Humphreys and Repatriation Commission
[2005] AATA 610
•29 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 610
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/53
VETERANS' APPEALS DIVISION )
Re JOHN BOLTON HUMPHREYS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr SC Fisher, Member Date29 June 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ..................[Sgd].......................
SC Fisher
Member
CATCHWORDS
VETERANS’ AFFAIRS – benefits and entitlements – disability pension – whether applicant’s condition of osteoarthritis of the metacarpal joint of the right and left wrists is war-caused – application of Statement of Principles – no causal link between injuries received by applicant during eligible war service and osteoarthritis – condition not war-caused – decision under review affirmed
Veterans’ Entitlements Act 1986 ss 7, 9, 120, 120B, 174 -176, 196B
Secretary, Department of Social Security v Murphy (Federal Court, 29 June 1998, 809/98)
Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248; (2003) 74 ALD 21
Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 Bramwell v Repatriation Commission (1998) 51 ALD 56
Collins v Minister for Immigration and Ethnic Affairs (1981) 36 ALR 598
Schmidt v Repatriation Commission [2004] FCA 1158
Haughey and Repatriation Commission [2005] AATA 189
Kattenberg v Repatriation Commission (2002) 73 ALD 365
Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609
Hillier v Repatriation Commission [2004] AATA 897
Palmer and Repatriation Commission [2005] AATA 2
Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 30 ALD 1
Bushell v Repatriation Commission (1992) 175 CLR 408; (1992) 29 ALD 1
Repatriation Commission v Cooke (1998) 90 FCR 307; (1998) 52 ALD 1
Repatriation Commission v Gosewinckel [1999] FCA 1273; (1999) 59 ALD 690
Deledio v Repatriation Commission (1997) 25 AAR 396; (1997) 47 ALD 261REASONS FOR DECISION
29 June 2005 Mr SC Fisher, Member Introduction And Background
1. Mr John Bolton Humphreys (“the Applicant”) was born on 23 September 1923 and served with the Australian Army from 13 January 1942 until 21 August 1946. The Applicant did not serve outside Australia or in an operational area within Australia. The Applicant was posted to 118 Res Motor Transport Company on 22 February 1942. During that posting, between 22 February 1942 and 18 April 1942, the Applicant was required to crank start motors by hand as part of the daily maintenance routine. The Applicant was struck a number of times on the wrists during this procedure by the crank handle, which he claims led ultimately to the osteoarthritic condition for which he seeks to have the Repatriation Commission ("the Respondent") accept liability.
2. The Applicant applied for a pension on 5 August 2002 under the Veterans’ Entitlements Act 1986 (Cth) for a number of medical conditions, including "collapsed knuckles both wrists left and right", which attracted the medical diagnosis of "osteoarthrosis of the right wrist and left wrist". On 27 November 2002, the Respondent accepted liability for a number of medical conditions but declined to accept liability for osteoarthrosis of the right wrist and left wrist on the basis that these conditions were not related to service.
3. The Applicant sought review of the 27 November 2002 decision from the Veterans' Review Board, which on 1 December 2003 affirmed the decision of the Respondent in relation to the conditions of osteoarthrosis of the right wrist and left wrist. From this decision, the Applicant appealed to the Tribunal on 20 January 2004.
Jurisdiction
4. This appeal is governed by the Veterans’ Entitlements Act 1986 (Cth) (“the Act”). The Tribunal has jurisdiction in this appeal by virtue of sections 174 - 176 of the Act. In these Reasons for Decision, references to statutory provisions are to the provisions of the Act unless the context indicates otherwise.
The Role of the Tribunal
5. The role of the Tribunal is to review the merits of the decision before it: section 43 of the Administrative Appeals Tribunal Act 1975 and Secretary, Department of Social Security v Murphy (Federal Court, 29 June 1998, 809/98, Drummond J). The Tribunal is guided by the norm that it should reach the correct and preferable decision on the basis of the material before it: Ajka Pty Ltd v Australian Fisheries Management Authority [2003] FCA 248 at [33]. The Tribunal is required to stand in the shoes of the original decision-maker and consider all evidence anew, bearing in mind statutory provisions and any significant legal precedent: Bantick and Secretary, Department of Family and Community Services [2003] AATA 472 at [23]. The Tribunal proceeds de novo: Bramwell v Repatriation Commission (1998) 51 ALD 56 at 60 per Weinberg J. The Tribunal must base its decision upon the material that is logically probative of the existence of facts that emerge from the evidence before it: Collins v Minister for Immigration and Ethnic Affairs(1981) 36 ALR 598 at 601.
