Taylor and Repatriation Commission
[2002] AATA 1300
•16 December 2002
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
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.
At the hearing of this matter on 28 October 2002, the Applicant gave oral evidence and was represented by Ms A Toliopoulos of the Legal Aid Commission of New South Wales. The Respondent was represented by Ms S Breuer of the Advocacy Section of the Department of Veterans' Affairs.
The following documents were taken into evidence.
Exhibit A1 Applicant's statement, undated.
Exhibit R1 Documents T1 to T12 prepared pursuant to section 37 of the Administrative Appeals Act 1975 ("the AAT Act").
Exhibit R2 Report by Professor P Sambrook, Professor of Rheumatology, dated 13 February 2001.
Exhibit R3 Clinical notes from Dr S Stone regarding Harry Taylor (excluding folios 11 and 12 relating to Ian Taylor).
BACKGROUND
The following information is provided by way of background and is not disputed.
The Applicant was born on 16 May 1922. He enlisted in the Australian Military Forces ("the AMF") on 12 January 1942 and served until 14 June 1946, with 501 days active service in New Guinea (Exhibit R1 folio 19).
Following discharge from the AMF, the Applicant worked for extended periods as a driver and travelling salesman, with shorter periods working as a storeman and handyman (Exhibit R1, folio 20). He ceased working in 1994.
On 27 August 1999 the Applicant lodged a claim for disability pension under section 14 of the Veterans' Entitlements Act 1986 ("the Act") (Exhibit R1, T4). On 21 December 1999, the Respondent accepted that non-melanotic malignant neoplasm of the skin, vertebrobasilar ischaemia and bilateral sensori-neural hearing loss with tinnitus were war-caused. The following claimed conditions were not accepted as war caused (T2):
(i)Hypertension;
(ii)Localised osteoarthrosis affecting both feet; and
(iii)Localised osteoarthrosis affecting both shoulders.
Disability pension was granted at 30 percent of the General Rate on the basis of an impairment rating of 15 points, assessed under the "Guide to the Assessment of Rates of Veterans' Pensions" ("the Guide").
On 20 January 2000, the Applicant sought review of the Respondent's decision concerning osteoarthrosis affecting the feet and the shoulders by the VRB. On 13 September 2000 the VRB affirmed the decision (T9). The Applicant sought review by the Tribunal on 19 October 2001.
LEGISLATION
A decision in this matter requires consideration of relevant provisions under the Act. The issues of whether a condition is war-caused is determined pursuant to section 9 of the Act, which relevantly follows:
"9 War-caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;…
but not otherwise."Section 119 of the Act reflects that decision-makers, including this Tribunal, are not bound by technicalities and that decision-making under the Act is of an administrative rather than judicial nature. Section 119 allows decision-makers to take into account matters such as the effects of the passage of time, the absence of or deficiency in records and the diminution of a veteran's memory.
The standard of proof applying in the case of operational service is the reasonable hypothesis standard, as provided by section 120 of the Act, which provides relevantly:
"120 Standard of proof
(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
…(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
(a) that the injury was a war-caused injury or a defence-caused injury;(b)that the disease was a war-caused disease or a defence-caused disease;
…
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
(5) Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
(a) an injury suffered by a person is a war-caused injury or a defence-caused injury;
(b) a disease contracted by a person is a war-caused disease or a defence-caused disease;(c) the death of a person is war-caused or defence-caused; or
(d)a claimant or Applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6) Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
(a) a claimant or Applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
(b) the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application.
…"
Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken with a Statement of Principles issued by the Repatriation Medical Authority ("the RMA") or any other relevant determination or declaration under the Act. As relevant, section 120A of the Act states:
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
…(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
...(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be."
STATEMENTS OF PRINCIPLES
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 TRIBUNAL
The ApplicantThe 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.
