Cornelius and Repatriation Commission - [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

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).
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 Dr M Robertson .

Issues

The central issue in this application is whether the Applicant's condition of carpal tunnel syndrome in both wrists is a war-caused condition within the meaning of the Veterans' Entitlement Act 1986. The Applicant and the Respondent are in agreement that the Applicant suffers from carpal tunnel syndrome in both wrists and that the applicable Statement of Principles is Instrument No 71 of 1997. It is also agreed between the parties that if this condition is found to be war-caused, the date of effect of that decision will be 1 January 1999, that is, three months prior to the date of the Applicant's claim.
A live issue between the parties is the date of clinical onset of the Applicant's carpal tunnel syndrome.
Legislation
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.
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.
The Applicant said that he was then posted to 4 Base workshop in 1973, stripping out carriers using pneumatic hammers and chisels. He did this work for approximately six months and found that he would get pain in both his wrists when using the pneumatic tools.
He was then posted to Raeme Training Centre where he undertook the construction of gun sites which he described as very light work, with no problems to his wrists. He was then posted to 23 Field Regiment for some three years. This was an artillery regiment and there he undertook the inspection of weapons. He then undertook the duties of a fitter armament, working on small arms again. He said that he used to get odd pain now and again but generally only when he worked with small arms. He said that that was when he noticed the pain.
The Applicant said that he left the Army on 13 February 1986 and began work at News Limited as a fitter-and-turner on the company's publishing and printing plant. These machines included those for packaging, strapping, press and air-conditioning. He maintained and repaired these machines. He said that the work was not hard manual work and certainly not hard compared to the work he did in the Army.
After three years, the Applicant was made a Leading Hand, still working on tools but with more responsibility. In 1989 he was made a Foreman and his duties became purely supervisory. In the last year or so, a reclassification occurred and, as Team Leader, he is required to perform manual work.
The Applicant said that in the first couple of years with News Limited he had no problems with his wrists, but he then got very severe wrist pain. When this occurred he went to see his general practitioner, Dr Robertson, who sent him to see a surgeon.
In relation to the general engineering work performed by the Applicant in Vietnam on large plant, he said that except for approximately eight days per month, the rest of his time was spent working on this large machinery which included graders, backhoes, and bulldozers. The Applicant said that he saw these machines when they had been damaged or had problems and worked on them with a large range of tools which included small tools such as screwdrivers, spanners and ratchet wrenches. He said that most repairs involved repetitive movements and that when dismantling machinery, a combination of repetitive movements using tools and weight bearing, or heavy work, would have to be undertaken. The Applicant conceded in cross-examination that tools vary in size and that the way in which they are held or used varies accordingly and, similarly, that machines are different shapes and the site of repair on a machine may require various changes of position whilst undertaking the repairs.
In cross-examination the Applicant was shown his service documents (T3) and in particular pages 14 and 15 of those documents, which cover the period of his duties in Vietnam. The Applicant agreed that there is no mention made of his having consulted a doctor or received treatment for the pain in his wrists.
The Applicant explained that, when repairing small arms, he would do at least six cocks on a weapon in approximately 30 seconds and would move on to the next approximately 15 minutes after that, but noted that in the intervening 15 minutes he would be using a screwdriver and other tools in the dismantling of the next weapon. The Applicant said that he had gone to the regimental aid post, similar to first-aid, but had decided not to seek assistance from a doctor. From the regimental aid post he obtained aspirin and liniment.
The Applicant was also taken to page 20 of his service documents (T3), and he agreed that in the medical board examination record contained on that page there is no mention of problems with his wrists. He said all he could recall at that time was that he wanted to get out of the Army. Similarly on page 21 of the Applicant's service documents (T3), entitled Medical History Questionnaire, in relation to a category of injury called "any other joint injury or dislocation", no mention of wrists is made. The Applicant said that he could not remember being asked about that type of injury.
The Applicant was then taken to document T4, a document completed by his general practitioner Dr Robertson on 26 October 1988 for the purposes of a claim made at that time. It was pointed out to the Applicant that no mention is made on this form of problems with his wrists, hands or arms. The Applicant agreed but noted that that was possibly because he was not having any difficulty with them at that time.