The Material Before the Tribunal
6. The following documentary evidence was before the Tribunal:
Exhibit 1 Documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (documents T1 – T6).
Exhibit 2Medical report dated 25 August 2005 from Dr Peter Dodd.
Exhibit 3Anatomical drawings.
Exhibit 4Research notes relating to historical vehicles.
Exhibit 5Undated signed statement by John Bolton Humphreys.
7. The Applicant was represented by Mr Glen Mylne of Mylne Lawyers. Exhibits 1 - 5 were lodged on behalf of the Applicant. Mr Mylne provided a Statement of Facts and Contentions to the Tribunal.
8. The Respondent lodged documents T1 to T6 under section 37 of the Administrative Appeals Tribunal Act 1975. These documents were taken into evidence as Exhibit 1. No other exhibits were lodged on behalf of the Respondent.
9. The Respondent was represented by Mr Jeff Kelly, a departmental advocate. The Respondent’s advocate provided a Statement of Facts and Contentions to the Tribunal.
10. Neither party lodged an outline of submissions with the Tribunal. The Tribunal considered carefully all of the documentary and oral evidence before it.
Issues
11. The sole issue in this case is whether the condition of osteoarthritis of the metacarpal joint of both thumbs is war caused within the meaning of the Act.
Evidence For The Applicant
12. The Applicant gave evidence in person. Additional evidence was provided by Dr Peter Dodd, Orthopaedic Surgeon.
Evidence of the Applicant
13. A summary of the evidence given by the Applicant in these proceedings is as follows:
- The Applicant summarised his service history.
- The Applicant described how he had been posted to Army Service Corps, which was responsible for military transport. Some of the tasks that the Applicant had to do were to engage in vehicle maintenance according to a set routine.
- The Applicant described the training he received to crank start military vehicles.
- The Applicant described the occurrence of his left and right wrists being struck by the crank handle in these terms:
- In his evidence in chief, the Applicant said:
Q: Would you try to turn the engine over first to find an exhaust or a compression stroke, when it was at the 6 o’clock position, or not?
A: Oh, well, it was, you know, trial and error, because we didn’t have any instruction on these aspects, and like most of the guys 18 [sic] that I was associated with, none of us had ever seen a vehicle in this fashion at all. We had never driven one, never been involved with vehicles.
Q: And what happened the first time you got hit with a crank handle?
A: Well, I wondered what struck me.
Q: Sorry, explain to the Tribunal what you felt when you got hit by it?
A: Well, I got quite a shock; it is something I wasn’t expecting, and it hurt so much I said to the sergeant, “Look, you know, this has cracked me on the wrist – the thumb, and it’s very painful,” and that’s when he told me just to try again, try again, which I did, and got a couple more.
Q: Did you seek medical treatment?
A: Yes, I did.
Q: Where did you seek that treatment?
A: We had a small RAP regimental aid post, and that was in the camp premises.
Q: Do you have a recollection of whether there was a medical practitioner attached to that regimental aid post?
A: No medical, because I asked this guy when I went to him. I said, “Are you a doctor?” And he said, “No, I was trained as an ambulance man.” So he had some knowledge.
Q: And what did he do for you?
A: Well, he just checked – he mainly checked to see if anything was broken, and he said that it appears to him that I haven’t done any – caused any break there through this.
Q: And did he refer you to a medical practitioner, or arrange for X-rays to be taken?
A: No, he did not.
Q: How many other occasions did you have this experience with the crank handle?
A: Oh, the next day, I had to do – when I went the next day for my session, I said, “Well, my right hand is so sore, I can’t use it. I don’t want to use it. And he said, “Well, use your left hand.” And I said, “Well, I’m not really left-handed,” and I said “I’ll be more clumsy with that than this one.” So I did what I was told, and I sprung a kickback straight away.
Q: And you started the truck on that occasion with your left hand. Did you start it in the same manner as had started it the previous day, that is, standing directly on the crank handle?
A: Yes, yes.
Q: And winding the crank handle from the 6 o’clock position…?
A: Yes.
- The Applicant did not report the injuries to his thumbs or wrists when he was undertaking his medical on discharge in 1946, but he did say that there were some very slight pain in his wrists at that time. The Applicant said that he did not seek any medical treatment for the pain in his wrists.
