Brown and Repatriation Commission

[2007] AATA 1222

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2007] AATA 1222

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No V2005/362

VETERANS’ APPEALS DIVISION		)
Re		MERVYN THOMAS BROWN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: G.D. Friedman, Senior Member

Date:12 April 2007   

Place:Melbourne

Decision: The Tribunal affirms the decision under review.   

(sgd) G.D. Friedman

Senior Member

VETERANS’ AFFAIRS – veterans’ entitlements - osteoarthrosis of left knee and hips - epilepsy - ischaemic heart disease - alcohol consumption - whether service‑caused - whether matters heard previously may be re-litigated

Veterans’ Entitlements Act 1986 ss 9,120B, 120(4)

Comcare v Grimes (1994) 33 ALD 548

Re Brown and Repatriation Commission [2002] AATA 641

Re Cooper and Repatriation Commission (1995) 38 ALD 164

Re Quinn and Australian Postal Corporation (1992) 15 AAR 519

Re Rana and Military Rehabilitation and Compensation Commission [2005] AATA 1069

REASONS FOR DECISION

12 April 2007  G.D. Friedman, Senior Member

1.        Mervyn Brown was refused an increase in disability pension because the conditions of osteoarthrosis of the left knee, osteoarthrosis of both hips, ischaemic heart disease and epilepsy were considered not to be service-related.  He seeks review of that decision.

BACKGROUND

2. Mr Brown was born in 1926 and served in the Royal Australian Air Force (RAAF) in Australia from 16 February 1944 to 19 April 1945, which was eligible service under s 9 of the Veterans’ Entitlements Act 1986 (the Act).  After discharge he worked on his father’s farm before purchasing his own property in about 1947.  He then obtained employment as a shearer in the Wimmera area of Victoria until he ceased work in about 1977.

3.      Mr Brown is currently in receipt of disability pension at 40 per cent of the general rate.  The following conditions have been accepted as service‑related:

·sensorineural hearing loss of the left ear;

·bilateral tinnitus; and

·sensorineural hearing loss of the right ear.

The following conditions have not been accepted as service-related:

·osteoarthrosis of both hips and knees; 

·localised osteoarthrosis of the left knee;

·osteoarthrosis affecting both hips;

·localised osteoarthrosis of the right knee;

·epilepsy; and

·ischaemic heart disease.

ISSUE

4.      The issue before the Tribunal is whether the non-accepted conditions are service-related.

EVIDENCE

5.      Mr Brown told the Tribunal that he left school at about 16 years and worked on the family farm before joining the RAAF.  He was a non-smoker and non-drinker.  His duties in the RAAF were as a flight rigger which involved maintaining and refuelling aircraft, often in a kneeling or squatting position.  He said that in 1944 he was working on an Avro Anson aircraft when he fell from the wing and landed on his left knee.  He said that although the knee was painful and there was some bruising, he did not seek treatment at the time and was able to continue his duties.  He said the pain lasted about a week and only became swollen some years later.  He said he developed knee problems for a number of years after the incident, and was unable to continue playing cricket in about 1951, although he continued to play football until he injured his spleen in 1953.  In the early 1960s he sought specialist advice after he experienced swelling in his knee, and had a knee replacement in 1997.

6.      In respect of epilepsy Mr Brown stated that he did not have the condition before service.  He said that on the second day of service he experienced his first seizure, and has had irregular episodes since then, but the condition has been controlled through prescribed medication.

7.        In respect of hip pain, Mr Brown stated that in 1977 he fell from a tractor, possibly after an epileptic seizure, and fractured his left pelvis.  He said that since the accident he has had increasing problems with his hips, particularly his left hip, and has difficulty in walking.  Mr Brown explained that when undertaking initial training he drank occasionally at hotels, but only when he was off-duty.  He stated that during service he drank, but not very often, and consumed two or three glasses of beer on most occasions.  He said that he drank only rarely after he sold his farm and his drinking increased while working as a shearer, when he consumed seven or eight glasses of beer at the end of each working day.

8.        Mr Brown told the Tribunal that he was diagnosed with high blood pressure and was prescribed medication which he continues to take.  He said that he developed chest pains in the early 1990s.

9.        In a report dated 29 November 2005 (Exhibit A1) Mr J. Rush, orthopaedic surgeon, stated:

I believe that it is reasonable to state that the patient’s osteoarthritis in the left knee has occurred as a result of the injury he sustained in the fall from the wing of the aircraft in 1944.  There is apparently some evidence to suggest that there was a fractured patella.

