Bilbow and Repatriation Commission - [2000] AATA 978

DECISION AND REASONS FOR DECISION [2000] AATA 978

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1998/1711

VETERANS' APPEALS DIVISION       )
           Re      Peggy Elaine BILBOW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

Date9 November 2000
PlaceSydney

Decision      The Tribunal affirms those parts of the decision of the delegate of the Repatriation Commission dated 27 February 1998 that refused a claim by Peggy Elaine Bilbow (1) that she suffered from irritable bowel syndrome on   the grounds that she did not suffer from that condition, (2) that the conditions of squamous cell carcinoma, irritable bowel syndrome, pruritis ani, and osteoarthrosis left hip were not war-caused, and (3) that pension be paid to the Applicant at one hundred percent of the General Rate.
  ..............................................
  M T Lewis
  Presiding Member
CATCHWORDS
VETERAN'S AFFAIRS - entitlement – whether pruritus ani and osteoarthritis left hip war-caused – Statements of Principles applied – whether unable to maintain adequate anal hygiene on service – whether suffered diarrhoea for continuous period of 7 days - whether suffered injury to left hip during fall on service
Veteran's Entitlements Act 1986 – ss120 (4), 120B
Repatriation Commission v Keeley (2000) 98 FCR 108
Repatriation Commission v Law (1980) 31 ALR 140

REASONS FOR DECISION

Mrs M T Lewis, Senior Member Dr M E C Thorpe, Member

This is a review of that part of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 27 April 1998 that refused a claim by Peggy Elaine Bilbow ("the Applicant") in respect of the conditions of squamous cell carcinoma, irritable bowel syndrome, pruritus ani and, osteoarthrosis of the left hip; and assessed pension payable to the Applicant at 100 percent of the General Rate. The Applicant sought review of that decision by the Veterans' Review Board ("the VRB"), and the VRB affirmed the primary decision on 10 September 1998. The Applicant lodged an application for review by this Tribunal on 27 November 1998.
At the commencement of the hearing Counsel for the Applicant advised that the Applicant did not wish to continue that part of the application in respect of squamous cell carcinoma, and therefore the Tribunal affirms that part of the decision. At the end of the first day of hearing the Tribunal identified the need for the clinical notes to be obtained from the Applicant's treating doctors. As a result of having considered those notes Counsel for the Applicant advised subsequently that she was not proceeding with her claim for irritable bowel syndrome. In these circumstances the Applicant agreed that the assessment of one hundred percent was appropriate and that part of the decision under review should be affirmed by the Tribunal.
The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The following evidence was tendered on behalf of the Applicant –

Reports from Dr M Geoffrey Miller, consultant physician, dated 19 August 1999 and 22 November 1999 (exhibit A);
Statement of Margaret Rose Fielding dated 18 August 2000 (exhibit B);
Sundry X-ray reports in respect of the Applicant (exhibit C);
Clinical notes of Dr Dowsett (exhibit D).

The following documents were tendered as evidence on behalf of the Respondent –

Report of Dr Mark Burns, occupational physician, dated 22 October 1999 (exhibit 1);
Clinical notes of Dr Goldstein (exhibit 2);
Report of Professor Philip Sambrook, rheumatologist, dated 21 August 2000 (exhibit 3);
Veterans' Review Board decision and reasons, dated 27 November 1996 (exhibit 4);
Applicant's claim dated 19 March 1996 for conditions including "problems left knee", her statement dated 28 March 1996, and internal minute dated 22 August 1997 (exhibit 5).

The Applicant gave oral evidence at the hearing, and her daughter, Pieta Harnetty, also gave oral evidence.
background

The Applicant was born on 4 August 1924. She served in the Army, within Australia, from 26 January 1943 to 3 September 1945. After her initial training for six weeks at Ingleburn the Applicant was attached to the 1st Signal Training Battalion at Bonegilla. In December 1943 she was assigned to a special wireless group at Kalinga in Brisbane intercepting Japanese code. From June 1944 she was transferred to Mornington Race Course in Victoria as a wireless operator. These appear to be the main locations where she served.
This matter falls for determination pursuant to s120(4) and s120B of the Veterans' Entitlements Act 1986 ("the Act") and therefore the Tribunal is required to determine this matter to its reasonable satisfaction, and to apply the Statements of Principles which are relevant to the conditions claimed.
In respect of the Applicant's claim for osteoarthrosis of the left hip, Instrument No 72 of 1995, as amended by Instruments No. 337 of 1995 and 353 of 1995, was revoked by Instrument No 42 of 1998 as amended by Instrument No 20 of 1999. However the 1995 Statements of Principles were relevant at the time of the primary decision in respect of osteoarthrosis and as they are more favourable to the Applicant, she sought to exercise her accrued right to rely on them: Repatriation Commission v Keeley (2000) 98 FCR 108.
The Applicant sought to rely on factor 1(b)(vi) of Instrument No.72 of 1995 as amended by Instrument No.337 of 1995 and 353 of 1995, of the 1995 Statements of Principles, in respect of osteoarthrosis, viz:
Suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis

