CLEMSON and REPATRIATION COMMISSION
[2010] AATA 323
•23 April 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 323
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2009/305
VETERANS' APPEALS DIVISION ) Re BRYAN CLEMSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr John Handley, Senior Member
Dr Kerry Breen, MemberDate4 May 2010
PlaceMelbourne
Decision The decision under review is affirmed. (sgd) John Handley
Senior Member
VETERANS’ AFFAIRS – entitlement – eligible war service – osteoarthrosis – whether applicant suffers from contact dermatitis – whether service related ‑ trench collapse – whether trauma to affected joints 25 years before the clinical onset of osteoarthritis – whether exposure to irritant three days before the clinical onset of contact dermatitis – allergic contact dermatitis – whether exposure to allergen – decision affirmed
Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Bey (1997) 79 FCR 364
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Gorton (2001) 110 FCR 321REASONS FOR DECISION
4 April 2010 Mr John Handley, Senior Member
Dr Kerry Breen, Member1. The applicant is 81 years of age having been born on 28 November 1928. He was a member of the Australian Military Forces between 24 February 1945 and 13 December 1945 when he was a member of the Corps of Staff Cadets at the Royal Military College at Duntroon in Canberra. The applicant’s service constitutes eligible service under s 7(1)(c) of the Veterans’ Entitlements Act 1986 (the Act).
2. The applicant has applied for review of a decision made by the Veterans' Review Board (the VRB) on 13 November 2008. The VRB affirmed a decision made by the respondent to refuse the applicant’s claims for acceptance of osteoarthrosis of his wrists, hips and knees and for contact dermatitis.
3. The applicant receives pension at 90 per cent of the General Rate for the accepted conditions of sensorineural hearing loss, bilateral tinnitus, cataract in his right eye, skin cancers and tinea. Glaucoma of the right eye was rejected as war‑caused.
4. The respondent concedes that the applicant was involved in a trench collapse during a training exercise on an unknown date in March 1945 (the trench collapse). As a result of that incident the applicant alleged that he suffered osteoarthrosis and contact dermatitis. The respondent does not dispute diagnosis of either condition.
LEGISLATION
5. Section 13(1) of the Act provides that the Commonwealth is liable to pay a pension by way of compensation to a veteran who has become incapacitated from a war-caused injury or a war-caused disease. Section 120(4) provides that the decision maker is to determine an assessment of a pension to its reasonable satisfaction. A decision maker will be reasonably satisfied that an injury or disease is war-caused only if there is material raising a connection between the injury or disease and some particular service rendered by the person and there is a Statement of Principles (SoP) in force that upholds the contention on the balance of probabilities (120B(3) of the Act).
6. The relevant SoPs are:
ØInstrument No. 32 of 2005 concerning Osteoarthrosis; and
ØInstrument No. 66 of 1997 concerning Contact Dermatitis as amended by Instrument No. 24 of 2004 (the only amendment was to the definition of allergen in paragraph 7).
7. The applicant relied on factor 6(f) of the SoP concerning osteoarthrosis. Factor 6(f) provides that a connection will exist, on the balance of probabilities, between the osteoarthrosis and the circumstances of service, if the applicant had a trauma to the affected joint within the 25 years before the clinical onset of osteoarthrosis in that joint. Paragraph 9 provides as follows:
“trauma to the affected joint” means 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.
