Dewis and Repatriation Commission [2010] AATA 19 (13 January 2010)

Last Updated: 14 January 2010

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2010] AATA 19

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2009/0533

VETERANS' APPEALS DIVISION		)
	Re		RODNEY KENNETH DEWIS

Applicant

And

REPATRIATION COMMISSION

Respondent

DECISION

Tribunal

M J Carstairs, Senior Member

Date 13 January 2010

Place Brisbane

Decision

The Tribunal sets aside the decision under review as it relates to the claim for “osteoarthrosis of the left shoulder” and substitutes the decision that “osteoarthrosis of the left shoulder” is defence-caused with effect from 24 February 2005, assessment now being remitted to the respondent. In all other respects the Tribunal affirms the decision under review.

.................[Sgd]........................
SENIOR MEMBER

CATCHWORDS

VETERANS’ AFFAIRS – benefits and entitlements – eligible defence service – claim for osteoarthrosis of left shoulder and hands – “trauma to the affected joint” – decision under review set aside in part.

Veterans’ Entitlements Act 1986 (Cth), ss 70, 196B

Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365

Re Tearle and Repatriation Commission [2009] AATA 5

REASONS FOR DECISION

13 January 2010

M J Carstairs, Senior Member

1. Rodney Dewis suffers from osteoarthrosis affecting both his hands. He also suffers that condition in his left shoulder. This application concerns whether these conditions are related to his service in the Royal Australian Navy as a physical training (“PT”) instructor.
2. As a general proposition, to succeed in these claims, Mr Dewis needed to establish that the disease of osteoarthrosis was related to his service, that is, that either osteoarthrosis arose out of, or was attributable to his service, or was contributed to in a material degree, or aggravated by it. These are the recognised relationships set out in s 70 and s 196B of the Veterans’ Entitlements Act 1986 (“the Act”).
3. Only part of Mr Dewis’s total 10 years’ Navy service is recognised under the Act, that part being a period of something less than two years, between 7 December 1972 and his discharge on 11 August 1974. (Mr Dewis did not rely for these claims on his eight days of operational service undertaken in 1969 on board HMAS Derwent.)
4. More specifically, matters of this kind fall to be determined by the application of Statements of Principles. These provide the statutorily determined relationships to service upon which any consideration of entitlement to pension proceeds. The words “related to service” are found in s 196B of the Act. As pointed out by the Federal Court in Kattenberg v Repatriation Commission [2002] FCA 412; (2002) 73 ALD 365, Statements of Principles are brought into existence to comply with s 196B of the Act. The one applying to Mr Dewis’s case, involving defence service, is the Statement of Principles for osteoarthrosis, being Instrument No 32 of 2005 (“the Statement of Principles”).
5. The parties agreed that Mr Dewis would be able to demonstrate the necessary connections with his Navy service if the evidence pointed to his having “suffered trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis” in his hands, and left shoulder, as provided for as one factor of causation in the Statement of Principles.
6. The respondent had decided that Mr Dewis’s claimed conditions were not so related (and, further, that Mr Dewis is not entitled special rate of pension, a matter not presently argued as the parties agree that if the claim is successful, assessment should be remitted to the respondent).
7. In the course of the hearing, and after the oral evidence of Dr P Vecchio, who is a rheumatologist specialising in arthritis, Mr J Stoner (for the respondent) conceded that Mr Dewis had established an entitlement with respect to “osteoarthrosis of the left shoulder”. I do accept Mr Stoner’s concession as being properly made, taking into account:
   • Dr Vecchio’s evidence that Mr Dewis has a “bilateral shoulder and acromioclavicular joint osteoarthritis”[1] related to service via multiple micro-traumas experienced in his employment, including during contact sports such as rugby but also through repetitive lifting and transferring of weights, thereby increasing the risk of injury to his shoulders; and
   • Mr Dewis’s evidence, as provided to Dr J Morris (consultant orthopaedic surgeon) that his shoulder had “popped out” twice during relevant Navy service, at cricket and another time at football, leading to him wearing his arm in a sling for about two weeks on each occasion; and
   • Dr Morris’s comments that these may not be true dislocations;[2] Dr Vecchio’s comments that they may be either sub-luxations or dislocations; and the fact that Mr Dewis continued to suffer pain in the left shoulder at night, and when undertaking any activity.
8. Mr Dewis is comfortably able to satisfy the requirements of factor 6(f) of the Statement of Principles in relation to osteoarthrosis of the left shoulder, as he has established on the balance of probabilities that he had “suffered trauma to the affected joint within the 25 years before the clinical onset of osteoarthrosis in that joint”.[3] Accordingly, I would set aside that part of the decision under review as it relates to the left shoulder, with effect from 24 February 2005.