…

With regard to the left hip where there is clinical evidence of osteoarthritis, it is reasonable to state that the injury in 1977 has contributed to the development of that osteoarthritis.  This occurred apparently as a result of an epileptic seizure and therefore it could be stated that the epileptic seizure has contributed to the development of the osteoarthritic left hip.  If the epileptic seizure is accepted as being related to his war service, then one would have to state that the osteoarthritis of the left hip is related as well.

10.      In oral evidence Dr Rush said that he had difficulty in obtaining accurate information during the consultation because of Mr Brown’s frail health.  Under cross-examination he agreed that he had not seen X-rays of the knee.  He also said that Mr Brown’s osteoarthritis of the left knee might have originated during the period in which Mr Brown played football, and might also be employment-related, for example when he was a shearer.  Dr Rush also agreed that osteoarthritis of the knee might have been exacerbated by the fall from the tractor in 1977.

11.      In a report dated 25 July 2005 (Exhibit R4) Dr B. Gilligan, general physician, stated that Mr Brown had a longstanding epilepsy condition, probably unexplained, that commenced on 17 February 1944.  He noted that in the medical records there is some suggestion of a fall from a boat about five years before service, resulting in a period of unconsciousness, and concluded that there is no evidence that the epilepsy is related to Mr Brown’s service.

12.      In a report dated 8 April 2004 (T11, pages 72-3) Dr E. Janus, consultant physician, stated that Mr Brown reported that he developed chest pain in the 1990s, and was told he had angina.  He stated:

There are no specific features that would link his ischaemic heart disease, if present, or his peripheral vascular disease with war service.  Specifically, he did not smoke while he was a serviceman.

In a letter dated 14 May 2004 (T11, page 74) Dr Janus said:

The Doppler ultrasound study of both lower limbs shows calcification in both lower limb calf arteries.  Although there is no specific narrowing this does mean that he has arterial disease in his leg arteries and therefore almost certainly in his coronary arteries.  The echocardiogram was normal, showing that there is no major structural damage to the heart but this is still consistent with him having some narrowed arteries.

As I have indicated before, although I think it is highly likely that he has coronary disease there is no proof specifically linking this to his war service.

13.      In a report dated 17 July 2006 (Exhibit R6) Associate Professor S. Hall, rheumatologist, noted that he had not examined Mr Brown because of Mr Brown’s frail health, but had relied on written material contained in his file.  Professor Hall concluded that because the fall from the aircraft in 1944 did not involve medical attention or time off work, simple soft tissue injury may have been caused, rather than a fracture involving the patello-femoral surface.  He noted that the knee became swollen in the 1960s, and concluded:

If one had marked swelling from osteoarthritis of the knee, it would be unlikely that a person would continue to be able to function, albeit with a limited capacity, for a further 30 years.

Professor Hall stated that he had access to X-rays of the knee taken in 1991, 1996 and 1997, and said:

This gentleman’s X-rays show that the patella, while misshapen, has fairly good preservation of the patellofemoral joint space while the femorotibial joint space, related to the articulation between the femur and tibia as opposed to the patella and femur, had profound degenerative change leading up to his knee replacement.

14.      In oral evidence Professor Hall suggested that Mr Brown’s knee problems began with swelling in the 1960s, which was probably a meniscal tear, such as sustained by footballers.  He said that, estimating back from the knee replacement in 1997, clinical onset of osteoarthrosis would be the late 1970s. 

15.      Professor Hall described an intra-articular fracture of the knee as follows (transcript, page 74):

…We are talking about a trauma to the bone where the bone fractures, and where that layer of what they call articular cartilage, …..the cartilage of the joint itself, which is attached to the bone, can become disrupted, and can develop an injury which later on results in that cartilage basically falling apart, because it loses the ability to constantly repair itself…It is like a cap at the end of the bone, and it is that cap which allows one bone to move on another with no friction, and therefore no pain.

He said that a person falling from a height and landing on a knee could have an intra-articular fracture, and that such an injury would be accompanied by symptoms such as severe pain, swelling of the knee and an inability to do any significant activity such as bend or kneel for a period of 8-12 weeks.  He told the Tribunal that the circumstances of Mr Brown continuing normal duties after the fall from the aircraft were not indicative of someone who had suffered an intra-articular fracture.  Professor Hall stated that it would be possible, but highly unlikely, for the symptoms not to be present with an articular fracture of relatively low severity.     

16.      Professor Hall said that in respect of osteoarthritis of the left hip, trauma from the fall from a tractor might have contributed, although he expressed the view that most cases of osteoarthritis of the hip are unexplained and are generally believed to be due to incongruity of joint surfaces.