8. The applicant did not plead a specific factor in relation to the contact dermatitis in his Statement of Facts and Contentions lodged prior to the hearing. At the hearing, the applicant’s representative, Mr Turner, contended that the contact dermatitis had its clinical onset (as opposed to clinical worsening) arising out of his service. Factors 5(c) and (d) refer to the clinical worsening of the condition. Factor 5(e) refers to the inability to obtain appropriate clinical management of the condition. Those three factors are not appropriate to this application and accordingly we are satisfied that either factor 5(a) or (b) applies. Either of those factors must exist as a minimum before it can be found on the balance of probabilities that there is a connection between contact dermatitis and service. Those two factors are reproduced as follows:
(a)direct cutaneous exposure of the affected area to an irritant within the 3 days immediately before the clinical onset of contact dermatitis; or
(b)for allergic contact dermatitis only, exposure to the allergen responsible for the contact dermatitis, before the clinical onset of contact dermatitis…
9. Paragraph 7 of the SoP concerning contact dermatitis provides as follows:
“irritant” means an agent or substance, for example a chemical, which damages the epidermis on contact and causes inflammation of the contacted skin. It does not include physical agents such as heat, cold, solar radiation or other forms of radiation…
10. The condition of allergic contact dermatitis mentioned in factor 5(b) is defined at paragraph 7 as:
…immunologically mediated (mainly delayed type IV) contact dermatitis which occurs on an area of skin following exposure of that part of the skin to a particular allergen…
11. For the purpose of factor 5(b), paragraph 7 of the SoP provides that the allergen responsible for the contact dermatitis means:
… an allergen which the available clinical or serological evidence implicates as the cause of the contact dermatitis…
12. Paragraph 7 also provides that:
“allergen” means an antigenic substance capable of producing an immune response. Low molecular weight chemical substances which act as haptens are the usual cause of allergic contact dermatitis. Examples of allergens include dyes and their intermediates, oils, resins, coal tar derivatives, chemicals used for fabrics, rubbers, cosmetics, insecticides, the oils and resins of woods and plants, CS agent and coloured smoke, as well as the products or the substances of bacteria, fungi and parasites;
(The words underlined constitute the amendment by Instrument No. 24 of 2004).
13. At the opening of the hearing it was contended on behalf of the applicant that the osteoarthrosis arose out of a trauma to his joints as a result of the trench collapse.
14. It was contended that the applicant’s contact dermatitis was caused by the exposure to soil during the trench collapse. However, in his evidence, the applicant associated the contact dermatitis with irritation by his sweat which was caused by physical activity and which affected his groins, armpits, feet and lower legs. He also said the dermatitis was exacerbated by getting over the pain of the cave in. Later he said that the dermatitis was exacerbated by pollens in the air. When asked in cross examination whether he was pursuing any association between the contact dermatitis and his exposure to soil in the trench collapse, he said he had never given that a thought but it is a valid assumption – no one has ever suggested it to me. Later he said that he can't place it [the dermatitis] in the immediate aftermath of the cave in. We note that before the VRB, the applicant attributed his skin condition to ill-fitting army boots.
15. Before we move to a summary of the evidence, we note that a substantial body of the applicant's clinical and treating records have been lost or destroyed. The respondent provided only the pre and post discharge medical records in the T‑documents. Any records associated with a period of hospitalisation following the trench collapse were not available. It is understood that those records have been misplaced and cannot be located. The VRB accepted submissions by the applicant's advocate that thorough enquiries had been made to locate the applicant’s service medical records but without success (refer VRB transcript at p3).
16. In addition, the applicant's medical records prior to 1970 have been destroyed. It was learnt during the hearing that following his discharge in 1945, the applicant was treated by Dr Coleman at a medical clinic in Essendon. In 1964 the applicant and his family moved to Bendigo and the records from the clinic in Essendon were transferred to the Mundy Street Medical Clinic where the applicant attended a number of doctors from time to time. In or about 1970, the records of that clinic were lost when a burst water main flooded the basement of the building where the records were stored. The year 1970 is relevant because it is 25 years after the trench collapse and the clinical onset of osteoarthrosis for the purposes of factor 6(f) of Instrument No. 32 of 2005 must have occurred within that 25 year period.
17. The meaning of clinical onset was considered by the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668. The Tribunal said at [23]:
… there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.
The definition adopted in Re Robertson was subsequently approved by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331.
EVIDENCE
Applicant
18. The applicant said he suffered injuries by the trench collapsing in March 1945. He said that he and others had been excavating a 2m by 3m by 2m weapon pit which had been reinforced by timber beams and sandbags and which was intended to be camouflaged by a covering roof comprised of soil and vegetation. He said the sandbags slumped after a colleague walked across the roof and the trench collapsed. The applicant said he was trapped under tons of soil and other materials. He also recalled that a Bren gun collapsed and it, together with the materials and soil, entrapped him. He was partially able to free his right arm and remove soil around his head and face so he was able to breathe. Some five hours later he was located and materials were removed from the trench. He was removed and admitted to a field hospital.
