Cox and Military Rehabilitation and Compensation Commission (Veterans' entitlements)
[2022] AATA 88
•27 January 2022
Cox and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2022] AATA 88 (27 January 2022)
Division:VETERANS’ APPEALS DIVISION
File Number: 2019/8635
Re:Nigel Cox
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Deputy President J Sosso
Date:27 January 2022
Place:Brisbane
The decision under review is affirmed.
..............[SGD]..........................................................
Deputy President J Sosso
CATCHWORDS
VETERANS’ AFFAIRS – internal derangement of the knee – date of clinical onset – whether condition was a new injury – whether injury was aggravated out of or in the course of the Applicant’s defence service - decision under review affirmed
LEGISLATION
Military Rehabilitation and Compensation Act 2004
Veterans’ Entitlements Act 1986
CASES
Dawson and Repatriation Commission [2004] AATA 107
Hatherall and Repatriation Commission (2002) 70 ALD 194
JQVC and Repatriation Commission [2018] AATA 478
Kaluza v Repatriation Commission [2010] FCA 1244
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Smith (1987) 15 FCR 327
REASONS FOR DECISION
Deputy President J Sosso
27 January 2022
INTRODUCTION
Mr Nigel Cox (the veteran) seeks a review of a decision of the Veterans’ Review Board (VRB) of 5 December 2019, affirming a determination of 28 March 2019, that the Military Rehabilitation and Compensation Commission (the Respondent) was not liable under s 23 of the Military Rehabilitation and Compensation Act 2004 (Cth) (the Act) for the veteran’s claimed “derangement of the knee”.
The veteran was born in April 1973 and is currently 48 years of age. In 1992, when aged 19, and was playing football for Wests, he injured his left knee and an arthroscopy was performed – Transcript (Tr.) 15.5.2021 pp. 7, 9; Exhibit 1 T31 p. 170.
In 2003, the veteran enlisted as an Army Reservist in the Royal Australian Armoured Corps and served throughout his service as a Trooper. The veteran was trained as a driver of Armoured Personnel Carrier (M113) and Australian Service Light Armoured Vehicle (ASLAV) – Exhibit 1 T5 p. 13.
During his service, the veteran participated in two overseas deployments: Iraq, in 2007-2008, for six and half months (Operation Catalyst), and the Solomon Islands, in 2009, for four and a half months (Operation Anode) – Tr. 15.5.2021 p. 9; Exhibit 1 T8 p. 28; Exhibit 1 T13 p. 70.
According to the Respondent, and in various medical reports, the veteran enlisted in the Australian Defence Force (Royal Australian Armoured Corps) (ADF) on 21 May 2007 – Exhibit 1 T3 p. 9; Exhibit 1 T22 p. 95; Exhibit 1 T28 p. 126. I have proceeded on the basis that the veteran enlisted full-time in the ADF on 21 May 2007 – Exhibit 1 T24 p. 105.
In 2014, the veteran moved back to the Army Reserves and took up a position at the Victoria Barracks Museum – Exhibit 2 para 3.1. At the time the veteran lodged his compensation claim, he was assigned to the Australian Army History Unit – Exhibit 1 T13 p. 70. The veteran informed Dr Michael Thomas, Consultant Orthopaedic Surgeon, that his role at Victoria Barracks Museum was as follows – Exhibit 1 T22 p. 95:
“His role is as a Registrar cataloguing research preservation and conservation as well as public speaking. The work is entirely clerical apart from his Army fitness tests.”
On 16 November 2018, the veteran lodged a compensation claim form for “Internal Derangement Of Knee”, which injury originally occurred in 1992 - Exhibit 1 T13 p. 72. The service contribution to the injury was stated as follows – Exhibit 1 T13 p. 72:
“Due to the high level of fitness required for an Arms Corps, Pt, running, pack marching, obstacle courses, field work including maintaining armoured vehicles my lower joints (knees and ankles) have sustained a very high level of impact and load over my fifteen years of service.”