17.      On 3 August 1995 (Exhibit R1) Dr J. Horton, general practitioner, recorded:

Fell off wing of a plane during war years (?1944) - left knee was a bit sore.  Never really complained to me about his L knee until 14/10/91.

18.      On 11 August 1997 a report from Ballarat Orthopaedics (Exhibit R5, page 5) noted:

L knee - Troubling him badly for last 12/12 - fell off a wing of a plane & landed on it during the War - no trouble after a few days.  Played footy & cricket - used to have to strap it towards end of career - dislocated (?) L knee - cartilage went out a few times - no operation.

19.      In relation to his appeal to the Veterans’ Review Board Mr Brown stated on 26 October 1998 (Exhibit R1, page 59):

I fell off the wing of a plane an Avro Anson after filling it with petrol and fell on my knee.  It was a bit sore for a few days but I never did anything about it as I was on tarmac duty.  But approximately 15yrs it gave me trouble again and I went to a Dr Kudelka in Melb and he gave it an xray and said that I had a broken kneecap and it has mended itself…

20.      In a Report of Medical Officer dated 16 March 1945 (T3, page 7) a medical officer describes Mr Brown’s first epileptic fit on 17 February 1944 at Shepparton while having a shower.  Further incidents were reported by Mr Brown as having occurred in July 1944 and February 1945.  The medical officer notes that Mr Brown was medically assessed in hospital.

LEGISLATIVE FRAMEWORK

21.      Section 120(4) of the Act provides that the standard of proof to be applied is that of reasonable satisfaction.  As the claim was lodged after 1 June 1994, the Tribunal is required to apply s 120B of the Act. 

22.      The applicable Statement of Principles (SoP) for each condition is:

·epilepsy (No. 80 of 1996, No. 4 of 2005 and No. 50 of 2005);

·ischaemic heart disease (No. 54 of 2003 as amended by No.10 of 2004); and

·osteoarthrosis (No. 82 of 2001, No. 32 of 2005).

CAN MR BROWN PURSUE THE CLAIM REGARDING OSTEOARTHROSIS OF THE LEFT KNEE AS IT RELATES TO TRAUMA?

23.      Factor 6(f) of SoP No. 32 of 2005 concerning osteoarthrosis provides:

having a trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis in that joint;

In 2002 the Tribunal heard an application by Mr Brown in relation to osteoarthrosis of the left knee.  In that application Mr Brown told the Tribunal that he injured his left knee in a fall from an aircraft in 1944, and that the pain lasted about a week.  He resumed normal duties after the fall.  In its decision (Re Brown and Repatriation Commission [2002] AATA 641) the Tribunal stated that the applicable SoP was No. 82 of 2001 concerning osteoarthrosis, which revoked No. 42 of 1998 and No. 20 of 1999. Factor 5(h) provided:

suffering a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint;

24.      The Tribunal held that Mr Brown did not suffer trauma to the affected joint as defined in the SoP because the symptoms of pain, tenderness and some altered mobility did not last for at least 10 days.  The Tribunal also found that it could not be satisfied that clinical onset of osteoarthrosis (which it concluded was in 1977), occurred within 25 years of the fall from the aircraft in 1944, so Mr Brown was unable to satisfy the SoP.

25.      In Comcare v Grimes (1994) 33 ALD 548 Wilcox J stated (at 555):

…the AAT, which is master of its own procedures, will not allow a finally determined matter to be re-litigated.

The Tribunal applied this principle in Re Cooper and Repatriation Commission (1995) 38 ALD 164, in which DP Blow stated (at 168):

The applicant's counsel…suggested that the evidence at the hearing of the second application might be different from that of the first, and even that some evidence he could not find for the first hearing might turn up for the second.  Courts have long taken the view that it is more important that there be an end to litigation.

26.      In Re Rana and Military Rehabilitation and Compensation Commission [2005] AATA 1069 the Tribunal referred to Re Quinn and Australian Postal Corporation (1992) 15 AAR 519, in which the Tribunal concluded that it was inappropriate and unreasonable for there to be re-litigation of the same issues before the Tribunal without good reason. In Re Quinn the Tribunal held (at 526):

It would be unjust to applicants to have to face a situation where a decision may be made today and re-litigated tomorrow on the very same facts.  The Tribunal considers that there are strong reasons, both in case law and expressed in public policy, to limit the re-litigation or continual review of substantially similar matters.

In Re Rana the Tribunal stated at [29]:

The High Court in Autodesk Inc and Another v Dyason and Others [No. 2] (1993) 176 CLR 300 at 303, 309, 310 had made it clear that prior decisions were not to be reopened for the purpose of re-agitating arguments already considered or because a party has failed to present the argument in all its aspects or as well as it might have been put. An earlier judgment should not be vacated “merely because it is submitted by the unsuccessful party that, on further argument, the Court would be satisfied that it had reached the wrong conclusion in law” (p 309).

