Brabham and Repatriation Commission [2002] AATA 79 (7 February 2002)

Last Updated: 13 February 2002

DECISION AND REASONS FOR DECISION [2002] AATA 79

ADMINISTRATIVE APPEALS TRIBUNAL)

N° V2000/637

VETERANS' APPEALS DIVISION)

CHARLES ALAN BRABHAM

Applicant

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mr J.R. Handley, Senior Member

M.J. Carstairs, Member

Associate Professor J.H. Maynard, Member

Date: 7 February 2002

Place: Melbourne

Decision: The decision under review is set aside, and the matter remitted to the respondent to assess entitlement to pension.

. . . .Sgd. Mr J. Handley. . .

Senior Member

VETERANS' ENTITLEMENTS -- right elbow injury in service - subsequent pain - incapacity by right elbow injury from 1998 - whether injury related to employment or service - whether a reasonable hypothesis - decision under review set aside

Veterans' Entitlements Act 1986 s.120

East v Repatriation Commission (1987) 74 ALR 518

Bushell v Repatriation Commission (1992) 109 ALR 30

REASONS FOR DECISION

7 February 2002 Mr J.R Handley, Senior Member

M.J. Carstairs, Member

Associate Professor J.H. Maynard, Member

1. The applicant applies to review a decision made by the Veterans' Review Board ("VRB") on 9 March 2000. The VRB then decided to affirm a decision previously made by the Repatriation Commission on 7 December 1998 refusing the claim for right lateral epicondylitis.

2. A Statement of Principles has not been issued for this injury. Accordingly the application is to be determined pursuant to the beneficial standard of proof, namely reasonable hypothesis, by reason of the applicant having been engaged in operational service.

3. Mr Brabham is presently 51 years of age, having been born on 30 January 1950. He currently receives disability pension at 100 per cent of the general rate by reason of the accepted disabilities of bilateral sensorineural hearing loss, psychoactive substance abuse or dependence, post traumatic stress disorder, peptic ulcer disease and hypertriglyceridaemia. The only rejected disability is right lateral epicondylitis.

4. The hearing commenced on 23 July but, having regard to the volume of evidence called by the respondent, it could not then conclude. The hearing resumed and concluded on 4 December. Written submissions were subsequently filed by the respondent. Mr G. Moore, who appeared on behalf of the applicant, provided his submissions at the conclusion of the hearing. Ms J. McCulloch, a departmental advocate, appeared on behalf of the respondent.

5. A number of witnesses gave evidence and a number of documents were received into evidence. The identity of the witnesses and the nature of the documents will be referred to in these reasons.

Charles Alan Brabham

6. Mr Brabham was a member of the Australian Army ("the Army") between 8 July 1970 and 7 January 1972. He served in Vietnam between 13 May 1971 and 27 November 1971.

7. Prior to service, the applicant was engaged as a labourer on local farms and with the Victorian Railways. He was predominantly engaged in manual unskilled work. Prior to service, he had not ever experienced any right arm injury or pain or discomfort.

8. In 1971, when on board an aircraft carrier, transporting the applicant and others to Vietnam, all personnel were required to engage in exercises. This comprised jogging and push-ups. The applicant noted after a period of push-ups that he suffered swelling around his right elbow and pain. The applicant and a number of others who suffered similar complaints attended a medical centre on board the ship. The applicant was attended by a person wearing a Navy uniform however the applicant was unable to identify whether that person was a doctor or a first-aid attendant. Nonetheless, the applicant said that he was not prescribed medication but was issued with a sling, which he wore for three days. He recalled within this period that his arm was very painful and he was unable to straighten it, however eventually his arm regained useful function but it did not become pain free.

9. After arriving in Vietnam, the applicant said that he was engaged in a number of patrols where he would be required to fall onto his elbows on to the ground - and whilst wearing a full military pack. The applicant said that he fell on to rough stony terrain which precipitated pain in his right elbow. He did not seek medical assistance, nor did he report it. He recalled that there was a culture within the Army that if complaints were made, persons were referred to as being "weak".

