Connors and Repatriation Commission
[2001] AATA 896
•29 October 2001
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
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.
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 – T16) and the following exhibits:
Exhibit Number Description Date
A1 Statement by the Applicant Undated
A2 Report and supplementary report by Dr P E Giblin, Orthopaedic Surgeon 27 March 2000 and 7 April 2000
A3 Further report by Dr P E Giblin, Orthopaedic Surgeon 17 July 2001
R1 Reports by Dr W P Lennon, Orthopaedic Surgeon 17 March 2000 and 23 February 2001
R2 Report by Dr W P Lennon, Orthopaedic Surgeon 30 March 2001
R3 Report by Dr W P Lennon, Orthopaedic Surgeon 29 June 2001
R4 Clinical notes of Dr P C Gray, Orthopaedic Surgeon Various dates
R5 Clinical notes from Denistone-Midway Family Medical Centre Various dates
R6 Clinical notes of Dr B E Kinghorn Various dates
R7 Transcript of the Veterans' Review Board hearing 26 October 1999
Service History
Mr Connors joined the Australian Army on 1 October 1969 and completed his service on 30 October 1971. Mr Connors served in Vietnam from 18 November 1970 until 9 September 1971 and this constitutes operational service for the purposes of the Veterans' Entitlements Act 1986.
IssuesThe issues to be determined in this matter are:
(a)What is the correct diagnosis of Mr Connors' right knee condition, which has been variously diagnosed as internal derangement of the right knee; chondromalacia patellae of the right knee; and, osteoarthrosis of the right knee?
(b)Is Mr Connors' right knee condition war-caused?
Legislation
A decision in this matter requires consideration of the provisions of the Veterans' Entitlements Act 1986 ("the Act").
Section 5D of the Act deals with the definition of injury and diseases.
Section 9 of the Act deals with war-caused injuries or diseases and provides:
"9 War caused injuries or diseases
(1) Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:(a) the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c) the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d) the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:(i) was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise."
Section 13 of the Act deals with eligibility for pension.
The standard of proof for Mr Connors' operational service is that of the reasonable hypothesis applying subsections 120(1) and 120(3) of the Act which provide:
"120 Standard of proof
(1)Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note: This subsection is affected by section 120A.
…
(3) In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:(a) that the injury was a war-caused injury or a defence-caused injury;
(b) that the disease was a war-caused disease or a defence-caused disease; or
(c) that the death was war-caused or defence-caused;as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
Note: This subsection is affected by section 120A."
Section 120A of the Act deals with Statements of Principles and requires that an assessment of the reasonableness of an hypothesis must be undertaken in accordance with any Statement of Principles issued by the Repatriation Medical Authority ("RMA") or any relevant determination or declaration under the Act. As relevant, section 120A states:
"(1) This section applies to any of the following claims made on or after 1 June 1994:
(a) a claim under Part II that relates to the operational service rendered by a veteran;
(b) a claim under Part IV that relates to:(i) the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii) the hazardous service rendered by a member of the Forces.Note 1: Subsections 120(1), (2) and (3) are relevant to these claims.
Note 2: For peacekeeping service, member of a Peacekeeping Force, hazardous service and member of the Forces see subsection 5Q(1A).(2) If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a) has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
(b) has declared that it does not propose to make such a Statement of Principles.(3) For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a) a Statement of Principles determined under subsection 196B(2) or (11); or
(b) a determination of the Commission under subsection 180A(2);that upholds the hypothesis.
Note: See subsection (4) about the application of this subsection.
(4) Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;as the case may be."
Statement of Principles
Depending on the diagnosis of Mr Connors' right knee condition, the Tribunal considers and there is no dispute that the following Statements of Principles may be appropriate.
Instrument No 59 of 1997 as amended by Instrument No 96 of 1997 concerning Internal Derangement of the Knee.
Instrument No 320 of 1995 concerning Chondromalacia Patellae.
Instrument No 41 of 1998 concerning Osteoarthrosis.
Background
The following information is provided by way of background and the facts contained within are not disputed.
Mr Connors was born on 21 April 1949.
During Mr Connors' service in Vietnam in November 1970, Mr Connors commenced duties in "Headquarters Company" in the Canteen section and was later transferred to 1 Australian Field Hospital at Vung Tau where he undertook catering duties.
An entry on Mr Connors' "Attendance and Treatment Card" dated 23 February 1971 noted that:
"23.2.71 Stove backfired while being lit. 1st deg. burns to neck & lower part of face… Eye drops applied…
29.2.71 No corneal ulcers in R. eye. Superficial burns to neck and face…" (T3, p13).In his "Final Medical Board Report", prior to discharge, it is recorded that Mr Connors complained of minimal sore right lower back pain, but there was no abnormality in form or function on medical examination. Mr Connors was noted to have a left high tone hearing loss, scattered sebaceous cysts, one migraine attack, intermittent indigestion and a slight back injury when lifting heavy pots in Vietnam (T3, p5-7).
Following discharge from the Australian Army in October 1971, Mr Connors undertook a two-year, part-time, catering course at the East Sydney Technical College. He later worked at a number of Returned and Services League ("RSL") clubs including North Ryde RSL Club between 1972 and 1974, the Granville RSL Club between 1974 and 1975 and the Bexley RSL Club. From 1974 through to 1988 Mr Connors worked in a number of branches as a caterer with the Westpac Banking Corporation. From 1988 Mr Connors was employed by Spotless Services Ltd (T6, p32), and at the time of hearing was still working with Spotless Services Ltd.
Mr Connors lives with his 90 year old father. He was married for approximately 24 and a half years but divorced approximately four and a half years ago. Mr Connors has a 19 year old son and a 17 year old daughter.
On 6 August 1998, Mr Connors lodged a claim for "Right Knee" (T6, p29) described by the Commission as internal derangement of the right knee. Mr Connors had previously lodged a claim for right knee pain on 16 July 1996 (T4), which had been refused by the Commission on 17 September 1996 (T5).
In Mr Connors' 1998 claim, his General Practitioner, Dr D Hannam, diagnosed Mr Connors' right knee condition as "cartilage injury R knee debrided 1994". Dr Hannam reported that Mr Connors first reported this condition in November 1993 (T6, p29).
Included in Mr Connors' 1998 claim, was a report by Radiologist, Dr I Sewell, who reported on 10 November 1993, that plain films of the right knee showed only minimal degenerative change. Dr Sewell noted "the most minimal degree of cartilage thinning in the medial and lateral joint compartments". (T6, p38).