The Applicant told the Tribunal the symptoms of the first injury, a "dull ache" pain, became inflamed by a second incident. He recalled the second incident occurred in the Torricelli Mountains some time after the first incident, but could not recall precisely when it occurred. He gave evidence that the enemy was engaged on a steep mountain ridge and an assault was mounted in which he was involved. He explained that artillery was directed to the enemy position atop the ridge and bombardment ensued, during the course of which a shell hit a tree and exploded above the Australian troops, killing one man and injuring another. The Applicant recalled being directed with two other men to transport the body and assist the injured man down the slope to a base camp, which was approximately one mile distant. He explained that the corpse was slung under a long pole and carried by two men, each of the three taking it in turns. He explained carrying the corpse was very difficult as the corpse was heavy, the country was steep and rugged, and the jungle was very dense. He recalled this taking a "couple of hours" because everything was extremely wet and slippery.
The Applicant gave evidence that he slipped and fell repeatedly, swapping the pole from one shoulder to the other, straining his shoulders and causing the pain to "flare up". He said he did not seek medical attention, however, because a number of men had been killed and wounded, and his problems were not bad by comparison. He said the pain was not as intense as after the first incident but was "serious". However, he explained, in the circumstances this did not prevent him continuing with his duties.
The Applicant told the Tribunal after leaving the Army, he worked for a time as a storeman packing boxes with groceries. Thereafter he worked as a driver and salesman, in the course of which he did not do any heavy work and did not experience any significant change for some time. The Applicant explained that he experienced pain in his shoulders continuously from the incidents in New Guinea to the present day. The pain, he explained, had gradually worsened with age, but he did not seek medical treatment until he hurt his right shoulder at work in 1960, whereupon he sought treatment from his doctor.
Medical EvidenceBoth parties relied on Professor Sambrook's report (Exhibits R2) and the clinical notes of Dr Stone (Exhibit R3) in evidence. It serves no purpose to repeat this evidence here. However, the Tribunal notes that Dr Stone recorded pains to the right and left shoulder at various times in the clinical notes (Exhibit R3, pp2-3) and diagnosed supraspinatus tendonitis of the left shoulder on 6 March 1980 (Exhibit R3, p1). Professor Sambrook diagnosed "some features of osteoarthritis as well as possibly rotator cuff pathology" in the shoulders (Exhibit R2, p5) and reported (Exhibit R2, p3):
"With respect to his shoulders, he recalled two episodes when he slipped whilst carrying a Bren gun and full pack and was aware on pain in the right shoulder for several hours after that. He would usually carry between 40 – 60lbs of gear in his pack. Again he experienced pain in his shoulders during service, but largely put up with this. After leaving the Army, these symptoms improved significantly (since they were related to excessive activity) and as noted above, did not become really a problem again until much later in his life."
Professor Sambrook reviewed Dr Stone's clinical notes and reported (Exhibit R2, p4):
"The clinical notes from Dr Stone were available for review in photocopied form. I noted that on the 6th March 1980 the diagnosis of supraspinatus tendonitis of the left shoulder was made treated with a steroid injection. There is also an entry dated the 19th December 1988 recording a history of a painful right shoulder of long duration. An entry dated 8th June 2000 also notes pain in the shoulders, not relieved by Feldene."
SUBMISSIONS
The Applicant has requested review of the Respondent's decision only in so far as it relates to localised osteoarthrosis affecting the shoulders. The Applicant is not pursuing his claims in relation to localised osteoarthrosis affecting the feet.
The parties agreed with the Tribunal's concurrence that:
(i)the earliest date of effect is 27 May 1999; and
(ii)if the Tribunal finds for the Applicant, the matter should be referred to the Respondent for assessment of the appropriate rate of pension.
The Applicant
Ms Toliopoulos, for the Applicant, submitted that the Applicant's memory was diminished with age and he could not recall, with precision, what had occurred 58 years ago. Thus, she contended, when he referred to symptoms occurring for "five or six days", this should be accepted as an approximation of the duration of symptoms and should not be taken as a literal statement of fact. The Tribunal should take into account the diminution of the Applicant's memory with the passage of time, pursuant to section 119 of the Act, without being bound by technicalities or any onus of proof, she submitted.
Ms Toliopoulos submitted that the Applicant injured his shoulders in the two incidents alluded to, after which he experienced symptoms for an extended period longer than one week, thereby causing the osteoarthrosis affecting his shoulders. She contended this hypothesis is pointed to by the material before the Tribunal and the Tribunal should so find.
