John Sharley and Repatriation Commission
[2014] AATA 344
•2 June 2014
[2014] AATA 344
Division VETERANS' APPEALS DIVISION File Number
2008/3960
Re
John Sharley
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Miss E A Shanahan, Member
Date 2 June 2014 Place Melbourne The Tribunal affirms the decision of the Repatriation Commission that the applicant’s osteoarthritis of both knees is not war-caused.
..............[sgd]..........................................................
Miss E A Shanahan, Member
VETERAN’S AFFAIRS – disability pension – reconsideration of claim of osteoarthritis of the knees was war-caused – on remittal from Federal Court – decision affirmed
Legislation
Veteran’s Entitlement Act 1986 sections 9, 120, 120A and 196
Statement of Principles Instrument No 31 of 2005 (concerning osteoarthrosis)Statement of Principles Instrument No 13 of 2010 (concerning osteoarthritis)
Cases
Repatriation Commission v Deledio (1998) 49 ALD 193; (1998) 27 AAR 144; (1998) 83 FCR 82
Meehan and Repatriation Commission [2003] FCA 1371
Ogston v Repatriation Commission (1999) 29 AAR 89
Keeley v Repatriation Commission (1999) 56 ALD 455Bushell v Repatriation Commission [1992] HCA 47
REASONS FOR DECISION
Miss E A Shanahan, Member
2 June 2014
By its decision of 28 June 2010 the Tribunal, as currently constituted, affirmed the decision of the Repatriation Commission (the Commission) dated 1 August 2007. In its decision the Tribunal found that the applicant, Mr Sharley, did not suffer from post-traumatic stress disorder (PTSD) but did suffer from war-caused alcohol dependence in partial remission. The Tribunal also made the finding that his osteoarthritis of both knees was not war-caused as factor 6(g) (regarding having trauma to the affected joint before the clinical onset of osteoarthritis in that joint) of Instrument No 13 of 2010 (the Statement of Principles regarding osteoarthritis) was not met. As a result, the claim for osteoarthritis of both knees being war-caused failed at stage 3 of the process set out in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97 (Deledio).
The Tribunal did however identify another factor in Instrument No 13 of 2010 that might apply to Mr Sharley. This is factor 6(n)(i) relating to being overweight, which by definition means having a Body Mass Index (BMI) of 25 or greater, for at least 10 years before the clinical onset of osteoarthritis. Counsel for Mr Sharley was given the opportunity to address this factor before the Tribunal, but declined.
No evidence had been led regarding Mr Sharley’s weight throughout the hearing as his claim for osteoarthritis of both knees had been limited to factor 6(g) of Instrument No 13 of 2010, which relates to trauma to the knees. The Tribunal noted that Mr Sharley’s weight was recorded sporadically in the clinical notes of his general practitioner, Dr Astley, and also in his medical service records. The weight recordings available to the Tribunal indicated that his BMI had been greater than 25, as required by the SoP, from the year 2000 onwards and had also been above 25 on his discharge medical examination in 1971. However, Mr Sharley had not complained to a doctor of any symptoms relating to his knees until 2007.
The Tribunal remitted the decision regarding the osteoarthritis of both knees to the Commission for reconsideration under factor 6(n)(i) of Instrument No 13 of 2010. This would require that further evidence be obtained from treating medical practitioners regarding Mr Sharley’s weight for the 10 year period between 1997 and 2007.
Mr Sharley lodged his appeal to the Federal Court within 28 days of the publication of this decision on 28 June 2010 and before the Commission had time to obtain any further evidence and effect a reconsideration. On 12 July 2012 the Commission advised that it had affirmed the original decision to reject the part of Mr Sharley’s claim that related to osteoarthritis of both knees.
The judgment of the Federal Court was pronounced on 14 October 2013. Jessup J found no error of law in the Tribunal’s decision in relation to Mr Sharley’s psychiatric disorder. In relation to the claim for osteoarthritis of both knees being war‑caused, His Honour outlined in detail the events that had occurred in relation to the remittal and the Commission’s subsequent advice of 12 July 2012. His Honour then went on to determine that the Tribunal had unfinished business in that it had not given final consideration to, and made a decision upon, [Mr Sharley’s] claim for pension to the extent that it was based on his osteoarthritis. (para 26, Federal Court decision)
Jessup J instructed that the Tribunal was required under s 42D(8) of the Administrative Appeals Tribunal Act 1975(the AAT Act) to provide a decision in writing and as recommended by counsel for the Commission, and with the acceptance of counsel for Mr Sharley, a remitter order was made under s 44(5) of the AAT Act which states:
(5)Without limiting by implication the generality of subsection (4), the orders that may be made by the Federal Court of Australia on an appeal include an order affirming or setting aside the decision of the Tribunal and an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court.
