Francis Ockwell and Repatriation Commission
[2013] AATA 44
[2013] AATA 44
Division VETERANS' APPEALS DIVISION File Number
2012/1391
Re
Francis Ockwell
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Deputy President S D Hotop
Date 31 January 2013 Place Perth The decision under review is affirmed.
....................[sgd]...............................................
S D Hotop, Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – veterans’ entitlements – disability pension – applicant rendered defence service in Royal Australian Navy from 1968 to 1988 – applicant performed heavy marine engineering tasks in course of defence service in period 1973-1984 – applicant suffered osteoarthritis in right wrist in 2008 – Statement of Principles concerning osteoarthritis – Statement of Principles does not uphold contention that applicant’s osteoarthritis of right wrist on balance of probabilities connected with defence service – applicant’s osteoarthritis of right wrist not defence-caused – decision under review affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth), s 5D(1), s 70(5), s 120(4), s 120B(3), s 196B(3) and s 196B(14)
Statement of Principles concerning osteoarthritis No 36 of 2011
Statement of Principles concerning osteoarthritis No 14 of 2010
REASONS FOR DECISION
Deputy President S D Hotop
31 January 2013
Introduction
Francis Ockwell (“the applicant”) served in the Royal Australian Navy (“RAN”) from 7 July 1968 to 17 October 1988. He rendered “defence service”, for the purposes of Part IV of the Veterans’ Entitlements Act 1986 (Cth) (“VE Act”), from 7 December 1972 to 17 October 1988.
On 27 May 2010 the applicant made a claim for disability pension under the VE Act in respect of various disabilities including “osteoarthritis in right wrist”.
On 21 January 2011 a delegate of the Repatriation Commission (“the respondent”) decided, inter alia, that “osteoarthrosis of the right wrist” is not defence-caused.
On 15 December 2011 the Veterans’ Review Board (“VRB”) affirmed the delegate’s decision in relation to “osteoarthritis right wrist”.
On 12 April 2012 the applicant lodged with the Tribunal an application for review of the VRB’s decision.
The Evidence
The evidence before the Tribunal comprised:
·the “T Documents” (T1–T16, pp I–XXIII, 1–219) lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (Cth);
·Exhibits A1 and A2 tendered by the applicant; and
·the oral evidence of the applicant.
The Applicant’s Evidence
The applicant confirmed that he had prepared a statement, dated 25 May 2010, in support of his claim for disability pension in respect of his right wrist. That statement is as follows:
“ While serving at HMAS Nirimba in 1970 I sustained a broken right wrist in a motor cycle accident travelling home on leave. This required hospitalisation and I was released to light duties three weeks later. Given my training schedule, I was permitted to progress my final Fitter and Turner test job (locomotive end rod and bearing) with a plaster cast still in place on my right arm. This meant my broken right wrist and sprained left wrist was subject to additional stresses during the healing period by way of using metal work hand tools and machine tools such as lathes and milling machines (that required hand strength to tighten chuck keys etc).
Subsequent to that, my wrists were subject to stresses when carrying out heavy engineering maintenance tasks while serving in HMA Ships Vendetta, Melbourne, Canberra and Adelaide (1973-1987). This work was mainly concerned with removing, refitting and re-installing large machinery and equipment items by hand. The stresses involved were from using large wrenches, hammers, cold chisels, moving heavy loads around machinery spaces and up and down vertical ladders. This work was often carried out in extremely confined areas adding to the stresses and strain on my wrists and body.
In the years since completing Navy service, my right wrist (in particular) has gradually deteriorated to such an extent that I am now unable to do work or recreational activity that places any strain on it.
I became concerned about this in 1992 when I began to suffer from an aching right wrist from simple sporting activity such as playing tennis, squash or golf. There has been gradual deterioration since and to the extent that I now cannot use hand tools or undertake any activity that places loads on my wrists without experiencing severe pain and prolonged aching. It restricts my ability to do any physical work that involves using my hands.” (T4, p 67)
The applicant informed the Tribunal that the motor cycle accident referred to in the first sentence of his statement in fact occurred in July 1972.