On 23 June 1994, Dr P C Gray, Orthopaedic Surgeon, reported that Mr Connors had undergone an arthroscopy of the medial femoral chondroplasty of the right knee. Dr Gray reported:
"Arthroscopy demonstrated a normal retropatellar surface. There was a normal proximal patello-femoral groove. In the medical compartment there was a significant unstable articular cartilage flap tear with surrounding unstable chondral fractures. The medial meniscus was intact. The anterior cruciate was intact. In the lateral compartment the lateral articular surfaces were intact. The lateral meniscus was intact.
The unstable chondral flap tear was debrided with basket forceps and a chondrotome." (T6, p35).On 23 October 1994, an MRI Scan of the right knee was performed. The report noted:
"…In the coronal fat suppressed sequence, there are three or four areas of linea high signal in the anterior portion of the lateral tibial condyle. The significance of these is not clear but some low density changes can be seen on the coronal T2 sequence. These could represent old stress lines…." (T6, p36).
On 18 November 1994, Dr Gray further reported that Mr Connors' right knee pain settled after the arthroscopy but that he still experienced some discomfort towards the end of the day. Dr Gray noted that clinical examination failed to reveal any obvious cause for this ongoing discomfort. An MRI scan had not provided a definitive diagnosis but demonstrated an abnormality in the lateral tibial plateau. It was thought there may have been a stress reaction. Dr Gray noted that "it may well be that this area on the tibia represented a stress fracture and it may well continue to resolve over time". (T6, p37).
On 12 October 1998, the Commission refused Mr Connors' claim for internal derangement of the right knee (T2).
On 22 October 1998, Mr Connors lodged an application for review to the Board (T9), noting:
"I strongly believe that I injured my right knee as a result of a gas explosion in Vietnam on active service. I was temporarily blinded, lost my hair, eyebrows and moustache. I was subsequently confined to the casualty triage area for the next 24 hours and was then confined to my bed adjoining the hospital ward for the next several days. An injury to my knee was the last of my worries at the time, fearing I may have been permanently blinded."
On 26 October 1999, the Board varied the diagnosis of Mr Connors' right knee condition from internal derangement of the right knee to chondromalacia patellae of the right knee but affirmed the Commission's decision as varied (T12). While the Board noted the diagnosis made by Dr Gray of Mr Connors' right knee condition as "articular cartilage flap tear", it felt the more accurate diagnosis was chondromalacia patellae. The Board then noted that although Mr Connors had reported twinges and increasing right knee pain over the years, his condition had not caused him sufficient problems to seek medical attention until 1992. At that time the condition was diagnosed. The Board noted Mr Connors' evidence that his right knee condition had not been diagnosed or treated on service and that the pain had subsided. Further, there had been no lasting injury or symptoms reported on Mr Connors' discharge from the Australian Army. The Board noted that on the discharge papers, Mr Connors had reported a slight back injury when lifting heavy pots in Vietnam, with slight recurrent pain around the right lumbar region. There was no reference, the Board found, in relation to any pains in Mr Connors' right knee. The Board concluded that pain had increased during the 1980's and was significant enough for Mr Connors to seek medical intervention in 1992, some 15 to 20 years after his service.
On 5 January 2000, Mr Connors lodged an application for review to the Tribunal (T1).
Evidence of Mr Barry John Connors
Mr Connors told the Tribunal that in February 1971, in Vietnam, he was working as a chef, cooking for patients as well as for doctors and nurses at the 1 Australian Field Hospital. On 23 February 1971, he had gone to work early in the morning to prepare for breakfast. Mr Connors turned the lights on and then turned on the gas oven. Because the pilot light was out, he lit the oven using a piece of burning paper. There was an explosion of orange flames and Mr Connors described being thrown across the room. He was unable to see and ran into several objects. Private Charles Vigh, stopped him and smothered the fire burning on Mr Connors' hair and moustache. He was in shock and was most concerned about his possible loss of sight. Mr Connors was taken to the hospital where he was treated. He was later taken to his own bed in his hut where he was cared for. Mr Connors stated that his eyes were bandaged and he was spoon fed. Mr Connors told the Tribunal that he did not mention his knee to the doctors or carers because his eyes and burns were his main concern. His eyes were especially painful and he recalled being given medication immediately after the accident. He thought that there were twinges of pain or perhaps slight swelling in his right knee, although he stated that he was 21 years old and trying to be very brave or "macho". Mr Connors explained that he would get out of bed without any difficulty twice per day and walk, with the assistance of his mates, one hundred yards from his bed to the toilet or the shower. After approximately four or five days, the bandages on Mr Connors' eyes came off and the next day he returned to work.
Mr Connors had told the Board that he first noticed twinges and a small swelling in his knee approximately four or five days after the oven explosion, but the symptoms did not last long - about two or three days and then they went away. Because Mr Connors was a "macho" fellow aged 21 years, he did not do anything about these mild symptoms. Nor did he mention it to anyone. When Mr Connors returned to Australia he noticed the problem reoccurred when he stood for long periods of time (Board Transcript, Exhibit R7). Mr Connors noted that the problem back in Australia was not to the degree that required him to consult a doctor. He stated that when in Vietnam he got out of bed to have photos taken with Private Frangos and Charlie Vigh, but was not substantially out of bed until about four or five days after the incident.
In relation to his returning to duty, Mr Connors was not able to specifically recall whether or not he was provided with light duties but thought that this was possible. After work on the first day, Mr Connors noticed that following an eight hour shift, there was slight intermittent pain but no pain on the second or third day unless pressure was put on his right knee.
Mr Connors told the Tribunal that he did not report any problems with his right knee or do anything about obtaining any treatment as he found that after a night's sleep, any knee problems he experienced had subsided the next day. By the time he came to leave Vietnam, Mr Connors' recalled that the right knee symptoms had faded away.
Mr Connors stated that he had not recorded his knee symptoms on his discharge papers because his right knee was not specifically troubling him at the time of discharge and the time he was being examined by the Army doctor. Further, Mr Connors stated that he just wanted to go home. His right knee was for him a "small and slight irritation". Mr Connors did not recall the notation on his "Final Medical Board Report" of 21 September 1971, that he might claim for pension in the future but did not know on what grounds, mentioning only right low back pain as a result of undertaking some lifting in Vietnam (T3, p5).
