Corney and Repatriation Commission
[2010] AATA 598
•12 August 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 598
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2008/5578
VETERANS' APPEALS DIVISION ) Re GREGORY THOMAS CORNEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member K Bean
Mr S J Ellis AM (Member)Date12 August 2010
PlaceAdelaide
Decision The Tribunal varies the decision under review so as to add the following:
(a) the applicant does not suffer and has not at any relevant time suffered from the condition of chondromalacia patellae of his right knee, as defined in SoP No 34 of 2001; and
(b) although he suffers from the conditions of osteoarthritis and osteoarthrosis of his right knee as defined in SoP No 32 of 2005 and SoP No 14 of 2010, neither of those conditions is a defence-caused condition within the meaning of s 70 of the Veterans’ Entitlements Act 1986 (Cth).
The Tribunal otherwise affirms the decision under review...............................................
K BEAN
(Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – osteoarthritis – osteoarthrosis – chondromalacia patellae – on the balance of probabilities the applicant does not suffer from chondromalacia patellae – the applicant does suffer from osteoarthritis/osteoarthrosis – however the SoPs in relation to those conditions are not satisfied – those conditions are not defence-caused – decision under review affirmed in substance.
Veterans’ Entitlements Act 1986 ss 13(1), 70(5), 120(4), 120B
Statement of Principles Instrument No 32 of 2005
Statement of Principles Instrument No 14 of 2010
Statement of Principles Instrument No 34 of 2001
Statement of Principles Instrument No 60 of 1997Statement of Principles Instrument No 52 of 2010
Gorton v Repatriation Commission (2001) 63 ALD 723
Repatriation Commission v Budworth (2001) FCA 1421REASONS FOR DECISION
12 August 2010 Senior Member K Bean Mr S J Ellis AM (Member) 1. The applicant, Gregory Thomas Corney, served in the Australian Army from 25 May 1975 to 16 June 1978. He claims that during his Army service he injured his right knee twice, once during recruit training at Kapooka in July 1975 and again in August 1975 during recruit training at Singleton. He claims that his knee continued to trouble him throughout his Army service and after his discharge, and on 12 October 2007, he lodged a claim for a disability pension under the Veterans’ Entitlements Act 1986 (the VE Act) in relation to both knees.
2. On 6 January 2008, the respondent (the Commission) accepted a diagnosis of osteoarthrosis affecting both knees, but rejected Mr Corney’s claim. On 25 January 2008, Mr Corney lodged an application with the Veterans’ Review Board (the VRB) seeking a review of the Commission’s determination. On 29 October 2008, the VRB affirmed the Commission’s decision, but also alluded to the possibility that Mr Corney may have chondromalacia patellae of his right knee.
3. On 26 November 2008, Mr Corney lodged an application with this Tribunal seeking review of the Commission’s original decision as varied by the VRB.
4. An initial hearing in this matter took place on 15 January 2010. However, following that hearing and prior to any decision being handed down, a further relevant Statement of Principles was promulgated. That further Statement of Principles (SoP) is the SoP concerning osteoarthritis, Instrument No 14 of 2010 which took effect from 10 March 2010. As this SoP differs in some relevant respects from the previous SoP relating to osteoarthrosis, Instrument No 32 of 2005, a further short hearing was convened on 24 March 2010 at which the implications of the new SoP were addressed.
5. Following that hearing, a further SoP was promulgated in relation to internal derangement of the knee, being Instrument No 52 of 2010. The parties were each given an opportunity to make further written submissions in relation to that SoP, however each party indicated that they had no further submissions to make arising from that SoP.
legislative framework
6. In order to be entitled to receive a pension as a result of the conditions for which he has claimed, Mr Corney must satisfy the relevant provisions of the VE Act. The most relevant of these are set out below:
“70 Eligibility for pension under this Part
…
(5)For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
(b)subject to subsection (8), the death, injury or disease, as the case may be, resulted from an accident that occurred while the member was travelling, during any defence service or peacekeeping service of the member 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 upon having ceased to perform duty; or
(c)the death is to be deemed by subsection (6) to be defence-caused, the injury is to be deemed by subsection (7) to be a defence-caused injury or the disease is to be deemed by subsection (7) to be a defence-caused disease, as the case may be; or
(d)the injury or disease from which the member died, or is incapacitated:
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of 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 defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease; or
(e)the injury or disease from which the member died is an injury or disease that has been determined in accordance with this section other than this paragraph to have been a defence-caused injury or defence-caused disease, as the case may be;
Note:The effect of paragraph (e) is that, if the member has died from an injury or disease that has already been determined by the Commission to be defence-caused, the death is to be taken to have been defence-caused. Accordingly the Commission is not required to relate the death to defence service or peacekeeping service rendered by the member and sections 120A and 120B do not apply.
but not otherwise.”
