Repatriation Commission v Cornelius

the statement of principles 6 The definition of carpal tunnel syndrome contained in the SoP is set out in [2] above. Clause 3 of the SoP relevantly records that the Repatriation Medical Authority is of the view that there is sound medical‑scientific evidence that indicates that carpal tunnel syndrome can be related to relevant service rendered by veterans. 7 Clause 5 identifies the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting carpal tunnel syndrome with the circumstances of a person's relevant service. The factor upon which the Tribunal relied was that identified in clause 5(a) of the SoP, namely: "performing repetitive activities with the affected hand for at least two hours each day, for at least 65 days, all within a period of 120 consecutive days, and where the repetitive activities have not ceased more than 30 days before the clinical onset of carpal tunnel syndrome."

Medical evidence 8 Three reports prepared by Professor P Sambrook were in evidence before the Tribunal. The first report dated 6 March 2001 states in part: "He told me he first presented with this [ie carpal tunnel syndrome] in about 1993 when he developed numbness in both hands and also loss of power in the hands with the inability to grasp fine objects. … Mr Cornelius did not recall having any symptoms of any carpal tunnel during [his] service period, but he did describe stiffness in his hands at the end of the day frequently. … The earliest date of clinical onset of the carpal tunnel syndrome is 1993, when he presented with numbness and loss of power or grip in the hands. The symptoms of tiredness in the hands he described during his service period are not of those [sic] of carpal tunnel syndrome. … Stiffness or tiredness of the wrists at the end of the day after performing repetitive manual activity is not unusual, but does not represent typical symptoms of carpal tunnel syndrome. Moreover taking the view that the clinical onset is the time when the symptoms become severe enough to warrant presentation to a doctor, means that this is not the case for those symptoms." 9 In response to a request from the solicitors for the respondent Professor Sambrook, by a supplementary report dated 10 May 2001, advised: "It is not possible to exclude beyond reasonable doubt that the symptoms of wrist fatigue and stiffness at the end of the day during his service period were not [sic] an early sign of carpal tunnel syndrome. However, as noted in my report on pages 4-5, such symptoms are not unusual in the population in general and are in no way specific for carpal tunnel syndrome." 10 By a further supplementary report, again provided at the request of the solicitors for the respondent, Professor Sambrook acknowledged receiving additional information concerning the sustaining by the respondent of a fracture of the right wrist in July 1996. Professor Sambrook advised: "I could see no mention of symptoms referable to carpal tunnel in either 1991 or 1996. Reference to rheumatoid arthritis was however made by Dr Clarke."

statutory provisions 11 Section 13(1) of the Act renders the Commonwealth liable to pay pension by way of compensation to a veteran where the veteran is incapacitated from a war‑caused disease. The circumstances in which a disease is taken to be war‑caused are set out in s 9(1) of the Act. The relevant circumstances for present purposes is that specified by s 9(1)(a), namely that: "the … disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service … ." 12 Section 120 of the Act is concerned with the standard of proof to be applied in respect of the question whether the veteran's disease is war‑caused. The section relevantly provides: "(1) Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination. … (3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining: (a) that the injury was a war-caused injury or a defence-caused injury; (b) that the disease was a war-caused disease or a defence-caused disease; or (c) that the death was war-caused or defence-caused; as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person." 13 Section 120A(3) of the Act relevantly provides: "For the purposes of subsection 120(3), a hypothesis connecting … a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force: (a) a Statement of Principles determined under subsection 196B(2) …; or (b) … that upholds the hypothesis."

