EARLE MEMBREY and REPATRIATION COMMISSION
[2009] AATA 942
•9 December 2009
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2009] AATA 942
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/3622
VETERANS' APPEALS DIVISION ) Re EARLE MEMBREY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal
Mr John Handley, Senior Member
Dr Kerry Breen, Member
Date9 December 2009
PlaceMelbourne
Decision The decision of the Veterans' Review Board made on 11 April 2008 is affirmed.
(Sgd) John Handley
Senior Member
VETERANS' ENTITLEMENTS – Applicant fell onto his outstretched left arm during service in South Vietnam – severe dislocation of left elbow and ulnar nerve lesion resulting – osteoarthrosis of left shoulder later diagnosed and claimed – SOP 31 of 2005 and factor 6(g) considered – whether applicant suffered a trauma to his left shoulder – virtual impossibility in satisfying definition at paragraph 9 of the SOP – decision affirmed – recommendation to consider review of the definition
Veterans’ Entitlements Act 1986 (Cth) s 196B(2) and s 196W
Legislative Instruments Act 2003 (Cth) s 5
Arnott v Repatriation Commission [2001] FCA 262
Connors v Repatriation Commission [2000] FCA 783
Harris v Repatriation Commission (2000) 31 AAR 270
Harris v Repatriation Commission [2000] FCA 1687
Knight v Repatriation Commission [2002] FCA 103
Mason v Repatriation Commission [2000] FCA 1409
Repatriation Commission v Deledio (1998) 83 FCR 82
Statements of Principles Instrument No 31 of 2005
REASONS FOR DECISION
9 December 2009 Mr John Handley, Senior Member
Dr Kerry Breen, Member
1. Mr Membrey, the applicant in these proceedings, applies to review a decision made by the Veterans' Review Board (VRB) on 11 April 2008 which affirmed a decision previously made by the respondent on 6 August 2007 to refuse his claim for acceptance of osteoarthrosis of the left shoulder and left rotator cuff syndrome.
2. The applicant is presently 62 years of age and was a member of the Royal Australian Air Force (RAAF) between 1967 and 1979. He served as a telecommunications technician in the No 2 Squadron in South Vietnam between 15 April 1970 and 14 April 1971. He presently receives disability pension at 60 percent of the general rate by reason of the accepted conditions of osteoarthrosis of the left elbow, dislocation of the left elbow and left ulnar nerve lesion.
3. The applicant asserts, by this review, that he suffered injury to his left shoulder at the same time as he injured his left elbow. The shoulder injury progressively deteriorated and has been diagnosed as osteoarthrosis.
4. On 22 February 1971 the applicant was sitting on a railing on the edge of a balcony in the mess area at Phan Rang Air Base. The balcony was located approximately six feet above ground level. The applicant overbalanced and fell to the ground. His left arm was outstretched to protect his fall however he struck a metal spike fixed to the ground. He did not lose consciousness but there was a large open wound on the inside of his left elbow. The elbow was also dislocated. The applicant described his pain, then, as 10/10.
5. Within a few minutes he was located by US service persons who transported him by jeep to the Phan Rang Field Hospital. He received painkilling injections, his arm was bandaged and it was immobilized. The next day he was taken by helicopter to the Cam Ranh Bay Field Hospital managed by United States personnel. Painkillers were administered, the wound was washed and the elbow was then snapped back (the applicant's description). The applicant said he was asked to place a handkerchief in his mouth. Two orderlies then held the upper part of his body and a third orderly took hold of his left wrist and his arm was forcefully stretched. By that procedure, the applicant said his elbow was repositioned.
6. Thereafter the arm was swollen for a few days and was placed in a full arm plaster cast. He was discharged on 7 March 1971 and returned to Phan Rang Base where he worked light duties for approximately six weeks. His arm was placed in a sling. The applicant then recalled that he had a numb sensation in the fingers of his left hand.
7. None of the above circumstances are in dispute. As referred to above, the issue by this review is whether the applicant then suffered an injury to his left shoulder which has given rise to osteoarthrosis.
