder full-thickness tear-supraspinatus tendon.
ACTION: Left shoulder subacromial decompression and rotator cuff repair.
Thank you for referring this 52-year-old right-hand-dominant self-employed gardener with problems with both shoulders over several months, the left much worse than the right. While there have been no particular traumatic events, he has joined the Army Reserves recently, performing a lot of physical activities which have probably flared the shoulder. Subacromial bursal injection two weeks ago has helped significantly but prior to that had very poor function.
On examination well muscled with no wasting. Full range of shoulder motion but weak supraspinatus. Infraspinatus and subscapularis are intact. Impingement testing positive.
An ultrasound dated 16 January 2010, left shoulder demonstrates a full-thickness supraspinatus tendon tear 18 mm x 20 mm with bursitis and effusion. Type ll acromion with mild chronic impingement.
Right shoulder demonstrates bursitis but no high-grade tendon tear.
I discussed treatment options and Gerard elects to proceed to left shoulder subacromial decompression and rotator cuff repair. I have placed him on the waiting list at Swan District Hospital.
Report of Dr Peter Leaver dated 5 February 2013 (R3 Attachment 4)
This report provides as follows:
X-RAY OF BOTH SHOULDERS
Clinical History: Cuff tear left. Bursitis right.
Findings: On both sides, the glenohumeral and acromioclavicular joints have a normal appearance. Acromion shape bilaterally is type II with mild to moderate lateral downsloping. There is no subacromial spurring or soft tissue calcification.
Report of Dr Sharon Winters, Perth Radiological Clinic, dated 26 July 2013 (T6 at 23)
This report reads as follows:
LEFT SHOULDER ULTRASOUND
Clinical Details: Left subacromial decompression and rotator cuff repair in May 2013. To check to see if rotator cuff has torn again, as ongoing pain.
Findings: The supraspinatus tendon repair appears intact. Suture material is demonstrated within the tendon substance and no significant retear is identified. The remainder of the rotator cuff tendons are intact. No significant biceps tendon sheath effusion is identified, but there is quite marked limitation of external rotation and total restriction of movement, raising the possibility of adhesive capsulitis. The subacromial bursa is thickened and an element of bursitis may also be contributing to symptoms.
The acromioclavicular joint is normal.
Comment: The previous tendon repair is intact, but there is total restriction of abduction and reduced external rotation, raising the possibility of adhesive capsulitis. Mild bursal thickening may also be a factor in ongoing pain.
Report of Mr Michael Edwards, Upper Limb Orthopaedic Surgeon, dated 5 September 2013 (T7 at p 24)
This report reads as follows:
This 53-year-old, right-hand dominant, self-employed gardener and Army Reservist, has sustained a left shoulder full-thickness tear of his supraspinatus tendon. He also has problems with his right shoulder. He has undergone left shoulder subacromial decompression and rotator cuff repair on 27 May 2013.
It is now approximately three and a half months following that surgery and he is making satisfactory progress. It is, however, in the order of 12 to 18 months for him to make maximal recovery. For the long-term protection of his shoulder I do not think that heavy repetitive work that is required as an Army Reservist would be appropriate for his long-term shoulder function. Excessive pushups, weights, carrying of heavy packs would almost certainly lead to aggravation of his shoulders and potentially aggravate his right shoulder further. If there are some light occupations or activities that he can perform within the Army Reserves that would be appropriate but obviously that is a, matter between yourselves.
Currently he is undergoing rehabilitation with physiotherapy exercises. He is making a graduated return to his gardening work. I will be reviewing him periodically.
Report of Dr Ramon Sheehan, Perth radiological Clinic, dated 18 September 2013 (T8 at p 25)
This report reads as follows:
ULTRASOUND /RIGHT SHOULDER
Clinical Details: Previous subacromial bursitis. Still has painful arc
Findings: There is a partial thickness articular surface tear of the anterior fibres of supraspinatus measuring 5mm x 3mm and less than 50% vertebral height of the tendon. Subscapularis and infraspinatus are intact. The long head of biceps is intact and normally situated in its groove. The subacromial-subdeltoid bursa is mildly thickened. No bunching is seen on abduction. There is a small amount of fluid in the glenohumeral joint seen in the posterior recess. AC joint is normal in appearance.
Comment-:
1.Small partial thickness, articular surface tear of the anterior fibres of supraspinatus.
2.Mild subacromial-subdeltoid bursal thickening but no evidence of impingement.
