Dwyer and Repatriation Commission - [2001] AATA 538

DECISION AND REASONS FOR DECISION [2001] AATA 538

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/852

VETERANS' APPEALS DIVISION       )
           Re      DANIEL DWYER
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal DR J D CAMPBELL, Member

Date15 June 2001
PlaceSydney

Decision The Tribunal determines that the decision under review be affirmed.

[Sgd] Dr J D Campbell
Member
CATCHWORDS
Veterans' Entitlements - World War II injury to right shoulder - subsequent injury to right shoulder - diagnosis - issue of causation
Veterans' Entitlement Act 1986 - ss 120(4), 120B

Statement of Principles Instrument No 84 of 1997
Statement of Principles Instrument No 18 of 1999

REASONS FOR DECISION

DR J D CAMPBELL, Member

In this application, Mr Daniel Dwyer ('the Applicant') seeks a review of the decision of the Repatriation Commission ('the Respondent') dated 27 August 1999, which refused the Applicant's claim dated 22 January 1999 for adhesive capsulitis of the right shoulder to be recognised as a war caused disability. This decision was reviewed by the Veterans' Review Board ("VRB") and affirmed in a decision dated 5 April 2000.
A hearing was held in Sydney on 1 May 2001, at which the Applicant was represented by Mr Dawson of counsel and the Respondent by Mr Godwin, an advocate from the Department of Veteran Affairs. The Applicant gave brief oral evidence to the Tribunal.
The following material was placed into evidence before the Tribunal.
Exhibit No     Description    Date
T1-T12 PP1-62 Documents prepared pursuant to section 37 of the Administrative Appeals Tribunal Act 1975.
A1      Medical Report Dr P Giblin 11 September 2000
A2      Medical Report Dr P Giblin 15 January 2001
A3      Statement of Applicant      1 November 2000
A4      Applicant's Amended Statement of Facts and Contentions     28 January 2001
R1      Medical Report Professor Sambrook       12 September 2000
R2      Medical Report Professor Sambrook       7 February 2001
R3      Clinical Notes Dr Weinman
R4      Clinical Notes Dr Rowan-Kelly
R5      Respondent's Statement of Facts and Contentions     9 March 2001

ISSUES

The relevant issue before the Tribunal is whether the Applicant's right shoulder injury, described as adhesive capsulitis, is a war injury, and if so, to make a determination as the impairment rating for that condition.
LEGISLATION
The relevant legislation in this matter is the Veterans' Entitlement Act 1986 ("the Act"), in particular ss 120(4), 120B, and the Statement of Principles ('SoP') Instrument No 84 of 1997, concerning Rotator Cuff Syndrome and SoP Instrument No 18 of 1999, concerning Adhesive Capsulitis of the shoulder.
BACKGROUND
The Applicant lodged a claim for a number of injuries/diseases to be recognised as war caused on 27 January 1999. One such injury nominated was adhesive capsulitis of the right shoulder, following trauma to the right upper arm in 1944. The claim was rejected by the Respondent on 27 August 1999 on the grounds that the trauma did not affect the right shoulder (T2). Following a medical report from Dr Rowan Kelly (T10, PP56, 57), which the VRB considered in that review, the decision of the Respondent was affirmed on 5 April 2000 (T10).
APPLICANT'S EVIDENCE
The Applicant told the Tribunal that he was born on 26 November 1924, enlisted in the RAAF in February 1943 and served until 26 September 1944. While serving as a flight mechanic at Parkes, the Applicant stated that he received an injury to his right upper arm on 6 March 1944, when a propeller blade, as a result of an engine backfire, struck him on the upper arm above the right elbow. The Applicant described the episode in terms of feeling a red hot poker in the central part of his arm, from the shoulder to his right hand. The Applicant indicated that he received a laceration just above his right elbow, a scar being the remaining evidence, with the laceration being sutured and the arm placed in a sling for one week. The Applicant stated that the pain disappeared in two days, and that this pain had been felt in the top of his right shoulder down to his right hand. The Applicant said that he was on light duties for a week, and that the arm and shoulder felt normal when removed from the sling at the end of that week, and that he felt nothing different at that stage.
The Applicant stated that he was discharged in September 1944 in order to assist on his father's dairy farm, and that the symptoms he experienced post discharge were an occasional twinge of pain, associated with a loss of power and an inability to push upwards with his right arm.
The Applicant described an incident which occurred in 1959, where, when playing cricket with his son, aged 14, he felt a sudden pain in his right shoulder while bowling overarm.
MEDICAL EVIDENCE
On 6 March 1944, Squadron Leader McManis described the Applicant's injury as laceration of right arm extending into the muscle, that it was unlikely to cause permanent ill effects and that he was fit for light duties for one week. (T3 P3). A scar was noted at the back of the right elbow on discharge (T3 P6) Sick Parade records indicate that the Applicant remained on light duties until 5 April 1944, because of a slight wound infection requiring dressing (T3, P11,11A).
Contained within the Applicant's claim for disability pension was a letter from Dr Hehir dated 20 January 1999, stating that the Applicant had been treated for a right shoulder rotator cuff tear/calcinosis, which seriously restricted his movement of his right arm and ability (T4, P21). Further, an x-ray of the right shoulder dated 7 January 1999 is reported as showing (T4, P22):
"Osteoarthritic changes are present in the gleno-humeral and acromioclavicular joints. There is some superior subluxation of the humeral head in the gleno-humeral joint causing a reduction in subacromial space and a degree of subacromial impingement cannot be excluded".