The term "trauma to the relevant joint" in the Statements of Principles 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 were such acute symptoms and signs last for a period of at least ten days immediately after the injury occurs, unless medical intervention has occurred….

The Tribunal agrees that the Applicant also has an accrued right to rely on the Statement of Principles in place at the time of the primary decision in the case of pruritus ani, that being Instrument No 42 of 1996.   The factors that the Applicant considers to be relevant to her claim are –
5(a)     inability to maintain adequate anal hygiene, daily, over the 30 days immediately before the clinical onset of pruritus ani, or
(b)       suffering from episodes of diarrhoea, daily, over the seven days immediately before the clinical onset of pruritus ani.

The term "anal hygiene" in the Statement of Principles means –

The personal maintenance of cleanliness of the perianal area by wiping with paper or washing with water.

the evidence
Bowel and rectal problems

The Applicant did shift work throughout her service. She said that the food supplied to them was poor, and "quite a few times", which she clarified to be "every couple of months", she suffered from food poisoning, particularly when serving at Bonegilla and Kalinga. It is not clear whether the Applicant was inferring that she had diarrhoea when she had food poisoning, but accepts that this is a reasonable inference to be made. She said she also suffered diarrhoea at Mornington and Kalinga. She said the diarrhoea lasted two or three days and was treated with a substance from the RAP that she now assumes to be Kaomagna. The Applicant said she continued to suffer from diarrhoea after service, but less frequently.
The Applicant said that she has suffered from pruritus ani from the time of her service and she noted it especially when she was sitting for a long time. She said it started "with all the diarrhoea". She recalled being treated with an ointment but she could not recall the name. She said it was "rather difficult" to maintain anal hygiene while in the Army, as the latrines "weren't the best". There was no toilet paper available, but newspaper and old telephone directories were available in the toilets. She did not recall having running water where the toilets were, in the vicinity of where she worked, and there was nowhere to wash while on duty. However, she said in cross-examination that water was available for hand washing at Kalinga. Showers were available at all camps, albeit communal showers for the women in some camps.
The Tribunal notes the medical statement provided with the Applicant's claim in respect of pruritus ani (T4, p25) where it was suggested that the cause of the disability arising from her service was "prolonged sitting, perspiration" and that the Applicant first became aware of it in the 1970's. The Applicant said in her oral evidence that she "was just guessing" when she gave the information to the advocate to complete the form. The Applicant also said when attempting to recall aspects of her medical history that "dates elude me".
Ms Pieta Harnetty is the Applicant's daughter who was born in 1956. Her oral evidence was that the Applicant had told her over the years that she was suffering from diarrhoea. She also said that the Applicant had complained to her over the last twenty years that she suffered from an anal itch and Ms Harnetty indicated that the Applicant attended doctors for that condition from time to time.
A signed statement was provided by Margaret Fielding (exhibit B) who served with the Applicant at Kalinga for a few months before her discharge. She noted that they became good friends and have maintained contact ever since. Ms Fielding noted that during her Army service "there was a fair bit of bowel trouble going about". She made no reference to any knowledge she had about the Applicant's diarrhoea, nor of any difficulty about anal hygiene arising from the conditions of service.
A radiologist's report of a barium enema performed on the Applicant on 17 October 1988 (exhibit C) showed extensive diverticulosis throughout the large bowel. The Tribunal has reviewed the clinical notes of Dr Goldstein, the Applicant's local doctor, and these reveal that she complained on numerous occasions of diarrhoea. There is no reference throughout Dr Goldstein's notes, which date from 1991 to the present time, of complaints of pruritus ani.
Dr Geoffrey Miller, consultant physician, examined the Applicant and provided medico-legal reports dated 19 August 1999 and 22 November 1999 (exhibit A). Dr Miller noted on rectal examination that the Applicant had peri-anal inflammation with some excoriation and skin tags. He considered factor 5(a) of the Statement of Principles for pruritus ani (No 42 of 1996) was satisfied -
