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

1. 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).

2. 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.

3. 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.

4. 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

5. 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

6. 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.

7. The terms ‘disease’ and ‘injury’ are relevantly defined in s 5D of the VEA as:

   disease means:

   (a)   any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development) …

   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.

8. Section 70(5)(a) of the VEA further provides that:

   …  an injury suffered by such a member [of the Forces] 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 … of the member.

   .

   9.     Section 120(4) of the VEA provides the standard of proof applicable to the determination of whether any such injury or disease was defence-caused, namely:

   Except in making a determination to which subsection (1) or (2) applies [relating to operational service, peacekeeping service or certain other specified types of service], the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations … decide the matter to its reasonable satisfaction.

9. Section 120B(3) of the VEA further provides that:

   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.

   THE RELEVANT STATEMENT(S) OF PRINCIPLES (SOP)

10. SOP No. 101 of 2014, as amended by SOP No. 30 of 2021, applies to the claimed condition of rotator cuff syndrome. Relevantly, clause 3(b) of SOP No. 101 defines ‘rotator cuff syndrome’ as:

    An inflammatory or degenerative disorder of the musculotendinous cuff of the      shoulder joint …. Rotator cuff syndrome is characterised by persistent pain and      tenderness in the shoulder that usually worsens when the arm is abducted into an overhead position.

11. Clause 6 of SOP No. 101 identifies the factor(s) that must exist before it can be said that, on the balance of probabilities, rotator cuff syndrome is connected with the circumstances of the person’s relevant service. The Applicant asserted in his statement of facts, issues and contentions dated 22 July 2020 that the relevant factors are 6(m) and 6(o), both of which relate to the clinical worsening of an injury or disease[1]. However, Applicant’s counsel, in the course of the current proceedings, seemed to rely on factors 6(c) and 6(e), which relate to clinical onset and state respectively:

    (c)   performing repetitive or sustained activities of the affected shoulder when                      the shoulder on the affected side is abducted or flexed by at least 60                    degrees for at least 8000 hours within the 20 years before the clinical                    onset of rotator cuff syndrome

    (e)     regularly using the upper limbs for transfer for a continuous period of at least                 the one year before the clinical onset of rotator cuff syndrome.

    [1] Exhibit D, page 3, paragraph 14.

12. 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

13. 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

14. 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.

15. 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.

16. 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.

17. 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.

18. 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).

19. In explaining why he initially contended the total was in excess of 14,000 hours, Mr Myles said he had provided certain figures to his advocate ahead of the VRB hearing, who had prepared the matrix in question, but once the matrix was tabled during the VRB hearing, he (Mr Myles) had corrected the figure downwards. The revised matrix, for example, reduced the number of hours spent saluting from 4414 to 2040, and combat engineering tasks from 4432 to 1920, but also introduced the playing of soccer, which Mr Myles contended involved 2520 hours where his shoulder(s) would have been flexed at ≥60 degrees.

20. In her cross-examination, Ms Slack, counsel for the Respondent, questioned Mr Myles in considerable detail over his recollection of the hours and number of days per week he worked during various postings, as well as the number of weeks he was on leave each year. She also questioned the number of hours he would have been flexing and abducting his arms during the various activities listed in the matrix provided to the VRB, asserting that her ‘tally’ – provided in a summary to the Tribunal during her closing address – suggested the total number of hours would likely have been considerably less[5].

    [5]  The Tribunal is cognisant that Ms Slack’s summary document was not tendered as evidence and therefore

    not subject to cross-examination by the Applicant’s counsel.

21. By way of example, Mr Myles had contended that saluting took up 2040 hours over the course of 17 years, which we understand he derived by multiplying 17 years by the average number of working days in each year (240), then halving the total to reflect that he spent an average of 0.5 hours each day in saluting. Ms Slack, noting the Applicant’s evidence that a typical salute takes 3 seconds (though he said some might take longer when walking past a group of soldiers or during a parade), calculated this meant the Applicant would have been making ‘many hundreds’ of salutes each and every day, which she contended seemed considerably exaggerated.