7. The matter must be determined in accordance with the standard of proof referred to in s 120(4) of the VE Act, which provides as follows:
“120 Standard of proof
…
(4)Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.”
8. The Tribunal must also determine the matter in accordance with the provisions of s 119 of the VE Act, taking into account in particular any difficulties attributable to:
(a) the effects of the passage of time, including its effect on the availability of witnesses; and
(b) the absence of, or a deficiency in, relevant official records.
9. As Mr Corney’s claim was lodged after 1 June 1994, s 120B of the VE Act also applies. That section relevantly provides as follows:
“120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(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 eligible war service (other than operational service) rendered by a veteran;
(b)a claim under Part IV that relates to the defence service (other than hazardous service) rendered by a member of the Forces.
…
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii)a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.”
10. There are five SoPs which are relevant to the determination of this matter:
·Instrument No 32 of 2005 relating to osteoarthrosis;
·Instrument No 14 of 2010 relating to osteoarthritis;
·Instrument No 34 of 2001 relating to chondromalacia patellae;
·Instrument No 60 of 1997 relating to internal derangement of the knee; and
·Instrument No 52 of 2010 relating to internal derangement of the knee.
11. Instrument No 32 of 2005 in relation to osteoarthrosis relevantly provides as follows:
“Kind of injury, disease or death
3. (a) …
(b) For the purposes of this Statement of Principles, “osteoarthrosis” means a clinical joint disorder associated with progressive loss of articular cartilage, sclerosis of the underlying bone, proliferation of bone and cartilage at the joint margins, and inflammation of the synovium, as well as a history of pain, impaired function and stiffness.
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, osteoarthrosis or death from osteoarthrosis is connected with the circumstances of a person’s relevant service is:
…
(f) having a trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis in that joint; or
…
(m) for osteoarthrosis of a knee joint only, having internal derangement of the knee before the clinical onset of osteoarthrosis in that joint; or
…
(t) having a trauma to the affected joint within the twenty-five years before the clinical worsening of osteoarthrosis in that joint; or
…
Factors that apply only to material contribution or aggravation
7. Paragraphs 6(o) to 6(zc) apply only to material contribution to, or aggravation of, osteoarthrosis where the person’s osteoarthrosis was suffered or contracted before or during (but not arising out of) the person’s relevant service.
Other definitions
9. For the purposes of this Statement of Principles:
…
“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.
…”
12. Instrument No 14 of 2010 in relation to osteoarthritis relevantly provides as follows:
“Kind of injury, disease or death
3. (a) …
(b) For the purposes of this Statement of Principles, “osteoarthritis” means a degenerative joint disorder with:
(i)clinical manifestations of pain, impaired function and stiffness; and
(ii)radiological, other imaging or arthroscopic evidence of loss of articular cartilage or osteophytes.
Other commonly associated features are sclerosis of the underlying bone and inflammation of the synovium.
This definition excludes acute traumatic chondral defect and osteochondritis dissecans.
…
Factors
6. The factor that must exist before it can be said that, on the balance of probabilities, osteoarthritis or death from osteoarthritis is connected with the circumstances of a person’s relevant service is:
…
(f) having trauma to the affected joint within the25 years before the clinical onset of osteoarthritis in that joint; or
…
(h)having disordered joint mechanics of the affected joint for at least five years before the clinical onset of osteoarthritis in that joint; or
…
(p)for osteoarthritis of a knee joint only,
(i)kneeling or squatting for a cumulative period of at least one hour per day, on more days than not, for a continuous period of at least two years before the clinical onset of osteoarthritis in that joint, and where the clinical onset of osteoarthritis in that joint occurs within the 25 years following that period; or
(ii)having internal derangement of the knee before the clinical onset of osteoarthritis in that joint; or
(q)for osteoarthritis of the patello-femoral joint only, having chondromalacia patellae before the clinical onset of osteoarthritis in that joint; or
…
Other definitions
9. For the purposes of this Statement of Principles:
…
“disordered joint mechanics” means maldistribution of loading forces on that joint resulting from:
(a)a rotation or angulation deformity of the bones of the affected limb; or
(b)a rotation or angulation deformity of the joint of the affected limb;
…
“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.
…”
13. Instrument No 34 of 2001 in relation to chondromalacia patellae relevantly provides as follows:
“Kind of injury, disease or death
2. (a) …
(b) For the purposes of this Statement of Principles, “chondromalacia patellae” means softening, fibrillation or erosion of the articular cartilage of the patella associated with recurrent or chronic patellofemoral pain, attracting ICD-10-AM code M22.4, but excluding osteoarthrosis of the patellofemoral joint.