FURTHER EVIDENCE RELATING TO FACTOR 6(n)(i) OF INSTRUMENT NO 13 OF 2010
In the course of several telephone direction hearings Mr Sharley had been asked to provide any evidence he could as to his weight between 1997 and 2007, including such documentation as a statutory declaration from an independent person who knew him well. It was also suggested he might be able to provide sequential photographs. Neither of these suggestions were followed up and no further evidence was received from Mr Sharley.
The Commission undertook to seek further reports from the treating medical practitioners as nominated by Mr Sharley. On 19 September 2011, Mr Brown of the Australian Government Solicitor, representing the Commission, requested such information from six medical clinics, five of which were in Victoria and one in South Australia. The requesting letter sought information regarding Mr Sharley’s weight and any record of knee problems. Three of the medical clinics indicated in writing that they either had no records regarding Mr Sharley or none that were relevant to the questions posed.
The Kilmore Medical Practice records related solely to the year 2011, when Mr Sharley’s weight was 90 kilograms and he was being reviewed for ongoing knee pain, which at that time was being treated with Arthro-Aid capsules. The Greensborough Road Surgery responded to Mr Brown’s request with the information that it had only seen Mr Sharley on 10 August 2001, at which time his weight was recorded at 92 kilograms and no history of knee problems was elicited.
The medical records of the Ontario Medical Clinic in Mildura did provide information and records going back to 1997. In February 1997 Mr Sharley had complained to Dr Webster of left hip pain radiating to his thigh. The records state no known injury current or past. Non-steroidal anti-inflammatory drugs were prescribed. Mr Sharley was seen on three occasions in 1997, two occasions in 1998, four occasions in 1999 and twice in the year 2000. The entry of 28 July 1998 records that Mr Sharley was stressed at work and complaining of tension headaches. A trial of Benzodiazepine was considered. Occasional attendances for gout are recorded and from late 2000 the entries appear to have all been related to Mr Sharley’s diabetes, which at that time was extremely poorly controlled with blood sugar levels of 20.6. The records are silent as to his weight and his BMI index. There is no mention of back or knee pain.
As there was no independent evidence available that Mr Sharley remained overweight, that is, had a BMI greater than 25 between 1997 and 2007, the Commission affirmed its decision that his osteoarthritis of both knees was not war‑caused in accordance with factor 6(n) (i) of the relevant SoP.
EVIDENCE RELATING TO FACTOR 6(g) OF INSTRUMENT NO 13 OF 2010
No new evidence was elicited or presented in relation to the claim regarding osteoarthritis of both knees. Mr Sharley relied on the evidence he had previously given in his statement (which is undated and unsigned but was received by the Tribunal on 4 February 2009), his evidence before the Veterans’ Review Board (VRB) on 13 June 2008, his evidence to the Tribunal in 2010 and a further supplementary statement signed and dated 14 March 2014. In the latter document, Mr Sharley relies on his description of the trauma to his knees in his earlier statement.
Following further telephone direction hearings, the parties agreed that rather than proceed to a re-hearing of this matter in relation to Mr Sharley’s osteoarthritis of the knees, the parties would make written submissions, following which the Tribunal would proceed to make a decision on the papers. It appeared to the Tribunal that the issues for determination on the review could be adequately determined in the absence of the parties. Therefore, pursuant to s 34J of the Administrative Appeals Tribunal Act 1975 (the AAT Act), the Tribunal agreed to review the decision by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing.
LEGISLATION
Section 9 of Veterans’ Entitlement Act 1986 (the Act) requires a causal link between war service and any disability the veteran might claim to be war-caused. Section 9(1)(b) of the Act states:
9 War-caused injuries or diseases
(1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
. . .
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
. . .
Section 120 of the Act establishes the standard of proof. Section 120(1) and s 120(3) state:
120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
. . .
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A.
. . .