- The Applicant described his badminton playing activities after he left the Army.
- The Applicant said that he sought medical treatment for his wrists from his family doctor, Dr Peter Flower in 1950. In 1950, the pain was intermittent and more noticeable in cold weather.
- Dr Peter Flower injected both wrists of the Applicant with cortisone, which settled his wrists down for a number of years and he did not seek any treatment for his wrists for a number of years.
- In cross-examination, the Applicant said that he was struck three times by the crank handle on each wrist between the thumb and the wrist.
14. When the Applicant was recalled to give evidence (after Dr John Watson, Orthopaedic Surgeon gave evidence on behalf of the Respondent while the Applicant was present in the hearing room), he was asked whether he had a discussion with Dr Watson in relation to the forces generated by crank-handle. The Applicant said that he did recall mentioning this to Dr Watson during the consultation/examination, but Dr Watson did not say anything in response.
15. In an undated signed statement which became Exhibit 5, the Applicant deposed:
“4. One day Sergent Cross told us that we had to learn how to manually start the truck motor using the crank handle. He told us where the handle was stowed in the truck cab and told us to hump up and get it. He then pointed out a hole at the front of the motor, told us to insert the crank handle and have a go at starting the motor in a clockwise direction. We received no further instructions regarding the procedure for crank starting. I had no prior experience with vehicles and we received no cautions regarding hand cranking as part of our truck training or at any other time.
5. I have always been right handed and on my first attempt to start the motor using the crank handle I used this hand. Once I cranked the handle half way around and it reached the top of its compression, the handle flew forward violently and pulled itself out of my hand. Moments later the handle swung backwards towards my hand just as violently, and before I had any chance to pull my hand out of the way. The handle then struck me hard in the vicinity of the thumb of my right hand.
6. My right hand was extremely painful as a result and when I complained to the sergeant about this injury he told me not to worry about it and to try again. I continued trying to use the crank handle to start the motor and was struck in the vicinity of the thumb of my right hand two more times with similar results.
7. My right hand remained extremely painful and I saw Sergent Cross to request that I have a couple of days off. He ignored this and ordered me to continue with training, telling me to just use the other hand instead.
8. I found it very clumsy trying to use my left hand to crank start the truck motor. After several attempts to do so the crank handle flew out of my left hand in a similar manner as it had the day before, rebounding backwards, hitting me hard in the vicinity of the thumb of my left hand.
9. After several days both hands were still badly bruised and I was still in very bad pain. I went to the RAP one afternoon and the staff there examined my hands and concluded that although no bones were broken, I should take a couple of days off.
10. I then took several days rest before being ordered back to truck training which continued for a further two weeks. My hands remained very painful during this period. I met other drivers during this time who told me of similar incidents and injuries with crank handles which had happened to them.”
Evidence of Dr Peter Dodd, Orthopaedic Surgeon
16. Dr Peter Dodd, Orthopaedic Surgeon, provided a medical report dated 25 August 2004 which became Exhibit 2 in these proceedings. In his report, Dr Dodd opined as follows:
“OPINION:
There is no doubt the diagnosis in Mr Humphreys is bilateral severe osteoarthritis affecting the trapezometacarpal joints. This is significant enough to interfere with his activities of daily living and his recreational activities such as gardening.
Mr Humphreys is stating that the ongoing problems are a legacy of repeated injuries sustained as outlined above.
Carpometacarpal osteoarthritis or trapezometacarpal osteoarthritis is usually a constitutional condition and is common in people of the age of eighty or more. In most cases it is non traumatic and most likely constitutional or genetic. However repetitive injuries to that region of the hand could perceivably cause intra-articular damage which would eventually result in the later development of severe osteoarthritis.
My support for the scenario that this has been directly caused by his war service is not strong but it is a possibility the more likely scenario is that he has a genetic predisposition to development carpometacarpal osteoarthritis and the injuries he allegedly sustained during work service may have been enough to accelerate this process. He is now aged eighty and in severe trouble and I think surgical intervention should be considered.”