8. In a statement of 1 August 2008 the applicant said that he was preoccupied with the elbow injury immediately following the fall. . . I was however also aware of pain and limitation of movement in the shoulder. Later in the same statement he said I recall suffering pain in the shoulder whilst my arm was in the sling and whilst I was on light duties although the predominant symptoms were in the elbow joint. Over time the symptoms in both the left elbow and left shoulder settled.
9. In evidence (Trans. p18) the applicant was questioned about the shoulder as follows:
When did you notice, first notice, this stiffness in the shoulder?---Virtually straight
away.
Straight away when?---After I came out of hospital, I reckon.
Okay. When you came out of hospital, were you still receiving any pain treatment?
Any mediation for painkilling?---No.
Can you describe whereabouts in the shoulder you were feeling the pain, if you can
recall? If not that's okay?---Sort of, like, a deep ache. Like it had been twisted up
the hill and back.
Sorry, a deep ache?---A deep ache.
10. Later the following evidence is recorded in the Transcript at page 19:
So did you complain to anybody about the shoulder problem at that time?---No, I didn't.
Why not?---Because I was concentrating more on the elbow.
Why was that?---It was my biggest worry.
11. In his statement and in evidence the applicant said the symptoms in his left elbow and left shoulder gradually settled however he did thereafter favour his dominant right arm.
12. On further examination the applicant said that he had stiffness in his shoulder between the time of the fall and the time that the plaster was removed and was also aware during that time that he did have pain. Additionally he said that the shoulder pain became more noticeable at or about the time that he reduced and eventually ceased consumption of painkilling medication which had been prescribed for his elbow injury. The painkilling medication ceased whilst he remained a patient at Cam Rang Bay.
13. On discharge from service the applicant worked with his father in a television repair and installation business in rural Victoria. He described the work as being heavy and he favoured his dominant right arm. During the 1990's he said he noticed a gradual deterioration in his left shoulder (statement at page 2). In 1999, the applicant was installing a Sky television system together with a satellite dish in Ararat. Part of the job required him to drill through concrete using a percussion drill with the bit being 18 inches in length and half an inch in diameter. The drilling occurred over a period of between 30 and 45 minutes. The hole was being drilled horizontally and the applicant described force being applied to the drill by his right hand and shoulder and the drill being held or rested in his left hand. A few days later when duck shooting and when in a similar posture, the applicant said he had terrible pain in his left shoulder and was unable to hold his shotgun.
14. In the context of those symptoms appearing 28 years after the incident at Phan Rang, the applicant said, and in response to evidence he gave to the VRB, that he had suffered shoulder pain before 1999, that it was not of a severity to cause him to attend a doctor, that it would have been a few years before 1999 and it was not decades before 1999 (Trans. p36‑37). However, by way of explanation, in re-examination, the applicant said that prior to the drilling incident in Ararat he had been:
Feeling the arthritic business coming on, I hadn't twigged that there was any connection between the elbow injury and the shoulder injury itself, that it sort of, it had gone out of my mind. When I started thinking about it this right arm has done all the work. The shoulder is fine, I can still do anything with it and the left shoulder is the one that is giving me all the hassles. And the only thing that has given it a hard time was the fall in Vietnam that I can remember.
15. In 2005 the applicant made a claim on a policy of personal accident or illness taken out by him with Elders Insurance. In the claim form he disclosed that he first received treatment for a left shoulder injury in June 2000 and the claim then made was for a torn left shoulder which occurred on 13 April 2005 in the course of his work when lifting a large television. The claim was supported by Mr Paul Kierce, an orthopaedic surgeon in Portland who had been treating the applicant since 2000. The claimed injury was chronic tear rotator cuff left shoulder; dorsal spondylosis; osteopaenia. Mr Kierce recorded that those symptoms first became evident in early 2000 and November 1999 recurrence 2004. The claim was accepted by the Insurer and compensation monies were paid.
garry grossbard
16. Mr Grossbard is an orthopaedic surgeon and the head of orthopaedic surgery at Box Hill Hospital. He examined the applicant on one occasion and provided a report of 29 March 2009.
17. Mr Grossbard took a history of the applicant suffering stiffness and pain in his left shoulder following the fall during service. He was aware that the applicant's elbow had been dislocated and subsequently reduced by treatment. He was also aware that the arm was immobilized in a plaster cast. It was not his opinion that the reduction of the elbow was responsible for a subsequent shoulder injury.
