Myles and Repatriation Commission (Veterans' entitlements) - [2021] AATA 2115

Myles and Repatriation Commission (Veterans' entitlements) [2021] AATA 2115 (21 April 2021)
Division:                VETERANS' APPEALS DIVISION
File Number(s):2019/0721
Re:Scott Myles
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Senior Member Illingworth
Member Ormston
Date:21 April 2021
Place:Adelaide

The decision under review is affirmed.
...................[SGND].......................
Senior Member Illingworth
Catchwords
VETERANS' AFFAIRS – date of clinical onset – rotator cuff syndrome – repetitive or sustained activities – abduction and flexion of the shoulder – use of upper limbs for transfer – defence-caused disease – decision under review affirmed.
Legislation
Veterans’ Entitlement Act 1986 (Cth)
Cases
Lees v Repatriation Commission (2002) 125 FCR 331.
Robertson and Repatriation Commission (1998) 50 ALD 668
Youngnickel v Repatriation Commission (2004) FCA 1691
Secondary materials
Statement of Principles (SOP) Instrument No. 101 of 2014 (as amended by SOP No. 30 of 2021)
REASONS FOR DECISION
Senior Member Illingworth
Member Ormston
21 April 2021
INTRODUCTION

The Applicant, Scott Myles, served in the Australian Regular Army from 20 January 1976 to 27 January 1997 and the Australian Army Reserves from 20 January 1997 to 26 January 2008. The former period constitutes ‘defence service’ as defined in s 68(1) of the Veterans’ Entitlement Act 1986 (Cth) (the VEA).
On 3 August 2016, the Applicant lodged a compensation claim for hearing loss, lower back pain and pain in both shoulders which he contended resulted from his defence service. On 17 January 2017, the Repatriation Commission accepted the Applicant’s claim for tinnitus and lumbar spondylosis but rejected the claim for osteoarthritis affecting both shoulders and rotator cuff syndrome of the left and right shoulders on the basis they were not related to service.
On 10 April 2017, the Applicant applied to the Veterans’ Review Board (VRB) for a review of the Repatriation Commission’s decision. On 5 April 2018, the VRB affirmed the decision under review. On 11 February 2019, the Applicant sought a review by the Administrative Appeals Tribunal (the Tribunal) of the reviewable decision, giving rise to these proceedings.
Mr Myles appeared in person before the Tribunal on 15 and 16 March 2021. He was represented by Mr Joshua Nottle, Denman Chambers (by video link). The Respondent, the Repatriation Commission, was represented by Ms Kate Slack, Higgins Chambers (also by video link).
THE ISSUE
The Applicant’s counsel confirmed in his opening statement that sensorineural hearing loss and osteoarthritis of both shoulders were not being pursued before the Tribunal. Accordingly, the decision under review is that the Applicant is not entitled to a disability pension for rotator cuff syndrome of both shoulders. The issue, therefore, is whether the Applicant’s claimed condition of rotator cuff syndrome of both shoulders is defence-caused under s 70 of the VEA.
THE LEGAL FRAMEWORK
Section 70(1) of the VEA provides, in effect, that where a member of the Forces is incapacitated from a defence‑caused injury or a defence‑caused disease, the Commonwealth is liable to pay a pension by way of compensation.
The terms ‘disease’…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] AATA 2115
Decision Date: 21 April 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the appeal of Mr Myles against a decision of the Repatriation Commission concerning his claim for veterans' entitlements. Mr Myles suffers from rotator cuff syndrome in both shoulders and sought compensation for this condition, arguing it was defence-caused. The central dispute revolved around the date of clinical onset of his condition and whether the evidence supported a connection to his military service.

The legal issues before the Tribunal were to determine the date of clinical onset of Mr Myles' rotator cuff syndrome and whether, on the balance of probabilities, his condition was connected to his defence service, as required by section 120B(3) of the *Veterans' Entitlements Act 1986* (VEA). This involved assessing whether the activities undertaken during his 23-year military career met the criteria outlined in the relevant Statement of Principles (SOP) for rotator cuff syndrome, particularly concerning repetitive or sustained shoulder abduction and flexion.

The Tribunal considered the evidence presented, including Mr Myles' detailed account of his military service and the physical activities he performed. It noted that the SOP had been amended to clarify the definition of "weight-bearing" in relation to upper limb use, substituting it for "transfer" and providing examples. While Mr Myles contended that certain activities during his service involved repetitive shoulder flexion and abduction exceeding 9500 hours, the Tribunal also considered the argument that the correct date of onset should be when he first sought medical treatment, which was in 2016. The Tribunal referenced case law indicating that a finding of clinical onset requires all symptoms of the disease to be present at that time, and noted that Mr Myles' recollection of earlier symptoms did not include the key defining symptoms of persistent pain and tenderness that worsens with abduction.

