Brownlow and Repatriation Commission

[2000] AATA 894

DECISION AND REASONS FOR DECISION [2000] AATA 894

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N1999/1544

VETERANS' APPEALS  DIVISION       )          
           Re      Cecil Ernest BROWNLOW         
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mrs M T Lewis, Senior Member   

Date12 October 2000

PlaceSydney

Decision      The Tribunal affirms the decision of the Repatriation Commission dated 17 February 1999 that refused the claim of Cecil Ernest Brownlow in respect of osteoarthrosis of the left hip.             

……………………..
  M T Lewis
  Senior Member
CATCHWORDS
VETERANS' AFFAIRS – entitlement – whether osteoarthrosis of left hip war-caused – Statement of Principles applied  – whether suffered trauma to joint before the clinical onset of osteoarthrosis – whether satisfied definition of "trauma to joint" – whether experienced acute symptoms and signs of pain and tenderness to left hip – whether hypothesis reasonable

Veterans' Entitlements Act 1986 – ss 120(1), 120(3), 120(A)
Statement of Principles – Instrument No. 41 of 1998, Instrument No.19 of 1999

Repatriation Commission v Deledio (1998) 83 FCR 82
East v Repatriation Commission (1987) 16 FCR 517
Harris v Repatriation Commission [2000] FCA 873

REASONS FOR DECISION

12 October 2000    Mrs M T Lewis, Senior Member               

1. This is a review of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 17 February 1999 that refused the claim of Cecil Ernest Brownlow ("the Applicant") in respect of his claim for osteoarthrosis of the left hip.  That decision was reviewed by the Veterans' Review Board on 3 August 1999 and affirmed.  The Applicant then lodged an application for review by this Tribunal.  All applications for review were in time.

2. The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975. The Applicant gave oral evidence and provided a written statement dated 9 December 1999 (exhibit A) as evidence before the Tribunal. The following documents were tendered as evidence by the Respondent –

• Report of Dr P E Giblin, orthopaedic surgeon, dated 13 July 2000 (exhibit 1);

• Letter of instruction from Respondent to Dr Giblin dated 21 June 2000  (exhibit 2);

• Report of Professor Philip Sambrook, rheumatologist, dated 8 March 2000, and letter of instruction from Respondent to Professor Sambrook dated 28 February 2000 (exhibit 3);

• Report of Professor Sambrook dated 14 March 1997 (exhibit 4).

1. The Applicant enlisted in the RAAF on 25 June 1942 and was discharged on 6 May 1946. His service included overseas service in Merauke (New Guinea), and therefore he had operational service. This matter falls for consideration pursuant to s120(1) and s120(3) of the Veterans' Entitlements Act 1986 ("the Act"), and as the claim was lodged after 1 June 1994 the Tribunal must determine this matter pursuant to s120A of the Act on the basis of a relevant Statement of Principles, which in this case is Instrument No. 41 of 1998, as amended by Instrument No.19 of 1999. The Applicant relied on factor 5(j) of Instrument No. 41 of 1998 which states –

   5.        The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis or death from osteoarthrosis with the circumstances of a person's relevant service are:
   …
   (j)        suffering a trauma to a joint before the clinical onset of osteoarthrosis in that joint;

The phrase "trauma to a joint" is defined in Instrument No.19 of 1999 to mean –

A discrete joint injury that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint.  These acute 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, where that medical intervention involves either:

(a)immobilisation of the joint or limb by splinting, sling or similar external agents;  or

(b)       injection of corticosteriods or local anaesthetics into that joint; or
(c)       aspiration of that joint;  or
(d)       surgery to that joint;

1. The Applicant was born on 16 February 1923.  The uncontroverted evidence is that while on service in Merauke the Applicant was thrown from a moving truck, some 12 to 15 feet.  The truck took a corner too quickly while leaving the harbour area at the time of a "red alert".  It turned over and the Applicant and other servicemen travelling on the vehicle were thrown out.  He could not recall being thrown out but recalls being on his back on a log, with his feet in mud.  He recalled being asked whether he was alright, and subsequently he rose to his feet and got back into the truck as quickly as possible. 