The veteran was examined by Dr Craig Hughes, of Brisbane Orthopaedic Specialist Services, who referred the veteran for an MRI of his left knee. The MRI was performed by Dr Gus McKenzie, of Qscan Radiology Clinics, on 29 October 2018 who, in a report of the same date, made the following observations – Exhibit 1 T10 p. 65:
“Chronic ALC rupture with likely post surgical change at both menisci. In this setting it is difficult to evaluate for acute meniscal pathology, however there is a possible recurrent oblique tear to the posterior horn of the medial meniscus. Correlation with prior MRI and clinical presentation may be of benefit. Background grade 2 degenerative change at the patellofemoral and lateral knee joint compartment.”
(bold in the original)
In a letter of 7 November 2018, Dr Hughes said – Exhibit 1 T11 p 66:
“The MRI of his left knee shows, as previously thought, he’s got a chronic ACL rupture with medial and lateral meniscal tears. He doesn’t have much in the way of degenerative change within the joint, and given the fact that he’s a young active man I think it’s reasonable to consider and [sic] ACL reconstruction with meniscal debridements or repairs. He has been taken through the informed consent process and signed a consent form. He is aware of the risks and benefits of the procedure.”
As noted above, on 28 March 2019, the veteran’s claim was rejected. The decision-maker gave the following reasons – Exhibit 1 T18 p. 86:
“Based on all the available evidence, none of the factors in the relevant SOP are met and I am satisfied beyond a reasonable doubt that Chronic ACL Rupture and Meniscal Tear Left Knee is not related to your Warlike or Non-warlike service. I am also reasonably satisfied that the condition is not related to any period of Peacetime service.”
(bold in the original)
On 5 April 2019, the veteran requested a review of the Determination and gave, as his grounds for appeal, as follows – Exhibit 1 T20 p. 92:
“I believe my service has aggravated the condition.”
As noted above, the VRB affirmed the Determination on 5 December 2019. Unfortunately, the VRB did not give written reasons – Exhibit 1 T32 p. 182.
In addition to the claim for compensation in relation to internal derangement of the left knee, on 23 January 2019, the veteran also made claims for liability in respect of – Exhibit 1 T24 p. 102:
(a)Osteoarthritis of the left knee with effect from 29 October 2018;
(b)Osteoarthritis of the right knee with effect from 2 November 2018;
(c)Sensorineural hearing loss with effect from 23 January 2019;
(d)Tinnitus with effect from 23 January 2019;
(e)Lumbar spondylosis with effect from 23 January 2019; and
(f)Bilateral chondromalacia patellae.
With the exception of the bilateral chondromalacia patellae, all claims were accepted.
The following reasons were given for accepting the condition of osteoarthritis of the left knee – Exhibit 1 T24 pp. 107 – 108:
“You have stated that your condition was caused by lifting and carrying weights in excess of 20kgs during service.
The condition has been diagnosed as Osteoarthritis Left Knee. The diagnosis was confirmed by a Contracted Medical Adviser based on the MRI report dated 29 October 2018. I am satisfied this is the appropriate diagnosis.
In determining your claim for this condition, I have applied the SOP concerning osteoarthritis (Balance of Probabilities) (62/2017), which sets out the factors that can connect the condition with service.
I have considered the following factor:
for osteoarthritis of a joint of the lower limb only, (b) lifting loads of at least 20 kilograms while bearing weight through the affected joint (i) to a cumulative total of at least 150 000 kilograms within any ten year period before the clinical onset of osteoarthritis in that joint; and (ii) where the clinical onset of osteoarthritis in that joint occurs within the 25 years following that period.
I have noted your contention as to the cause of this condition. I have considered the level of physical activities you are required to undertake within your service employment and find that you would have performed the lifting required. I am satisfied the SOP is met and that this condition is related to your Peacetime service.
I have therefore accepted that this condition is related to your service with effect from 29 October 2018. This date is based on the imaging report.”