Mr Connors was unable to tell the Tribunal when he came to consider that it was the 1971 incident which had caused his right knee symptoms. Mr Connors told the Tribunal that he finally saw a doctor specifically about his right knee in the early 1990's, following intermittent symptoms in the 1980's.
Mr Connors noted in his Statutory Declaration (Exhibit A1) that he first experienced the pain in his right knee from the date of the explosion, but it became much worse in May 1991 and he had complained about this to his then wife. The pain became so bad that on 4 November 1993 and 10 November 1993, he consulted his General Practitioner, Dr D Hannam. Mr Connors was subsequently referred to Orthopaedic Surgeon, Dr P Gray, in November 1993, consulting him again on 31 May 1994 and 23 June 1994.
Mr Connors recalled that he had an MRI scan at the Royal North Shore Hospital on 23 October 1989 and was again examined by Dr Gray on 18 November 1994. Previously, on 21 November 1989, Mr Connors consulted with Dr Gray concerning an eight week history of left buttock pain with radiation down the posterior aspect of his thigh and down to the postero-lateral aspect of the left distal tibia. In a report of 5 December 1989, Dr Gray noted that the back pain was aggravated by standing and walking (Exhibit R4, p14). Mr Connors agreed that he had not, at this time, made any mention to Dr Gray of any right knee pain or of the accident in Vietnam in February 1971. Mr Connors explained that the purpose of the 1989 consultation with Dr Gray related to his back, and therefore he did not see any need to speak to Dr Gray about his right knee.
On 23 November 1993, Dr Gray reported that Mr Connors had been aware of intermittent pain in his right knee for 18 months. Dr Gray reported that the right knee pain did not appear to be aggravated by pivoting, twisting, turning or squatting and there was no swelling or indication of any clicking or clunking in the knee (Exhibit R4, p6-7). Dr Gray noted that there was no history of any precipitent trauma to the onset of Mr Connors' right knee discomfort and the radiography of the knee was "essentially normal". Dr Gray concluded:
"I must admit, on clinical examination today I was unable to detect any evidence of internal derangement in Mr Connors' right knee. However, the history of pain over the lateral aspect of the knee which tends to be intermittent is suggestive of a lateral meniscal tear." (Exhibit R4, p7).
Mr Connors stated to the Tribunal that he could not recall whether or not he told Dr Gray of the February 1971 incident in Vietnam.
Mr Connors told the Tribunal that he had had surgery to remove the chondral flap in his right knee. Since surgery, Mr Connors reported that his right knee has felt better. He explained that while his right knee still hurts it is not to the same extent. Mr Connors noted that he continues to work in the catering industry, working eight hours per day for Spotless Services Ltd. Mr Connors told the Tribunal that he has had no other injury of his right knee or ever claimed any workers' compensation. Referring to a hernia problem he experienced in June 2000, reported in Mr Connors' Medical Records of the Deniston Midway Medical Centre (Exhibit R5, p11), Mr Connors stated that he was a manager at that time and did not believe it appropriate for him to claim workers' compensation.
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 Evidence
Statutory Declaration - Mr J D FrangosMr 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).
Statutory Declaration - Mr C Vigh
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.
Recent Medical Evidence
Dr P E Giblin, Orthopaedic Surgeon
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).On examination, Dr Giblin noted that the right leg girth is bigger then the left leg. Dr Giblin noted two small scars on the front of the right knee consistent with arthroscopy. The right knee was stable with full movement and tenderness over the medial femoral condyle. The ligaments were intact. Dr Giblin noted plain X-rays on 10 November 1993 indicated the right knee was normal. The MRI scan dated 23 October 1994 showed obvious evidence of bone oedema underlying the medial femoral condyle articular surface. Dr Giblin further noted Dr Gray's comment of 23 June 1994, about there being significant unstable articular cartilage with unstable surrounding chondral fractures.
In a supplementary report of 7 April 2000, Dr Giblin assessed Mr Connors as having a functional loss of the right knee equivalent to five points under Table 3.22 of the "Guide to the Assessment of Rates of Veterans' Pensions" ("The Guide") (Exhibit A2).
On 17 July 2001, in response to the Tribunal's desire to clarify the diagnosis of Mr Connors' right knee condition, Dr Giblin noted that the condition of chondromalacia of the medial femoral condyle, is quite separate from the condition of chondromalacia patellae. As such, Mr Connors did not, in Dr Giblin's view, meet the Statement of Principles concerning Chondromalacia Patellae, that is, Instrument No 320 of 1995 (Exhibit A3). Dr Giblin concluded:
"It would be reasonable, to determine that the chondromalacia is a form of osteoarthrosis in so far as it does amount to defective integrity of the articular cartilage and related changes in the underlying bone and joint margins. Nearly always, in relation to this, there is associated a small degree of inflammation of the synovium although, in today's clinical environment, it is largely overlooked unless it has some specific treatable immunological basis, such as rheumatoid arthritis. Therefore, it would be my feeling that Mr Connors (sic) condition does meet the definition for which there is Statement of Principles…" (Exhibit A3).
Dr W P Lennon, Orthopaedic Surgeon
Dr Lennon provided a report dated 17 March 2000 (Exhibit R1), in addition to supplementary reports of 23 February 2001, 30 March 2001 (Exhibit R2) and 29 June 2001 (Exhibit R3).
In his first report, Dr Lennon noted Mr Connors' history in Vietnam, particularly in relation to the incident on 23 February 1971 when there was a "huge explosion" and Mr Connors was thrown across the kitchen hitting a wall. Mr Connors told Dr Lennon that his hair was on fire and he had twisted his right knee. Mr Connors further informed Dr Lennon that he had a small "internal twitch" of pain to the right knee, but did not mention any discomfort to the doctors because he was only 21 years of age and did not wish his fellow soldiers to think that he was weak. Dr Lennon took a history of Mr Connors having soot and grime in his eyes, staying one day in hospital where drops were placed in his eyes and of Mr Connors continuing off duty for a period of three or four days.
Dr Lennon noted an arthroscopy performed on Mr Connors, at St. David's Private Hospital on 23 June 1994, which revealed an unstable articular cartilage flap tear with unstable chondral fractures but with no other abnormality. The chondral flap was debrided and Mr Connors continued at that time on a program of quadriceps drill. There was no physiotherapy and no medication after the arthroscopy. Dr Lennon further noted an MRI scan at Royal North Shore Hospital revealing an abnormality in the lateral tibial plateau without a definitive diagnosis but a statement that there may have been a "stress reaction". At that time Mr Connors was noted to have knee discomfort, which continued to settle, but had a slight ache in the lateral compartment towards the end of the week and in the late afternoon. These symptoms did not however interfere with his activities or enjoyment of life.
