Alistair Baird and Repatriation Commission
[2015] AATA 393
•4 June 2015
[2015] AATA 393
Division VETERANS' APPEALS DIVISION File Number
2013/6808
Re
Alistair Baird
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Regina Perton, Member
Date 4 June 2015 Place Melbourne The Tribunal affirms the decisions under review.
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Regina Perton, Member
CATCHWORDS
VETERANS' AFFAIRS – defence service – osteoarthritis of the knees – lumbar spondylosis whether conditions related to service – decisions affirmed
LEGISLATION
Veterans' Entitlements Act 1986 ss 120(4), 120B
CASES
Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Newson [2008] FCA 401
REASONS FOR DECISION
Regina Perton, Member
4 June 2015
Alistair Baird served in the Australian Navy (the Navy) from 5 January 1977 to 4 January 1983. On 16 August 2012 Mr Baird applied to have several medical conditions accepted as defence-caused to qualify for a disability pension. The Repatriation Commission (the Commission) accepted solar keratosis and non melanotic malignant neoplasm of the skin as conditions related to Mr Baird’s naval service. The Commission refused claims for L4-5 disc degeneration, cervical spondylosis with multilevel disc degeneration, osteoarthritis affecting both knees, sensorineural hearing loss, diabetes mellitus, glaucoma, bilateral hypermetropia and chronic simple bronchitis.
On 23 November 2012 Mr Baird applied for review to the Veterans’ Review Board (VRB) which affirmed the Commission’s decision on 14 August 2013. The Commission’s written decision was forwarded to Mr Baird on 13 November 2013.
On 23 December 2013 Mr Baird lodged an application for review with the Tribunal in relation to his back and knee problems. In this application, he has not pursued other conditions that were not accepted by the Commission. The Tribunal’s task is to examine whether Mr Baird’s back and knee conditions can be considered defence-caused.
LEGISLATIVE FRAMEWORK
The period of Mr Baird’s service in the Navy constitutes defence service under the Veterans’ Entitlements Act 1986 (the Act).
Section 120(4) of the Act requires the Tribunal to decide whether a veteran’s medical conditions were defence-caused to its reasonable satisfaction. The Tribunal is also required to apply a Statement of Principles (SoP) for each condition (where one exists), as formulated by the Repatriation Medical Authority, which provides a connection to service through factors contained in the SoP. Section 120B of the Act requires the Tribunal to decide matters to its reasonable satisfaction in accordance with the relevant SoP.
The relevant SoP for lumbar spondylosis at the time of claim was SoP No. 38 of 2005. Mr Baird submits that the applicable factor is Factor 6(h):
(h) carrying or lifting loads of at least thirty-five kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the twenty-five years following that period;
The relevant SoP concerning osteoarthritis is SoP No. 14 of 2010 as amended by SoP No. 36 of 2011. The 2011 amendment is not relevant in this matter. There are more than 30 alternative factors set out in clause 6 of the SoP. The factors put forward by Mr Baird as applicable are Factors 6(f) and 6(m) which provide:
6 …
(f) having trauma to the affected joint within the 25 years before the clinical onset of osteoarthritis in that joint;..
…
(m) For osteoarthritis of a joint of the lower limb only,
(i)lifting loads of at least 35 kilograms while bearing weight through the affected joint to a cumulative total of at least 168 000 kilograms within any 10 year period before the clinical onset of osteoarthritis in that joint, and where the clinical onset of osteoarthritis in that joint occurs within the 25 years following that period;…
Trauma to the affected joint is defined in paragraph 9 of the SoP as:
"trauma to the affected joint" means a discrete event involving the application of significant physical force to or through the affected joint, that causes damage to the joint and the development, within 24 hours of the event occurring, 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 seven 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 or limb by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) surgery to that joint.