18. Mr Grossbard was not aware of an opinion expressed by Dr Steven Hall, a rheumatologist, in a report of 1 April 2009 obtained at the request of the respondent. That report concluded that it was speculative that the shoulder injury was a consequence of the fall in Vietnam and the subsequent report of symptoms only commenced 29 years after the fall. It would appear that Dr Hall was also influenced by the absence on radiology of rotator cuff disease having regard to an ultrasound taken in 2000.
19. Mr Grossbard said that he obtained a history from the applicant that there was something wrong with his shoulder from the start. He thought the applicant, being 62 years of age, was very young to have an osteoarthritic shoulder especially with his rotator cuff being intact. He said osteoarthritic shoulders are commonly seen with persons who have a torn rotator cuff and usually with persons who are older. It was his opinion that the applicant had a capsule tear at the top of the shoulder which is usually indicative of a prior trauma and in the absence of any other evidence of injury he said there was circumstantial evidence suggesting that the fall and the osteoarthrosis was related. He was aware that the hospital notes were deficient in reporting a shoulder complaint but said a compounded dislocated elbow would be the focus of attention by those treating the applicant.
20. Mr Grossbard was aware that the applicant had been using a hammer drill to drill a hole in concrete and had also complained of pain when using his shotgun a few days later. He said those activities would have stirred up something that was brewing. He thought that the applicant had previously suffered injury and the drilling of concrete and the use of a gun would not have been the cause of his arthrosis.
21. On balance Mr Grossbard was of the opinion that the shoulder injury suffered by the applicant was consistent with an axial force being transmitted into the shoulder from the elbow at the time of his fall. He said there was a tenable hypothesis connecting the pathology with the injury based on the description of events given to him by the applicant. He said there was no other way of providing a positive opinion of connection between service and left shoulder injury, in the absence of clinical notes, other than the description given to him by the applicant.
22. In cross examination Mr Grossbard said that the symptoms following the episode of drilling concrete and holding the gun pointed to the applicant having a pre‑existing shoulder injury. He thought the pain then experienced was more related to the applicant's posture by him supporting the weight of the drill and the weight of the gun in his left arm, but force being applied through his right arm and shoulder. Additionally, it was his opinion that the applicant's work history subsequent to Vietnam, having regard to the description of injury given to him, caused temporary exacerbations from time to time with intervening periods being relatively pain free. It did not follow, he said, that the invalidity now by reason of the shoulder injury was by reason of it having been caused by, or associated with, the self employment that the applicant had undertaken. He reaffirmed that his opinion was based on the description given to him of the fall, by the applicant, especially the complaint of initial stiffness in the shoulder. Mr Grossbard was of the opinion that the applicant probably did suffer a significant injury in service which caused a disease process to commence, which may not have been particularly symptomatic but which ultimately became painful. He said that scenario is typical with persons that he treats with osteoarthritic knee and hip injuries.
23. Mr Grossbard acknowledged that the clinical records did not refer to shoulder injury or complaint of injury yet he was critical of the reported absence of nerve damage when it was obvious that there had been an injury to the ulnar nerve. He acknowledged that if the applicant had suffered a severe traumatic shoulder injury he would expect that it would have been noted and reported but it would largely depend upon the applicant's complaint. He said the applicant only complained to him of having then suffered stiffness in the shoulder. He thought that the forces applied to the shoulder would have been significant and the reference in the clinical notes to a fractured coronoid process points to a hyper extension injury at the elbow. He said it was impossible to determine whether the axial force in the left arm was by the arm striking the stake or the ground (with his arm in an outstretched position) but it was likely that the applicant's left arm was behind him because in his experience a dislocation of the elbow occurs in that manner. He thought that the immobilisation of the applicant's arm, resting it in a sling and his consumption of analgesia may have masked a shoulder injury and would disguise pain in the shoulder.
mr paul kierce
24. Mr Kierce previously practiced as an orthopaedic surgeon but now conducts a medico-legal practice only. He first consulted the applicant on referral from Dr Edmonds on 7 July 2000. In his clinical notes he recorded that the applicant presented with a left shoulder injury and the first trouble with it was in November 1999 after an episode of drilling concrete and later having difficulty holding a rifle. He also obtained a history of left shoulder pain after working at the Hamilton Hospital where he was required to crawl under floor beams.