…
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, chondromalacia patellae or death from chondromalacia patellae is connected with the circumstances of a person’s relevant service are:
(a) suffering direct trauma to the patella of the affected knee within the three months immediately before the clinical onset of chondromalacia patellae; or
(b) suffering an injury to the affected knee resulting in meniscal damage or permanent ligamentous instability within the three months immediately before the clinical onset of chondromalacia patellae; or
(c) suffering abnormal tracking of the patella of the affected knee at the time of the clinical onset of chondromalacia patellae; or
(d) suffering direct trauma to the patella of the affected knee within the three months immediately before the clinical worsening of chondromalacia patellae; or
(e) suffering an injury to the affected knee resulting in meniscal damage or permanent ligamentous instability within the three months immediately before the clinical worsening of chondromalacia patellae; or
(f) suffering abnormal tracking of the patella of the affected knee at the time of the clinical worsening of chondromalacia patellae; or
…
Factors that apply only to material contribution or aggravation
6.Paragraphs 5(d) to 5(g) apply only to material contribution to, or aggravation of, chondromalacia patellae where the person’s chondromalacia patellae was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.
Inclusion of Statements of Principles
7. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
Other definitions
8. For the purposes of this Statement of Principles:
…
“direct trauma to the patella” means a blow to the kneecap causing immediate patellar pain that persists for at least 24 hours unless alleviated by analgesia;
…”
14. Instrument No 60 of 1997 in relation to internal derangement of the knee also relevantly provides as follows:
“Kind of injury, disease or death
2. (a) …
(b) For the purposes of this Statement of Principles, “internal derangement of the knee” means a chronic disorder of the knee due to (alone or in combination) 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, attracting an ICD code in the range 717.0-717.5, or ICD code 717.8 or 717.9. This definition excludes chondromalacia patellae, congenital discoid meniscus, cysts of the menisci and other degenerative processes such as osteoarthrosis, and loose bodies in the knee joint.
Note to user (this note is not part of the legal wording of this instrument):
If chondromalacia patellae, congenital discoid meniscus, cysts of the menisci or osteoarthrosis is claimed, reference is to be made to the relevant Statement of Principles (if any exists) for that disease.
…
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, internal derangement of the knee or death from internal derangement of the knee is connected with the circumstances of a person’s relevant service are:
(a) suffering a direct trauma or a twisting or wrenching injury to the affected knee:
(i) within the six months immediately before the clinical onset of internal derangement of the knee; and
(ii) resulting in pain and swelling of the knee within the 2 hours immediately following the trauma or injury; or
(b) suffering a direct trauma or a twisting or wrenching injury to the affected knee:
(i) within the six months immediately before the clinical worsening of internal derangement of the knee; and
(ii) resulting in pain and swelling of the knee within the 2 hours immediately following the trauma or injury; or
…”
15. Although it is different from Instrument No 60 of 1997 in some respects, for the purposes of this matter Instrument No 52 of 2010 is relevantly identical to Instrument No 60 of 1997. In particular, the definition of “internal derangement of the knee” contained in Instrument No 52 of 2010 is not materially different from that contained in Instrument No 60 of 1997[1].
[1] The minor differences between the two definitions are set out at [56] below.
issues
16. Having regard to the above legislative framework, the main issues for determination by the Tribunal in this matter are as follows:
(a)the correct diagnosis of the right knee condition the subject of Mr Corney’s claim;
(b) when any such condition had its onset;
(c) whether the material before the Tribunal “raises” a connection between any right knee condition suffered by Mr Corney and his service;
(d)whether there is a SoP in force in relation to any condition suffered by Mr Corney; and
(e)if so, whether the condition satisfies the SoP such that it is established to have been defence-caused.
evidence
Mr Corney
17. In his evidence before us, Mr Corney gave an account of his injuries which was largely consistent with histories he had provided earlier, including in a letter to the Commission dated 10 March 2009[2]. He said that in July 1975 during recruit training at Kapooka, he was playing football during sports sessions when he accidentally kicked another player, injuring his right knee. In his letter, he stated “My right knee instantly swelled up and I could hardly walk”. He claimed he sought treatment from the regimental aid post (RAP) and was placed on light duties for a couple of days. When the swelling went down, he continued his recruit training and was posted to the Infantry Training Centre at Singleton. When he was at Singleton undertaking further training, he was doing “contact drills with lots of running, jumping, crawling, and carrying weapons and full combat gear” when he “dove onto the ground and hit my right knee hard”[3]. He claimed his knee again swelled up and was very painful and he could barely walk. He claims he was again sent to the RAP and was again placed on light duties, including no running or hiking.
[2] Exhibit 4
[3] Exhibit 4
18. He said that after a week or so, an appointment was made for him to see a specialist Army doctor at Liverpool Barracks in Sydney, which he did. He claims that he returned to Singleton, but because of his injury he was “back squaded” and he was transferred to Townsville 2/4 Battalion to complete his initial employment training. In his letter, he claimed that he was still on light duties for approximately half this course and visited the RAP regularly to have restrictive bandages changed. After that period of treatment, he said that the swelling went down and he completed the course. However, he continued to have discomfort in his knee and during the ensuing two and a half years when he was an infantry soldier, he said “my knee continued to be painful and would occasionally swell up”[4]. He claimed “my knee has continually swelled over the last 30 years” and stated “I now have arthritis in both knees and I am in constant pain”[5].