27.      In the current matter the Tribunal is satisfied that Mr Brown’s claim for osteoarthrosis of the left knee arising from a fall from an aircraft in 1944 in relation to trauma is the same as that raised by him and decided by the Tribunal in 2002.  Mr Brown was represented before the Veterans’ Review Board.  No new evidence was produced to the Tribunal.  He had appeal rights in respect of the Tribunal’s decision in 2002 which he did not exercise.  There is a need for finality in proceedings before the Tribunal.  For these reasons the Tribunal decides that the application as it relates to trauma has been litigated and will not be considered again.

IS THERE A LINK BETWEEN MR BROWN’S SERVICE AND OSTEOARTHROSIS OF THE LEFT KNEE AS IT RELATES TO INTRA-ARTICULAR FRACTURE?

28.      There was no dispute between the parties, and the Tribunal accepts, that Mr Brown suffers from osteoarthrosis of the left knee.  The relevant factor in SoP No. 32 of 2005 concerning osteoarthrosis is:

6(c) having an intra-articular fracture of the affected joint before the clinical onset of osteoarthrosis in that joint;

In respect of intra-articular fracture the Tribunal takes into account that in the medical examination report before discharge from the RAAF there is no reference to a knee injury.  The first reference to knee problems is in 1989 in the Progress Notes by the Local Medical Officer (Exhibit R2).  In other documents Mr Brown refers to the fall from the aircraft and his return to work without seeking medical attention.  The Tribunal prefers Professor Hall’s evidence to that from Mr Rush, who did not have access to X-rays of the knee, and who agreed that the osteoarthrosis might have been caused by events other than the fall from the aircraft.  The Tribunal accepts the evidence from Professor Hall that if the fracture occurred as a result of the fall Mr Brown would probably have suffered symptoms of pain, swelling and loss of mobility, and there is little likelihood that he would have been able to continue working as he did.  The Tribunal also accepts that clinical onset of osteoarthrosis was in the 1970s.

29.      For these reasons the Tribunal finds that Mr Brown did not suffer an intra-articular fracture of the left knee as a consequence of the fall from the aircraft in 1944, so he does not satisfy factor 6(c) of the SoP, and there is no causal connection with Mr Brown’s service.

IS THERE A LINK BETWEEN MR BROWN’S SERVICE AND EPILEPSY?

30.      In SoP No. 50 of 2005 concerning epilepsy the relevant factors are:

6(k) having alcohol dependence or alcohol abuse at the time of the clinical onset of epilepsy;

…

(w) having alcohol dependence or alcohol abuse at the time of the clinical worsening of epilepsy;

…

(y) inability to obtain appropriate clinical management for epilepsy.

Paragraph 7 states:

Paragraphs 6(m) to 6(y) apply only to material contribution to, or aggravation of, epilepsy where the person’s epilepsy was suffered or contracted before or during (but not arising out of) the person’s relevant service.

Factors 6(k), (w) and (y) are identical to factors 5(j),(u) and (w) respectively in the interim SoP No. 4 of 2005.

31.      In SoP No. 80 of 1996 concerning epilepsy the relevant factors are:

5(a) suffering from psychoactive substance abuse or dependence involving alcohol for at least the five years immediately before the clinical onset of epilepsy;

…

(k) suffering from psychoactive substance abuse or dependence involving alcohol for at least the five years immediately before the clinical worsening of epilepsy;

…

(u) inability to obtain appropriate clinical management for epilepsy.

Paragraph 6 states:

Paragraphs 5(k) to 5(u) apply only to material contribution to, or aggravation of, epilepsy where the person’s epilepsy was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.

“psychoactive substance abuse or dependence involving alcohol”

means a maladaptive pattern of use of alcohol, that is indicated by either:

(a) continued use of the substance despite knowledge of having a persistent or recurrent social, occupational, psychological or physical problem that is caused or exacerbated by use of the substance; or

(b) recurrent use of the substance when use is physically hazardous (for example, driving while intoxicated),

attracting ICD code 303 or 305.0;

32.      In SoP No. 77 of 1998 concerning alcohol dependence or alcohol abuse the relevant factor is:

5(b) experiencing a severe stressor within the one year immediately before the clinical onset of alcohol dependence or alcohol abuse;

…

“experiencing a severe stressor” means, the person experienced, witnessed or was confronted with, an event or events that involved actual or threat of death or serious injury, or a threat to the person’s or other people’s physical integrity, which event or events might evoke intense fear, helplessness or horror;

Paragraph 2(b) states:

“alcohol dependence” means the presence of a constellation of cognitive, behavioural and physiological symptoms indicating the use of alcohol despite significant alcohol-related problems. The pattern of repeated self administration may result in tolerance, withdrawal and compulsive alcohol use behaviour.

