Allsopp and Repatriation Commission [2003] AATA 75 (24 January 2003)

Last Updated: 20 February 2003

DECISION AND REASONS FOR DECISION [2003] AATA 75

ADMINISTRATIVE APPEALS TRIBUNAL Nº N2001/767

VETERANS' APPEALS DIVISION

Re: HAROLD WALLACE ALLSOPP

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: P.J. Lindsay, Senior Member

Date: 24 January 2003

Place: Sydney

Decision: The Tribunal varies the decision under review to provide that (i) rotator cuff syndrome of the right shoulder is a war-caused disease with effect from 23 August 1999;

(ii) the matter is remitted to the Commission for reassessment of the rate of pension payable taking into account incapacity from rotator cuff syndrome of the right shoulder.

(sgd) P. J. Lindsay

Senior Member

© Commonwealth of Australia (2003)CATCHWORDS

Veterans Affairs - entitlement - rotator cuff syndrome - whether war-caused - whether raised hypothesis meets the template in the SoP - decision varied.

Veterans' Entitlements Act 1986 ss. 120(1) and (3), 120A

Repatriation Medical Authority Statement of Principles, Instrument No. 83 of 1997 concerning Rotator Cuff Syndrome.

Repatriation Commission v Deledio (1998) 49 ALD 193

Harris v Repatriation Commission (2000) 31 AAR 270

Repatriation Commission v Hill [2002] FCAFC 192

Lees v Repatriation Commission [2002] FCAFC 398

Repatriation Commission v Cornelius [2002] FCA 750

Re Robertson and Repatriation Commission (1998) 50 ALD 668

REASONS FOR DECISION

P.J. Lindsay, Senior Member

1. This is an application under the Veterans' Entitlements Act 1986 (the Act) for review of a decision by the Repatriation Commission (the Commission) which refused Mr Allsopp's claim for acceptance of bilateral rotator cuff syndrome as war-caused injuries under the Act. The decision was affirmed by the Veterans' Review Board (the Board).

2. Mr B. Winship, solicitor, appeared for Mr Allsopp. The Commission was represented by Mr J. Marsh from the Department of Veterans' Affairs (the Department). Mr Allsopp was the only witness to give evidence at the hearing. The Tribunal had before it the documents lodged under s.37 of the Administrative Appeals Tribunal Act 1975 (the T documents) and also the exhibits tendered during the hearing.

EVIDENCE

3. The parties do not dispute that Mr Allsopp served in the Australian Army from 20 October 1941 to 2 April 1946 and that this was a period of eligible war service and operational service.

4. Mr Allsopp served in New Guinea for three years as a sapper. As part of 9 Field Company Engineers he worked on building roads and box culverts. He had two periods of service in New Guinea subsequent to the period when the incident relevant to this application occurred.

5. A carpenter by trade, Mr Allsopp worked in the Owen Stanley Ranges from around February to December 1943. He was building an important communication route in Eastern New Guinea known as the Bulldog Road. It was very heavy work, clearing large trees in rough, mossy and precipitous terrain at altitudes of up to 10,000 feet. He worked mainly with pick and shovel and gelignite. There was little mechanical equipment.

6. Mr Allsopp recalled experiencing an earth tremor while working on the Bulldog Road near a place called Eloa. The tremor happened around August 1943. In his statutory declaration made on 17 April 2000 (T21) he stated that in the morning after the tremor, there was a strong wind and pouring rain. Work proceeded but a couple days later the cliff above where his group was working started to collapse. There was a great landslide that sent down huge boulders and rocks onto the area near him. The work party took cover. Once they thought the danger had passed they went to clear boulders from the road. While moving the rocks away, Mr Allsopp said in evidence that he was struck on the right shoulder by a falling rock, almost knocking him over the edge of a cliff. Still there was a job to be done, he said, so they went about clearing the road of the fallen rocks and it was while doing so, that he was struck on the left shoulder. Mr Allsopp said that he could do only little things after being injured and no heavy work at all. He could not work with a pick and shovel again. As a result of the accident he said he has not since been able to do any lifting or other work above waist level.

