Winchester and Repatriation Commission
[2008] AATA 935
•21 October 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 935
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/5746
VETERANS' APPEALS DIVISION ) Re ROBERT JOHN WINCHESTER Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member L Hastwell
Mr S J Ellis AM (Member)Date21 October 2008
PlaceAdelaide
Decision The Tribunal affirms the decision under review.
..............................................
L HASTWELL
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – operational service – bilateral osteoarthrosis of the shoulders – bilateral rotator cuff syndrome – SoP factors considered – hypothesis not established – decision affirmed
Veterans’ Entitlements Act 1986 ss 9, 120(1), 120(3), 120A(3) and 196
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission (2001) 6 ALD 271
East v Repatriation Commission (1987) 16 FCR 517
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668RepatriationCommission v Cornelius[2002] FCA 750
Statement of Principles Instrument No 39 of 2006
Statement of Principles Instrument No 31 of 2005
REASONS FOR DECISION
21 October 2008 Senior Member L Hastwell
Mr S J Ellis AM (Member)1. Robert John Winchester was engaged in operational service in the Australian Army from 25 June 1969 to 25 March 1970. His total period of Army service was from 2 May 1968 to 25 June 1970.
2. He has a number of accepted disabilities namely:
·post-traumatic stress disorder;
·septal deviation;
·bilateral sensorineural hearing loss; and
·alcohol dependence or alcohol abuse.
3. On 7 November 2006 he lodged a claim for pension for “shoulder injury”. The Repatriation Commission (the Commission) recorded diagnoses of rotator cuff syndrome with subacromial impingement of the left and right shoulders and osteoarthrosis of both shoulders, but found that these conditions were not related to war service.
4. The Veterans Review Board, upon review, affirmed this decision on 9 November 2007. Mr Winchester has applied to this Tribunal to review the decision of the Commission.
issues
5. The issue before the Tribunal is whether Mr Winchester’s shoulder conditions are war-caused for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act).
6. Both parties accept the diagnoses of his condition.
relevant events during mr winchester’s war service
7. Mr Winchester gave evidence to the Tribunal. His medical records for his years of war service were contained in the T documents which were received as Exhibit R1. Some additional medical information was also received into evidence by the Tribunal, including Mr Winchester’s medical notes from the Flinders Clinic and the Kurralta Park Surgery.
8. He served for approximately 10 months in Vietnam. He initially worked there as a driver, but he then moved to the field workshop approximately three months after his arrival in Vietnam. Thereafter he worked repairing vehicles, trucks, armoured personnel tanks and damaged vessels.
9. His work involved hammering, welding, grinding, filing and painting.
10. He did some patrol duties while in Vietnam, usually going out once every two months. This would involve one overnight patrol. He would carry a M16 machine gun while on patrol. He found this a heavy piece of equipment to carry.
11. There is no evidence that he ever suffered any injury to either of his shoulders in the course of his war service.
12. His service medical records indicate that in his Discharge History Questionnaire (T8/36) he reported “aching shoulders when cold - never reported sick”.
13. A knee injury, an ear injury, a skin infection and a nasal condition were reported in a Repatriation Department Medical History Sheet signed by Mr Winchester on 8 June 1970 (T10/40) and shortly prior to his final discharge.
relevant events since mr winchester’s return from vietnam
14. Mr Winchester was discharged from the Army soon after his return from Vietnam.
15. He commenced working in the crash repair business upon his return from Vietnam and he worked in that business until 2000. He was self-employed for much of that time.
16. Medical records from the Flinders Clinic (Exhibit A2) report that in July 1974 he attended at that clinic complaining of shoulder pain at night which was diagnosed as being mild supraspinatus tendinitis.
17. On 15 January 1994 he and his wife were living immediately adjacent to his crash repair business on Brighton Road. He was woken by a loud crash. He ran out and as he exited the house he grabbed a long hand shovel that was leaning by the door. A vehicle had reversed into the gate of his crash repair business in what appeared to be an attempted ram raid. Mr Winchester ran out of the house and as he approached the offending vehicle the driver began to drive away. Mr Winchester put the shovel through the window of the car to hit the driver and as the car drove away, the handle caught and Mr Winchester was dragged some distance down the footpath by the moving vehicle. He tumbled and fell heavily, fracturing eleven ribs and damaging his shoulder and knees.
18. Mr Winchester gave a good account of the 1994 incident. He appeared to be thinking very rationally when he went out to protect his property. The shovel happened to be by the door that night because he had been out catching yabbies that day and had been using the shovel to put his catch into a bucket. He told the Tribunal that he took the shovel for self-defence and did not think of it as a weapon as he ran to intercept the intruder. He wanted to protect his property and apprehend the intruder if at all possible.