THE ISSUES

9. The sole issue that remained for resolution was whether Mr Dewis’s osteoarthrosis of both hands was related to his service, via that same factor of the Statement of Principles, 6(f), but now as applied to different joints. That is, did Mr Dewis suffer “trauma to the affected joint within twenty-five years of the clinical onset of osteoarthrosis” of his hands?

BACKGROUND

10. It is as well to note at this point that, at a general level, matters of diagnosis, and of clinical onset, were not in dispute. Mr Dewis was comfortably able to show that he was suffering the symptoms of osteoarthrosis by the 1980s, well within the 25 year period provided for in the relevant factor in the Statement of Principles. A number of medical reports confirmed this; Dr Morris’s[4] being one such.
11. I would emphasise, nevertheless, that there was heated dispute between two medical practitioners, which became the focus of the oral evidence. Dr Vecchio, when he was asked to comment on the case, provided rather greater particularity by diagnosing Mr Dewis’s condition as a “primary nodal osteoarthritis”. This diagnosis, as will be seen below, served to provide an answer to the question of causation because “primary nodal osteoarthritis”, as Dr Vecchio explained it, is a condition which is constitutional in origin, and not caused by trauma.
12. Dr S Mullen, orthopaedic surgeon, did not agree and attributed Mr Dewis’s current symptoms to trauma suffered in the course of his duties as a PT instructor.
13. I need to be satisfied on matters of diagnosis. Taking into account the several medical reports that have been completed, it seems to me that it is proper to accept the diagnosis as being the more general “osteoarthrosis of both hands”. I do not consider it appropriate, given the task that Statements of Principles are meant to serve, to adopt a more confined diagnosis at the outset when examining a claim. The definition of “osteoarthrosis” in the Statement of Principles is pitched at a high degree of generality, appropriate for the range of joints of the body covered by one Statement of Principles.
14. The definition of osteoarthrosis in this Statement of Principles reads:

For the purposes of this Statement of Principles, “osteoarthrosis” means a clinical joint disorder associated with progressive loss of articular cartilage, sclerosis of the underlying bone, proliferation of bone and cartilage at the joint margins, and inflammation of the synovium, as well as a history of pain, impaired function and stiffness.

As I understood the medical evidence, both Dr Vecchio and Dr Mullen would agree that Mr Dewis’s condition came within that general description.

15. The more substantive dispute was whether the evidence pointed to Mr Dewis meeting the requirements of the definition of having had a “trauma to the affected joint”. This definition then feeds into what is a medically recognised chain of causation spelled out in factor 6(f) as “having a trauma to the affected joint within 25 years of clinical onset of osteoarthrosis in that joint”.
16. It is appropriate here to set out the details of the definition of “trauma to the affected joint” in the Statement of Principles. Such trauma must involve:

a discrete joint injury that causes the development, within twenty-four hours of the injury being sustained, 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 ten days following their onset; save for where medical intervention for the trauma to that joint has occurred and that medical intervention involves either:
(a) immobilisation of the joint by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) surgery to the joint.

17. The evidence needed to show, within 24 hours of injury, that Mr Dewis developed signs and symptoms in a particular joint or joints in his hands—except if the described “medical intervention”(s) had been undertaken. The “medical interventions” had to be ones that specifically treated an injured joint or joints in the hand. Put simply, rather more was required than Mr Dewis merely identifying an incident or incidents involving his hands.