7. As the area where he was working was remote and mountainous, Mr Allsopp said there was neither a RAP to visit for treatment nor any formal records kept of injuries or illnesses. However, there was an informal record. It was said to have been compiled by a colleague of Mr Allsopp's from a journal kept by their officer in command, Lt. Bonnett. It recorded the Applicant's reporting sick on six days in July and August 1943 (T22). There was no indication of the cause of the sickness.

8. In evidence he said the accident gave him sore shoulders but he "put up with all the pain" saying that the pain lasted for three or four months. Although he felt his shoulders were not right at the time of his discharge from the Army, he did not ask for treatment then because he was eager to get his discharge papers. He said he had nothing wrong with his shoulders when he enlisted.

9. Mr Allsopp said he sought medical treatment for his shoulders in 1947.

10. In cross-examination, Mr Allsopp agreed that, in a separate incident while working in similar terrain, he hurt his back and was sent down to the camp at Bulldog for medical attention. He agreed that it was likely that he would have been evacuated from the Eloa area if he had been seriously injured by the falling rocks. Mr Allsopp explained that, on discharge from the Army, he referred only to having had malaria and mumps without mentioning his shoulder injuries, because he did not want to delay his obtaining the necessary discharge papers. He agreed that neither his statutory declaration (T21) nor the form claiming pension benefits (T8) referred to his being hit on the shoulders by rocks. After he left the Army, Mr Allsopp returned to his trade as a carpenter, building and repairing houses. He later became a dairy farmer. He sustained an injury to his left shoulder in 1995, suddenly while guiding his boat over the Evans Head bar. He described the pain as "unbelievable". He said the pain was that great that he had to get out of the driver's seat and lie down in the boat.

11. Mr Allsopp was treated by Dr Ashwell, orthopaedic surgeon in 1996. On 1 March 1996 Dr Ashwell wrote to Dr Gestier, the Applicant's G.P at the time (T9):

Thank you for asking me to see Harold regarding his shoulder. He has had a 3 year history of intermittent problems with his right shoulder and about a 4 month history of discomfort in his left shoulder. He did have injuries to both shoulders on the right side when he was reaching down, 3 years ago, and left when he went over the Bar in a boat. He has been on physiotherapy and hydrotherapy at St Vincent's Hospital without improvement.

Dr Ashwell diagnosed bilateral rotator cuff syndrome with tears of the tendon. Dr Ashwell performed surgery on the left shoulder in May 1996 and operated on the right shoulder in November 1999 and again in September 2000. On 29 September 1999 Dr Ashwell wrote to the Applicant's G.P. Dr Mouncey, noting that he had seen the Applicant regarding his right shoulder which had been injured in a fall four months previously.

12. Dr Bodel, orthopaedic surgeon, examined Mr Allsopp on 19 October 2001 and prepared a report (Exhibit R2) for the Department. Dr Bodel was given a history of the Applicant being injured in a landslide in New Guinea when hit on the right shoulder by a large rock and consequently being able to work only up to waist level. The history was that the Applicant was off work for a few weeks at the time of the injury. Dr Bodel reported that Mr Allsopp sought chiropractic treatment for his back during the 1950s, and that there was no subsequent accident or injury until he felt a sudden pain in his left shoulder while driving a boat in 1994. Dr Bodel stated that:

Based on the history given and the documentation provided it appears likely, on the balance of probabilities, that the clinical onset of rotator cuff syndrome in the right shoulder is related to Mr Allsopp's eligible war service but rotator cuff pathology in the left shoulder is less likely to be so.

Based on the history given it is likely that the patient does have pathology in the right shoulder which fits into the trauma definition on 5(a) in which it is said that the patient has been `suffering trauma to the shoulder on the affected side within the 30 days immediately before the clinical onset of rotator cuff pathology.'...

It is likely that rotator cuff syndrome would have been diagnosed if the patient had seen a medical practitioner within the 30 day period mentioned within the Statements of Principles [sic].

