Taylor and Repatriation Commission

Case [2002] AATA 1300

DECISION AND REASONS FOR DECISION [2002] AATA 1300

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2001/1624

VETERANS' APPEALS DIVISION          )          
           Re      HARRY NORMAN TAYLOR       
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr S Webb, Member         

Date16 December 2002

PlaceSydney

Decision      The Tribunal determines, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, that: 1. The decision under review is set aside and in substitution therefor decides that: (i) the correct diagnosis of the Applicant's shoulder condition is localised osteoarthrosis of the left and right shoulders, and supraspinatus tendonitis of the left shoulder; and (ii) the Applicant's osteoarthrosis of the left and right shoulders is a war-caused disability with effect from 27 May 1999 and thereafter. 2. The Applicant is not contesting and the Tribunal, therefore, affirms the Respondent's decision to reject the claim that the localised osteoarthrosis affecting both the Applicant's feet was war-caused. 3. The matter is remitted to the Respondent for assessment of the correct rate of the Applicant's disability pension.

………………………………..
  Mr S Webb, Member 
CATCHWORDS
VETERANS' AFFAIRS – Disability Pension – Operational service – Osteoarthrosis – Diagnosis – Whether veteran's condition is war-caused – Reasonable hypothesis – Relevant Statement of Principles – Whether trauma suffered to the affected joint before clinical onset
LEGISLATION
Veterans' Entitlements Act 1986 ss 9, 13, 14, 119, 120, 120A
Statement of Principles Instrument Number 81 of 2001, concerning Osteoarthrosis
Statement of Principles Instrument Number 41 of 1998, concerning Osteoarthrosis
AUTHORITIES 
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Cooke (1998) 90 FCR 307
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Deledio (1998) 49 ALD 193
Re Dell and Repatriation Commission (1986) 9 ALD 596
Repatriation Commission v Bey (1997) 79 FCR 364
Repatriation Commission v Flentjar (1997) 47 ALD 67
Arnott v Repatriation Commission (2001) 106 FCR 83
Connors v Repatriation Commission (2000) 59 ALD 61
Cook v Repatriation Commission (2000) 106 FCR 448
Harris v Repatriation Commission (2000) 62 ALD 161
Harris v Repatriation Commission (2000) 62 ALD 174
Knight v Repatriation Commission [2000] FCA 103
Mason v Repatriation Commission [2000] FCA 1409
East v Repatriation Commission (1987) 16 FCR 517
Bull v Repatriation Commission (2001) 66 ALD 271
Smith v Repatriation Commission (1999) 58 ALD 158
Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111
Critch v Repatriation Commission (1996) 43 ALD 574
Elliot v Repatriation Commission [2002] FCA 26

REASONS FOR DECISION

16 December 2002 Mr S Webb, Member   

  1. This is an application by Mr Harry Norman Taylor ("the Applicant") for review of a decision of the Repatriation Commission dated 21 December 1999 to refuse the claim for localised osteoarthrosis both feet and localised osteoarthrosis both shoulders, because these conditions were not war-caused. This decision was reviewed by the Veterans' Review Board ("the VRB") and affirmed on 13 September 2001. 

  2. At the hearing of this matter on 28 October 2002, the Applicant gave oral…

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Taylor and Repatriation Commission [2002] AATA 1300
Case
[2002] AATA 1300
Decision Date

CaseChat Overview and Summary

The case of Taylor and Repatriation Commission involved a veteran who sought to establish that his osteoarthrosis of both shoulders was caused by his operational service during World War II. The dispute was heard by a tribunal, which needed to determine whether the veteran's condition met the criteria outlined in the relevant Statement of Principles concerning osteoarthrosis. The primary legal issue was whether the veteran's osteoarthrosis was reasonably attributable to his service, as required by the legislation governing veterans' affairs.

The tribunal considered the evidence provided by the veteran, who detailed his service history and the specific incidents where he injured his shoulders during active duty. The tribunal assessed the veteran's credibility and found him to be a truthful and reliable witness. The tribunal also accepted the medical evidence presented, concluding that the veteran's condition was correctly diagnosed as localised osteoarthrosis of the left and right shoulders, along with supraspinatus tendonitis of the left shoulder, which was not contested in this matter.

In reaching its decision, the tribunal applied the relevant legal principles, including the requirement that each element of the Statement of Principles must be supported by the evidence. The tribunal found that the evidence did not sufficiently establish that the veteran's symptoms lasted more than seven days or that he exhibited the requisite symptoms and signs of osteoarthrosis within the timeframe required by the legislation. Consequently, the tribunal determined that the veteran's claimed condition was not war-caused, and his appeal was dismissed.