The applicant also confirmed that he had prepared a statement for the purpose of this proceeding (Exhibit A2). That statement states (inter alia) as follows:
“ …
The fracture that occurred to my right wrist (in July 1972) was significant to the development of the disease over a working lifetime. …
…
… I maintain my wrist was subjected to excessive loadings leading to the degenerative circumstance over the longer tern (sic). No other employment or recreational activity took place outside of Navy Service caused loadings that would have caused the osteoarthritis and in fact the progressive pain build up over many years actually caused me to stop doing things that I should have been capable of as a matter of course. …
… I have consistently stated my trade as a ‘Fitter and Turner’ was involved with marine engineering maintenance that was arduous and physical (sic) challenging. … Posted to Vendetta in January 1973 until April 1975, I was promoted to Leading Seaman and in turn Petty Officer (on completing my trade) and in all that time worked engineering maintenance tasks. I was hospitalised for two months and subsequently posted to the small boats workshop at HMAS Penguin where I carried out engine overhauls and repairs consistent with my trade until December 1975. I was then posted to HMAS Melbourne in January 1976 until November 1978 was (sic) entirely concerned with Marine Engineering Maintenance. Instructional duties at HMAS Nirimba for six months at the Marine Engineering Maintenance workshop where hands on maintenance tasks were an integral part of teaching apprentices (sic). My next seagoing posting was HMAS Canberra from Commissioning in March 1981 until June 1983 my marine engineering maintenance roll (sic) continued. It was not until June 1984 that my duties and responsibilities became more about instructional, overseeing and management than hands on maintenance. This later stage of my career did include occasions where hands on work was required albeit infrequently.
Prior to the Act coming into being (December 1972) and since the original injury to my wrist, I completed the practical phase of my ‘fitting and turning’ trade mainly concerned with lathe and metal work. This was done at a time when healing was still occurring.
Therefore my contention is that given the factual circumstances of a fracture injury to my right wrist and the subsequent period (immediately thereafter) and including more than 10 years of heavy marine engineering work, consistently climbing shipboard ladders and stairways carrying loads and other work involving undue stress applied to my wrist, it should be reasonably concluded that the onset and progression of osteoarthritis occurred. This degenerative change may have taken many years to manifest itself into a state of unbearable pain, none the less my contention is that the injury was the route (sic) cause and the subsequent work during the eligible period of service under the Act directly exacerbated and contributed to the end state.
…”
The applicant also tendered in evidence a document headed “List of Heavy Marine Engineering Tasks” (Exhibit A1) prepared by him and comprising a list of 31 descriptions of such tasks which he said that he performed on the various ships to which he was posted in the period 1973–1984.
The applicant gave oral evidence to the following effect:
·after fracturing his right wrist in July 1972 he commenced to perform engineering duties in August 1972, while his wrist was still in a plaster cast, in the course of completing his fitter and turner training;
·he commenced “heavy” engineering tasks in January 1973 when posted to HMAS Vendetta which was then “in refit”;
·when performing those tasks he was “always aware that [his] wrist was weaker than it should have been”;
·the “list of heavy marine engineering tasks” which he prepared for this proceeding (Exhibit A1) gives a “broad example” of the types of tasks he performed during his RAN service – climbing vertical ladders each day was “one of the most strenuous activities” involving his wrist;
·the “heavy marine engineering tasks” (as listed and described) were performed by him throughout the period from 1973 to 1984;
·he performed some of those tasks “frequently”, while he performed others on an “occasional” basis, namely, when a ship was in “operational mode”;
·from 1984 to 1987 his RAN duties involved training others as an instructor but he still performed “daily inspection tours” of ships and the climbing of vertical ladders;
·after leaving the RAN he worked at a power station for six months but did not carry out any defect maintenance or other “heavy” tasks;
·he then worked at a shipyard/dockyard in a “purely administrative role”;
·from 2001 to 2007 he worked at HMAS Stirling as a manager and co-ordinator of maintenance activities;
·in the course of his post-RAN employment he performed some heavy tasks, including climbing vertical ladders on ships, but those activities were not of the same “intensity” as those which he performed during his RAN service, and he performed those activities “intermittently”, not “continuously”;
·he has also performed motor vehicle maintenance activities for himself and for friends but only on an occasional basis.