13. Dr Mouncey completed a medical report in December 1999 that was submitted to the Department with Mr Allsopp's claim for pension in respect of his bilateral rotator cuff syndrome. The report required Dr Mouncey to state whether the veteran had suffered a trauma to the shoulder affected by the rotator cuff syndrome in the thirty days before the clinical onset of the rotator cuff syndrome. Dr Mouncey stated that there was such a trauma in relation to each shoulder. In relation to the left shoulder, the trauma occurred four years earlier, when Mr Allsopp jarred the shoulder while guiding his boat over a bar. The trauma to the right shoulder happened some time before the injury to the left shoulder and was "indeterminate in origin" (T11). The symptoms in the right shoulder, which Dr Mouncey described as pain, discomfort and limitation in movement, lasted for the past 4 to 5 years.

14. Dr Ashwell's clinical notes contained a letter (Exhibit R1 p.10) from Dr Mouncey to Dr Ashwell dated 19 March 2001 which noted that the Applicant came to see him that day with a letter " ... from the local VA advisor telling me how we had it wrong concerning Harold's [right] shoulder and he really sustained his problem `back in New Guinea' ". Mr Allsopp indicated that he intended seeing Dr Ashwell, apparently to discuss his experiences in New Guinea, and Dr Mouncey concluded his letter to Dr Ashwell by suggesting that "Perhaps a letter from you to his VA advisor may help clarify the situation. I'm sorry for this inconvenience." On 3 April 2001, Dr Ashwell wrote to Dr Mouncey:

Harold came to see me today regarding his right shoulder. He told me that he initially had an injury in 1943 while in New Guinea and this was to his low back region and both shoulders. I have seen him over the years regarding increasing symptoms in both shoulders and have previously performed surgery on his left shoulder on 29/05/96 and his right shoulder on 05/11/99 and 13/9/00. He had rotator cuff tears in both shoulders. ... He has continuing symptoms of rotator cuff syndrome and has previously had repairs of both rotator cuff tendons. ... No further surgery is required. (T23)

Mr Allsopp explained that he did not inform Dr Ashwell earlier about the injuries to his shoulders in New Guinea because he simply consulted the doctor for the purpose of treatment.

CONSIDERATION OF ISSUES

15. As Mr Allsopp rendered operational service, s.120(1) of the Act applies and bilateral rotator cuff syndrome will be determined to be war-caused unless the Tribunal is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. The Tribunal will be so satisfied if it is of the view that the material before it does not raise a reasonable hypothesis connecting that condition with the circumstances of Mr Allsopp's service: s.120(3). Since his claim for pension was lodged after 1 June 1994, s.120A of the Act applies and the Tribunal is to assess the reasonableness of the hypothesis in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority (RMA).

16. In reviewing the decision in question, the Tribunal must follow the approach that the Full Court of the Federal Court laid down in Repatriation Commission v Deledio (1998) 49 ALD 193, at 206:

1. The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.

2. If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). ...

3. If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

4. The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved.

17. At step 1, the Tribunal must take into account all the material before it. The hypothesis relied on is that Mr Allsopp injured both his shoulders when he was struck on the shoulders by falling rocks while building the Bulldog Road at Eloa. Mr Winship referred to his client's evidence about the injuries he sustained, how they happened and the pain and restriction of movement in the shoulders that he experienced. He also referred to the opinion of Dr Bodel, who stated that, had the Applicant presented to a doctor within thirty days of the accident, rotator cuff syndrome would have been diagnosed. Mr Winship submitted that the material raises a hypothesis connecting Mr Allsopp's bilateral rotator cuff syndrome with those injuries and clinical onset of the disease within thirty days of his being injured. The Tribunal is mindful, however, that Dr Bodel's opinion doubted whether the rotator cuff pathology in the left shoulder was related to the Applicant's war service. The Tribunal, therefore, agrees with Mr Winship's submission in part and finds that the material points to a hypothesis connecting Mr Allsopp's rotator cuff syndrome in the right shoulder with the circumstances of his service.

18. As to step 2, the parties do not dispute that the relevant SoP is Instrument No. 83 of 1997 concerning Rotator Cuff Syndrome. Under the SoP, one of the factors set out therein must be related to the veteran's service for the condition to be regarded as war-caused.

