Thompson and Repatriation Commission (Veterans’ entitlements) - [2016] AATA 462

Thompson and Repatriation Commission (Veterans’ entitlements) [2016] AATA 462 (1 July 2016)

Division

VETERANS' APPEALS DIVISION

File Number(s)

2014/3926

Re

Tracy Thompson

APPLICANT

And

Repatriation Commission

RESPONDENT

DECISION

Tribunal
Ms N Isenberg, Senior Member

Date 1 July 2016

Place Sydney
The decision under review is set aside, and:

(a)     in substitution, the Tribunal decides that the condition of bilateral rotator cuff syndrome is defence-caused;

(b)     the matter is remitted to the Repatriation Commission for reassessment of the Applicant’s entitlements to pension in accordance with these reasons for decision, and on the basis that his entitlement to pension in respect of the condition will commence from 18 May 2009, being three months before the date of the claim.
...........................[sgd].............................................
Ms N Isenberg, Senior Member
CATCHWORDS
VETERANS’ – entitlements – defence service – claim that bilateral rotator cuff syndrome was defence-caused – consideration of Statement of Principles concerning rotator cuff syndrome – clinical onset – repetitive or sustained activities – decision under review set aside and substituted
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) ss 70, 120(4), 120B, 196B(3)
CASES
Gorton v Repatriation Commission [2001] FCA 286

Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Smith (1987) 15 FCR 327

Re Robertson and Repatriation Commission (1998) 50 ALD 668

SECONDARY MATERIALS
Statement of Principles – Instrument No. 101 of 2014   concerning Rotator Cuff Syndrome
REASONS FOR DECISION
Ms N Isenberg, Senior Member
1 July 2016

The decision under review is the decision of the Repatriation Commission dated 3 December 2012, as affirmed by the Veterans’ Review Board (“the VRB”) on 5 May 2014, that refused the claim by Tracy Thompson (‘the Applicant’) that her bilateral rotator cuff syndrome was related to her service.
BACKGROUND
The Applicant served in the Royal Australian Air Force (RAAF) from 22 May 1984 to 10 June 2008. That service was not “operational service” as defined in the Veterans’ Entitlements Act 1986 (Cth) (‘VE Act’), but was eligible defence service.
LEGAL PRINCIPLES
I am required to decide matters to my reasonable satisfaction in accordance with any Statement of Principles (‘SoP’) issued by the Repatriation Medical Authority (‘RMA’) or any relevant determinations or declarations under the VE Act: s 120B(3). The RMA issues SoP based on sound medical-scientific evidence setting out factors relating to service, at least one of which must exist in order to establish a causal connection between the condition and service: s 196B(3).
The RMA has issued SoPs in relation to rotator cuff syndrome. Currently that SoP is No 101 of 2014. I must apply the SoP that is currently in force, unless, the SoP in force when the claim was first determined is more beneficial to the Applicant: Gorton v Repatriation Commission [2001] FCA 286. There was no contention that that was the case in this matter.
Pursuant to s 120(4) of the VE Act the Tribunal is required to determine this matter “to its reasonable satisfaction” – that is, on the civil standard of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] AATA 462
Decision Date: 1 July 2016

CaseChat Overview and Summary

This matter concerned an appeal by Tracy Thompson against a decision of the Repatriation Commission, affirmed by the Veterans’ Review Board, which refused her claim that bilateral rotator cuff syndrome was related to her eligible defence service in the Royal Australian Air Force. The Applicant served from May 1984 to June 2008.

The primary legal issue before the Tribunal was to determine, to its reasonable satisfaction on the balance of probabilities, whether the Applicant's rotator cuff syndrome was caused by her defence service, in accordance with the relevant Statement of Principles (SoP) issued by the Repatriation Medical Authority. Specifically, the Tribunal had to consider whether the Applicant met the criteria outlined in factors 6(a) or 6(b) of SoP No 101 of 2014, which relate to prior injury to the affected shoulder or performing repetitive or forceful activities with the affected shoulder within specified timeframes before the clinical onset of the condition.