22. In relation to his playing of soccer, Mr Myles contended that for a 7-year period he played an average of 1.5 hours per day, resulting in a total number of hours of 2520. Ms Slack noted that the Applicant’s matrix indicated he only played soccer during the winter months, so she asserted the number of weeks per year should have been reduced accordingly. She also noted that the Applicant’s claimed total number of hours represented the entire time spent playing, rather than the number of hours involving the use of his arms in an overhead motion (in throwing the ball back into play), suggesting the number of hours should be reduced by at least half.   

23. In both his original and revised matrices, Mr Myles included mention of ‘deployment activities in Mozambique, including … mine clearing’. In his evidence to the Tribunal, Mr Myles said that ‘almost everyday [for the duration of the 12-month deployment] I carried or demonstrated the use of a mine detector’, which he described as holding a broom-like device with a round metal-detecting head, weighing 4-6 kilograms, above the ground at an angle of 30 degrees from his body. In his evidence to the Tribunal, Dr Mark Clayer, a consultant orthopaedic surgeon, opined that this action would have no effect on the development of rotator cuff syndrome, which he asserted required motion of the arms above 90 degrees.

    The Applicant’s medical history during his defence service

24. There is no record in the Applicant’s service medical history, nor is it claimed by either party, that the Applicant suffered an injury to one or either of his shoulders during his defence service.

25. In his evidence to the Tribunal, the Applicant asserted that he first experienced pain in his shoulders in the late 1980s, which is also what he told Associate Professor Bruce Love, an orthopaedic surgeon, in August 2019[6]. Mr Myles also contended that his wife, who was not called to give evidence, has said she recalls him mentioning pain in his shoulders in the late 1980s and early 1990s.

    [6] Exhibit F, page 1.

26. However, there is no record of the Applicant seeking medical treatment for any condition relating to his shoulders during his defence service. In her cross-examination, Ms Slack took the Applicant to 12 medical reports dated from 1975 to 1996, all of which indicated that the Applicant’s upper extremities were ‘normal’[7].

    [7] These reports, in chronological order, are Exhibit A, T5, pages 20, 18, 21, 29, 23-26, 17, 19 and 30-31.

27. In response to a question from Ms Slack as to why he did not seek treatment for the pain or raise it during a periodic medical board examination, Mr Myles said ‘initially I thought I’d just done something more strenuous than I thought’ and ‘I always thought that military service brought with it some minor injuries and I had a high tolerance of pain, so didn’t think it an issue at the time’.

28. In response to a question from his counsel as to why he did not raise the pain issue at his discharge medical examination, noting that he answered ‘no’ to the question of ‘have you ever had or are you now suffering from … swollen or painful joints’, Mr Myles said he knew the treating RMO (Regimental Medical Officer) and that he had just come back from Africa (which he had described earlier as an arduous and physically-demanding deployment), so was not inclined to mention it.

29. Of relevance to his claimed condition, the Applicant contended in his evidence to the Tribunal that he suffered a back injury in 1977, which is noted in the medical board examination record of 6 February 1979 as ‘occasional pain from spine after trauma 2 years ago (fell and had [unintelligible word] and physio’)[8].

    [8]  Exhibit A, T5, page 18.

30. Mr Myles said he was advised at the time by a PT instructor, who had previously suffered a similar injury, to use his arms to sit down and stand up from a chair in order to reduce the stress on his back. Mr Myles said he followed this advice, especially after an incident when he jarred his back after he ‘dropped’ into a chair later in 1977 and that he has used the technique since, which he described as using his arms to control his movement into and out of a seated position (provided the chair has arms to enable him to do so).

31. Although not listed in the matrix of repetitive activities as presented to the VRB, Mr Myles contended in his statement of facts, issues and contentions dated 22 July 2020 that ‘[the] constant use of his upper limbs to assist with lowering and lifting himself into and out of a sitting position after he sustained a lower back injury in August 1977 [has been] a contributing factor’ to the development of rotator cuff syndrome[9]. In support of this contention, Mr Myles reported the opinion of his treating physiotherapist, Mr Patrick Fitzgerald, who ‘indicated [in a recent treatment session] that the potential cause of that syndrome [rotator cuff syndrome] may have resulted from my regularly using my arms to transfer my weight to avoid injury or causing pain in my lower back after my accident’[10].