3. Small glenohumeral joint effusion.
Defence Work Health and Safety Incident Report dated 10 September 2013 (T20)
The Tribunal notes that in this report, Mr Coleman (T20 at 84) as follows:
I sustained damage to my shoulder rotator cuff as a result of army training. I sustained a tendon tear due to constant rubbing of the tendon over the bone with high amounts of repetitive arm and shoulder motion. This caused inflammation and irritation. This is most likely caused by excessive amounts of push-ups and military presses etc. I had to have surgery to repair a large tear and bone shaved.
On the same form, Mr Coleman provides the same information:
Describe the action … that caused the injury: “push-ups, military press”.
Report from Dr C Yin dated 29 September 2013 (T13)
This report reads as follows:
Left Shoulder
The diagnoses are
(1) Full thickness tear of the supraspinatus tendon of the left shoulder ICD No M75.5
Subacromial bursitis of the left shoulder ICD No M75.5
Right shoulder
The diagnoses are
(1) Partial thickness, articular surface tear of the supraspinatus tendon of the right shoulder ICD No M75.5
Subacromial bursitis of the right shoulder ICD No M75.5
Letter of Dr Gerhard Viviers dated 7 January 2014 (T16 at p 47)
This letter reads as follows:
To Whom it Concerns,
This is to confirm that Gerard Coleman attends this Medical Practice.
I can confirm that he presented on 07 January 2013 with painful shoulders for 1 month. I suspected a subacromial bursitis and ordered an ultrasound to investigate this further. He represented a few days later, on 11 January 2013, with aggravation of his symptoms in his left shoulder and l organised a steroid injection on the same day.
Report of Mr Michael Edwards, Upper Limb Orthopaedic Surgeon, dated 7 May 2014 (T16 at p 51)
This report reads as follows:
Gerard Coleman underwent left shoulder supraspinatus tendon repair on 27 May 2013. It is possible that his heavy repetitive training activities in the Army Reserves, particularly when he was not used to such a level of activity and then had a sudden high-intensity activities, did lead to and contribute to his supraspinatus tendon tear.
I cannot be definitive about this, however.
Report of Dr John Ker dated 18 February 2015 (A5)
This report reads as follows:
I had an opportunity to see Mr Gerard Coleman in a consultation on 12th February 2015.
Mr Coleman, who at his next birthday will be 55 years of age, has worked primarily as a self- employed gardener for a period approximating 30 years.
I understand that he applied to enter the Australian Army Reserves in February 2012, and ultimately his formal date of enlistment was 13th October 2012.
Following this he was involved in some initial fitness training at the Karrakatta Barracks. However, he subsequently undertook a period of Training at Kapooka Army Camp commencing from 12th November 2012.
My understanding is that an incident of injury occurred on 11th December 2012. He described to me how he was Team Leader in a training exercise with his unit.
This involved significant lifting exercise to his shoulders and he described to me how by the following day he was unable to move his shoulders.
However, no medical examination was undertaken at Kapooka Army Camp, and it was not until Mr Coleman had returned to Perth and sought consultation with his family practitioner, Dr G Viviers of Beechboro, that the clinical diagnosis of “bilateral sub-acromial bursitis” was
Mr Coleman was subsequently referred for ultrasound of both shoulders to identify the extent of that inflammatory process. This ultrasound study found evidence of a full thickness left sided supra-spinatus tear, accompanied by sub-acromial bursal effusion and bursal impingement. At the right shoulder, milder sub-acromial bursitis and subtle impingement with bursal bunching was identified.
With respect to the whole matter of the cause of injury and the onset date, Mr Coleman’s history of the events is consistent.
I know of no history to suggest that prior to the incident of 11th December 2012, this man, who has been manual work for the majority of his adult life, had any form of shoulder pathology or shoulder complaint.
In addition, I note that there is no history between the incident of 11th December 2012 and his subsequent presentation to his family practitioner to suggest other causative factor.
In that regard, I believe that there is prima facie evidence based on this man’s history to indicate that the onset of his bilateral shoulder bursitis with accompanying rotator cuff tear on the left emanates from the incident of 11th December 2012.
The ultrasound studies served only to identify the full scope of underlying tissue pathology that has arisen primarily as a result of that December 2012 incident.
Report of Dr Gerhard Viviers dated 26 May 2015 (part of A2)
This report reads as follows:
This is to confirm that Gerard Coleman has attended this Medical Practice since 14/06/2007.
I can also confirm that he has not had any previous shoulder problems recorded until January 2013. He came to me and advised me that he had shoulder pain for approximately 1 month prior to attending. During that month of shoulder pain he would rest it to make it better but prior to attending rest did not seem to help him any more.