reasons of the Tribunal 14 The Tribunal noted that the hypothesis advanced by the respondent was that, during his operational service, he undertook general engineering work in relation to plant and the repair of small arms and that this was work of a repetitive nature which gave rise to carpal tunnel syndrome in both of his wrists. Having noted the SoP as being the relevant Statement of Principles it gave consideration to whether the hypothesis advanced by the respondent was reasonable. It observed: "If the hypothesis is consistent with the template in the SoP, it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP that the SoP says must exist, and that factor must be related to the Applicant's service. Finn J explained the proper operation of step three in Harris v Repatriation Commission (2000) 62 ALD 174 at 185 where he said: 'It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (47 ALD at 275), an hypothesis can so be upheld notwithstanding that "one of the disputed facts happens also to be a component of an SoP.'" 15 The Tribunal concluded that the work on small arms which the respondent undertook in Vietnam amounted to "repetitive activities" within the meaning of the SoP with the result that the evidence supported the hypothesis to the extent that, on the days on which the respondent worked on small weapons, he undertook repetitive activities for more than two hours. However, it calculated that he did not work a sufficient number of days on small arms to meet the requirement of the 65 days of repetitive activity (see factor 5(a) of the SoP). It was satisfied, nonetheless, that the additional repetitive activities that the respondent would have performed while working in relation to general plant was sufficient to satisfy the requirement that he performed repetitive activities with his hands for at least two hours each day, for at least sixty five days, all within a period of 120 consecutive days. 16 The Tribunal then turned to consider the date of the clinical onset of the respondent's carpal tunnel syndrome. The SoP requires that the repetitive activities should not have ceased more than thirty days before the clinical onset of carpal tunnel syndrome. The Tribunal stated: "There is, predictably, no direct evidence of entrapment neuropathy at the time the Applicant was stationed in South Vietnam, that is, no nerve conduction study was performed at that time or in those circumstances. However, there is the Applicant's contention of pain, stiffness and weakness in his wrists at night when serving in Vietnam, and Professor Sambrook's concession that it is not possible to exclude 'beyond reasonable doubt that the symptoms of wrist fatigue and stiffness at the end of the day during his service period were not an early sign of carpal tunnel syndrome'. The symptoms described by the Applicant in his evidence, and to Professor Sambrook, fall within the definition of 'paraesthesias' and more generally within the definition of carpal tunnel syndrome in the SoP. On the basis that clinical onset of a condition is, as stated in Robertson [Robertson v Repatriation Commission (AAT 12666, 2 March 1999)] at paragraph 23: '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', then there is before the Tribunal material to support the contention that the clinical onset of the Applicant's carpal tunnel syndrome was some five months after his arrival in Vietnam. Given that it is contended that these symptoms persisted until he left Vietnam, and he continued to perform repetitive activities during the entire period of his service in Vietnam, the requirement in factor 5(a) of the SoP that 'the repetitive activities have not ceased more than 30 days before the clinical onset of carpal tunnel syndrome' is, in the terms of the Applicant's hypothesis, satisfied. It follows that the Applicant's hypothesis is consistent with SoP No 71 of 1997." 17 The Tribunal went on to conclude that the respondent satisfies the requirements in the SoP concerning carpal tunnel syndrome and that there was no material before it which established beyond reasonable doubt that there was no sufficient ground for determining that the respondent's carpal tunnel syndrome was war‑caused. The Tribunal determined that the respondent's condition of carpal tunnel syndrome was war‑caused.

grounds of appeal 18 The notice of appeal identifies the following questions of law as raised on the appeal: "(a) the proper construction of the Statement of Principles concerning Carapal [sic] Tunnel Syndrome (the SoP); (b) whether symptoms of pain are capable of being treated as symptoms of 'paraesthesias' for the purposes of the definition of carpal tunnel syndrome in the SoP; (c) whether there was any material before the Tribunal capable of pointing to, as distinct from not excluding beyond reasonable doubt, the clinical onset of Mr Cornelius' carpal tunnel syndrome 'some five months after his arrival in Vietnam'; (d) whether it was open to the Tribunal, on the material before it, to find that the material pointed to the clinical onset of Mr Cornelius' carpal tunnel syndrome 'some five months after his arrival in Vietnam'; (e) whether it was open to the Tribunal to disregard the only expert medical evidence (that of Professor Sambrook) to the effect that the symptoms reported by Mr Cornelius and referrable to his service in Vietnam, were not symptoms of carpal tunnel syndrome."

consideration 19 The proper application of s 120 of the Act was considered by the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 at 571. The High Court stated: "The position may be summarised as follows: (1) First, sub-s.(3) of s 120 is applied: do all or some of the facts raised by the material before the Commission give rise to a reasonable hypothesis connecting the veteran's injury with war service? The hypothesis will not be reasonable if it is contrary to known scientific facts or is obviously fanciful or untenable. If the hypothesis is not reasonable, the claim fails. Proof of facts is not in issue at this point. (2) If a reasonable hypothesis is established, sub-s.(1) of s 120 is applied. The claim will succeed unless: (a) one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or (b) the truth of another fact in the material, which is inconsistent with the hypothesis, is proved beyond reasonable doubt, thus disproving, beyond reasonable doubt, the hypothesis." 20 With respect to claims lodged on or after 1 June 1994 concerning a disease in respect of which there is a Statement of Principles, s 120A(3) controls the application of s 120(3). The subsection requires that the hypothesis connecting the disease with the circumstances of any particular service rendered by the person is reasonable only if the relevant Statement of Principles upholds the hypothesis. 21 In Repatriation Commission v Deledio (1998) 83 FCR 82 ("Deledio") at 97-98 the Full Court identified the course which the Tribunal must take in respect of a post‑1994 claim in respect of the incapacity of a person from injury or disease related to service rendered by that person in the following way: "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."