in that there was inability to maintain adequate anal hygiene daily, over the month prior to the onset of the pruritus ani because of the inadequate toilet facilities, an inability to wash herself after diarrhoea and the inability to use the hard paper because of the soreness of her anus.
It was submitted for the Applicant that her inability while on service to maintain adequate anal hygiene caused or contributed to the development of pruritus ani on service and that the condition has continued intermittently thereafter. The Applicant spent long hours on duty, sitting in the heat, sweating. She suffered bouts of diarrhoea, and had to use newspaper as toilet paper. While on duty she did not have access to showers.
It was submitted for the Respondent that on the Applicant's claim form she first became aware of the condition of pruritus ani in the 1970s. She now disputes that, and said that although she signed the claim form she did not complete it herself.
It was conceded for the Respondent that the condition is intermittent. It was noted that Dr Miller found on examination on 19 August 1999 that the Applicant suffered from anal inflammation. However Dr Dowsett on 5 January 1993 (T.docs. p30) noted that rectal examination was normal. Dr Ruthven, urologist, on 4 April 2000 (exhibit 2, p45) noted that rectal examination was normal. Moreover, there was no apparent record of pruritus ani anywhere in Dr Goldstein's clinical notes.
In respect of the Applicant's contention that she had been unable to maintain anal hygiene on service, it was submitted for the Respondent that the Applicant admitted in cross-examination that the camp toilets at Kalinga and Bonegilla were equipped with running water, there was paper available, and if its quality was unsatisfactory it was open to her to provide her own, and therefore she had facilities available to maintain anal hygiene.
Factor 5(b) of the Statement of Principles requires the presence of diarrhoea over seven days immediately before the clinical onset of pruritus ani. It was submitted for the Respondent that on the Applicant's evidence she had diarrhoea for two to three days at a time, and therefore she does not meet factor 5(b).
In considering all the evidence and the submissions of the parties, the Tribunal finds that the Applicant had facilities available at all times during her service to enable her to maintain anal hygiene. There was no evidence to indicate that at any time during the Applicant's service she was unable to shower daily. Similarly there was no evidence to indicate that paper was not available in the latrines, albeit newspaper or old telephone directories. The Tribunal is not reasonably satisfied that factor 5(a) is met.
The Tribunal cannot be reasonably satisfied on the evidence that the Applicant suffered episodes of diarrhoea on service on a daily basis over a period of seven days immediately before the clinical onset of pruritus ani. On her evidence she suffered from diarrhoea for a few days at a time. The Tribunal would hasten to add that the Applicant's evidence was obviously affected by the passage of time, and in addition she appeared prone to embellish her evidence to meet the needs of her case when her recall of specific events failed her. The Tribunal is reasonably satisfied that the Applicant does not meet factor 5(b) of the Statement of Principles.
It is not clear how, if at all, the evidence of the Applicant and Dr Miller about the hot sweaty work conditions enabled the Applicant to meet any factor in the Statement of Principles. Taking all the evidence into account the Tribunal is reasonably satisfied that the Applicant's condition of pruritus ani was not related to her war service under any of the provisions in s9 of the Act. Therefore that part of the decision under review is affirmed.
Hip condition
The Applicant said that she suffered "a bad fall" in 1944 while in the Army at Kalinga. It occurred while she was on an exercise march over rough terrain and eroded gullies. She said she fell down a gully probably more than a metre in depth, falling "very heavily" on her left side. She said that her knee swelled and she could not walk. In cross-examination she said that she did walk, but "with a lot of problem". She said she was helped back to the RAP where the knee was bandaged because it was very swollen. There was no doctor there to examine it. She thought that this fall affected her hip as well, as the top part of her leg ached and the whole of her left side was affected. She said she could not walk for some time and had to attend the RAP every day. She said she was off duty for "a couple of weeks" and was taken off all exercises for "a couple of months". She walked with a limp during this time, her leg was "very painful" and her knee was bandaged for "a couple of months".
