Peter Prendergast and Repatriation Commission
[2012] AATA 698
•10 October 2012
[2012] AATA 698
Division VETERANS' APPEALS DIVISION File Numbers
2011/1846
Re
Peter Prendergast
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Mr John Handley, Senior Member
Date 10 October 2012 Place Melbourne Decision The decision of the Veterans’ Review Board made on 30 March 2011 is set aside and in substitution IT IS DECIDED that:
1.the applicant’s bilateral rotator cuff syndrome is war-caused; and
2.he is entitled to pension at the special rate from the commencement of the assessment period.
(sgd) John Handley
Senior Member
VETERANS' AFFAIRS – operational service – severe foot injury accepted as war-caused –whether instability in foot caused him to fall resulting in injuries to shoulders – whether injury was bilateral rotator cuff syndrome – whether that injury is war-caused – assessment – special rate – farmer – under 65 at date of claim – whether war-caused injuries alone prevent applicant from undertaking remunerative work – VRB decision set aside
LEGISLATION
Veterans' Entitlements Act 1986 ss 120, 120A, 24, 28
CASES
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Kaluza v Repatriation Commission (2011) 280 ALR 621
REASONS FOR DECISION
Mr John Handley, Senior Member
1.The applicant is a Vietnam veteran who made a claim for acceptance of bilateral rotator cuff syndrome and an increase in his disability service pension. On 11 December 2009 the Repatriation Commission (the respondent) refused his claim and continued his pension at the intermediate rate. On 30 March 2011 the Veterans’ Review Board (VRB) affirmed the respondent’s decision. On 13 May 2011 the applicant applied to this Tribunal for review of the VRB’s decision.
2.The applicant has a number of injuries that have been accepted as war-caused, namely:
·a crush injury and fractures of his right foot;
·depressive disorder;
·anxiety disorder;
·bilateral sensorineural hearing loss;
·bilateral tinnitus;
·irritable bowel syndrome;
·lumbar spondylosis; and
·oesteoarthrosis of both knees.
The applicant also suffers from sleep apnoea and rotator cuff syndrome of both shoulders which have not been accepted as war-caused.
The focus of this review was principally whether a connection exists between the right foot injury (accepted as war-caused) and the shoulder injuries. The circumstances of that connection as submitted on behalf of the applicant are briefly summarised in the following paragraphs.
The applicant suffered a crushed right foot on 8 July 1969, in Nui Dat, in South Vietnam when he was a member of a road construction squadron. A large roller, estimated by the applicant to weigh between six and eight tons, ran over his right foot and crushed it. The applicant described the pain from the injury as intense and he thereafter suffered a prolonged period of extensive treatment involving:
·surgery;
·skin grafting; and
·treatment of a severe recurring infection.
Later, he was evacuated to the Repatriation Hospital in Melbourne. At times the applicant faced the risk of amputation.
When he was eventually discharged from hospital, the applicant was assigned to lighter duties, principally clerical, at Watsonia and Puckapunyal. He was discharged from the Army on 16 July 1970.
The applicant has continued to suffer severe pain and restriction in his right foot. He has walked with a limp and has an altered gait. In recent years, he has used a single point walking stick. There have been many occasions when he has placed weight on his right foot and has suffered a searing and intense burning sensation which has caused him to lose balance and fall.
In November 2004, the applicant fell onto his outstretched arms and as a consequence, he contends that he suffered the rotator cuff injuries in his shoulders.
In his statement, the applicant recorded that he was walking on even ground when my foot gave way and I fell (Exhibit A1, at paragraph 60).
In evidence the applicant said he was drafting cattle on his farm near Ballarat and I stepped – put my foot out just to shift places and my foot gave way and I put both my arms out to the break the fall (Transcript, p 8). When asked whether he remembered why his foot had given way, he said:
Well, as it always has done it’s a fact that when I put my foot down to bear weight on sometimes it feels like I’m standing on hot coals or something sharp and I actually lift my feet – foot off the ground and, therefore, I overbalance (Transcript, p 8-9).
He said he did not have any doubt that was the mechanism and circumstances of the injury to his shoulders. He said:
Well, as soon as I did it I felt like I’d torn ligaments in those shoulders. They were very painful. They were – actually, they were excruciatingly painful because I couldn’t move them a lot after I had done that. I had a job getting up actually (Transcript, p 9).
