Corpus and Repatriation Commission
[2003] AATA 1042
•15 October 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1042
ADMINISTRATIVE APPEALS TRIBUNAL )
) No D2002/43
VETERANS' APPEALS DIVISION ) Re PHILIP CORPUS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President Don Muller Date15 October 2003
PlaceBrisbane
Decision The Tribunal affirms the decision to refuse a claim for disability pension for osteoarthrosis of both shoulders. ...............(Signed)................................
D.W. MULLER
DEPUTY PRESIDENT
CATCHWORDS
VETERANS – whether osteoarthrosis of shoulders war-caused
REASONS FOR DECISION
Deputy President Don Muller 1. This is an application to review a decision to refuse a claim by Philip Corpus, the Applicant, for disability pension for his osteoarthrosis of both shoulders.
2. The Applicant claims that while serving with the Australian Army in Darwin in about 1942 or 1943, he fell from an Army truck and injured his shoulders, and that the injuries have led to his current disability of osteoarthrosis in both shoulders.
3. The following matters are not in dispute and the Tribunal finds:
(a)The Applicant was born in Broome on 14 August 1917. He is now 86 years of age.
(b)He served in the Australian Army from 22 February 1942 to 15 April 1945.
(c)For the majority of his service he was in the hygiene section, based in Darwin. In particular he spent a significant part of his service working on a rubbish truck.
(d)From 1945 to 1949, he had various labouring jobs in Broome.
(e)He worked as a labourer in Darwin from 1949 to 1963.
(f)From 1964 to 1977 he worked as a wharf-labourer on the Darwin wharf.
(g)From 1977 to 1989 he worked as a motor mechanic assistant for his brother. He then retired. He currently receives the age service pension.
4. Mr. Corpus made a statement to a Departmental review officer in February 2002, in which he described the incident during which he fell from the garbage truck. The review officer’s report contains the following:
“During the course of our conversation I asked Mr Corpus to describe to me exactly what he could remember of his accident in 1942, when he was thrown from a truck being driven at speed during an air raid in Darwin. He went on to relate how he was standing (not sitting) on the side of the truck. The air raid sirens sounded and the driver sped up with the intention of driving to the nearest trench in which they could take shelter. Along the way the driver slammed on the brakes to avoid a head on collision with another truck coming from the opposite direction. This resulted in Mr Corpus being thrown heavily and at speed onto the roadway. This resulted in a severe laceration to his left leg in the area of the knee which bled badly (to this day he still has quite a significant and very visible scar on the knee which he says was as a result of this incident).
I asked Mr Corpus to describe to me exactly if he could how he hit the ground. He described being thrown with arms outstretched, landing in a face forward position on his knees and his outstretched arms, then rolling completely over several times, then again having to roll out of the way of the oncoming truck.
I asked Mr Corpus if he suffered any other injury other than the laceration to his knee. He said that he had pain all over and by the next day could not use both his arms properly for several days. He said that it had affected the way he was doing his job as he could not lift anything because of the pain in his arms.
Mr Corpus told me that he should have attended the R.A.P. however he did not do so because following the air raid there were people in far worse condition than himself needing treatment. Eventually his arms came good, the other body aches disappeared and after some considerable time, a limp he had developed following the incident went away.”
5. Mr. Corpus gave evidence to the Tribunal. He made the following points:
· He was sitting on the mudguard of the truck.
· When he was thrown to the ground he rolled onto his shoulders. He landed heavily on his left shoulder, rolled and hit his right shoulder.
· He was dazed but was not unconscious.
· He had no head wound.
· He was slow to recover and could not do any heavy lifting for a few days after the incident. He felt bad for at least a week.
· He thinks that he “must have” had some days off work at the time – but he is not sure.
· His shoulders have gone bad so slowly over the years that he had not noticed any problems with them until a few years ago.
6. A letter by Dr. Baddeley, orthopaedic surgeon, dated 17 August 2001 contains the following:
“…in 1942 whilst in the Australian Army, he fell from a bus at speed landing on his left side sustaining injury to his left and possibly also his right shoulder.
Since that time he has had gradually increasing problems and over the past 50 years has developed severe problems with his shoulders which have resulted in bilateral severe osteoarthritis and loss of rotator cuff.
Whilst the passage of so many years makes it impossible to be certain about how much the injury 1942 has resulted in his present problems, it is certainly very possible that the injury sustained has significantly contributed to his present problems.”
7. The hypothesis raised by the material is: In 1942 Mr. Corpus was flung from a truck to the ground. He landed heavily on the bitumen road on his left shoulder, rolled over and hit his right shoulder. He was sore for at least one week, during which time he could not lift heavy objects. He now has developed severe osteoarthritis and loss of rotator cuff in both shoulders. His current disabilities were caused by or significantly contributed to by the injury to his shoulders in 1942.
8. The relevant Statement of Principles (SoP) is No. 81 of 2001, which is concerned with osteoarthrosis. In particular factor 5(j) is relied on in his case.
