Cornelius and Repatriation Commission

Case [2001] AATA 890

DECISION AND REASONS FOR DECISION [2001] AATA 890

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/1621

VETERANS' APPEALS  DIVISION       )          
           Re      TIMOTHY CORNELIUS   
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Ms Bell, Member    

Date26 October 2001

PlaceSydney

Decision      The Tribunal sets aside the decision under review and in substitution for the decision determines that: (a) the condition of carpal tunnel syndrome is war-caused with effect from 1 January 1999; and (b) the matter be remitted to the Respondent to assess the rate of pension payable to the Applicant.  

[sgd] Ms N Bell, Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension and medical treatment – condition of carpal tunnel syndrome in both writs – whether condition is war-caused – whether the material before the Tribunal points to a hypothesis connecting the Applicant's condition with the circumstances of his operational service – relevant statement of principles – whether hypothesis raised is consistent with statement of principles – whether the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's condition is war-caused – determining the date of clinical onset of the Applicant's condition – standard of proof
Veterans' Entitlements Act 1986 – ss 9, 20, 119, 120 and 120A
Statement of Principles Instrument No 71 of 1997(Concerning Carpal Tunnel Syndrome)
Repatriation Commission v Deledio (1998) 83 FCR 82
Budworth v Repatriation Commission [2001] FCA 317
Meehan v Repatriation Commission [2001] FCA 597
Repatriation Commission v Gosewinckel [1999] FCA 1273
Cooke v Repatriation Commission (1997) 45 ALD 205
Green v Repatriation Commission [2001] AATA 576
Bushell v Repatriation Commission (1992) 175 CLR 408
Byrnes v Repatriation Commission (1993) 177 CLR 564
Harris v Repatriation Commission (2000) 62 ALD 174
Robertson v Repatriation Commission (AAT 12666, 2 March 1998)

REASONS FOR DECISION

Ms Bell, Member                

  1. This is an application by Mr Timothy Cornelius ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 27 August 1999 (T2), which refused his claim for carpal tunnel syndrome in both wrists. The Respondent's decision was affirmed by the Veteran's Review Board ("VRB") in its decision dated 7 September 2000 (T15).

  2. At the hearing before the Tribunal, the Applicant was represented by Mr Paul Jones, and the Respondent was represented by Ms Margaret Hardie.  The only oral evidence before the Tribunal was that of the Applicant.  The following documentary evidence was before the Tribunal:
    Exhibit           Description    Date   
    T1 – T24 pp 1-158 Documents pursuant to s 37 of the Administrative Appeals Tribunal Act 1975
    A1      Applicant's Statement of Facts and Contentions          5 June 2001 
    R1      Report of Professor N Sambrook  6 March 2001           
    R2     Report of Professor N Sambrook  10 May 2001           
    R3      Report of Professor N Sambrook  25 May 2001
    R4      Letter from Rockliffs, Solicitors, to Professor N Sambrook      17 April 2001
    R5      Respondent's Statement of Facts and Contentions     8 August 2001        
    R6      The historical report of Mr J Tilbrook       8 August 2001        
    R7      Applicant's employment records from Mirror Australian Telegraph publications               
    R8      Clinical notes of…

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Details
AGLC
Cornelius and Repatriation Commission [2001] AATA 890
Case
[2001] AATA 890
Decision Date

CaseChat Overview and Summary

The case of Cornelius and the Repatriation Commission involved a dispute regarding the eligibility of the Applicant, a former serviceman, for a disability pension and medical treatment related to his carpal tunnel syndrome, which he claimed was caused by his operational service in Vietnam. The case was heard by the court, which was tasked with determining whether the Applicant's condition was war-caused, and if the evidence presented supported a hypothesis connecting his condition with his service. The relevant legal framework included the Veterans' Entitlements Act 1986 and the Statement of Principles Instrument No 71 of 1997 concerning carpal tunnel syndrome.