17. Dr Dodd gave evidence by telephone, and a summary of what Dr Dodd said to the Tribunal appears next:
18. In his examination-in-chief, after being referred to the report from Dr John Watson of 24 July 2003, Dr Dodd said:
“Yes, I really don’t think there is a great deal of difference between what Dr Watson and I am saying. Both of us agree that he does have severe arthritis in his joint at the base of his thumbs. What Dr Watson is saying that this is probably not related to any injury that has occurred during his service years, and, in particular, probably not related to the kickback from the starter on machinery. That is a reasonably scenario; it is very difficult to prove conclusively that that sort of injury would cause the damage he has. As I’ve said in the last paragraph of my report, my support for the scenario is not strong, and I thought that it was probably due to a predisposition he had to get arthritis there, but I gave him the benefit of the doubt, to some extent, in that he may have had some injuries during war service that could have accelerated this. This is difficult to prove in retrospect, but it is possibility that could be there…
Did he, at the time you examined him, indicate to you how long the pain had lasted that he had to the joint? ---No.
But he did indicate there was a trauma?---He did, using crank handles.
I couldn’t help feeling, in previous evidence – and particularly looking at the evidence given by Dr Watson – that there may have been some confusion between the actual cranking of the vehicle and being hit with the crank handle as a direct source of trauma?---Yes. I was under the impression that if there was an injury to that particular joint, it would have been caused by the crank handle spinning backwards and striking violently in that area of his hand.
That is good, because that is the only definition I want to look at, because I think we would concede that the mere cranking of a vehicle, or even the kick back, when holding the crank handle, is not sufficient to meet the criteria. There must be a direct contact as a trauma between the crank handle itself, and the part of the body that is affected. So given that concession, you do say that your support for the scenario, that this has been directly caused by his war service, is not strong, but it is a possibility?---That depends on how well documented the injuries were, and it is to both thumbs, which, again, makes me question the support for the scenario.
In that this condition is likely to occur on a bilateral basis?---Most likely. I would think if that he was struck by the crank handle, it would be to one or either.
He did give evidence that he had, in fact, been struck on both hands. What had happened, he is right-handed. He had been struck on the right hand, and then he was directed to crank the vehicles with the left hand, with the same result, that he suffered trauma to the left hand as well?---Yes, that – I appreciate that is trauma, but there is no evidence that that is actually joint injury that would lead to later osteoarthritis.
What evidence would you expect to find?---Similar to what you described in that section you were mentioning before.
Right. That is where we looked at the definitional issues - - -?---The definition, yes.
So he would have to complain of symptoms and signs of pain and tenderness, and altered mobility or range of movement of the joint?---He would, because if we are raising a scenario that he had a significant joint injury to both his thumbs at various times, in order to disrupt that joint to the extent where it would develop osteoarthritis, purely from the traumatic side, rather than any constitutional side, then one would have to propose significant joint injuries, which would have taken at least, I would think, 10 days – 2 weeks, to get over.”
19. In cross-examination, the following exchange occurred:
“Q: You said earlier that your opinion and Dr Watson’s opinion are basically on all fours?
A: Yes.
Q: And you also stated that Mr Humphreys’ condition is probably due to a genetic predisposition?
A: Well, that is the usual scenario for this sort of osteoarthritis, which picks out one joint in the hand and wrist, and usually there is a family history or a genetic predisposition to develop it. It is a very common condition. Almost common in people over the age of about 75, but it does seem to be some people get it a lot worse than others, at younger ages, and I believe this is more a genetic predisposition rather than any traumatic event.
Q: And is that what you believe, doctor?
A: Yes.
Q: So the genesis of the condition as put forward by Mr Humphreys, the hitting on the wrist with a crank handle - - -?
A: Yes.
Q: - - - you’ve said earlier was just a possibility only, a mere possibility, is that correct?
A: That’s correct. If he had a number of injuries that were well documented, that they took him at least 10 days to 2 weeks to get over, one could then ….. he had some joint damage which led to later osteoarthritis, but unless that is well documented, I don’t think there is any connection between the two.
Q: You don’t think there is any connection between the two, doctor; is that right?
A: That’s correct.”
Evidence for the Respondent
20. The only person to give evidence on behalf of the Respondent was Dr John Watson, Orthopaedic Surgeon. In his report of 24 July 2003, Dr Watson opined (in response to questions posed to him):
(a) The patient has marked degenerative changes at the carpometacarpal joint associated with subluxation of the metacarpal joints. This is consistent with degenerative changes.
(b) Bilateral thumbs are affected at the carpometacarpal joints with OA changes.
(c) There is no evidence of any arthritis in any other joints of the hand.