    [9]   Exhibit D, page 3, paragraph 14.

    [10]  Ibid, page 4, paragraph 15.

32. Dr Clayer, in his supplementary report dated 3 September 2020, said ‘I do not agree with his opinion’, adding that ‘I do not believe that pushing oneself out of a chair would qualify for repetitive or sustained activities of the affected shoulder’[11].   

    [11]  Exhibit I, page 2, paragraph 1, and page 3, paragraph 4.

    The Applicant’s post-service employment history

33. The Applicant told the Tribunal that after his discharge from the Regular Army in January 1997, he worked in a number of consultancy and project management roles, typically relating to capital works programs, the provision of aviation service support operations or in the field of health, safety and the environment, including in East Timor, the Democratic Republic of the Congo, Woomera and various locations in Australia. 

34. Mr Myles described several of these roles as being ‘hands on’ but generally not requiring manual work, though often involving considerable travel and on-site project inspections. In a supplementary statement dated 22 May 2020, Mr Myles noted that some of these roles have included the necessity to inspect workplaces occasionally involving entry into confined spaces, accessways and onto rooftops requiring the use of ladders[12]. However, he contended that ‘climbing ladders represents an extremely low percentage of the work activity and if it is required it would typically be done using a harness’.

    [12]  Exhibit D, page 2.

    The Applicant’s post-service medical history

35. The first mention of the Applicant seeking medical treatment for his shoulders is in the report of Dr Clayer, a consultant orthopaedic surgeon, dated 19 February 2020, who recorded in his notes that ‘Mr Myles said he did not engage health care for his shoulders until 2016 when he was attending a physiotherapist for treatment for his back and mentioned that he was having problems with his shoulders’[13]. However, the only physiotherapy records presented to the Tribunal were for the period February to September 2017[14].

    [13]  Exhibit E, page 2.

    [14]  Exhibit B, pages 388-391.

36. The first evidential record of the Applicant seeking medical treatment for his shoulders is from the McLaren Vale Family Practice on 12 July 2016, where Dr Kevin Owens noted that Mr Myles had attended with ‘pain in both shoulders from carrying heavy equipment and packs, they seem to crunch when lifting up, or be less mobile’ and that ‘he will be lodging DVA claim for additional disabilities’[15].

    [15]  Ibid, page 367.

37. Dr Owens referred Mr Myles for diagnostic testing, with the report from Benson Radiology dated 19 July 2016 revealing ‘bilateral subacromial [below the topmost part of the shoulder blade] bursitis, supraspinatus [a muscle at the top of the shoulder and one of four of the rotator cuffs that helps with arm abduction] tendinosis’[16].

    [16]  Ibid, page 378.

1. On 15 January 2018, the Applicant’s condition was reviewed by Dr Allan Young, an orthopaedic surgeon specialising in the treatment of shoulders, who reported that ‘the shoulder MRI scans are fairly symmetrical with tendinopathy about the rotator cuff and some intrasubstance tendon changes but no significant tears. There is mild bursitis about both shoulders. There was AC [acromioclavicular; at the top of the shoulder] joint arthritis’[17].

   [17]  Ibid, page 416.

2. On 21 August 2019, the Applicant’s condition was reviewed by Associate Professor Bruce Love, an orthopaedic surgeon, who also gave evidence by telephone to the Tribunal. Associate Professor Love incorrectly noted in his report that the Applicant’s age was 51 years, whereas he was 61 years at the time[18]. In response to a question from Ms Slack, Associate Professor Love agreed that age is important in the diagnosis of degenerative conditions and that had he realised that Mr Myles was 61, not 51, ‘age would have been a factor’ in his diagnosis.