On examination, Dr Lennon noted that Mr Connors was ambulant without a limp and examination of his right knee reviewed a full active and passive range of motion without discomfort. Dr Lennon noted no evident instability with normal patellar tracking. There was an evident retropatellar "click" with slight crepitus.
Dr Lennon opined that Mr Connors had a "vague" injury to his right knee following an explosion in February 1971. At the time of Dr Lennon's examination, Mr Connors noted he had a "twinge" of pain some 29 years from the date of the 1971 accident. Dr Lennon noted that Mr Connors continued in full active duty, post discharge, in the catering services, but had knee problems "following prolonged standing at cooking while working with Westpac between 1974 and 1988". Dr Lennon noted that Mr Connors consulted Dr Hannam in 1993, 22 years later and was then referred to Dr P Gray, Orthopaedic Surgeon. Dr Lennon concluded:
"I doubt that in any way the continuing symptoms in the right knee are related to the incident, the 'gas explosion' in Vietnam and the continuing symptoms (sic) simply due to degenerative osteorarthrosis of the right knee of constitutional origin, age related and degenerative in nature and could be attributed to the continuing activity of catering post Service with periods of prolonged standing and associated kneeling activities, (evident callosities in the prepatellar tendon areas)." (Exhibit R1)
Dr Lennon assessed Mr Connors under Table 3.6 of the Guide as having a five point impairment rating.
In a further report of 23 February 2001, Dr Lennon doubted Dr Giblin's hyphothesis that the chondral flap could have had any relationship to the so called "twisting injury" in February 1971 following the explosion. Dr Lennon reported that the chondral flap is significantly simply part of the process of osteoarthrosis of the knee and not a specific traumatic injury. The X-ray of 10 November 1993 revealed evident degenerative changes and the MRI scan of 23 October 1994 revealed changes in the lateral compartment of the knee in the lateral tibial condyle and the symptomatology was over the lateral knee and not in the medial knee. Dr Lennon doubted that healing of the area with fibro cartilage, as suggested by Dr Giblin, could not have revealed itself until 1994 when Mr Connors had an arthroscopy. Dr Lennon further opined that Mr Connors may have suffered a simple soft tissue injury with the discomfort subsiding.
Dr Lennon remained of the opinion that Mr Connors suffers from idiopathic osteoarthrosis of the right knee, very mild in nature, and certainly not from chondromalacia patellae or internal derangement of the knee. Dr Lennon opined that the most probable date of onset of the condition was at any time between 1974 and 1989, while Mr Connors was working with Westpac in the catering business. He experienced continuing progressive aggravation following periods of continual kneeling and prolonged standing, significant since 1992 and occurring intermittently for six to eight years prior in 1984 or 1986.
Dr Lennon concluded that the chondral flap tear of the medial femoral condyle was part of the natural history of idiopathic osteoarthrosis and not the cause of the initial arthrosis, which would be then post traumatic in nature and not idiopathic. This view was consistent with Mr Connors' history to Dr Lennon of a twinge of pain at the time of the 1971 accident, which rapidly settled. Pain in the knee became worse in May 1991, when Mr Connors' complained to his wife and subsequently consulted Dr Hannam in November 1993, some 22 years later.
On 30 March 2001, Dr Lennon reported that, having read Dr Giblin's recent report, he remained of the opinion that Mr Connors is suffering idiopathic osteoarthrosis of the knee rather than post traumatic osteoarthrosis of the knee and the osteochondral flap is part of degenerative process associated with progressive changes.
On 29 June 2001, Dr Lennon provided a further report, in which he noted material including: a report from Dr P Gray; plain X-rays; an arthroscopy report; and an MRI scan in 1994. This evidence indicated to Dr Lennon that Mr Connors' right knee problem had no causal relationship to the suggested injury of 1971 (Exhibit R3).
Submissions and Findings on DiagnosisThe Applicant and Respondent first provided submissions in relation to the diagnosis of Mr Connors' right knee condition.
Mr Dawson, for the Applicant, submitted that Dr Giblin's second report maintains his previous view that internal derangement of the knee is a very broad and non-specific mechanical description. Accordingly, Dr Giblin opined that chrondomalacia of the femoral condyle would meet the general non-specific description of internal derangement of the knee. Dr Giblin further concluded that chrondomalacia is a form of osteoarthrosis, as it does not amount to a defective integrity of the articular cartilage and related change in the underlying bones and joint margins.
Mr Dawson conceded however that a diagnosis of internal derangement of the knee does not assist Mr Connors. The definition of internal derangement of the knee means:
"torn, ruptured or deranged meniscus of the knee, or torn or stretched collateral, cruciate or capsular ligament of the knee, resulting in ongoing or intermittent signs and symptoms such as pain, instability or abnormal mobility of that knee."
Mr Dawson submitted that it is certainly open to the Tribunal to find that osteoarthrosis of the right knee was the correct diagnosis, particularly as both Dr Giblin and Dr Lennon accept this diagnosis. The matter of diagnosis was complex.
Mr Marsh, for the Respondent, submitted that in relation to the diagnosis of Mr Connors' right knee condition, both Orthopaedic Surgeons, Dr Giblin and Dr Lennon, have common ground in the final diagnosis of Mr Connors' condition as osteoarthrosis of the right knee. Reference to T6, p5, Dr Gray's report of 23 June 1994, notes that the medial meniscus was intact, the anterior cruciate was intact but there was a significant unstable articular cartilage flap tear with surrounding unstable chondral fractures. This latter description is part of the osteoarthrosis process, Mr Marsh submitted, and does not support a diagnosis of internal derangement of the knee. Mr Marsh urged the Tribunal to note the results of the arthroscopy, the MRI scan and X-ray reports which all support a diagnosis of osteoarthrosis of the right knee.
Mr Marsh referred to Dr Lennon's initial report of 17 March 2000, where Dr Lennon concluded that osteoarthrosis of the right knee was constitutional in origin, age-related and degenerative in nature. (Exhibit R1, p7). Further, Mr Marsh referred the Tribunal to Dr Lennon's second report of 23 February 2001 where he was still of the firm view that the correct diagnosis of Mr Connors' right knee condition is idiopathic osteoarthrosis and not chondromalacia patellae or internal derangement of the knee.