THE MEDICAL EVIDENCE

18. The report of Dr Vecchio sets out some of the relevant history. Mr Dewis elected to take his discharge having been a physical instructor for the greater part of his 10 years’ service. He at first undertook similar work, but later went into other work as his disabilities became a real issue. As a result of his deteriorating musculo-skeletal problems he retired from the workforce in 1988 and had a right hip replacement a year later. Mr Dewis’s hands became more dysfunctional over this period of time, leading to real problems with dexterity. He needed surgery to fuse and replace certain of the interphalangeal joints in 2001. Further surgery was later recommended.
19. The earliest comprehensive specialist report was the 1997 report of Dr G Curtis, orthopaedic surgeon. Dr Curtis noted that Mr Dewis then had been experiencing multiple joint problems for over 10 years. Dr Curtis considered Mr Dewis’s multiple arthropathy was degenerative, having no connection with his Navy service. However Dr Curtis apparently held certain reservations about his opinion, as he recommended that the respondent follow up with serological testing and referred Mr Dewis to a rheumatologist to rule out less common forms of arthritis.
20. The respondent did not take up Dr Curtis’s recommendation to obtain a rheumatologist’s report and it was not until some 10 years later, that such a report was obtained at the request of the Veterans' Review Board. The author of that report was Dr Vecchio. [5]
21. As I have noted, Dr Vecchio concluded that Mr Dewis had a definite nodal osteoarthrosis of the hand affecting the majority of his distal and proximal inter-phalangeal joints with associated Heberden’s and Bouchard’s nodes. (These nodes had been noted also by Dr Curtis, who stated that there were obvious Heberden’s nodes of the distal interphalangeal joints (“DIP joints”) of the index third and fifth fingers.) Dr Vecchio considered the condition one not influenced by trauma, but rather to be hereditary or constitutional in origin.
22. Mr Dewis was referred by his general practitioner to Dr Mullen for treatment in 2007. Dr Mullen does not agree with Dr Vecchio. Dr Mullen’s second report[6] refers to his clinical findings and the recommendations for ongoing treatment, noting the existing fusions of the right index and middle DIP joints and the right proximal interphalangeal joint (“PIP joint”). Dr Mullen recommended further fusion to provide greater grip strength. The first report does not comment on causation; the second, which can only be described as economical in content, ventured the following view of causation:

Rodney is an ex-serviceman who has significant bilateral hand arthritis. This relates primarily to his heavy work as a PT instructor involved in rope work, heavy sporting activity, volley ball and other type actions. He has had multiple hand injuries in the course of his activities and work as a serviceman. I do not believe that there are any underlying pre-existing reasons for him to develop this significant arthritis in such a young person.[7]

23. In his oral evidence Dr Mullen agreed that Mr Dewis had merely given him a “general history” of multiple injuries.
24. Having examined the respective reports and heard the evidence of both doctors, I regard Dr Vecchio’s opinions as the more persuasive. I take some comfort in reaching this view from the fact that Dr Curtis, as an orthopaedic surgeon, thought that a rheumatologist’s opinion was needed. I infer from Dr Curtis’s report that Dr Curtis had some reservations about the complexity of the case, given Mr Dewis’s level of disability and his relatively young age at onset. He evidently was concerned as to whether more than simple degeneration was involved. Dr Vecchio’s report, to my way of thinking, comprehensively answers those questions.
25. On the other hand, I do not believe that Dr Mullen turned his mind as fully to questions of causation. He certainly had only a limited history from Mr Dewis, as Dr Mullen acknowledged in his oral evidence. There was nothing to suggest that Dr Mullen differentiated, in drawing conclusions, between eligible and non-eligible periods of service. In deference to Dr Mullen I do bear in mind that his is the role of treating practitioner, rather than to be reporting on causation.
26. Dr Vecchio’s particular speciality is in arthritis and he has published and researched in this field. He convincingly explained that Mr Dewis’s particular condition is a classic case of primary nodal arthritis, which practitioners identify by the peculiar appearance of joints in the hand. He described Mr Dewis’s as a “text book example”, and he confirmed that he had not the slightest doubt that that this was the hereditary condition of “primary nodal osteoarthritis”. He acknowledged as correct, as Dr Mullen had pointed out, that the condition normally presents more commonly in females; he also acknowledged that Mr Dewis did not have the more typical family history of the condition. However Dr Vecchio said that those matters do not assist the clinician with diagnosis.
27. The diagnosis, as Dr Vecchio stressed, arises from the particular appearances of the hand. Mr Dewis’s hands show bony palpable lumps and a particular squaring at the bottom of the thumb. Dr Vecchio said that these degenerative processes were widespread in Mr Dewis’s hands and were confirmed by the X-rays[8] showing narrowing of joints. Dr Vecchio said that the X-rays demonstrated the effects of a systemic process with an underlying defect in cartilage. I accept that evidence.
28. Dr Vecchio confirmed that on occasions Mr Dewis would have experienced incidents that caused his hands to be more painful, but this would not have amounted to aggravation of the injury. His hands would simply be sorer for a time.
29. Dr Vecchio noted in his oral evidence that traumatic arthritis of the hands is very unusual, and would most likely require fractures of every joint to lead to the widespread basis on which it appears in Mr Dewis’s hands. He said that what was happening in Mr Dewis’s hands was a primary process, not a secondary process as it would be with trauma. Contrary to Dr Mullen, Dr Vecchio said the fact that osteoarthrosis developed when Mr Dewis was young tended to confirm that the arthritis was constitutional in origin.

IS OSTEOARTHROSIS OF THE HANDS DEFENCE-CAUSED?