[4] Exhibit 4
[5] Exhibit 4
19. He acknowledged that prior to joining the Army, in 1973 he had problems with his right knee in that whilst he was playing junior football, his knee would collapse on him. Because of this, he had an operation on his knee at that time, when he was 17 or 18 years old, and some of the cartilage was removed from his knee. He pointed out that this was disclosed to the Army when he joined.
20. He also claimed that he had mentioned his knees to the medical officer at discharge, but the doctor did not record this. He said that, despite the operation he had had before he joined the Army, his knee had been “fine” when he joined the Army. However, following the injuries in 1975, his right knee had caused him constant problems as a result of which he had never played sport after the injuries. He also acknowledged however that, despite the problems he suffered with his knee, he had not sought any treatment for his knees until March 2002. He said the pain had become significantly worse in the last 10 years. Whilst he had not sought treatment earlier than 2002, he claimed that he would have mentioned the problem with his knee to his doctor, Dr Wong, and probably also mentioned it to his previous general practitioner, Dr Fung, who was now retired.
21. Although the medical documents contained no record of it, under cross-examination Mr Corney maintained that he had spoken to Dr Fung about his knee problems over the years, although he could not recall precisely when. He was also questioned about a confidential medical report completed on 5 August 1991 in which he had stated that he had not ever suffered from arthritis or gout. He initially stated that he had not completed this form, but when it was pointed out to him that he had signed it at the bottom of the relevant page, he claimed he had signed it without reading it.
Service Records
22. Mr Corney’s service records confirmed that he reported having had a meniscectomy in March 1974 on entry[6]. It is also noted in his initial Medical Board Examination Record that he had not had any trouble since this operation and played football[7].
[6] T6/31
[7] T6/33
23. The service records also confirm that Mr Corney sought treatment on 10 July 1975 in respect of an incident the day before, when he was playing football and “accidentally booted another player instead of the ball”. The record goes on to state that Mr Corney now complained of a painful right knee which he “cannot bend when he walks on it”. The note records that on examination there was no swelling, no effusion, a full range of joint movement with some tenderness over the medial-femoral epicondyle. The note concludes “negligible damage only” and certifies Mr Corney fit for restricted duty on the basis of “minimal use right leg one day”[8].
[8] T6/39
24. Mr Corney’s service records also contain a note of a further medical attendance by him on 27 August 1975 at the 8C Hospital. On that occasion, the examining doctor reported in part the following:
“Painful right knee especially when running, cracking when walking/running.
? chondromalacia patellae”
25. This examination appears to have resulted in referral of Mr Corney to a specialist, who examined him on 4 September 1975 and reported as follows:
“Rt knee – clicking
- swelling after exercise
- pain
No locking, no giving way.
Retro patellae crepitis in full flexion.
Weakness ant. cruciate.
? rotatory instability
At this stage there is no convincing evidence of a meniscus injury.
Advice: continue light duties as at present for 1/12.
See if required.”
[9]
[9] T6/34
26. A further record also indicates that he was seen again at the medical centre at Lavarack Barracks on 6 September 1976 and on this occasion the medical officer reported relevantly as follows:
“L knee hurts on running.
R knee hurts also – cracking – pain.
R knee – crepitis – full ROM – [illegible].
L knee ROM – [illegible].”[10]
[10] T6/40
Other Records
27. A number of other relevant records, most of them medical, were also tendered into evidence before us.
28. Amongst the records of Mr Corney’s general practitioner was a medical report form completed in 1991 for the purposes of life insurance in which Mr Corney certified that he had not ever had any injury, deformity or disease of a joint or limb[11]. Mr Corney’s previous general practitioner, Dr Fung, also certified on this form that Mr Corney suffered no abnormality of the joints or limbs. A life insurance form completed by Dr Fung on 20 July 1987 also did not refer to any knee problem and in a report prepared for the then Department of Social Security on 29 July 1996, Dr Fung referred only to a back injury and dermatitis, in listing conditions which affected Mr Corney’s ability to work[12]. For the purposes of a medical and eyesight certificate to be provided to the Passenger Transport Board, Dr Wong also certified in 1996 that Mr Corney’s lower limbs including his joint movements were normal.[13]
[11] Exhibit 2
[12] Exhibit 2
[13] Exhibit 2
29. The notes of Mr Corney’s general practitioner also revealed that in 1993 Mr Corney suffered “sprained collateral ligament of knee (right)” and that on 20 January 1993, he reported that he was “Feeling tired at times. Leg aches. Cramps every night. Has some salt on food”.