19. The applicant said that he was lacerated above his eyes and his lower right arm. First aid was administered initially by a Warrant Officer and later by a Medical Officer, Dr Nimmo. He said he was a patient of the Field Hospital between three and a half to four days under the care of Dr Nimmo. During that time he recalled swelling around his face and ears and bandages were applied to his right knee and right ankle. His lacerated eyebrow was sutured. Dr Nimmo attended him from time to time with a recommendation that he should rest but he was encouraged to move around if able. The applicant said that he was mainly horizontal during his inpatient admission but said after the first day he was able to get out of his bed, unassisted, and walk without crutches or walking sticks.
20. When discharged from the Field Hospital, the applicant returned to his unit and attended a regimental aid post on a daily basis for about seven days to obtain painkilling medication. His unit then returned to Duntroon where he attended parades and lectures for about one week and he was engaged in light duties. He then resumed full unrestricted duties.
21. The applicant was discharged from Duntroon at the end of 1945 but in the meantime he played football and suffered some injuries. At the end of 1945 the applicant competed in a foot race of one mile which he won.
22. The applicant acknowledged that a discharge medical form completed by Dr Nimmo on 10 December 1945 recorded that he had nil disabilities suffered whilst a member of the Cadet Corps apart from slight injuries from football (T3, p9). The medical discharge form was also signed by the applicant. The applicant said that Dr Nimmo told him only the football injuries would be listed – as opposed to injuries following the trench collapsing – because he had not been stationed in a war zone and was not eligible for any veterans' benefits. The applicant said that he acknowledged the authority of Dr Nimmo and did not question his opinion.
23. Following discharge, the applicant returned to Essendon and attended Dr Coleman, his general practitioner. He said Dr Coleman recorded that he had suffered football injuries in service together with hearing loss, tinnitus, rhinitis, knee and feet injuries and dermatitis. He said that in the 1960s, Dr Coleman told him he would need lots of medical attention because osteoarthritis was then present. Dr Coleman was apparently associated with the Essendon Football Club and he arranged for the applicant to attend physiotherapists engaged by the club.
24. In 1964 the applicant, who had graduated as a school teacher, was transferred to the Bendigo Teachers' College where he had accepted a position as a lecturer. He arranged for the records of Dr Coleman to be transferred to the Mundy Street Medical Practice and arrangements were made for him to have physiotherapy under Ms Vera Green. He recalled he was then having problems with his lower back.
25. The applicant said he was aware of the report of Dr Markov and was also aware of the conclusion recorded by a radiologist engaged by Dr Markov. The applicant said that the findings of Dr Markov and the radiologist vindicate the opinions of my previous doctors because it had been noted that he had osteoarthrosis. It was the belief of the applicant that osteoarthrosis had been diagnosed and treated before 1970. It was his belief also that the opinions expressed by Dr Tamanika, his current practitioner, support a diagnosis of osteoarthrosis before 1970.
26. In cross examination the applicant said that the trench collapse caused pain to his feet, ankles, wrists, elbows, knees (the right more so than the left), shoulders, hips and his lower back.
27. He said he noticed 10 to 14 days after the trench collapsed that he was having difficulty using his wrists when using cutlery in the mess at Duntroon. He also noted difficulty in the use of his wrists when engaged in gymnasium exercises and when using weapons during drills. Within 24 hours of the collapse the applicant said, he had an inability to push himself up off a chair because he had severe pain in both wrists. The wrists were also tender within the first 24 hours and for some days thereafter.
28. In the first 24 hours after the trench collapsed, the applicant said his knees were tender, bruised and sore. He said that he was unable to walk and was carried by attendants. He said his hips settled before the knees and the right hip was worse than the left. He described the left hip as being fairly comfortable. He recalled the pain in his knees and hips lasted until the end of 1945, despite returning to training. He recalled that he consumed medication throughout that year and he pushed pain aside.
29. The training undertaken by the applicant was described by him as weapon training which involved the lifting and manoeuvring of 25lb guns together with Bofors and anti-aircraft guns and .303 rifles. He also was required to lift and load shells. He was engaged in cross-country running for up to three miles, carrying full pack and marching for up to half an hour with a full pack. He was also engaged in gymnasium work and boxing.
