ROBERTS and REPATRIATION COMMISSION
[2010] AATA 734
•27 September 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 734
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2010/0462
VETERANS' APPEALS DIVISION ) Re WILLIAM ROBERTS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr M Denovan, Member Date27 September 2010
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
...................[Sgd]...............
Member
CATCHWORDS
VETERANS’ AFFAIRS – Veterans’ entitlements – Eligible defence service – Claim for osteoarthritis condition and depressive disorder - Application of statement of principles – Consideration of whether conditions are defence caused –– Decision under review affirmed.
Veterans’ Entitlements Act 1986 (Cth) ss 70, 196B
Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 65 ALD 609REASONS FOR DECISION
27 September 2010 Dr M Denovan, Member INTRODUCTION
1. William Roberts suffers from pain in both of his hands as a result of osteoarthritis[1]. He believes that the condition was caused because he was required to use various industrial machines whilst working as a tailor during his military service. Mr Roberts served in the Australian Army from 5 July 1972 to 26 February 1982, and in the Royal Australian Air Force Active Reserve from 23 November 1983 to 1 February 1989, and the Army Reserve on a part-time basis from 18 July 1989 to 15 May 1994.
[1] The condition osteoarthritis (SoP No 14 of 2010) has previously been referred to as osteoarthrosis (SoP No 32 of 2005). The Tribunal understands the two descriptive terms refer to one and the same condition. The term osteoarthritis will be used throughout the reasons for this decision.
2. Mr Roberts also suffers from depressive disorder which he claims is as a result of loss of function of his hands due to his osteoarthritis condition.
3. Mr Roberts lodged a claim for medical treatment and pension for both conditions on 15 April 2009. His claim was refused in a decision dated 29 June 2009. On 29 October 2009, that decision was affirmed by the Veterans’ Review Board.
4. Mr Roberts’ service in the Australian Army from 7 December 1972 until 26 February 1972 is defined in the Act as defence service. None of the service in the RAAF and Army reserves constitutes eligible service under the Veterans’ Entitlement Act 1986 (Cth) (“the Act”).
5. The relationships between conditions and service are set out in ss 70 and 196B of the Act.
6. For osteoarthritis and/or depressive disorder to be regarded as being related to service, one or more factors in the relevant Statements of Principles (“SoPs”) must be satisfied. SoPs are brought into existence to comply with s 196B of the Act, and provide the statutorily determined relationship to service.[2]
[2] The words “related to service” are found in s 196B of the Act. As pointed out by the Federal Court in Kattenberg v Repatriation Commission[2002] FCA 412; (2002) 73 ALD 365
7. The SoPs relevant to Mr Roberts’ matter on the date of his claim are Instrument No 32 of 2005 (osteoarthrosis) and No 28 of 2008 (depressive disorder). New SoPs have been published since Mr Roberts made his claim (No 14 of 2010 for osteoarthritis, and No 41 of 2010 for depressive disorder), and he is entitled to have his claim assessed with reference to either of those later Instruments[3].
[3] Repatriation Commission v Gorton [2001] FCA 1194; (2001) 65 ALD 609
8. Both parties accept that the appropriate diagnoses are osteoarthritis of the hands and depressive disorder. I was surprised at Mr Williams’ concession in relation to the diagnosis of osteoarthritis of the hands, given that there was no material before the Tribunal at the hearing that supported such a conclusion.
9. Mr Williams, for the Respondent, accepts that in the event that the Tribunal considers that osteoarthritis of the hands is related to the applicant’s defence service, it would follow that depressive disorder would also be related to defence service.
10. In relation to osteoarthritis of the hands, both parties relied on factor 6(n), Instrument 32 of 2005, and factor (k), Instrument No 14 of 2010. Factor 6(n) of Instrument 32 of 2005 reads:
6.The factor that must exist before it can be said that, on the balance of probabilities, osteoarthrosis or death from osteoarthrosis is connected with the circumstances of a person’s relevant service is:
…
(n)for osteoarthrosis of an elbow, wrist, or metacarpophalangeal joint only, using a hand-held, vibrating, percussive, industrial tool on more days than not for at least ten years within the twenty-five years before the clinical onset of osteoarthrosis in that joint; or
11. Factor 6(k) of Instrument 14 of 2010 reads:
6.The factor that must exist before it can be said that, on the balance of probabilities, osteoarthritis or death from osteoarthritis is connected with the circumstances of a person’s relevant service is:
…
(k)for osteoarthritis of a joint of the hand, wrist or elbow joint only, using a hand-held, vibrating, percussive, industrial tool on more days than not, for at least 10 years within the 25 years before the clinical onset of osteoarthritis in that joint;
12. Hand Joint is defined in the SoP as:
"hand joint" means the interphalangeal, metacarpophalangeal, carpometacarpal and intercarpal joints of the hand. This definition excludes the wrist joint;
13. Both of these factors require consideration as to the date of clinical onset of osteoarthritis. I was surprised therefore that neither party was able to make a submission as to when the date of clinical onset was for that condition.
14. In response to the Tribunal’s request, further medical evidence was provided after the hearing. That evidence included an x-ray report of the hands, which indicated that in 1998 Mr Roberts had bilateral osteoarthritis changes of the terminal interphalangeal joint of both hands, and early osteo-arthritic change in the scapho-trapezium articulations bilaterally. Also provided was a report of Senior Medical Officer, Dr P Grant, dated 13 June 2000, where it was noted that Mr Roberts indicated that his condition of osteoarthritis of both hands commenced in 1996.
15. The only hand joint that is included in the earlier SoP is the metacarpophalangeal joint. Mr Roberts does not satisfy this factor because the evidence is that the osteoarthritis in his hands is more terminal, affecting the interphalangeal joints, and not the metacarpophalangeal joints. Fortunately for Mr Roberts, the relevant factor in Instrument No 14 of 2010 which came into effect from 10 March 2010 is far more favourable for his claim, as it is inclusive of all joints in the hand.