Mr Marsh submitted that Dr Giblin's opinion, as expressed in his initial report of 17 March 2000, while coming to a diagnosis in a "round about sort of way", was entirely consistent with Dr Lennon's opinion on diagnosis. Further, when reference was made to the specific definitional requirements to internal derangement of the knee, such a diagnosis was not supported by the material. The overwhelming evidence does not support internal derangement of the knee and specifically, Mr Marsh referred the Tribunal to T6, pp 35 and 39.
Mr Marsh contended that a diagnosis of chondromalacia patellae is also not met, noting objective medical evidence particularly the report of the arthroscopic procedure in which the patellar is reported to be normal. Mr Marsh submitted that the correct diagnosis is osteoarthrosis and that Mr Connors meets the definitional requirements of this condition.
The Tribunal took the opportunity at the outset to make a finding in relation to the diagnosis of the conditions in order that the hearing could proceed on the basis of a known and agreed diagnosis. Having viewed the medical evidence both in the form of opinion, objective medical tests and medical examination, the Tribunal is reasonably satisfied, noting the decision in Repatriation Commission v Cooke (1998) 90 FCR 307 that the correct diagnosis of Mr Connors' right knee condition is oesteoarthrosis. The Tribunal finds that Mr Connors meets the definitional requirements contained in the relevant Statement of Principles, Instrument No 41 of 1998 concerning Osteoarthrosis, which defines osteoarthrosis as:
"2. (b) …a heterogenous group of clinical joint disorders, associated with inflammation of the synovium and defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following clinical characteristics:
(a) a history of pain;
(b) impaired function;
(c) joint swelling;
(d) stiffness,
attracting ICD-9-CM code 715…"
General Submissions
Mr Dawson submitted that Mr Connors is an applicant who is open and honest. There was no attempt by Mr Connors to embellish his claim. He answered questions honestly even when this was not to his advantage, Mr Dawson submitted.
Mr Dawson contended that the hypothesis is that Mr Connors was either thrown across the room as a result of the gas explosion hitting his knee or he fell down on his knee. In any event, Mr Dawson submitted that Mr Connors right knee was injured. Mr Connors had had no right knee problems prior to the February 1971 incident.
Mr Dawson submitted that within the relevant Statement of Principles concerning Osteoarthrosis, Instrument No 41 of 1998, there are two factors which fit Mr Connors' circumstances.
Firstly, Factor 5(d) of the relevant Statement of Principles states:
"(d) suffering an intra-articular fracture of a joint before the clinical onset of osteoarthrosis in that joint;…"
Paragraph 8 states:
""intra-articular" fracture means a fracture involving the articular surface of a joint;…"
Mr Dawson submitted that the MRI Scan of 23 October 1994 noted that there were low-density changes which could represent old stress lines and thus a possible stress fracture. The issue here is whether old stress lines can be seen as a possible stress fracture.
Another relevant factor submitted by Mr Dawson is that of Factor 5(j) which states:
"(j) suffering a trauma to a joint before the clinical onset of osteoarthrosis in that joint;…"
Paragraph 8 states:
""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 seven days immediately after the injury occurs…"
In relation to the definition of trauma, Mr Dawson referred the Tribunal to Arnott v Repatriation Commission (2000) 62 ALD 125 in which Sundberg J noted at 132:
"15. In my view the word "acute" in the definition contemplates symptoms etc that are severe or significant. The temporal factor is already dealt with by the words "injury… that causes the development, within 24 hours of the injury being sustained…" Since a precise temporal element has been stipulated, it would be strange if "acute" were to mean "of sudden onset". The Tribunal thought "acute" meant sudden and severe. It decided the issue against the applicant on the ground that the ankle and wire incidents did not give rise to severe symptoms rather than because the symptoms were not of sudden onset…"
While acknowledging that all of the elements of the definition need to be met, Mr Dawson submitted that the problem for Mr Connors is that his temporary blindness masked the impact of his injury to his right knee. Mr Connors was mostly confined to bed and the flare-up of the knee occurred when he was no longer confined to bed and his eye problem had subsided. There was a great deal of pain from Mr Connors' eyes, Mr Dawson contended, and the medication Mr Connors was given for the eye condition may have masked his right knee pain. Mr Dawson submitted that the Act is beneficial legislation and the Tribunal must apply common sense in this matter. In making its decision, Mr Dawson submitted that the Tribunal must take into account the fact that Mr Connors was in shock and fearful that he had lost his sight or even an eye. Because Mr Connors' primary concern was the possible loss of his sight and he was bedridden, Mr Dawson submitted that symptoms from his right knee were not apparent. It was only after Mr Connors' eyes were cleared and he was back at work that he noticed the right knee symptoms. The 1971 incident occurred in the context of Mr Connors being a young 21 year old, frightened and facing the potential loss of his sight. He also was in a situation where there were very seriously wounded people around him and he was wishing to present a brave face. Mr Dawson noted that the trauma factor produced an anomaly in that if Mr Connors had been unconscious, then he would not have been in any position to be able to meet the trauma definition, if his period of loss of consciousness was beyond seven days.
Mr Dawson referred the Tribunal to Repatriation Commission v Stares (1996) 66 FCR 594 in which Black CJ, Ryan and Einfield JJ discussed the joint judgement in Byrnes v Repatriation Commission (1993) 177 CLR 564. In Repatriation Commission v Stares [supra] at 601, their honours noted that in Byrnes [supra]:
"their honours were not erecting a requirement that each element in the hypothesis must be supported by evidence tending to establish it. Such a requirement would convert the hypothesis to a prima facie conclusion. It is trite to observe that a hypothesis is no more than a supposition or conjectural explanation of an ultimate fact…"
Sundberg J, in Arnott v Repatriation Commission [supra], further noted that in Repatriation Commission v Stares [supra], the primary judge did not hold that a reasonable hypothesis for the purpose of subsection 120(3) may be raised by an assumed fact in isolation. The assumed fact has to be considered by the decision-maker in light of all the other material. Much of the other material bears directly on the hypothesis. Mr Dawson submitted that Mr Connors gave the best recollection he had and because of his non-walking situation and his concern about his eyes he was less able and attentive to the condition of his right knee. The Statutory Declaration of Mr Vigh had direct bearing on this matter and was not a recollection but Mr Vigh's direct experience of the situation, which Mr Connors himself had experienced.