19. As to step 3, Mr Winship submitted that the hypothesis is consistent with factor 5(a) of the template in the SoP which reads:

5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting rotator cuff syndrome or death from rotator cuff syndrome with the circumstances of a person's relevant service are:

(a) suffering trauma to the shoulder on the affected side within the 30 days immediately before the clinical onset of rotator cuff syndrome; or ...

The definition of `rotator cuff syndrome' in the SoP is:

For the purposes of this Statement of Principles, "rotator cuff syndrome" means an inflammatory disorder of the musculotendinous cuff of the shoulder joint (comprising supraspinatus, infraspinatus, subscapularis and teres minor) and/or the long head of biceps and their associated bursae (subacromial and/or subdeltoid bursae), attracting ICD code 726.10, 726.11 or 726.12. This definition includes supraspinatus syndrome, subacromial impingement syndrome, rotator cuff impingement syndrome, tendonitis of the long head of biceps and calcifying tendonitis of the shoulder. This definition specifically excludes frozen shoulder.

20. The Tribunal must form an opinion as to the reasonableness of the hypothesis. Mr Winship submitted that there is material that supports the hypothesis. He referred to the rocks hitting Mr Allsopp's shoulders thus causing pain, and to his inability to work with pick and shovel or above waist level thereafter. He referred both to Dr Bodel's opinion regarding clinical onset and also to that of Professor Ken Donald, the Chair of the RMA. In his opening address to a forum in November 1998, Professor Donald said that "Clinical onset is not when it's diagnosed, not when the first laboratory test or X-ray is done. Clinical onset in its ordinary English usage means the first time the patient notices anything to do with the actual disease."

21. Mr Marsh submitted that the definition of `trauma to the shoulder' in SoP 83 of 1997 contemplates a significant injury. He referred to the decision of Finn J in Harris v Repatriation Commission (2000) 31 AAR 270 regarding the definition of `trauma to the lumbar spine' in SoP 105 of 1995 (as amended) which is in similar terms to the definition in question. Mr Marsh referred to Mr Allsopp's failure to mention the falling rocks incident prior to lodging a claim under the Act in November 1999, a claim form that does not note an injury to the shoulders caused by rocks. He submitted that Dr Bodel's opinion regarding clinical onset of rotator cuff syndrome was entirely predicated on the Applicant's history, which Mr Marsh submitted had evolved over time. In Mr Marsh's submission the history taken by Dr Ashwell supports a conclusion that clinical onset of rotator cuff syndrome of the right shoulder was in 1993 and of the left shoulder in 1995.

22. Although proof of facts is not an issue at step 3 of the Tribunal's decision making, if the hypothesis does not fit within the template in the SoP, it is not a reasonable hypothesis. Is the material before the Tribunal, as to Mr Allsopp having been struck by rocks on the shoulders and experiencing soreness and pain in his shoulders for three or four months, consistent with the template in SoP 83 of 1997? In this regard the Tribunal notes the following passage from the Full Court of the Federal Court's judgment in Repatriation Commission v Hill [2002] FCAFC 192:

[57] ... the SoP prescribes the essential content of what is a reasonable hypothesis, for s.120(3) purposes, capable of connecting the particular kind of injury, disease or death with the circumstances of a veteran's particular service. In order to satisfy ss.120(3) and 120A(3), a hypothesis relied on by a veteran to support a pension claim must be supported by material pointing to each element that the SoP makes essential for the hypothesis to be reasonable.

23. The definition of 'trauma to the shoulder' in SoP 83 of 1997 reads:

`trauma to the shoulder' means an injury to the shoulder region that causes to develop, within 24 hours of the injury being sustained, acute symptoms and signs of pain, tenderness, and altered mobility or range of movement of the shoulder joint, attracting ICD code 812.0, 812.1, 831, 880 or 959.2. The acute symptoms and signs must have lasted for a continuous period of at least three days immediately after they arose, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, supporting in a sling, antiinflammatory medication, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered.