(d) I would suggest that there has been a gradual onset of symptoms over a period of probably 40 years.
(e) This is constitutional pathology and probably aggravated by the nature of his activities, probably sporting activities such as badminton over a long period of time. There is no history of any motor vehicle accidents while riding his motor bike and the incident he describes using a crank handle is the Armed Services. I believe it was not a reason for the presentation for the OA changes of the carpometacarpal joints of both fingers.
(f) I do not believe that the rebounding crank handle which the patient had to perform to crank start Army trucks for a period during the Armed Services has been a contributing factor to this presentation. This is constitutional pathology and unrelated to that period in the Armed Services.
21. A summary of the evidence given by Dr Watson during the hearing is set out next:
- Dr Watson said that the crank handle striking the Applicant three times on each wrist would not be sufficient to cause osteoarthritis, as the force from this event would not cause osteoarthritis later on.
- In cross-examination, the following exchange occurred:
“Q: I’ll just see what other questions I want to put past you. You mentioned in your report, again at (e), you say:
This is constitutional pathology and probably aggravated by the nature of his activities particularly sporting activities such as badminton over a long period of time.
I was interested in that comment and why would you take the view that the playing of a game of badminton might actually cause that condition?
A: Have you ever played badminton?
Q: I confess that I have but I’ve never played it to any serious degree?
A: Well, it’s a pretty fast game, and they do it with a bent wrist and they’ve got to flick the wrist as they play it so it’s a flicking-type activity on a repetitive basis.
Q: And, you say that that is likely to have caused the injury?
A: I don’t think it caused an injury. It could have caused some minor aggravation.
Q: Sufficient to cause the difficulty that he’s now suffering from?
A: No, no way.
Q: Because that would be contradictory, wouldn’t it?
A: It would be.
Q: Dr Peter Dodd examined him as well?
A: Oh, I can’t answer for Dr Dodd.
Q: I’m not asking you answer for Dr Dodd, but I am asking you to comment on some of the remarks that he may have made. Dr Dodd, not dissimilar from, arrives at the same conclusion in relation to diagnosis in his opinion. He goes on to say:
Mr Humphreys is stating that the ongoing problems are a legacy of repeated injuries sustained as outlined above.
He then goes on to say:
Carpometacarpal osteoarthritis or trapezometacarpal osteoarthritis is usually a constitutional condition and is common in people of the age of 80 or more. In most cases it is non-traumatic and most likely constitutional or genetic. However, repetitive injuries to that region of the hand could perceivably cause interarticular damage which would eventually result in the later development of severe osteoarthritis.
Are you prepared to adopt that statement made by Peter Dodd?
A: I would, but this guy only had cranking handles on three occasions.
Q: Okay, he goes on to say:
My support for the scenario that this has been directly caused by his war service is not strong but it is a possibility the more likely scenario is that he has a genetic predisposition to development carpometacarpal osteoarthritis and the injuries he allegedly sustained during war service may have been enough to accelerate this process.
A: Well, I disagree with that wholeheartedly.
Q: What do you disagree with?
A: That it accelerated the pathology.
Q: Even if he had a genetic predisposition?
A: He could have a genetic predisposition, but the three incidences that you’re describing would not have accelerated that constitutional pathology.”
Applicant’s Submissions
22. The Applicant contended that he suffered a trauma to both wrists within the meaning of Factor 5(h) of Statement of Principles (“SoP”) No 82 of 2001 and he was struck three times on each wrist by the rotating crank handle on the trucks, and that this took place within 25 years immediately before the clinical onset of osteoarthrosis in each joint. The Applicant pointed to the evidence of Dr Dodd where Dr Dodd said that a trauma such as that suffered by the Applicant might be sufficient to cause the subsequent osteoarthrosis to have arisen. The Applicant did refer to the adverse evidence of Dr Watson, and attempted to explain it away by contending that Dr Watson’s evidence did not sit well with the evidence-based medicine on which the SoP is founded, and the SoP are quite clear that trauma can cause injuries complained of.
23. The Applicant contended further that neither medical practitioner who gave evidence was able to say that genetic or constitutional conditions are the only causes of osteoarthrosis, and the possibility of injury as a sufficient cause of the condition of the Applicant was left open by each of Dr Dodd and Dr Watson.