The Tribunal reasoned that the Applicant's service as a fitness instructor involved repetitive and sustained activities of the shoulders, including abduction and flexion, and that these activities were consistent with the requirements of factor 6(b) of the SoP. While acknowledging that the Applicant's physical activities may have been modified at times due to pain, the Tribunal found that the physiotherapy regime undertaken by the Applicant often involved similar repetitive exercises. Expert medical opinion supported the view that the Applicant's shoulder problems were likely related to her service as a fitness instructor.

The Tribunal concluded that the Applicant had established, to its reasonable satisfaction, that her bilateral rotator cuff syndrome was caused by her defence service. Accordingly, the decision under review was set aside and substituted with a decision in favour of the Applicant.

Orders

Orders of the court

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Background

Background to the litigation

The decision under review is the decision of the Repatriation Commission dated 3 December 2012, as affirmed by the Veterans’ Review Board (“the VRB”) on 5 May 2014, that refused the claim by Tracy Thompson (‘the Applicant’) that her bilateral rotator cuff syndrome was related to her service.BACKGROUND The Applicant served in the Royal Australian Air Force (RAAF) from 22 May 1984 to 10 June 2008. That service was not “operational service” as defined in the Veterans’ Entitlements Act 1986 (Cth) (‘VE Act’), but was eligible defence service.LEGAL PRINCIPLES I am required to decide matters to my reasonable satisfaction in accordance with any Statement of Principles (‘SoP’) issued by the Repatriation Medical Authority (‘RMA’) or any relevant determinations or declarations under the VE Act: s 120B(3). The RMA issues SoP based on sound medical-scientific evidence setting out factors relating to service, at least one of which must exist in order to establish a causal connection between the condition and service: s 196B(3). The RMA has issued SoPs in relation to rotator cuff syndrome. Currently that SoP is No 101 of 2014. I must apply the SoP that is currently in force, unless, the SoP in force when the claim was first determined is more beneficial to the Applicant: Gorton v Repatriation Commission [2001] FCA 286. There was no contention that that was the case in this matter. Pursuant to s 120(4) of the VE Act the Tribunal is required to determine this matter “to its reasonable satisfaction” – that is, on the civil standard of proof, namely, proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.CONSIDERATION There was no dispute that the Applicant suffers from rotator cuff syndrome of both shoulders. Ms Thompson contended that her shoulder problems were caused by her RAAF service. She contended that she injured her shoulders in a motor vehicle accident at work in 1989. She also contends that she injured her shoulders in the course of her service, including during extensive physical activities undertaken as part of her duties. The Applicant relied on factors 6(a) and 6(b) of the SoP, which provide:(a) having an injury to the affected shoulder within the 30 days before the clinical onset of rotator cuff syndrome; or(b) performing any combination of:(i) repetitive or sustained activities of the affected shoulder when the shoulder on the affected side is abducted or flexed by at least 60 degrees; or(ii) forceful activities with the affected upper limb;for at least 160 hours within a period of 210 consecutive days before the clinical onset of rotator cuff syndrome, and where the repetitive or sustained or forceful activities have not ceased more than 30 days before the clinical onset of rotator cuff syndrome; orCLINICAL ONSET The first matter to be determined, in respect of either of the factors relied on, is the date of clinical onset of rotator cuff syndrome in respect of each shoulder. The Applicant gave evidence, which was unchallenged, that she had no problems with her shoulder prior to her RAAF service.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In October – November 2002 she was driving between Maroochydore and Bundaberg regularly and around to schools recruiting along the Sunshine Coast. At the same time the office was relocating from Bundaberg so there were multiple boxes to be managed. In her evidence she noted this driving was in a heavy old vehicle which vibrated through the steering wheel. This aspect of her contention was not pursued at the hearing before me. CONCLUSION The Applicant was referred in cross-examination to her accepted disabilities of cervical spondylosis and lumbar spondylosis. She said she first experienced neck and low back pain in the 1980s. She conceded that ‘pain’ had, at times, prevented her from undertaking PT classes. In re-examination she said that her shoulder pain would come and go and that would persist for ‘short periods’ which could be from a couple of days to up to a couple of weeks. However, she would go to physiotherapy and that might entail theraband work which itself was weight-resistant and which involved strengthening through repetitions. There were exercises involving rotating her arms outwards, work with dumbbells and swimming. She was to ‘keep moving’. As to her classes when she was experiencing pain, she said that depending on the pain, she could, if necessary, teach with the aid of a microphone and talk the class through the exercises; otherwise, she would cancel the class. She also had to adjust her own exercise regime. This occurred every couple of months for a couple of weeks. I note the Applicant told the VRB that, in the PT classes she did not necessarily undertake all the activities at the same time as the class; she would check techniques, but said she would still perform the activities herself a good deal of the time. I accept that while there may have been some reduction or modification in her PT activities during such periods, the reduction was, to some extent replaced by the physiotherapy regime. The Applicant gave similar evidence about her PT activities during February to September 1997. I observe that the Applicant’s file contained a letter from Dr David Floate, consultant neurologist dated 23 November 1998, referred to by the VRB, that the Applicant was not able to do quite the same amount of exercise in the way of aerobics either instructing or participating that she once did, and it would appear that the regime she described to me was in fact a less onerous one than she may previously have undertaken. Dr Millons, in his report of 10 November 2015, stated that, in respect of the Applicant’s shoulder problems, he considered there to be ‘little clinical doubt’ that they relate to her RAAF service as a fitness instructor. He accepted that this work would have entailed repetitive and sustained activities of the shoulders. I accept that much of the Applicant’s gym work as detailed in her statement, either as an instructor or while undertaking her own training, involved repetitions and sustained activities of each of her shoulders. She demonstrated, to the extent she was able, abduction and flexion of 60 degrees, and I accept the activities included extensive work of this kind.

