Thompson and Repatriation Commission (Veterans’ entitlements)
[2016] AATA 462
•1 July 2016
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 327Re 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 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; or
CLINICAL 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.
Alternatively, it was submitted, that the clinical onset of her right shoulder condition was September 1997, according to Dr Millons, whose view the Respondent advocated. Dr Millons, however, did not explain how he came to that view. Dr Singh, the Applicant’s GP, provided a diagnostic report, which appears to be dated August 2012, in which she refers to ‘[illegible] bursitis /tendonitis of the right shoulder’ with a clinical onset of 1996 – 1997. This may be basis for Dr Millons view, but there was no indication in Dr Singh’s diagnostic report as to how she came to her view as to the date of clinical onset either.
There is no definition of the term “clinical onset” in the SoPs or in the VE Act. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 (“Robertson”) where the Tribunal concluded at 670 that:
…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
That analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius (“Cornelius”) [2002] FCA 750.
The accepted definition of clinical onset referred to in Robertson and Cornelius relies on the classification by a doctor of symptoms upon presentation by the patient. “Clinical onset” of a condition is not to be confused with the first occasion upon which a person might experience pain from a particular condition.
Although Professor Ghabriel had also noted that, from the Applicant’s records, she had developed pain in the right shoulder blade on 10 September 1997, he did not consider that this was the clinical onset of the condition. I prefer the view of Professor Ghabriel that the clinical onset of the Applicant’s right rotator cuff syndrome was May 2000.
As to the Applicant’s left shoulder, the Applicant relied on Professor Ghabriel’s report wherein the doctor considered the clinical onset of the Applicant’s condition was November 2002 because, he noted, that was when the Applicant had attended physiotherapy for her shoulder as well as her thoracic spine. The Applicant herself, in a claimant report in respect of left shoulder also thought the clinical onset was in November 2002.
Alternatively, the Applicant submitted, the clinical onset of her left shoulder condition was May 2002, according to Dr Millons. Dr Millons reasons for this date are unclear. In these circumstances I prefer the view of Professor Ghabriel that the clinical onset of the Applicant’s right rotator cuff syndrome was November 2002.
CONSIDERATION OF THE FACTORS
Having come to the view that clinical onset was May 2000 in relation to the Applicant’s right shoulder, and November 2002 in respect of her left shoulder, I turned to the factors relied on.
Factor 6(a)
Firstly, Applicant relied, in respect of factor 6(a), on a motor vehicle accident on 10 July 1989. To satisfy the factor the clinical onset would need to have been within 30 days of that date. As I have found that clinical onset with respect to neither shoulder was before May 2000, this contention must fail.
Factor 6(b)
As to factor 6(b), it was submitted on the Applicant’s behalf that, if the Applicant worked a five day working week, in 210 consecutive days, the Applicant would work 150 days. To reach the number of hours of activities referred to in the factor the Applicant would only need to undertake those activities for a little over an hour per working day for the relevant period.
The Applicant gave evidence about her work activities in relation to each of the possible dates of clinical onset which were identified. Having found that the dates of clinical onset to be May 2000 (right shoulder) and November 2002 (left shoulder), I note her evidence in relation to ‘the 210 consecutive days’ prior to each of those periods.
Right shoulder: activities October 1999 to May 2000
During that period the Applicant was posted to Williamtown RAAF base. She said her duties were three-fold: administrative, pre-deployment training and physical training (‘PT’).
The Applicant said that her administrative role, in which she was posted to ‘Housing’ was physically demanding. It included driving between married quarters and inspecting houses. In the office she would undertake filing roles which included lifting files into filing cabinets and shredding documents.
The pre-deployment training was, as the name suggests, in anticipation of deployment, although there was no evidence that the Applicant herself was scheduled for deployment. The training included Steyr training, sandbagging, marching with full packs, pitching tents, digging pits, carrying logs at shoulder height, being tied to trees, and throwing logs. There was unarmed combat including sparring wearing ‘fighting’ gloves. She said these activities took place an average of three days per week and would take up approximately two hours per day. It was during this period – in November 1999 – when the Applicant injured her right shoulder in the course of IDF training.
