Brown and Repatriation Commission - [2002] AATA 641

DECISION AND REASONS FOR DECISION [2002] AATA 641

ADMINISTRATIVE APPEALS TRIBUNAL )

) No V01/880

VETERANS APPEALS DIVISION        )
           Re      MERVYN THOMAS BROWN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date26 July 2002
PlaceMelbourne

Decision      The decision under review is affirmed.
  .............Sgd. Mr J. Handley ................
  Senior Member
CATCHWORDS
Veterans' Entitlements - applicant fell in 1944 - whether clinical onset within 25 years of accident whether definition of trauma of (affected) joint satisfied - decision affirmed.
Statement of Principle Instrument No. 82 of 2001

REASONS FOR DECISION

26 July 2002 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veteran's Review Board ("VRB") made on 23 May 2001. The VRB then decided to affirm a decision made by the Repatriation Commission on 7 July 2000, which refused his claim for acceptance of localised osteoarthrosis of the left knee.
The applicant presently has sensori neural hearing loss of the left ear and bilateral tinnitus, which is accepted as war-caused. The rejected disabilities are osteoarthrosis of both hips and both knees and ischaemic heart disease.
This application only concerns a decision made with respect to the rejection of the claim for localised osteoarthrosis of the left knee.
Mr Brown is presently 76 years of age, born on 6 January 1926. At all relevant times, Mr Brown was a member of the Royal Australian Air Force and served within Australia only. Accordingly, his application is to be determined upon the balance of probabilities.
The application for acceptance of localised osteoarthrosis of the left knee was made on 1 June 2000. At that date, Statement of Principle No. 42 of 1998 was in force. It was subsequently amended by Instrument No. 20 of 1999, only with respect (relevantly) to the definition of "trauma to a joint". Instrument No. 82 of 2001 was issued on 9 October 2001 and it revoked both of the above instruments.
Having regard to the circumstances of the applicants alleged injury (refer later), the applicable factor in Instrument No. 42 of 1998 is 5(h) namely-
"suffering a trauma to a joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint; or …….."

"Trauma to a joint" is defined at paragraph 8 of that Instrument and it reads-

""trauma to a joint" means a discrete joint injury 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 that joint. These acute symptoms and signs must last for a period of at least 10 days immediately after the injury occurs;".