The Applicant was then taken to the clinical notes of Dr Robertson (Exhibit R8) and it was pointed out to him that in those clinical notes, which commence in April 1987, the first mention of any problem with the Applicant's wrists is at page 162, on 24 November 1993. The Applicant replied that that was when his wrist pain really flared up again and that he had not had a problem prior to that in six-and-a-half years.
The Applicant was then directed to his employment records with Mirror Australian Telegraph Publications (Exhibit R7). In particular, he was shown page 25 of that exhibit which is a pre-placement medical history signed by the Applicant in November 1985. The Applicant agreed that, notwithstanding having mentioned some previous injuries, he did not mention his wrists and in answer to question 7 which asked "do you have or have you ever had trouble with your… (b) wrists/elbows?" he answered "No". The Applicant was quick to point out that he did not mention his wrists because he wanted the job and had mentioned the other injuries because he did not think they would hurt his chances in getting the job.
The Tribunal asked the Applicant why, during his service in Vietnam, while his wrists were causing him pain sufficient to soak them in hot water and apply liniment, he did not complain to a doctor. The Applicant replied that this was because he did not want to be sent home and that he was also worried about his career in the Army.
In re-examination the Applicant said that, in relation to the pre-placement medical exam medical history completed by him in November 1985, he also failed to mention the problems and injuries he had had with his knees, feet, ankles and dermatitis. In relation to a report from a Dr Marabani to the Applicant's general practitioner, Dr Robertson, dated 14 February 1994, where she says (Exhibit R8, p144):
"He has had a variety of rashes including a short lived rash in both groins, which cleared with antifungal treatment and a local rash on the wrists and hands, which he attributed to the use of goanna oil. The latter settled when he stopped using this agent",

the Applicant said that he had been using the oil and may have overdone it with his wrists. The oil was being used by him for his pain.

Three reports of Professor P Sambrook were in evidence. The first of these is dated 6 March 2001 (Exhibit R1). Relevantly, that report states:
"He told me he first presented with this [carpal tunnel syndrome] in about 1993 when he developed numbness in both hands and also loss of power in the hands with the inability to grasp fine objects. A nerve conduction study confirmed a diagnosis of carpal tunnel syndrome and he underwent decompression in 1994 with a marked improvement, although not complete resolution of his symptoms…
In regard to the types of activities Mr Cornelius had to perform during his service in South Vietnam, he described a number of activities involving repetitive manual movements. These would involve the taking apart, putting together and test firing of small arms weapons for most of the day. He would also at times use a pneumatic chisel and its use was in association with intense vibration of both hands. He thought use of the chisel was of the order of about 30 minutes a day on average.
Mr Cornelius did not recall having any symptoms of any carpal tunnel during his service period, but he did describe stiffness in his hands at the end of the day frequently…
DATE OF CLINICAL ONSET
The earliest date of clinical onset of the carpal tunnel syndrome is 1993, when he presented with numbness and loss of power or grip in the hands. The symptoms of tiredness in the hands he describes during his service period are not those of carpal tunnel syndrome.
RELATIONSHIP TO SERVICE
The description of the activities Mr Cornelius had to perform during Vietnam, outlined on pages 69-70 of the T documents certainly involved repetitive manual activity and this is one of the factors that can be associated with the onset of carpal tunnel syndrome. However consideration of SoP 71/1997 factor 5(a) requires these activities to have not ceased more than thirty days before the clinical onset of carpal tunnel syndrome. In Mr Cornelius' case he had ceased these activities for almost eight years before the clinical onset and this makes him unable to satisfy this factor…
Stiffness or tiredness of the wrists at the end of the day after performing repetitive manual activity is not unusual, but does not represent typical symptoms of carpel tunnel syndromes. Moreover taking the view that the clinical onset is the time when the symptoms become severe enough to warrant presentation to a doctor, means that this is not the case for those symptoms. Other musculoskeletal symptoms were however complained of during his service period, namely the olecranon bursitis and the chondromalacia. This is also in keeping with the conclusion that any symptoms in the hand were minor, rather than the clinical onset of a subsequent disease."
