Trappett and Repatriation Commission (Veterans' entitlements) - [2019] AATA 3736

Trappett and Repatriation Commission (Veterans' entitlements) [2019] AATA 3736 (20 September 2019)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2018/0817
Re:Ian Trappett
APPLICANT

AndRepatriation Commission
RESPONDENT

DECISION
Tribunal:Deputy President J Sosso
Date:20 September 2019
Place:Brisbane

The Tribunal:
(a)affirms the reviewable decision in relation to left shoulder osteoarthritis;
(b)sets aside the reviewable decision in relation to subarachnoid haemorrhage and in substitution finds that the veteran’s subarachnoid haemorrhage was war-caused; and
(c)remits the matter to the Respondent for assessment of pension in accordance with this determination.

....................................[SGD]....................................
Deputy President J Sosso
CATCHWORDS
VETERANS AFFAIRS – Veterans’ Entitlements – service pension – left shoulder osteoarthritis – rugby league football injury – date of clinical onset – failure to seek medical intervention – no evidence presented to explain failure to obtain medical assistance – decision under review affirmed – subarachnoid haemorrhage – alcohol consumption – operational service – Vietnam – Deledio methodology – decision under review set aside – remitted to Repatriation Commission to assess pension entitlements
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth)
CASES
Bushell v Repatriation Commission (1992) 175 CLR 408
Collins v Repatriation Commission (2009) 177 FCR 280
Cooper and Military Rehabilitation and Compensation Commission [2017] AATA 429; 158 ALD 64
Deledio v Repatriation Commission (1997) 47 ALD 261
Dunlop v Repatriation Commission [2003] FCAFC 201
East v Repatriation Commission (1987) 16 FCR 517
Ellis v Repatriation Commission [2014] FCA 847; 142 ALD 352
Forrester v Repatriation Commission [2013] FCA 898
Hardman v Repatriation Commission [2005] FCAFC 83
Kaluza v Repatriation Commission [2011] FCAFC
Lees v Repatriation Commission (2002) 125 FCR 331
Read and Military Rehabilitation and Compensation Commission [2015] AATA 930
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Hancock [2003] FCA 711
Repatriation Commission v Law (1981) 147 CLR 635
Repatriation Commission v Smith (1987) 15 FCR 327
Repatriation Commission v Tuite (1993) 39 FCR 540
Richards and Repatriation Commission [2012] AATA 308
Woodward v Repatriation Commission [2003] FCAFC 160
REASONS FOR DECISION
Deputy President J Sosso
20 September 2019
INTRODUCTION

Mr Ian Clifford Trappett (the veteran) seeks a review of a decision of the Veterans’ Review Board (VRB) of 15 December 2017 (Exhibit 1 T153 pp. 571-579) which affirmed a decision of the Repatriation Commission (the Respondent) of 22 March 2017 which rejected the veteran’s claimed conditions of subarachnoid haemorrhage and rotator cuff syndrome of the left shoulder as being service-related and continued the veteran’s disability pension at 80% of the general rate – Exhibit 1 T145 pp. 535-542. The VRB also decided that the veteran’s osteoarthritis of the left shoulder was not related to service.
The veteran was 67 years of age at the date of the Hearing, and joined the Royal Australian Navy (RAN) on 8 February 1969 when he was 17 years of age. The veteran’s father served in the RAN as a member of the Naval Dockyard Police (Exhibit 3 para 3) and two older brothers had already enlisted when…

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: [2019] AATA 3736
Decision Date: 20 September 2019

CaseChat Overview and Summary

The case of *Trappett and Repatriation Commission* concerned a veteran's claims for service pension entitlements. The veteran sought to have his left shoulder osteoarthritis and a subarachnoid haemorrhage recognised as war-caused. The Administrative Appeals Tribunal (AAT) was required to determine whether these conditions met the criteria for service pension eligibility.

The primary legal issues before the Tribunal were whether the veteran's left shoulder osteoarthritis was service-related, specifically whether it arose from trauma to the affected joint as defined by the relevant Statement of Principles, and whether his subarachnoid haemorrhage was war-caused. The Tribunal had to consider the evidence presented, including medical reports and the veteran's own accounts of his service and injuries, in light of the applicable legislative provisions and case law, particularly the *Deledio* methodology for assessing service-related conditions.

Regarding the left shoulder osteoarthritis, the Tribunal affirmed the reviewable decision, finding that the evidence did not establish that the condition met the criteria for service causation. While the veteran reported a rugby league injury in 1978 involving trauma to his left shoulder, the Tribunal noted that the condition was not diagnosed until 2016 and that there was a lack of evidence explaining the failure to seek timely medical intervention for the initial trauma, which was a requirement under the Statement of Principles. However, concerning the subarachnoid haemorrhage, the Tribunal set aside the previous decision. Applying the *Deledio* methodology, the Tribunal found that the veteran's subarachnoid haemorrhage was war-caused, based on the evidence presented.