25. Mr Kierce has provided six reports which are found within the T‑documents. Two reports had been sent to the general practitioner, Dr Ford (who replaced Dr Edmonds), two reports had been forwarded to the Department of Veterans' Affairs, one report has been reported to Elders Insurance an another report has been made available to the applicant to assist him in the claim made initially for acceptance of the shoulder injury.
26. After the first consultation with the applicant on 7 July 2000, Mr Kierce attended him from time to time. His reports indicate that cortisone injections were administered from time to time. However by 2005, the applicant was complaining of deteriorating shoulder pain and it was decided that he should undergo surgery which was described as an excision of the outer end of the left clavicle and a left achromioplasty. The operation notes record the presence of osteoarthritis in the left achromio clavicular joint which was causing rotator cuff impingement. The anterior end of the left achromium was found to be prominent which was also causing an impingement of the left rotator cuff and calcification was noted in the supra spinitus tendon.
27. It would appear that Mr Kierce did not obtain a history from the applicant of shoulder injury in Vietnam, or indeed having been engaged in service in Vietnam, until 7 September 2005 when his notes record that the applicant enquired of him whether support would be given to a claim for pension arising out of left elbow injury. Mr Kierce later provided a report (10 January 2006) to Elders Insurance in support of an application the applicant was then making for compensation under a private policy of insurance. That report is found at page 76‑81 of the T‑documents and it records that whilst the applicant had suffered a dislocation of his left elbow in Vietnam, without discounting the possibility that there was then some damage to the left shoulder, it was regarded as purely speculative. It was the opinion then expressed by Mr Kierce that the applicant's self employment involving heavy lifting had made a significant contribution to his shoulder injury.
28. In evidence Mr Kierce was given a summary of the evidence that had previously been given by the applicant, namely by having fallen from a balcony in Vietnam onto his outstretched right arm, the subsequent treatment, the many years of self employment and a connection being made by the applicant many years later that his recent shoulder complaints may have had an association with the fall in 1971. Mr Kierce said on the basis of that evidence it was
Highly likely that his shoulder would have been injured in the fall in Vietnam; subsequent [sic] that he aggravated by that drilling episode as you have described; and then that episode with the duck shooting, when the dogs were straining at the leash. So – but he – it is possible that the injury to the left elbow could have caused damage to the left shoulder girdle which he then aggravated in the course of his occupation as has been detailed here.
29. Mr Kierce agreed with the evidence of Mr Grossbard that the applicant probably did suffer an axial force into his shoulder and the dislocation was typical of a person who fell onto an outstretched arm that was behind their body. He also agreed with the opinion of Mr Grossbard that it was unusual for the applicant, being a relatively young man, to have age related degeneration as a cause of his shoulder complaints especially in the presence of an intact rotator cuff.
30. Mr Kierce thought that the nature of the applicant's treatment in Vietnam and the pain that he would be experiencing by his elbow injury would have overshadowed the injury that he then suffered to his shoulder. He thought it was not surprising that there was an absence of notes concerning the left shoulder because the focus of those treating the applicant would have been upon his elbow.
31. In cross examination Mr Kierce acknowledged that on the first occasion he attended the applicant he did not obtain a history of left shoulder injury having occurred in Vietnam. He also acknowledged, having regard to the contents of his report to Elders Insurance in 2005 that he did refer to an elbow injury in Vietnam and despite his reference to an association between that injury and the shoulder being purely speculative, he regarded that description as being the equivalent of a possibility. He also acknowledged that he did report to Elders that he was not aware that the applicant had sustained any definite previous serious injury to his left shoulder but said that comment was not inconsistent with the opinion that he held of a possible connection with the elbow injury.