At the conclusion of cross-examination, I advised the applicant that the questions asked of him in examination-in-chief and in cross-examination about the mechanism were significant because a number of doctors who had provided medical reports had given varying accounts of the circumstances of the fall. For example, there were references to the applicant having either tripped or slipped or stumbled without obvious connection to the right foot injury and pain. I asked the applicant whether he maintained his description of having overbalanced. Although he said it was fairly hard to remember exactly what I did, he added:
…because it happened so quickly, you just – if you’ve got one foot halfway on the ground and the other one off the ground, you’re naturally going to fall whether you stumble or fall or whatever (Transcript, p 39).
When he was asked whether he was walking at the time that he fell, the applicant said:
I stepped – I took one step, I think, as far as I can remember, and when I put my foot down to bear the weight ... I had that sharp pain sensation in my foot, and I’ve probably pulled it back (Transcript, p 39).
The applicant said there had been a number of occasions, both before and after that episode, where he has suffered the burning sensation in his foot when it has taken his weight and which caused him to overbalance and fall. That evidence was corroborated by Mrs Prendergast who also gave evidence in these proceedings.
The applicant suffered another fall in March 2010, where he fell onto his outstretched arms. He later had surgery to his left shoulder. That episode and the consequent left shoulder injury has not been the subject of a claim to the respondent. In his statement, the applicant referred to suffering an injury to his right shoulder in the fall of 2004. An issue that emerged in this review was whether the applicant did suffer bilateral rotator cuff injuries in the fall of 2004 or a rotator cuff injury of the right shoulder only.
The Veterans’ Entitlements Act 1986 (the Act) must be applied to determine whether the applicant’s right shoulder injury or both shoulder injuries are war‑caused. Section 120 of the Act provides that a disease or injury will be war-caused unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. There will be no sufficient ground for making that determination if the material does not raise a reasonable hypothesis connecting the injury or disease with war service (s 120(3) of the Act). Section 120A(3) provides that a hypothesis will be reasonable if there is a Statement of Principles (SoP) in force that upholds the hypothesis. In Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98, the Federal Court set out a four-step process to determine whether an injury or disease is war-caused in accordance with s 120 and s 120A of the Act. However, before that process commences, there must be a finding, on the balance of probabilities, of diagnosis.
DIAGNOSIS
I am satisfied that the applicant does suffer bilateral rotator cuff syndrome. There are some imperfections in the description of the shoulder injuries. In the claim form, the applicant’s condition is described as L and R shoulder impingement (T8, p 42).In her report dated 7 December 2005, Dr Horsley refers to the injury as significant disability in his bilateral shoulders (T5, p 28). Dr Baxter, the applicant’s treating practitioner refers to limiting capsulitis of his right shoulder (T, p 346), and to a right shoulder injury generally (T, p 347 and T, p 383).
Dr D’Souza, a medical officer engaged by the Department of Veterans’ Affairs (DVA), having reviewed the medical evidence on 24 October 2006, found that the applicant satisfied the description of bilateral rotator cuff syndrome in ICD-9-CM (T, p 29). Mr Peter Scott, an orthopaedic surgeon provided a report at the request of the respondent on 25 November 2006 and was satisfied that the applicant suffered from bilateral rotator cuff lesions (T, p 34). A report of an ultrasound conducted of both shoulders on 7 December 2004 described the applicant’s injury with sufficient particularity to comply with the definition of rotator cuff syndrome reproduced in the relevant Statement of (SoP) (Instrument N° 39 of 2006) (T, p 118-119).
Mr Wearne, an orthopaedic surgeon engaged by the applicant’s solicitors, was satisfied, having observed the ultra sound report, that the applicant then had substantial full thickness tears of the supraspinatus tendon on both shoulders with evidence of some subacromial bursitis. He concluded the applicant had a fairly second rate rotator cuff in each shoulder (Transcript, p 51).
Having regard to the majority of the medical evidence, particularly the opinions of the two orthopaedic surgeons Messrs Scott and Wearne, I am satisfied on the balance of probabilities that the applicant suffers from bilateral rotator cuff syndrome.
IS BILATERAL ROTATOR CUFF SYNDROME WAR-CAUSED?
The first stage of the Deledio process requires the Tribunal to consider whether the material before it points to a hypothesis connecting the injury with service. The applicant contended that during his operational services in Vietnam, he sustained serious injury to his foot (accepted as war-caused). The foot injury has resulted in instability which has caused him to fall onto his outstretched arms, thereby injuring his shoulders and causing his bilateral rotator cuff syndrome.