24. In Harris, Finn J examined the definition of 'trauma to the lumbar spine' which is in very similar terms to the definition of `trauma to the shoulder' in SoP 83 of 1997, and his Honour's comments are considered to be germane to the issue before the Tribunal. Both definitions refer to acute symptoms and signs of pain, tenderness, and altered mobility or range of movement . Finn J said at 281:

The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: see eg definition II of "sign" and that of "symptom" in the Shorter Oxford English Dictionary ("SOED"). Moreover, given the requirement that the signs and symptoms must be "acute" - ie that they be sharp or act "keenly on the senses": SOED, "acute"; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc. As the respondent contends, the definition contemplates a significant injury.

An appeal from Finn J's judgment was unsuccessful.

25. Does the material point to an injury to the shoulder region that, within 24 hours, caused the development of acute (meaning `sharp' or acting `keenly on the senses') symptoms and signs of pain, tenderness and either altered mobility or range of movement of the shoulder joint, where such symptoms and signs lasted for a continuous period of at least three days immediately after they arose? The Tribunal is mindful that Mr Allsopp gave evidence to the best of his recollection about events that occurred almost sixty years ago. The material before the Tribunal is that, after the accident, Mr Allsopp described his altered range of shoulder movement and said he could not work above his waist level or do any heavy work. He did not receive medical treatment for the injury at the time and it was not reported, except for a note in Lt Bonnett's journal that he reported sick on a few days. His injuries left him unable to work with a pick and shovel. He put up with the pain in his shoulders which lasted for three or four months. Mr Allsopp first referred to his shoulders being injured as a result of being hit by the rocks when he visited Dr Mouncey in March 2001. The material also includes Dr Bodell's report and in whose opinion, "based on the history and the documentation provided" apparently by the Department, clinical onset of rotator cuff syndrome of the right shoulder would have likely been diagnosed within thirty days of the falling rocks incident had Mr Allsopp presented to a doctor for treatment.

26. The Tribunal considers that the evidence before it raises the reasonable hypothesis of Mr Allsopp's receiving a trauma to his right shoulder when struck by a rock while working on the Bulldog Road. Turning to the remaining matter in Factor 5(a) concerning the date of clinical onset of rotator cuff syndrome of the right shoulder, the Tribunal notes that Dr Bodel does not specify a date of clinical onset. However in the opinion of Dr Bodel, the Applicant's rotator cuff syndrome of the right shoulder would likely have been diagnosed had he seen a doctor within thirty days of the trauma. Determining clinical onset of the disease in this manner conforms with the approach adopted by the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 at 670 (approved by Branson J in Repatriation Commission v Cornelius [2002] FCA 750 par 26) :

... 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.

The history taken by Dr Bodel regarding the Applicant's symptoms and the doctor's opinion bear upon the question of clinical onset within the requisite period (Lees v Repatriation Commission [2002] FCAFC 398 par 22) and raise the reasonable hypothesis that clinical onset occurred within the thirty day period referred to in Factor 5(a). The Tribunal is of the view that a reasonable hypothesis within the meaning of s.120(3) of the Act has been raised that is consistent with the template in SoP 83 of 1997.

27. So far as step 4 in Deledio's case is concerned, the Tribunal must be satisfied beyond reasonable doubt that the evidence demonstrates that the hypothesis cannot be sustained. Neither party bears an onus of proof: s.120(6).

28. The Tribunal is unable to find, beyond reasonable doubt, that Mr Allsopp's account of the injury to his right shoulder and his evidence about the symptoms that it caused, are false. The Tribunal is not satisfied beyond reasonable doubt that the facts necessary to sustain the hypothesis have been negatived beyond reasonable doubt. Therefore, the Tribunal finds that the fourth step is satisfied and, in accordance with s.9 of the Act, that the veteran's disease of rotator cuff syndrome of the right shoulder was war-caused.

29. The Tribunal varies the decision under review to provide that rotator cuff syndrome of the right shoulder is a war-caused disease with effect from 23 August 1999. The matter is remitted to the Commission for reassessment of the rate of pension payable taking into account incapacity from rotator cuff syndrome of the right shoulder.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of P.J.Lindsay, Senior Member

Signed: .......................................................................................

Associate

Date of Hearing 13 May 2002

Date of Decision 24 January 2003

Solicitor for the Applicant Mr B. Winship

Respondent's Representative Mr J. Marsh, Department of Veterans' Affairs