30. After discharge from service he competed in B and C grade squash for about three years in Bendigo and played golf for one year but ceased because walking caused him discomfort and pain. He was engaged in swimming as a social activity until about 1970 and had enjoyed body surfing with his children at Anglesea until about 1975. The applicant had carpal tunnel surgery to both wrists in 2008 and it would appear from his description that he has achieved a successful outcome. He said he has no problem currently with either wrist.
31. In answer to some questions from us, the applicant said that when he was trapped following the trench collapsing, both knees were bent and folded under him. He had a sensation of considerable pressure across his lower back and neck. He said that his left arm was also trapped.
32. The applicant was taken to a reference in the VRB transcript (p18) where he said in 1945 Dr Coleman prescribed anti-inflammatory tablets and also noted the onset of an osteoathritic condition. During the course of this discussion with the applicant it became apparent that the applicant was in fact taking Asprin because anti‑inflammatory medication did not become available until many years later. In the 1960s, the applicant was prescribed anti‑inflammatory medication which caused him stomach trouble. On reflection the applicant recalled that Indocid was later prescribed either by Dr Coleman or one of the doctors at the Mundy Street practice in Bendigo. The applicant was sure that it was prescribed before 1970. He recalled that he had also been treated for gout in his feet following the diagnosis in or about 1985 and thereafter was prescribed Zyloprin.
Dr Markov
33. Dr Markov has been a rheumatologist in practice since 1994. He examined the applicant on 31 August 2009 and provided a report dated 2 September 2009 (Exhibit R5). He was provided with the clinical notes obtained from the Strathdale Medical Centre (Dr Tamanika) and other clinical materials. In Dr Markov’s opinion, the applicant is not suffering from psoriatic arthritis, rheumatoid arthritis and polymyalgia rheumatica.
34. Dr Markov concluded that the applicant did suffer from osteoarthritis (commonly identified as osteoarthrosis) which was wide spread involving both hands, both feet, both knees and both hips as well as the lumbar spine. He did not observe any osteoarthrosis involving the ankle joints. He concluded:
… Due to the widespread nature of the osteoarthritis, and the symmetrical nature of joint involvement … the osteoarthritis is idiopathic in nature, part of the normal process of ageing. There is no reason to believe that the osteoarthritis in any location is related to an injury, either the injury in 1945 or any other.
35. In evidence, Dr Markov said that the widespread nature of the osteoarthrosis, its symmetrical nature and appearance, and the applicant's age satisfied him that the applicant’s osteoarthrosis was typical of the normal ageing process. On the history given to him by the applicant, he was satisfied that when the trench collapsed, the applicant suffered extensive soft tissue injuries that were not confined to any one part of the body or joint. Dr Markov noted that an x-ray report dated 29 October 2008 appended to the clinical notes of Dr Gault (Exhibit R3) was consistent with the x-rays that he obtained on 1 September 2009 demonstrating mild age related osteoarthrosis affecting the applicant's knees, hands and feet. He opined that the radiology demonstrated the applicant's ankles were normal for a person of his age. He concluded that if the applicant had suffered osteoarthrosis as a result of a traumatic joint injury in 1945, he would have expected, 64 years later, that the osteoarthritic changes would have been more pronounced.
36. Dr Markov was familiar with Instrument No. 32 of 2005 and said that any traumatic joint injury in 1945 should have been apparent by 1970. Having regard to the clinical notes made available to him, the history obtained from the applicant, including a description of the trench collapse, Dr Markov said that he did not expect osteoarthrosis to be related to that event. He noted that the applicant had returned to duty within one or two weeks of the incident which reinforced his opinion that the applicant only sustained soft tissue injury and bruising.
37. Whilst he was unaware of the nature of the treatment undertaken or administered immediately following the trench collapse, Dr Markov said the clinical features present at examination were so mild, it was unlikely that the applicant had sustained a discrete joint injury. In response to a question later put to Dr Markov by us, he said he understood the word discrete as appearing within the definition of trauma to the affected joint was referrable to time and to the anatomical location of a joint injury.