10. Thereafter the applicant said that he has never been pain free in his right elbow.

11. On return to Victoria after service the applicant has been engaged in heavy manual-type employment, particularly as a tyre retreader in western Victoria. The applicant described the work as having to roll tyres on to an elevated platform, raise the platform and then swing or pull a lever with his right hand.

12. The applicant said that his right elbow eventually deteriorated and he suffered weakness and constant pain. His discomfort was noted by his employer who - apparently because of a good relationship between the applicant and the employer - permitted him to have time off work or lighter duties.

13. The applicant did not attend any doctors for treatment of his right elbow until approximately 1998. This was despite the presence of pain in the elbow since Vietnam and the worsening of the elbow in recent years. Additionally, the applicant did not consume pain-killing medication.

14. In evidence the applicant said that he had a poor memory and he was reluctant to talk about his Vietnam service or any injury or illness arising from it.

15. In cross-examination Mr Brabham was acquainted with a number of comments made by various doctors who had either treated him or consulted him on a medico-legal basis, and who, it was suggested, obtained a history inconsistent with what he had said in evidence. Mr Brabham said that he could not recall a number of consultations, nor could he remember a number of the doctors referred to. When it was suggested to him that the very first attendance for treatment for his right elbow was on 28 August 1998 with Dr M.F. Forster in Hamilton the applicant said he could not recall the consultation. Mr Brabham said that he had felt pain for many years in his elbow but did not ever complain of it until it became "impossible" to undertake his salaried employment. Mr Brabham acknowledged that there was no reference made by him in his discharge medical examination to right arm pain or injury and when advised that there were no documented records available or capable of being located with respect to his complaints on board the ship transporting him to Vietnam, Mr Brabham was unable to give an explanation. He was adamant that he had suffered pain in his elbow on every day since 1971, and had been worsened by subsequent manual activity. He acknowledged however that he was capable of working until shortly prior to ceasing work in 1998.

Elizabeth Brabham

16. Mrs Brabham is the wife of the applicant. She said that her husband prefers not to attend doctors for treatment and will only do so when "he has to". She acknowledged that there were many attendances at Dr Forster's clinic in Hamilton but she said this was to mainly treat lacerations or his gout. She said that she would have to "push him" to go to a doctor and she could only ever recall him attending a doctor on one or two occasions from his own initiative.

17. At home, Mrs Brabham said, that her husband's Vietnam experience was not spoken of because it was "taboo". She said she first learnt of her husband's elbow pain approximately three or four years ago when he dropped a teacup at home. She observed what had happened and he immediately responded that there was "nothing wrong". She noticed however that he was then unable to use his right arm. Mr Brabham apparently then said that he "had better go and see someone".

18. Mrs Brabham described her husband's memory "hopeless".

19. In cross-examination Mrs Brabham said that she was aware that her husband had been attending a psychiatrist with respect to his post traumatic stress disorder. She understood also that his experiences in Vietnam were also being discussed but she had no detail of this. She said that her husband used to enjoy woodturning and fishing and, despite this activity, he did not ever complain of elbow pain or discomfort. She said he now does not undertake these activities and mainly spends most of his leisure time "sitting in the shed". She said that Mr Brabham does not engage in any gardening or cutting wood or cutting lawns. Recently she has observed him rubbing his elbow but he had said that there was "no problem" and he had told her "don't worry about it".

John McArthur

20. Mr McArthur is an orthopaedic surgeon who examined the applicant at the request of his solicitor on 24 July 2000. He provided a report dated 26 July 2000 and it was received into evidence.

21. Mr McArthur said that the applicant was a "less than average" historian. He said that he found it difficult to extract information from him and only by reason of the applicant's wife contacting Mr McArthur on the day following the consultation that a full work history was obtained. Nonetheless, Mr McArthur said that he had no doubt that the applicant did cooperate in the consultation to the best of his ability.

