Clarke and Repatriation Commission

[2011] AATA 901

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2011] AATA 901

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2010/2856

VETERANS’ AFFAIRS DIVISION		)
Re		EDWARD CLARKE

Applicant

And  REPATRIATION COMMISSION

Respondent

DECISION

Tribunal  Professor RM Creyke, Senior Member

Date 16 December 2011

Place Moruya, NSW; decision delivered in Canberra

Decision  The decision under review is affirmed

….......................[sgd]................................

Professor RM Creyke, Senior Member 

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – eligible defence service – whether osteoarthrosis both ankles and knees defence-caused – clinical onset– Statement of Principles, Instrument No 12 of 2010, Osteoarthritis – Instrument No 32 of 2005, Osteoarthrosis

Veterans’ Entitlements Act 1986 (Cth) ss 5D, 5Q, 68, 70, 120, 120B.

Lees v Repatriation Commission (2002) 125 FCR 331

Repatriation Commission v Cornelius [2002] FCA 750

Repatriation Commission v Gorton (2001) 65 ALD 609

Repatriation Commission v Law (1980) 31 ALR 140

REASONS FOR DECISION

16 December 2011              Professor RM Creyke, Senior Member

1.      Mr Edward Clarke, who is 77 years of age, served in the Royal Australian Air Force for two periods: from 12 November 1951 to 11 November 1957; and from 12 December 1958 to 1 March 1978.  The period from 7 December 1972 to 1 March 1978 was eligible defence service under the Veterans’ Entitlements Act 1986 (Cth) (Act) section 68(1).

2.      On 23 September 2008, Mr Clarke applied for pension in respect of a number of conditions including osteoarthrosis of both ankles and both knees. On 27 April 2009, the Repatriation Commission (Commission) rejected the claim.

3.      On review on 11 May 2010, the Veterans’ Review Board affirmed the decision of the Commission.

4.      On 12 July 2010, Mr Clarke sought further review by the Tribunal.  The matter was heard in Moruya, New South Wales on 29 November 2011. The decision was delivered in Canberra, ACT.

Background

5.      Mr Clarke said that during his service in the period 1958 and 1978, between August 1972 and February 1973, he was posted to France as part of a team to investigate whether radar systems made in France would be suitable for Sydney airport. For the most part he was based at the premises of the Australian Air Attaché in Paris.

6.      In December 1972 Mr Clarke, who was a Warrant Officer, and two other non-commissioned officers, travelled to the city of Brest to view the factory where the radar system was produced.

7.      On return from Brest, Mr Clarke was travelling on a small 2 engine plane, which he observed as being overloaded. The weather was cloudy, cold, and windy, and there was sleet.  During take-off, the plane had reached 200 km/hour when it hit a wet patch, slewed off the runway, ploughed through a water canal or trench, and ended up in an adjacent field some 100 yards from the tarmac.  The incident caused Mr Clarke and other passengers to be flung around.

8.      Mr Clarke was strapped in, but he was thrown forward and ended up with his knees hard up against the seat in front of him, and his ankles under the seat. The passengers were taken off the plane and returned to Paris in a single engine aircraft. He said he felt numb and sore but said he knew he had not broken anything. As he arrived back in Paris quite late that night, he did not seek medical treatment.   He also did not seek medical assistance the next day, as he said the procedure to obtain treatment was cumbersome.  The member had to report to the Air Attaché, located in a different building, who then organised a doctor. 

9.      Mr Clarke said that as he knew he was returning to Australia shortly thereafter, he could walk, and his work in Paris involved desk-work, he decided not to seek medical attention in Paris. He said he knew that if he sought medical attention this would prolong his stay in France, and he wanted to return home as scheduled.  He said the stiffness and soreness lasted about two weeks.

10.     On 5 February 1973 he returned to Australia and saw his RAAF Defence Medical Officer (DMO) at Russell offices, Canberra for a full medical check-up.  Mr Clarke admitted that he had not sought the appointment in order to address the injuries he sustained in France, but he said he would have told the DMO about the incident during the examination.  However, his departmental clinical record contains no entry with respect to the injury at the relevant time. The records indicate that Mr Clarke regularly reported other, relatively minor ailments. He also said he would also have mentioned it to his treating practitioner, Dr Chris Fenn, who has been his GP since 1976.  However, the earliest medical records provided to the Tribunal by the practice started in 1999.  This means that the Tribunal is unable to confirm Mr Clarke’s assertion.