Having regard to the evidence before me and the submissions of the parties, I am satisfied that the material points to a hypothesis connecting the applicant’s bilateral rotator cuff syndrome to his operational service. Therefore, the first stage of the Deledio process is satisfied.
A SoP has been issued by the Repatriation Medical Authority (the RMA) that is in force concerning Rotator Cuff Syndrome being Instrument N° 39 of 2006. Therefore, the second stage of the Deledio process is also satisfied. The applicant relies on Factor 6(a), namely:
…having an injury to the affected shoulder within the 30 days before the clinical onset of rotator cuff syndrome; ....
The expression an injury to the affected shoulder is defined at paragraph 9 of the Instrument as follows:
9.For the purposes of this Statement of Principles:
“an injury to the affected shoulder” means an injury to the shoulder region that causes the development, within the 24 hours of the injury being sustained, of pain, tenderness, and altered mobility or range of movement of the shoulder joint. These symptoms and signs must last for a continuous period of at least seven days following their onset; save for where medical intervention for the injury to that shoulder has occurred and that medical intervention involves either:
(a) immobilisation of the shoulder by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that shoulder; or
(c) surgery to that shoulder
I am satisfied that the hypothesis is consistent with the template found within the SoP. It contains a factor the RMA has determined must exist as a minimum and be related to the applicant’s service. It follows therefore, that a reasonable hypothesis has been raised connecting bilateral rotator cuff syndrome with the circumstances of the applicant’s service and the third stage of the Deledio process is satisfied.
The fourth stage of Deledio requires me to decide whether I am satisfied beyond reasonable doubt that the applicant’s bilateral rotator cuff syndrome is not war-caused in accordance with s 120 of the Act. It is at this stage that I must make findings of fact. A number of issues emerged in evidence which will require analysis.
It was submitted on behalf of the respondent that the applicant’s evidence was unreliable and inconsistent. The respondent relied on the applicant’s failure to disclose any shoulder injury to the VRB in 2004, inconsistent accounts about the mechanism of his fall and whether one or both shoulders were injured. The respondent also relied on information provided in a claim form for income protection benefits.
The applicant appeared before the VRB on 8 November 2004, that is, within a few weeks of the fall in October 2004 (T, p xi at [27]). It appears from the findings of the VRB that in 2004 the applicant had applied for pension at the special rate. It also appears – and the applicant confirmed in evidence before this Tribunal – that he was advised by his advocate to refrain from notifying the VRB, in the 2004 proceeding, that he had shoulder injuries. The applicant admitted that he did follow that advice. He said he thought the shoulder injuries would be relevant to the VRB but his advocate told him we’ve got enough without going with the shoulders ... and he had been told not to mention the shoulder injuries. The applicant thought that it was strange that he said that to me (Transcript, p 31).
The VRB apparently decided in 2004 that the applicant did not qualify for pension at the special rate. He then applied to this Tribunal for review of the VRB decision. The application was ultimately withdrawn.
I am not satisfied that the applicant’s omission before the VRB is a sufficient basis for a finding that he did not sustain shoulder injuries. Had the VRB been aware in November 2004 that the applicant had suffered shoulder injuries – which were not then the subject of any claim before the respondent – he was at risk of being unable to satisfy the alone test (s 24(1)(c) of the Act) and therefore, his application was unlikely to succeed. Non-service related shoulder injuries were likely to have compromised the applicant’s case both before the VRB and the subsequent application for review in this Tribunal in 2005. That may be the explanation for the advocate’s advice and subsequent withdrawal, by his solicitors of the application. (I should indicate that the advocate before the VRB in 2004 was not the same advocate who represented the applicant before the VRB in this application, nor are the applicant’s current solicitors the same representatives who acted for him in the application before this Tribunal in 2005).
The applicant does not have any legal qualifications and there is no evidence that he professes to have any practical knowledge of the operation of the Veterans’ Entitlements legislation or specifically s 24 of the Act. He was entitled to act on the advice of both his advocate and his lawyers. I do not condone the applicant’s omission. However, I am not prepared to conclude that the applicant’s failure to disclose to the VRB in 2004 that he had shoulder injuries amounts to evidence that he had not suffered them. In addition to the applicant’s evidence, I heard the evidence of his wife, who recalled him having complained of falling and observed him hold his arms which is consistent with the applicant having sustained injury. There is also contemporaneous medical evidence which supports the applicant’s evidence.