The tribunal's decision was based on a thorough review of the evidence, case law, and relevant legislation, leading to the conclusion that the veteran's condition did not meet the criteria for a war-caused disability pension. The matter was remitted to the Repatriation Commission for reassessment in light of the tribunal's findings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The relevant Statement of Principles ("SoP") for the condition of osteoarthritis affecting the feet and the shoulders that is currently in force, is Instrument Number 81 of 2001, concerning Osteoarthrosis. The parties agreed, and the Tribunal accepts, that the Applicant has an accrued right to apply the SoP for Osteoarthrosis in force at the date of the Respondent's original decision in this matter, being SoP Instrument Number 41 of 1998 concerning Osteoarthrosis, in the event that the Applicant is unable to satisfy the requirements of the SoP currently in force and the previous SoP is considered to be more favourable: see Repatriation Commission v Gorton (2001) 110 FCR 321 and Repatriation Commission v Keeley (2000) 98 FCR 108.EVIDENCE BEFORE THE TRIBUNALThe Applicant The Applicant told the Tribunal that he had enlisted in the Army at the age of 19 and that he was very fit and strong at the time. He said he had trained in Dubbo and saw two tours of duty in New Guinea. The Applicant related two incidents in which he injured his shoulders during hostile engagements with the enemy in New Guinea. He recalled the first incident occurred during an assault on an enemy position, while advancing up hill under enemy fire. The Applicant recalled carrying a Bren gun, as well as his pack and his rifle. The Applicant stated that the Bren gun weighed approximately 25 pounds and his pack weighed approximately 40 pounds, and that he carried the Bren gun on his shoulder, swapping the weight from one shoulder to the other from time to time. He recounted falling several times carrying this equipment and recalled one fall in particular, in which he fell on his hands and stomach and experienced intense pain in his shoulders, especially in his right shoulder on which he was carrying the Bren gun at the time. The Applicant related swearing with the pain and being on the ground for only "about a minute" because there were "a few things flying around from the enemy and they needed the Bren gun". The Applicant stated that he felt the pain intensely for "a couple of hours" and then it "lasted for a long time". He said he could not recall precisely how long he had experienced the pain, but thought it may have been for "five or six days". He said he has experienced pain in his shoulders ever since, without break, which has worsened with advancing age. The Applicant stated that he was "immune to pain" in the circumstances, and that "you didn't whinge about it". The Applicant gave evidence that he had no option but to continue to perform all of his duties as a soldier on active service. He recalled the assault on the enemy position lasted three or four days before the enemy was "moved on", whereupon his platoon was required to dig in, remaining in that position for several days. They "slept in the mud", he recalled, and conditions were very difficult in almost constant rain. The Applicant gave evidence that, at the time, there was no one to report the injury to. He recalled, later, reporting his condition to a "Zambuck", a field medical officer, who told him he had "probably torn sinews or muscles" and gave him Asprin for the pain. He recalled the seriousness of his condition, and the symptoms and signs he experienced, were "little things" when compared to the casualties of battle and the injuries sustained by others. He stated that the injuries to his shoulders did not stop him firing his weapon or performing his duties: he endured the pain this caused and was preoccupied with the life-threatening situation at hand.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Referring the Tribunal to Arnott v Repatriation Commission (2001) 106 FCR 83, Connors v Repatriation Commission (2000) 59 ALD 61, Cook v Repatriation Commission (2000) 106 FCR 448, Elliot v Repatriation Commission [2002] FCA 26, Harris v Repatriation Commission (2000) 62 ALD 161, Harris v Repatriation Commission (2000) 62 ALD 174, East v Repatriation Commission (1987) 16 FCR 517 and Bull v Repatriation Commission (2001) 66 ALD 271, Ms Breuer submitted that each element of the SoP necessary to support the hypothesis raised by the Applicant must be pointed to by the material before the Tribunal. Ms Breuer submitted that the material before the Tribunal did not point to the requisite symptoms and signs, or to the symptoms lasting for more than seven days, as a consequence of which, she contended the Tribunal must find the Applicant's claimed conditions are not war-caused.CONSIDERATION OF THE ISSUES AND FINDINGS The Tribunal had to take into account all the evidence, submissions, case law and legislation to make the correct and preferable decision regarding whether the Applicant's osteoarthrosis of both shoulders is war-caused pursuant to section 9 of the Act. The Tribunal noted that the Applicant is not seeking review of the Respondent's decision in relation to localised osteoarthrosis affecting both feet. The parties agreed the correct date of effect, if the Applicant is successful, is 27 May 1999, and the Tribunal so finds. Both parties agreed and the Tribunal accepts, in relation to assessment of the Applicant's entitlement for disability pension pursuant to the Tribunal's decision, the matter be remitted to the Respondent. The Tribunal found the Applicant to be a witness of credibility and truth, who gave his evidence honestly and without embellishment to the extent of his memory. It is common ground between the parties, and the Tribunal finds, the Applicant has operational service pursuant to subsection 6A(1) of the Act from 12 January 1942 to 14 June 1946. Turning to the question of diagnosis, the Tribunal accepts the diagnostic opinions of Professor Sambrook and Dr Stone, in so far as they are represented in the medical documents in evidence. Following the construction adopted by French, Drummond and Carr JJ in Repatriation Commission v Cooke (1998) 90 FCR 307, the Tribunal finds, to its reasonable satisfaction pursuant to section 120(4) of the Act, that the correct diagnosis of the Applicant's condition is localised osteoarthrosis of the left and right shoulders and supraspinatus tendonitis of the left shoulder. The Tribunal notes that the Respondent has not considered the condition supraspinatus tendonitis of the left shoulder. Thus, this condition has not been appealed by the Applicant nor considered by the VRB. The Tribunal finds, therefore, the condition supraspinatus tendonitis of the left shoulder is not currently before the Tribunal in this matter. The Tribunal notes that osteoarthrosis of the left and right shoulders is covered by SoP Instrument No 81 of 2001, concerning Osteoarthrosis. The parties agreed and the Tribunal finds that the Applicant has an accrued right to apply the SoP for Osteoarthrosis in force at the date of the Respondent's original decision in this matter, being SoP Instrument No 41 of 1998, concerning Osteoarthrosis; Repatriation Commission v Keeley (supra), Repatriation Commission v Gorton (supra).