Connors and Repatriation Commission

Case [2001] AATA 896

DECISION AND REASONS FOR DECISION [2001] AATA 896

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2000/13

Veterans' Appeals DIVISION      )          
           Re      Mr Barry John Connors
  Applicant
           And    Repatriation Commission          
  Respondent

DECISION

Tribunal       Ms S M Bullock, Senior Member Dr J  Campbell, Member    

Date29 October 2001

PlaceSydney

Decision      Pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 the Tribunal decides that: 1. The diagnosis of Mr Connor's right knee condition is varied from chondromalacia patellae of the right knee to osteoarthrosis of the right knee. 2. The decision as varied is affirmed. This means that the Repatriation Commission's decision is unchanged.   

[SGD] Ms SM Bullock
  Presiding Member
CATCHWORDS
VETERANS' AFFAIRS - Entitlement - Operational Service - Reasonable Hypothesis -Diagnosis - Chondromalacia Patellae - Osteoarthrosis - Internal  Derangement.

LEGISLATION
Veterans' Entitlements Act 1986 ss 5D, 9, 13, 120(1), 120(3), 120A.

STATEMENT OF PRINCIPLES
Statement of Principles Instrument No 59 of 1997, as amended by Instrument No 96 of 1997, concerning Internal Derangement of the Knee
Statement of Principles Instrument No 320 of 1995 concerning Chondromalacia Patellae
Statement of Principles Instrument No 41 of 1998 concerning Osteoarthrosis
AUTHORITIES
Repatriation Commission v Cooke (1998) 90 FCR 307
Arnott v Repatriation Commission (2000) 62 ALD 125
Byrnes v Repatriation Commission (1993) 177 CLR 564
Harris v Repatriation Commission (2000) 62 ALD 174
Harris v Repatriation Commission (2000) 62 ALD 161
Bushell v Repatriation Commission (1992) 175 CLR 408
Repatriation Commission v Deledio (1998) 83 FCR 82
Bull v Repatriation Commission [2001] FCA 823
Repatriation Commission v Owens (1996) 70 ALJR 904
Repatriation Commission v Bey (1997) 79 FCR 364
Connors v Repatriation Commission (2000) 59 ALD 61
Repatriation Commission v Gosewinkel (1999) 59 ALD 690
Repatriation Commission v Stares (1996) 66 FCR 594
Re Witten and Repatriation Commission (1998) 54 ALD 605
Re Mansfield and Repatriation Commission [2000] AATA 435
Re Whitbourne and Repatriation Commission [2000] AATA 7
Repatriation Commission v McKenna (1999) 86 FCR 144
Mason v Repatriation Commission [2000] FCA 1409
Cook v Repatriation Commission (2000) 106 FCR 448

REASONS FOR DECISION

Ms S M Bullock,  Senior Member  Dr J D Campbell, Member 
    29 October 2001   

  1. This is an application for review to the Administrative Appeals Tribunal ("the Tribunal") made by the Applicant, Mr Barry John Connors, of a decision made by the Repatriation Commission ("the Commission") on 12 October 1998 (T2), as affirmed by the Veterans' Review Board ("the Board") on 26 October 1999 (T12).  The Board varied the diagnosis of Mr Connor's claimed condition from internal derangement of the right knee to chondromalacia patellae of the right knee, but then affirmed the Commission's decision as varied.

  2. A hearing was held before the Tribunal in Sydney. Mr Connors provided oral evidence and was represented by Mr N Dawson of Counsel. The Respondent, the Commission, was represented by Mr J Marsh, Senior Advocate, Department of Veterans' Affairs. The Tribunal took into evidence documents lodged pursuant to Section 37 of the Administrative Appeals Tribunal Act 1975 ("T Documents", T1 –…

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Details
AGLC
Connors and Repatriation Commission [2001] AATA 896
Case
[2001] AATA 896
Decision Date

CaseChat Overview and Summary

In the case of Connors and Repatriation Commission, the veteran, Mr Connors, appealed against the decision of the delegate of the Repatriation Commission, who determined that Mr Connors's right knee condition, which he claimed was caused by an explosion while he was on operational service in Vietnam, did not constitute an injury connected with his service. The Full Court of the Federal Court was tasked with reviewing this decision. The central legal issue was whether Mr Connors's right knee condition was reasonably attributable to his operational service in Vietnam, specifically to an incident where he was injured by an explosion from a gas-fired oven.