A radiology clinic conducted the ultrasound examination on 7 December 2004 and reported tears in both shoulders (T, p 118-119); Mr Flynn, a physiotherapist provided a certificate on 2 December 2004 in which he reported bilateral shoulder problems … remain painful and restricted with regard to movement (T, p 354); and on 22 October 2004 Dr Baxter recorded right shoulder injury from fall. Although only referring to the right shoulder injury, Dr Baxter confirmed the complaint of shoulder injury as a result of a fall in October 2004. Therefore, there is documentary evidence that predates the appearance before the VRB and which points to the shoulder injuries existing immediately following the fall as the applicant alleged in October 2004.
Whatever might be inferred from the conduct of his advocate, it is not sufficient in my view to satisfy me as a fact that the applicant did not then have shoulder injuries. I am satisfied that at November 2004, the applicant did have injuries to his shoulders which arose out of a fall on his farm in October 2004. The evidence of the applicant and his wife and contemporary medical evidence referred to above, reassures me that such a finding can properly be made on the balance of probabilities.
Another issue that emerged in evidence was the mechanism of the fall in October 2004. There are references in a number of medical reports to the applicant either having tripped or slipped. Those references probably gave rise to a suspicion that the applicant’s fall in October 2004 had no relationship to his right foot injury.
Having observed the applicant in evidence and having heard him explain on a number of occasions in examination-in-chief, in cross-examination and in response to questions from me, I am satisfied and find as a fact that on the day that he fell, he suffered immediate burning type pain in his right foot when he put weight on it, having lifted his left foot off the ground, whilst walking. In response to that sensation, he lifted his right foot to take weight off it and in so doing, he overbalanced and fell. I am satisfied that the sensation he then felt in his foot is a legacy of the pain and discomfort that he has had since he injured his right foot in Vietnam. I am satisfied also, based on the evidence of the applicant and his wife that he has had falls without prior warning on other occasions for entirely the same reasons. That is, he felt severe burning sensation when he has placed weight on his right foot, he lifted it and he has fallen.
A further issue that emerged in this review which I think is of some significance, is a claim form signed by the applicant seeking loss of income benefits under a private policy that he held with the Commonwealth Bank (CommInsure) (T, p 138-140).
The applicant said in evidence, also corroborated by his wife, that a few years prior to 2004, there was concern about his injuries and the possibility that he would become incapacitated and suffer loss from their farming enterprise. They were advised by their accountant to purchase Income Protection insurance.
Within a short time of the applicant suffering the shoulder injuries in October 2004, an insurance agent attended the applicant’s home, took details of the circumstances of the fall and largely completed the claim form. The applicant said that there were some details which he could not provide. The agent asked him to sign the form, which he did, and the agent said that he would:
... put the rest of it in when I get back to the office. Which I did do and that was about it (Transcript, p 10).
The claim form was signed by the applicant on 23 October 2004. It records that the applicant was then working 40 hours per week and that he suffered injury to his left and right shoulder on 9 October 2004 when he was drafting cattle and slipped and fell in cattle yard (T, p 138-139).A supporting medical certificate was completed by Dr Baxter and annexed to the claim form which records that he first attended the applicant for the shoulder injury on 22 October 2004 (the day before the form was signed) and the injury occurred on ~20 September 2004. Dr Baxter recorded that the incident occurred because the applicant fell in cattle yard (T, p 142-143).
The applicant said that he could not understand why the agent recorded that he had slipped and explained I always said I – my foot gave way but they interpret it I suppose (Transcript, p 11).
In cross-examination and in answer to some questions from me, the applicant said that the form that he signed had been partially completed at his home in the presence of the agent however, the agent had said to him I will go back to the office and check up on some things, and I will – he said sign that and I will fill it in and send it off (Transcript, p 28).
The applicant was asked to explain why the agent would have recorded that he was then working 40 hours per week when he was then working about 20 hours per week (Transcript, p 29). He said the agent told him if you put that in (20 hours per week) you won’t get anything. The applicant also said that the agent had told him I will fix that. So I took his word for it (Transcript, p 29).
The claim form does contain a number of errors. The issue of the number of hours per week that the applicant was then working will be discussed below. The first medical practitioner attended by the applicant following the fall was recorded as Charlie Flynn who prescribed physiotherapy. This is an oversight because Mr Flynn is not a medical practitioner. He is a physiotherapist who the applicant attended before Dr Baxter (T, p 145). I accept that the injury to the shoulders did occur on or about 9 October 2004, it being very close to the date that the claim form was signed on 23 October 2004. I am satisfied also by the entries within the form that the agent did make enquiries of both the clinic of Mr Flynn and Dr Baxter because he has recorded the dates of attendances upon those persons. That is the type of information to which the applicant alluded when he referred to the information the agent said he would seek when he returned to his office.