   [18]  Exhibit F, page 1.

3. In reviewing Mr Myles’ medical history, Associate Professor Love noted in his written report that Mr Myles contended that ‘his shoulders became painful initially on the right side and then on the left’[19]. Later in the same report, Dr Love noted that ‘the symptoms were those of pain and clicking in the shoulders with gradual increased stiffness’[20]. 

   [19]  Ibid, page 1.

   [20]  Ibid, page 3, paragraph 2.

4. In that same report, Associate Professor Love diagnosed that Mr Myles ‘has rotator cuff tendonitis as the principle [sic] diagnosis for each shoulder' and opined that ‘the onset of each condition commenced in the late 1980s … [and that] the symptoms were those of pain and clicking in the shoulders with gradual increased stiffness’[21]. In responding to a question from Mr Nottle, Associate Professor Love asserted that while the principal symptom of rotator cuff syndrome is pain, the presence of pain would not in itself automatically lead to a diagnosis; rather, it would inform the physician’s process, which he explained as a combination of the patient’s history, physical examination and special investigation.

   [21]  Ibid, page 3, paragraphs 1 and 2.

5. In responding to a question from Mr Nottle, Associate Professor Love opined that the date of clinical onset could be taken to be late 1980s because that is when Mr Myles claimed that the symptoms were first experienced. When questioned as to the basis of that opinion, Associate Professor Love said he was guided by the letter from KCI Lawyers dated 16 August 2019 which stated that ‘clinical onset … is when the signs and symptoms were experienced’[22].

   [22]  Ibid, page 6, paragraph 2 under the heading ‘Medical Evidence’.

6. In addressing the question of whether the Applicant’s diagnosed condition met the criteria outlined in SOP No. 101 of 2014 (rotator cuff syndrome), Associate Professor Love noted that ‘I conclude he was performing repetitive and sustained activities of the affected shoulder’ but ‘I am unable to understand the statement with regard to shoulder abduction or flexion of at least 60 degrees for at least 8000 hours within 20 years before the clinical onset of rotator cuff syndrome’, adding that ‘it appears the criteria by which a claim has been lodged is based on a false understanding of the pathology of the shoulders’[23].

   [23]  Exhibit F, pages 3-4, paragraph 3 and summary paragraph.

7. In response to a question from the Tribunal, Associate Professor Love seemed to suggest that he disagreed with the causation factor(s) outlined in the SOP in relation to repetitive and sustained activities but did not elaborate. Associate Professor Love concluded in his written report that ‘I am however of the opinion that on the balance of probabilities, your client’s [Mr Myles] rotator cuff syndrome was materially caused by his service and the clinical onset was within the 20 years’[24].

   [24]  Ibid, page 4.

8. Dr Mark Clayer, a consultant orthopaedic surgeon, gave evidence in person to the Tribunal in support of two written reports, dated 19 February 2020 and 3 September 2020[25]. Dr Clayer noted in his initial report that Mr Myles ‘first noticed problems with his shoulders in the mid-1990s’[26]. In the same report, Dr Clayer recorded that, at the time, Mr Myles reported ‘bilateral shoulder pain, with the left worse than the right’ and that ‘there is sometimes crepitus [crackling or grinding sound] in the shoulder associated with shoulder movement and … this is often painful’[27].  

   [25]  Exhibit E, pages 1-7 and Exhibit I, pages 1-8.

   [26]  Exhibit E, page 2.

   [27]  Ibid, page 3.

9. In his February 2020 report, Dr Clayer diagnosed that Mr Myles ‘suffers from rotator cuff syndrome in both shoulders’, adding that ‘as Mr Myles cannot recall a specific incident or even a year when he first developed symptoms, I cannot provide a date of clinical onset’[28]. Dr Clayer also contended that ‘in my opinion, none of the factors in the SOP are satisfied by Mr Myles’ circumstances’[29].

   [28]  Ibid, page 4, paragraph 1 and page 5, paragraph 3.

   [29]  Ibid, page 4, paragraph 4.