Consequently, the Tribunal affirmed the decision in relation to the left shoulder osteoarthritis but set aside the decision concerning the subarachnoid haemorrhage. The matter was remitted to the Repatriation Commission for the assessment of pension entitlements in accordance with the Tribunal's determination that the subarachnoid haemorrhage was war-caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

At the Hearing, Mr Anthony Harding of Counsel for the veteran, confirmed that the VRB’s decision on rotator cuff syndrome of the left shoulder was not being contested – Transcript (Tr.) 3 June 2019 p. 4. It was properly conceded that the medical evidence does not support a finding that the veteran suffers from rotator cuff syndrome, with the correct diagnosis being osteoarthritis – Report of Dr Peter Sharwood, Orthopaedic Surgeon, dated 16 January 2019 , Exhibit 7.HISTORICAL BACKGROUND Since 1984, the veteran has lodged numerous claims with the Respondent. Whilst the Respondent has accepted in whole or part some of these claims, others have been rejected. The following discussion is limited to those claims which have received favourable consideration by the Respondent up to March 2014. The veteran first lodged a Claim for Medical Treatment and Pension on 12 June 1984 for “high frequency hearing loss” which was said to have been caused by service on HMAS Vendetta, particularly whilst serving in Vietnam in the September 1969 – April 1970 period. The veteran provided the following information – Exhibit 1 T6 p. 123:“I was placed in the gun bay where we had no hearing protection also while we were in refit the use of grinders, Jason pistols and chipping hammers on the deck above the galley where I worked.” On 24 October 1984 the Respondent accepted that the veteran’s sensorineural deafness was related to his war service, with effect from 2 April 1984 and found that he was eligible for payment of a disability pension at 10% of the General Rate, effective from 2 April 1984 – Exhibit 1 T12 pp. 149-150. The veteran lodged a claim for disability pension for bilateral osteoarthritis of his knees together with an Application for Increase Pension on 10 January 2007 – Exhibit 1 T20 pp. 180 – 190. In the claim form the veteran gave the following explanation for how his service caused, contributed or aggravated this condition – Exhibit 1 T20 p. 184:“Playing league football for all services and lifting vitals around the ships & up & down between the decks & also in the galleys.” The signs and symptoms of the condition was explained as follows – Exhibit 1 T20 p. 184:“Constant aching all the time. Clicking when walking. Have difficulty standing after sitting for long periods.” Following the examination and assessment of the veteran by Dr Simon Journeaux, Orthopaedic Surgeon, the Respondent accepted that the veteran’s bilateral knee osteoarthritis was service related and increased the veteran’s disability pension to 50% of the General Rate effective from 11 October 2006 – Exhibit 1 T37 pp. 233-235. On 3 February 2012 the veteran lodged an application for an increase in the disability pension in which he stated that his hearing loss and bilateral osteoarthritis of the knees had deteriorated – Exhibit 1 T53 pp. 295-307. The veteran was assessed in a Combined Impairment Report dated 15 October 2012 with a 40 point impairment comprising 22 points for hearing loss and tinnitus, 20 points for lower limbs, five points for resting joint pain and two points for disfigurement and social impairment – Exhibit 1 T58 pp. 324-329.

Evidence

Evidence Before The Court

The term “trauma to the affected joint” is defined in Schedule 1 of the SoP to mean:“a discrete event involving the application of significant physical force to or through the affected joint, that causes damage to the joint and the development, within 24 hours of the event occurring, 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 and that medical intervention involves one of the following:(a)immobilisation of the joint or limb by splinting or similar external agent;(b)injection of corticosteroids or local anaesthetics into that joint; or(c)surgery to that joint.”Evidence of Dr Sharwood The veteran relies on the medical report of Dr Sharwood dated 16 January 2019 (Exhibit 7) as well as his testimony at the Hearing. Dr Sharwood observed that his report was “based on the history provided by Mr Trappett, the appropriate clinical examination and the documentation provided” – Exhibit 7 p. 2. Later in his report, Dr Sharwood noted that “Mr Trappett denied any previous injuries to his shoulder” – Exhibit 7 p. 3. Dr Sharwood also observed that the veteran “says he does not recall having any surgery. He had no specialist referral at the time… He had no specialist review and he has only had one injection into his shoulder in 2014” – Exhibit 7 pp. 2–3. However, Dr Sharwood noted that images “were taken and the report suggested that he had damage to the acromioclavicular joint” – Exhibit 7 p. 2. It is not totally clear what report Dr Sharwood is referring to; however in the Outpatient Record of 11 September 1978, the following notation is ascribed to “Radiographer. Darwin Hospital” – Exhibit 2 S1 p. 156:“There is a minor degree of dislocation of the acromic-clavicular joint.” Dr Sharwood opined that the veteran shows evidence of osteoarthritis of the acromioclavicular joints “and it is from this that most of his symptoms are arising” – Exhibit 7 p. 5. Later in his report Dr Sharwood opined that the veteran suffers from osteoarthritis of the acromioclavicular joint of both his left and right shoulders, and there are minor age-related degenerative changes affecting the gleno-humeral joints of both shoulders – Exhibit 7 p. 6. The onset of osteoarthritis of the left acromioclavicular joint was estimated by Dr Sharwood to have been about 20 years after the 1978 injury, and he posited 2000 as the likely onset date. However, Dr Sharwood also noted that it was not diagnosed radiologically until 2014, but nonetheless he opined that it was reasonable to assume that the veteran developed degenerative changes from the time of his 1978 rugby league accident – Exhibit 7 p. 6. Dr Sharwood also gave some very definite opinions about the causal linkage of the 1978 rugby injury and the veteran’s current left shoulder condition – Exhibit 7 p. 7:“With respect to the Statement of Principles with regard to osteoarthritis of the acromioclavicular joint, there is clear evidence that he had trauma to the joint and this has been documented in 1978. It is reasonable to assume that he probably developed osteoarthritis within twenty-five years of that date however it was not diagnosed until 2014, which is thirty-six years later.With respect to your discussion of the osteoarthritic condition and the application of the Principles, there is no doubt that Mr Trappett did suffer significant trauma to his acromioclavicular joint. This did cause him immediate pain and discomfort and did require treatment at the time. It is likely that he developed osteoarthritis of the acromioclavicular joint in the twenty-five year period following that injury, however the diagnosis was not made until thirty-six years later.Although the radiologists suggest that there is minor change of arthritis of the glenohumeral joints of both shoulders, this is not relevant and would not have been related to the trauma in 1978. I am of the opinion that the degenerative changes within the glenohumeral joints of the shoulders that are seen now are age related.”