Respondent’s Submissions
24. The Respondent conceded that while Factor 5(h) was triggered (that there was a trauma to the wrists of the Applicant in the shape of the Applicant being struck three times on each wrist by the rotating crank handle), the medical evidence did not connect the osteoarthrosis of the Applicant to that trauma. The Respondent submitted that the Applicant had not satisfied the burden of proof, namely that on the balance of probabilities it was more probable or not that the trauma suffered by the Applicant caused or contributed to his osteoarthrosis.
Findings of Fact
25. Based upon the evidence before it, the Tribunal makes the following findings of fact:
- Mr John Bolton Humphreys (the Applicant) was born on 23 September 1923 and served with the Australian Army from 13 January 1942 until 21 August 1946.
- The Applicant did not serve outside Australia or in an operational area within Australia.
- The Applicant was posted to 118 Res Motor Transport Company on 22 February 1942.
- During that posting, sometime between 22 February 1942 and 18 April 1942, the Applicant was required to crank start motors by hand as part of the daily maintenance routine of certain trucks. The Applicant was struck 3 times on each wrist during this procedure by the crank handle when it kicked back.
- The Applicant suffers from bilateral metacarpal osteoarthrosis.
- The Applicant applied for a pension on 5 August 2002 under the Veterans’ Entitlements Act 1986 (Cth) for a number of medical conditions, including "collapsed knuckles both wrists left and right", which attracted the medical diagnosis of "osteoarthrosis of the right wrist and left wrist".
- The Repatriation Commission ("the Respondent") accepted liability on 27 November 2002 for a number of medical conditions but declined to accept liability for osteoarthrosis of the right wrist and left wrist on the basis that these conditions were not related to service.
- The Applicant sought review of the 27 November 2002 decision from the Veterans' Review Board, which on 1 December 2003 affirmed the decision of the Respondent in relation to the conditions of osteoarthrosis of the right wrist and left wrist.
- The Applicant appealed to the Tribunal on 20 January 2004.
Summary of The Legislative Scheme
26. Section 9 of the Act provides for when an injury or disease is taken to be war-caused. Section 9(1)(b) provides when any injury or disease arises out of or is attributable to, any eligible war service rendered by a veteran, the injury suffered or disease contracted is war-caused. In turn, section 7(1)(c) provides that a person who has rendered continuous full-time service (not being operational service) is a member of the Defence Force during World War 2 (being service that commenced before 1 July 1947) is taken to have been rendering eligible war service during any period of continuous full-time service. In this case, it is common ground that the Applicant rendered eligible war service within the meaning of these two provisions.
27. In Schmidt v Repatriation Commission [2004] FCA 1158 at [5], Spender J accepted the following summary of certain key provisions of the Act, which this Tribunal gratefully adopts:
“[5] … Section 13 of the Act imposes upon the Commonwealth, liability to pay pensions to eligible persons. Section 14 deals with the making of claims for pensions and s 15 deals with making applications for increases in such pensions. Section 17 requires the Secretary of the Department of Veterans’ Affairs to investigate claims and applications. Section 19 gives to the Repatriation Commission the duty of determining claims and applications for pensions and to determine the rate at which the pension is payable.”
Diagnosis
28. The next issue for the Tribunal is that of diagnosis. The question of whether a veteran suffers from a particular medical condition is decided to the reasonable satisfaction of the Tribunal: section 120(4). On the basis of the medical opinions before the Tribunal, the Tribunal is satisfied that the Applicant suffers from bilateral osteoarthritis of the metacarpal joints. This finding, however, does not conclude the matter as there must exist the relevant connection between the Applicant's medical condition and his war service.
Tribunal’s Reasons
29. It is common ground between the parties that the Applicant suffers from osteoarthritis of the metacarpal joints in both wrists. Where the parties differ is whether or not the osteoarthritis suffered by the Applicant is war caused. Put at its most favourable to the Applicant, the evidence of Dr Dodd only tentatively suggests a nexus between military service and osteoarthritis. Dr Dodd expressed the requisite nexus in these terms:
"My support for the scenario that this has been directly caused by his war service is not strong but it is a possibility the more likely scenario is that he has a genetic predisposition to development [sic] carpometacarpal osteoarthritis and the injuries he allegedly sustained during work [sic] service may have been enough to accelerate this process."
30. By contrast, the evidence of Dr Watson more emphatically denies a link between war service and the osteoarthritis suffered by the Applicant.