10. In his report dated 3 September 2020, Dr Clayer affirmed his earlier opinion that Mr Myles did not satisfy any of the factors associated with the development of rotator cuff syndrome[30]. He also stated that he was unable to give a date of clinical onset or worsening thereof (earlier than 2016), given that Mr Myles could not recall a specific incident or year when he first developed symptoms[31].

    [30]  Exhibit I, page 1.

    [31]  Ibid, page 2, paragraph 2.

11. In the same report, Dr Clayer also contended there is no evidence from Mr Myles’ history that he was required to do repetitive or sustained activities of the affected shoulder for the length of time stipulated in the SOP[32]. He also opined that he ‘did not believe that pushing oneself out of a chair would qualify for repetitive or sustained activities of the affected shoulder when the shoulder on the affected side is abducted or flexed by at least 60 degrees’[33].

    [32]  Ibid, page 3, paragraph 3.

    [33]  Ibid, page 3, paragraph 4.

12. In responding to cross-examination by Mr Nottle, Dr Clayer denied that his own military service, including as a regimental medical officer, had influenced his decisions in relation to Mr Myles. He agreed that Mr Myles would have done activities in his military service that could have contributed to the development of rotator cuff syndrome, such as push ups and heaves (pull ups) and carrying logs during PT.

13. In his evidence to the Tribunal, Dr Claver contended that rotator cuff syndrome is ‘an old man’s disease’ and that Mr Myles now has rotator cuff syndrome because of his age, exacerbated by bursitis of his left shoulder. He also contended that while Mr Myles may have first noticed problems with his shoulders in the late-1980s or mid-1990s, there is insufficient evidence to attribute any such problems to the clinical onset of rotator cuff syndrome as ‘they were more likely muscular’. 

    CONTENTIONS

    The Applicant

14. Mr Nottle, for the Applicant, noted it is common ground that Mr Myles has rotator cuff syndrome. He contended, therefore, that the two issues before the Tribunal are the date of clinical onset and its causative link to defence service as stipulated in the SOP.

15. On the question of clinical onset, Mr Nottle began by noting that Mr Myles served with distinction for more than 20 years and was awarded the Conspicuous Service Medal. He asserted that Mr Myles gave his evidence in an impressive manner and at no time did he seek to embellish it. He argued that the Tribunal should accordingly take due account of Mr Myles’ claim that he first experienced symptoms in the late 1980s, which is what he said also to Associate Professor Love and to the VRB.

16. Mr Nottle argued that the lack of contemporaneous evidence of Mr Myles experiencing shoulder pain during his military service is entirely unsurprising. Mr Nottle reminded the Tribunal that the periodic medical examination records cited by Ms Slack typically made no mention either of Mr Myles’ longstanding lower back issues. He also contended that the lack of medical reporting of Mr Myles’ condition during his service is not surprising given that it was not the result of an injury but rather the gradual development of a condition over time.

17. On the question of the causative link to Mr Myles’ defence service, Mr Nottle contended there is ample evidence before the Tribunal that should satisfy the relevant factors of the SOP, notwithstanding the total number of hours cited by the Applicant. Mr Nottle argued that Dr Clayer’s evidence was useful in substantiating that Mr Myles would have undertaken a range of physically demanding tasks that could have contributed to the development of rotator cuff syndrome, such as PT, drill and saluting, sporting activities and unloading heavy vehicles throughout the course of his career.

18. Mr Nottle also contended that Mr Myles could have expanded the listed activities in the matrix presented to the VRB by including a range of other activities he undertook during his defence service, such as cricket, and that a range of other types of physical activities he undertook on a regular basis could have contributed to the onset of rotator cuff syndrome. Mr Nottle also noted that the Applicant’s longstanding practice of using his arms to get into and out of the seated position, which Mr Myles said he had practised as a matter of habit for more than 20 years, had not been included in the matrix presented to the VRB.

19. Mr Nottle concluded by suggesting the Tribunal should have concerns regarding Dr Clayer’s evidence, which Mr Nottle contended was clearly influenced by his own service experience and the fact that Dr Clayer did not mention his extensive military experience in either of his reports.     