A further report of Professor Sambrook is dated 10 May 2001 (Exhibit R2). This report was provided at the request of the solicitors for the Applicant who wrote to Professor Sambrook in the following terms (Exhibit R4):
"Thank you for your report dated 6 March 2001. I represent Mr Cornelius and the report you prepared was a "joint report" by agreement with the Repatriation Commission.
I have only one question regarding your report. In answering this please disregard the concept that the first presentation for medical treatment is necessarily related to the clinical onset of the condition. In particular I refer to your findings in the first three complete sentences at page five of your report. (see material in bold script above)
Can you be satisfied beyond reasonable doubt that the symptoms of wrist pain that Mr Cornelius experienced in South Vietnam were not an early sign of the condition that manifested later as carpal tunnel syndrome?"
In reply, Professor Sambrook, in his report of 10 May 2001 (Exhibit R2), said as follows:
"It is not possible to exclude beyond reasonable doubt that the symptoms of wrist fatigue and stiffness at the end of the day during his service period were not an early sign of carpal tunnel syndrome.
"However as noted in my report on pages 4-5, such symptoms are not unusual in the population in general and are in no way specific for carpal tunnel syndrome. This comment is made disregarding the first three complete sentences on page five of my report."
Professor Sambrook's final report, dated 25 May 2001 (Exhibit R3), was provided at the request of the Respondent and states as follows:
"Thank you for sending me the additional information in regard to the fractured right wrist.
I note he sustained a fracture of the right distal radius on 21 July 1996 after tripping over a bundle of bulk paper and falling on his wrist. At the time he was working for News Limited. I note he was seen by Dr Ronald Clarke, an Orthopaedic Surgeon who, in a report dated 25 July 1996, noted that X-rays revealed a small avulsion fracture of the dorsal aspect of the distal radius treated in a back slab plaster and sling. No abnormal neurological signs were noted. At review on 15 August 1996, the plaster had been removed and physiotherapy was arranged.
"He also sustained a splinter injury to the left index finger in October 1991, which developed into a pyogenic granuloma requiring surgery, performed by Dr Eric Farmer, a Surgeon.
I could see no mention of symptoms referable to carpal tunnel in either 1991 or 1996. Reference to rheumatoid arthritis was however made by Dr Clarke.
I do not believe this substantially changes the conclusions from my report of 6 March 2001."

The historical report by Mr J Tilbrook, dated 8 August 2001 (Exhibit R6) contains a quote from a reply to a request for information from Major Doug Gammon who served, it is alleged, with the Applicant in the same trade. The report states that Major Gammon served in Vietnam in these trades and was therefore in a position to provide comments on the Applicant's employment in Vietnam. The reply from Major Gammon states:
"Without having observed Cpl Cornelius at his actual workplace in Vietnam it is difficult to give an informed opinion of his personal employment activities, also bear in mind that no two days were the same.
I can however provide a general overview of the type of employment activities generally performed by a FITT ARMT/FITT PLANT regardless of rank in a unit workshop such as the incumbent was posted to in Vietnam in 68/69.
Cpl Cornelius would normally have been responsible to maintain his unit's weapons to a unit repair level, this involved the inspection, replacement of minor parts and assemblies on an individual equipment basis, and the test firing of the weapons to confirm their serviceability. In my opinion this would not be considered as repetitive, and by the nature of his unit's role would normally have been only a small part of his daily employment. He would also have been required to maintain his unit's prime equipment, such as engineering plant, to a field repair level. This would have involved the adjustment and replacement of major assemblies utilising a range of hand, pneumatic and power tools. These assemblies by nature of their size were often heavy and required considerable physical effort to move them. The manual dexterity generally required to perform these tasks were many and varied, depending upon the type of damage to the equipment."
The Tribunal also had before it the Applicant's employment records from Mirror Australian Telegraph Publications (Exhibit R7) and the clinical notes of Dr Robertson, the Applicant's general practitioner (Exhibit R8).