22. Mr McArthur said that he was satisfied the applicant suffered from a right elbow lateral epicondylitis which was longstanding and particularly affected him on gripping, rotation or on straightening the arm. On examination Mr McArthur said that he was able to reproduce pain in the lateral epicondyle and he was confident of his diagnosis. He noted that the applicant was right hand dominant however the circumference of the right upper arm was two centimetres less than the circumference of the left upper arm which suggested to him that there was considerable disuse because of the presence muscle wasting.

23. Mr McArthur said that he did obtain a history from Mr Brabham of pain in the right elbow since service. He also obtained a history of the applicant first injuring his right elbow when on board HMAS Melbourne en route to Vietnam and subsequently by reason of falling onto his right elbow during patrols. Mr McArthur said that, in his opinion, the incidents during service could have contributed to the condition and there was nothing fanciful or far fetched in this hypothesis which he regarded as being reasonable.

24. In cross-examination Dr McArthur agreed that it was not until the day after the consultation that he learnt from the applicant's wife that he had had a long career as a tyre retreader. Nonetheless, he learnt that the applicant was not engaged in heavy lifting because of the availability of mechanical devices, but he did note that the applicant was required to pull on a lever using his right hand.

25. Mr McArthur said that he was not "surprised" the applicant did not seek medical attention after discharge in 1971 because initially the pain in the elbow was "slight" and having observed the applicant during a consultation, he said that he was "not surprised" that there was a long history of right arm pain without complaint.

26. Nonetheless, Mr McArthur acknowledged that he had not observed the reports of other doctors and his diagnosis was made entirely upon the basis of the examination and the applicant's history.

27. Mr McArthur said that there was a strong possibility that the applicant was presently suffering from early osteoarthritis in his right elbow joint. Nonetheless the epicondylitis from service remained present and apparent. He also acknowledged that any calcification in the elbow joint might contribute to the presence of pain.

28. The witness was of the opinion that epicondylitis can remain present for many years. He also acknowledged that pulling on a lever at work - if repetitive - might be sufficient also to cause pain.

29. In an attempt to clarify some uncertainty as to whether there was a reasonable hypothesis between service and subsequent lateral epicondylitis, Mr McArthur said that he could point to the episodes of the push-ups on board HMAS Melbourne and falling onto his elbows in service as sufficient to establish the connection. He also noted that the applicant has had a painful right elbow since service and he thought that it was reasonable that the applicant's service had initiated the condition. He said these factors amounted to a "reasonable hypothesis of possibility".

Michael Forster

30. Dr Forster is a general practitioner in Hamilton in western Victoria. He has been treating the applicant for approximately 12 years. He described the applicant as being an unassuming, hardworking manual employee who tolerates difficulty and discomfort. He regarded the applicant as having a high tolerance of pain and thought he was a "truthful genuine bloke, straight down the line".

31. Dr Forster first attended Mr Brabham for right arm treatment on 26 August 1998, despite having attended him on a number of earlier occasions. He said Mr Brabham then presented with very severe right arm pain which had prevented him from continuing to work. He said that the applicant had been "putting up with it" for sometime. He acknowledged that the applicant had attended the clinic on many prior occasions but that "it takes a lot to get him to a doctor". He said that prior occasions of treatment had been with respect to major illnesses.

32. In cross-examination Dr Forster agreed that the applicant had attended the clinic between 1969 and the year 2000 on more than 200 occasions at an average of 8 visits per year. Nonetheless Dr Forster said that Mr Brabham was reluctant to attend doctors for any treatment.

33. The witness acknowledged that Mr Brendan Dooley and Dr Griffiths had a history from the applicant of 18 months of right arm pain prior to consultation. However, upon attending the applicant on 23 August 1999 for a "long consultation", Dr Forster noted that the applicant was "quite guarded" about his Vietnam service but he did then learn (for the first time) of the applicant's right arm pain following push-ups and manoeuvres where he fell onto his elbows. Dr Forster did not obtain any history of whether the applicant had complained of right arm pain since his Vietnam service.