The Applicant said that although the swelling in her left leg resolved, her knee and her hip, from the top of her leg to her knee "always ached and it always has done". She thought that her knee ached more than her hip, "but the powers that be (the doctors) thought that the worst part was my hip". She said that she loved ballroom dancing but was unable to continue this ever since her fall. She said she had to stop playing golf in the 1950's. She then tried playing bowls in the 1960's but had to give it up after twelve months. In cross-examination she said she last played bowls in 1980. In cross-examination she said she first consulted doctors about her knee and hip in the late 1950s. She also said that she had a consultation about her hip in the 1960s at which time x-rays were taken.
In the Applicant's claim for her hip condition which she lodged in May 1997 she was asked "When did you first become aware of the disability?" to which she wrote "1960's". In her oral evidence she said that her left hip got worse in the 1960's and she underwent a left hip replacement in 1994.
In cross-examination the Applicant said the claim form was completed for her by an advocate from the RSL. She was sure she had told him about the fall during her service. She said she did not tell the VRB about the fall because she was not asked about it. In fact the VRB hearing in respect of her left hip claim was conducted in absentia, but she recalled giving evidence to the VRB about the fall in relation to her left knee condition. The Tribunal notes that that evidence was consistent with the Applicant's oral evidence now.
The Applicant was referred to the report of Dr Miller who noted a history that she developed osteoarthritis in 1980. She said –
I think that was wrong, I think it started long before then. Like I said, my memory is not the best for dates.
The Applicant said she was married before the war finished. She was absent without leave prior to her husband being sent back to New Guinea as her leave was refused. She later found she was pregnant and was subsequently discharged. Her attention was drawn to the fact that she did not make reference to any medical problems at the time of her discharge medical examination (T3). She said "no, all I wanted was out, and if I was pregnant, that was good enough reason to get out. I couldn't have cared less then. I'd done my stint".
Ms Harnetty's evidence in respect of the Applicant's osteoarthritis was that she recalled her mother complaining to her in the 1960s that her knee (or her leg) was aching after she had played bowls. She understood that her mother consulted doctors for her leg rather than for her knee or her hip specifically. She said her mother "was always complaining her knee to her hip was aching".
Ms Fielding confirmed the Applicant's evidence about her fall on service. She said in her statement (exhibit B) –
When I first met Peggy, she had a limp. I heard that she had had a fall in a paddock or something. I can remember she said her knee worried her but cannot now remember which leg it was or whether she also complained about her hip. I cannot remember how long the limp lasted or whether she received treatment for it at Mornington. I can remember that she was not as physically active as the rest of us at things like physical training or simply getting about.
Three or four years ago, I attended the unveiling of a commemorative plaque at Kalinga for those who served in the Special Wireless Group. Peggy was there. On one occasion, she pointing (sic) to a large undulating vacant area and said something like "That is were (sic) I had my fall". This jigged my mind a bit about the problems she had with her leg when we first met.
X-ray of the left hip on 16 October 1991 (exhibit C) showed osteoarthritis in the hip joint. The joint space was slightly narrowed laterally with small marginal osteophytes. A further X-ray was taken on 23 July 1993, which showed fairly severe osteoarthritis at the left hip joint and there had been deterioration from the previous examination. Meanwhile, the X-ray of the right hip in 1991 was reported as normal, and in 1993 it showed mild osteoarthritis.
Dr Sambrook provided a report (exhibit 3) on the basis of the above mentioned x-ray reports. He considered that because of the unilateral nature of the left hip condition it was unlikely to be related to ageing or wear and tear. However, he did not consider that the findings necessarily pointed to an injury being the cause.