As part of the Applicant's claim, the Applicant lists his various employments since discharge from the RAAF to his retirement in 1989 as farm hand, general hand, wood storeman, general hand and storeman. (T4, P26).
In a letter dated 6 April 2000, Dr Rowan-Kelly stated that (T10, P56):
"the injury to the right upper arm would most probably have caused the frozen right shoulder and subsequent degenerative changes."

In a medical report dated 11 September 2000, Dr Giblin, a Consultant Orthopaedic Surgeon, in noting that the Applicant had difficulties raising wool bales above his head with his right arm while working in the wool stores between 1949 and 1955, and that the cricket incident occurred in 1959, concluded that (Exhibit A1):
"Given the clinical history of a direct impact, translating also into a traction injury to his shoulder, it would be in my view that this gentleman has sustained a significant soft tissue injury to the shoulder as a result of his War related injury.
This would have lead to a premature onset of post traumatic degenerative changes, resulting in his current condition and as such, it is my opinion that this current condition is there for, War caused.
It would also be reasonable to expect a degree of soft tissue inflammation from such an injury, and the diagnosis of adhesive capsulitis, occurring within six months of the accident, would be a logical causal relationship, from a clinical standpoint

In a supplementary report dated 15 January 2001, and having described that "adhesive capsulitis runs a reasonably benign course for a number of years, but the underlying soft tissue structures are never entirely normal and are more prone to repeat soft tissue injury", Dr Giblin concluded that (Exhibit A2):
"I have read a copy of the report from Professor Sambrook dated 12 September 2000. I am in agreement with him that the onset of the rotator cuff tear was probably in about 1959, but it would also be my view that it would probably not have occurred if there had not been a previous history of injury involving his affected shoulder. That is to say, this gentleman's current shoulder disability would not have been present in its current form or condition had it not been for his original service related injury."

In a medical report dated 27 January 2000, Dr Spencer, a Consultant Rheumatologist, in noting that "I was surprised by the good range of movement of the shoulder and this excludes capsulitis" concluded (exhibit R4):
"Daniel most likely has rotator cuff degeneration of the right and dominant shoulder. It's relationship to the injury in 1944 is very difficult to ascertain as he first seemed to complain of symptoms in 1959 and he has always held a very heavy job either labouring or as a storeman."

Following an x-ray of the Applicant's right shoulder, Dr Spencer states in his report on 25 February 2000 that (Exhibit R4):
"Daniel's x-ray of the shoulder showed a large tear in the rotator cuff as well as complete rupture of the supraspinatus tendon and also subluxation of the biceps tendon." (Exhibit R4)

In a medical report dated 12 September 2000, Professor Sambrook, Consultant Rheumatologist, in stating that the diagnosis in this matter "is a rotator cuff tear with impingement" and that the clinical onset "was probably in 1959, when he developed pain while throwing the ball", concluded that (Exhibit R1):
"As noted above, I consider the rotator cuff tear clinical onset was in 1959. The apparent weakness or loss of function when working above shoulder level soon after the 1944 injury and soon after service are not typical of a rotator cuff tear, although one could not completely this possibility [sic]. I would regard this however as a remote possibility and certainly less likely than not. In contrast the episode described in 1959 is typical of a rotator cuff tear with the onset of sudden loss of function following an episode of injury and the positive response to corticosteroid but subsequent reduction in function."