Ultimately, the Tribunal concluded that, based on the evidence and the relevant SOP, Mr Myles' rotator cuff syndrome was not defence-caused under section 70 of the VEA. Consequently, he was not entitled to a pension for this condition. The decision under review by the Repatriation Commission was affirmed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

SOP No. 101 of 2014 was amended by SOP No. 30 of 2021, relevantly:·deleting the word ‘transfer’ in factor 6(e) (and 6(o)) and substituting the word ‘weight-bearing’;·inserting the following note to factor 6 (e) (and 6(o)); ‘examples of situations in which the upper limbs may regularly be used for weight-bearing include transfers from a wheelchair to a chair or bed, and the use of crutches or other walking aids’; and·deleting the definition of ‘regularly using the upper limbs for transfer’ in clause 9 of SOP No. 101 of 2014.THE EVIDENCE In addition to the documents tendered as Exhibits A-I[2], the Tribunal heard evidence from Mr Myles (in person), Associate Professor Bruce Love (by telephone) and Dr Mark Clayer (in person). Key elements of the evidence are summarised in the following paragraphs. [2] The Tribunal accepted the following documents as exhibits: The Applicant’s military service In support of his written statements at Exhibits D and F, the Applicant gave evidence regarding his various Regular Army postings over the 23-year period from 1976 to 1997. They included two years of officer cadet training and an unexceptional range of engineer-and non-engineer related postings in Australia but also included a 12-month deployment on a United Nations (UN) development program in Mozambique in the latter part of his career. The Applicant gave very detailed evidence regarding the number of hours and days he typically worked each week, the type and frequency of employment-related physical activities he undertook during each posting and the type and frequency of physical training (PT) and sporting activities similarly undertaken. As would be expected of an officer rising through the ranks from second lieutenant to major, Mr Myles contended that the more physically demanding postings occurred during the earlier part of his career as a junior officer, though he noted that he was still undertaking a number of physical activities in later postings, as well as continuing to maintain his physical fitness and involvement in sport throughout his career. In his evidence to the Tribunal, Mr Myles focused especially on physical activities involving the use of his arms and particularly those activities involving ‘flexion’ (which we understand to mean the action of raising the arms forward or rearward in line with the body) and ‘abduction’ (which we understand to mean the action of raising the arms in an outwards motion sideways from the body)[3]. [3] These definitions were used by the VRB – refer Exhibit A, T25, page 7, paragraph 26. In support of his appeal to the VRB, Mr Myles had identified a number of activities where his shoulders would have been flexed repetitively at 60 degrees or more, contending that the total number of hours between 1980 and 1997, in activities such as marching and drill lessons, saluting, playing soccer, undertaking PT, combat engineering tasks and deployment activities, would have been in excess of 9500[4]. [4] The Applicant initially claimed the total would have been over 14,000 hours (Exhibit A, T25.1) but amended this during the course of the VRB hearing to 9579 (Exhibit A, T.25.5).

Decision

Reasons for decision

The Tribunal concludes that having regard to the evidence, the Applicant’s condition of rotator cuff syndrome of both shoulders was not defence-caused under s 70 of the VEA and, accordingly, that the Applicant is not entitled to a pension by way of compensation for that condition.DECISION The decision under review is affirmed.I certify that the preceding eighty-seven (87) paragraphs are a true copy of the reasons for the decision herein of Senior Member Illingworth and Member Ormston. ...................[SGND]............................Administrative Assistant LegalDated: 21 April 2021 Dates of hearing: 15-16 March 2021Advocate for the Applicant: Mr Joshua Nottle, Denham ChambersAdvocate for the Respondent: Ms Kate Slack, Higgins Chambers

Ratio Decidendi

Legal Principle Established

Finally, Ms Slack disagreed with Mr Nottle’s suggestion that Dr Clayer’s military service had unduly influenced his decision. Ms Slack contended that Dr Clayer’s military knowledge and experience contrarily assisted him to understand Mr Myles’ contentions regarding his defence service, adding value to his opinion. CONSIDERATION The Tribunal is mindful that the Applicant served with distinction in the Australian Regular Army for more than 20 years and was awarded a Conspicuous Service Medal ‘for meritorious achievement or devotion to duty in non-warlike situations’[39]. It also notes it is common ground that Mr Myles suffers from rotator cuff syndrome. [39]As described in the Governor-General of Australia’s website: The issues before the Tribunal, therefore, are the date of clinical onset of that condition and whether the evidence before the Tribunal, taking account of the relevant SOP, upholds the contention – in accordance with s 120B(3) of the VEA – ‘that the injury, disease or death of the person is, on the balance of probabilities, connected with that service’.The date of clinical onset In his statement of facts, issues and contentions dated 22 July 2020, the Applicant said he was relying on factors 6(m) and 6(o) of SOP No. 101. Clause 7 of the SOP notes that these clauses (and also 6(k) to 6(u)), apply ‘only to material contribution to, or aggravation of, rotator cuff syndrome where the person’s rotator cuff syndrome was suffered or contracted before or during (but not arising out of) the person’s relevant service’, that is, they relate only to a clinical worsening of the condition. During the course of these proceedings, Mr Nottle made no particular representations regarding factors 6(m) and 6(o), or to clinical worsening, but instead focused on clauses 6(c) and 6(e), which describe the same activities but in relation to clinical onset. Ms Slack, in her closing address, similarly focused on clauses 6(c) and 6(e). The seeming focus on clauses 6(c) and 6(e) might be construed as a concession that the clinical onset of rotator cuff syndrome did not occur during Mr Myles’ service (ending in 1997). That is not an assumption shared by the Tribunal and, for completeness, we have considered all the evidence and all the contentions regarding the date of clinical onset. The Tribunal has taken account of Ms Slack’s contention that the correct or preferable date of onset should be taken as mid-July 2016, the date Mr Myles first sought medical treatment for his condition. The Tribunal has also noted her referral to Youngnickel v Repatriation Commission where Bennet J, referencing Lees v Repatriation Commission, held that the Tribunal should not make a finding of clinical onset unless all the symptoms of the disease can be shown to be present at the time[40]. Ms Slack has argued that at no time did the Applicant’s recollection or reporting of earlier symptoms include the two key symptoms stipulated in the SOP’s definition of rotator cuff syndrome, namely ‘persistent pain and tenderness in the shoulder that usually worsens when the arm is abducted into an overhead position’.[40] (2004) FCA 1691; (2002) 125 FCR 331.