30. As to more recent medical records, an x-ray reported on 13 March 2002 revealed osteoarthritic change in the medial compartment of Mr Corney’s right knee as well as mild osteoarthritic change in the patellofemoral articulation and some possible loose fragments[14]. His general practitioner’s notes for 13 March 2002 also record:
“Back and knee problem. Right knee constant pain – injury in the 1970s in the Army. Can’t kneel, can’t kick football. …
Knee clicking, swelling. Gives way.”[15]
[14] T8/52
[15] Exhibit 2
31. In a form provided to the Department of Veterans’ Affairs dated 20 June 2002 in which she was asked to provide information in relation to the condition of “internal derangement of the knee”, Dr Wong gave the date of onset for this in relation to the right knee as “1973”, citing “medial arthroscopy and cartilage removal Memorial Hospital”[16].
[16] Exhibit 2
32. In a medical impairment assessment form completed on 1 December 2007, Dr Wong also reported that Mr Corney had pain in both knees, stating as follows:
“Painful knees, right more than left, present all the time …”[17]
[17] T17/74
33. An MRI scan of Mr Corney’s right knee was undertaken in September 2009, and on 18 September 2009 this was reported as showing:
“Severe medial compartment OA. Lateral compartment quite well preserved except for anatomic large discoid LM with degenerative tear. Quite well preserved PF compartment”.[18]
[18] Exhibit 6
Medical Opinions
34. In a report dated 3 September 2009, Mr Corney’s general practitioner, Dr Wong, confirmed that Mr Corney had had a meniscectomy in 1973, prior to joining the Army. She also stated:
“… There was no mention in the case notes of any leg symptoms until 20/1/93. At that consultation, the symptoms were vague and put down to varicose veins and muscular cramps. When he saw me in 13/3/2002, he said that he had constant right knee pain, was unable to kneel and had been unable to kick a football with his kids for years. Xray confirmed presence of osteoarthritic changes in the medial compartment as well as the patello-femoral articulation. He was working as a plumber. I deemed it feasible that over the years, having had a meniscectomy, and knee injuries in the army, both contributed to the development of osteoarthritis of the knee, and it was probable that his leg pain in 1993 had an osteoarthritic component, though Mr Corney himself felt that symptoms originated prior to that date, but as he coped with it himself, never mentioned it during his surgery consults, and hence was not documented.
…”[19]
[19] Exhibit 3
35. In a form relating to onset of osteoarthrosis of the right knee, she also stated “It is probable the knee injury started the disease process, rather than worsening it”[20].
[20] Exhibit 2
36. Following the second hearing and with the concurrence of the Tribunal, the respondent sought some further medical evidence addressing issues arising from the new SoP in relation to osteoarthritis. The respondent subsequently provided to the Tribunal a minute of questions forwarded to Dr Simon Spedding, a sports physician and clinical epidemiologist with the Department of Veterans’ Affairs, together with Dr Spedding’s response dated 31 March 2010.
37. Most relevantly, in his answers to the questions asked of him, Dr Spedding indicated that the MRI report dated 18 September 2009 did not reveal any torn or stretched anterior cruciate ligament (ACL) of Mr Corney’s right knee and stated “the radiologist would have recorded any abnormality of the ACL, but instead simply recorded ‘intact cruciate ligaments’”. As to the report of 4 September 1975[21] referring to “weakness anterior cruciate” Dr Spedding indicated that this probably did indicate “looseness in the ligament which could have resulted from stretching of the ligament”. However, as to whether, if there had been a torn or stretched ACL of the right knee in 1975, it would be expected to show up in a MRI scan in 2009, Dr Spedding stated:
“Yes. The ACL has a very poor blood supply and rarely repairs itself. I would expect a ligament that was torn or stretched in 1975 to have been substantially worse by 2009 unless it had been surgically repaired, in which case the repair would be obvious on an MRI.”
[21] T6/34
38. As to whether, on balance, he considered that the applicant suffered a stretched or torn right ACL on 4 September 1975 or on any date up to the 2009 MRI, Dr Spedding replied “No”. As to other possible explanations for the reference in the 1975 report to Mr Corney having weakness of his ACL, Dr Spedding replied as follows:
“A loose ligament can result from stretching of the ligament, but it can also result from other changes in the joint. The meniscus forms a pad between the femur (thigh bone) and the tibia (shin bone). It fills the gap between these two bones. When this pad is removed (which is what was performed in a complete meniscectomy as performed in the 1970s) the ligaments holding the knee joint together, including the ACL become looser. This can give the impression that they are weak or stretched when they are not. I note that in his report of 4 September 1975 Dr Collins gave his opinion in respect of the right knee that ‘at this stage there is no convincing evidence of a meniscus injury’. He appears not to have known of the meniscectomy one or two years earlier and it may be for this reason that he thought the looseness of the ligament was due to stretching.”