ANALYSIS
The parties were invited to submit written closing submissions. Submissions were received from the Commission on 19 November 2015. The Tribunal acknowledges the clarity of these submissions and the invaluable assistance they provided to the Tribunal. Mr Coleman’s representative advised the Tribunal on 3 December 2015 that no written submissions from him would be provided. Mr Coleman’s representative did, however, provide closing oral submissions on 28 October 2015. The Tribunal thanks him for his considerable assistance in that regard.
In its written closing submissions, the Commission contended that there is insufficient evidence to support a conclusion that Mr Coleman’s claimed conditions were sustained in the circumstances that he claims – specifically, while lifting a heavy tyre during a training session on 11 December 2012.
The Commission argued before this Tribunal that there is no available medical evidence to support the conclusion that Mr Coleman suffered an "injury" to his shoulder in the 30 days prior to the clinical onset, being between 7 December 2012 and 7 January 2013. Therefore, SOP factor 6(a) is not satisfied. Furthermore, and in any event, the Commission contends that the evidence does not support a finding that the claimed conditions are connected with his military service. Therefore, the Commission contended, s 339(3) is not satisfied.
As outlined above, factor 6(a) of the Rotator Cuff Syndrome SOP No. 101 of 2014 provides: “having an injury to the affected shoulder within 30 days before the clinical onset of rotator cuff syndrome”.
The Commission argued that the date of clinical onset is 7 January 2013, which is when Mr Coleman attended Dr Gerhard Viviers, general practitioner, with sore shoulders. The condition was later confirmed by ultrasound on 16 January 2013 to be “full thickness tear of the supraspinatus tendon and subacromial bursitis”.
Mr Coleman’s representative agreed with that contention in earlier written submissions to the Tribunal.
The Tribunal agrees that this is the date of clinical onset for the purposes of factor 6(a) of SOP 101 of 2014. The Tribunal relies in that regard on the medical report of Dr Viviers dated 18 January 2013. This approach is consistent with the meaning of “clinical onset” outlined in Lees v Repatriation Commission [2002] FCAFC 398 and Repatriation Commission v Cornelius [2002] FCA 750 at [26].
The Tribunal must be satisfied that Mr Coleman’s injuries were sustained while undertaking military service and that his injuries were sustained between the period 7 December 2011 and 7 January 2012 (the 30 day period stipulated by factor 6(a) in the relevant SOP.
The evidence shows that Mr Coleman was only undertaking training for a short period during that 30 day period. As outlined by the Commission in written closing submissions, during his cross examination Mr Coleman explained that as a reservist, at that time, he was required to attend training every Tuesday night between 7 and 10pm and that was his only attendance requirement. There was only one Tuesday night between 7 December 2012 and 7 January 2013 when Mr Coleman was at training or was doing activities related to his military service. That was on 11 December 2012. Hence, the Tribunal needs to be satisfied that Mr Coleman was injured on that date as a result of something that occurred during the course of his military service and training.
The Tribunal notes that as at 11 December 2012, Mr Coleman’s shoulders were already symptomatic and painful. In that regard, the Tribunal notes Mr Coleman’s submission to the VRB and his statement dated 26 June 2015.
The Tribunal notes from the evidence that that Mr Coleman did not see a doctor until 7 January 2013 – 26 days after he claims to have hurt himself while lifting a heavy tire. There is no record of any visit to a medical specialist on the day of the alleged incident or the day after, when Mr Coleman claims that his shoulder pain was “extreme” and prohibited him from moving his shoulders. Mr Coleman’s explanation for not telling anyone about his injury for 26 days was that he did not want to be seen as “weak” or someone who complained. The Tribunal does not accept this as a satisfactory explanation in the circumstances.
The evidence also shows that there was no mention made of the “tyre incident” to any of Mr Coleman’s treating medical practitioners at a time contemporaneous to the alleged date of injury. Indeed, Mr Coleman agreed during cross examination that he did not raise the “tyre incident” with any of medical personnel or military officers until mid-2015. The Tribunal notes in that regard that Mr Coleman’s claim to the VRB was made on the basis that factor 6(b) of the relevant SOP was satisfied. Mr Coleman filed his application for review in this Tribunal in January 2015. It was only in June 2015, after the conferencing process had been finalised, that Mr Coleman, raised, for the very first time, the tyre incident.
The medical evidence is troubling in this regard.
Dr Viviers’ medical notes from Mr Coleman’s presentation on 7 January 2013 stated that Mr Coleman had “sore shoulders – one month”. There is no mention whatsoever of Mr Coleman’s specific injury or the circumstances he contends occurred on 11 December 2012.