Lodging the claim form with the insurer was not without consequence. When the insurer learnt that the applicant had suffered other illnesses (which are recorded in the supporting medical certificate of Dr Baxter), it decided to decline the claim and the policy because those illnesses had not been disclosed when the policy was first purchased. While there are discrepancies in the claim form, I am not prepared to accept that the contents of the claim form should cause an adverse inference to be drawn against the applicant.
I do not doubt the applicant’s credibility. However, I am of the view that he is a naive person who (not unlike his experience with the VRB advocate in November 2004) has been prepared to place trust in professional persons and/or persons who he has assumed either have expertise that he does not and/or are prepared to act appropriately and competently on his behalf.
The applicant acknowledged in evidence that he should not have signed the form when parts of it were incomplete. A consequence of that decision was that he was unable to scrutinise information that was later added (and omit information that was false or in error).
As stated previously, I am satisfied that the fall occurred because of instability as a consequence of his accepted right foot injury. It follows that I do not accept that he slipped or tripped as some of the doctors recorded. I maintain that view, despite the reference within the insurance claim form of the applicant having slipped.
The reference to the applicant working 40 hours per week at the date of the fall was inserted at the recommendation of the agent, despite the applicant’s advice to him that he was not working those hours. The applicant acted on the advice of the agent which he should not have done. Insofar as this review is concerned, I am not prepared to attach weight to the contents of the form as contended by the respondent which might otherwise have a negative consequence to the applicant.
Another issue which must be addressed is the applicant’s statement that he suffered an injury to his right shoulder only when he fell in October 2004 (Exhibit A1, at paragraph 60). In evidence the applicant explained the right shoulder was worse than the left at the time. When he was asked to explain why the right shoulder was worse than the left shoulder he said I could use my left arm to a certain degree but my right arm I couldn’t use at all (Transcript, p 10). The applicant gave a similar explanation in cross‑examination (Transcript, p 26).
The applicant understood that Dr Baxter, his treating general practitioner, recorded in his notes on 22 October 2004 that the applicant suffered a right shoulder injury from a fall (T, p 383). However, in a report dated 24 June 2005, Dr Baxter recorded that when the applicant saw him on 22 October 2004 the major problem was his right shoulder ... In the same report, Dr Baxter recorded that on 3 November 2004 He came because his shoulders were bad (T, p 145).
I do not accept that the references by the applicant and his general practitioner to a right shoulder injury following the fall of October 2004 support the contention that the applicant sustained an injury to that shoulder only. It is clear from the evidence of the applicant and indeed from the report of Dr Baxter of 24 June 2005, that the applicant had injured both shoulders but the right shoulder was worse than the left shoulder. I am satisfied that both shoulders were injured in the fall in October 2004. I am fortified in this view by the ultrasound of 8 December 2004 which revealed significant injuries to both shoulders (T, p 118-119). It would appear that the ultrasound was undertaken at the referral of Dr Baxter but on the recommendation of Mr Flynn, the physiotherapist, who wrote to Dr Baxter on 2 December 2004 and referred to the applicant having bilateral shoulder problems. He recorded that despite treatment, the applicant continued to have painful shoulders with restricted movements and suggested that the applicant might benefit from cortisone injections (T, p 354).
Although Dr Baxter and Mr Flynn did not give evidence, it would appear that Mr Flynn indicated to Dr Baxter that other types of treatment may benefit the applicant which in turn may have caused Dr Baxter to refer the applicant for ultrasound. There is nothing from the materials lodged in this proceeding to indicate that any type of diagnostic investigation of the applicant’s injury had occurred prior to the ultrasound on 7 December 2004, being approximately three months after the applicant fell. Additionally, there is no evidence of any other shoulder injuries between October and December 2004.
In concluding this part, I note that Dr Baxter recorded in the medical certificate supporting the claim for insurance that the injury to the applicant’s shoulders occurred approximately 20 September 2004. I do not understand why Dr Baxter recorded that date. The first entry in Dr Baxter’s clinical records of him attending the applicant for the right shoulder injury was on 22 October 2004. Whilst he has no record in those notes of when the injury occurred, and the applicant was uncertain precisely when he fell, all the medical records point to the applicant first being treated for the shoulder injuries in October 2004. It appears the applicant continued to consult with Mr Flynn until he first saw Dr Baxter on 22 October 2004. There is nothing from any of the clinical material which points to the applicant having fallen in September 2004.