39. In relation to other potential contributors to a torn or stretched ligament of the right knee in September 1975, if this did exist, Dr Spedding indicated that the more likely cause of a stretched ACL was the incident in or about August 1975 when Mr Corney was doing contact drills and dived on to the ground and hit his knee hard. He thought the incident in July 1975 was also a possibility and “a meniscectomy might masquerade as a stretched ligament but could not cause stretching, although the underlying football injury may do so”. He considered that another incident when Mr Corney suddenly collapsed, his right knee swelled up and he was in pain[22] would not have caused stretching of his ACL.
[22] T2/6
contentions of the parties
40. Mr Corney contended that his service records established that he suffered from chondromalacia patellae during his service, evidenced by the doctor’s note made on 27 August 1975, and that this condition resulted from trauma to his patellae suffered on or about 10 July 1975. He also claimed to have suffered further trauma to his knee in September 1976.
41. As the onset of chondromalacia patellae occurred within three months of the first instance of trauma to his knee in the course of his service, he claimed that the circumstances satisfied the SoP with the result that his chondromalacia patellae should be accepted as being defence-caused.
42. In relation to osteoarthrosis, he contended that it was clear he now suffered from this condition. In relation to onset, he claimed he had had ongoing problems with his right knee ever since his service and also relied upon the note in his general practitioner’s records that he complained of leg pain in 1993. He contended that this should be accepted as the date of clinical onset of osteoarthrosis. As this was within 25 years following the trauma to his knee suffered during service, he contended that this satisfied the SoP in regard to osteoarthrosis, and therefore the Tribunal should find that his osteoarthrosis was defence-caused.
43. As to the new SoP in relation to osteoarthritis, in a short submission provided after the second hearing, he submitted that he suffered swelling of his knee joint within two hours of his injury and worsening of this within six months. He also submitted orally at the hearing that the symptoms lasted for seven days after the injury, and in fact he was put on light duties for a month after the injury. He accordingly submitted that his injury satisfied the definition of “trauma to the affected joint” within the meaning of the new SoP.
44. Mr Crowe for the respondent submitted that the evidence did not establish that Mr Corney suffered from chondromalacia patellae. In relation to osteoarthrosis, he accepted that it was clear Mr Corney suffered from osteoarthrosis of his right knee. As to the date of clinical onset however, he contended that the evidence was insufficient to establish clinical onset of this condition until 2002. As the last instance of trauma to Mr Corney’s knee occurred during his service in 1976, this meant that the clinical onset of the condition occurred at least 26 years after the trauma. As factor 6(f) of the SoP required clinical onset within 25 years of the trauma, the circumstances did not satisfy the SoP and the Tribunal should accordingly conclude that Mr Corney’s osteoarthrosis was not defence-caused.
45. In relation to factor 6(m), in further written submissions filed after the second hearing, Mr Crowe submitted that having regard to the diagnostic definition of “internal derangement of the knee” in SoP Instrument No 60 of 1997, Mr Corney did not currently have internal derangement of the right knee joint (IDK(R)) and did not have this during the relevant period, as there was no evidence of any torn or stretched ligament in that knee. Whilst he acknowledged the note of an orthopaedic surgeon in 1975 of “weakness ant[erior] cruciate” having regard to the opinion of Dr Spedding, he submitted that in all the circumstances including the fact that an MRI taken in 2009 did not indicate that the ligament was torn or stretched, the evidence did not in fact support a conclusion that Mr Corney had suffered a torn or stretched ACL.
46. Mr Crowe also submitted that the absence of a meniscus in that knee does not fulfil the definition of “torn, ruptured or deranged meniscus” and that “it may be inferred that IDK(R) did exist before the pre-service meniscectomy, but that throughout and since the applicant’s service, no such condition has existed and therefore the former condition can never have been related to service”.
47. In his oral submissions at the second hearing, Mr Crowe also confirmed that the respondent disputed that the applicant satisfied the definition of “trauma” under both SoPs relating to osteoarthritis/osteoarthrosis. In relation to the new SoP regarding osteoarthritis, he submitted that the symptoms did not manifest within 24 hours and did not last for seven days. Mr Crowe otherwise relied upon his submissions directed towards the previous SoP as applying equally to the new SoP. He also submitted, that as there two potentially applicable SoPs in relation to osteoarthritis, pursuant to the Federal Court case of Gorton v Repatriation Commission (2001) 63 ALD 723, the Tribunal was obliged to apply the new SoP first and if the applicant was unsuccessful under that SoP, then consider whether the applicant was successful under the old SoP.
consideration
48. We propose to discuss each of the possible diagnoses put forward by Mr Corney in turn below, commencing with chondromalacia patellae. As we accept the correctness of Mr Crowe’s submission in relation to the Federal Court decision in Gorton in relation to the condition of osteoarthritis, we will consider the new SoP first, and proceed to the second if this is not satisfied.