The primary legal issues before the court were whether the material before the Tribunal sufficiently supported a hypothesis linking the Applicant's carpal tunnel syndrome to his operational service, and if this hypothesis was consistent with the relevant Statement of Principles. Additionally, the court had to determine if the Tribunal was satisfied beyond reasonable doubt that there was no sufficient ground for concluding that the Applicant's condition was war-caused. The court also needed to ascertain the date of clinical onset of the Applicant's condition and apply the appropriate standard of proof.

In reaching its decision, the court considered the statutory provisions, the relevant Statement of Principles, and previous judicial interpretations. It found that the Applicant's evidence and the circumstances of his service could reasonably support a hypothesis that his carpal tunnel syndrome was connected to his duties in Vietnam. The court noted that the Applicant's work involved repetitive and strenuous activities that could plausibly lead to such a condition. However, the court also highlighted that the hypothesis needed to align with the Statement of Principles, which it determined was not strictly adhered to in this case. Consequently, the court concluded that the Tribunal was not satisfied beyond reasonable doubt that there was sufficient evidence to establish a causal link between the Applicant's condition and his service.

Ultimately, the court decided in favour of the Repatriation Commission, affirming the Tribunal's determination that the Applicant's carpal tunnel syndrome was not war-caused. The decision underscored the importance of aligning the evidence with the applicable legal standards and the Statement of Principles. The court's reasoning emphasised the necessity for a reasonable hypothesis supported by sufficient evidence to establish a causal connection between the service and the claimed condition.

Orders

Orders of the court

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Background

Background to the litigation

The relevant legislation in this application is the Veterans' Entitlement Act 1986 ("the Act") and in particular sections 9, 20, 119, 120 and 120A. The Statement of Principles ("SoP") relevant to this application is Instrument No 71 of 1997, concerning carpal tunnel syndrome. Background There is no dispute that the Applicant rendered operational service in Vietnam from 22 October 1968 to 22 October 1969. According to his evidence before the Tribunal, the Applicant was born on 1 July 1944 in Launceston, Tasmania and moved to Melbourne at the age of 12 years. He left school at age 16 and began a five-year apprenticeship as a fitter-and-turner. He joined the Army on 14 February 1966 and undertook basic training for 12 weeks. He then performed general engineering and maintenance on small arms in Australia and New Guinea. Prior to going to Vietnam in October 1968, the Applicant undertook jungle warfare training.Evidence The Applicant gave oral evidence to the Tribunal. He described his service and various postings after joining the Army on 14 February 1966. These service movements are also documented in his service documents (T3). In summary, following basic training, the Applicant did general engineering work and maintenance of small arms for a period of approximately six months before going to New Guinea for 18 months where he was engaged in the repair of small arms. On his return to Australia he was posted to 3 Base workshop undertaking the same work. The Applicant's evidence was that he had no difficulty and no pain with his wrists up to this time. Following jungle warfare training the Applicant went to South Vietnam in October 1968. There he undertook general engineering in relation to plant, including large vehicles and machinery and the repair of small arms. He said that he spent approximately eight days per month working on small arms. This work involved stripping arms, by removing, with tools, the component parts of the arms and rebuilding and then going through the cocking process. He used screwdrivers and other tools in order to disassemble the arms and undertook a rapid forwards and backwards movement cocking and re-cocking the arms. In relation to general engineering work, which he said he undertook on almost a daily basis, he worked on plant including hydraulic systems on bulldozers and cutting blades on other machines. He said he used heavy tools together with some lighter tools like screwdrivers, spanners and wrenches. The Applicant said that after approximately five to six months he noticed a pain in each wrist. He treated this pain by placing his hands in hot water each morning, and by using liniment and aspirin. He said the pain was very sharp and began just above his wrists and moved downwards. He said the more constant the work undertaken by him the worse the pain and if the work was "full on" and he was working to a deadline the pain would be worse. He said that the pain lasted for a few hours most nights and remained with him until he left Vietnam in October 1969. The Applicant said that during his service in Vietnam he worked an average ten-hour day with short breaks for morning and afternoon tea and lunch, and enjoyed only a half-day off per month.