…

“alcohol abuse” means the presence of cognitive, behavioural or physiological symptoms indicating the use of alcohol despite significant alcohol-related problems, however these symptoms have never met the criteria for alcohol dependence. Additionally, signs of tolerance or withdrawal are absent.

33.      The Tribunal takes into account Mr Brown’s evidence that he did not drink often during his service, and that he drank small amounts of beer while off-duty.  His drinking appears to have increased after he sold his farm and worked as a shearer.  There is no material in his service medical or other documents, or medical documents after service, to suggest an alcohol problem during service.  There is no psychiatric evidence about his level of alcohol consumption to support a diagnosis of the psychiatric disorder of alcohol dependence or alcohol abuse.  For these reasons the Tribunal finds that Mr Brown does not satisfy any of the factors in relevant SoPs concerning epilepsy relating to alcohol, or the factors in the SoP for alcohol dependence or alcohol abuse.

34.      The service medical records indicate that Mr Brown’s epilepsy, which first occurred during his service, was treated appropriately by the standards of the time, and that adequate medical facilities were available to him.  Therefore the Tribunal finds that there was not an inability to obtain appropriate clinical management for the condition, so he does not satisfy the relevant SoP and there is no causal connection with Mr Brown’s service.

IS THERE A LINK BETWEEN MR BROWN’S SERVICE AND OSTEOARTHROSIS OF BOTH HIPS?

35.      The relevant factor in SoP No. 32 of 2005 concerning osteoarthrosis is:

6(f) having a trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis in that joint;

The claim is based on trauma arising from a fall from a tractor caused by epilepsy.  The only evidence before the Tribunal is Mr Brown’s recollection that he fell from a tractor in 1977 and injured his left pelvis, and his belief that the fall may have been caused by an epileptic seizure.  In view of the Tribunal’s findings that Mr Brown’s epilepsy is not related to his eligible service, there is no causal connection of osteoarthritis of both hips with Mr Brown’s service.

IS THERE A LINK BETWEEN MR BROWN’S SERVICE AND ISCHAEMIC HEART DISEASE?

36.      The relevant factors in SoP No. 54 of 2003 concerning ischaemic heart disease are:

5(a) the presence of hypertension before the clinical onset of ischaemic heart disease;

…

(h)    an inability to undertake more than a mildly strenuous level of physical activity for at least the seven years immediately before the clinical onset of ischaemic heart disease;

…

The Tribunal takes into account the report from Dr Janus, which refers to narrowing of the arteries, and probable coronary disease, although no major structural damage to the heart was identified.  Clinical notes show that electrocardiogram, blood testing and other procedures do not appear to have confirmed ischaemic heart disease.  Stress tests were not performed.  There was no specialist medical evidence to support a diagnosis.  There was no persuasive evidence to suggest that, even if a diagnosis was made, there was a connection to Mr Brown’s service through an inability to exercise, hypertension relating to alcohol consumption, or through hypertension relating to an inability to exercise.

37.      On the available material the Tribunal concludes that he does not suffer from ischaemic heart disease, so there is no causal connection with Mr Brown’s service.

IS THERE A LINK BETWEEN MR BROWN’S SERVICE AND OSTEOARTROSIS OF BOTH HIPS?

38.      The Tribunal takes into account that Mr Rush made no diagnosis of osteoarthrosis of the right hip.  In relation to the left hip, Mr Rush suggests that the cause may have been the fall from the tractor in 1977 because of epilepsy.  In view of its findings regarding epilepsy, the Tribunal finds that there is no causal connection of osteoarthrosis of the hips with Mr Brown’s service.

DECISION

39.      The Tribunal affirms the decision under review.

I certify that the thirty-nine [39] preceding paragraphs are a true copy of the reasons for the decision of:

G.D. Friedman, Senior Member

(sgd)       Lydia Zozula

Associate

Dates of hearing:  2 November 2006, 25 January 2007 and 30 March 2007

Date of decision:  12 April 2007

Advocate for the applicant:          Mr D. De Marchi

Solicitor for the applicant:            De Marchi & Associates

Advocate for the respondent:       Mr R. Douglass (2 November 2006)

Counsel for the respondent:        Mr G. Purcell (25 January 2007 and 30 March 2007)

Solicitor for the respondent:        Advocacy Section, Department of Veterans’ Affairs