49. As the injuries relied upon by Mr Corney did not occur during operational, peacekeeping or hazardous service, we note that pursuant to s 120(4) of the VE Act, we are required to decide the matter to our reasonable satisfaction.
Chondromalacia Patellae
50. The first step in considering any claimed condition is to determine which diagnoses are established on the balance of probabilities[23]. In relation to chondromalacia patellae, as we have set out above, there is some evidence to support a conclusion that Mr Corney was diagnosed as suffering from chondromalacia patellae in 1975. On 27 August 1975, a doctor clearly considered that diagnosis, recording in his notes “?chondromalacia patellae”. In our view however, it is important that this entry in Mr Corney’s medical notes be seen in context as a query, and it is highly significant that following that entry being made, Mr Corney was apparently referred to a specialist. Further that specialist, who examined Mr Corney on 4 September 1975, did not confirm the diagnosis of chondromalacia patellae. The specialist observed some weakness of the ACL and some rotator instability, but recorded “At this stage there is no convincing evidence of a meniscus injury” and advised that Mr Corney continue on light duties for a further month only. From the records available to us, it appears that Mr Corney did not seek medical attention again for a further 12 months.
[23] It is clear on the authorities that the question of whether a particular condition exists is to be determined on the civil standard – see Repatriation Commission v Budworth (2001) FCA 1421.
51. We note that Mr Corney has not put forward any more recent evidence to support a diagnosis of chondromalacia patellae.
52. In light of the evidence before us, we are therefore not satisfied on the balance of probabilities that Mr Corney has at any time suffered from chondromalacia patellae. Accordingly, it is not necessary for us to proceed further and consider whether that condition satisfies the relevant SoP. We would also observe however that, even if the entry referred to above was treated as a positive diagnosis of chondromalacia patellae, the evidence before us does not establish that Mr Corney suffered any direct trauma to the patellae of his right knee within three months prior to that record being made, or that he suffered an injury resulting in meniscal damage or permanent ligamentous instability within three months before that entry having been made, such as to satisfy the SoP in relation to chondromalacia patellae.
Osteoarthritis
53. In relation to the application of the new SoP, Instrument No 14 of 2010, we note that there is no doubt that Mr Corney currently suffers from “osteoarthritis” for the purposes of the SoP. Before proceeding to consider whether that SoP is satisfied, s 120B(3)(a) of the VE Act requires us to consider whether we are satisfied that the material before us “raises” a connection between Mr Corney’s osteoarthritis and his service. We note that Mr Crowe did not contend that the material did not raise such a connection and we are satisfied on the basis of the material, particularly that relating to the relatively serious knee injuries suffered by Mr Corney during his service that it does “raise” such a connection.
54. Turning to the application of SoP No 14 of 2010, we note that factor 6(f) requires having trauma to the affected joint within 25 years before the clinical onset of osteoarthritis in that joint. As to the date of clinical onset, we note that the definition of “osteoarthritis” in the new SoP requires “radiological, other imaging or arthroscopic evidence of loss of articular cartilage or osteophytes”. In Mr Corney’s case the first such evidence was obtained in March 2002 when an x-ray was taken. It follows that this is the earliest date upon which he can be said to have been suffering from osteoarthritis for the purposes of this SoP. In those circumstances, we accept Mr Crowe’s submission that, as the last date on which he could be said to have suffered trauma to his knee joint was in 1976, 26 years before radiological evidence was obtained, Mr Corney’s circumstances do not satisfy factor 6(f) of the SoP.
55. In relation to the next relevant factor, 6(h), there was no evidence before us which establishes that Mr Corney had disordered joint mechanics of his right knee for at least five years prior to the clinical onset of osteoarthritis in 2002, or that any disordered joint mechanics were related to his service.
56. In relation to factor 6(p), the only relevant issue is whether Mr Corney had IDK(R) before the clinical onset of osteoarthritis and if he did, whether that derangement was related to his service. We note that “internal derangement of the knee” is defined in Instrument No 60 of 1997 and relevantly requires that Mr Corney have a “chronic disorder of the knee due to (alone or in combination) torn, ruptured or deranged meniscus of the knee, or torn or stretched collateral, cruciate or capsular ligament of the knee, …”. The definition in Instrument No 52 of 2010 is only slightly different, requiring “a chronic disorder of the knee due to a torn meniscus of the knee, or a torn or stretched collateral, cruciate or capsular ligament of the knee …”. Applying either of these definitions, it becomes relevant for us to determine whether Mr Corney currently or at any relevant time has suffered from a torn or stretched ACL or a “torn, ruptured or deranged meniscus”.
