Farrelly and Repatriation Commission [2002] AATA 113 (22 February 2002)

Last Updated: 11 March 2002

DECISION AND REASONS FOR DECISION [2002] AATA 113

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/163

VETERANS' APPEALS DIVISION )

Re MICHAEL ALAN FARRELLY

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date 22 February 2002

Place Hobart

Decision The decision under review is affirmed.

(Sgd A F Cunningham]

Part-Time Member

CATCHWORDS

Veteran's Entitlements - dislocation - aggravation of previous injury - whether arose out of or attributable to service.

Veterans' Entitlements Act 1986 - ss.5(d)(ii),70,

Statement of Principles - Instrument No 291 of 1995

Repatriation Commission v Tuite (1993) 29 ALD 609

REASONS FOR DECISION

22 February 2002 Ms A F Cunningham (Part-time Member)

1. The applicant has sought the review of a decision made by the Repatriation Commission on 7 October 1999 which determined that rotator cuff syndrome left shoulder was not defence-caused within the meaning of s.70 of the Veterans' Entitlements Act 1986 ("the Act"). The decision was subsequently affirmed by the Veterans' Review Board on 27 November 2000.

2. The T documents were lodged pursuant to the provisions of s37 of the Administrative Appeals Tribunal Act 1975. The applicant gave oral evidence. No evidence was led by the respondent.

3. The following facts did not appear to be in issue at the hearing and the Tribunal finds that:

(i) the applicant served on a continuous full-time basis as a member of the defence force from 30 May 1972 until 27 June 1975;

(ii) the applicant dislocated his left shoulder at Kapooka on 7 August 1972 and was sent to Wagga Wagga Base Hospital;

(iii) the applicant dislocated his left shoulder for a second time on 12 August 1972 and was admitted to Yarram District Hospital on the same date;

(iv) the applicant dislocated his left shoulder for a third time on 6 February 1973 whilst swimming at a weir and was subsequently taken to a camp hospital for treatment.

(v) the applicant underwent a putti-platt procedure on 14 May 1973.

4. The applicant having completed 3 years of effective full-time service after 6 December 1972 thus qualifies as a member of the defence force pursuant to the provisions of s69(1)(c) of the Act. This section appears in Part IV of the Act and the applicant's eligibility under Part IV for a pension arises pursuant to s70 of the Act. Subsection 5 provides that for an injury to have been "defence-caused it must have arisen out of or have been attributable to any defence service ... of the member".

5. Subsection 5(d)(ii) makes provision for where an injury that was suffered or contracted before the commencement of the period of defence service was contributed to in a material degree or aggravated by any defence service rendered by the member being service rendered after the member suffered that injury.

6. The questions for the Tribunal to determine are whether the applicant's current condition was aggravated by the third dislocation and the consequences of the putti-platt procedure and further, whether the third location which occurred in February 1973, was related to his defence service.

7. It was submitted by Mr Castle on behalf of the respondent Commission, that the Tribunal could accept on the basis of the evidence contained in a report from Mr H W Bye, an orthopaedic surgeon, (T32) that the putti-platt procedure aggravated the applicant's condition and that if the Tribunal accepts that the dislocation occurred whilst the applicant was rendering defence-service, then the Tribunal could find that the applicant was eligible pursuant to the provisions of s70. In other words, Mr Castle accepted the evidence of Mr Bye as contained in his report dated 18 August 2000 that the putti-platt procedure aggravated the applicant's condition.

8. As Mr Bye stated in his report:

"The incident of February 1973 could have given rise to a dislocation of the shoulder in a normal person, but clearly Mr Farrelly was predisposed to this by his initial injury of August 1972. Certainly, however, his current symptoms of restriction of movement, pain at night, difficulty with swimming etc relate to his shoulder surgery, that being a Putti-Platt procedure. A Putti-Platt procedure is a procedure now rarely done for shoulder surgery as it is prone to give rise to restriction of movement and an increased risk of osteoarthritis in the gleno humeral joint."

9. It would thus appear that the remaining issue for determination by the Tribunal is whether the third dislocation to the applicant's left shoulder was defence-caused in that it occurred during the course of the applicant's service. It was Mr Castle contention that it did not, but occurred whilst the applicant was engaged in a recreational activity outside the terms of his service.

10. In its reasons for decision, the Repatriation Commission found that the decision to carry out the putti-platt procedure on the applicant's left shoulder was taken before the commencement of his eligible service in respect of injuries that had already occurred. The Board was satisfied on the evidence before it that the putti-platt procedure would have been carried out as a consequence of injuries that occurred during non-eligible service, even if the applicant had not sustained the further dislocation in February 1973.