Turning to the current SoP, being Instrument No 81 of 2001, Ms Toliopoulos submitted that the SoP upholds the Applicant's hypothesis. She submitted that factor 5(j) of the SoP applied and the definition of "trauma to the affected joint" was satisfied. It was, she submitted, necessary to accept that the Applicant's memory was deficient with the passage of 58 years since the incidents occurred, and that he should not suffer any disadvantage as a consequence.
Relying on Critch v Repatriation Commission (1996) 43 ALD 574 and Repatriation Commission v Bey (1997) 79 FCR 364, Ms Toliopoulos submitted the Applicant's hypothesis is not rendered unreasonable merely because of the absence of material to corroborate his recollection. In the absence of any material capable of disproving, beyond reasonable doubt, the hypothesis connecting the Applicant's osteoarthrosis of the shoulders with the circumstances of his operational service, the Tribunal must find his claimed condition is war-caused.
The RespondentMs Breuer, for the Respondent, conceded the Applicant's accrued right to apply the SoP that was in force at the date of the Respondent's original determination in this matter, if indeed that SoP is more favourable than the SoP currently in force. She submitted that, in any event, each element in the relevant SoP must be satisfied. Thus, if the Applicant is to succeed in his claim, Ms Breuer contended, then it must be shown that a discrete injury was suffered in each shoulder, causing a trauma in each affected joint pursuant to factor 5(j) in SoP 81 of 2001, as contended by the Applicant. Ms Breuer submitted that the test to be applied requires each injury to cause symptoms and signs of pain, tenderness and altered mobility within 24 hours, and for each of the symptoms and signs to last for more than seven days thereafter. Ms Breuer contended if this test is not satisfied on the material before the Tribunal, it cannot be said that the hypothesis contains the minimum factors necessary to satisfy the SoP, and is not, therefore, upheld by the SoP. In which case, Ms Breuer concluded, the appeal must fail.
Ms Breuer conceded that the Applicant was a credible witness, even though he had some problems with his memory. Relying on Mason v Repatriation Commission [2000] FCA 1409, Knight v Repatriation Commission [2000] FCA 673 and Repatriation Commission v Bey (supra), Ms Breuer contended that the Applicant cannot rely on section 119 of the Act to protect him from the proper application of law, whereby certain requirements must be satisfied to establish causal linkage between the osteoarthrosis and the circumstances of his eligible war service.
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 FINDINGSThe 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).
In considering whether the Applicant's claim that his osteoarthrosis of the left and right shoulders is war-caused within the terms of section 9 of the Act, the Tribunal is mindful of the appropriate standards of proof and the established authorities. The approach to be adopted in such cases was set out by the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193 at 206, relevantly:
"1. The tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
…
3. If an SoP is in force, the tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B (2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4. The tribunal must then proceed to consider under s 120 (1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."In Re Dell and Repatriation Commission (1986) 9 ALD 596 at 615 the term "reasonable hypothesis" was given a definition that has subsequently been approved of by the authorities. At ALD 597 it was stated:
"…"hypothesis" could be defined as a "supposition made as a basis for reasoning, without assumption of its truth, or as starting-point for investigation from known facts": The Concise Oxford Dictionary. Further a "reasonable hypothesis" was more than a mere hypothesis. To be reasonable, a hypothesis must possess some degree of acceptability or credibility — it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be "raised" by material it must find some support in that material — that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis."
The Tribunal turns to consider whether, in the first instance, an hypothesis connecting the Applicant's osteoarthrosis with the circumstances of his operation service is raised. The Applicant recounted injuring his left and right shoulder in two incidents, the first being the major incident, in which he fell while carrying heavy weights during engagements with the enemy on operational service. He could not remember the dates on which these incidents occurred but recalled being told by a "Zambuck" field medical officer that he had "probably torn sinews and muscles". He recalled these injuries caused intense pain in his shoulders, especially in his right shoulder, which lasted for "a couple of hours", persisted for "five or six days" and continued, thereafter, gradually becoming worse with age. He told the Tribunal that the second incident caused the pain from the first incident, which had become a "dull ache", to flare up, especially in the right shoulder.