31. The Tribunal considers that based on the medical evidence before it, the osteoarthritis suffered by the Applicant has a constitutional pathology and is the product of a genetic predisposition towards osteoarthritis and that the specific traumas that the Applicant suffered when the crank handle struck him three times on each wrist were insufficient to trigger or cause osteoarthritis.
32. Where there is a SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the Applicant's condition and his service. The Tribunal has to decide whether the applicable SoP upholds the contention that the Applicant’s injury is, on the balance of probabilities, connected with the Applicant's service (section 120B(3)(b)). The relationship to service must be one of the relationships prescribed in section 196B(14): Haughey and Repatriation Commission [2005] AATA 189 at [63].
33. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the Applicant fits within or is consistent with a factor set out in the SoP. If the contention fails to fit within the template, the claim will fail: Haughey and Repatriation Commission [2005] AATA 189 at [64]. Following Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [42], it is proper to read into the language of the SoP the language of section 196B(14) of the Act.
34. In Kattenberg v Repatriation Commission (2002) 73 ALD 365 at [9], the Federal Court said that section 196B(14) explains what is meant by the requirement to set out the factors that must be related to service rendered by a person. It does that by enumerating a number of alternate meanings of the phrase “related to service”. That is to say, it clarifies the circumstances in which the necessary causal relationship between a factor and service will be present.
35. In this case, a factor that causes or contributes to a disease is related to service rendered by a person, relevantly, corresponds to paragraphs (a) and (b) of section 196B(14) of the Act (the other connecting factors are not relevant).
36. The SoP that is relevant in the circumstances of this appeal is SoP No 82 of 2001 (osteoarthrosis). In accordance with the decision of the Full Court of the Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321; (2001) 65 ALD 609, the Tribunal must apply the SoP in force at the date of its decision: see also Hillier v Repatriation Commission [2004] AATA 897 at [15]. Accordingly, the Tribunal considers SoP No 82 of 2001, which was in any event agreed between the parties.
37. Relevant excerpts from SoP No 82 of 2001 are extracted next (the basis of selection is those parts that were put in issue by the parties):
“Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, osteoarthrosis or death from osteoarthrosis is connected with the circumstances of a person’s relevant service are:
…..
(c) suffering an intra-articular fracture of the affected joint before the clinical onset of osteoarthrosis in that joint; or
…..
(h) suffering a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint;
Other definitions
8. For the purposes of this Statement of Principles:
“relevant service” means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
“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 ten 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;”
38. Adapting what this Tribunal said in Palmer and Repatriation Commission [2005] AATA 2 at para [63]:
“Clause 4 of the SoP requires at least one of the clause 5 factors to be related to any relevant service rendered by the veteran.... The nexus (expressed in the words “be related to”) between the causative factor and relevant service required by clause 4 of [SoP No 82 of 2001] does not need to be temporal (although this is sufficient rather than necessary). Clause 4 does not specify the relationship between the causative factor and relevant service. Phrases in the nature of “in respect of” and “in relation to” are taken to be of the broadest import: see O’Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 374 per Toohey and Gaudron JJ and at 376 per McHugh J. Although much depends on the particular context in which any two or more referents are said to be “related”, there is sufficient judicial warrant for reading the relationship between the causative factor and relevant service as being satisfied if there is a relationship, whether direct or indirect, between these two matters. Put another way, there must be some kind of connection between the two matters for the relationship to arise. The determination of this is a matter for the Tribunal or other decision-maker.”
39. The Tribunal considered next section 120(4), which reads:
“120 Standard of proof
(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.”
40. Following the signpost by the Note to section 120(4) leads to section 120B, which reads:
“120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
Note 1: Subsection 120(4) is relevant to these claims.
Note 2: For hazardous service and member of the Forces see subsection 5Q(1A).
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(3)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.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
41. The evidence of the Applicant was that the pain from the blows to his wrists lasted for some days, but the evidence was not that it lasted for at least 10 days (but for timely medical intervention). The Applicant resumed his duties after seeking medical assistance from the regimental aid post, and he was not referred onto a qualified medical practitioner for further investigation or treatment (or both). The Applicant gave evidence that he had "very slight" pain in his wrists when he was discharged from the Army, which was nearly four and a half years after the handcrank incidents occurred.