In a supplementary report dated 7 February 2001, Professor Sambrook, in commenting that the Applicant's "history of loss of power in the shoulder on lifting or reaching for things above shoulder height is not typical of adhesive capsulitis, and I do not think that the evidence points at all to that particular diagnosis", concluded that (Exhibit R2):
"The pathology of adhesive capsulitis is, as the name suggests, a thickening of the capsule by inflammation causing restriction of the movement of the joint. This usually resolves in time, as noted above, over 6-9 months. Dr Giblin implies that underlying soft tissues never returned to normal and were more prone to repeat soft tissue injury. I am not aware of any scientific evidence in respect of adhesive capsulitis that supports this proposition however."

APPLICANT'S SUBMISSIONS

Counsel for the Applicant contended that the Applicant suffers from rotator cuff syndrome and that it is war caused. In respect to the latter, counsel submited that the reports of Dr Giblin clearly define the foundation for such a contention, in that the Applicant's injury in 1944 commenced a process whereby the Applicant became more prone to subsequent injuries, and that the current shoulder disability would not have been present in its current form or condition had it not been for his original service related injury. Further, as a consequence, the Applicant contended that the appropriate impairment rating is 20 points.
RESPONDENT'S SUBMISSIONS
The Respondent contends that the correct diagnosis in this matter is rotator cuff syndrome right shoulder, that the Applicant was first aware of a shoulder condition in 1948 (claim application), and that following an incident when throwing a ball in 1959, treatment was given by Dr Fenaway.
The Respondent contended that the Applicant does not meet the requirement of SoP Instrument No 84 of 1997, in that the factor requiring onset within 30 days of service related trauma is not satisfied. Accordingly, the Respondent contended that the rotator cuff syndrome of the right shoulder is not a war caused injury.
CONSIDERATION AND FINDINGS
In considering this matter, the Tribunal acknowledges the particular evidence of the Applicant in relation to the original injury in March 1944, his account of the effects of that injury, the subsequent injury in 1959, and the sequelae arising from that injury. The Tribunal accepts that the Applicant's evidence has retained a relevant consistency over time. Further, the Tribunal does accept that the Applicant first noticed some weakness in power of his right arm when extended upwards, in 1948 or thereabouts, as indicated in his claim form. The Tribunal also accepts that the injury in 1959 involving the ball incident while the Applicant played cricket with his son, was a matter which required him to attend a doctor and receive medical treatment. Further, the Tribunal acknowledges that the Applicant was involved in a range of general labouring/storeman type duties following his discharge in 1944 until his retirement in 1989.
In analysing such information, the Tribunal concludes that the Applicant did suffer an injury as described to his upper right arm on 6 March 1944. Further, the Tribunal concludes that on the balance of probabilities, the injury, by its very nature did involve the Applicant's right shoulder as evidenced by his description of pain. Therefore, having reviewed both the available documents tabled at the time and having heard the Applicant's evidence, the Tribunal concludes that the Applicant's injury healed and that there was no associated symptomology until 1948 when he noticed the symptoms of some loss of power in the right upper arm when extended. Further, the Tribunal notes further evidence of this power loss, in the Applicant's description of handling wool bales, when working in a wool store between 1949 and 1955.
Further, the Tribunal notes the cricket ball incident in 1959 and concludes that the Applicant's current symptomology relate to this injury, and the further degenerative changes that have occurred as a consequence of this injury. In noting the various medical opinions of the doctors, namely Drs Hehir, Spencer, Giblin and Sambrook, the Tribunal finds that the diagnosis in this matter is rotator cuff syndrome of the right shoulder. It is noted that the medical opinions are supported by the radiological findings of an x-ray of the right shoulder in January 1999.
Further the clinical evidence in this matter points, in the opinions of Professor Sambrook, Drs Spencer and Giblin, to the clinical onset of the symptomology of the rotator cuff syndrome of the right shoulder occurring after the cricket ball incident in 1959. The Tribunal, in accepting these opinions, concludes that the clinical onset of the rotator cuff syndrome did commence after the cricket ball incident in 1959.