“Factors
5.The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis with the circumstances of a person’s relevant service are:
(j)suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint;
“trauma to the affected joint” means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a)immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b)injection of corticosteroids or local anaesthetics into that joint; or
(c)aspiration of that joint; or
(d)surgery to that joint;”
9. The material from the Respondent’s file on Mr. Corpus shows that he has made a number of claims on the Respondent over a significant number of years. There has been no mention of shoulder problems until the Department of Veterans’ Affairs received Dr. Baddeley’s letter in September 2001. Some of the previous claims have been accompanied by descriptions of the truck incident which are different to that version put to this Tribunal.
10. The Tribunal notes the following matters from the section 37 statement, in relation to Mr. Corpus:
(a)On 11 February 1959, he was examined by an LMO on behalf of the Repatriation Commission, following a claim that he suffered from headache attacks which he first experienced whilst serving in the Army, particularly between February 1942 and October 1942. The LMO recorded that an examination of his upper and lower limbs showed “NAD”.
(b)On 27 September 1961, he was again examined by the same LMO as his 1959 examination, following a claim that since 1945 he had experienced “pain around heart and general weakness”. The LMO recorded:
“Since 1943 has had recurrent attacks of pain around the praecardial area and generalised weakness until about 1957 these attacks were infrequent but have been occurring more and more often since then”.
An examination revealed that his limbs and bones showed “NAD”.
The LMO made a provisional diagnosis of “cardiac neurosis”.
(c)In 1984 he made a claim for
(i)Pressure in head and body, and
(ii)Pains in thighs – right worse than left – take pain killers and rest frequently.
He attributed his leg problems to the following incidents:
“In 1942 had a truck accident in which I was thrown to the ground … knocked out for a time. Hurt legs then & limped for many weeks after.
Quite often fell in trenches at night when air raid siren sounded.”
He also stated that he could not recall suffering any other injuries during service.
(d)He was examined on 9 January 1985 following a claim for “high blood pressure bad legs”. The report includes:
“Bones and Joints Normal for ACF – joints appear quite flexible – appears to be able to move within the limits of his severe obesity quite well.”
(e)On 22 August 1997, Mr. Corpus made a claim for “painful ® leg”. In support of that claim he attached a handwritten statement which contained the following:
“During 1942 I was working in Darwin on the Rubbish Truck. I had to sit on the mudguard as the truck drove around. At one stage we were going down the road when the Air Raid Siren sounded. The driver of our truck panicked and swerved the truck. I was thrown off the truck and landed very heavily on my right side. I hurt my right leg. I received abrasions which bled for a while. I did not consider it worth reporting to the RAP as I was young and fit and there were others a lot worse than me needing medical attention. From then I always had a slight limp which got worse as I got older.”
(f)On 18 September 2001, Mr. Corpus made a claim for “acute sprain/strain to both shoulders”. He described the truck incident as follows:
“In a bombing raid on Darwin, in ’42 very soon after they started, I fell off a truck when it had a minor collision with another vehicle & veered sideways sharply. I fell on the bitumen (heavily) on my hands & knees & was badly abraded & my whole body was quite sore for at least a fortnight.”
(g)On 26 February 2002, Mr. Corpus signed the following statement:
“During 1942, I was working in Darwin on the rubbish truck. I had to stand on the mudguard as the truck drove around. At one stage we were going down the road when the air raid siren sounded. The driver of our truck sped up, heading for the nearest slit trench. Another truck was coming towards us and our driver panicked and swerved the truck out the path of the oncoming vehicle. I was thrown from the truck and landed heavily on my left leg and both arms. The force of hitting the ground caused me to roll over and I then had to roll out of the way of the oncoming truck. My left leg hurt and was bleeding. I had pain in both arms. Early the next day I was unable to use my arms properly due to the pain in them. This was as a result of the accident. Eventually the pain in my arms went away and my left leg healed although it still show scars from the accident.
I didn’t consider it worth reporting the R.A.P. Although I was in a great deal of pain there were others a lot worse than me as a direct result of the bombing that needed attention.
From that day onwards I always had a slight limp, which eventually healed.”
(h)In oral evidence at this hearing he claimed that in the truck incident he first landed on the bitumen on his left shoulder and he rolled over and hit his right shoulder.
11. It is clear to the Tribunal that the Applicant’s description of the truck incident has changed from the days of his claim for leg problems, where he claimed to have landed on his right side and hurt his right leg, to the description which now accompanies his claim to have landed on his left shoulder and then bounced onto his right shoulder.
12. The Tribunal takes the view that the Applicant’s bad shoulders are probably due to a life-time of labouring work and old age.
13. The Tribunal is not prepared to accept evidence which has been modified over a period of years to get the “facts” to fit the relevant SoP.
14. The Tribunal does not accept that Mr. Corpus injured his shoulders in the truck incident in 1942.
15. The hypothesis is not reasonable
16. The Tribunal affirms the decision to refuse the Applicant’s claim for osteoarthrosis of both shoulders.
I certify that the 16 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President Don Muller
Signed: .......................................................................................
C. O’Donovan, AssociateDate/s of Hearing 27 May 2003
Date of Decision 15 October 2003
Solicitor for the Applicant Pipers
Respondent Mr. G. Doube, departmental advocate
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