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VeRBosity
Journal of the Veterans' Review Board
�Selected Decisions of the
Administrative Appeals Tribunal
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Trauma to shoulder & hips - clinical onset of diagnosed disease
Re G A Witten and Repatriation Commission
Hallowes
V95/1083 and V97/596
17 December 1998
[Full Text]
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Mr Witten applied to the Tribunal for review of decisions that his rotator cuff syndrome and osteoarthrosis of the hips were not war-caused. He rendered operational service in the Navy during World War 2 and his claim was required to be considered in terms of the Statements of Principles relating to both conditions.
Mr Witten claimed that the conditions were related to the arduous nature of his duties as a gun loader on HMAS Shropshire. He said that the work was physically exhausting and caused pain around his shoulders and knees. Following his discharge, he went into farming. He said that he continued to experience shoulder pain after his service but not to the same extent as when he was loading shells. His shoulders gradually deteriorated over time and he was diagnosed with tendonitis in his shoulders in about 1959. He suffered complete tears of both rotator cuffs in the early 1990's and underwent surgery.
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Medical opinions
Dr D Burke, rehabilitation specialist, expressed the opinion that the veteran's shoulder problems diagnosed as rotator cuff syndrome were related to his war service duties as a shell loader. He expressed the opinion that the veteran had a chronic condition and that his symptoms commenced during the war, those symptoms being aggravated by his work as a farmer leading to an acute episode years later. He said that the condition of the veteran's hips was a separate matter and there was no evidence that his osteoarthrosis of the hips developed during the war.
Mr R Horton, orthopaedic surgeon, who repaired the veteran's rotator cuff tears, also thought that the loading of shells may have started the degenerative process in his shoulder tendons.
Statements of Principles
The essential issue before the Tribunal was whether the veteran's claimed conditions were covered by the relevant SoPs. In relation to rotator cuff syndrome, Instrument No 83 of 1997 provides, as relevant:
"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
(b) performing activities with the hand on the affected side at or above the point of the shoulder (whilst standing or sitting):
(i) for at least two hours each day;and
(ii) for at least 65 days, all within a period of 120 consecutive days; and
(iii) if ceased, the activities ceased within the 30 days immediately before the clinical onset of rotator cuff syndrome;
..." (emphasis added)
"Trauma to the shoulder" is defined in the SoP as follows:
"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, anti-inflammatory medication, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered.
In relation to osteoarthrosis of the hips, Instrument No 41 of 1998 includes factor 5(j):
"(j) suffering a trauma to a joint before the clinical onset of osteoarthrosis in that joint;" (emphasis added)
"Trauma to a joint" was defined in the SoP as follows:
"trauma to a joint" means a discrete joint injury that causes the development within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of that joint. These acute symptoms and signs must last for a period of at least seven days immediately after the injury occurs.
[Ed: This definition has been amended since this decision by No 19 of 1999.]
Clinical onset
The Tribunal considered the meaning of "clinical onset" in the SoPs. The Repatriation Commission submitted that "clinical onset" of an injury or disease represents either:
- that stage of the disease/injury where the symptoms are sufficiently significant for a medical practitioner to diagnose the injury or disease, or
- 2. the actual diagnosis of an injury or disease in the course of treatment for another condition.
The Commission submitted in part:
"While the applicant contends that 'clinical onset' extends to the actual activity which is alleged to have caused the clinical onset, � the respondent submits that the SoP's emphasis on clinical onset, as distinct from 'onset' simpliciter, requires symptoms which meet the diagnostic criteria or definition of the disease/injury, which are contained in the SoP, or specific tests (such as an ECG) which render the disease/injury diagnosable by a medical practitioner. If it were otherwise, the addition of the word 'clinical' would be entirely otiose.
"In as much as the Tribunal's decision in McLeod-Dryden suggests that clinical onset of an injury/disease can occur before the condition meets the definition of that injury/disease in the relevant SoP, the respondent respectfully submits that the Tribunal has fallen into error. The respondent submits that any definition of a disease/injury in a SoP is exhaustive and must be applied. Therefore, when a SoP refers to clinical onset of a condition/injury as defined in the SoP, it is not appropriate for a decision-maker to substitute some alternative definition for that specified in the SoP, nor to read down or selectively re-edit the definition specified."
[Ed: In Re McLeod-Dryden (21 October 1998), the Tribunal had said that the term "clinical onset" means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition. The Tribunal found that there can be "clinical onset" of a disease before the condition satisfies the definition of the disease in the SoP.]
The Tribunal, in Mr Witten's case, accepted the Commission's submission as to the meaning of "clinical onset". The Tribunal observed on this point:
"... the Tribunal is satisfied that clinical onset 'means the onset of symptoms which a medical practitioner would diagnose as attributable to the relevant condition.' A disorder may not, in fact, have been diagnosed during the relevant period, in this application, within 30 days following trauma with respect to rotator cuff syndrome, but, with the benefit of hindsight and taking into account symptoms described by a veteran, it would need to be possible for a medical practitioner to express the opinion that the described symptoms established the clinical onset of the disorder during the relevant period. � The SoPs provide the meaning of osteoarthrosis and rotator cuff syndrome. There cannot be 'clinical onset' of a disorder before symptoms are present which would enable the definition in the SoPs to be met."
Tribunal's conclusion
In relation to rotator cuff syndrome, the Tribunal found that the material pointed to a hypothesis connecting that condition to his service. The hypothesis was reasonable in terms of the SoP. However, in view of the history of the disease and the veteran's ability to carry out heavy work until the 1990's, the Tribunal was satisfied beyond reasonable doubt that his rotator cuff syndrome was not connected with the circumstances of his war service. Factors 5(a) and (b) in the SoP were not met in that a medical practitioner would not have diagnosed rotator cuff syndrome within 30 days of him ceasing to load shells.
In relation to osteoarthrosis of the hips, the Tribunal noted that in 1994, there was X-ray evidence of moderate degenerative changes in the veteran's hips. The Tribunal found that the hypothesis that the hip condition was related to service was not upheld by the SoP and was therefore not reasonable. There was no evidence of a discrete joint injury which caused the development within 24 hours of acute symptoms and signs of pain, swelling, tenderness and altered mobility or range of movement of his hips during service. It was many years later that his hips started to cause him symptoms and he underwent hip replacement.
Formal decision
The Tribunal affirmed the decisions that Mr Witten's rotator cuff syndrome and osteoarthrosis of the hips were not war-caused.