The court considered the evidence provided, including Mr Connors's own account of the incident and the statutory declarations of his colleagues, Mr Frangos and Mr Vigh. These declarations corroborated Mr Connors's account, detailing the circumstances of the explosion and its immediate impact on him. Dr Giblin, a medical expert, provided a detailed report concluding that Mr Connors's knee condition was a result of a shearing injury to the articular surface of the medial femoral condyle, which was reasonably causally related to the incident in Vietnam. Dr Giblin rejected the diagnosis of chondromalacia patellae, preferring the diagnosis of post-traumatic chondromalacia of the medial femoral condyle. The court accepted that a reasonable hypothesis could be formed that Mr Connors's knee condition was connected to the incident, despite the progressive nature of the condition and subsequent diagnoses over the years.

The court found that the delegate had erred in law by not considering all the evidence and by failing to form a reasonable hypothesis connecting Mr Connors's knee condition to his service. The Full Court set aside the decision of the delegate and remitted the matter back to the delegate for reconsideration in light of the court's findings. The court ordered that the delegate reconsider the matter, taking into account the reasonable hypothesis presented by Dr Giblin and the corroborative evidence from Mr Frangos and Mr Vigh.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Connors stated that he has always worked as a chef and the work is very physical including bending, squatting, lifting, standing and leaning over a stove. He is constantly on his feet. Mr Connors thought that he had taken time off work for his right knee problem and when he had a back operation.Other EvidenceStatutory Declaration - Mr J D Frangos Mr Frangos signed a Statutory Declaration on 30 December 1998, stating that he served in the 1 Australian Field Hospital at Vung Tau with Mr Connors during the time when a gas-fired oven being lit by Mr Connors exploded (T11, p50). This incident caused both Mr Connors and Mr Frangos to be thrown across the kitchen and both were burnt. Mr Frangos wrote:"Barry John Connors received burn flashes to his eyes and hair, also injuring his knee and was treated for the same at the R.A.P…" (T11, p50). Mr Vigh signed a Statutory Declaration on 1 September 1998 (T7). Mr Vigh noted that when Mr Connors went to light a gas oven in the kitchen of the 1 Australian Army Field Hospital, there was an explosion caused through leaking gas. Mr Vigh noted that Mr Connors was hit in the face by a flash and flames. He stated that Mr Connors was temporarily blinded and also suffered burning eyebrows, and his hair and moustache were burnt completely off. Mr Vigh further noted that Mr Connors was in a state of blindness and shock. Mr Connors was "banging into walls and stoves – fell over a couple of times, bruising and damaging his knees and about the body…"Mr Vigh noted that Mr Connors was taken to the medic and had bandages around his eyes for four to five days. Dr Giblin provided a report on 27 March 2000 and supplementary reports of 7 April 2000 (Exhibit A2) and 17 July 2001 (Exhibit A3). Dr Giblin noted a history of Mr Connors on service in Vietnam of lighting a gas oven which resulted in an explosion and him being thrown 14 or 15 feet across the kitchen. Dr Giblin noted that Mr Connors had first degree burns to parts of his face and neck, in addition to twisting his right knee. Dr Giblin noted that Mr Connors was taken to hospital and remained there for several hours. He was off work for five days and then returned to duties. Dr Giblin reported that Mr Connors had occasional twinges of right knee pain. Dr Giblin opined that Mr Connors sustained a "shearing injury to the articular condral surface of the medial condyle due to the force of the injury on duty in Vietnam." Dr Giblin diagnosed the condition as a soft tissue injury to the articular surface of the medial femoral condyle reasonably causally related to the February 1971 injury in Vietnam. Dr Giblin further opined that the injury underwent:"…a degree of healing, and then subsequently following the normal course of events as expected for this type of injury, thereby resultng in progressive, but delayed, post-traumatic arthritis. It would be my contention that this hypothesis fits quite well with the findings on the MRI scan as well as the findings of Dr P Gray and also fits well with the clinical situation of continuing pain which is surgically incorrectable at this point in time.As such, I do not agree with the specific diagnosis of chondromalacia patellae but I am more inclined to reliable (sic) diagnosis as post traumatic chondromalacia of the medial femoral condyle..." (Exhibit A2, p4).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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