The final issue in this part are the contents of a report completed by Mr Wearne who provided a medico-legal report dated 21 February 2012 at the request of the applicant’s solicitors (Exhibit A2). Mr Wearne also gave evidence in this proceeding.
Mr Wearne obtained a history from the applicant of having fallen on two occasions because of pain and instability in his right foot. He obtained a history that the applicant suffered an injury to his right shoulder in the first fall and suffered an injury to his left shoulder in a second fall in 2010 which resulted in arthroscopic surgery to that shoulder (Exhibit A2, p 5).
Mr Wearne reported that in his opinion, the instability in the applicant’s foot caused him to fall and it was reasonable to conclude that a combination of the falls of October 2004 and March 2010 caused the applicant to suffer rotator cuff injuries to both shoulders (Exhibit A2, p 8-9).
It appears that the applicant gave a history to Mr Wearne similar to the history that he gave to Dr Baxter and in evidence in these proceedings namely, that he complained of his right shoulder because it was worse than his left. However, Mr Wearne was not given a copy of the ultrasound report of 7 December 2004 until a few minutes before he gave his evidence and therefore, did not know that the applicant did suffer injury to both shoulders as a result of the fall of October 2004.
Mr Wearne said there is not much difference between the findings of 2004 and findings again in 2010 at or about the time the applicant had surgery on his left shoulder (Transcript, p 51). It was his opinion that the applicant did injure his left shoulder in the fall of 2010 and it was for that reason he had surgery. However, he concluded, having studied the ultrasound report, that the applicant suffered rotator cuff syndrome, bilaterally, in 2004. This opinion, although expressed differently, is consistent with an opinion reported by Dr Grehan, a DVA medical officer in a report of 12 October 2010 (T17, p 117).
Immediately after the fall in 2004, the applicant said that he felt as if he had torn ligaments in both shoulders. He described his shoulders as being excruciatingly painful. He described the pain as lasting for years (Transcript, p 9). Later when asked about the effect of his shoulder injuries upon farming, he said that he was unable to lift weights or work above chest height. He described a recent event where he attempted to lift curtains at home and he felt as if his shoulders froze (Transcript, p 12). In cross-examination, the applicant confirmed he was unable to work using his right arm and shoulder and said that he could do half of what I could do before to describe the function of his left shoulder following the fall in 2004. Although the VRB asked few questions of him concerning the function of his shoulders, the applicant said that he had weakness of the right arm (VRB transcript, p 22).
On the balance of probabilities, I am satisfied that on or about 9 October 2004, the applicant overbalanced and fell onto his outstretched arms causing an injury to (each) affected shoulder as defined in paragraph 9 of the SoP. The injury was bilateral rotator cuff syndrome. He did suffer tenderness, pain and limited mobility for at least seven days following onset. I am also satisfied on the probabilities that he overbalanced because having transferred weight onto his right foot whilst walking, he suffered a sudden burning type sensation which caused him to lift his right foot off the ground and he was unable to remain stable.
I am satisfied that the clinical onset of rotator cuff syndrome will either be when the applicant became aware of his symptoms which would enable a doctor to say the injury was present (that is, in the present case on the day it occurred) or when a finding was made on investigation which indicates to a doctor that an injury was present (in the present case on 22 October 2004 when he saw Dr Baxter) (Lees v Repatriation Commission (2002) 125 FCR 331 at [13]; Kaluza v Repatriation Commission (2011) 280 ALR 621 at [66]). It follows in both instances that the clinical onset of bilateral rotator cuff syndrome occurred within 30 days of the fall. Therefore, factor 6(a) of the SoP is satisfied.
In these circumstances, I am satisfied that the bilateral rotator cuff syndrome is war‑caused and that part of the decision of the VRB under review in these proceedings should be set aside.
SPECIAL RATE ENTITLEMENT
The assessment period commenced on 14 September 2009 when the applicant claimed an increase in pension. He was then 62 years of age. His entitlement is to be determined pursuant to s 24(1) of the Act. At that date the applicant was in receipt of intermediate rate of pension. Most of the provisions within s 24 have therefore been satisfied and during the hearing the respondent conceded that the applicant has suffered a loss of salary, wages or earnings.