As to PT, she said she had a role conducting PT classes. These would take place daily: morning, during the day, lunchtime and after work. These averaged, she said, 3 hours a day. The activities included push-ups, chin-ups, carrying bar bells, work with medicine balls, sparring, all with multiple repetitions. In the course of the 3 hours she thought that half to one hour consisted of activities which were ‘loaded’, by which she meant weight-bearing through her shoulders. The Applicant provided a detailed written account of each activity undertaken, with extensive bio-mechanical information about individual movements.
In addition to activities associated with her role, she also undertook a personal fitness regime, in the course of which she did weights, including using a 5 kg barbell with weights of between 25 to 40 kgs attached, with which she had undertaken multiple lifts. She also did weighted exercises such as lateral pull-downs and bicep curls. She spent about an hour at these activities daily, and in addition, undertook treadmill and other non-load bearing activities.
In all, the Applicant’s evidence was that her PT, both as instructor and personally, accounted for two – two and half hours daily of ‘loaded’ activity.
Left shoulder: activities February to November 2002
Only shortly before this period, in December 2001 her performance appraisal (for the period 22 January – 31 August 2001) referred to the Applicant conducting aerobics classes with ‘energy and vitality’, and noted the high standards she demanded of both those participating and of herself.
At that time, the Applicant was the personal staff officer to the commander and she was undertaking primarily administrative duties. The Applicant gave a similar account of her work and fitness regime for this period, as outlined above. She estimated that for every hour of PT she conducted, about half consisted of activities which were forceful in nature. She also described her own training in similar terms to that noted above and estimated that, during that period, she undertook personal training for up to an hour a day and that half involved activities forceful in nature.
In addition, for two - three weeks she undertook her flight sergeant’s course which involved a lot of heavy activities such as drill, weapons training, marching with packs, sandbagging etc.
In September 2002 she was posted from Williamtown to Maroochydore to Recruiting. She told the VRB that it was a small unit and there was no gym. She said she still conducted classes but would provide her own set of small weights to assist the repetitive activities she supervised. This is in contrast to a letter dated 15 May 2003, extracted from her file, from Anthony Thomas, her physiotherapist, noting that there was no gym available to her and recommending Defence pay for her to attend a gym to assist her back condition. The letter specifically refers to her posting, which was the same as that during the period under consideration. Even if that were the case, the evidence suggests that for the six months between February and September, until her posting to Maroochydore, she would have been undertaking the gym regime she had described.
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.
I also observe that "forceful activities" is defined in the SOP as follows:
…tasks requiring the generation of force by the hand:
(a) equivalent to lifting or carrying loads of more than three kilograms; or
(b) involving lifting or carrying an object in the hand greater than one kilogram in excess of ten times per hour
From her detailed account of her activities, I accept that much of her gym work included forceful activities as defined.
Dr Millons was scathing of the factor’s requirement for 160 hours within a period of 210 days and found it ‘hard to believe that anybody could fit with the definition’. There was, however, no evidence that Dr Millons took a detailed history of the number of classes the Applicant conducted, nor, importantly that he had been supplied with details of the activities undertaken in those classes such as those that had been made available to the VRB and to me.
I accept that the Applicant had a combination of repetitive or sustained activities of each of her shoulders when they were abducted or flexed by at least 60 degrees, and of forceful activities. Further, I accept that she undertook these activities for at least 160 hours within a period of 210 consecutive days before the clinical onset of rotator cuff syndrome of each shoulder.
DECISION
For the above reasons, 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.
I certify that the preceding 45 (forty -five) paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member ............................[sgd]............................................
Associate
Dated 1 July 2016
Date(s) of hearing 17 June 2016 Advocate for the Applicant Mr T Latimore, RSL Veterans' Centre Advocate for the Respondent Mr N Bunn, Repatriation Commission
0
4
0