As Mr Sharley's claim was lodged after 1 June 1994, s 120A of the Act, regarding the reasonableness of a hypothesis, is attracted. The Veterans' Affairs (1994 - 1995 Budget Measures) Legislation Amendment Act 1994 (the Amendment Act) which introduced s 120A also established the Repatriation Medical Authority (s 196) with legislative authority to determine Statements of Principles (SoPs) based on medical and scientific evidence. The SoPs provide a template by which the reasonableness of a hypothesis linking a condition, disease or injury to defence service is to be tested. The process to be applied by the decision-maker was determined by the Full Federal Court in Repatriation Commission v Delidio (1998) 49 ALD 193; (1998) 27 AAR 144; and (1998) 83 FCR 82 where the Full Court outlined four stages to be followed:
1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2. If the material does raise such a hypothesis, the tribunal must then ascertain whether there is in force an SoP determined by the authority under s 196B (2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2) (d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.
SoPs exist for all the conditions Mr Sharley claimed to be war-caused. The decision-maker is required to test the reasonableness of the hypothesis in terms of the SoP which applies on the date the decision is made (Ogston v Repatriation Commission (1999) 29 AAR 89). Where this SoP is less beneficial to the veteran than that in force at the time of lodgement of their application, the earlier, more beneficial SoP is attracted (Keeley v Repatriation Commission (1999) 56 ALD 455).
Counsel for Mr Sharley, Mr Christopher Thomson, lodged a supplementary submission upon the remitted case on 12 March 2014. Counsel urged the Tribunal to reconsider the question ... whether the trauma was in fact sufficient to satisfy the SoP for Osteoarthritis, which he maintained should be determined at stage 4 and not stage 3 of the Deledio process. Mr Thomson argued that Mr Sharley’s description that he allegedly injured both knees when unloading fuel drums from a Caribou aeroplane did satisfy the definition of trauma as provided in the SoP.
With respect to factor 6(n)(i) of Instrument No 13 of 2010 (the SoP concerning osteoarthritis) it was submitted that it was Mr Sharley’s evidence that in the period between 1997 and 2007 his weight did not decrease below his discharge weight of 78.7 kilograms and that his obesity was:
causally linked to his operational service by reason of his binge drinking and, to a lesser extent, binge eating, resulting from the stressors to which he was exposed during his operational service.
Mr Sharley had raised the evidence of occasional binge-eating in paragraph 8 of his supplementary statement of 14 March 2014, not having referred to it at an earlier date.
The Commission provided its submissions in response to Mr Sharley’s submissions on 24 March 2014. The Commission restated its argument in relation to factor 6(g) of Instrument No 31 of 2005 (the SoP concerning osteoarthrosis) and/or Instrument No 13 of 2010 (the SoP concerning osteoarthritis) relating to trauma to the affected joint. The Commission did so on the basis that there was no medical evidence to support Mr Sharley’s claim that he sustained injury to both knees while on operational service, no injury had been reported to any medical officer at Vung Tau and Mr Sharley had continued working on his duties immediately after the claimed injury and thereafter. The Commission submitted that the claimed trauma to the affected joint was inconsistent with the definition of trauma contained in the SoP.
In relation to factor 6(n)(i) Instrument No 13 of 2010, the respondent submitted that no further medical evidence had been raised regarding Mr Sharley’s weight during the relevant period between 1997 and 2007 and thus the factor was not satisfied and the hypothesis was not reasonable. The respondent submitted that requirements of Factor 6(n) (i) of the SoP are not met and this claim fails at stage 3 of Delidio.
The Tribunal is required to address and reconsider its previous decision regarding the claim submitted by Mr Sharley that his osteoarthritis of both knees is war-caused in accordance with factor 6(g) of the 2005 and 2010 SoPs. In its decision of 28 June 2010 the Tribunal determined that Mr Sharley’s osteoarthritis of both knees was not war‑caused because at stage 3 of Deledio, it found that the hypothesis was not reasonable as it was not consistent with the template to be found in SoP.
Factor 6(g) of both SoPs states:
(g)having trauma to the affected joint before the clinical onset of
osteoarthritis in that joint;
and the phrase trauma to the affected joint means:
... a discrete event involving the application of significant physical force to or through the affected joint, that causes damage to the joint and the development, within 24 hours of the event occurring, 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:
This was based on Mr Sharley’s evidence that he continued to work at his normal duties immediately after the injury, did not report the injury to medical officers at Vung Tau and continued with his usual duties thereafter, with the exception of avoiding climbing ladders where possible.
Mr Sharley was not certain whether his knees had swollen after the injury, although he stated he had experienced pain and could not kneel or squat for some seven to fourteen days. Mr Sharley first reported knee pain to his then treating general practitioner in 2007.