The issue remaining is whether, from the commencement of or from a date within the assessment period, the applicant has been totally and permanently incapacitated from his war-caused injuries, alone, to render him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week and whether he is prevented from continuing to undertake remunerative work that he previously was undertaking.
Prior to enlistment the applicant was educated to year 11 level at Salesian College where he completed an agricultural course. He then worked on his family’s farm near Ballarat for a short time prior to enlistment. Whilst a member of the Army he was trained in the use of heavy vehicles. After he was discharged, he returned to work on the family farm at Ballarat.
The effect of the applicant’s war-caused injuries, no less his right foot injury, caused him to be incapable of performing many tasks. He was unable to stand or walk for long periods and drove motor vehicles, but with difficulty.
In about 1989 the farm could not economically sustain the applicant and his brothers, their father and their respective families. The applicant and his wife decided to move to South Australia where they grew potatoes for about 9 years. The applicant’s physical and emotional injuries deteriorated and in 1998 he and his wife returned to Ballarat where they purchased part of the family farm and some neighbouring properties. They then had an aggregate of 280 acres. Farming of the land comprised potatoes, livestock and grain. Most of the work was undertaken by the applicant’s son and son-in-law and when needed, casual labour was engaged. The applicant did not undertake any heavy work and described his role principally as shifting livestock between paddocks, purchasing parts and equipment when needed and responding to the directions of his son and son-in-law.
The applicant recalled that his health was deteriorating, he was stressed, he was embarrassed by his physical restrictions and described his role as getting in the road (Transcript, p 16). His anxiety and depression affected his ability to cope. He recalled that he was often sweating (which he associated with stress) and his irritable bowel caused considerable discomfort. He recalled also that his back was frequently stiff and painful and his knees would lock. He continued to suffer considerable pain in his right foot.
In about 2002 or 2003 the applicant’s son left and worked elsewhere. When asked to explain the reasons for him doing so, the applicant said:
…he reckoned I was too hard to work for – with. But I was very needley and aggravated a lot of the time. He was doing the bulk of the work and he got a bit jack of it, I suppose (Transcript, p 19).
The applicant and his wife sold all of their potato harvesting and processing equipment and thereafter, suffered a considerable reduction in income. He had a contract to supply potatoes to McCain’s in Ballarat and estimated that in the last full year of earning, gross receipts were between $450,000 and $500,000. The majority of the farm was leased to a seed potato grower and the remaining acres have been used by the applicant to run approximately 50 head of cattle.
The applicant said that maintaining the cattle involves very little work. He said he checks the water troughs every second day which occupies about half to one hour of his time. On one occasion per week, he would deliver one round bale of hay using forks fitted to a tractor. About every six weeks, he opens gates and shifts cattle between paddocks. His son-in-law cuts and rakes hay each year and a contractor makes up the round bales.
The applicant estimated that he would work on his farm for a total of about 4 hours per week. He said he was physically unable to undertake any other work or for any greater number of hours.
Mrs Prendergast said in evidence that their son explained to her that he was unable to work with his father and he therefore left to work elsewhere. She said her husband was unable to manage because of his anxiety state and their son had reacted to it. She was also aware that her husband was unable to undertake heavy physical work and because of his foot injury, he was prone to falling which she described as a regular occurrence (Transcript, p 55).
In the absence of their son who was a fit young man capable of undertaking heavy physical work, she and her husband decided in about 2002/2003 to wind down their farming operations.
In recent years, the applicant and his wife have travelled to Queensland for 3 or 4 months each year. He agreed that he has probably retired and does enjoy a retired lifestyle but said were it not for his disabilities he would have continued as a farmer. He said I loved it and it’s my life (Transcript, p 43).
Dr Charles Castle provided a medico-legal opinion on 9 September 2004 at the request of the applicant’s advocate before the VRB in September 2004 (T, p 356). Initially (p 360) he stated that the applicant was not capable of working more than 8 hours per week. However, in the following page, his opinion changed and he stated that the applicant, who gave a history of working 6 hours per week, was capable of working more than 8 but less than 20 hours per week. Dr Castle did not believe the applicant was only working 6 hours per week. I regard that opinion as unhelpful and an issue for me to determine. I suspect he was influenced by the history he obtained of the applicant having made a decision to reduce his hours. His report was completed before the shoulder injuries were sustained, which occurred in the following month.