    The Respondent

20. Ms Slack, for the Respondent, argued that July 2016 was the first time that the onset of rotator cuff syndrome could be established, based on the reporting of symptoms and clinical diagnosis. Ms Slack noted that at no time prior to that had the Applicant reported an injury or ailment to his shoulders and that it was not until 2016 that he sought health care for his condition, which initially was from a physiotherapist whose report was not presented as evidence.

21. Ms Slack noted that Associate Professor Love had agreed in his evidence to the Tribunal that the diagnosis of a condition such as rotator cuff syndrome would typically be established through a clinical process that includes a review of the patient’s history, followed by physical examination and, as appropriate, specialist investigation. Ms Slack drew the Tribunal’s attention to Robertson and Repatriation Commission where it was held that ‘clinical onset occurs when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present’[34].

    [34]  Robertson and Repatriation Commission (1998) 50 ASLD 668 at [23].

22. Ms Slack also contended that Mr Myles had been inconsistent in recounting when he first experienced problems with his shoulders, variously saying the early-1980s, the mid-1980s, the early-1990s, the mid-1990s and February 2000[35]. However, she asserted there was no evidence presented to support any of these dates and the Applicant had conceded in cross-examination that memories fade over time. Ms Slack also argued the Tribunal should not give weight to the untested recollection of Mr Myles’ wife saying she remembered her husband mentioning that he was experiencing problems in the late-1980s.

    [35]  The February 2000 dated was contended by the Applicant in a Department of Veterans’ Affairs claimant  

    report dated 5 September 2016 – refer Exhibit A, T14, page 308.It was also contended in an associated   

    medical report dated 24 September 2016 – refer Exhibit A, T17, page 314.

23. Ms Slack reminded the Tribunal that none of the Applicant’s numerous medical examinations from 1975 to 1996 had included mention of a shoulder injury or ailment, and of Dr Clayer’s suggestion that Mr Myles’ recollection of pain from the 1980s could well have related to a short-term muscular ailment. She also noted that the several radiological reports support the contention by Dr Clayer that Mr Myles’ development of rotator cuff syndrome is consistent with age-related degeneration.

24. Turning to the definition of rotator cuff syndrome in SOP No. 101 of 2014, Ms Slack noted it included the symptoms of ‘persistent pain and tenderness in the shoulder that usually worsen when the arm is abducted in an overhead position’[36]. Ms Slack noted that the Applicant had repeatedly reported his symptoms as pain, stiffness and clicking; however, clicking is not a symptom mentioned in the SOP and at no time did he report persistent pain or tenderness, and only in July 2016 did he report limited abduction. Ms Slack drew the Tribunal’s attention to Youngnickel v Repatriation Commission where Bennet J, in reference to Lees v Repatriation Commission, held the Tribunal should not make a finding of clinical onset unless all the symptoms can be shown to be present at the time or within the relevant period[37].

    [36]  Exhibit I, page 13, paragraph 3(b).

    [37] (2004) FCA 1691; (2002) 125 FCR 331.

25. Accordingly, Ms Slack argued that the Tribunal ought to decide that the clinical onset of the Applicant’s condition of rotator cuff syndrome was July 2016, which would mean that his period of eligible service in the 20 years before would have been from July 1996 until his discharge in January 1997, where it clearly would have been impossible for Mr Myles to undertake 8000 hours of repetitive or sustained physical activities as stipulated by the SOP, noting that he was also on leave for several months during this 7-month period.

26. Should the Tribunal be inclined to accept an earlier date of clinical onset, Ms Slack presented a detailed rebuttal of the Applicant’s matrix as presented to the VRB, some examples of which were outlined earlier in this decision, suggesting the total number of hours would have been considerably less than the 9500 he contended and the 8000 stipulated by the SOP.