The Tribunal notes the opinion of Dr Giblin, which in effect states that the 1944 injury made the Applicant's right shoulder more prone to the subsequent injury, in that the Applicant suffered an acute capsulitis at the time of the early injury. The Tribunal, in considering this issue, also notes the opinions of Professor Sambrook and Dr Spencer that a diagnosis of acute capsulitis cannot be supported in the presence of a full range of passive movements of the right shoulder and the Applicant's history of his return to full pain free functions after the injury had healed (April 1944) until at least 1948. The Tribunal therefore concludes, that for the very reasons expressed by Professor Sambrook and Dr Spencer, on the basis of reasonable satisfaction, the Applicant did not suffer from acute capsulitis of his right shoulder following the original injury in 1944 and subsequently. This is further borne out in the Tribunal's view by the nature and effect of the Applicant's work activities over the ensuing 44 years.
Having concluded that the Applicant has a diagnosis of rotator cuff syndrome of the right shoulder, the Tribunal, for the injury to be considered on the balance of probabilities to be connected with the circumstances of his service, must find evidence of a trauma to the right shoulder and a factor contained with factor five of SoP Instrument No 84 of 1997, concerning Rotator Cuff Syndrome to be present.
In turning to the SoP Instrument No 84 of 1997, the Tribunal notes the definition of trauma to the shoulder in factor 7, and factor 5(a) as stated.
"7…
trauma to the shoulder" means an injury to the shoulder region that causes to develop, within 24 hours of the injury being sustained, acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the shoulder joint, attracting ICD code 812.0, 812.1, 831, 880 or 959.2. The acute symptoms and signs must have lasted for a continuous period of at least three days immediately after they arose, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, supporting in a sling, anti-inflammatory medication, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered.
…
5 …
(a) "suffering trauma to the shoulder on the affected side within the 30 days immediately before the clinical onset of rotator cuff syndrome; or
…"
The Tribunal has already concluded that the injury in March 1944 involved trauma to the Applicant's right shoulder. However, on the evidence before it, it is clear to the Tribunal that factor 5(a) is not satisfied, as the clinical onset of the rotator cuff syndrome of the right shoulder did not occur until after a further incident in 1959.
Further, it is evident to the Tribunal that Dr Giblin in his opinion relies upon the Applicant suffering an episode of adhesive capsulitis following the trauma to this left arm in 1944. The Tribunal finds that following an examination of the Applicant's symptomology at that time and thereafter, that is within six months, and the opinion of Professor Sambrook, that a diagnosis of adhesive capsulitis cannot be made prior to the Applicant's discharge in November 1944. Further in the presence of a passive full range of movement found by both Dr Spencer and Professor Sambrook, and their respective opinions, a diagnosis of adhesive capsulitis in this matter is excluded by the nature of the evidence available.
Similarly, the Tribunal, in reflecting upon Dr Giblin's opinion, that the injury of March 1944 was a significant soft tissue injury to the Applicant's right shoulder which somehow never returned to normal and made the Applicant more prone to repeat soft tissue injury, concludes that such an opinion is a hypothesis which must remain as such. In so finding, the Tribunal notes that there is no definitive clinical evidence to support such a proposition, and also notes the statement by Professor Sambrook, that he is not aware of any scientific evidence in respect of adhesive capsulitis that supports this proposition.
Finally, the Tribunal, in considering whether the symptoms of weakness when working above shoulder level experienced by the Applicant post service (circa 1948) may have been symptoms of a rotator cuff tear, finds that they were not. The Tribunal makes this finding in the light of the Applicant's work history from discharge in 1944 to the cricket ball incident in 1959, and his apparent capacity to undertake such work, with the clinical onset of rotator cuff syndrome occurring in 1959 following the cricket ball incident. In making such a finding, the Tribunal relies upon the opinions of Professor Sambrook and Dr Spencer, in preference to that of Dr Giblin, for the reasons that the former two doctors' opinions are consistent with the clinical facts as outlined and the diagnosis made.
Following the considerations and findings outlined, the Tribunal finds that the Applicant has failed on the balance of probabilities to satisfy any factor, and particularly factor 5(a) nominated in SoP Instrument No 84 of 1997, concerning rotator cuff syndrome. As such, the Tribunal concludes that the applicant's rotator cuff syndrome of the right shoulder cannot be considered to be connected to his war service, and that his claim was correctly refused.
DETERMINATION

The Tribunal determines that the decision under review be affirmed.
I certify that the 35 preceding paragraphs are a true copy of the reasons for the decision herein of DR J D CAMPBELL, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  1 May 2001
Date of Decision  15 June 2001
Solicitor for the Applicant         Mr Neil Dawson
Solicitor for the Respondent    Mr Peter Godwin