34. Dr Forster said that the applicant attended in 1998 and 1999 with severe arm pain and he thought that the applicant would have been unable to work as a tyre retreader for 18 years with the same degree of pain. He said the severity caused him to cease work and the injury was then more prominent than it had been earlier.

35. When he was taken to his notes at 2 October 1998, which record "years of elbow pain", Dr Forster said that this history would be inconsistent with the applicant having had elbow pain for 18 months only.

Robyn Horsley

36. Dr Horsley is an occupational physician who examined the applicant at the request of the respondent on 24 January 2001. She provided a report dated 31 January 2001 and a supplementary opinion dated 6 August 2001, both of which were received into evidence.

37. Dr Horsley said that she was aware the applicant first presented for treatment of his right arm in 1998, which she also diagnosed as epicondylitis. She obtained a history from Mr Brabham of right arm pain for 10 years. She said the symptoms presented were consistent with his occupation as a tyre retreader. She understood the work to involve heavy manual labour, involving pushing and pulling type activity. She said epicondylitis was a common injury for persons who are employed as tyre retreaders.

38. Dr Horsley said it "was not possible" that the applicant could have worked with the same severity of pain for 23 years (subsequent to discharge from service) without presenting at an earlier date to a medical practitioner. She thought that his lack of strength and power (as she observed) would have caused him to attend for medical treatment much earlier.

Michael Dooley

39. Mr Dooley is an orthopaedic surgeon in practice in Warrnambool, Victoria. He examined the applicant on one occasion only, on 29 September 1998, upon referral from the Hamilton Medical Group. In a report dated 7 August 2001 Mr Dooley recorded a history of right elbow pain for 18 months. He had a history of the applicant being employed as a "Tyre Fitter". He did not believe the applicant suffered from lateral epicondylitis but described the injury as ". . . musculo tendinous [sic] pain in the right forearm and elbow regions".

40. In evidence Mr Dooley said that he was aware of the result of a CT scan conducted in 1998 of the applicant's right elbow which was demonstrative of early degeneration. He associated the applicant's elbow pain with his employment as a tyre fitter, which he understood to be a repetitive job.

41. Mr Dooley said that it was "possible" that the applicant had had pain earlier than 1996 (being the first date of pain as recorded in his report), but he thought it was "not consistent on his history to me that he had had pain for 10 years on a practical point of view". He thought that, if the applicant had had elbow injuries in 1971 in service, the pain would have subsequently settled and he was unable to reasonably relate the pain in 1998 to his service 27 years earlier.

42. However, Mr Dooley said that, if there was evidence of the applicant having suffered pain since 1971 and if the pain was of regular occurrence, he could "postulate a connection".

43. Mr Dooley said that the concept of "aggravation" referred to a degenerative process and in his view the degenerative process in the applicant's right elbow was initiated by his service but worsened by his subsequent employment.

Hedley Griffiths

44. Dr Griffiths is a consultant rheumatologist and physician who examined Mr Brabham at the referral of his general practitioner in October 1998. In a report dated 26 July 2001 to the respondent, Dr Griffiths recorded that he obtained no history of any association between the elbow injury and prior service. He said ". . . the clinical presentation appeared to be fairly straightforward". He made a diagnosis of right lateral epicondylitis and he obtained a history from Mr Brabham of it ". . . troubling him for 18 months".

45. In evidence Dr Griffiths said that the applicant had ceased work because of the elbow injury which caused difficulty with sleeping (because of pain). He noted the applicant had been employed in tyre fitting for approximately 20 years and this was a job the witness regarded as physically demanding.

46. Dr Griffiths was of the opinion that the applicant's arm pain could be explained by a degenerative process arising out of repetition in his employment.

47. Nonetheless, Dr Griffiths said it was "possible" that the applicant could work for 23 years with right elbow pain, indeed with the same condition that he presented in 1998. He thought that this was possible if the applicant was capable of tolerating pain and if his employment was satisfying.

48. Whilst Dr Griffiths had no history of any injury in service, he acknowledged that he had read the reports of Mr McArthur. Dr Griffiths said that "banging of his elbows" could produce a tendonitis but he thought that it was "reasonable to assume it had settled and resolved".