27. Ms Slack also addressed Mr Myles’ practice of using his arms to lower and raise himself from a seated position, noting Dr Clayer’s opinion that such a motion would not have contributed to his condition. Ms Slack also pointed out that SOP No. 101 of 2014 was amended in January 2021 (by SOP No. 30 of 2021) to change the definition of ‘transfer’ in factor 6(e) to make clear the intended motion needs to be ‘weight bearing’, where all or most of the individual’s weight is borne by the arms, such as transfers from a wheelchair to a bed or vice versa. Ms Slack noted that Mr Myles also told the VRB that ‘he did not regularly use his upper limbs for transfer after he swapped to a stand-up desk in 2009’[38].

    [38]  Exhibit A, T25, page 354, paragraph 31.

28. 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

29. 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:

30. 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

31. 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.

32. 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.

33. 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.

34. The Tribunal has also taken account of Associate Professor Love’s opinion that the diagnosis of a condition such as rotator cuff syndrome would typically involve a three-stage process of history, physical examination and special investigation. Noting that Lees v Repatriation Commission held that clinical onset is not satisfied by a finding that a process has commenced which the clinical diagnosis subsequently confirms[41], Mr Myles’ recollections of pain in his shoulders in the 1980s and 1990s – even if they were consistent with the key symptoms stipulated in the SOP – would seem only to inform the ‘history’ component of the process of diagnosis and would not be sufficient to satisfy the finding of clinical onset.            

    [41] Lees v Repatriation Commission (2002) 125 FCR 331.

35. The Tribunal has noted Mr Nottle’s contention that the Applicant’s difficulty in specifying a particular date when his symptoms first appeared is ‘entirely understandable’ given the passage of time and that what he was recollecting was the gradual development of a condition rather than an injury. The Tribunal also understands Mr Nottle’s contention that the condition not being mentioned in periodic medical examinations was unexceptional, given that such reports often made no mention either of other accepted injuries or ailments.

36. The Tribunal has also taken account of the contention, corroborated by Dr Clayer, that Mr Myles would certainly have been undertaking a number of tasks and activities during his military service that could have contributed to the onset of rotator cuff syndrome. However, the Tribunal finds it difficult to accept that Mr Myles would have been suffering from a condition characterised by persistent pain and tenderness for the period of time he alleges – which by his recollection could have been somewhere between 16 and 28 or so years – without seeking medical treatment or mentioning it in the course of a periodic medical examination during his military service.

1. On balance, therefore, the Tribunal has decided that the correct or preferable date of the clinical onset of Mr Myles’ condition of rotator cuff syndrome of both shoulders was mid-July 2016. As a consequence, given that the date of clinical onset did not occur before or during Mr Myles’ period of service, the Tribunal has concluded that the consideration of ‘clinical worsening’ is not relevant to this matter.

   Causation

2. On the basis that the date of clinical onset is July 2016, the two factors in the relevant SOP relied upon by the Applicant must fail. That is because, in relation to factor 6(c), it would have been physically impossible, as argued by Ms Slack, for the Applicant to have performed repetitive or sustained activities involving both shoulders for 8000 hours in the 20 years before the date of clinical onset, given that the only period of the Applicant’s defence service that falls within that period was the 7 months between 1 July 1996 and 27 January 1997, during which time he was also on leave for an extended period.

3. Similarly, in relation to factor 6(e), the Applicant told the VRB that he did not regularly use his upper limbs for transfer after he went to a stand-up desk in 2009, so there is no evidence to meet the requirement of ‘regularly using the upper limbs for weight-bearing for a continuous period of at least the one year before the clinical onset of rotator cuff syndrome’, which would have been from mid-July 2015 to mid-July 2016.

4. However, for completeness, the Tribunal has considered the evidence in relation to causation irrespective of the date of clinical onset. Firstly, in relation to factor 6(c), the Tribunal has taken account of the contention by Mr Nottle that Mr Myles could have expanded the listed activities in the matrix presented to the VRB by including a range of other activities he undertook during his defence service, such as cricket, and that there were many types of other physical activities he undertook on a regular basis that could have contributed to the onset of rotator cuff syndrome, as agreed by Dr Clayer.