38. In cross examination, Dr Markov acknowledged that it would be possible to have osteoarthrosis as a result of discrete injuries, for example, to both hips or both elbows. However, he thought that it would be unusual. He said most persons in their 80s have osteoarthrosis. Dr Markov said the appearance of the applicant's hands on x-rays, especially the interphalangeal joints, was inconsistent with osteoarthrosis by trauma. Dr Markov opined that anti‑inflammatory medication, if prescribed before 1965, may have masked the symptoms of osteoarthrosis but would not obliterate the disease. He said anti-inflammatory medication, if prescribed, may have been intended to treat other conditions.
39. There was no evidence from any medical witness concerning dermatitis save that Dr Markov did not observe any lesions characteristic of psoriasis.
CONCLUSION
40. The substantial component of the applicant's claim was for acceptance of the condition of osteoarthrosis. It would have been preferable to have had access to any medical records associated with the applicant's treatment immediately following the trench collapse and to his medical records after his discharge from service. The absence of evidence will not however defeat an application before an administrative Tribunal. Every opportunity must be given to ensure that substantial justice is given to a party, procedural flexibility must be undertaken, the merits of an application must be assessed and regard must be had to material which is logically probative (refer Re Pochi and Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33). Indeed the applicant's hearsay evidence of the discussions with Dr Coleman would probably be dismissed in curial proceedings as offending the rules of evidence. This Tribunal, exercising an administrative function is bound to adopt a beneficial attitude, especially in applications made by veterans (s 119(1) of the Act). However, the Tribunal is also required to the make decisions in accordance with the law and where evidence is required to support an applicant’s case, s 119 cannot be relied on to remedy deficiencies in the evidence (Repatriation Commission v Bey (1997) 79 FCR 364 at 373).
41. For the reasons which follow, we are not satisfied, on the balance of probabilities, that factor 6(f) of Instrument No. 32 of 2005 has been satisfied.
42. Factor 6(f) requires a trauma to the affected joint with 25 years of the clinical onset of osteoarthrosis. Trauma to the affected joint is defined as a discrete joint injury that causes pain, tenderness and altered mobility or range of movement within 24 hours of the injury and lasting for at least 10 days. The applicant said in evidence that the trench collapsing caused pain and injury to his feet, ankles, wrists, elbows, knees, shoulders, hips, lower back and neck. He said he remained in hospital for three to four days following the collapse and was engaged in light duties for one week. He then resumed unrestricted duties. While we accept that the applicant experienced pain and discomfort, we are not satisfied that he sustained a discrete joint injury.
43. The relatively short period of pain and discomfort and the return to activity shortly after the trench collapse, points to soft tissue injury or bruising only, consistent with the evidence of Dr Markov. We regard his evidence to be sound. We accept that the appearance of mild osteoarthrosis on recent x-rays (in 2008 and 2009) does not point to discrete joint injuries. If the trench collapse caused discrete joint injuries, the osteoarthosis would have been more pronounced on those x-rays.
44. We are also satisfied that the recent x-rays (refer paragraph 35) are consistent with mild age related osteoarthrosis consistent with a person in his 80s. In considering the definition of trauma to the affected joint, there is nothing which points to a discrete joint injury.
45. In relation to the clinical onset of osteoarthrosis, there is nothing other than the evidence of the applicant which would point to osteoarthrosis having a clinical onset before 1970. On balance, we prefer the available medical evidence which carries considerably greater weight and should be adopted.
46. The applicant has been under the care of Dr Tamanika at the Strathdale Medical Centre since 1985. In reports dated 21 April 2008, Dr Tamanika recorded that the clinical onset of osteoarthrosis affecting the applicant's wrists, knees and hips occurred about 10 years before his reports that is, in or about 1998 (T6). We note that there is no reference at all in any of those reports to the osteoarthrosis having an origin in the collapse of the trench in 1945. Rather, Dr Tamanika has recorded that according to the applicant, the cause of the osteoarthrosis was vigorous training and other activities, including sport in service.
47. Our attention was drawn to an entry in the notes of Dr Tamanika of 3 April 1994 (Exhibit R2,p9) which, so far as we can interpret, records as follows:
Acute back pain after unloading the dishwasher two days (illegible) difficulty with walking no radiation PH ü 30 (illegible) years ago.
48. It was contended on behalf of the applicant that the entry points to back pain in or about the 1960s which is consistent with the applicant's complaint of back pain being experienced following the trench collapse in 1945. On that basis, and assuming that the back pain was indicative of osteoarthrosis, it was argued that the clinical onset of osteoarthrosis was before 1970. In the absence of any other material which points to osteoarthrosis being present before 1970, we are unable to make the finding for which we were urged.