2. When he arrived at the base he consulted a doctor who examined his back and lower body.  He was told that no bones were broken and he was prescribed aspirin.  He then returned to his normal duties without any time off.  He recalled that he suffered bruising to his back and buttocks for about three weeks.  He recalled having pain in his back, and that this was his most significant symptom. 

3. The Applicant was deployed as an aircraft electrician.  In the course of his work he was required to climb into aircraft.  He said that after this accident he needed assistance to lift his left leg high enough to climb into the aircraft, but he had no difficulty with his right leg.  He recalled feeling a localised twinge in his left hip and thigh area when he lifted his left leg to climb into the aircraft.  He did not think that it was a radiating pain.  On careful cross-examination it was quite clear that the Applicant did not admit to experiencing acute pain and tenderness in his hip at any time during the days or weeks following the accident. 

4. The Applicant said that prior to his enlistment he had been a keen fast bowler, but after the accident he was significantly inhibited as a cricketer because of his limited ability to run or place his weight on his left leg.  Likewise he was quite restricted in running while playing soccer during the course of his service after the accident.  He noted that from the time of the accident he dragged his left leg, and indeed when he was playing cricket and later bowls for many years following his discharge, he had to have special metal protection on his left shoe because he dragged his left leg.  

5. He noted that after service his main symptom was that of back pain.  Apart from his difficulty in running and weightbearing on his left leg he did not recall pain specifically in his left hip for some time.  However, because of his back condition he had difficulty walking up ladders, and in his work as a self-employed electrical contractor he used his apprentices and labourers to do most of the ladder work. 

6. He said that from the 1950s he frequently complained to his local doctor about pain in his back and hip and was diagnosed as having fibrositis.  However he did not have X-rays taken until 1984, when as a result he was diagnosed as having degenerative disc disease of the lumbar spine and osteoarthritis of the left hip.  The Applicant said that he ceased work at the age of 60 years because of his hip and back condition, and in 1986 he had a total left hip replacement. 

7. In his oral evidence the Applicant said that he had not been involved in any other accidents other than when he was thrown out of the truck.  However, in cross-examination, when reminded of having suffered concussion in 1945, he recalled that this happened as a result of a sporting accident.  When reminded of a fracture of a toe on his left foot in November 1943, he recalled having stubbed his toe on a tent peg. 

8. When examined by Professor Sambrook on 13 March 1997 regarding the claim for his back condition, the Applicant provided details of the truck accident and gave a history of having landed on his spine, that he developed back pain which persisted for two to three weeks, and that he had "been troubled by back pain since that time".  Professor Sambrook then noted (exhibit 4) –

   With regard to his left hip he thought this might [be] related to multiple falls sustained, especially when getting off aircraft as well as the generally physically demanding conditions of service as a mechanical fitter.  He could [not] recall a more specific episode of injury to the left tip (sic) however, unlike in the lumbar spine.

When this evidence was put to the Applicant in cross-examination, he said that he had difficulty remembering precisely what happened in relation to his hip.  The Applicant's statement (exhibit A) was provided to Professor Sambrook prior to the hearing, and he then wrote a supplementary report (exhibit 3).  The Tribunal finds that report not to be helpful in taking the matter any further. 

1. A report was also provided by Dr Giblin, orthopaedic surgeon (exhibit 1) who examined the Applicant on 13 July 2000.  The history taken by Dr Giblin is consistent with the Applicant's history to the Tribunal.  Dr Giblin opined, on the basis of the history provided, that the injury sustained by the Applicant in the truck accident did not relate to his left hip disability.  He noted that the Applicant made no specific mention of injuring his hips at the time of the accident, other than general bruising, which Dr Giblin considered would probably have been associated with a significant soft tissue injury to the back.  He also said that from a clinical perspective, an injury to a hip is usually not accompanied by bruising.  He did not consider that the Applicant satisfied the criteria in the relevant Statements of Principles. 
   consideration of evidence and findings of fact

2. As the Tribunal is satisfied on the balance of probabilities that the Applicant suffers from osteoarthrosis of the left hip, the next step is to consider whether an hypothesis has been raised connecting the injury with the circumstances of the Applicant's service.  In applying the decision of the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 the Tribunal is required to look at all the material to see if it points to a relevant hypothesis to connect the Veteran's condition with service; it is not enough if the relevant hypothesis is left open: East v Repatriation Commission (1987) 16 FCR 517. This is to be done in the context of the first step set out in Deledio (supra).  Those steps, which the Tribunal is required to follow, as set out in Deledio (at 97-98) are:

   1.        The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

   2.        If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

   3.        If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by (2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.