Brendan Dooley

49. Mr Dooley is an orthopaedic surgeon who examined Mr Brabham on 22 January 2001 and provided a report dated 23 January 2001. Mr Dooley is the father of Michael Dooley who gave evidence earlier in these proceedings and who had treated the applicant.

50. Mr Brendan Dooley reported that the applicant suffers from a painful right elbow, "the cause of which is not clear". He said that the applicant did not suffer from ". . . a typical chronic epicondylitis or tendonitis". Mr Dooley did obtain a history from the applicant of discomfort in the "right elbow over a very long period, perhaps first noted but never reported in Vietnam". He noted that the applicant had been employed in "tyre fitting" for many years. However, he also noted that most of the work is ". . . done with hydraulic equipment, and is not as heavy as up until twenty years ago, also when a lot of it was manual and very heavy". He thought, however, that tyre fitting involved ". . . lifting, manipulating and strength".

51. In evidence Mr Dooley said that he did not obtain any history from the applicant of any "specific traumatic incident" involving his right arm or elbow in service. He said that a bilateral tennis elbow usually recovers spontaneously and "I've had them and they resolve within nine months". He thought calcification in the elbow was not relevant.

52. When he was acquainted with the applicant's history of elbow pain following episodes of push-ups en route to Vietnam and falling onto his elbows in Vietnam, he thought the applicant's pain in the late 1990s was unrelated to service because of the apparent capacity of the applicant to be able to work subsequently. Additionally, Mr Dooley said that it was unlikely that the applicant could have suffered from epicondylitis subsequent to service, and has been able to work in the "tyre industry".

Conclusion and Reasons for Decision

53. The applicant, in our view, was a truthful witness but it must be conceded -- and without any disrespect -- that he is a woeful historian. Additionally, it may be said that he has had, for many years, a reluctance to speak of his service in Vietnam, no more graphically illustrated to us than his wife not knowing of his right arm injury until approximately 1998. This was because he had not ever discussed it with her. Mr Brabham also, in our view, is stoic and hard working, and has worked for many years in a presence of right arm pain. For reasons which hopefully will become apparent, we are satisfied that the applicant did suffer an epicondylitis during service in which has subsequently caused right arm pain but which in recent years reached a level of intensity that precipitated incapacity.

54. There is a considerable divergence between the doctors as to the duration of right arm pain. Mr Michael Dooley and Dr Griffiths had a history of pain for 18 months. Dr Horsley had a history of right arm pain for 10 years. Mr Brendan Dooley had a history of right elbow pain "over a very long period". Dr Forster, the applicant's treating general practitioner, had a history of "years of pain" and this was only obtained after a consultation was arranged at length to discuss the applicant's Vietnam service in the context of treatment of his post traumatic stress disorder.

55. We are aware that attempts were made by the respondent to locate any records that might presently be available of the applicant's attendance at a medical or first aid centre on board HMAS Melbourne en route to Vietnam. No such records have been located. Nonetheless we are satisfied that the applicant then did suffer swelling, stiffness and pain in his right elbow, for which he attended for treatment and for which a sling was provided. The applicant was unclear or unsure whether records were made of his attendance at the medical centre. It is beyond his control that records cannot be located. It is within his control to have not reported the right elbow pain in Vietnam, which he associated with falling onto his elbow during patrol. However, he explained the absence of a report by the risk of being referred to as "weak".

56. Because we are satisfied that the applicant was stoic, hard-working and capable of tolerating pain (as was the evidence of Dr Forster - observations of which we accept as a fact), we are satisfied that the applicant did endure right arm pain subsequently. Yet the level of pain became intolerable.