49. The applicant also relied on the report of Dr Gault dated 29 October 2008 in which he indicated that an anti-inflammatory drug, Indocid, had been prescribed to the applicant after the applicant moved to Bendigo in 1965. We are not prepared to find that the prescription of Indocid was necessarily for osteoarthrosis.
50. Dr Gault was a member of the clinic which had its notes destroyed. Whilst we do not dismiss the possibility that Dr Gault has a remarkable memory, we would have preferred to have learnt how he was able, on 29 October 2008, in the apparent absence of the notes, to report that Indocid had been prescribed. Whilst the report itself is not clear, it is suggested that Indocid was prescribed in the 1960s. But it is not apparent that Indocid was prescribed to treat osteoarthrosis at that time. Dr Gault recorded the applicant was then complaining of pain in his right ankle, right knee, both hips, both elbows and both wrists. The description or diagnosis of injury is not recorded. However, the condition of generalised osteoarthritis is recorded in the second paragraph of his report and by its construction, it would suggest that at 29 October 2008 the condition of osteoarthrosis existed. We are unable to find that in 1965 when Indocid was reported to have been prescribed by Dr Gault, the applicant then suffered osteoarthrosis. In concluding this part we note the evidence of Dr Markov that anti-inflammatory medication such as Indocid, is not prescribed only for osteoarthrosis. Thus, it may have been prescribed in 1965 for other conditions.
51. Mr Rudge referred to many pages in Dr Tamanika’s clinical notes which contained details about the applicant's treatment between 1985 and 2008. The entries indicated that the applicant presented for treatment for a number of physical injuries to his shoulder, right leg, right heel, back, wrists, hands and elbows (refer pages 13-14, 15-18, 25, 27-29), all of which, save for the right heel, were the sites of pain experienced by the applicant following the trench collapse.
52. The applicant may associate the complaints of pain between 1985 and 2008 with a manifestation of pain by osteoarthrosis having its origin in 1945. However, the medical records indicate the pain experienced from time to time was associated with various causes unrelated to the episode in 1945. For instance, the applicant was involved in a motor car accident and suffered a rotator cuff tear, epicondylitis and muscle tenderness during that period.
53. Dr Markov said in evidence and his report that the clinical onset of osteoarthrosis began in the lumbar and cervical spine in approximately 1986 and in the hands, feet, knees and hips in approximately 2000. Dr Markov formed his opinion about the clinical onset of osteoarthrosis on the basis of the clinical files of the applicant’s treating doctors and their conclusions.
54. As stated previously, Dr Markov’s evidence is sound and we accept that the clinical onset occurred in the lumbar and cervical spine 1986 and in the hands, feet, knees and hips in 2000. It follows that even if there is an association between service and osteoarthrosis (which we have found does not exist), the clinical onset did not occur within 25 years of the trench collapse.
55. For these reasons we are satisfied on the balance of probabilities that the applicant does not satisfy factor 6(f) of Instrument No. 32 of 2005. Therefore, there is no connection between the applicant's service and his osteoarthrosis.
56. On 11 March we learnt the RMA issued another SoP concerning osteoarthritis (Instrument No. 14 of 2010) which revoked Instrument No. 32 of 2005. The new instrument takes effect from 10 March 2010, being the day after the hearing concluded. It is an instrument within the assessment period and in force at the date of this decision. Therefore, we are obliged to consider it (Repatriation Commission v Gorton (2001) 110 FCR 321 at [42 ‑ 43]).
57. On 11 March 2010, the Deputy District Registrar wrote to the parties’ representatives, notifying them of the new SoP and inviting submissions on or before 24 March 2010. Submissions have not been made by either party.
58. The new instrument has a different definition of osteoarthrosis. While the language is similar to that found in the revoked SoP, the definition in Instrument No. 14 of 2010 is the product of a new ICD Code (refer to definition of ICD-10-AM Code at paragraph 9). The new SoP also has a different definition of trauma to the affected joint which is reproduced as follows:
"trauma to the affected joint" means 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.