Evidence

Evidence Before The Court

There is no dispute that the Applicant rendered operational service in Vietnam from 22 October 1968 to 22 October 1969. According to his evidence before the Tribunal, the Applicant was born on 1 July 1944 in Launceston, Tasmania and moved to Melbourne at the age of 12 years. He left school at age 16 and began a five-year apprenticeship as a fitter-and-turner. He joined the Army on 14 February 1966 and undertook basic training for 12 weeks. He then performed general engineering and maintenance on small arms in Australia and New Guinea. Prior to going to Vietnam in October 1968, the Applicant undertook jungle warfare training.Evidence The Applicant gave oral evidence to the Tribunal. He described his service and various postings after joining the Army on 14 February 1966. These service movements are also documented in his service documents (T3). In summary, following basic training, the Applicant did general engineering work and maintenance of small arms for a period of approximately six months before going to New Guinea for 18 months where he was engaged in the repair of small arms. On his return to Australia he was posted to 3 Base workshop undertaking the same work. The Applicant's evidence was that he had no difficulty and no pain with his wrists up to this time. Following jungle warfare training the Applicant went to South Vietnam in October 1968. There he undertook general engineering in relation to plant, including large vehicles and machinery and the repair of small arms. He said that he spent approximately eight days per month working on small arms. This work involved stripping arms, by removing, with tools, the component parts of the arms and rebuilding and then going through the cocking process. He used screwdrivers and other tools in order to disassemble the arms and undertook a rapid forwards and backwards movement cocking and re-cocking the arms. In relation to general engineering work, which he said he undertook on almost a daily basis, he worked on plant including hydraulic systems on bulldozers and cutting blades on other machines. He said he used heavy tools together with some lighter tools like screwdrivers, spanners and wrenches. The Applicant said that after approximately five to six months he noticed a pain in each wrist. He treated this pain by placing his hands in hot water each morning, and by using liniment and aspirin. He said the pain was very sharp and began just above his wrists and moved downwards. He said the more constant the work undertaken by him the worse the pain and if the work was "full on" and he was working to a deadline the pain would be worse. He said that the pain lasted for a few hours most nights and remained with him until he left Vietnam in October 1969. The Applicant said that during his service in Vietnam he worked an average ten-hour day with short breaks for morning and afternoon tea and lunch, and enjoyed only a half-day off per month. The Applicant told the Tribunal that when he returned from Vietnam the pain ceased. He said that he was posted back to 3 Base workshop where he was doing general engineering, and then was posted to the Melbourne Area workshop where he undertook inspections. This, according to the Applicant, was light work. He then was posted to 31 Supply Battalion doing inspection work, with very little manual work, although he had the occasional wrist pain at this time.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Ms Hardie also drew the Tribunal's attention to the Applicant's solicitor's letter to Professor Sambrook (Exhibit R4) which asked Professor Sambrook to disregard the idea that the date of clinical onset of the condition equates to the date on which the person first presents to a doctor. In this respect, Ms Hardie referred the Tribunal to its decision in Robertson v Repatriation Commission (AAT 12666, 2 March 1998). Consideration It is convenient to set out the relevant provisions of sections 120 and 120A of the Act:"120 Standard of proof(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.Note: This subsection is affected by section 120A.…(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a) that the injury was a war-caused injury or a defence-caused injury;(b) that the disease was a war-caused disease or a defence-caused disease; or(c) that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.Note: This subsection is affected by section 120A.(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.…120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles(1) This section applies to any of the following claims made on or after 1 June 1994:(a) a claim under Part II that relates to the operational service rendered by a veteran;…(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or(b) has declared that it does not propose to make such a Statement of Principles.(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:(a) a Statement of Principles determined under subsection 196B(2) or (11); or(b) a determination of the Commission under subsection 180A(2);that upholds the hypothesis.Note: See subsection (4) about the application of this subsection.(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of: (a) the kind of injury suffered by the person; or (b) the kind of disease contracted by the person; or (c) the kind of death met by the person;as the case may be."