19. He was bruised and battered as a result of the fall. His recall was that he hurt both shoulders in the incident, but he was not entirely sure on that point.
20. He saw the doctor the next day and he took three weeks off work as a result of the incident.
21. His left shoulder was x-rayed on 17 January 1994. A radiology report (T22/84) indicated early degenerative change of the left shoulder and early degenerative change in the left acromio-clavicular joint. This is the first report of any arthritis in the left shoulder. It appears that the right shoulder was not investigated on that occasion.
22. Dr Simon Spedding of the Australian Government Health Service, in a report dated 17 April 2008 (Exhibit R1), which was before the Tribunal, confirmed that this radiological report of 1994 (T22) showed a diagnosis of osteoarthrosis of the left gleno-humeral joint and the left acromio-clavicular joint and that this condition would have been in existence for several years prior to this date. He did not specify for what period.
23. He also noted that no specific investigation was undertaken for rotator cuff pathology, which could neither be diagnosed nor excluded on 17 January 1994. Nevertheless, he thought it more likely than not that Mr Winchester had rotator cuff pathology at the time.
24. On 7 October 1997, an x-ray of Mr Winchester’s right shoulder (T22/85) showed some degenerative changes in the gleno-humeral joint.
25. Mr Winchester did not have a very good recall of that particular period. He wondered if the trigger to that investigation may have been a drilling incident at work. Mr Winchester commented in his evidence that his right shoulder was always the more troublesome of his shoulders and that it just gradually became worse over the years,
26. Poor health resulted in Mr Winchester selling his business in 2000 and he is now retired.
consideration and application of the law
27. Mr Winchester was an honest witness. He did not attempt to embellish his evidence in any way.
28. The relevant legislation is contained in the VE Act. Section 9 provides as 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; …”
29. It is agreed in this case that Mr Winchester was in operational service, which is defined in ss 6 to 6F of the VE Act.
30. Section 13(1) of the VE Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
31. As Mr Winchester has performed operational service, the determination of whether his current asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those sections provide as follows:
“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.
Note: This subsection is affected by section 120A.
…
(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; or
(c) that the death was war-caused or defence-caused;
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.
Note: This subsection is affected by section 120A.”
32. Under s 120A of the VE Act, in the case of applications lodged after 1 June 1994, where the Repatriation Medical Authority has made a Statement of Principles (SoP) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. This follows from s 120A(3), which provides:
“(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
(b)a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.”
33. The claimed condition of rotator cuff syndrome is subject to SoP Instrument No 39 of 2006 and the claimed condition of osteoarthrosis is subject to SoP Instrument No 31 of 2005.
34. When a SoP exists, the Tribunal must apply the test prescribed by s 120A(3) of the VE Act and follow the steps outlined in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97. Those steps can be summarised as follows:
·Does the material raise an hypothesis that a claimed condition is caused by war service? No question of fact finding arises at this stage. If no such hypothesis is raised, the claim must fail.
·If the material does raise an hypothesis, is there a SoP with respect to the claimed condition?
·If there is a SoP, does the material match one or more of the factors listed in the SoP? If the material matches, the hypothesis is a reasonable hypothesis. If it does not match, the claim will fail.
·If there is a reasonable hypothesis, the claim will succeed unless the Tribunal is satisfied, beyond reasonable doubt, that the injury or condition was not war-caused.
35. In considering whether there is an hypothesis connecting Mr Winchester’s conditions with his war service, and in applying the relevant Deledio steps to that end, the Tribunal must consider all of the material before it and whether or not that material supports the hypothesis.
36. An hypothesis that (once again, after taking into account all of the material before the Tribunal) could be said to be “obviously fanciful or impossible or incredible or not tenable or too remote or too tenuous” would not be reasonable and would not point to the relevant connection with the veteran’s service (see Bullv Repatriation Commission (2001) 6 ALD 271 at [18], where Emmett and Allsop JJ explained the significance in this regard of East v Repatriation Commission (1987) 16 FCR 517). The Tribunal refers also to Repatriation Commission v Bey (1997) 79 FCR 364 where in their joint judgment, Northrop, Sundberg, Marshall and Merkell JJ said in effect (at pages 372.9 to 373.1) that a “reasonable hypothesis” involves more than a mere possibility, and is an hypothesis pointed to by the facts, even though not proved on the balance of probabilities.
37. As regards the first step in Deledio, I am satisfied that the material before me points to an hypothesis connecting both of the claimed conditions of rotator cuff syndrome and osteoarthrosis of both shoulders with his operational service. That hypothesis is put on two bases by Mr Winchester’s counsel.