32. In re‑examination Mr Kierce confirmed that by reason of the summary of evidence given to him has caused him to raise an increased possibility that the left shoulder was injured in the same incident as occurred to dislocate his left shoulder (corrected later to refer to elbow), the manner of the injury and also the manner in which the injury was treated. When he was asked to consider clinical onset, Mr Kierce said that he reported on 10 January 2006 that the applicant suffered from osteoarthritis of his left shoulder joint, chronic inflammation of the rotator cuff and osteoarthritis of the left achromio clavicular joint. He said the osteoarthritis would have come on over a number of years and the rotator cuff came on as a result of the drilling episode in 1999. He said those opinions were confirmed by the findings of an MRI of 29 June 2005 which demonstrated degenerative changes at the gleno-humeral joint as evident by prominent osteophyte formation which indicated longstanding degeneration. He noted that the radiologist reported a type 2 achromia which is a description given to the restriction of space within which the rotator cuff is located.
33. Mr Kierce was of the opinion that the axial forces to which the applicant was exposed would be an impact of his outstretched arm and shoulder striking the stake during the descent or when striking the ground. He said the forces would have been transmitted through the elbow joint and it was quite probable that he did transmit severe force through his upper limb into his shoulder.
stephen hall
34. Dr Hall is a rheumatologist who examined the applicant at the request of the respondent in March 2009. He provided a report dated 1 April 2009.
35. Dr Hall said that the applicant had muscle wasting around his shoulder girdle which was consistent with immobility (of the shoulder) and longstanding rotator cuff tears. He said pretty well everybody who has osteoarthritis of the shoulder has a significant rotator cuff tear. It is most unusual to see osteoarthritis without a rotator cuff tear. He said the osteoarthritis develops as a result of instability in the shoulder (by reason of a torn rotator cuff). He said it was impossible to determine when the tear had occurred. In his experience a rotator cuff tear can be a naturally occurring phenomena and 40 percent of persons who are 60 years of age are likely to have rotator cuff tear disease who have never had shoulder pain. Put another way, he said that rotator cuff disease and a tear of the rotator cuff in the absence of trauma are part of a normal process of ageing. Dr Hall was of the opinion that the clinical onset of the shoulder pain suffered by the applicant was in the late 1990's.
36. Dr Hall was unable to distinguish the cause of the shoulder pain, that is to say, the applicant could have suffered pain by reason of the osteoarthritis, rotator cuff disease, prior achromio clavicular osteoarthritis (before the surgery) and possibly pain by reason of a disruption of the labrum.
37. Dr Hall said that he could not find any record in any of the clinical material from Vietnam of shoulder injury at or about the time of the elbow injury or subsequently whilst it was being treated. He acknowledged that any shoulder pain could have been subsumed by the attention being given to the elbow however he said that it would be expected that some record would be made of any complaints concerning the shoulder or subsequently by physiotherapists or treating doctors.
38. Dr Hall said that the applicant's complaint of a deep ache in his shoulder following the fall in Vietnam could have been caused by his ulnar nerve injury. He said that would cause excessive electrical stimulation which could travel up and down his arm. Additionally, another possibility was of problems in his neck which would give referred pain through his shoulder into his arm. Additionally, having his left arm in plaster was described as being the equivalent of having a heavy weight on his arm which may also have been responsible for shoulder pain.
39. In circumstances where persons suffer osteoarthritis following injury, Dr Hall said there would need to have been a significant rotator cuff injury. When that occurs the shoulder becomes unstable. Typically a patient would present with a shoulder that is immobile and intensely painful.
40. Dr Hall understood that Mr Grossbard was of the opinion that the applicant had a rotator cuff which was intact. However, on closer examination of his report and by him having adopted the conclusions of the radiologist who conducted the MRI in 2005, Dr Hall understood that Mr Grossbard had in fact acknowledged that the applicant had developed rotator cuff tendinopathy and which he had associated with significant achromio clavicular osteoarthritis (refer evidence of Dr Hall in cross examination page 106‑107 of Transcript).