I will refer to the above as the four steps to be taken by the Tribunal.

22 As to the first step, as is mentioned in [15] above, the Tribunal found that the material before it did point to an hypothesis connecting the respondent's carpal tunnel syndrome with the circumstances of the particular service rendered by him. The hypothesis was that during his operational service in Vietnam the respondent undertook general engineering work of a repetitive nature which gave rise to carpal tunnel syndrome in each of his wrists (see [14] above). 23 As to the second step, the Tribunal rightly determined that there was a relevant Statement of Principles in force, namely Statement of Principles No 71 of 1997 (see [2] above). 24 The real contest between the parties is as to the third step identified by the Full Court in Deledio. That is, as to whether the Tribunal erred in forming the opinion that the hypothesis advanced by the respondent was a reasonable one in the sense that it was consistent with the "template" to be found in the SoP. 25 For the hypothesis to be consistent with the "template" to be found in the SoP, the hypothesis must contain one or more of the factors identified in clause 5 of the SoP and be related to the respondent's service. It was the factor identified in clause 5(a) of the SoP upon which the Tribunal placed reliance in determining that the hypothesis advanced by the respondent was a reasonable one. That factor includes that the relevant repetitive activities had not ceased more than thirty days before the clinical onset of the respondent's carpal tunnel syndrome (see [7] above). In determining the reasonableness of the hypothesis, the Tribunal was therefore required to form an opinion as to whether the material before it pointed to the relevant repetitive activities not having ceased more than thirty days before the clinical onset of the respondent's carpal tunnel syndrome. 26 Before it could form the above opinion, the Tribunal was required to consider the meaning of the expression "clinical onset" as used in clause 5(a) of the SoP. The Tribunal accepted the appropriateness of the approach adopted by the Tribunal in Robertson v Repatriation Commission (AAT 12666, 2 March 1998), namely that: "… 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…." 27 By inference the Tribunal rejected the view of "clinical onset" taken by Professor Sambrook in his report of 6 March 2001. Neither party challenged the appropriateness of the meaning which the Tribunal attributed to the expression "clinical onset" in clause 5(a) of the SoP. For present purposes, therefore, Professor Sambrook's opinion that "[t]he earliest date of clinical onset of the carpal tunnel syndrome is 1993" (see [8] above) may be disregarded. 28 The critical issue on this appeal is thus whether there was material before the Tribunal which pointed to the respondent becoming aware, within the period of thirty days from the time when he ceased to undertake the repetitive activities upon which his hypothesis relies, of some feature or symptom which enables a medical practitioner to say that the respondent had carpal tunnel syndrome at that time. Without any such material it cannot be said that the respondent's hypothesis fits the "template" to be found in clause 5(a) of the SoP. As is mentioned above, the specified maximum time period between the cessation of the repetitive activities and the clinical onset of carpal tunnel syndrome specified by clause 5(a) of the SoP is an element of the factors identified in clause 5(a). 29 There was no material before the Tribunal which suggested that any medical practitioner had in fact said that a feature or symptom reported by the respondent within the specified time period enabled him or her to say that the respondent had carpal tunnel syndrome at that time. For that reason, if there was material before the Tribunal which pointed to any feature or symptom reported by the respondent being such as to enable a medical practitioner to say that he had carpal tunnel syndrome in Vietnam, or shortly after he left Vietnam, it was material that did so by inference. 30 The material before the Tribunal as to the respondent's experiences concerning his wrists at the relevant time was as follows. The respondent said that he developed pain in his wrists some five or six months after commencing work in Vietnam. It was a sharp pain that came and went but stayed for a few hours especially at night. Professor Sambrook recorded in his report of 6 March 2001 that the respondent reported having experienced frequent stiffness in his hands at the end of the day during his service in Vietnam. It is clear that Professor Sambrook equated the stiffness which the respondent reported with tiredness of the wrists (see [8] above). There was no other material before the Tribunal which pointed to the respondent experiencing weakness in his wrists at any relevant time. In his Veterans' Affairs Claimant Report dated 16 April 1999 the respondent referred to being "unable to use a knife and fork, pick up anything or write". I accept the submission of the applicant that, having regard to the respondent's oral evidence before the Tribunal, the respondent's reference to these symptoms must be understood as a reference to symptoms experienced by him well after he left Vietnam. 31 Professor Sambrook expressed the opinion that stiffness or tiredness of the wrists at the end of the day is not a typical symptom of carpal tunnel syndrome (report of 6 March 2001 - see [8] above) and is in no way specific for carpal tunnel syndrome (report of 10 May 2001 - see [9] above). That is, Professor Sambrook was of the view that stiffness or tiredness at the end of the day would not of itself enable a medical practitioner to say that the individual concerned had carpal tunnel syndrome. 32 The fact that Professor Sambrook acknowledged that: "It is not possible to exclude beyond reasonable doubt that the symptoms of wrist fatigue and stiffness at the end of the day during his service period were not [sic] an early sign of carpal tunnel syndrome"