   4.        The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury.  If not so satisfied, the claim must succeed.  If the Tribunal is so satisfied, the claim must fail.  It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.  In so doing, no question of onus of proof or the application of any presumption will be involved. (Tribunal's emphasis)

3. Taking into account the case law the Tribunal finds that an hypothesis has been raised on behalf of the Applicant that being he sustained an injury to his left hip as well as to his lumbar spine as a result of the truck accident on service and that injury has caused the later development of osteoarthrosis of the left hip.  The Tribunal must now consider whether that hypothesis is reasonable in accordance with step 3 of the Deledio test. If the hypothesis is consistent with the "template" in the Statements of Principles, the hypothesis is reasonable. 

4. It was submitted for the Applicant that it was open to the Tribunal to find that the Applicant suffered, in the words of the Statement of Principles, "acute symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint … for a period of at least seven days" following the truck accident even though there was no specific evidence to that effect before the Tribunal. 

5. It was also acknowledged by both parties that the Applicant had difficulty recalling the relevant incident. It was submitted for the Applicant, that in effect the Tribunal could infer from the difficulties the Applicant has had with his left leg subsequent to the accident and ever since that time, that he did experience "trauma to the joint" as defined in the Statements of Principles even though he does not now recall it. 

6. It was submitted for the Respondent that the Applicant does not meet the provisions of the Statements of Principles.  The Tribunal was referred to a decision of the Federal Court in Harris v Repatriation Commission [2000] FCA 873 in which Finn J. said –

   The requirement, then, that there be "signs and symptoms" of each of the three stipulated matters necessitates that there be an indication of, or phenomenon evidencing, each: see eg definition II of "sign" and that of "symptom" in the Shorter Oxford English Dictionary ("SOED").  Moreover, given the requirement that the signs and symptoms must be "acute" – ie that they be sharp or act "keenly on the senses": SOED, "acute"; there would need to be significant manifestations, variously, of pain, of tenderness and of altered mobility etc.  As the respondent contends, the definition contemplates a significant injury.
   ….
   Bearing in mind that the contentious SoP factor in the present case was whether there were (inter alia) "acute signs and symptoms of altered mobility etc", Dr Stone's evidence was not consistent with, nor did it point to, the existence of this factor.  Altered mobility of which a person is unaware (even given the stresses and preoccupations associated with a patrol) cannot be said to be suggestive of an "acute sign or symptom" of that altered mobility.  Dr Stone's evidence apart, all that there was to go on in the material before the Tribunal were Mr Harris' inability to recollect whether he suffered altered mobility and his actions immediately after the incident which were not themselves suggestive of any such altered mobility.

7. The Tribunal finds that there is no evidence that the Applicant experienced acute signs and symptoms of pain and tenderness in the left hip within 24 hours of the injury being sustained, and nor is there any evidence that even points to such an occurrence. The hypothesis does not fit the "template" of the Statements of Principles in this regard, and therefore it cannot be found that a reasonable hypothesis has been raised pursuant to s120(3) of the Act. Therefore the claim must fail.

8. The Tribunal will therefore affirm the decision under review.

   I certify that the 19 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member

   Signed:         .....................................................................................
     Associate

   Date/s of Hearing  10 October 2000
   Date of Decision  12 October 2000
   Counsel for the Applicant        N/A
   Solicitor for the Applicant         R.Sherlock, Legal Aid Commission
   Counsel for the Respondent    N/A
   Solicitor for the Respondent    R.Wallis, Dept. of Veterans' Affairs