In reviewing the clinical notes of Dr Goldstein (exhibit 2), the Applicant's local doctor, the Tribunal notes that as well as the osteoarthritic conditions in her left knee and left hip for which she has claimed pension on the grounds of her war service, she also has significant osteoarthritic disease in her left shoulder, right knee, and lumbo-sacral spine. Indeed, x-rays of both knees on 8 October 1998 were reported as follows (exhibit 2, p71) -
Degenerative changes advanced in the medial compartments of both knee joints. There is more joint space narrowing present on the right side then (sic) the left side. No osteochondral defects nor loose intra-articular ossific bodies can be discerned on plain x-rays. There is a small joint effusion on the right knee. No focal bony lesion.
The Applicant lodged a claim for a number of conditions in March 1996, including "problems left knee" in which she noted that she had an accident in 1944 during her service when she fell. She then provided the following details about the incident, in a statement dated 28 March 1996 –
On duty at Kalinger (sic) (Q'ld) when we were doing an exercize (sic) run. I fell heavily on my left leg (going down a gully). I was off all physical exercizes (sic)& marching for about 3 months attending the R.A.P. for treatment every day. I have had trouble ever since & have also had a hip replacement.
An officer of the Respondent recorded the content of a telephone call to the Applicant on 22 August 1997, which stated, inter alia –
Spoke with Mrs Bilbow about trauma to hip. She told about falling down in a ridge in the grass whilst marching during daily exercises. Originally she claimed L. knee but it was actually her L hip that now has caused the most trouble.
Dr Miller also provided a report in respect of the left hip condition. He noted that the Applicant had suffered a discrete injury in 1944, but recorded a history that symptoms of the condition did not develop until about 1980. He considered that she satisfied the Statement of Principles as her injury satisfied the definition of 'suffering a trauma to the joint'. He noted that –
She fell some four or five feet into a gully, landing on her left hip and leg. She had pain in her hip and knee, she told me that she could hardly walk and was bruised from her hip down her thigh and was given light duties for some four to six weeks until she settled.
Dr Burns also reported on the Applicant's left hip. He said in his report (exhibit 1) –
Mr (sic) Bilbow believes that she may have injured her left hip when she fell in 1944 and injured the knee on that side. She states that she was off duty for several months with the knee injury and was unable to march. She did attend to her wireless operator duties each day but did not have to do any of the physical activities. She reported to the Regimental Aid Post each day and had the left knee bandaged. She does not remember, though, having pain in her left hip at that time.
She was unable to date the commencement of the pain in her left hip. She was having physiotherapy, probably in the early 1990s or late 1980s….(Tribunal's emphasis)
It was submitted for the Applicant that in her earlier claim for osteoarthritis of the left knee she provided evidence that while on service she fell on her left leg injuring her left leg, she was taken off all physical exercise for three months, she attended the RAP daily for treatment, and she has had trouble ever since. She has now had a left hip replacement. It was submitted that this is evidence of the fact that the Applicant sees a relationship between the hip and knee problems and the fall in the gully. At a VRB hearing on 27 November 1996 the Applicant provided a history of the fall which is consistent with her evidence to this Tribunal. Similarly, the history given by the Applicant to Dr Miller is consistent with the other evidence. It was submitted that on the Applicant's evidence the knee and hip continued to ache even after she had recovered from the fall, and she walked with a limp. Ms Fielding's evidence confirms what the Applicant has said about the fall. It was submitted that the only medical document now in existence regarding the Applicant while she was on service was the document about her pregnancy and subsequent discharge. The complete absence of any service medical notes is consistent with her medical notes having "gone missing". It was submitted for the Applicant that the Respondent appears to have accepted that she had the fall.
After the fall the Applicant was unable to continue ballroom dancing, she could not maintain physical activities in the Army, and after her discharge she could not maintain her interest in playing sport. She sought medical consultation in the 1950s and 1960s because of her left knee, which was then the greater problem for her. Her daughter was aware that the Applicant had a problem with her left hip and knee in the mid 1960s. X-rays show a much greater problem in the left hip than the right, which Professor Sambrook accepts as suggesting more than just ageing and wear and tear, but which does not necessarily point to injury as a factor. It was submitted that if ageing and wear and tear are removed, one other possible factor is an injury to the left hip although this would not prove that there has been an injury to the left hip.
It was submitted that on this evidence the Tribunal can be satisfied on the balance of probabilities that the Applicant had a fall in the Army, that she sustained quite significant injuries to her left leg including swelling of the knee, loss of mobility, with pain in the left hip and knee that lasted for four weeks. It was submitted that therefore she satisfies factor 1(b)(vi) of the Statements of Principles, that she was suffering a trauma to the hip before the clinical onset of osteoarthrosis. It was submitted that on the evidence the symptoms lasted for three months but, in relation to pain, altered mobility and presumably range of movement of the joint, has been ongoing.
It was submitted that the Tribunal could be satisfied on the balance of probabilities that the accident did occur and caused the sort of injury required by the Statements of Principles. It was the Applicant's submission that the age related factors could coexist with the injuries arising from the fall. All that has to be done is to establish a contribution: Repatriation Commission v Law (1980) 31 ALR 140. It was submitted that even if the more serious causes of the Applicant's left hip condition are irrelevant to her war service, all that the Applicant has to show is that her war service contributed to a material degree. It was submitted that Professor Sambrook appeared to be saying that one needed to look for a cause other than ageing and wear and tear. While the cause may not have been an injury, there is no evidence before the Tribunal of a cause other than her injury on service that would account for her greater symptoms in the left hip.