Other evidence

11.     Mr Clarke said he was advised that he had arthritis in the 1970s. There was also evidence that Mr Clarke was injured in a motor vehicle accident in 1956. He was a passenger in the car which hit a tree. He and the driver were taken to hospital where he spent the night. Mr Clarke suffered abrasions on both knees which had hit the dashboard. He submitted an injury report concerning the incident days later on 26 March 1956, and was treated for it on the same day. He said on that occasion he hobbled for two weeks before the knees settled down. He also said that after this time, his knees would ache from time to time and he would use rubs on them to help alleviate the pain.

12.      During service Mr Clarke was involved in multiple sports including Australian Rules football, rugby union, swimming, tennis, cricket, water polo and basketball. Sporting injuries feature in the following material.

13.     Mr Clarke lodged a claim, dated 11 September 2008, for an increase in his disability pension. The claim was for osteoarthritis in both ankles and knees. The part of the claim relating to his ankles records the cause as: ‘Playing organised football organised by Commanding Officers, stress on my joints, doing my allocated jobs in the service’.  His first awareness of signs and symptoms of the disability is recorded as ‘approx 60’s’.

14.     The claim for osteoarthritis of both knees, also lists ‘playing organised sport when in the service, bending, lifting, squatting, unloading all part of my job while in the service’. The date he first became aware of the symptoms is listed as ‘approx 1976’.  The medical diagnosis for both conditions, completed by Dr Fenn, states that Dr Fenn was first consulted about the condition in 1980.

15.     A Department of Veterans’ Affairs Medical Report – Trauma to a Joint Osteoarthrosis, dated 9 October 2008, records that Mr Clarke ‘injured ankles’ in August 1959, playing ‘football in RAAF’. He was on crutches and the record notes ‘deterioration since’. Treatment was listed as ‘R[est], I[ce], C[ompression], E[levation] and crutches’. 

16.     Another Claimant Report – Trauma to a Joint: Osteoarthrosis of knees and ankles, completed on 27 October 2008, states ‘My ankles were damaged in 1959 during a game of service arranged football.  My knees started hurting when I put on weight approx. 1968’. The claim also detailed the injuries to his ankles and knees as having occurred ‘At a football game at Rathmines (inter service) in 1959’.  The claim records:

Jumped for a ball and when I landed my ankles were badly sprained.  I was then put on crutches for several weeks.  My knees over time due to playing inter service sport doing parades etc became a problem and caused me pain. Ankles – pain and a lot of swelling.  Knees – increasing amounts of pain and discomfort over time.

The claim also said: ‘Ankles – they never fully recovered always caused some amount of pain. Knees, they have continued to deteriorate’.

17.     A Department of Veterans’ Affairs Claimant Report – Trauma to a Joint, dated 21 January 2009, refers to symptoms of osteoarthrosis of the knees and ankles first being noticed in ‘1975’.  The injury was said to have occurred in 1968 when Mr Clarke ‘Twisted both ankles at sport in RAAF (representing the base)’. Treatment was ‘strapping, crutches’.

18.     When asked at the hearing why he had not mentioned the incident in France for the purposes of his medical on discharge on 4 November 1957 [indecipherable], Mr Clarke said, ‘I was advised by staff that I did not need to record every injury I sustained on service, since if I suffered an injury or disease later I could always apply then for pension’. He said it was not until 1980 that he discovered that this advice was incorrect.  The medical discharge form, in ‘Part I Statement by Member’ states: ‘The member is to be warned that the answers given by him may be of great importance if he should claim a pension later’.

19.     Mr Clarke’s claim to the Repatriation Commission for an increase in his disability pension, dated 23 August 2008, was for several conditions including osteoarthritis of his ankles and knees. The claim indicated, however, that the cause of that damage to his ankles and knees was then listed as due to playing sport in 1959.