41. In cross examination Dr Hall said that he discounted a connection between the fall in 1971 and the diagnosis in 1999 of osteoarthrosis because of the intervening period of time. He acknowledged that if the pain experienced by the applicant in his shoulder in 1971 settled very promptly it was conceivable that it may not have been recorded and may not have been the subject of treatment post discharge. He accepted that the applicant did have shoulder pain in 1971 and acknowledged that he may have then suffered a horrific injury which had been either overlooked or not been the subject of complaint but he could find no documented evidence of it. He reaffirmed that the injury then would need to have been a significant rotator cuff tear for it to be responsible for the applicant's presentation in 1999 and subsequently. Additionally he said that had there been a significant rotator cuff tear in 1971 he would have expected the applicant to give a subsequent history of complaints of pain.
conclusion and reasons for decision
42. There is no dispute between the parties that the injury suffered by the applicant for which he claims acceptance by this review is osteoarthrosis of his left shoulder. Having read the medical reports lodged in these proceedings and having heard the medical witnesses in evidence we are satisfied that that condition does exist on the balance of probabilities. The applicant initially claimed adhesive capsulitis and rotator cuff disease but those conditions were withdrawn during the currency of the proceedings.
43. During the assessment period the only Statement of Principles (SOPs) issued by the Repatriation Medical Authority was No 31 of 2005 entitled Osteoarthrosis.
44. The hypothesis advanced by the applicant was by reason of him suffering the effects of a fall during his operational service in South Vietnam in February 1971, he suffered a trauma to his left shoulder which was the genesis of osteoarthrosis in that joint.
45. The reasonableness of a hypothesis will be found if the hypothesis is consistent with the template of a SOP. That is, the SOP must contain one or more of the factors that have been determined to exist as a minimum and which are related to the veteran's service. If the hypothesis contains one such factor it cannot be said to be contrary to proved or known scientific facts nor fanciful. If the hypothesis fails to fit within the template it will be deemed not to be reasonable and the claim will not be successful. These considerations are otherwise known as the third step in the analysis prescribed by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82.
46. In this review the applicant relied on factor 6(g) of the above Instrument. The introduction to this paragraph provides that if the factor exists as a minimum a reasonable hypothesis will be raised connecting osteoarthrosis with the circumstances of service.
47. Factor 6(g) is having a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint.
48. Trauma to the affected joint is defined a paragraph 9 of the Instrument as:
. . . a discrete joint injury that causes the development, within twenty-four 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 and that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) surgery to that joint.
49. In Harris v Repatriation Commission [2000] FCA 1687 a Full Federal Court heard an appeal against a single judge (Harris v Repatriation Commission (2000) 31 AAR 270). In that review the veteran claimed acceptance of a lumbar spine injury where the relevant factor incorporated the expression trauma to the lumbar spine which was defined by the applicable SOP (in terms very similar to the SOP being considered by these proceedings) namely; . . . of acute symptoms and signs of pain, tenderness and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week . . .
50. Finn J at first instance decided that the above definition should be read as if the word of which preceded the word pain should also precede the words tenderness and altered. Whilst His Honour also drew attention to the meaning to be given to the word acute (which is not necessary in this review) he concluded that signs and symptoms of each of the three stipulated matters necessitates that there be an indication of or phenomenon evidencing (a sign or a symptom).
51. The Full Court decided that there had been no error made by His Honour and it went further and examined the words symptoms and signs. Noting that the SOP was concerned with medical – scientific evidence (as is prescribed also by s 196B(2) of the Veterans’ Entitlements Act 1986) it referred to Butterworth's Medical Dictionary in comprehending the meaning given to those two words. It noted that the word symptom is to be understood as the subjective feeling by a patient whereas sign was the objective evidence or indication of disease or deformity.
52. In the present application the applicant relied on a statement that he prepared prior to the commencement of the proceedings and he gave evidence. Whilst this part of these reasons continues to focus on the third step of Deledio we are not at this stage making findings of fact. What we are about to do is an examination of whether there is material which exists as a minimum and which points to each element of the factor as defined. It there is, the hypothesis will be deemed as reasonable. If there is not, the hypothesis will not be reasonable and the claim will fail, at this stage.
53. In his statement (A1) the applicant said that he was preoccupied with the elbow injury immediately following the fall. The dislocation and the laceration were obvious. I was, however, also aware of pain and limitation of movement in the left shoulder. That part of the statement does not indicate whether the applicant was aware of pain and limitation of movement in the left shoulder immediately after the fall or at some later time. Later in the statement he said that he recalled suffering pain in the shoulder whilst my arm was in the sling . . . Again that reference does not identify at what point in time during the period where the applicant's arm was in a sling that the shoulder pain occurred.