It was submitted for the Respondent that at the time of the Applicant's discharge from the Army she reported no injuries from her service, and there are no records of any injuries or illnesses suffered during her service. Notwithstanding s119 of the Act about the lack of records, it was submitted that as the Applicant is alleged in Dr Miller's report to have been treated at the RAP for six weeks it is likely that records would have been kept of that. Even if those records have been lost it is not consistent with an injury of that kind that the Applicant did not report the injury at the time of her discharge medical examination.
The Respondent accepts that the Applicant had a fall during her service but questions the sort of injury she sustained and the anatomical site/s of the injury. Because of the variation in the Applicant's evidence the Respondent questioned the credibility of that evidence. It was submitted that the Applicant's various accounts of the fall down the gully raise questions about the nature of her fall. It is not clear from the evidence whether she fell down a vertical drop of a metre or more, or whether she tripped on the ridge of the grass as she was walking down a slope. This affects the way the fall is interpreted and related to the symptoms that followed.
It was submitted that Dr Miller's history was an exaggerated account of the Applicant's condition. Although Dr Miller reported that the Applicant has been told she has severe osteoarthrosis and will shortly require a left knee replacement, a report from Dr John Morton, orthopaedic surgeon, dated 20 November 1996 (exhibit 2, p100) noted that X-rays showed minimal changes in her knees. She had minor effusions but no significant crepitus. He considered that arthroscopic debridement would not be worthwhile and thought that her knees were "best left alone".
At the time the Applicant lodged her claim, she noted the cause of the disability in her hip to be "sitting as wireless operator" and that she was first aware of the disability in the 1960's. Although she acknowledged she did not complete the form, she signed it. Dr Miller noted, from the history provided to him, that the Applicant was first aware of her hip problem about 1980. In the VRB reasons her evidence was that she fell heavily on her left leg going down a gully while on an exercise run. The Applicant's evidence to the Tribunal was that she fell down a gully of a metre or more, while marching. When asked about the injury she sustained she referred to having injured her knee and "I think it affected my hip as well". It was submitted for the Respondent that this evidence suggests that she was not aware of having injured her hip at the time she fell, and that is of great relevance when applying the Statements of Principles.
Dr Miller noted that the Applicant could hardly walk and was bruised from her hip to her thigh. However the Applicant's own evidence was that she had a swollen knee and she was bandaged from below to above her knee. It was submitted this was inconsistent with there having been an injury to the hip.
It was submitted for the Respondent that the relevance of the evidence regarding the Applicant's knees brings into question the credibility of Dr Miller's report. While Dr Miller considered that the left knee caused more trouble than the right, Dr Goldstein's clinical notes demonstrate that at various times during the 1990's the Applicant's right knee has in fact caused much more trouble than the left. Professor Sambrook has provided a report relating to the x-ray findings of the Applicant's hips, noting that there is no evidence of injury indicated in the radiologists' reports. Although Professor Sambrook noted that the pathology in the left hip was much more marked than in the right hip, it was submitted that the pathology in the knees was showing the opposite trend.
Although Dr Burns (exhibit 1) recorded the history from the Applicant that she did not remember having pain in her left hip at the time of her fall, it was submitted for the Applicant that she had a poor memory and prior to seeing Dr Burns she had given a history to Dr Miller (exhibit A, 19 August 1999) that she had pain in her knee and hip following the fall.The Applicant's evidence to the Tribunal was that she also had an ache in her hip and down her left side.
It was submitted for the Respondent that Professor Sambrook saw no evidence of injury to the left hip in the 1991 x-ray. Although Professor Sambrook noted the unilateral nature of the left hip osteoarthritis at that time, which would suggest the cause was something other than age degeneration, it was submitted that it remained no more than a possibility on this evidence that the Applicant injured her left hip in that fall. It was submitted for the Respondent that the osteoarthritis in the left hip has developed relatively recently and has progressed significantly between x-rays taken in 1991 and 1993 (exhibit C).
It was submitted for the Respondent that because of the multiple locations of the Applicant's osteoarthritis this increases the likelihood of her having an age-related osteoarthritis of the left hip also; and although she now has a greater problem in her left hip than her right hip this does not go against the likelihood that her condition is age-related. It was submitted that on the evidence the Tribunal could not be reasonably satisfied that the Applicant's osteoarthritis of the left hip was causally related to her service as it did not meet the Statement of Principles.
In considering all the evidence the Tribunal is reasonably satisfied that the Applicant had a fall in 1944 while on service, when she sustained an injury to her left knee. It is clear on the evidence that the Applicant's knee injury was the predominant problem arising from that fall. Even if she had bruising to her thigh area, as she told Dr Miller, that is much more suggestive of a soft tissue injury than of an injury causing internal damage to the hip joint. Dr Miller appears not to have taken this into account in providing his opinion. The Tribunal is concerned that it is only in recent times that the Applicant has come to associate that fall with her left hip condition. Her evidence to the Tribunal did not leave us with any level of confidence that she had a specific recollection about the nature of her injuries following the fall, other than that she hurt her knee which required bandaging and time off from work and physical activity. That is supported by the variable account she has given to various doctors about the effect of the fall on her hip at the time of the fall and in the following few weeks.
The Tribunal notes the explanatory notes for tabling Instrument No 353 of 1995, which state –
The new definition reflects the fact that initial internal damage to the joint, and not only overlying soft tissue injury is needed to increase the risk of osteoarthrosis. Such internal joint injury would be associated with cartilage injury, effusion or haemorrhage into the joint, a situation which would produce the elements of the proposed new definition (of "trauma to the relevant joint").