20.     Equally,  at his application to the Veterans’ Review Board (VRB) for review of the rejection of his claim by the Commission, dated 14 May 2009, Mr Clarke stated: ‘My damage to my knees and ankles also happened while I was in the service, partly due to my playing inter service sport with the approval of my senior officers’.

21.     On 19 May 2010, the VRB found that since the claimed causes of Mr Clarke’s osteoarthritis, namely, his motor vehicle accident in 1956, and trauma from a sustained period of lifting heavy loads during a ten year period prior to the clinical onset of the claimed condition, occurred outside his period of eligible service, the rejection of the claim was affirmed.

Medical evidence

22.     During a full medical check-up for re-engagement in the Army of Mr Clarke in 1975, there is no reference to disability to either knees or ankles. Nor was there evidence about the incident in France.

23.     Dr Anthony Smith, orthopaedic surgeon, provided a report on Mr Clarke’s conditions on 30 August 2011. He recorded the history from Mr Clarke and said of the event in Brest, that Mr Clarke reported that he felt all right after a few weeks.

24.     Dr Smith also noted that Mr Clarke claims that ‘he has had soreness, discomfort and symptoms from time to time in the knee and right ankle ever since’.  As to which Dr Smith noted: ‘He has a rather vague history about that’. Mr Clarke had X-rays of the left knee and both ankles dated 8 January 2007, reported on by a Dr Grey. The X-rays were not able to be provided to the Tribunal.

25.     Dr Smith diagnosed bilateral osteoarthritis in both knees, bilateral osteoarthritis of the ankles; of moderate severity to the knees and of about equal severity in the ankles. In his opinion, Dr Smith concluded that the arthritis in both Mr Clarke’s knees and ankles was constitutional. As he said ‘We all get arthritis.  It is part of the normal ageing process’.

26.     In his response to the question about diagnosis Dr Smith stated: ‘There is no relationship between the knee arthritis and the right ankle arthritis present bilaterally and his military service and the accident in France in December 1972’.  

Other evidence

27.     Mr Clarke provided evidence that he is now not able to walk very far, perhaps 20 metres.  He cannot kneel or squat. There is pain and swelling in the right knee and the right ankle, restricting his range of movement.  He cannot walk without experiencing ankle pain. The symptoms get worse in cold weather. He has been having the problems for a while.  Mr Clarke said he built his current house about five years ago.  It is on one level and has ramps throughout. Mr Clarke said he had an initial X-ray in the 1980s, as, he thought, was required by his general practitioner, Dr Fenn.

Legislation

28.     The relevant legislation is the Veterans’ Entitlements Act 1986 (Cth) (Act). Section 70 provides for compensation for a member of the forces who has been incapacitated by a defence-caused disease. To be eligible the defence-caused disease must have ‘resulted from an occurrence’ (section 70(4)(a)), or was a disease which ‘arose out of, or was attributable to, any defence service’ (section 70(5)(a)

29.     An ‘occurrence’ is an ‘event ’, ‘incident’ or ‘mishap’ which does not occur in the ordinary course of life.[1] The aircraft accident in which Mr Clarke was involved in France in 1972 would qualify as an ‘occurrence’ provided the subsequent arthritis in his knees and ankles can be related to that incident.

[1] Repatriation Commission v Law (1980) 31 ALR 140 at 149 (Bowen CJ, Brennan and Lockhart JJ). The views of the Full Court were not disagreed with by the High Court on appeal: Repatriation Commission v Law (1981) 147 CLR 635.

30.      Alternatively, if the incapacity was due to:

‘…an accident that would not have occurred or to a disease that would not have been contracted but for … defence service … or but for changes in the member’s environment consequent upon … such service …’

·     if the incapacity of the member was due to an accident, that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident, and the injury so suffered shall be deemed to be a defence-caused injury (section 70(7)(a)); or

·      if the incapacity was due to a disease – the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a defence-caused disease contracted by the member.(section 70(7)(b)).

31.     Equally, if there is a connection between Mr Clarke’s knee and ankle conditions and the aeroplane incident, his incapacity will be deemed to have arisen out of or be due to the aeroplane accident or the change in Mr Clarke’s environment from service in Australia to service in France.