The relevant aspects of these documents were shown to the Applicant during cross-examination and are noted above.
Submissions
Mr Jones for the Applicant submitted that the Applicant has been consistent in his evidence ever since the date of his claim. He pointed to the Applicant's failure to report his pain to a medical practitioner and his visits to the regimental aid post instead. In this respect he drew the Tribunal's attention to section 119 of the Act, which in subsection (1)(h) allows for difficulties associated with the passage of time and the absence or a deficiency in relevant official records, to be taken into account in the ascertaining of any fact, matter, cause or circumstance by a decision-maker. Mr Jones submitted to the Tribunal that this application comes down to two issues: (i) the date of clinical onset of the Applicant's carpal tunnel syndrome; and (ii) what standard of proof should be adopted in reaching a conclusion as to the date of clinical onset of the Applicant's carpal tunnel syndrome.
Mr Jones then referred the Tribunal to the decision of the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 and proceeded to draw the Tribunal's attention to the four steps set down, to be taken by decision-makers pursuant to that decision.
Mr Jones submitted to the Tribunal that the only matter that should be decided on the standard of reasonable satisfaction, or balance of probabilities is the question of whether the Applicant satisfies the diagnostic criteria in a SoP at the time of his claim.
In relation to the steps laid down in Deledio [supra] Mr Jones referred the Tribunal to the decisions in Bushell v Repatriation Commission (1992) 175 CLR 408 and Byrns v Repatriation Commission (1993) 177 CLR 564. He argued that the mere presence of some material which goes against the Applicant's hypothesis is irrelevant to consideration of the issue of whether the material before the Tribunal points to a hypothesis.
In relation to the second step in Deledio [supra] Mr Jones submitted that there is agreement between the parties that the applicable SoP is Instrument No 71 of 1997 concerning carpal tunnel syndrome and that the relevant factor in that SoP is factor 5(a).
In relation to the third step in Deledio [supra] concerning the issue of whether the hypothesis raised is consistent with the SoP, Mr Jones drew the Tribunal's attention to the terms of factor 5(a) in SoP No 71 of 1997 and the fact that the term "repetitive activities" in that factor is not defined in the SoP. Mr Jones encouraged the Tribunal to interpret the factor generously allowing for a range of activities. In particular, he encouraged the Tribunal to include under the heading "repetitive activities" not only the Applicant's work in relation to small arms but also his work on larger plant.
Mr Jones submitted that the historical report of Mr Tilbury should be given little weight, as it contained hearsay on hearsay, and that he also offered opinion on matters of a medical nature which are beyond his expertise. Mr Jones submitted that the best evidence in that report is from Major Gammon whose reply to Mr Tilbury's request for information was:
"Without having observed Cpl Cornelius at his actual workplace in Vietnam it is difficult to give an informed opinion of his personal employment activities, also bear in mind that no two days were the same."
Finally, in relation to step four in Deledio [supra] Mr Jones noted that Professor Sambrook in his report of 10 May 2001 (Exhibit R2) stated that:
"it is not possible to exclude beyond reasonable doubt that the symptoms of wrist fatigue and stiffness at the end of the day during his service period were not an early sign of carpal tunnel syndrome."
In relation to the issue of the date of clinical onset of carpal tunnel syndrome, Mr Jones submitted that the decisions of the Federal Court in Budworth v Repatriation Commission [2001] FCA 317 and Meehan v Repatriation Commission [2001] FCA 597 are the relevant authorities for the Tribunal to consider, in determining whether this issue should be decided on the basis of reasonable satisfaction or on the basis of the "reverse criminal onus". Mr Jones submitted that the decision of the Federal Court in Repatriation Commission v Gosewinckel [1999] FCA 1273 and Cooke v Repatriation Commission (1997) 45 ALD 205 should be interpreted as they were in Budworth [supra] and Meehan [supra] in this respect. Mr Jones also referred the Tribunal to its decision in Green v Repatriation Commission [2001] AATA 576.