Turning to the medical evidence, Dr Stone records the Applicant suffering pain in both shoulders over an extended period, from 1980 in relation to the left shoulder, when he diagnosed supraspinatus tendonitis, and from 1984 in relation to the right shoulder (Exhibit R3, pp1-7).
In his report, Professor Sambrook opines (Exhibit R2, pp5-6):
"In the shoulders he has some features of osteoarthritis as well as possibly rotator cuff pathology.
…
Osteoarthritis of the above joints frequently have a constitutional basis that includes aging and genetic factors, but may also be brought on by mechanical or traumatic factors.
…
Although it seemed clear Mr Taylor had symptoms related to these sites during his service period, these seems [sic] to have largely abaited [sic] after service and during working life."
This being the case, the Tribunal finds the material points to an hypothesis connecting the Applicant's osteoarthrosis of the left and right shoulders with the circumstances of his operational service.
The hypothesis will be found reasonable pursuant to subsection 120(3) of the Act if it fits the template of the SoP concerning Osteoarthrosis pursuant to subsection 120A(3) of the Act: Deledio (supra). Thus, the Tribunal turned to consider the current SoP.
The SoP sets out the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis with the veteran's relevant service. The Applicant submitted that factor 5(j) of SoP Instrument No 81 of 2001 applies:
"(j) suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint;"
"trauma to the affected joint" is defined at clause 8 of the SoP:
""trauma to the affected joint" means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint."
Thus, the essential question is whether the hypothesis connecting the Applicant's osteoarthrosis with his operational service contains the factor as claimed. The Tribunal must decide whether the material before it, including the incidents of injury recounted by the Applicant in hypothesis, point to a "trauma to the affected joint" as defined in the SoP, to the extent that the hypothesis can be said to fit the SoP "template". Ms Breuer submitted this requires material pointing to symptoms and signs of (i) pain, (ii) tenderness and (iii) altered mobility or range of movement, where each of these symptoms and signs last for a minimum period of seven days immediately after the injury in each of the Applicant's shoulders. The Tribunal agrees with this approach, noting the words of Finn J in Harris v Repatriation Commission (supra) at 62 ALD 184:
"The requirement, then, that there be 'signs and symptoms' of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: eg definition II of 'sign' and that of 'symptom' in the Shorter Oxford English Dictionary."
This construction was adopted in the cases of Arnott v Repatriation Commission (supra), Cook v Repatriation Commission (supra) and Mason v Repatriation Commission (supra) and was approved of, on appeal, by the Full Federal Court in Harris v Repatriation Commission (supra) wherein Whitlam, Sackville and Mansfield JJ said at 62 ALD 172:
"The primary judge's construction is supported by the reference in the same sentence to "such acute symptoms and signs" lasting for a period of a week after the injury. The natural reading of that reference is that the acute symptoms and signs of pain, tenderness and altered mobility must have lasted for at least a week."
Ms Breuer submitted there was no material pointing to the Applicant suffering symptoms or signs of pain, tenderness and altered mobility or range of movement in either or both of his shoulders for at least a seven-day period and, therefore, the Applicant must fail. However, the Applicant described, to the extent of his memory, the symptoms and signs he experienced at the time, which were symptoms of pain in both of his shoulders, especially his right shoulder. The Applicant stated that he was not able to recall precisely how long the symptoms had lasted. He referred to "five or six days" and "a long time", noting that he had experienced pain in his shoulders from then on and that his symptoms had flared up as a consequence of the second incident. Professor Sambrook reports symptoms relating to the Applicant's shoulder injuries during service (Exhibit R2, p6):
"I have reviewed instrument 81/2001 in regard to osteoarthrosis and in regard to the shoulder injury, I do not believe Mr Taylor meets the definition of trauma in that the pain and restricted movement probably lasted only a few days after the two falls whilst carrying a pack."(Emphasis added)
Thus, on analysis, the Tribunal finds there is material pointing to objective symptoms and signs of pain and restricted movement, but neither the Applicant nor Professor Sambrook make reference to signs and symptoms of tenderness. Additionally, the duration of the symptoms is in issue. Professor Sambrook opines that the symptoms of "pain and restricted movement probably lasted only a few days", whereas the Applicant stated that he experienced pain "for five or six days" and continuously, in varying degrees, thereafter.