30. I cannot be satisfied on the evidence before me that Mr Dewis suffered “a discrete injury” to the affected joint(s) of his hands as would allow me to conclude that the condition was defence-caused.
31. It seems plain enough that in order to satisfy the requirements of the definition of having suffered “trauma to the affected joint”, one must start by providing evidence pointing to some injury to those joints that later go on to develop osteoarthrosis. That was not demonstrated on the evidence here. Indeed there was limited evidence suggesting that Mr Dewis developed (within 24 hours) symptoms and signs of pain, tenderness and altered mobility or range of movement in the relevant joints.
32. The materials from the service medical files showed that at his discharge and before it, Mr Dewis made no mention of a problem with his hands, although he had made mention of his shoulders.[9] There is no medical evidence (or other contemporaneous record) of any particular incident involving trauma of any kind to his hands (apart from one instance of a laceration, but not during eligible service). Mr Dewis had told Dr Morris that he had no factures or dislocated fingers that required treatment. I do not accept that Dr Morris would have written in his report that “Mr Dewis denied any specific injuries to his hands whilst in the Navy” except that Mr Dewis gave him that information in answer to a direct question from Dr Morris. I am unable to conclude that the evidence before me points to Mr Dewis having sustained trauma to any particular joint (or joints) now affected by osteoarthritic changes in his hands.
33. In the result, there is little to suggest in the evidence that Mr Dewis had the required combination of “symptoms and signs of pain, and tenderness, and either altered mobility and range of movement of the joint”.
34. I am not prepared to draw the inference that Mr Dewis asks be drawn, on the basis of “multiple occasions” when his hands were hit or struck in games of hockey, desk hockey and a range of other ball sports and physical activities, that these were instances of trauma. What apparently happened after these was that he was treated on the sidelines by other PT instructors and/or used his own remedies such as dunking his hands in ice water and strapping his fingers. I accept Mr Dewis’s account that these were his common practices. However there is much to be said for Mr Stoner’s submission, at least as to strapping, that this was a measure to avoid injury, not a treatment for injury.
35. I also have some difficulty with the submission, advanced by Ms A Frizelle of counsel, that Mr Dewis’s first-aid training and relevant exposure to the subject of “Anatomy and Physiology” when gaining his Royal Australian Naval School Physical Training Certificate[10] allowed Mr Dewis to be the provider of the “medical treatment” contemplated by the definition of “trauma to the affected joint”. I note, also, that the Tribunal in Re Tearle and Repatriation Commission [2009] AATA 5 was unable to accept that using ice amounted to “medical intervention” as contemplated by the definition in the Statement of Principles. However, ultimately, I do not regard this as a point that I need to decide, as there are other grounds for rejecting this claim.
36. The evidence, taken as a whole, does not support a conclusion that Mr Dewis suffered trauma “to the affected joints”, the affected joints being the ones in which osteoarthrosis has developed. It is important to take into account Dr Vecchio’s evidence that if Mr Dewis was feeling pain at earlier times, he was experiencing occasions of pain, not a worsening of the condition or any ongoing consequence of it. I am also very much persuaded by Dr Vecchio’s evidence that what can now be seen in Mr Dewis’s hands is not the end result of trauma.
37. Accordingly, Mr Dewis cannot satisfy factor 6(f) of the Statement of Principles for osteoarthrosis. The claim, as it relates to his hands, therefore fails.

DECISION

38. The Tribunal sets aside the decision under review as it relates to “osteoarthrosis of the left shoulder” and substitutes the decision that “osteoarthrosis of the left shoulder” is defence-caused, with effect from 24 February 2005, assessment now being remitted to the respondent. In all other respects the Tribunal affirms the decision under review.
    

I certify that the preceding 38 paragraphs are a true copy of the reasons for the decision herein of M J Carstairs, Senior Member.

Signed:..............................[Sgd].......................................

Mátyás Kochárdy, Research Associate

Date of Hearing 5 November 2009

Date of Decision 13 January 2010

Counsel for the Applicant Ms A Frizelle

Solicitor for the Applicant G Couper Solicitors

Advocate for the Respondent Mr J Stoner, Departmental Advocate

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[1] Osteoarthrosis present in the left shoulder as shown in X-rays taken in 2001: T4, p 54.
[2] T4, p 58.
[3] Factor 6(f) of the Statement of Principles.
[4] T4, p 50..
[5] Report dated 24 April 2007: T4, p 105.
[6] Report dated 17 August 2007: T4, 117-118.
[7] Report dated 9 May 2008: T4, 119.
[8] Report of Dr D Lisle, dated 23 April 2007: T4, p 112.
[9] T4, p 3.
[10] T4, p 89.