42. The medical evidence before the Tribunal is inconclusive in terms of establishing a link between the injuries received by the Applicant from the spinning handcrank incidents and the osteoarthritis suffered by the Applicant. A contention to that effect by the medical practitioner called by the Applicant (Dr Dodd) is only faintly made by that practitioner, and the converse is expressly conceded by that person. The state of medical evidence does not enable the Tribunal to determine to its reasonable satisfaction that the osteoarthritis suffered by the Applicant was caused by the incidents described. The Applicant contended that so long as there was some chance or possibility of a link between the event that caused the injury to the Applicant and osteoarthritis, the Tribunal should find to its reasonable satisfaction that the Applicant injury was war-caused within the meaning of the Act (citing Byrnes v Repatriation Commission (1993) 177 CLR 564; (1993) 30 ALD 1 and Bushell v Repatriation Commission (1992) 175 CLR 408); (1992) 29 ALD 1.
43. In this case, the reverse criminal onus of proof under section 120(1) does not apply. The unanimous Full Court of the Federal Court in Repatriation Commission v Cooke (1998) 90 FCR 307 said “We think that it is quite clear that the issue whether a disease [or injury] exists, is to be decided to the reasonable satisfaction of the Commission [or other decision maker].” In an eligible war service case (which this one is, as distinct from an operational service case, which this case is not), section 120(4) (as affected by section 120B, both provisions are extracted above), the Tribunal must apply a reasonable satisfaction standard.
44. In Repatriation Commission v Gosewinckel [1999] FCA 1273, the Court said:
“[67] The AAT cannot use the evidence of an expert to contradict or provide an alternative to the requirements of the SoP. Section 120A, and the associated provisions in Pt XIA of the VE Act were introduced in order to take the determination of "purely medical ... issues" out of the hands of bodies such as the AAT - Explanatory Memorandum to Veterans' Affairs (1994-95 Budget Measures) Legislation Amendment Bill 1994 at p 3. Evidence which contradicts an SoP, or which proposes that a reasonable hypothesis may be raised by some factor not identified in the SoP, cannot alter the operation of the SoP in relation to any matter to which it is applicable - see Deledio v Repatriation Commission (supra) at 411-2. An hypothesis that fails to fit within the template will be deemed not to be "reasonable", and the claim will fail.”
45. What this means is that in this case it is not proper for the Tribunal to prefer the evidence of an expert (whether called by the Applicant or the Respondent) and to use that evidence to outflank a SoP. The task for the Tribunal is to determine, first, to its reasonable satisfaction whether or not the Applicant suffers a medical condition and, secondly, whether the medical condition is war caused within the meaning of section 9. The first matter has been determined in favour of the Applicant. The second matter is one upon which the medical evidence has a bearing. Clause 3 of SoP No 82 of 2001 constitutes the medical evidentiary baseline, and states that” it is more probable than not that osteoarthrosis and death from osteoarthrosis can be related to relevant service rendered by veterans or members of the Forces” [emphasis in original]. Heerey J (at first instance) in the celebrated case of Deledio v Repatriation Commission (1997) 25 88 AAR at 411 – 12 described the SoP as a "statute-backed declaration of what is proved or known scientific fact". Clause 3 of SoP No 82 of 2001 is not self-executing in terms of predicating or dictating a result that in each and every case the coincidence of osteoarthrosis and relevant service automatically leads to a finding of liability on the part of the Respondent. Establishing the link between eligible war service and any medical conditions of the Applicant happens if the decision maker (in this case, the Tribunal) is so reasonably satisfied, and if clause 5 of SoP No 82 of 2001 is grounded according to its terms. For reasons given earlier in discussing the medical evidence, the Tribunal is not satisfied that the causal link between the injuries received by the Applicant during eligible war service is related to his osteoarthrosis. Nothing in section 196B(14) modifies this conclusion.
46. The Tribunal took account of, for the sake of completeness, the onus-negating provisions of sections 120(5) and 120(6).
Tribunal’s Conclusion
47. Based upon the material before it, and for these Reasons, the Tribunal concludes that the correct and preferable decision is that the osteoarthrosis suffered by the Applicant is not war caused within section 9 of the Veterans’ Entitlements Act 1986 (Cth).
Tribunal’s Decision
48. The Tribunal decides to affirm the decision under appeal.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Member SC Fisher
Signed: Denise Burton
Administrative Assistant
Dates of Hearing 25 February 2005 and 18 March 2005
Date of Decision 29 June 2005Solicitor for the Applicant Mr G Mylne – Mylne Lawyers
For the Respondent Mr J Kelly, Departmental Advocate
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