5. The Tribunal has also noted the contention by Ms Slack that several of the activities claimed by Mr Myles in his estimate of 9500 hours of repetitive or sustained use of his shoulders were based on calculations that were either incorrect or exaggerated, such as the examples she used in relation to saluting and playing soccer. The Tribunal has noted Mr Nottle’s contention that the document tabled by Ms Slack in support of her closing address was not subject to cross-examination and that the Tribunal should accordingly ‘exercise some caution’ in considering its contents and conclusions.

6. The Tribunal has also taken account of the evidence of Dr Clayer who, with the benefit of his own military experience, opined that Mr Myles’ use of a mine-detector in Mozambique would have had no effect on the development of rotator cuff syndrome. The Tribunal also notes that Dr Clayer opined in his report of 3 September 2020 that ‘there is no evidence from Mr Myles’ history that he was required to do repetitive or sustained activities of the affected shoulder for that length of time [meaning 8000 hours]’, adding ‘I do not believe he [Mr Myles] has had an overall exposure time of 8000 hours’[42].

   [42]  Exhibit I, page 3, paragraphs 3 and 4.

7. On the balance of probabilities, and particularly taking into account the evidence presented in relation to the day-to-day physical activities involved in the course of Mr Myles’ defence service, the Tribunal has concluded it is unlikely the Applicant would have performed repetitive or sustained activities where the affected shoulders were abducted or flexed by at least 60 degrees for at least 8000 hours across any 20-year period of his defence service as required by factor 6(c) of SOP No. 101 of 2014. 

8. Turning to the question of whether Mr Myles’ use of his upper limbs to lower and raise himself from a seated position would have contributed to the development of rotator cuff syndrome, the Tribunal notes that the Applicant’s reliance on this factor pre-dated the amendment to the relevant SOP of January 2021 which changed the wording of the necessary motion from ‘transfer’ to ‘weight-bearing’.

9. The Tribunal notes Ms Slack’s assertion that the Applicant’s medical support for this contention is based on an unsubstantiated comment by his physiotherapist, which was not presented as evidence to the Tribunal. The Tribunal also notes Dr Clayer’s opinion that ‘I do not believe that pushing oneself out of a chair would qualify for repetitive or sustained activities of the affected shoulder’. The Tribunal has concluded, therefore, that Mr Myles would not have regularly used his upper limbs for weight-bearing for a continuous period of at least the one year before the clinical onset of rotator cuff syndrome as required by factor 6(e) of SOP No. 101 of 2014.

10. Insofar as the opinion of Dr Clayer differs from that of Dr Love, the Tribunal prefers Dr Clayer. Dr Clayer had regard to Mr Myles’ correct age of 61 years when assessing his condition and the impact age had on what he opined was a degenerative condition. Dr Love conceded that had he realised that Mr Myles was in fact 61 years of age, not 51 years of age, he would have factored that into his diagnosis. That Dr Love did not consider the Applicant’s correct age, adds further to the basis upon which the Tribunal accepts Dr Clayer’s opinion.

11. For completeness, the Tribunal has also concluded there is no evidence, that establishes on the balance of probabilities, that any other factors of SOP No. 101 of 2014 have been met.    

    CONCLUSION

12. 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

13. 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 Legal

    Dated: 21 April 2021              

    Dates of hearing:  15-16 March 2021

    Advocate for the Applicant:  Mr Joshua Nottle, Denham Chambers

    Advocate for the Respondent:  Ms Kate Slack, Higgins Chambers

    
    

A: T documents;
   B: supplementary T documents Vol. 1;
   C: supplementary T documents Vol. 2;
   D: Applicant’s statement dated 22 May 2020;
   E: bundle of documents including the report by Dr Mark Clayer;
   F: bundle of documents including the statement by Associate Professor Bruce Love;
   G: Applicant’s statement dated 27 August 2019;
   H: bundle of documents including list of treating practitioners, and
    I: bundle of documents including supplementary report by Dr Clayer.

awards/conspicuous-service-decorations.