MR BAIRD’S KNEE CONDITIONS
Mr Baird described problems he had with his knees in the Navy. Mr Baird stated that he had fallen out of his bunk while asleep on HMAS Melbourne. The fall was about 1.5 metres. Mr Baird said that he struck his knees and other parts of his body on the steel deck. He was unable to straighten out his left knee at first but that settled down after a few minutes. Mr Baird recalled that he attended a medic within a few hours when the pain in his left knee persisted but no treatment was given or further investigations undertaken immediately. About a week later an x-ray was undertaken but no fracture was detected and he was provided with a supportive bandage.
With the pain in his left knee recurring when he descended ladders or climbed hills, Mr Baird was referred to an orthopaedic surgeon. The surgeon could not find any abnormalities in the left knee on physical examination so an arthroscopy was performed in 1979. A meniscal tear was detected and repaired. Medical notes indicate that the pain resolved and Mr Baird returned to normal duties. In mid-1980 Mr Baird had another knee operation. Medical notes indicate that he underwent post-operative physiotherapy and had recovered from the surgery some six months later. He was off duty for a while but was able to return to his signalman duties after about three months and was subsequently declared to be category one fitness status some 18 months later.
Mr Baird’s left knee was relatively pain free during the subsequent period although he had some problems with his right knee. Mr Baird stated that prior to his discharge from the navy in January 1983 he was category one fit for the previous 18 months to two years and had no treatment for his knees during that time.
Mr Baird stated that his knees gradually became worse after he left the navy. His subsequent work included physically demanding work as a police officer and a prison guard. He acknowledged that he passed the fitness test for appointment as a police officer and worked as such for about three years.
Dr Geoff Markov, a specialist in rheumatology and internal medicine, was provided with the navy’s medical records and those of the doctors who treated Mr Baird subsequently. He also gave oral evidence and was the only medical practitioner to do so during the Tribunal’s proceedings. Dr Markov commented that there are some inconsistencies between Mr Baird’s memory of what happened to his knee and the actual records. The Tribunal notes that Mr Baird’s recollections are of events more than 30 years ago when he was in his late teens and early twenties.
Dr Markov provided a summary of the navy medical records as follows:
22. The service medical documents provide conflicting medical information about the origin and nature of the left knee problem and some of it varies from Mr Baird’s recollection. The referral letter (page 105) written by Dr K Donovan on 4 September 1979 to Dr Faithfull (orthopaedic surgeon) states a “two day history of pain and locking on extreme flexion of L knee. No history of any king [sic] of trauma, only that knee gave way four days ago when he stood up. ?Torn meniscus” Dr Faithfull could find no abnormality however, and recommended graduated exercises.
23. Because of ongoing pain, Dr Faithful reviewed him on 15 January 1980 and considering a torn meniscus and chondromalacia patellae, he ordered an arthrogram (a special x-ray where contrast is injected into the knee and pictures taken). This was done on 29 January 1980 at RGH Concord and was normal, (page 100) showing “no evidence of either chondromalacia patellae and no evidence of meniscal tear found”. However, the “Final Diagnosis” on the Inpatient Record (page 99) is “torn left medial meniscus”. I believe this to be a mistake as it contradicts the result of the arthrogram
24. An arthrotomy (an open surgical operation) and EUA (examination under anaesthesia) was done by Dr Faithfull on 27 March 1980. This revealed (page 98) “no instability or joint abnormalities”. The patellar tendon was noted to be slipping over an exostosis (a bony outgrowth) coming from the lateral femoral condyle and was surgically removed. Obviously, this must have been small as it was not noticed on the plain x-rays done earlier. On 22 April 1980 Dr Faithfull recorded: “Still some pain. Wound well healed. Two weeks’ sick leave then Cat 1.”
25. As I understand the medical records of that time, Mr Baird had neither a meniscal tear nor chondromalacia patellae. In fact his left knee pain was due to an exostosis of the femur bone, a benign tumour which commonly presents in the second decade of life and may cause pain. The knee is a common site for exostoses and the cause is not known. Mr Baird’s was surgically cured in March 1980…
26. On 17 September 1980, Mr Baird was referred to Dr Faithfull again with left knee pain following a motorcycling injury (the left hip was also bruised). Dr Faithfull’s examination was “basically NAD” and he records no specific diagnosis. He recommended that Mr Baird gradually increase activities. Dr Faithfull writes on 25 November 1980 (page 92) that the “Pain in L knee now completely subsided and no crepitus with movements.”