In Harris v Repatriation Commission (2000) 62 ALD 174, Mr Harris was unable to recall whether he had any restriction of movement in his back. Finn J noted that in relation to the requirement in the trauma factor of the lumbar spondylosis Statement of Principles related to altered mobility, while Mr Harris could not himself recall altered mobility, a report from a doctor provided material consistent with the possibility of altered mobility. Although the doctor's evidence was not overt, Finn J concluded that the Tribunal had this in the material before it in addition to Mr Harris' evidence. In such circumstances, Finn J determined that the Tribunal, when dealing with the third step of the steps outlined in Repatriation Commission v Deledio (1998) 83 FCR 82, was not concerned with proof or disproof of the various factors in a Statement of Principles, but whether material before it was consistent with the existence of those factors, or else properly allow one or more of them to be assumed, so permitting the Statement of Principles to uphold the Applicant's hypothesis.
Mr Dawson submitted that such cases turn on their own facts. It was impossible, Mr Dawson contended, to suggest that Mr Connors had nothing wrong with his right knee. Mr Dawson reiterated that the Tribunal must put Mr Connors' non-report of the right knee symptoms in the context of where he was, in a war zone, at a hospital where severe causalities and deceased soldiers were being brought in requiring more care than that of his right knee. Mr Connors considered his condition minor in the context of the severity of injuries of other soldiers.
Mr Dawson submitted that Mr Connors' circumstances met the template for both Factors 5(d) and 5(j) of the Statement of Principles concerning Osteoarthrosis and a hypothesis was raised in both circumstances, which was not disputed by the facts.
Mr Dawson concluded that in terms of the assessment of Mr Connors' osteoarthrosis of the right knee, should it be accepted by the Tribunal as being war-caused, both Dr Lennon and Dr Giblin had assessed the appropriate rating at five points. Because Mr Connors had other accepted war-caused conditions, Mr Dawson submitted that the matter of assessment should be remitted to the Commission for a combined and up-to-date assessment, with the Tribunal's finding that the osteoarthrosis of the right knee attracts a five point impairment rating from the Guide.
Mr Marsh, for the Respondent, submitted that the Respondent did not question Mr Connors' credibility. Mr Marsh noted that Mr Connors' evidence was consistent but unfortunately fatal to his meeting Factors 5(j) and 5(d) of the relevant Statement of Principles concerning Osteoarthrosis.
In relation to Factor 5(d) of Instrument No 41 of 1998, concerning Osteoarthrosis, Mr Marsh submitted that this factor had not been addressed by either Dr Lennon or Dr Giblin. There was no evidence, one way or the other, Mr Marsh submitted, of an intra-articular fracture. Dr Lennon had opined that Mr Connors had suffered a relatively minor soft tissue injury of the right knee as a result of the 1971 incident. Dr Lennon considered it to be inconceivable that someone could suffer an injury of the magnitude of Mr Connors' current condition and then not report it at that time or for another 20 years. This is particularly in the context of Mr Connors continuing in his heavy catering work after his discharge from the Australian Army.
Mr Marsh further referred the Tribunal to the fact that Mr Connors did not report on his discharge any right knee symptoms and the first notice of this appears to be some twenty years later when Mr Connors sought medical assistance from his General Practitioner, Dr Hannam, who referred him to Dr Gray. Neither Dr Hannam nor Dr Gray reported the issue of a trauma in Vietnam in 1971 causing his current right knee problem. Dr Lennon's opinion was that there was a minor soft tissue injury and Dr Giblin referred to a shearing injury.
Referring specifically to the trauma definition in relation to Factor 5(j) of the relevant Statement of Principles, Mr Marsh noted that the trauma definition is prescriptive. In Harris v Repatriation Commission [supra], Mr Marsh noted that Finn J discussed the issue of all the elements of the definition having to be satisfied if the factor itself if to be satisfied. This line of the authority was subsequently approved by the Full Court in Harris v Repatriation Commission (2000) 62 ALD 161 which states at 172:
"Once regard is had to these uncontroversial medical usages, it is apparent that the definition in SoP No 105 of 1995 required objective evidence of altered mobility or range of movement, such alterations lasting for a period of at least a week. Ordinarily, of course, the objective evidence would be accompanied by symptoms appreciated by the patient. This supports what his Honour described as the "balance" between the two clauses, the first of which required the "development" of what, for practical purposes, are objective symptoms "within 24 hours", and the second of which required that they "last for a period of at least one week immediately after the injury occurs". In our opinion, the requirement that symptoms, once developed, endure for a minimum period (in the absence of medical intervention) was intended to extend to "altered mobility or range of movement". It is unlikely that the provision relating to medical intervention was intended to apply only to cases of altered mobility or range of movement where intervention occurred within 24 hours. That, however, would be the consequence of the appellant's construction of the definition."
This line of authority has since been followed in Mason v Repatriation Commission [2000] FCA 1409, Arnott v Repatriation Commission [supra] and Cook v Repatriation Commission (2000) 106 FCR 448.
The Respondent did accept that Mr Connors had suffered some type of injury to his right knee but his evidence to the Board, as found in the transcript of the Board's hearing (Exhibit R7, p5 and p10), and his evidence to the Tribunal, does not reveal any acute symptoms and signs and altered mobility consistent with the requirements of the definition. Mr Connors' consistent evidence was that he was not going to seek medical assistance for a twinge. His description of knee problems to the Board, and the Tribunal, does not fall within the significant injury contemplated by the trauma factor in the Statement of Principles, Mr Marsh submitted.
Referring to the 1971 incident, Mr Marsh noted that Mr Connors' evidence to the Board and the Tribunal was of no swelling, or slight swelling, of no, or slight, tenderness after standing and no objective signs of altered mobility within 24 hours lasting a period of at least seven days. Further, Mr Connors received no treatment and was not stopped from undertaking any activity apart from the problem that was associated with his eyes. Dr Gray, in 1994, had reported only an 18 months' history of symptoms with Mr Connors not being aware of any trauma. These circumstances are consistent with a relatively minor injury in 1971 requiring no medication or treatment.
Further, Mr Marsh submitted that Mr Connors' Service Records are silent (T3, p13) on any circumstances which could support the definition of trauma. Mr Marsh noted that on 4 January 1971, Mr Connors had sought help for a blood blister on his foot (T3, p13). Mr Marsh submitted that if Mr Connors sought assistance for a minor problem such as a blood blister, then if his knee had been a problem, he would have sought medical assistance or reported that problem as well.