Ms Hardie for the Respondent, in referring to factor 5(a) of the SoP, argued that the factor is a particularly specific one, detailing as it does specific numbers of hours and days, and that the remainder of the factor, including the term "repetitive activities", should be interpreted in that vein of high particularisation and specificity. Ms Hardie then noted the Applicant's evidence of having undertaken a cocking motion for periods of 15 to 30 seconds followed by a break of 15 minutes some 10 to 30 times per day, eight days per month. She submitted that on this basis he would not be able to fulfil the requirement in factor 5(a) of two hours per day, over 65 days, out of 120 days. She submitted that the other activities undertaken by the Applicant were not of a repetitive nature. Ms Hardie urged on the Tribunal an interpretation of the term "repetitive activities" that gave the words their ordinary meaning. In this way, she submitted, the term could not encompass any work performed by the Applicant in Vietnam, other than the small arms work undertaken by him.
Ms Hardie referred to the Applicant's service medical records and the medical documents in his employment records and noted that the Applicant had not referred to difficulties with his hands and wrists even when given the opportunity to do so. Ms Hardie noted that protection of his career may have influenced the Applicant in making no mention of his wrists to Army or employer medical practitioners, but no such constraints operated in relation to his own general practitioner and noted that there is no mention in Dr Robertson's clinical notes of the Applicant's wrists until 1993. In this respect Ms Hardie submitted that the date of clinical onset of carpal tunnel syndrome for the Applicant is November 1993, this date being in accordance with the clinical notes of Dr Robertson, which contained correspondence from rheumatologist, Dr Marabani (Exhibit R8, p144).
Ms Hardie drew the Tribunal's attention to the report of Professor Sambrook dated 10 May 2001 (Exhibit R2) and in particular the last paragraph in that report which stated:
"However, as noted in my report in pages 4-5, such symptoms (wrist fatigue and stiffness at the end of the day) are not unusual in the population in general and are in no way specific to carpal tunnel syndrome."
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."
In Deledio [supra], the Full Federal Court summarised the steps that are to be taken by the Tribunal in applying the above provisions, in relation to a condition contended to arise out of operational service and deciding whether a disease or injury is war-caused. The Tribunal adopted these steps in consideration of this application.
Does the material before the tribunal point to a hypothesis connecting the applicant's carpal tunnel syndrome with the circumstances of his operational service?
The hypothesis raised by the Applicant is that, during his operational service, he undertook general engineering work in relation to plant and the repair of small arms and that this was work of a repetitive nature, which gave rise to carpal tunnel syndrome in both wrists. He gave evidence of the processes undertaken by him in performing this work and of the frequency and duration of the work. He also gave evidence of the symptoms of pain in his wrists experienced by him during his operational service.
Which statement of principles is relevant to the hypothesis?
The parties are agreed that the SoP relevant to this hypothesis is Instrument No 71 of 1997, concerning carpal tunnel syndrome. There appears to be no other SoP relevant to the hypothesis.
Is there consistency between the hypothesis and the statement of principles?
The third step for the Tribunal, according to Deledio [supra], is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP, it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP that the SoP says must exist, and that factor must be related to the Applicant's service. Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 62 ALD 174 at 185 where he said:
"It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (47 ALD at 275), an hypothesis can so be upheld notwithstanding that 'one of the disputed facts happens also to be a component of an SoP'.

Paragraph 2(b) of SoP No 71 of 1997 states:
"For the purposes of this Statement of Principles, "carpal tunnel syndrome" means an entrapment neuropathy of the median nerve at the wrist producing paresthesias and weakness of the hand, attracting ICD code 354.0."
There is no dispute between the parties that the Applicant suffers from the condition of carpal tunnel syndrome.
Paragraph 5 of SoP No 71 of 1997 sets out the factors which must, as a minimum, exist before it can be said that a reasonable hypothesis has been raised connecting carpal tunnel syndrome with a veteran's relevant service. The factor which is most relevant to the Applicant's circumstances, and is agreed to be so between the parties, is factor (a) in paragraph 5, which states:
"performing repetitive activities with the affected hand for at least two hours each day, for at least 65 days, all within a period of 120 consecutive days, and where the repetitive activities have not ceased more than 30 days before the clinical onset of carpal tunnel syndrome;…"
The term "repetitive activities" is not defined in the SoP.