32.     The relevant standard of proof relating to Mr Clarke’s eligible service is the reasonable satisfaction or balance of probabilities standard in s 120(4) of the Act. Section 120(4) is affected by section 120B of the Act which imposes the requirement that to meet the reasonable satisfaction standard requires fitting the claim into factors contained in Statements of Principles.

33.     The relevant Statements of Principles are:

·Instrument No 14 of 2010 - Osteoarthritis, and

·Instrument No 32 of 2005 – Osteoarthrosis.

34.     It was accepted that the only relevant factor in Instrument No 14 of 2010 was factor 6(f), ‘having trauma to the affected joint within the 25 years before the clinical onset of osteoarthritis in that joint’.

35.     For the purpose of Instrument No 14 of 2010, ‘trauma to the affected joint’ is defined as meaning:

… a discrete event involving the application of significant physical force to or through the affected joint, that causes damage to the joint and the development, within 24 hours of the event occurring, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These 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 and that medical intervention involves either:

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

(b) injection of corticosteroids or local anaesthetics into that joint; or

(c)  surgery to that joint.

36.     Equally the only relevant factor in Instrument No 32 of 2005 is factor 6(f): ‘Having a trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis in that joint’. In effect, the relevant factor is the same in both Statements of Principle.

37.     For the purpose of Instrument No 32 of 2005, ‘trauma to the affected joint’ is defined as meaning:

… a discrete joint injury that causes the development, within twenty-four hours of the injury being sustained of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint.  These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred and that medical intervention involves either:

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

(b) injection of corticosteroids or local anaesthetics into that joint; or

(c)  surgery to that joint.

35.      The definition of ‘trauma to the affected joint’ in Instrument No 14 of 2010 is the same as in No 32 of 2005 except that the period the symptoms and signs must last is only 7, not ten, days after the trauma occurred. As the definition in the 2010 Statements of Principles is the more favourable, the Tribunal is entitled to take that definition into account as was accepted by those involved in the hearing.[2]

[2] Repatriation Commission v Gorton (2001) 65 ALD 609 at 620 (Heerey J).

Issues

38.     The issues are:

·Whether the injuries to Mr Clarke’s ankles are due to his defence service;

·Whether the injuries to Mr Clarke’s knees are due to his defence service.

Consideration

39.     There is no issue that Mr Clarke had eligible defence service. His service in the RAAF between 1958 and 1978 included overseas defence service for six months in France in 1972 to 1973. That service in France qualifies as eligible defence service.[3]

[3] Veterans’ Entitlements Act 1986 (Cth) ss 5Q(1A), 68(1).

40.     Nor is there any issue that Mr Clarke has a ‘disease’.  A ‘disease’ is defined in section 5D(1) of the Act:

‘disease’ means:

(a)  any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development). …

41.     There is no issue that the arthritis in Mr Clarke’s knees is a ‘physical ailment, disorder, defect or morbid condition’ and therefore qualifies as a ‘disease’.  The Repatriation Commission concedes that Mr Clarke suffers from arthritis in both ankles and both knees and that these conditions amount to diseases.  The Tribunal so finds.

42.      The clinical onset of his disease is required to be identified for the purposes of both Statements of Principles. The ‘clinical onset’ occurs when there was the first appearance of the signs and symptoms of the disease sufficient to have enabled diagnosis of the condition(s).[4]

[4] Repatriation Commission v Cornelius [2002] FCA 750 at [26] (Branson J); Lees v Repatriation Commission (2002) 125 FCR 331 at 335 – 337 (Heerey, Moore and Kiefel JJ).

43.     In the claim before the VRB, the date of clinical onset of injury to his ankles was listed as 1980, from playing football, and for his knees was 1956, the date of his vehicle accident.  In the claim dated 23 September 2008, Dr Fenn certified that he was first consulted about both conditions in 1980.  However, the claim records that Mr Clarke first noted signs and symptoms of his ankle injuries in the 1960s and in his knees in ‘approximately 1976’.

44.     The claim before the Tribunal is for an incident which occurred in December 1972, a date which does not correspond with either of the dates supplied initially for the purpose of the claim. This issue illustrates a recurring problem with this application.