Ms Toliopoulos sought to rely upon section 119(1)(g) and (h) of the Act, urging the Tribunal to take into account the Applicant's failing memory and accept that his recollection of symptoms should be afforded a beneficial interpretation. The Tribunal notes that similar submissions have been addressed in Repatriation Commission v Flentjar (1997) 47 ALD 67, Knight v Repatriation Commission (supra), Mason v Repatriation Commission (supra) and other authorities adopting the construction of the Full Federal Court in the case of Bey (supra) at FCR 373:
"The material either points to a connection or it does not. If it does not, the deficiency cannot be remedied by resort to a procedural provision such as s 119(1)(g)."
The ordinary meaning of the word "tenderness" set out in the Macquarie Dictionary (2nd Edition 1995) is, relevantly, "acutely or painfully sensitive". The word is given medical definition in Black's Medical Dictionary (40th Edition 2002) in the following terms:
"Tenderness
The term usually applied in medical nomenclature to pain expressed when a diseased part is handled, the term, pain, being reserved for unpleasant sensations left apart from any manipulation."
Thus the Tribunal finds that pain is a symptom and a sign of "tenderness".
The Applicant recalled a "Zambuck" field medical officer telling him within twenty-four hours of the first incident that he had "probably torn sinews and muscles" in his shoulders. The Tribunal finds it difficult to conceive of a an injury involving "torn sinews and muscles" in a joint, where that injury would not give rise to symptoms and signs of "tenderness" and "altered mobility" as well as "pain".
In the circumstances described by the Applicant, the injuries to his shoulders were "little things" when compared to the casualties of battle, yet the possibilities for protecting his injured shoulders from rough contact or handling were limited. It is reasonable to consider that the pain the Applicant recalls experiencing related, not only to the particularities of the soft tissue injuries to his shoulders alone, but also to the continued rough contact and use of those injured joints in the difficult and life threatening situation in which he found himself. It is reasonable to consider, therefore, that the pain caused by such rough contact and use of the Applicant's shoulders in the period immediately after the first injury, as necessitated by the circumstances at the time, signifies and is symptomatic of tenderness and altered mobility in his shoulders at that time.
The Tribunal finds, therefore, that the raised material points to objective signs and symptoms of "pain", "tenderness" and "altered mobility" in the Applicant's shoulders as a consequence of soft tissue injuries to his shoulders involving torn sinews and muscles.
The question whether the raised material points to these signs and symptoms lasting more than seven days is in issue. The circumstances the Applicant described required him to continue to perform his duties in battle, attacking an enemy position under hostile fire in a situation of very significant danger and subsequently holding that position for a period of days. The response of a person to the immediacy of hostile engagement and their ability to endure pain in such extreme circumstances, while particular to the individual, is also a function of ordinary human nature that is not a subject of proof by evidence. Dixon CJ, Kitto and Taylor JJ said in Transport Publishing Co Pty Ltd v The Literature Board of Review (1956) 99 CLR 111 at 119:
"…ordinary human nature, that of people at large, is not a subject of proof by evidence, whether supposedly expert or not."
The Tribunal accepts, in such extreme circumstances, human nature may override the restrictions a person may otherwise experience in the course of normal everyday events, in relation to handling or moving a joint that has been injured, where such restrictions are described by thresholds of pain. The Applicant told the Tribunal he experienced pain immediately after injuring his shoulders and continued to experience pain for "five or six days" and for a "a long time" thereafter, continuing in varying degrees to the present day. Professor Sambrook opined that (Exhibit R2, p3):
"After leaving the Army, these symptoms improved significantly (since they were related to excessive activity) and as noted above, did not become really a problem again until much later in his life."
The Tribunal accepts, for present purposes, that the Applicant's experience of pain for a "long time" in the circumstances he described materially points to the symptoms and signs of "tenderness" and "altered mobility" continuing for a period exceeding the requisite seven day period.
The Tribunal is mindful of the position stated in the case of Bey (supra) at FCR 372-373:
"A 'reasonable hypothesis' involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."