54. In evidence the applicant was asked (Trans. p18) when did he first notice stiffness in his shoulder and he said virtually straightaway. He was then asked Straightaway when? And he said after I came out of hospital, I reckon.
55. The service medical records (T-docs p11) record the applicant was admitted to the USAF Hospital at Cam Rang Bay on 22 February 1971 and was discharged on 8 March 1971. The applicant was asked to describe the pain that he suffered and he said that it was a deep ache and whether there were occasions when he noticed that pain and he said when moving it. Later (Trans. p39) the applicant said that he was aware of shoulder pain and stiffness during the time that his arm was in plaster. Later he said that he became aware of the pain in his shoulder as the pain in the elbow subsided (Trans. p39). When he was asked when that occurred, he said, I honestly can't remember. Later in cross examination the applicant was taken to the Transcript of Evidence from his appearance before the VRB and in response to some questions put to him by Mr Rudge on behalf of the respondent, he said that he had shoulder pain for a few years before 1999. However, in re-examination he qualified that answer when he said that he had relied on his dominant right hand during his period of self employment subsequent to discharge from service (. . . this right arm has done all the work. . . ) and said that the fall in Vietnam had given his left shoulder a hard time.
56. The decision in Harris which adopted the decision of Finn J at first instance, has subsequently been followed and applied by the Federal Court in Connors v Repatriation Commission [2000] FCA 783; Mason v Repatriation Commission [2000] FCA 1409; Arnott v Repatriation Commission [2001] FCA 262 and Knight v Repatriation Commission [2002] FCA 103.
57. Having regard to the above analysis and to any of the relevant service medical records we cannot find any material which points, within 24 hours of the applicant having fallen onto his left arm, of symptoms and signs of pain and of tenderness and of either altered mobility or range of movement of the left shoulder and which signs and symptoms lasted for at least seven days following onset. There is material which points to the applicant suffering the (subjective) symptoms of pain and stiffness in his shoulder (which for the purposes of this analysis we would regard as being altered mobility or range of movement). We cannot locate any material which points to (subjective) symptoms of tenderness. In concluding this part we can find no material which points to (objective) signs of pain and of tenderness and of either altered mobility or range of movement in the left shoulder. That is to say, we can find nothing which points to objective evidence of disease or deformity or injury within 24 hours of the injury being sustained and which lasted for a period of at least seven days following onset.
58. As Harris stipulates there must be symptoms and signs each of pain, tenderness and either altered mobility or range of movement in the left shoulder within the time frame prescribed by the definition being, within 24 hours of the injury being sustained and then lasting for a period of at least seven days.
59. We are left with no alternative but to conclude that the hypothesis is not reasonable. As Kenny J decided in Connors (paragraph 14) If an essential element in a hypothesis is not raised (or pointed to) by the material before the decision-maker, then that hypothesis is not raised by that material. . .
60. In reaching this conclusion we were mindful of the many occasions during the evidence where the applicant referred to being overwhelmed by the severity of the left elbow injury, the consequent and enduring pain and the painkilling medication which was prescribed and which he consumed. It was suggested that the effects of trauma to his shoulder were overwhelmed or masked by the attention given to, and the treatment of, his left elbow. He went one step further and said that he was also concentrating on his left elbow and he acknowledged that he did not make complaint of his left shoulder. We accept as a fact that the applicant is a witness of truth and we have no reason to doubt the evidence that he gave. He may well have had symptoms of pain and tenderness and either altered mobility or range of movements in his left shoulder within seven days of the fall which may not have been obvious or which he dismissed, or indeed now, 39 years later which he has forgotten. Whilst not ignoring the absence of any signs of pain and tenderness and either altered mobility or range of movement, we are not able to make assumptions which would permit a finding at this third Deledio stage of the hypothesis being reasonable. As Kenny J decided in Connors, if a hypothesis assumes the existence of a fact and is reasonable, then the assumption must be one that is pointed to by the material before the decision-maker (paragraph 19) – (refer also Repatriation Commission v Stares [1996] FCA 1510). In Knight Gray J decided (paragraph 48):
The assumption of facts does not extend to assuming the occurrence of events which, if they had occurred and had been known to the decision-maker, would have caused the material to point to a reasonable hypothesis. In other words deficiencies in the material cannot be made good by the assumption in favour of a veteran that there must have been a reasonable hypothesis.