11. This issue was not raised by the respondent at the hearing before the Tribunal. It is noted that Mr Bye in his report states that in January 1973 the applicant was already scheduled for surgery before the third dislocation which occurred in February 1973. Mr Bye commented that the timing of the surgery may have been altered by the applicant's third dislocation in February 1973.

12. In accordance with the provisions of s120(4) of the Act the Tribunal must be reasonably satisfied on the balance of probabilities that the disability was caused by eligible defence-service. As the claim was lodged after 1 June 1994, the provisions of s120B provide that the Tribunal can be so satisfied if the evidence meets one of the factors set out in a relevant Statement of Principles.

13. The Statement of Principles applied by the Repatriation Commission was Statement of Principles Instrument No. 84 of 1997 for the condition rotator cuff syndrome. The Veterans' Review Board was asked to consider Statements of Principles relating to rotator cuff syndrome and dislocation as contained in Instrument No. 291 of 1995. This Tribunal is prepared to accept the diagnosis of dislocation as described by Mr Bye in his report dated 18 August 2000 (T32).

14. The latter Statement of Principles states in paragraph 1 ... "it is more probable than not that dislocation ... can be related to eligible war service (other than operational service) rendered by veterans and defence service (other than hazardous service) rendered by members of the forces, the Repatriation Medical Authority determines under sub-section 196B(3) of the Veterans' Entitlements Act 1986 (the Act), that factors that must exist before it can be said on the balance of probabilities, dislocation ... is connected with the circumstances of that service, are:

(a) suffering physical trauma to the affected site immediately before the clinical onset of dislocation;

(b) ...

(c) suffering physical trauma to the affected site immediately before the clinical worsening of dislocation; or

(d) suffering a disease process affecting the stability or normal structural relationship between the articulating services of the affected joint immediately before the clinical worsening of dislocation."

15. The Statements of Principles go on to state that the relationship suggested between the dislocation and the particular service of a person is as set out in the Act in that the injury must be contributed to in a material degree or aggravated by any defence-service rendered by the member.

16. It was argued on behalf of the applicant that the aggravation of the injury caused by the fall sustained in February 1973, occurred during the applicant's service. Mr Castle cross-examined the applicant as to the circumstances in which the injury occurred. It was his contention that the injury did not arise during the period of the applicant's service, but whilst he was off duty, away from the army base enjoying a recreational swim.

17. The applicant contended on the other that he had not been formally dismissed prior to leaving camp with other servicemen. He said that he had asked permission to go for a swim, which had been granted. Further, that he would have expected to have been formally discharged at the roll call which would have occurred later than afternoon. He said that this never in fact happened on the day in question because he was taken to hospital following his injury.

18. Even if the Tribunal accepts the applicant's evidence it must nevertheless be satisfied that the injury "arose out of or was attributable to" the applicant's service. In other words there must be a causal connection between the injury and the applicant's service. As the Full Federal Court stated in the decision Repatriation Commission v Tuite (1993) 29 ALD 609:

"...if an injury or disease is claimed to have arisen out of or been attributable to a serviceman's camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred ...".

As the Tribunal stated in Tuite's case, the causal connection must be more than merely temporal.

19. In the present case, even if the Tribunal accepts the applicant's evidence that he had not been formally discharged prior to leaving camp for the swim, it is the Tribunal's view that there must be a greater connection between the injury sustained and the applicant's service. In other words, the applicant's service should not be merely the setting in which the injury occurred. Whilst the applicant may have been granted permission to leave camp for a recreational swim, it was not a service related recreational activity. There is not sufficient connection between this activity and the applicant's service such that the Tribunal can find that the injury "arose out of" or was "attributable" to his service. Whilst Mr Castle submitted that if the Tribunal found that the injury occurred during the applicant's service, on the basis of the evidence from Mr Bye that the applicant's present condition largely resulted from the putti-platt procedure, the Tribunal could find in the applicant's favour. The Tribunal does not accept that this is the case and further notes that the decision to perform the putti-platt procedure was made prior to the third dislocation. The previous two dislocations suffered by the applicant were not related to his eligible service having been sustained prior to 6 December 1972.

20. The Tribunal being unable to find the necessary causal connection between the applicant's condition and his service therefore affirms the decision under review.

I certify that the 20 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)

Signed: K L Miller Personal Assistant

Date/s of Hearing 29 November 2001

Date of Decision 22 February 2002

Representative for the Applicant Mr S Cocker

Counsel for the Respondent Mr M Castle

Solicitor for the Respondent Department of Veterans' Affairs