does not assist the respondent. At the stage of the third step identified by the Full Court in Deledio (see [22] above), the issue before the Tribunal is whether the hypothesis advanced is a reasonable one. It is only at the fourth stage, should it be reached, that the Tribunal is concerned with whether it is satisfied beyond reasonable doubt that the relevant incapacity did not arise from a war‑caused injury.

33 There was no material before the Tribunal which was to the opposite effect of Professor Sambrook's opinion. It was therefore not open to the Tribunal to find that there was material before it which pointed to the stiffness or tiredness reported by the respondent being a feature or symptom which would have enabled a medical practitioner to say that the respondent had carpal tunnel syndrome when he was in Vietnam. 34 Did the respondent's evidence concerning the very sharp pain in his wrists alter the position? There was no material before the Tribunal which directly pointed to the pain described by the respondent being a symptom which would have enabled a medical practitioner to say that the respondent had carpal tunnel syndrome when he was in Vietnam. Was there material which pointed by inference to the pain being such a symptom? The SoP, by its definition of carpal tunnel syndrome, indicates that the symptoms of the syndrome are "paresthesias and weakness of the hand". The Tribunal noted that Black's Medical Dictionary, 39th eddefines "paraesthesias" as: "A term applied to unusual feelings, apart from mere increase, or loss, of sensation, experienced by a patient without any external cause: for example, hot flushes, numbness, tingling, itching."

Neither party challenged the accuracy of the above definition in the context of the SoP. In my view, very sharp pain does not fall within the above definition of "paraesthesias". It is a sensation in a quitedifferent class from "hot flushes, numbness, tingling [or] itching". Nor do I read the reasons of the Tribunal as indicating that the Tribunal regarded sharp pain as falling within the definition of paraesthesias. Rather, it seems to me, the Tribunal concluded that the composite symptom of "pain, stiffness and weakness in his wrists at night" fell within the definition of paraesthesias. However, there was no expert evidence before it to that effect. The only relevant expert evidence before it was that wrist fatigue and stiffness were not symptoms which would have enabled a medical practitioner to say that the respondent had carpal tunnel syndrome. In view of the definition of carpal tunnel syndrome contained in the SoP, it was not open to the Tribunal to find that the additional element of pain assisted the respondent's position. The definition contains no reference to pain.

35 Although the exact process of reasoning adopted by the Tribunal in reaching the conclusion that the clinical onset of the respondent's carpal tunnel syndrome was some five months after he arrived in Vietnam is not made clear by its reasons for decision, it appears that the Tribunal placed reliance on Professor Sambrook's acknowledgment that it is not possible to exclude beyond reasonable doubt that the respondent's symptoms were an early sign of carpal tunnel syndrome. For the reasons identified in [32] above, Professor Sambrook's acknowledgment did not assist the respondent at the stage of the third step identified in Deledio. To the extent that the Tribunal placed reliance on Professor Sambrook's acknowledgment, it did not follow the correct approach to its task under ss 120(3) and 120A(3). 36 Further, in my view, there was no material before the Tribunal capable of pointing to, as distinct from not excluding beyond reasonable doubt, the clinical onset of the respondent's carpal tunnel syndrome within the period of thirty days from the time when he ceased to undertake the repetitive activities upon which the hypothesis advanced by him relied. For this reason it was not open to the Tribunal to form the opinion that the hypothesis advanced by the respondent was a reasonable one within the meaning of s 120(3) of the Act. The relevant SoP in force does not uphold the hypothesis (see s 120A(3) of the Act). 37 The "appeal" will be allowed. The decision of the Tribunal will be set aside and the decision of the applicant affirmed. The applicant did not seek an order for costs. I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Branson.

Counsel for the Applicant: Mr P J Hanks QC with Ms J Jagot

Solicitor for the Applicant: Australian Government Solicitor