27. At the Medical Board of Survey of 23 January 1981 Mr Baird stated “No further trouble with my knee”.
28. In April 1982 (page 79) Dr Faithfull writes: “Having some problems with both knees L & R” and find some crepitus from the left patella. He records no diagnosis and suggested hamstrings stretching exercises. Dr Smee who referred Mr Baird wrote: “For review of chondromalacia patellae both knees” but I think that was a mistake; Dr Faithfull had never confirmed that diagnosis.
Dr Markov then gives his opinion of the cause of the osteoarthritis:
29. In my opinion, the osteoarthritis currently present in the left knee is idiopathic, part of the normal ageing process. There is no reason to believe that it was due to an injury, or a complication of either the left femoral condyle exostosis or the surgery to treat it.
30. With regard to the right knee, the only record in the service documents of any problem with the right knee is on page 17, dated 21 April 1981 where it is noted that Mr Baird was “hit by a rock R Knee”. There was “local bruising/swelling” but an x-ray was normal. The diagnosis was “bruising over the R knee” and the treatment was ice and elevation. When reviewed 2 days later (page 18) the bruising was settling, the bandage was removed and Lasonil cream was prescribed. No further mention is made of the right knee.
31. In my opinion, the osteoarthritis currently present in the right knee is idiopathic, part of the normal ageing process. There is no reason to believe that it was a complication of the minor injury from a rock in April 1981.
Taking into account the term clinical onset which is not defined in the Act, Dr Markov took into account the meanings given in Lees v Repatriation Commission (2002) 125 FCR 331 as spelled out in Kaluza v Repatriation Commission [2010] FCA 1244 at [92] which the Tribunal also takes into account in determining clinical onset:
The meaning of the expression clinical onset was considered by the full court in Lees. The effect of what their Honours (Heerey, Moore and Keifel JJ) said was that there is a clinical onset of the disease, either:
owhen a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
owhen a finding is made on investigation which is indicative to a doctor that the disease is present.
Dr Markov points out that whilst Mr Baird described symptoms and treatments from physiotherapists and osteopaths well before 20 August 2012, there is no documentary evidence of this treatment nor is there any documentary evidence that Mr Baird sought medical attention from a doctor which would have resulted in a doctor being able to make a diagnosis of the condition on an earlier date.
In his opinion, osteoarthritis of both knees had a clinical onset on 20 August 2012. The Tribunal notes that Mr Turner who represented Mr Baird in the Tribunal did not challenge 20 August 2012 being the date of clinical onset of osteoarthritis. The Tribunal finds that clinical onset of the knee condition, as determined by a doctor, was 20 August 2012.
MR BAIRD’S LOWER BACK
Mr Baird stated that his lower back pain started when he was still at HMAS Leeuwin. He stated that the pain arose spontaneously without any injury. He sought medical attention and was given two days off duty. The symptoms resolved within a few days. Mr Baird said that he next felt lower back pain when he fell down a ladder on HMAS Melbourne. His back was treated with liniment but no physiotherapy. Mr Baird said that there had been no other injuries whilst he was in the navy or afterwards.
Mr Baird recalled that he had an episode of back pain in 1983 for which he received a painkilling injection. He was off work for a day and the symptoms gradually abated.
Mr Baird said that he has experienced slight aches in his lower back from time to time. He alleviated the pain by stretching. In the last three years or so, his lower back pain has worsened. He takes pain medication. Mr Baird said that his general practitioner arranged for an x-ray and CT scan which apparently showed some disc degeneration. He has not consulted a specialist in relation to his lower back. He has also not been consulting a physiotherapist in recent years.