61. Parts (a), (b) and (c) of the definition (reproduced at paragraph 48) which might ameliorate the earlier provisions – are of no benefit to the applicant. The joint in issue is the shoulder. The left arm was immobilized and there is no raised material pointing to the shoulder being injected or having surgery upon it, by medical intervention.
62. We have concluded by the above reasons that the applicant fails at the third Deledio stage. The decision under review must in those circumstances be affirmed.
footnote
63. In making the comments that follow below we are of course mindful that SOPs are items of delegated legislation (refer s 196W of the Act and s 5 of the Legislative Instruments Act 2003). We are also mindful that the Repatriation Medical Authority has a legislative responsibility to determine and publish SOPs by reason of sound medical scientific evidence in support (refer s 5AB(2) of the Act).
64. We are also mindful that the Repatriation Medical Authority may, either by receipt of a request or by its own initiative, review existing SOPs and determine whether a new or amended Instrument should be published (refer s 196B(7) of the Act).
65. We are also mindful in the comments that follow, and which we make without any disrespect to the members of the Repatriation Medical Authority, that the duty and responsibility of this Tribunal is to apply and interpret the law rather than comment upon it.
66. However, it is our belief that the applicant in these proceedings has been exposed to a definition within the Instrument which by his circumstances has denied him the opportunity to effectively establish that his hypothesis is reasonable. If we had been able to make that finding, we are confident that we would not have been satisfied beyond reasonable doubt that the left shoulder injury was not war-caused, that is to say, we would have found that the negative onus under s 120(1) of the Act would not have been established.
67. The applicant was seeking acceptance of a very severe injury which has not been relieved by surgery and over which he faces the prospect of a left shoulder replacement. His working life has been reduced, he is in severe pain and he has limited movement of his left arm. The injury is the consequence of a disease process which commenced by a traumatic episode 38 years previously. The definition analysed above compels him, as a matter of law, to satisfy each element within it. We regard that as a practical impossibility in circumstances where it would reasonably be expected that he would have imperfection of memory, he was overwhelmed by the effects of the left elbow injury and the absence of the clinical notes from the USAF Hospital where he was an inpatient for two weeks. In our experience in review of many other veterans' applications, attempts by the respondent (or by the agency with whom it contracts to conduct research) to obtain records from the United States are either impossible, or are denied, or both. It may be that if those notes were discovered that there was a recording of objective signs of pain and tenderness and either altered mobility or range of movement. Additionally, there may have been a recording of the subjective symptoms as expressed by the applicant of pain and of tenderness and of either altered mobility or range of movement.
68. We would also suggest that the definition does not envisage that immobilizing an injured joint might also immobilize an adjacent joint, in effect, concealing an injury in that (adjacent) joint. We think that immobilizing the applicant's elbow in a full arm cast and having his arm supported by a sling had the effect of immobilizing the shoulder. The definition in its present terms only recognises the intervention described at (a), (b) and (c) arising out of trauma to that joint, a reference, in this case, to the elbow only. We think that shoulder symptoms would have been reduced and signs would be absent (refer paragraph 51 earlier) by the arm being immobilized and, no doubt, by the consumption of pain killing medication. Support for these observations was given by the medical witnesses.
69. We think that the expectation of veterans having to satisfy a definition expressed in the terms within the Instrument under review by these proceedings of an injury which is the consequence of a disease process (having commenced 38 years earlier) is onerous, probably impossible and beyond the beneficial manner in which veterans' legislation should be applied.
70. With respect, we would urge that attention be directed to the definition in its present form and should a review be conducted of this Instrument and others where a similar definition appears that consideration be given to amendment.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of:
Mr John Handley, Senior Member and
Dr Kerry Breen, MemberSigned: Grace Carney Personal Assistant
Dates of Hearing 10 and 11 November 2009
Date of Decision 9 December 2009
Counsel for the Applicant Ms C Serpell
Solicitor for the Applicant Williams Winter
Departmental Advocate Mr K Rudge
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