16. The medical evidence provided after the hearing supports a finding that Mr Roberts suffers osteoarthritis in both hands, and also a finding that the clinical onset of this condition was 1996.
THE ISSUES
17. The only issue that remains for resolution is whether Mr Roberts’ osteoarthritis of the hands was caused by him using a hand held, vibrating, percussive, industrial tool on more days than not, for at least ten years within the 25 years before 1996.
Is osteoarthritis of the hands defence caused?
18. The substantive dispute in this matter is whether the evidence points to Mr Roberts having used a hand held, vibrating, percussive industrial tool on more days than not, for at least ten years within the 25 years prior to clinical onset of osteoarthritis.
19. I have found that clinical onset was in 1996. This means that Mr Roberts must have used the relevant tool, on more days than not for at least ten years between 1971 and 1996. This period is inclusive of his defence service.
20. Mr Roberts’ eligible defence service is less than ten years. Ms Smith relied on the decision of Kattenburg[4], and submitted that Mr Roberts satisfied the factor due to his combined activities in his eligible service and reserve service.
[4] Kattenberg v Repatriation Commission[2002] FCA 412; (2002) 73 ALD 365
21. Mr Roberts told me that after being told that he was not going to be posted to Vietnam, he commenced work as a tailor. This was in about February 1973. He was sent to Townsville, and was the only tailor responsible for 4000 soldiers. He was responsible for supplying all uniforms, performing all alterations and sewing ranks on clothing for all of these soldiers. Many of the soldiers were young, grew quickly and had their trousers lengthened twice a year.
22. Most of his tailoring work required the use of sewing machines which were constantly running. The Singer straight stitch sewing machine was set on its own table with motors locked beneath the work station. Mr Roberts used his left hand to control the machine. Various thicknesses of fabric were used, and constant pressure needed to be applied to ensure correct placement of the stitching. His right hand maintained pressure on the fabric as it was guided under the needle of the machine. Mr Roberts provided pictures of the machines he used, and examples of fabric that he sewed[5].
[5] Exhibit 1
23. Mr Roberts also used an industrial over locking machine, a blind hemming machine, a heavy duty walking foot (used mostly for repairing webbing and backpacks), an eyelet machine, and an industrial steam press and steam iron. He also performed hand sewing. The eyelet machine operated in a way similar to a manual drill press. A hole is punched manually into several layers of material and Mr Roberts was required to pull the lever downward through the materials’ thickness and then close the eyelet.
24. Mr Roberts acknowledges that some of his duties did not include the use of a tool that would satisfy the description in the SoP, because not all the machines vibrated or percussed. The over locking machine, eyelet machine, industrial steam press and iron, administrative duties, and hand sewing are not activities that meet the SoP requirements. Mr Roberts estimated that 90-95% of his time at work involved a tool that met the SoP requirements. He pointed out that he was required to work long hours, far in excess of a normal working week. These additional hours required the use of qualifying industrial tools, in his opinion.
25. I accept Mr Roberts to be a credible witness. On more days than not during his service, I am sure that he used vibrating tools, including the industrial straight stitch sewing machine and the heavy duty walking foot machine.
26. The only machine that Mr Roberts describes as percussing is the eyelet machine. The remainder of the machines used by Mr Roberts did not, by his own account percuss. Mr Roberts’ argument seemed to be that he was using either a vibrating or a percussing tool for most of his time during his service.
27. There is no definition of ‘hand held, vibrating, percussive industrial tool’ in the Act. I think that it is clear that for a tool to meet this description, it must be hand held, and be percussive, and be vibrating, and be an industrial tool.
28. No medical evidence was led in support of the contention that the machines used by Mr Roberts were of a nature that have been found to cause osteoarthritis of the hands.
29. I consider that the machines used by Mr Roberts were to be hand operated, not hand held. Mr Roberts used his left hand to hold the wheel of most of the machines while his right hand was placed on top of the fabric. I accept that his right hand was exposed to vibrations not directly from the machine, but rather were transmitted through the table during most of his tailoring activities. This does not satisfy the factor in the SoP which requires an industrial tool to be hand held, percussive, and vibrating. The amount of time Mr Roberts was using the eyelet machine for, the only tool that has been described as percussive, was insufficient to be regarded as having a significant impact on the development of his condition.
30. I considered recent medical journals on the subject. Tools identified as potentially causing osteoarthritis of the hands include “pneumatic jack hammers, drills, gas powered chain saws, and electrical tools such as grinders”[6]. I could find no reference to industrial sewing machines. In his report dated 13 June 2000, Dr Grant stated that as far as he was aware, there was no element of tailoring that involves exposure to pneumatic trauma or other vibratory trauma. Dr Grant opined that the most likely risk factor for Mr Roberts osteoarthritis of the hands was age and hereditary.
[6] Occupational Health Services Australia, Whole Body & Hand/Arm Vibrating Monitoring (2008) Occupational Health Services Australia, ttp:// evidence, taken as a whole, does not support a conclusion that Mr Roberts used a hand held, vibrating, percussive industrial tool for more days than not, for ten years.
32. Accordingly, Mr Roberts cannot satisfy factor 6(k) of the most recent SoP for osteoarthritis. The claim, as it relates to his hands therefore fails. The claim for depression also fails.
DECISION
33. The decision under review is affirmed.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Dr M Denovan, Member
Signed: ..................[Sgd]....................................................
Kate Slack, Research AssociateDate/s of Hearing 12 August 2010
Date of Decision 27 September 2010
Advocate for the applicant Helena Smith
Solicitor for the Respondent Bruce Williams, departmental advocate
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