45.     However, assuming that the date the injuries first occurred was in 1972, the requirement in factor 6(f) that the trauma to the affected joint occurred ‘within the 25 years before the clinical onset of osteoarthritis in that joint’ is met.  If 1980 is taken as the date of clinical diagnosis in accordance with the certification of Dr Fenn, the trauma occurred within the required time span.

46.     Mr Clarke claimed that he suffered trauma to his ankles and his knees arising from the accident involving the aircraft in December 1972 and that he felt numb and sore, but knew he had not broken anything.  As a consequence he did not seek medical attention for the condition. He also gave evidence that he has no witnesses to vouch for his story since he has no contact with any of those with whom he was working in Paris at that time.

47.     The Tribunal found Mr Clarke to be a witness of truth.  Nonetheless, the absence of any corroborating evidence of the incident inhibits the Tribunal from making a finding that he suffered ‘trauma’ in the sense that is required by factor 6(f). The definition, even in its more beneficial form in Instrument No 14 of 2010, requires that the Tribunal be satisfied that there be damage to the joint and the development of signs and symptoms of pain, tenderness and either altered mobility or range of movement of the joint within 24 hours.

48.     Even if the Tribunal accepts Mr Clarke’s statement that he was sore and numb after the incident, and that he remained stiff and sore for about two weeks, the Tribunal only has his word that he had ‘altered mobility or range of movement of the joint’. He did not provide evidence that he took analgesics for the pain. He did not seek medical attention either on return to Paris the same day or on any subsequent day during his remaining 6 weeks in France. He did not take time off work. He said he continued work as normal until he returned to Australia. He did say he used the lift to get to the office where he worked while in Paris but it was not clear whether this was the only means of access to the floor on which he worked. He also did not seek medical attention for the condition, nor apparently even mention the incident to the DMO, on his return to Australia, some 6 weeks after the incident.

49.     These apparent failures to take any steps to seek medical attention or to self-medicate, either at the time, or on his return to Australia, and the fact that he continued work in Paris as usual after the incident, suggest that the effect of the incident was not significant. This suggestion is supported because his behaviour in this instance is contrary to the evidence in his medical file that he had reported and sought immediate medical treatment for similar such incidents while serving in the Air Force – particularly after the motor vehicle accident in 1956. The Tribunal also notes that for the purpose of the Statement of Principles, the ‘trauma’ must be of such significance that it could lead to his development of osteoarthritis by the 1980s. The description of the injuries suffered by Mr Clarke in France in 1972 did not, on the evidence, meet that standard.

50.     That finding is also supported by the evidence of alternative explanations for the arthritis presently suffered by Mr Clarke in his knees and ankles. Dr Smith’s view is that Mr Clarke’s conditions are constitutional and have no connection with the events in France.  His was the only specialist medical evidence on this issue before the Tribunal.

51.     Mr Clarke’s long-standing general practitioner, Dr Fenn, certified that the injuries were due to service-related sporting incidents. That certification reflects the consistent suggestions in claims made prior to the present claim for review by the Tribunal, that the causes of his arthritis in his knees and ankles were either sports-related or due to the motor accident in 1956. These claims indicated that he regularly suffered sporting injuries from as early as 1959 which led to periods on crutches or treatment with rest and elevation of his affected knees or ankles.

52.      In some claims, Mr Clarke also asserts that his increased weight from the late 1960s led to problems with his knees. The evidence from the vehicle accident in 1956 also provides an alternative source of trauma since his knees hit the dashboard of the car with such force that he had to spend overnight in hospital. Each of these events could plausibly have led to the subsequent development of his osteoarthritis. There is nothing in the evidence to differentiate these potential alternative causes from the incident in France to enable the Tribunal to say that it is more likely than not that the events in France were causal of his knee and ankle conditions.

53.     In these circumstances, it is not possible for the Tribunal to be satisfied on the balance of probabilities that it was the events in France in 1972 as against the sporting and vehicle injuries which Mr Clarke suffered on service that led to his osteoarthritis conditions.  For these reasons, the decision under review is affirmed.

Dates of Hearing    29 November 2011

Date of Decision   16 December 2011

Solicitor for the Applicant            Tony Latimore
   Legal Aid Veterans’ Advocacy Service

Solicitor for the Respondent       Tim O’Reilly     
   Department of Veterans’ Affairs