The Applicant's evidence was that, whilst in Vietnam from 22 October 1968 to 22 October 1969, he undertook engineering work which included the repair of small arms. He stated that this small arms work involved disassembly, using screwdrivers and other tools, and the rapid forwards and backwards movement of cocking and re-cocking the arms. According to the Applicant, this cocking and re-cocking movement would be done at least six times on a weapon, in approximately 30 seconds, and would be repeated on the next weapon approximately 15 minutes after that. In the meantime, according to the Applicant, he would be using a screwdriver and other tools to dismantle the next weapon. He said that he did this work for approximately 8 days in any month period and that he worked for approximately 10 hours per day throughout his time in Vietnam.
The Tribunal considers that this work amounts to "repetitive activities" within the ordinary meaning of those words as they appear in the SoP. Therefore, the evidence presented in support of the Applicant's hypothesis is that on the days on which he worked on small weapons, he undertook repetitive activities for more than two hours.
Keeping in mind that the Applicant stated that he worked on small weapons for eight days in each month (or each 28 days), it is necessary in order to consider whether his hypothesis is consistent with the SoP, to assess how many days, in a period of 120 consecutive days, the Applicant worked on small weapons.
In 120 days there are 4.28 periods of 28 days. It follows that, according to the Applicant's evidence, in any period of 120 days during his occupational service, he was engaged in repetitive work on small arms for at least 2 hours per day for 34.24 days (in each 28 day period he worked on small arms for 8 days, there are 4.28 28 day periods in 120 days, therefore in 120 days he worked on small arms for 4.28 X 8 days = 34.24). This clearly falls short of the requirement of 65 days of repetitive activity in factor 5(a).
However, it was submitted for the Applicant that the work he engaged in on general plant also involved repetitive activity, using large and small tools dismantling and reassembling graders, backhoes and bulldozers. His evidence was that most of these repairs would involve repetitive movements using tools of various sizes and some heavy work. The Applicant conceded that the way in which the tools were held, or used, varied and involved various changes of position.
This activity in relation to general plant, which involved more varied and often heavier movement, sits less comfortably in the realm of "repetitive activity" than does the Applicant's work with small arms. However, the Applicant's evidence was that most of this work involved repetitive movements and that he worked a 10 hour day. On this basis, it can be contended by the Applicant that on days when he worked on general plant, he would perform repetitive activities for at least two hours. This covers the remainder of the period of the Applicant's operational service and, more pertinent to the SoP, the remainder of the period of 120 days referred to in factor 5(a) of the SoP.
The remaining issue, in relation to this step of the analysis, is that of the date of clinical onset of the Applicant's carpal tunnel syndrome relative to the cessation of the repetitive activities contended to have been performed by the Applicant. According to the SoP clinical onset must have occurred not more than 30 days after the cessation of repetitive activity. The Applicant has submitted that the question of the date of clinical onset is one to be decided on the reverse criminal standard of proof rather than on the basis of the civil standard of reasonable satisfaction. Mr Jones for the Applicant referred the Tribunal in this respect to the decisions of the Federal Court in Budworth v Repatriation Commission (supra) and Meehan v Repatriation Commission (supra). The Tribunal notes that on 10 October 2001, after this application was heard but before this determination by the Tribunal was made, the Full Federal Court handed down its decision on the appeal from the decision of a single Judge of the Court in Budworth v Repatriation Commission (Repatriation Commission v Budworth [2001] FCA 1421). The Full Court considered the issue of how the Tribunal "should differentiate between matters as to which the Commission was subject to the 'reverse onus' of proof beyond reasonable doubt erected by s 120(1) and qualified by s 120(3) and the matters as to which the Appellant bore the ordinary civil onus imposed by s 120(4) of the Act". The Full Court concluded that the issue of whether a veteran is injured or is suffering a disease must be decided on the basis of the civil onus.