The Tribunal concurs with Dr Markov that the clinical onset of lumbar spondylosis was 5 November 2012 being the first date on which Dr Joseph Sakowsky, Mr Baird’s then general practitioner, diagnosed the condition with confirmation the following day by x-ray. Neither Dr Markov nor the Tribunal had access to medical records between Mr Baird’s discharge from the navy and June 2008.
Dr Markov final comments concerning lumbar spondylosis were:
41. …The only injury to the lumbar spine was that recorded on 1 March 1979 when he fell down a ladder-way (page 53). The description indicates a soft tissue bruise and abrasion and was treated with creams. This seems like a minor injury and not a trauma as that term is defined in the Statement of Principles for lumbar spondylosis. In any case, it occurred earlier than 25 years before the clinical onset of the lumbar spondylosis…
MR BAIRD’S LIFTING HISTORY
As indicated earlier, Mr Baird attributes osteoarthritis of the knees and lumbar spondylosis to the weights he believes he lifted during a ten year period between 1978 and 1988. He left the navy in early January 1983.
Mr Baird joined the Navy when he was 15 years old and was based at HMAS Leeuwin for the first 12 months. He was then posted to HMAS Cerberus where he trained as a signalman for seven months. He was subsequently posted to HMAS Melbourne as a seaman signalman. Mr Baird was expected to carry out other duties while on HMAS Melbourne. His duties included chipping and painting, cleaning and carrying stores.
Mr Baird told the Tribunal that HMAS Melbourne underwent a refit in Sydney during his posting on the ship. He remained on board the ship while it was in Sydney as his home base was Melbourne. Mr Baird said he was required to carry heavy stores as part of the refit. Sometimes the stores were lifted and carried by the one person. At other times they formed a line passing the goods from one person to the next.
Mr Baird said that after the refit, the ship was restocked which took at least two weeks before going to sea. He stated that he carried a number of items, such as sacks of potatoes, which were very heavy. He said that on many occasions the heavy items were carried down ladders. He provided an estimate of the weights he had carried while in the Navy (which will be referred to later).
Mr Baird said that there was another extensive restocking of the ship before HMAS Melbourne went on an exercise that lasted several weeks. As well as food, ammunition was loaded on that occasion.
In February 1981 Mr Baird was transferred from HMAS Melbourne. He said that there was not much heavy lifting in his subsequent Navy roles.
After Mr Baird left the Navy in early January 1983, he worked as a security guard for a time. He then became a prison officer for about three years before joining the police where he also stayed about three years. He then worked for Ford in its factory. In his mid-thirties, Mr Baird studied for a degree in computer science and since 1998 has worked for a bank and other companies in the IT area.
Asked if he had done heavy lifting in later occupations after leaving the Navy, Mr Baird said that while with the police he had to restrain some people but otherwise the lifting was not of the order he was required to do in the Navy.
Mr Baird presented a hand written document in which he estimated the items he had carried while on HMAS Melbourne, their weights and the number per day. He also presented a document entitled Survey of Weights and Equipment Used by various Branches & Categories of the Royal Australian Navy. The document was prepared by the Pensions Officers of the Huskisson RSL Sub Branch in New South Wales as a guide for members of the defence force lodging claims.
In his original application form which he filled in with the assistance of a different RSL volunteer to Mr Turner who is now representing him, Mr Baird suggested that each day between 1977 and 1983 he loaded stores onto a ship being 10 loads of rice (40 kg each), 10 loads of potatoes (68 kg), 10 loads of meat (50 kg) and cleaning equipment (50 kg) as well as assorted other items. Mr Baird conceded that this was incorrect and said that the first volunteer misunderstood how to fill out that section of the form and Mr Baird just signed the form where indicated.
In a submission dated 22 July 2014 Mr Turner stated that:
..
3. Mr Baird served for 2 years and six months aboard HMAS Melbourne and we could say that during that period of time he could have had three hundred days of weekends and leave that he did not carry stores.
4. That leaves about 210 days that he did carry …stores …resulting in a total weight bearing of loads of 35 kg and above, during that period of 294,000 kgs.