Dr Amanda Sillcock prepared a report on 18 August 2005 for the applicant’s previous solicitors (T, p 71). In her opinion, the accepted disabilities of lumbar spondylosis, depression, anxiety and the right foot injury in combination, prevented the applicant from working more than 8 hours per week. Dr Sillcock was aware that the applicant had shoulder injuries and I note that her opinion about his capacity is absent any reference to the shoulders and to his knee injuries.
Mr Peter Scott, an orthopaedic surgeon provided a medico-legal opinion at the request of the respondent on 25 November 2006 (T7, p 30). It was his opinion that the applicant was fit for light work on a part-time basis at 2-3 hours per day, over 2-4 days per week. He concluded that the applicant was then able to work more than 8 hours per week. His opinion had regard only to the back, knees and shoulder injuries. He was aware that the applicant had a right foot injury and also suffered irritable bowel. He also understood that the applicant suffered from post-traumatic stress disorder. He apportioned 75 per cent incapacity by reason of the applicant’s back injury and the remaining 25 per cent equally between the shoulders and knee injuries. I cannot discern from his report, particularly having regard to his apportioning of impairment, that his opinion about the applicant’s capacity had regard to all of the other accepted disabilities, especially the foot injury.
In a hand written entry on 24 November 2004, Dr Baxter has recorded can’t work (T, p 382).
Mr Wearne reported that the applicant did have a capacity to work more than 8 hours per week but less than 20 hours per week (Exhibit A2). However, when he was provided with a copy of the ultrasound report indicating that there was an injury to both shoulders in October 2004, he revised his opinion and concluded that the applicant could not effectively and successfully work as a farmer for more than 8 hours a week (Transcript, p 46).
The applicant was 62 years of age at the commencement of the assessment period and is presently aged 65. With the exception of a relatively short period of time whilst enlisted, the applicant has worked as a farmer either in partnership with his wife or with other family members. Most of his farming operations have involved potato growing.
Work as a farmer involves long hours, is physically exertive and involves responsibility. The applicant has multiple accepted disabilities and I am satisfied that all of them in combination have rendered him incapable of undertaking remunerative work for periods aggregating more than 8 hours per week. His physical injuries alone, being shoulders, back, knees and foot, severely restrict his mobility and prevent undertaking the heavy arduous work well understood as required in farming. He is computer illiterate (farm management was undertaken by his wife). Apart from a past qualification of driving heavy vehicles and farming, he has no other trade, vocational or professional qualifications or experience (s 28(1) of the Act).
The evidence from the applicant satisfies me that there has been a progressive deterioration in his health and physical ability which caused him in about 2002 or 2003 to withdraw from farming, despite the fact that most of the heavy work was then being undertaken by his son and son-in-law. It would appear that the applicant’s emotional state became so acute (because he was suffering the effects of the accepted conditions of anxiety and depression) that his son was unable to tolerate him.
From 2002-2003 the applicant has had about 50 head of cattle which involves minimal work opening gates and checking water troughs. The applicant uses a single point walking stick when walking on the farm between his ute and the gates and return and when checking the troughs. His only other activity is delivering a round bale of hay weekly using a tractor. On the basis of those restrictions, it is inconceivable that he would be capable of undertaking farming as he did previously for more than 8 hours per week.
The applicant satisfies s 24(1) of the Act because he is:
·incapacitated in a degree greater than 70 per cent and he was under the age of 65 at the date of application;
·totally and permanently incapacitated because his accepted injuries (including the shoulders) alone, render him incapable of working remuneratively for periods aggregating more than eight hours per week; and
·prevented from undertaking remunerative work that was previously undertaken and he consequently suffers a loss of salary, wages or earnings that he would not be suffering if free of the incapacity.
It follows that the decision of the VRB with respect to special rate entitlement is also set aside and I am satisfied that from the commencement of the assessment period the applicant has had an entitlement to pension at the special rate.
DECISION
The decision of the VRB made on 30 March 2011 is set aside and in substitution IT IS DECIDED that:
(a)the applicant’s bilateral rotator cuff syndrome is war-caused; and
(b)he is entitled to pension at the special rate from the commencement of the assessment period.
I certify that the preceding 84 (eighty ‑four) paragraphs are a true copy of the reasons for the decision herein of ..........................[sgd].............................
Associate
Dated 10 October 2012
Date(s) of hearing 4 June 2012 Counsel for the Applicant Mr C. Colborne Advocate for the Applicant Mr G. Isolani Solicitors for the Applicant KCI Lawyers Counsel for the Respondent Mr K. Rudge Solicitors for the Respondent Advocacy Section, Department of Veterans' Affairs
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