Mr Marsh urged the Tribunal to consider the explanatory note tabled with the amendment of the Statement of Principles concerning Osteoarthrosis, in which the RMA noted that the new definition of trauma reflected the fact that there needed to be internal damage to the joint, and not only the overlying soft tissue injury, for there to be an increase in the risk of osteoarthrosis. The explanatory note was referred to in Re Whitbourne and Repatriation Commission [2001] AATA 7 noting the definition of trauma envisaged more than a soft tissue injury.
Mr Marsh noted that from Repatriation Commission v Deledio [supra], the third step, as discussed in that case, requires that if a Statement of Principle is in force, then a decision-maker must form the opinion whether the hypothesis raised is a reasonable one by assessing if the hypothesis is consistent with the template found in the Statement of Principles. In Mr Connors' situation, and considering all the material of the objective medical evidence and other oral and documentary evidence, Mr Marsh contended that no reasonable hypothesis could be raised. This view was reinforced in Bull v Repatriation Commission [2001] FCA 823, in which the Court noted that whether material coming from various sources gives rise to a reasonable hypothesis, as the High Court said in Repatriation Commission v Owens (1996) 70 ALJR 904, is a question of fact. As with questions of fact, minds can differ. Gyles J in Bull v Repatriation Commission [supra], noted that the correct approach to be applied in terms of a reasonable hypothesis standard of proof was examined in Bushellv Repatriation Commission (1992) 175 CLR 408 and Byrnes [supra] and in Repatriation Commission v Deledio [supra]. An opinion is required pursuant to subsection 120(3) of the Act and must be formed prior to the consideration of subsection 120(1) of the Act. If a negative opinion is arrived at pursuant to subsection 120(3) of the Act, then there is no need to proceed further. Gyles J noted that the authorities established that there must be consideration of the whole material pursuant to subsection 120(3) but that does not mean that there is a requirement to be involved in fact finding, in the sense of accepting or rejecting particular part of the material before a decision-maker.
Mr Marsh noted Mr Connor's evidence is of occasional twinges of pain after the 1971 incident, which was noted by the Board. In all the circumstances and based on the material before it, Mr Marsh submitted that the Tribunal could not be of the opinion that the material met the trauma definition and in those circumstances a reasonable hypothesis was not made out.
If the Tribunal did accept that Mr Connors has a war-caused osteoarthrosis condition, then in the alternative, Mr Marsh submitted that the Tribunal should remit the assessment of the condition with all of Mr Connors' other conditions for a combined assessment up to-date.
FindingsThe Tribunal has reached a decision in this matter taking into account the oral and documentary evidence, the legislation and case law.
The Tribunal considers that Mr Connors is a credible witness who provided consistent and truthful evidence to the best of his ability.
As noted previously in this decision, the Tribunal is reasonably satisfied that based on Mr Connors' evidence and the expert medical opinions, the diagnosis of Mr Connors' right knee condition is osteoarthrosis of the right knee.
The general hypothesis submitted by Counsel for the Applicant is that when performing his duties on service in Vietnam in 1971, the explosion of a gas oven caused Mr Connors to suffer injuries, including an injury to his right knee. The further submissions are that Mr Connors' circumstances specifically meet Factors 5(d) and 5(j) of Instrument No 41 of 1998. Factor 5(d) requires that Mr Connors suffered an intra-articular fracture of the joint before the clinical onset of osteoarthrosis in the joint and Factor 5(j) requires that he suffered a trauma, as defined, to a joint, before the clinical onset of osteoarthrosis of that joint.
To determine the clinical onset, the Tribunal notes the consideration in Re Witten and Repatriation Commission (1998) 54 ALD 605 and Re Mansfield and Repatriation Commission [2000] AATA 435. In these cases it was considered that clinical onset means the onset of symptoms which a medical practitioner would diagnose as attributed to a medical condition, which, although they may not have been diagnosed during the relevant period, taking into account the symptoms described by a veteran, would with the benefit of hindsight, satisfy a medical practitioner that the clinical onset had been at that particular time. The Tribunal concludes that based on the evidence before it and noting Dr Lennon's opinion, that the onset of osteoarthrosis was between 1974 and 1986 at the latest.
The Tribunal notes Repatriation Commission v Deledio [supra] which discusses the necessary steps for a decision-maker to make when determining whether a reasonable hypothesis has been raised and whether that hypothesis has been proved beyond reasonable doubt. A decision-maker is required to consider all of the material before it to determine whether the material points to a hypothesis connecting the injury, disease or death with the circumstances rendered by the veteran. There is no question of fact finding arising at this stage. If no hypothesis is raised, then the application must fail. If the material does raise an hypothesis, then the Tribunal must ascertain if, as in Mr Connors' case, a Statement of Principles exists and whether the hypothesis raised is reasonable. If the general hypothesis fits or is consistent with the "template" contained with the relevant Statement of Principles, then it will be reasonable. A reasonable hypothesis must contain one or more of the factors which the RMA has determined to be the minimum which must exist. As was noted in Repatriation Commission v Deledio [supra] at FCR 97:
"…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…"
If a reasonable hypothesis is raised, then the Tribunal must proceed to consider under subsection 120(1) of the Act whether it is satisfied beyond reasonable doubt that in the case of the claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must fail. It is only at this stage that the Tribunal would be required to make findings of fact from the material before it.
Mr Dawson has submitted the general hypothesis, that a gas explosion caused an intra-articular fracture leading to the onset of osteoarthrosis of the right knee. Turning to Factor 5(d), the Tribunal notes the definition of intra-articular fracture meaning the fracture of the articulate surface of the joint. The Tribunal notes from Blakiston's "Gould Medical Dictionary" (Fourth Edition) that "fracture" means:
"A break in a bone, cartilage, tooth, or solid organ such as the spleen, usually caused by trauma."
Mr Dawson submitted that the MRI scan referred to "stress lines" and that could mean that there was a possible stress fracture. The possibility of a stress fracture was also noted by Dr Gray in his report of 18 November 1995 (T6, p37). The Tribunal also notes the arthroscopy report of 23 June 1994 which refers to unstable articular cartilage flap tear with surrounding unstable chondral fractures. From the "Gould Medical Dictionary", the Tribunal notes that "chondral" means:
"Cartilaginous; pertaining to cartilage."