Ratio Decidendi

Legal Principle Established

Pursuant to s 120(4) of the VE Act the Tribunal is required to determine this matter “to its reasonable satisfaction” – that is, on the civil standard of proof, namely, proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.CONSIDERATION There was no dispute that the Applicant suffers from rotator cuff syndrome of both shoulders. Ms Thompson contended that her shoulder problems were caused by her RAAF service. She contended that she injured her shoulders in a motor vehicle accident at work in 1989. She also contends that she injured her shoulders in the course of her service, including during extensive physical activities undertaken as part of her duties. The Applicant relied on factors 6(a) and 6(b) of the SoP, which provide:(a) having an injury to the affected shoulder within the 30 days before the clinical onset of rotator cuff syndrome; or(b) performing any combination of:(i) repetitive or sustained activities of the affected shoulder when the shoulder on the affected side is abducted or flexed by at least 60 degrees; or(ii) forceful activities with the affected upper limb;for at least 160 hours within a period of 210 consecutive days before the clinical onset of rotator cuff syndrome, and where the repetitive or sustained or forceful activities have not ceased more than 30 days before the clinical onset of rotator cuff syndrome; orCLINICAL ONSET The first matter to be determined, in respect of either of the factors relied on, is the date of clinical onset of rotator cuff syndrome in respect of each shoulder. The Applicant gave evidence, which was unchallenged, that she had no problems with her shoulder prior to her RAAF service. It was submitted on the Applicant’s behalf that there were a number of alternative dates for the clinical onset of the Applicant’s conditions. As to the Applicant’s right shoulder, the Applicant relied on Professor Ghabriel’s report of 1 November 2012 in which the doctor considered the clinical onset of the Applicant’s right shoulder condition was May 2000. In coming to that view the doctor noted that the Applicant gave a history that at that time she was involved in an exercise program and had to suddenly abduct and flex her shoulders forcibly, and felt severe pain in the right shoulder. The Applicant, in a claimant report in respect of right shoulder, thought the clinical onset was on 8 November 1999. She referred to an entry in her medical documents of that date to the effect that she had injured her right shoulder at work in the course of Immediate Deployment Force (IDF) training, when as part of a human train she was pulled by the arm causing pain in the right shoulder. This appears to be the event about which Professor Ghabriel took a history. I also observe that Professor Ghabriel had available to him the Applicant’s medical documents which record that on 24 May 2000 she had presented with intermittent pain to the midline of the back which radiated around to mid-chest. On examination there was a mild sharp pain proximal to the scapula on abduction of the right arm.

Division	VETERANS' APPEALS DIVISION
File Number(s)	2014/3926
Re	Tracy Thompson
APPLICANT
And	Repatriation Commission
RESPONDENT

Tribunal	Ms N Isenberg, Senior Member
Date	1 July 2016
Place	Sydney