…
The relevant factors in the SoPs require the lifting of 168,000 kilograms within any ten year period of items weighing 35 kilograms or more. Mr Turner cited the decision in Repatriation Commission v Newson [2008] FCA 401 as authority allowing the ten year period to include time outside the defence force in relation to a calculation as to whether the clinical onset of a condition occurred within 25 years of the lifting. He nominated a ten year period between 1978 and 1988.
Mr Baird left the navy in early January 1983. He believes that he was stationed on HMAS Melbourne from August/September 1978 for about two and a half years. The hand written document cited earlier was an estimate prepared by Mr Turner and Mr Baird on 6 November 2014.
REFIT 14 DAYS STRAIGHT
Rice 40 kgs
Potatoes 68 kgs
Flour 50 kgs = 396 kg x 10 lifts per day
Meat 50 kgs = 3960 kg per day
Pumpkin 35 kgs
Cabbage 40 kgs
Salt 68 kgs
Milk 45 kgs
Refit 14 days 54 days = 213840 kgs
Exercises 10 days
Duty 30 days
The Tribunal also notes that the weights used are not the same as set out in the Huskisson document. For example, the cartons of meat are listed in the Huskisson document at 32 kilograms not the 50 kilograms as given in Mr Baird’s document. There is no source given for the claim that bags of rice weighed 40 kilograms. The Tribunal also finds it difficult to accept that a 17 or 18 year old young man would be required, on his own, to carry bags of potatoes or salt that were heavier than he was at the time. Furthermore, there is no justification in the table for the inclusion of 30 days of duty on which Mr Baird was said to carry 3960 kilograms per day of provisions.
The Commission submitted that the evidence does not show a lifting of loads of at least 35 kilograms to a total of at least 168,000 kilograms during Mr Baird’s service on HMAS Melbourne. The Commission also submitted that the weights refer to occasions of restocking during a refit of the ship and when it returned from sea-going duty and did not refer to daily occurrences. The occasional carrying of equipment that weighed more than 35 kilograms is also unsupported by any objective evidence although the Tribunal accepts that Mr Baird may have helped load ammunition prior to going on an exercise, the name of which he could not recall. The Tribunal also accepts that he occasionally carried signalling or cleaning equipment but there is no objective evidence as to how often it happened.
The Tribunal is not satisfied that Mr Baird carried the volume of items set out in the table above. It is also not convinced that the various products would have been delivered over so many days and moved in the raw manner calculated in the table. There is no objective evidence that this latest calculation is much more reliable than that presented in the original application. The Tribunal finds it unlikely that Mr Baird would remember exactly what he carried some 35 years earlier than the date of preparation of the estimate of weights carried. The Tribunal is not satisfied, on the balance of probabilities, that Mr Baird, a signalman, would have been required, on his own, to carry so many items for so many days. The Tribunal is also not satisfied, on the balance of probabilities, that Mr Baird met the weight limits given the speculative nature of the calculations presented.
The Tribunal is therefore not reasonably satisfied that the factors concerning weights carried in the relevant SoPs as set out at earlier paragraphs applies to Mr Baird’s medical conditions of osteoarthritis of the knees and lumber spondylosis. The Tribunal is satisfied that Mr Baird had problems with his knees during his Navy service but is not reasonably satisfied that his injuries and conditions meet the definition of trauma in paragraph 9 of the SoP concerning osteoarthritis of the knees. In any case, the clinical onset of arthritis of the knees, as diagnosed by a doctor, was more than 25 years after the injuries.
DECISION
The Tribunal affirms the decisions under review.
I certify that the preceding 41 (forty -one) paragraphs are a true copy of the reasons for the decision of Regina Perton, Member ...............................[Sgd]..................................
Associate
Dated 4 June 2015
Date of hearing 6 November 2014 Advocate for the Applicant Mr B Turner Advocate for the Respondent Mr K Rudge Solicitors for the Respondent Department of Veterans Affairs
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