As the Tribunal cannot be reasonably satisfied that the Applicant sustained internal damage to the hip joint at the time of her fall and not just soft tissue damage, we are not reasonably satisfied, using the terms of factor 1(b)(vi) of the relevant Statement of Principles, that she suffered a trauma to the relevant joint before the clinical onset of osteoarthrosis.

The Tribunal notes that the passage to which the Applicant referred in the landmark Full Federal Court decision in Law (supra), which related to the Repatriation Act 1920, is nonetheless relevant in this matter and is worth quoting –
It seems clear that the expression "attributable to" in each case involves an element of causation. The cause need not be the sole or dominant cause: it is sufficient to show "attributability" if the cause is one of a number of causes provided it is a contributing cause. Under s101(1)(b), it is sufficient to show "attributability" if a member's war service is a contributing cause to the incapacity or death in respect of which the claim is made.(at 151)

The Tribunal accepts that while the Applicant obviously has a problem of generalised osteoarthritis, it is necessary to consider whether factors in her war service were a contributing cause to the osteoarthrosis of her left hip. However, in so doing the matter must still meet the requirements of the relevant Statements of Principles. In this case the findings of fact do not meet the Statement of Principles. The opinion of Professor Sambrook about the unilateral nature of the hip condition does not enable the Tribunal to find that the fall was such that it probably caused internal damage to the hip joint. Professor Sambrook's evidence goes no further than to leave that as a possibility. If the Applicant's evidence about the incident was more specific in respect of trauma to the hip joint, that may have contributed to the Tribunal's reasonable satisfaction. As it was, her evidence was vague, not careful, and not reliable. The Tribunal was left in serious doubt about the event as it affected the Applicant's hip, and about the interval between the event and the development of any symptoms of osteoarthritis in the left hip. There are variable accounts of whether symptoms developed in her left hip in the 1950s, 1960s, or 1980s. Indeed the condition was reasonably mild on X-ray in 1991, but deterioration was demonstrated radiologically by 1993. The Applicant also suffers from osteoarthrosis in various other parts of her body which were not implicated in the fall in any way.

In coming to its decision about the left hip condition, the Tribunal has taken into account the difficulty in lost records and the problems caused by the passage of time.   The lack of RAP records to corroborate her evidence was on its own not fatal to her case. The fact that the Applicant did not mention her left leg injury at the time her of her discharge, a year or so after the fall, was also not fatal to her case, when taken alone. However, all of these factors when taken together, and in the absence of specific and reliable evidence from the Applicant, detract from the Tribunal being reasonably satisfied of the association between the Applicant's war service and the condition of osteoarthrosis of the left hip. Therefore, that part of the decision under review will be affirmed.
I certify that the 56 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member
Dr M E C Thorpe, Member
Signed:         .....................................................................................
  Associate
Date/s of Hearing  26 April 2000, 22 August 2000
Date of Decision  9 November 2000
Counsel for the Applicant        Mr Craig Colborne
Solicitor for the Applicant         G Peres Da Costa
Counsel for the Respondent    N/A
Solicitor for the Respondent    Mr Peter Godwin, Dept. of Veterans' Affairs