59. Even if the osteoarthrosis suffered by the applicant is consistent with the new ICD Code definition, we have concluded, on the evidence heard and read, that he would not satisfy the new definition of trauma to the affected joint in paragraph 9 for the purpose of factor 6(f). There is no evidence of the application of significant physical force to or through the affected joint causing damage to the joint.
60. Despite the differences between the revoked and current SoPs, the trauma to the affected joint must have occurred within 25 years of the clinical onset of osteoarthrosis. We are not satisfied that the clinical onset of the condition occurred within 25 years of the trench collapse. Therefore, neither SoP assists the applicant.
61. We are not satisfied on the balance of probabilities that the applicant suffers from contact dermatitis as defined.
62. Two different propositions were put purporting to connect service and contact dermatitis. The applicant argued that the condition arose as the consequence of sweating during service or pollens in the air or the pain of the trench collapse or alternatively, from exposure to soil when the trench collapsed. He did not pursue contact dermatitis as a consequence of ill fitting boots, as he did before the VRB.
63. The clinical notes of Dr Tamanika record the applicant presenting with Dermatitis L wrist in August 1991. The cause of that condition, actual or suspected, is not recorded. The clinical features are also not recorded. The absence of a description of the clinical features of the dermatitis does not permit us to conclude that the applicant then presented with contact dermatitis, as defined at paragraph 2(b) of Instrument No. 66 of 1997.
64. On 21 April 2008, Dr Tamanika completed a DVA questionnaire (T6, p 32-33) and recorded a diagnosis of Eczematous rash. Fungal rash. The diagnosis was confirmed on clinical grounds only. No swabs and skin scrapings were taken and investigated. Dr Tamanika recorded the clinical onset of the condition occurred during 1945 and it was then treated with Green dye and antifungal creams. The history given to Dr Tamanika was of excessive sweating in the applicant’s groins and under his arms during military training.
65. The clinical notes of Dr Tamanika contain many references to solar keratosis present on the applicant’s right forehead and right hand (18 January 2007, 1 February 2007, 6 August 2007, 9 October 2007) and a recurrent skin lesion on the right forehead on 2 and 19 February 2008. A lesion on the right side of the applicant’s nose and left forehead was recorded on 15 May 2008. These clinical notes and the references to solar keratoses suggest that the appropriate diagnosis is of skin cancer (which is an accepted condition). There is nothing to suggest in any of these entries that they are of a contact dermatitis type condition and have no resemblance to the description given in the forms completed for DVA.
66. In the absence of evidence from Dr Tamanika, we are unable to conclude, from his notes that the applicant does meet the clinical features of contact dermatitis as defined at paragraph 2(b). However, if the condition of contact dermatitis does exist, irrespective of the issue of clinical onset, we could not be satisfied that factors 5(a) and (b) are satisfied.
67. Factor 5(a) refers to direct cutaneous exposure by an irritant. This factor would suggest direct exposure to the skin by an irritant as defined. There is nothing which would permit us to conclude that the irritant, whether it is sweat or the soil, was an agent or substance which damaged the epidermis and which caused inflammation (refer definition of irritant at paragraph 9).
68. Factor 5(b) refers to allergic contact dermatitis. Connection with service on the balance of probabilities can be found only if there was exposure to an allergen responsible for the contact dermatitis. The word allergen, the phrase allergen responsible for the contact dermatitis and the phrase allergic contact dermatitis are each defined at paragraph 7 of the SoP (refer to paragraphs 10‑12 earlier). There is nothing which points to his sweat or the soil which would have contacted his skin being an allergen as defined. Only if that definition was satisfied would there be a need to consider the other definitions namely, allergen responsible for the contact dermatitis or allergic contact dermatitis each containing the word allergen as part of the respective definitions.
69. In the circumstances the decision under review is affirmed.
I certify that the sixty-nine [69] preceding paragraphs are a true copy of the reasons for the decision herein of
Mr John Handley, Senior Member
Dr Kerry Breen, MemberSigned: Olympia Sarrinikolaou
Legal Assistant
Date of Hearing 9 March 2010
Date of Decision 23 April 2010
Advocate for the Applicant Mr B. Turner, Bayside Veterans’ Centre
Advocate for the Respondent Mr K. Rudge, Department of Veterans’ Affairs
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