The authorities clearly establish that a reasonable hypothesis involves more than mere possibility or conjecture. It must be pointed to by the facts, although not proven on the balance of probabilities.
In the present case, Ms Breuer submitted that there is no material, nor "facts", pointing to the requisite symptoms and signs. The Tribunal does not agree with this submission. Proof of facts is not in question at this stage: see Deledio (supra). Thus, the Tribunal finds the material points to the injuries to the Applicant's shoulders causing, within twenty four hours of the injury being sustained, the development of objective signs and symptoms of pain, tenderness and altered mobility or range of movement in those affected joints. The Tribunal also finds the material points to these signs and symptoms being of more than seven days duration following their onset. In the circumstances, the Tribunal considers these findings are not contrary to proved scientific facts or to the known phenomena of nature.
The Tribunal finds, therefore, that the raised hypothesis contains the requisite elements of factor 5(j) of SoP 81 of 2001 and is consistent with the SoP template. There is nothing at this stage of the process of deciding matters pursuant to section 120(1) of the Act, to indicate that the hypothesis is fanciful. Taking into account the deficiency of the official records and the effects of the passage of time on the Applicant's memory, as required by paragraph 119(1)(h) of the Act, the reasonableness of the hypothesis is not reduced by the absence of precise facts: Knight (supra); Smith v Repatriation Commission (1999) 58 ALD 158; Critch (supra). The hypothesis is consistent with the known facts, it is not merely left open as a possibility in the abstract, nor is it fanciful, impossible, incredible or too remote or too tenuous: Bey (supra); Bushell v Repatriation Commission (1992) 175 CLR 408; East (supra).
The Tribunal finds, therefore, that the hypothesis is reasonable in the context in which it is raised and for present purposes pursuant to section 120A(3) and 120(3) of the Act.
Turning to subsection 120(1) of the Act, and the fourth and final step of the Deledio (supra) formulation, the Tribunal notes that the claim will succeed unless one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt, or the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis. There is no onus of proof on either party pursuant to subsection 120(6) of the Act.
The Tribunal finds that Professor Sambrook's report does not contradict the reasonable hypothesis that has been raised. Professor Sambrook reports symptoms of pain and restricted movement immediately after the injury, but does not mention any tenderness in the shoulder joints, opining after one consultation on 7 February 2002, imprecisely, that these symptoms would "probably have lasted only a few days". On this basis Professor Sambrook concludes that the Applicant "does not meet the definition of trauma" in the SoP. However, Professor Sambrook comments on the improvement of the Applicant's symptoms after leaving the Army "since they were related to excessive activity", thereby implying the continuance of symptoms from the date of injury for more than seven days. The Tribunal finds nothing in the material to contradict or disprove, beyond reasonable doubt, the Applicant's recollection of events concerning the injury to both his shoulders and nature and duration of signs and symptoms that resulted from those injuries. There is no evidence to suggest the Applicant was not required to continue with his duties on active service, or that he did not so continue. The assumption that the pain, as reported by the Applicant in the period immediately after the injuries to his shoulders, related to and arose from tenderness and altered mobility caused by those injuries, is not displaced by any other fact nor is it contrary to scientific knowledge.
The Tribunal concludes that the reasonable hypothesis raised by the Applicant connecting his osteoarthrosis of the left and right shoulders with the circumstances of his operational service is not dispelled by other facts beyond reasonable doubt. The Tribunal is not satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the Applicant's osteoarthrosis of the left and right shoulders is war-caused pursuant to subsection 120(1) of the Act. This being the case, the Tribunal finds that the Applicant's osteoarthrosis of the left and right shoulders is war-caused.
The Tribunal determines, pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, that:
(a) 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.
(b) 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.
(c) The matter is remitted to the Respondent for assessment of the correct rate of the Applicant's disability pension.
I certify that the 63 preceding paragraphs are a true copy of the reasons for the decision herein of MR S WEBB, MEMBER
Signed: .....................................................................................
AssociateDate of Hearing 28 October 2002
Date of Decision 16 December 2002
Representative for the Applicant A Toliopolous
Representative for the Respondent S Breuer
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