Instrument No. 20 of 1999 amended the above definition of "trauma to a joint" by deleting the words "acute" & "swelling" as it previously appeared. In lieu of the words "immediately after the injury occurs", as those words appear after the words "10 days", the words "following their onset" appears. Additionally, the latter definition refers specifically to medical intervention and describes the type of intervention.
Instrument No. 82 of 2001 has the same factor (5)(h) except that it refers to "suffering a trauma to the affected joint". The definition of "trauma to the affected joint" is identical to Instrument No. 20 of 1999, save that it refers to "the affected joint".
Relevantly, the above Instruments have the same factor, namely trauma to a (affected) joint within 25 years immediately before the clinical onset of osteoarthrosis in the joint. The relevant definitions (for reasons which will appear later) apply to a discrete joint injury causing the development within 24 hours of the injury being sustained of symptoms and signs of pain and tenderness and either altered mobility or range of movement in the joint. The symptoms must then last for a period of at least 10 days following onset.
The Evidence
Mr Brown gave his evidence by telephone. The application was listed for hearing in the Horsham Circuit, however, Mr Brown rang a few days prior to the hearing date to indicate that his wife was ill and he could not leave his home in Birchip.
Mr Brown said that he suffered a left knee injury when he slipped from an aircraft in Ballarat in 1944. He said he was refuelling the aircraft, whist he was standing on its wing. He said he slipped from the wing and fell to the ground landing on his left knee. He said that the knee "hurt", but it "came good".
In 1964, Mr Brown attended Mr Kudelka, a specialist in Collins Street Melbourne. He said that Mr Kudelka advised him that he must have "fractured his kneecap" but that it had "mended itself".
Thereafter, the knee continued to "play up" and referral by a local Doctor for x-ray did not demonstrate any abnormality.
Eventually Mr Brown said that he became "sick of it" and demanded that his Doctors refer him for athroscope. Eventually, this did occur and Mr Kierce performed knee surgery in Ballarat in 1997.
In cross-examination, Mr Brown said that he fell forwards from the wing of the aircraft and landed onto the tarmac on his left knee. He could not recall whether he struck any part of his body or injured any other part of his body.
After Mr Brown got to his feet, he said that he resumed normal duties. He said he "battled along". He said that the pain that he then suffered "did not affect me that much - I put on a brave front". Mr Brown recalled that he could not walk "properly", but was not aware whether any of his supervisors or superiors noticed that he was limping.
Mr Brown said that the pain in his knee lasted on and off for about one week. Within that period he also limped. Thereafter, he said he walked "properly" and most of the pain had then "gone away".
Mr Brown was then taken to some documents within the papers lodged by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975. These documents included a reference in an application for service pension for left hip injury following a fall from the wing of a aircraft. Mr Brown said that he did not ever injure his left hip.
With respect to the knee injury, Mr Brown said that he did not ever report it, nor did he attend a regimental aid post or medical orderly. He said he did consume some aspro medication, which he purchased himself. Eventually, Mr Brown was boarded out of the RAAF because of epilepsy. It was noted from the discharge medical examination that there was no complaint then made concerning the left knee.
In about 1977, the applicant suffered another left knee injury when he fell from a tractor on his farm. He was eventually referred to Dr Houghton, who provided a medical report indicating that in his opinion the osteoarthrosis the applicant presently suffers is referable to the tractor incident in 1977.
In answer to some questions from me, Mr Brown said that during the period of one week when he had pain, that his knee would "catch" and it was "very sore". He said it "took a bit of putting up with". He did consume aspro tablets and the knee was not strapped. He had no time away from any of his duties and was able to continue to climb onto the wings of aeroplanes. He said his knee was tender but he was able to kneel on it, but with some difficulty. Within the week that he had pain he also had some swelling, which he said did not ever go away.
Mr Brown recalled that he became pain free after two weeks.
Conclusion & Reasons For Decision
I am satisfied and find as a fact that the applicant did fall from the wing of an aeroplane at Ballarat in 1944. I am satisfied also and find as a fact that the applicant fell onto his left knee. Additionally, I am satisfied that he suffers osteoarthrosis of his left knee.
In order, however, to connect the injury with service the applicant must on the balance of probabilities satisfy a factor within a Statement of Principles. The applicable factor is 5(h), namely, suffering a trauma to the "affected (joint) within 25 years before the clinical onset of the osteoarthrosis".
Irrespective of when the clinical onset of the osteoarthrosis occurred (Dr Houghton was of the opinion that it was in 1977 when he fell from a tractor on his farm), the applicant must satisfy the definition of "trauma to the (affected) joint".
I am satisfied on the evidence heard from Mr Brown that he did suffer symptoms and signs of pain and tenderness and some altered mobility, however, I cannot be satisfied on the evidence that these symptoms lasted for a period of at least 10 days.
The definitions of "trauma to a (affected) joint" vary slightly as to whether the symptoms and signs of pain need to be "acute" and whether there was "swelling". What, however, remains constant between all of the definitions is the need to demonstrate the presence of symptoms for at least 10 days.
Whilst I acknowledge that it is now 57 years since the applicant fell from the wing of an aeroplane, I cannot be satisfied on the balance of probabilities that the symptoms referred to in the definitions as above did exist for at least 10 days. I could not be satisfied in any event - having read the medical reports of Dr Houghton - that the clinical onset of osteoarthrosis occurred within 25 years of 1944, namely 1969. On the reports filed by Dr Houghton, the clinical onset occurred in 1977.
In all of the circumstances, I am obliged to apply the Statements of Principles and find for the above reasons that on the balance of probabilities the applicant has been unable to satisfy factor 5(h).
In the circumstances, the decision under review must be affirmed.

I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J. Handley, Senior Member
Signed:         Katherine Navarro....................................
  Associate
Date/s of Hearing  5 July 2002
Date of Decision  26 July 2002
Counsel for the Applicant        Self represented
Solicitor for the Applicant         N/a
Counsel for the Respondent    Mr Robert Douglass
Solicitor for the Respondent    Department of Veterans' Affairs