57. Despite most of the doctors being of the view that any epicondylitis associated with the applicant's Vietnam service would have subsequently resolved and any presentation in the late 1990s would have had an association with a repetitive nature of his employment in the tyre industry, in our view the presence of pain subsequent to 1971 upon the evidence of Mr Brabham, points to the incapacitating injury having its origin in service. Despite the conclusions of Mr Michael Dooley and Dr Griffiths in their respective reports, when they learnt of the applicant's evidence of pain subsequent to 1971, a connection with service was conceded, particularly by Dr Griffiths who acknowledged that, if the applicant's job was satisfying and he was capable of tolerating pain, it was possible that the applicant could have worked for 23 years in the presence of pain.

58. It would appear that Dr Horsley did not obtain a history or was not aware that the applicant worked in the presence of pain since 1971 but which became considerably worse in the late 1990s, causing him to present for treatment. It would appear from her evidence and by reference to her reports that Dr Horsley assumed that the applicant could not have worked with the same level of pain since 1971 as was present in the late 1990s. She assumed that had that been so he would have attended his doctor earlier than 1998. It follows -- having regard to her assumption -- that persons attend doctors when they are in pain. As we learnt from the present application and having heard many other veterans' applications, the onset of or presence of symptoms does not necessarily translate into attendance upon a doctor for treatment.

59. In East v Repatriation Commission (1987) 74 ALR 518 at 533 a Full Federal Court adopted part of a decision of the VRB in Re Stacey. The Court recorded that:

. . .

The addition of the word "reasonable" would however seem to imply that what is required is more than a mere hypothesis. In the opinion of the Board, to be reasonable, a hypothesis must possess some degree of acceptability or credibility -- it must not be obviously fanciful, impossible, incredible or not tenable or too remote or too tenuous. For a reasonable hypothesis to be "raised" by material before the Board, we think it must find some support in that material -- that is, the material must point to, and not merely leave open, a hypothesis as a reasonable hypothesis.

60. In Bushell v Repatriation Commission (1992) 109 ALR 30 the High Court concluded that in order to determine whether "the material" raises a reasonable hypothesis connecting service with injury, any conflicts in the material will be of no issue. Additionally, if a hypothesis is advanced by a medical practitioner speaking within the parameters of his expertise it will be reasonable. It is impermissible to choose between or select a medical opinion. The issue only is whether the material raises a reasonable hypothesis and the material must point to a hypothesis which is reasonable.

61. As a fact, we are satisfied on the balance of probabilities that the appropriate diagnosis in the present case is a right epicondylitis. We are satisfied also that Mr McArthur is an appropriately qualified medical practitioner speaking within the parameters of his expertise and we are satisfied that the material does raise a connection between service and subsequent injury. Additionally, we are satisfied that the injury for which the applicant presented in the 1990s to his doctors for treatment is the same injury which had its origin in service and the evidence of the applicant of pain subsequent to service in 1971 points to that connection.

62. Whilst some of the doctors anticipated that most persons would have recovered from an epicondylitis, Dr Griffiths and Mr Michael Dooley conceded that, if the evidence of the applicant was that he suffered pain subsequent to 1971 there was a "possibility" of the injury being treated in the late 1990s having its origin in service. It is our view on the material that there is more than a possibility of connection between service and injury at presentation with Dr Forster. In reaching these conclusions we are satisfied that the hypothesis does possess a degree of acceptability and credibility and which is not fanciful, impossible, incredible, nor is it not tenable, too remote or too tenuous.

63. In conclusion, and having regard to the provisions of section 120(1) of the Veterans' Entitlements Act 1986, we cannot be satisfied beyond reasonable doubt that there is no sufficient ground for making the determination that a reasonable hypothesis does exist connecting the right arm injury with service.

64. Accordingly, the decision under review will be set aside, and the matter remitted to the respondent to assess entitlement to pension.

I certify that the 64 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member, Ms M. Carstairs, Member & Associate Professor J.H. Maynard, Member.

Signed: ..C. Irons .......................

Secretary

Date/s of Hearing 23 July 2001 & 4 December 2001

Date of Decision 7 February 2002

Counsel for the Applicant Mr Moore

Solicitor for the Applicant

Counsel for the Respondent Ms J. McCulloch

Solicitor for the Respondent