The Tribunal also notes from the "Gould Medical Dictionary" that "intra-articular" means:
"Within a joint…"
Dr Gray has interpreted the 1994 MRI report of old stress lines as possibly representing a stress fracture. While this scan recommended a bone scan to be undertaken to ascertain if the stress lines were of recent origin, this procedure was never undertaken. Certainly the diagnosis from the arthroscopy in June 1994 of chondral fractures of the medial femoral condyle indicates a cartilaginous fracture and therefore not an intra-articular fracture. The question remains, however, of the possibility of a stress fracture.
Dr Gray raised a hypothesis of stress fracture based on the demonstrated abnormality in the lateral tibial plateau shown on the MRI scan in October 1994. Dr Gray noted Mr Connors' knee pain settling over time in 1994, with only a slight ache in the lateral compartment of his knee towards the end of the week. From these symptoms, Dr Gray hypothesised that there may well be an area on the tibia representing a stress fracture. This is not a fanciful hypothesis nor beyond scientific possibility. Accordingly, the Tribunal considers that on all the material, Factor 5(d) is met and a reasonable hypothesis raised pursuant to subsection 120(3) of the Act.
The Tribunal turns to consider whether or not pursuant to subsection 120(1) of the Act, the Tribunal can accept sufficient facts as are necessary to support the raised hypothesis.
Dr Gray has hypothesised that there is a possible stress fracture. Neither Dr Lennon nor Dr Giblin, who both had the same material as Dr Gray, raise any hypothesis or make any finding that there is a stress fracture. Further, even if it was conclusive that there was a stress fracture, the fact that Mr Connors did not seek medical attention until 1993, and the MRI scan in 1994 notes stress lines, suggests a more recent origin of a possible stress fracture.
In all the circumstances, the Tribunal is satisfied beyond reasonable doubt that there are insufficient facts to support a reasonable hypothesis that Mr Connors' had an intra-articular fracture which caused osteoarthrosis of his right knee. In reaching this conclusion, the Tribunal noted the Full Court decision in Repatriation Commission v Bey (1997) 79 FCR 364 in which the court reiterated at 372-373 that:
"A "reasonable hypothesis" involves more than a mere possibility. It is a hypothesis pointed to by the facts, even though not proved upon the balance of probabilities."
The Tribunal now turns to consider Factor 5(j) as to whether or not there has been a trauma, as defined, prior to the onset of osteoarthrosis of the right knee.
The definition of trauma requires a number of elements to be met namely that there is, within 24 hours of the injury, acute symptoms and signs of pain, swelling, tenderness and altered mobility or range of movement of the joint.
As noted in Connors v Repatriation Commission (2000) 59 ALD 61, for a reasonable hypothesis to be raised by the material before it, the decision maker is required by subsection 120(3) of the Act to consider whether the material points to the hypothesised connection between the veteran's injury, disease or death, with the circumstances of his or her service. A connection cannot be left open as a possibility. Kenny J noted that it is not sufficient that the connection is consistent with the known facts. The material before the decision maker must raise the hypothesised causal connection. The Tribunal sees its task, therefore, as coming to a view as to whether or not the material raises the hypothesised cause or connection of trauma, in this case through to osteoarthrosis. The Tribunal also takes the view that if an essential element of the hypothesis is not raised or pointed to, that is, in this case trauma, by the material before it, then the hypothesis is not made out. The Tribunal is confirmed in this view by noting Repatriation Commission v McKenna (1999) 86 FCR 144 and Repatriation Commission v Gosewinkel (1999) 59 ALD 690.
The Tribunal does not consider itself to be fact finding by proceeding on the basis that the material before it has to fit one of the factors set out in the Statement of Principles, and in Mr Connors' circumstances that factor being Factor 5(j).
Mr Connors provided evidence to the Board and to the Tribunal that after the incident in February 1971, Mr Connors was only thinking about his eyes. He was only given medical treatment for this. The result of his eye condition was that he was confined to bed for three or five days, only getting up twice a day to walk to the toilet and to have a shower. Mr Connors' evidence was that he had no trouble walking and that at the time following the injury, he had twinges of pain but no tenderness and did not report anything to the medics. This is not to say that Mr Connors did not sustain injuries himself and the reports of Mr Vigh and Mr Frangos support this. There is no material before the Tribunal however from Mr Connors, Mr Vigh or Mr Frangos, that there was any discrete injury to his knee. While Mr Vigh declared that Mr Connors was bruised, Mr Connors did not provide this evidence nor was there any such report in his service documents. The material indicates that if there was any problem with his knee at that time, it was very slight and not to the extent required to satisfy the trauma definition. If there was swelling, it was also very slight. There was no notation in the medical report of trauma to the knees or of altered mobility or range of movement. What symptoms might have appeared did not last for a period of seven days immediately after the injury. In these circumstances, the Tribunal finds that the material before it does not meet the definitional requirements of Factor 5(j) of Instrument No 41 of 1998 concerning Osteoarthrosis. Therefore, as Factor 5(j) is not met, then a reasonable hypothesis is not raised.
Having reviewed the whole of the material before it and for the reasons expressed above, the Tribunal finds that none of the minimum factors set out in Statement of Principles Instrument No 41 of 1998 is raised by the evidence in this case. The Tribunal is of the opinion therefore that the material does not raise a reasonable hypothesis within subsection 120(3) of the Act. Accordingly, the Tribunal is satisfied beyond reasonable doubt, for the purposes of subsection 120(1) of the Act that there is no sufficient ground for determining that Mr Connors', condition of osteoarthrosis of the right knee was war-caused.
In all the circumstances, the Tribunal decides pursuant to Section 43 of the Administrative Appeals Tribunal Act 1975 that:
1.The diagnosis of Mr Connors' right knee condition is varied from chrondomalacia patellae of the right knee to osteoarthrosis of the right knee.
2.The Repatriation Commission's decision is affirmed, noting the Tribunal's variation of the diagnosis of the claimed right knee condition. This means that the Repatriation Commission decision remains unchanged.
I certify that the 98 preceding paragraphs are a true copy of the reasons for the decision herein of Ms S M Bullock, Senior Member and Dr J Campbell, Member
Signed: .....................................................................................
AssociateDate of Hearing 18 July 2001
Date of Decision 29 October 2001
Counsel for the Applicant Mr N Dawson
Solicitor for the Applicant R L Whyburn and Associates
Counsel for the Respondent Mr M Marsh, Senior Departmental Advocate
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