57. In relation to whether Mr Corney has at any relevant time suffered from a torn or stretched ACL, it is highly relevant that in the course of his service, in 1975, an orthopaedic surgeon noted that he had weakness of the ACL. However the report of Dr Spedding is also highly relevant to interpretation of that note. In this regard, Dr Spedding’s opinion is that, if Mr Corney had suffered a torn or stretched ACL in 1975, this would have been expected to show up in an MRI scan taken in 2009, which it did not. He has also indicated that, on balance, he did not consider on the evidence that Mr Corney had suffered a stretched or torn right ACL in September 1975 or on any date up to the 2009 MRI. He also referred to Dr Collins’ statement in September 1975 that “At this stage there is no convincing evidence of a meniscus injury” and observed that it appeared Dr Collins was unaware that Mr Corney had undergone a meniscectomy one or two years earlier and “it may be for this reason that he thought the looseness of the ligament was due to stretching”. We note that Mr Corney disputes this and claims that Dr Collins was aware of the meniscectomy. In any event however, in the absence of any contrary medical evidence, we accept Dr Spedding’s evidence in this regard. We are accordingly satisfied, given the fact that the 2009 MRI did not show a torn or stretched ACL of the right knee, that Mr Corney did not suffer from that condition either in 2009 or at any time during his service.
58. In relation to whether the absence of a meniscus could constitute a “torn, ruptured or deranged meniscus”, we are also satisfied that the complete absence of a meniscus does not fall within this definition. We are therefore also satisfied that Mr Corney does not and has not at any relevant time suffered from “internal derangement of the knee” as defined either in the current SoP, No 52 of 2010, or the previous SoP, No 60 of 1997.
Osteoarthrosis
59. As foreshadowed above, as Mr Corney has not been successful under the current SoP, No 14 of 2010, it is necessary for us to consider whether he can succeed under the previous SoP, No 32 of 2005.
60. Having regard to the definition of “osteoarthrosis” in that SoP, which does not require radiological evidence, the first question which arises is whether the date of onset of that condition is any different from that which we have arrived at in relation to the new SoP.
61. In relation to the possibility of an earlier date of onset, we accept that there are entries in the notes of Mr Corney’s general practitioner suggesting that he may have suffered a sprain to a ligament of his right knee in 1993, and showing that he complained of leg aches in 1993. However, we accept Mr Crowe’s submission that this evidence is insufficient to establish a diagnosis of osteoarthrosis on the balance of probabilities at that time. We also accept Mr Crowe’s submission that there were inconsistencies in Mr Corney’s evidence as to the right knee symptoms suffered by him over the years and that his evidence, in the absence of any form of contemporaneous corroboration, is also insufficient to establish the clinical onset of osteoarthrosis of the right knee prior to 2002.
62. We note that in reports provided by her directed to the question of causation, Dr Wong has variously stated that she considers it “probable” or “feasible” that his knee injuries suffered in the Army had caused or contributed to the development of Mr Corney’s osteoarthrosis. She has also stated that she considers it “probable” that Mr Corney’s leg pain in 1993 had an osteoarthritic component. We also note however that there is very little in the way of contemporaneous evidence to corroborate these statements and in those circumstances, we consider the statements involve a high degree of speculation. For that reason, Dr Wong’s statements do not satisfy us, on the balance of probabilities, that Mr Corney’s osteoarthrosis had its clinical onset prior to 2002.
63. Turning to the relevant factors, the potentially relevant factors are 6(f) and 6(m), relating to trauma and internal derangement respectively. However, these are identical with factors 6(f) and (p)(ii) of the new SoP. It therefore follows that application of that SoP does not yield a different or more beneficial result for Mr Corney than the application of the current SoP.
conclusion
64. It follows that we are not satisfied on the evidence before us that Mr Corney satisfies any of the SoPs which have been identified as potentially relevant to his right knee condition.
65. Having regard to ss 120(4) and 120B of the VE Act, it also follows that we are not reasonably satisfied that Mr Corney’s right knee condition is defence-caused. We therefore consider the decision of the Commission, relevantly affirmed by the VRB, to have been correct. However, we have decided to vary that decision so as to reflect our conclusions in relation to each of the conditions and SoPs we have considered.
decision
66. The Tribunal varies the decision under review so as to add the following:
(a) the applicant does not suffer and has not at any relevant time suffered from the condition of chondromalacia patellae of his right knee as defined in SoP No 34 of 2001; and
(b) although he suffers from the conditions of osteoarthritis and osteoarthrosis of his right knee as defined in SoPs No 32 of 2005 and No 14 of 2010, neither of those conditions is a defence-caused condition within the meaning of s 70 of the Veterans’ Entitlements Act 1986 (Cth).
The Tribunal otherwise affirms the decision under review.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member K Bean
Signed: ..............J Coulthard.......................................
AssociateDates of Hearing 15 January 2010 & 24 March 2010
Date of Decision 12 August 2010
Advocate for the Applicant Self-representedAdvocate for the Respondent Mr A Crowe
DVA
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