His Honour, Jessup J, has not commented on, or considered, the Tribunal’s decision in regard to the osteoarthritis claim under factor 6(g) of SoP No 13 of 2010. The applicant has argued that the requirements of factor 6(g) have been met as there is no requirement that the injury be reported or supported by independent evidence.
The Tribunal considers its initial finding to be correct; that the requirements of factor 6(g) were not met and thus the hypothesis did not fit the template found in the SoP as required by stage 3 of Delidio. As a result, the Tribunal continues to find that Mr Sharley’s claim that the mild osteoarthritis of both his knees was war-caused fails.
However, in case the Tribunal is in error, it will consider Mr Sharley’s claim on the basis that stage 3 of Deledio is satisfied. Having done so, the Tribunal must proceed to consideration under stage 4 of Deledio, or more correctly s 120(1) of the Act, which requires that the Tribunal must be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination that the disease was war-caused.
The Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making the determination that the disease was war-caused. The Tribunal is thus satisfied on the basis that Mr Sharley’s evidence and various statements are conflicting and inconsistent. In his claim of 31 May 2007, Mr Sharley attributed the pain in his knees to his diabetes and did not mention any history of trauma during his operational service. In his claim reports of 20 June 2007 relating to lumbar spondylitis, Mr Sharley described a fall over a 44 gallon drum resulting in him landing heavily on his ankle, knees and back. In the applicant’s written submissions dated 14 April 2010, it was stated on behalf of Mr Sharley that he had landed heavily on his back while involved in the drop-off from a Caribou aeroplane when he had tripped over a roller (used to eject 44 gallon drums of fuel from the aeroplane), and while landing on his back he believed that his legs had been rolled over by a 44 gallon drum.
At the hearing before the VRB Mr Sharley stated that the 44 gallon drum had rolled onto but not over his knees. In his statement received by the Tribunal on 4 February 2009 he described the incident as being one of tripping over one set of rollers whilst trying to straighten a drum of fuel on the rollers alongside and falling across the rollers and landing heavily on his back while twisting at the same time. As he straightened to his side and attempted to stand he was hit across his knees and shin by a rolling 44 gallon drum. Despite this, he recovered and continued with his unloading responsibilities.
In his evidence before this Tribunal, Mr Sharley described the incident during the supply drop as he had slipped and fallen on a cargo roller hurting his back and while changing position was struck in the region of his knees by a rolling fuel drum. In his supplementary statement, signed and dated 14 March 2014, Mr Sharley confirmed the mechanism of his knee injury to be as described in his statement received by the Tribunal on 4 February 2009. In his latest statement he expanded on his symptomatology immediately after the event. He described it as experiencing pain when climbing ladders and carrying heavy tool boxes, when standing or sitting for prolonged periods, experiencing difficulty climbing down ladders, squatting and walking. He had not sought medical treatment as despite the pain it was tolerable and he could continue with his duties.
In Meehan and Repatriation Commission [2003] FCA 1371 (Meehan), Jacobson J noted that the Tribunal considered the extent of the Applicant’s unreliability so great that it would only accept his evidence where it was corroborated [para 30]. While in Meehan and Repatriation Commission [2003] AATA 429 the Commission and the Tribunal used the words unreliable, doubtful and of little use, His Honour (at paragraph 39) considered the effect of these terms as equating to the Commission, and thereby the Tribunal, being satisfied beyond reasonable doubt that the raised facts did not exist (see also Bushell v Repatriation Commission [1992] HCA 47).
The inconsistencies in Mr Sharley’s description by of the actual injury and his symptomatology, coupled with the fact that he did not report any knee symptoms to his general practitioner until 2007, some 37 years after the alleged injury, and the finding in 2007 that the changes of osteoarthritis in Mr Sharley’s knees were mild, results in the Tribunal being satisfied beyond reasonable doubt that Mr Sharley’s osteoarthritis of both knees is not war‑caused, thereby failing stage 4 of the Deledio process.
The Tribunal affirms the decision of the Repatriation Commission that the applicant’s osteoarthritis of both knees is not war-caused.
I certify that the preceding 35 (thirty -five) paragraphs are a true copy of the reasons for the decision herein of Miss E A Shanahan, Member. ......[sgd]..................................................................
Associate
Dated 2 June 2014
Date(s) of hearing 22 November 2013 Date final submissions received 24 March 2014 Counsel for the Applicant Christopher Thomson Solicitors for the Applicant Peter Liefman Solicitors for the Respondent David Brown, Australian Government Solicitors
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