However, that is not the issue here. As noted above, in considering whether the Applicant's hypothesis is reasonable, the Tribunal must consider whether the hypothesis is consistent with the relevant SoP. As Heerey J said in Harris (supra), at this stage of the Tribnal's analysis, it is "concerned not with the proof or disproof of the various SoP factors… but with whether the material before it was consistent with the existence of those factors…". The question of the appropriate standard or onus of proof does not, therefore, arise at this stage of the Tribunal's analysis.
There is no definition of the term "clinical onset" in the SoP. Professor Sambrook, in his report of 6 March 2001, expressed the view that "clinical onset is the time when the symptoms become severe enough to warrant presentation to a doctor". In Robertson v Repatriation Commission [supra] the Tribunal, after considering a number of expert medical opinions as to the meaning of the term "clinical onset", said at paragraph 23:
"On that evidence we consider that there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time."
The Applicant's contention is that he developed very sharp pain in his wrists some five or six months after commencing work in Vietnam. He said the more constant or intense the work undertaken by him, the worse the pain. He said the pain was present most nights for a few hours and stayed with him until he left Vietnam. The Tribunal also notes that Professor Sambrook stated, in his report of 6 March 2001 (Exhibit R1), that the Applicant reported having experienced frequent stiffness in his hands, at the end of the day, during his service in Vietnam. However, Professor Sambrook also stated that:
"The symptoms of tiredness in the hands he described during his service period are not those of carpal tunnel syndrome…
Stiffness or tiredness of the wrists at the end of the day after performing repetitive manual activity is not unusual, but does not represent typical symptoms of carpal tunnel syndrome."

In Professor Sambrook's later report of 10 May 2001, he states, in answer to a question from the Applicant's solicitor:

"It is not possible to exclude beyond reasonable doubt that the symptoms of wrist fatigue and stiffness at the end of the day during his service period were not an early sign of carpal tunnel syndrome.
However, as noted in my report on pages 4-5, such symptoms are not unusual in the population in general and are in no way specific for carpal tunnel syndrome…"

The definition of carpal tunnel syndrome in the SoP is "an entrapment neuropathy of the median nerve at the wrist producing paresthesias and weakness of the hand". The term "paraesthesias" is defined in Black's Medical Dictionary, 39th Ed., as:
"A term applied to unusual feelings, apart from mere increase, or loss, of sensation, experienced by a patient without any external cause: for example, hot flushes, numbness, tingling, itching."
There is, predictably, no direct evidence of entrapment neuropathy at the time the Applicant was stationed in South Vietnam, that is, no nerve conduction study was performed at that time or in those circumstances. However, there is the Applicant's contention of pain, stiffness and weakness in his wrists at night when serving in Vietnam, and Professor Sambrook's concession that it is not possible to exclude "beyond reasonable doubt that the symptoms of wrist fatigue and stiffness at the end of the day during his service period were not an early sign of carpal tunnel syndrome".
The symptoms described by the Applicant in his evidence, and to Professor Sambrook, fall within the definition of "paraesthesias" and more generally within the definition of carpal tunnel syndrome in the SoP. On the basis that clinical onset of a condition is, as stated in Robertson [supra] at paragraph 23:
"either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time",

then there is before the Tribunal material to support the contention that the clinical onset of the Applicant's carpal tunnel syndrome was some five months after his arrival in Vietnam. Given that it is contended that these symptoms persisted until he left Vietnam, and he continued to perform repetitive activities during the entire period of his service in Vietnam, the requirement in factor 5(a) of the SoP that "the repetitive activities have not ceased more than 30 days before the clinical onset of carpal tunnel syndrome" is, in the terms of the Applicant's hypothesis, satisfied.

It follows that the Applicant's hypothesis is consistent with SoP No 71 of 1997.
Is the tribunal satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the applicant's carpal tunnel syndrome is war-caused?