The Relevant Legislation
The VE Act
Section 70 of the VE Act, which deals with eligibility for a pension under Part IV of that Act, relevantly provides:
“ …
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…”
The terms “disease” and “injury” are defined in s 5D(1) of the VE Act as follows:
“ disease means
(a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b)the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; or
(d) a temporary departure from:
(i) the normal physiological state; or
(ii) the accepted ranges of physiological or biochemical measures;
that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).”
“ injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:
(a) a disease; or
(b) the aggravation of a physical or mental injury.”
Section 120 of the VE Act, which prescribes the standard of proof to be applied in making determinations in respect of pensions under that Act, relevantly provides:
“ …
(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.
…”
Section 120B of the VE Act relevantly provides:
“ …
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…”
Section 196A of the VE Act establishes the Repatriation Medical Authority (“the Authority”) and s 196B(1) provides that the “main function of the Authority is to determine Statements of Principles for the purposes of the Act …”. Section 196B(3) provides:
“(3) If the Authority is of the view that on the sound medical-scientific evidence available it is more probable than not that a particular kind of injury, disease or death can be related to:
(a)eligible war service (other than operational service) rendered by veterans; or
(b)defence service (other than hazardous service) rendered by members of the Forces; or
(ba)peacetime service rendered by members;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(c) the factors that must exist; and
(d) which of those factors must be related to service rendered by a person;
before it can be said that, on the balance of probabilities, an injury, disease or death of that kind is connected with the circumstances of that service.
…
Note 3: For factor related to service see subsection (14).”
Section 196B(14) relevantly provides:
“(14) A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…”
The Statement of Principles
Pursuant to s 196B(3) of the VE Act, the Authority has determined Statements of Principles (“SoPs”) concerning osteoarthritis. The SoP which is presently in force is:
·Statement of Principles concerning osteoarthritis No 14 of 2010, as amended by Statement of Principles concerning osteoarthritis No 36 of 2011 (“the current SoP”).
The SoP which was in force at the time of the respondent’s decision of 21 January 2011 is:
·Statement of Principles concerning osteoarthritis No 14 of 2010 (“the former SoP”).
The current SoP relevantly states:
“ …
Kind of injury, disease or death
3.(a) This Statement of Principles is about osteoarthritis and death from osteoarthritis.
(b) For the purposes of this Statement of Principles, ‘osteoarthritis’ means a degenerative joint disorder with:
(i)clinical manifestations of pain, impaired function and stiffness; and
(ii)radiological, other imaging or arthroscopic evidence of loss or articular cartilage or osteophytes.
…
Basis for determining the factors
4.On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that osteoarthritis and death from osteoarthritis can be related to relevant service rendered by veterans or members of the Forces under the VEA, or members under the Military Rehabilitation and Compensation Act 2004 (the MRCA).
Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6.The factor that must exist before it can be said that, on the balance of probabilities, osteoarthritis or death from osteoarthritis is connected with the circumstances of a person’s relevant service is:
…
(j) for osteoarthritis of a joint of the upper limb only, performing any combination of repetitive activities or forceful activities for an average of at
least 30 hours per week, for a continuous period of at least 20 years before the clinical onset of osteoarthritis in that joint; or
…
Other definitions
9.For the purposes of this Statement of Principles:
…
‘forceful activities’ means:
(a) tasks requiring the generation of force by the hand equivalent to lifting or carrying loads of more than three kilograms; or
(b) holding or carrying an object in the hand greater than one kilogram in excess of 10 times per hour;
…
‘lifting loads’ means manually raising an object;
‘relevant service’ means:
(a) eligible war service (other than operational service) under the VEA; or
(b) defence service (other than hazardous service) under the VEA; or
(c) peacetime service under the MRCA;
‘repetitive activities’ means:
(a) bending or twisting of the affected joint; or
(b) carrying out the same or similar movements that involve the affected joint,
at least 50 times per hour;
…”
In the former SoP, para (j) of clause 6 stated:
“ (j) for osteoarthritis of a joint of the upper limb only, performing any combination of repetitive activities or forceful activities for a cumulative period of at least eight hours per day, on more days than not, for a continuous period of at least 20 years before the clinical onset of osteoarthritis in that joint;”.
The Issue
The sole issue for the Tribunal’s determination is whether, in the applicant’s case, osteoarthritis of the right wrist is a defence-caused injury or a defence-caused disease, for the purposes of Part IV of the VE Act.
Analysis
There is no dispute, and the Tribunal finds, that the applicant suffers from osteoarthritis of the right wrist. The Tribunal so finds on the basis of the diagnosis of Dr V H Thorpe included in the applicant’s disability pension claim form and the statement of Dr Thorpe therein that the basis of that diagnosis was that the presence of osteoarthritis had been “seen on X-ray 10/7/08” (T4, p 54). The Tribunal also finds that the applicant’s osteoarthritis of the right wrist is a “disease”, not an “injury”, as defined in s 5D(1) of the VE Act.
As regards the time of “clinical onset” (within the meaning of the current SoP and the former SoP) of the applicant’s osteoarthritis of the right wrist, the Tribunal notes the applicant’s evidence that he “began to suffer from an aching right wrist” in 1992 and that he sought medical advice at that time. There is, however, no medical evidence before the Tribunal to the effect that the applicant was suffering from osteoarthritis of the right wrist in or about 1992 or, indeed, at any time prior to 10 July 2008 (when the presence of that condition was confirmed by an x-ray). The Tribunal notes, furthermore, Dr Thorpe’s statement that the applicant first consulted him about that condition on 9 July 2008 (T4, p 54).
Having regard to the evidence before it, it would be reasonable for the Tribunal to conclude that the applicant had begun to suffer from osteoarthritis of the right wrist prior to 10 July 2008 but the Tribunal is unable, on the basis of that evidence, to determine a precise, or even an approximate, time, prior to 10 July 2008, of the “clinical onset” of that condition. The only definitive finding that the Tribunal is able to make, on the basis of the evidence before it, is that the applicant was suffering from osteoarthritis of the right wrist as at 10 July 2008. Given that the Tribunal is unable, on the basis of the evidence before it, to determine a precise, or even an approximate, date on which the “clinical onset” of the applicant’s osteoarthritis of the right wrist occurred, the Tribunal is content to find that the date of “clinical onset”, within the meaning of para (j) of clause 6 of the current SoP and para (j) of clause 6 of the former SoP, of the osteoarthritis in the applicant’s right wrist, is 10 July 2008.
Pursuant to s 120(4) and s 120B(3) of the VE Act, the Tribunal will be reasonably satisfied that the applicant’s osteoarthritis of the right wrist is defence-caused only if the relevant SoP “upholds the contention that the … disease … is, on the balance of probabilities, connected with” his defence service.
At the hearing the only factor in clause 6 of the current SoP on which the applicant sought to rely was the factor set out in para (j). Pursuant to para (j) of clause 6 of the current SoP, the relevant factor that must exist before it can be said that, on the balance of probabilities, the applicant’s osteoarthritis of the right wrist is connected with the circumstances of his defence service is:
“ for osteoarthritis of a joint of the upper limb only, performing any combination of repetitive activities or forceful activities for an average of at least 30 hours per week, for a continuous period of at least 20 years before the clinical onset of osteoarthritis in that joint”.