38. The work that Mr Winchester carried out while working in the field workshop in Vietnam or carrying guns while carrying out night patrols, resulted in him suffering these conditions and accordingly the conditions are war-caused.
39. The alternate hypothesis, as set out in the applicant’s statement of facts, issues and contentions, is that the incident in 1994 when he was injured while trying to apprehend an intruder, was caused by his accepted condition of post-traumatic stress disorder and that his conditions are a direct result of that incident and arose within the relevant time as set out in the SoP.
40. There are SoPs in respect of rotator cuff syndrome and osteoarthritis of the shoulders so the second step in Deledio is satisfied.
41. The Tribunal now turns to the third step as enunciated in Deledio. It must determine whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoPs. This step involves considering all of the material before the Tribunal, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission (2002) 125 FCR 331.
42. The Tribunal will first consider the condition of rotator cuff syndrome. Under clause 5 of the SoP, with respect to rotator cuff syndrome, at least one of the factors set out in clause 6 must be related to the relevant service (being in this case operational service) by the veteran. Clause 6 then provides relevantly as follows:
“Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting rotator cuff syndrome … with the circumstances of a person’s relevant service is:”
A list of factors is set out and it is common ground that only a limited number of those factors could have possible relevance in this case. They are as follows:
“(a)having an injury to the affected shoulder within the 30 days before the clinical onset of rotator cuff syndrome; or
(b)performing repetitive or sustained activities of the affected shoulder when the shoulder on the affected side is abducted or flexed by at least 60 degrees for at least 80 hours within a period of 120 consecutive days, before the clinical onset of rotator cuff syndrome and where the clinical onset of rotator cuff syndrome occurs within the 30 days following the last such activity in that period; or
…”
43. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees (supra). The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer 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 RepatriationCommission v Cornelius[2002] FCA 750.
44. There is material before the Tribunal that points to the clinical onset of rotator cuff syndrome in the left shoulder by January 1994 and in the right shoulder by no later than 2000. That material is contained in the radiological reports and with respect to the left shoulder in the report of Dr Spedding.
45. The clinical onset of the rotator cuff condition was so long after Mr Winchester’s actual war service that it cannot be related to war service by reference to any of the factors referred to in the SoP.
46. There is nothing in any of the evidence before the Tribunal to link the incident in 1994 when Mr Winchester went out to apprehend an intruder, with his war service or his condition of post-traumatic stress disorder.
47. For the above reasons, the Tribunal considers that the hypothesis raised by the material before it is not consistent with any of the factors in Instrument No 39 of 2006, and so the SoP does not uphold the asserted hypothesis connecting Mr Winchester’s rotator cuff syndrome with the circumstances of his operational service. As a result, the hypothesis is not reasonable, and by virtue of s 120(3) of the VE Act, the Tribunal must find, beyond reasonable doubt, that there is no sufficient ground for determining that the claimed condition of bilateral rotator cuff syndrome was war-caused; and as a result, the claim must fail.
48. Turning to the second claimed condition of osteoarthritis, counsel for Mr Winchester was unable to point to any factors in the SoP that may assist the Tribunal, but was instructed not to abandon the claim.
49. The relevant SoP provides as follows:
“Factors that must be related to service
5.Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
Factors
6. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis or death from osteoarthrosis with the circumstances of a person’s relevant service is:”
Based on the evidence, the only possible relevant factor could be (g) which provides as follows:
“(g) having a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint;”
50. There is material before the Tribunal that points to the clinical onset of osteoarthrosis in the left shoulder by January 1994. It appears to have been several years later before there was any medical indication of right shoulder problems, being at the earliest 1997, and possibly later.
51. The clinical onset of the arthritic condition in the left and right shoulders was so long after Mr Winchester’s actual war service that it cannot be related to war service by reference to any of the factors referred to in the SoP.
52. There is nothing in any of the evidence before the Tribunal to link the incident in 1994 when Mr Winchester went out to apprehend an intruder with his war service.
53. In all of the circumstances, the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the conditions of osteoarthrosis of the shoulders and bilateral rotator cuff syndrome are related to Mr Winchester’s operational service.
decision
54. For the above reasons, the Tribunal affirms the decision under review.
I certify that the 54 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member
L Hastwell and Mr S J Ellis AM (Member)Signed: ............J Coulthard……................................
AssociateDate of Hearing 17 July 2008
Date of Decision 21 October 2008
Counsel for the Applicant Mr C Swan
Solicitor for the Applicant Swan LawyersAdvocate for the Respondent Mr A Crowe
DVA
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