The Respondent raised a number of matters which, it says, cast doubt on the Applicant's contention that his carpal tunnel syndrome is war-caused. The first of these was that the Applicant did not report his symptoms to a doctor until 1993. The Respondent stated that this is the clinical date of onset of his carpal tunnel syndrome and this is borne out by the Applicant's treating doctor's clinical notes and by the Applicant's service documents. This was put to the Applicant in cross-examination and he explained that, in relation to his period of army service, he did not want to be sent home and was worried about his career in the army. In relation to the period following that, and the absence of any mention of symptoms before 1993 in his treating doctor's clinical notes, he said problems with his wrists flared up again in 1993, having not troubled him for the previous six and half years. The Applicant said that he didn't mention his wrists in the pre-placement medical history given before he started his present employment because he thought it would hurt his chances of getting the job, unlike some other injuries that he did mention because he didn't think they would hurt his chances. The Tribunal does not consider that the failure of the Applicant to communicate his stated symptoms to a doctor prior to 1993 establishes, beyond reasonable doubt, the absence of those symptoms.
The historical report of J Tilbrook dated 8 August 2001 (Exhibit R6) has, at its crux, a reply to a request for information from Major Gammon. The reply notes that Major Gammon did not observe the Applicant in his actual workplace in Vietnam and states "it is difficult to give an informed opinion of his personal employment activities, also bear in mind that no two days were the same." Major Gammon then stated his opinion that the kind of work normally involved in weapons maintenance is not repetitive, but does not give the basis for his opinion other than to say that weapons maintenance would have constituted only a small part of the Applicant's duties. He then described the plant maintenance work that he considered the Applicant would have been required to perform and noted that "the manual dexterity generally required to perform these tasks were many and varied, depending upon the type of damage to the equipment". The Tribunal considers this evidence to be somewhat vague and certainly, in the face of the Applicant's own evidence, insufficient to establish beyond reasonable doubt that the work performed by the Applicant in Vietnam was not repetitive within the dimensions laid down by the SoP.
Professor Sambrook's report of 25 May 2001 (Exhibit R3) is a rather reluctant concession that it is not possible to exclude beyond reasonable doubt that the symptoms contended by the Applicant to have been experienced by him in Vietnam were not an early sign of carpal tunnel syndrome. He insists, however, that those symptoms are not specific to carpal tunnel syndrome. Ms Hardie, for the Respondent, also encouraged the Tribunal to have regard to Professor Sambrook's view, expressed in his first report dated 6 March 2001 (Exhibit R1), that clinical onset of a condition "is the time when the symptoms become severe enough to warrant presentation to a doctor".
The Tribunal has dealt above with the issue of clinical onset, having regard to the symptoms contended by the Applicant and the features or symptoms of the condition as described in the SoP's definition of carpal tunnel syndrome. The Tribunal does not consider that Professor Sambrook's view as to what amounts to clinical onset establishes beyond reasonable doubt that the clinical onset of the Applicant's carpal tunnel syndrome did not occur before 1993. The view reached by the Tribunal in Robertson (supra), after consideration of a range of expert medical evidence, is preferred.
Professor Sambrook's concession, in his report of 25 May 2001 may be a reluctant one but it does prevent his evidence from establishing, beyond reasonable doubt, that the symptoms contended by the Applicant as being experienced by him in Vietnam, were not symptoms of carpal tunnel syndrome. Further, the Tribunal considers that the effect of Professor Sambrook's concession is not diminished by the view taken by him of what constitutes the clinical onset of a condition. The Tribunal, rather, has adopted the conclusion reached in Robertson [supra] on this question.
The Tribunal, therefore, considers that the Applicant satisfies the requirements in SoP No 71 of 1997 concerning carpal tunnel syndrome. It follows that, in the absence of any matter establishing beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's carpal tunnel syndrome is a war-caused disease, the Tribunal concludes that the Applicant's condition of carpal tunnel syndrome is war-caused.
Determination
The Tribunal sets aside the decision under review and in substitution therefor 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.
I certify that the 75 preceding paragraphs are a true copy of the reasons for the decision herein of Ms Bell, Member
Signed: R Quinn     .....................................................................................
  Associate
Date/s of Hearing  13 August 2001
Date of Decision  26 October 2001
Solicitor for the Applicant         Paul Jones
Solicitor for the Respondent    Margaret Hardie