Furthermore, pursuant to clause 5 of the current SoP, the factor set out in para (j) of clause 6 “must be related to the relevant service rendered by the [applicant]”, namely, his “defence service” from 7 December 1972 to 17 October 1988.
The respondent was prepared to concede that the applicant had performed, in the course of his defence service, “forceful activities” (as defined in clause 9 of the current SoP) – namely, the “heavy marine engineering tasks” listed in Exhibit A1 – “for an average of at least 30 hours per week” throughout the period 1973 – 1984 (being the period specified by the applicant). The respondent submitted, however, that the factor set out in para (j) of clause 6 of the current SoP was not met in the applicant’s case because, on the basis of the applicant’s own evidence, he had not performed “forceful activities” or “repetitive activities”, as defined in clause 9 of the current SoP, “for an average of at least 30 hours per week, for a continuous period of at least 20 years before the clinical onset of osteoarthritis” in his right wrist, as required by that paragraph.
The Tribunal accepts the respondent’s submission. Although the Tribunal is prepared to accept as appropriate the respondent’s abovementioned concession that the applicant had performed “forceful activities”, as defined in clause 9 of the current SoP, “for an average of at least 30 hours per week” throughout the period 1973–1984, the Tribunal is not reasonably satisfied, on the whole of the evidence before it, that the applicant performed “any combination of repetitive activities or forceful activities for an average of at least 30 hours per week, for a continuous period of at least 20 years” – that is, for at least the period from 1973 to 1992/1993 – as required by para (j) of clause 6 of the current SoP. More specifically, the Tribunal is not reasonably satisfied that the applicant has performed “any combination of repetitive activities or forceful activities”, as defined in clause 9 of the current SoP, “for an average of at least 30 hours per week” since 1984.
As previously indicated, the applicant did not seek to rely on any other factor set out in clause 6 of the current SoP. The Tribunal, furthermore, is satisfied that, on the evidence before it, no other factor set out in of clause 6 of the current SoP is applicable in the applicant’s case.
The Tribunal concludes, therefore, that the current SoP does not uphold the contention that the applicant’s osteoarthritis of the right wrist is, on the balance of probabilities, connected with his defence service, within the meaning of s 120B(3) of the VE Act.
As regards the former SoP, the Tribunal is likewise not reasonably satisfied, on the whole of the evidence before it, that the applicant performed “any combination of repetitive activities or forceful activities for a cumulative period of at least eight hours per day, on more days than not, for a continuous period of at least 20 years before the clinical onset of” osteoarthritis in his right wrist, as required by para (j) of clause 6 of that SoP. Nor is the Tribunal satisfied, on the evidence before it, that any other factor set out in clause 6 of the former SoP is applicable in the applicant’s case.
The Tribunal concludes, therefore, that the former SoP does not uphold the contention that the applicant’s osteoarthritis of the right wrist is, on the balance of probabilities, connected with his defence service, within the meaning of s 120B(3) of the VE Act.
Conclusion
Because neither the current SoP nor the former SoP upholds the contention that the applicant’s osteoarthritis of the right wrist is, on the balance of probabilities, connected with his defence service, the Tribunal, pursuant to s 120B(3) of the VE Act, cannot be reasonably satisfied, for the purposes of s 120(4) of that Act, that the applicant’s osteoarthritis of the right wrist is a defence-caused injury or a defence-caused disease, for the purposes of Part IV of that Act.
Decision
For the above reasons, the decision under review is affirmed.
I certify that the preceding 32 (thirty-two) paragraphs are a true copy of the reasons for the decision herein of Deputy President S D Hotop
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Administrative Assistant
Dated 31 January 2013
Date of hearing 15 January 2013 Representative of the Applicant Mr T Robbins Representative of the Respondent Mr C Ponnuthurai
Compensation and Review Branch
Department of Veterans’ Affairs
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