Barnes and Repatriation Commission
[2000] AATA 646
•3 August 2000
DECISION AND REASONS FOR DECISION [2000] AATA 646
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q1998/1124
VETERANS' APPEALS DIVISION )
Re NEVILLE BARNES
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION AND ORAL REASONS FOR DECISION
Tribunal Miss WJF Purcell (Senior Member) Capt ET Keane, OAM, RAN (Rtd) (Member) Dr KP Kennedy, OBE (Member)
Date3 August 2000
PlaceBrisbane
Decision For the reasons given orally at the Hearing of this matter, the Tribunal affirms the decision under review.
(Sgd) WJF Purcell
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether veteran's osteoarthrosis of both knees was war caused – whether veteran sustained the requisite "trauma" to his knees during service.
Veterans' Entitlement Act 1986 s 120(1)
Statement of Principles – Instrument No 71 of 1995
ORAL REASONS FOR DECISION
3 August 2000 Miss WJF Purcell (Senior Member) Capt ET Keane, OAM, RAN Rtd (Member) Dr KP Kennedy, OBE (Member)
This is an application for review of a decision of a delegate of the respondent (the Commission) of 8 August 1997, which determined that osteoarthrosis at both knees and metatarsalgia of both feet were not war caused for the purposes of the Veterans' Entitlement Act 1986 (the Act).
The evidence before the Tribunal comprised the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (the T documents) together with an exhibit tendered by the applicant. Mr Peter Johns represented the applicant, who gave oral evidence, and Mr Morison, a Departmental Advocate, appeared for the Commission. The applicant, who is in receipt of disability pension at 40 per cent of the general rate, lodged a claim for disability pension for the two conditions on 16 June 1997. At the commencement of the hearing the applicant's representative informed the Tribunal that the applicant was proceeding only in relation to the condition osteoarthrosis of both knees.
The applicant has rendered overseas service and the standard of proof is that of reasonable hypothesis in accordance with section 120(1) of the Act, which as far as is relevant for the purposes of this review provides:
"120 Standard of proof
(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.
Note: This subsection is affected by section 120A"
The claim was lodged after 1 June 1994 and the appropriate Statement of Principles is Instrument No 71 of 1995, as amended by Nos 336 of 1995 and 352 of 1995.
The applicant contends that he satisfies clause 2(b)(vi) of the Statement of Principles, which reads:
"(vi) Suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis;"
or
"'trauma to the relevant joint' means a joint injury caused by the force of an extraneous physical or mechanical agent 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 the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered;".
The applicant maintains that clause 2(b)(vi) of the Statement of Principles is satisfied by an injury to his right knee, namely a laceration; or alternatively by the constant knocks and bumps to both knees received during service. He relies on Spencer v Commonwealth [2000] AATA 319.
The Commission submits that although the applicant allegedly suffered bruises, bumps and a laceration, these injuries were not sufficient trauma of the type to satisfy the Statement of Principles. He did not seek treatment from the doctor on board the ship; whereas his medical records disclose that he sought medical attention for what could be described as minor ailments from time to time. In addition, the symptoms did not occur until 1985, some 15 years after discharge.
The applicant, who is now 57 years of age, was born on 3 April 1943 and serviced in the Australian Navy from 8 April 1960 to 30 June 1969. His eligible war service, for the purposes of the Act, was from 19 September 1968 to 12 April 1969 in Vietnam, aboard HMAS Perth. His duties as leading seaman included duties at the receiving point during "high line" transfer of stores and ammunition whilst the ships were under way at sea. These duties included the manhandling of heavy crates, pallets and boxes whilst they were being lowered to the deck.
The applicant gave evidence that in about October/November 1968 he suffered his worst injury to his knee. He and fellow high point crewmen were lowering a fully loaded pallet into position for unpacking when the jagged end of the tie wire cut through his right trouser leg, resulting in a one and a half inch long laceration along the inner side of the right knee.
The applicant said in evidence that he did not attend sickbay and seek medical attention from the doctor or his staff, but treated himself from the contents of the first aid box outside the sickbay. The box contained pain-killers and bandaids. He says that he remained on other normal duties, but requested reassignment during ship-to-ship transfers. He says that he manned the "distance line". The line which indicates to the command the distance between the two ships involved. This duty did not require any heavy work, and he did not return to high point duties for 10 to 12 days.
The applicant gave evidence that he walked protectively. There was some swelling at the site of the laceration, but no swelling of the knee joint. He first experienced pain and discomfort in the knees in 1985, some 11 years after he commenced employment with BP, where his duties were physically demanding, and included climbing 40 feet high tanks and walking on uneven surfaces. He suffers now, soreness and stiffness in both knees, and the diagnosis of osteoarthrosis involving both knee joints is not in dispute.
We have examined the whole of the evidence carefully and in detail and we have taken into account the parties' submissions. In relation to the applicant's submission that "trauma" referred to in clause 2(b)(vi) of the Statement of Principles is satisfied by the various knocks and bumps experienced during his normal seaboard life, we consider that these do not satisfy the Statement of Principle. The only question remaining now, is the question of whether the laceration is a trauma to the right knee which satisfies clause 2(b)(vi) of the Statement of Principle.
The Statement of Principles defines "trauma" as:
"…a joint injury caused by the force of an extraneous physical or mechanical agent 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 the joint and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs unless medical intervention has occurred."
In our view, the Statement of Principle is not satisfied by the nature of the injury as described by the applicant, and its subsequent course. For these reasons the Tribunal affirms the decision under review.
I certify that the 14 preceding paragraphs are a true copy of the reasons for the decision herein of Miss WJF Purcell (Senior Member), Capt ET Keane OAM, RAN (Rtd) and Dr KP Kennedy OBE, Members
Signed: .....................................................................................
AssociateDate/s of Hearing 20 July 2000
Date of Decision 20 July 2000
Date of Written Reasons 3 August 2000
Representative for the Applicant Mr P Johns
For the Respondent Mr R Morison, Departmental Advocate
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