Decision

Reasons for decision

The Tribunal agrees that this is the appropriate course of action.DECISION The Tribunal:(a)affirms the reviewable decision in relation to left shoulder osteoarthritis;(b)sets aside the reviewable decision in relation to subarachnoid haemorrhage and in substitution finds that the veteran’s subarachnoid haemorrhage was war-caused; and(c)remits the matter to the Respondent for assessment of pension in accordance with this determination.

Ratio Decidendi

Legal Principle Established

There are antecedent inquiries required of the Tribunal before applying the Deledio methodology which were explained by the Full Federal Court in Collins v Repatriation Commission (2009) 177 FCR 280 (Collins) as follows (284-285):“It is common ground that there are necessarily antecedent inquiries before applying ss 120 and 120A as explained by the ‘Deledio principles’. They are:1whether the claimant was a veteran, or a dependant of a deceased veteran;2whether the veteran has suffered an injury or disease or has died...; and3… the cause of death or the ‘kind of death’ of the veteran… those matters are to be determined on the balance of probabilities, or to the reasonable satisfaction of the decision-maker…”CONSIDERATIONOsteoarthritis of the Left ShoulderIntroduction It is not contested that the veteran suffers from left shoulder osteoarthritis and that the veteran was first diagnosed as suffering from this ailment on 17 November 2016 following radiological investigations undertaken by Dr Small – RS p. 2. The veteran contends that he dislocated his left shoulder while playing rugby league football for the RAN in 1978. A RAN Outpatient Record states that on 11 September 1978 the veteran “(l)and heavily on (L) shoulder whilst playing football. Stiffness and pain ++” – Exhibit 2 S1 p. 156. In his Statement of 18 June 2018 the veteran provided the following brief account of his football injuries – Exhibit 3:“63. I first injured my shoulder was [sic] playing rugby league at HMAS Harman in 1974. I was injured in a spare tackle and lost consciousness and was heavily concussed. I was hospitalised as a result of this incident.64. I injured my shoulder again in 1978 when playing football at HMAS Coonawarra. The second injury involve [sic] the dislocation of the shoulder.” The veteran provided more details of his football injuries in his Supplementary Statement which is dated 14 December 2018 – Exhibit 4. Relevant extracts from this Statement are set out below:“5. The injury was very painful and I would estimate that the pain was at the level of 9/10 until I received painkilling medication. The shoulder was very tender. The pain and tenderness lasted for many weeks. Indeed, the pain from the original injury became constant and permanent from the date of injury until now. The loss of range of movement was also constant from the date of the injury until now.6. I wore the sling for at least 14 days…7. As I say, the pain from the shoulder injury has been permanent and continuous since the date of the injury and the intensity of the pain varies between 5/10 and 8/10 depending upon my level of activity.8. When I stopped wearing the sling after about 14 days, the shoulder was still very sore with any movement. I lost the ability to raise my right arm above shoulder level without pain and discomfort due to this injury. When I tried to lift my left arm above my left shoulder, I always suffered pain and discomfort at a moderate level.9. At that time, my usual duties did not require me ordinarily to lift or otherwise raise my arms above shoulder level…10. The loss of above shoulder function of my left shoulder became permanent. I managed to cope with my day-to-day duties in the Navy even when I was serving on-board ship. Serving on-board ship meant that I was required from time to time to scale ladders and gangways. Because the rails were not high, I was able to manage these activities using my right arm. I adapted the way that I did things so that the loss of function in my left shoulder did not cause me any problems in normal day-to-day living activities or in my job. Once again, my duties did not require any real lifting or other activity above shoulder level.”Factor 9(6) Statement of Principles No. 62 of 2017 – Osteoarthritis (Balance of Probabilities)