It is clear on the evidence that when Mr Coleman first sought medical treatment on 7 January, he reported that he had “sore shoulders, one month”. There is no evidence that the mechanism of injury (i.e. the “tyre incident”) or the date of injury was reported on that day.
During the course of cross-examination, Dr Viviers stated that he first recorded the date of injury to be 11 – 12 December 2012 on 5 December 2014 when Mr Coleman requested that he write a letter of support for his compensation claim. The evidence shows that at that time, Mr Coleman still hadn't told Dr Viviers of the alleged tyre incident.
In his report dated 5 February 2013, Dr Michael Edwards, orthopaedic surgeon, stated “while there have been no particular traumatic events, he has joined the Army reserves recently, performing a lot of physical activities which have probably flared the shoulder.” No mention is made of the tyre incident.
Further, the consultation note of Dr Edwards dated 5 February 2013 stated “couple months – niggling pain increase”. “No events, recent army lessons push ups. Working ATM ok.”
During cross-examination, Mr Coleman agreed that he would have said this to Dr Edwards.
In an effort to rebut the assertion that he was “ok” after his claimed tyre related injury of 11 December 2012, Mr Coleman stated that he was receiving help from his son in his garden maintenance business. However, the Tribunal notes that there is no evidence from any of Mr Coleman’s business records, and in particular, any profit and loss statement for the 2012/2013 financial year indicating that Mr Coleman had employed or paid his son to help him during the relevant period.
In relation to the medical evidence of Dr Ker (A5), the Tribunal notes that Dr Kerr did not see Mr Coleman until early 2015. Further, like all of Mr Coleman’s other doctors, Dr Kerr does not refer in his report to the tyre incident. He provides no clear description of the type of injurious event he is referring to or how he concludes what he concludes. Further, the Tribunal notes that Dr Ker was not called as a witness and thus was not the subject of cross-examination.
In the circumstances, little weight can be attached to Dr Ker’s medical conclusions.
The Tribunal also notes that when Mr Coleman’s claimed condition was first reported to the military, it was recorded as being in “civilian employment”. Even if the Tribunal were to accept the applicant's evidence that he didn't report the injury occurring in civil employment, Mr Coleman agreed during cross-examination that he also didn't report that it occurred during his military employment at the time when he first reported the incident. More troubling is Mr Coleman’s statement in Defence Work Health and Safety Incident Report dated 10 September 2013 (T20), in which Mr Coleman stated (T20 at 84) as follows:
I sustained damage to my shoulder rotator cuff as a result of army training. I sustained a tendon tear due to constant rubbing of the tendon over the bone with high amounts of repetitive arm and shoulder motion. This caused inflammation and irritation. This is most likely caused by excessive amounts of push-ups and military presses etc. I had to have surgery to repair a large tear and bone shaved.
On the same form, Mr Coleman provides the same information:
Describe the action … that caused the injury: "push-ups, military press".
That incident report was followed by a claim for compensation, and attached to that was an injury or disease detail sheet. In respect of the left shoulder, which Mr Cole says is more severe, he reports that it was caused by high amounts of repetitive arm and shoulder motion due to army training. No mention is made of the tyre incident. In respect of the right shoulder, rather than a reference to anything happening on 11 December, Mr Coleman says simply that it was caused by over compensating for left shoulder injury.
The Tribunal has considerable sympathy for Mr Coleman. He is obviously in considerable pain and clearly has been for some time. However, all of the evidence when read as a whole can only lead the Tribunal to conclude that in relation to the claimed conditions:
(a)the material before the Tribunal does not raise a connection between Mr Coleman’s claimed conditions and the defence service rendered by him while a member; and
(b)although there is in force a SOP, the material and the SOP do not uphold the contention that the claimed conditions are, on the balance of probabilities, connected with that defence service.
DECISION
For the reasons outlined above, pursuant to section 43(1) of the Administrative Appeals Tribunal Act 1975, the decision under review is affirmed.
I certify that the preceding 97 (ninety seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr Christopher Kendall. ............[sgd D Brodie].....................................
Administrative Assistant
Dated 11 December 2015
Dates of hearing 28 and 29 October 2015 Date Final Submission Received 19 November 2015 Representative of the Applicant Mr J Boland
RSL of Australia WA BranchCounsel for the Respondent
Ms K Blackford-Slack
Solicitors for the Respondent Sparke Helmore
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Causation
-
Standing
-
Statutory Construction
-
Procedural Fairness
0