Finally, the following claims made by the veteran were also accepted – Exhibit 1 T27 p. 123:
(a)Thoracic spondylosis;
(b)Soft tissue injury to left chest;
(c)Soft tissue injury to right chest;
(d)Right rotator cuff syndrome;
(e)Cervical sprain; and
(f)Sprain right ankle involving lateral, medial and syndesmotic ligaments.
MEDICAL HISTORY
As noted above, the veteran injured his left knee whilst playing football in 1992. The following account of that injury, and the medical intervention subsequently required, is provided by Dr Phil Allen, Consultant Orthopaedic Surgeon, in his report of 4 November 2020 – Exhibit 5 p. 5:
“Mr Cox told me that in 1992 he injured his left knee whilst playing football. He was tackled at that time and had pain in his left knee.
He was initially treated non-operatively and approximately two months later was playing football again when his knee deteriorated further.
He was diagnosed with a torn anterior cruciate ligament in the left knee as well as meniscal tears. He underwent an arthroscopy on his left knee where the meniscus tears were resected but the anterior cruciate ligament was not reconstructed.
He told me that it took him 18 months to recover.
He reported that he has had no further traumatic injuries to the knee and the knee was relatively asymptomatic up until 2017.”
In the Injury or disease details sheet, the medical practitioner part was completed by Dr Ian Fraser and dated 14 November 2018 – Exhibit 1 T12 p. 68.
Dr Fraser diagnosed the veteran as suffering from internal derangement of the left knee and opined that the onset of the injury was September 2018. The veteran first consulted Dr Fraser on 25 September 2018. Dr Fraser provided the following reasons for his diagnosis – Exhibit 1 T12 p. 68:
“MRI ordered by Dr C Hughes in October 2018 shows rupture of ACL and medial + lateral meniscal tears. Dr Hughes recommends a reconstruction.”
On 17 December 2018, Dr Fraser confirmed that the veteran required treatment for a number of conditions, including internal derangement of the knee – Exhibit 1 T14 p. 76.
In a further Injury or disease details sheet, dated 2 January 2019, Dr Fraser confirmed a diagnosis of internal derangement of the veteran’s left knee but, on this occasion, opined a date of clinical onset of December 2017. The basis of Dr Fraser’s diagnosis was as follows – Exhibit 1 T15 p. 78:
“See Dr Craig Hughes attached letter. MRI evidence confirms. Original injury 1992. Passed entry medical into ADF 2003. Pack marches/PT/field courses caused accumulative damage to knee.”
Finally, in an Injury or disease details sheet dated 4 January 2019, the veteran claimed he was suffering from osteoarthritis of the left knee, with signs and symptoms of pain with consequent restricted range of movement. The veteran claimed that his service had contributed to this condition, plus lifting and carrying weights in excess of 20kg during his service, and that he had first noticed the signs and symptoms in 2008 – Exhibit 1 T16 p. 79.
In the same document, Dr Fraser referred to osteoarthritis of the right knee. He noted the veteran was suffering pain with restricted range of movement and that the basis for diagnosis was “heavy lifting on a repetitive basis”. Dr Fraser opined a date of clinical onset of 2008 and stated that the veteran had first consulted him about this condition in 2015 – Exhibit 1 T16 p. 80.
A Contracted Medical Advisor (CMA), in a report dated 10 May 2019, diagnosed the veteran as suffering from “chronic ACL rupture and meniscal tear left knee” and provided the following reasons for this diagnosis – Exhibit 1 T17 p. 82:
“As internal knee derangement is a chronic condition of ligaments and knee meniscus, therefore the diagnosis is confirmed by MRI findings and the SMR.
MRI findings are chronic ACL rupture and recurrent oblique tear to posterior horn of medial meniscus (P3) which are chronic conditions and these findings are confirmed in SMR which also states requires ACL reconstruction.”
The CMA then opined that this was not an aggravation – Exhibit 1 T17 p. 82.
In March 2019, the veteran’s left knee underwent an anterior cruciate ligament reconstruction performed by Dr Hughes. On 10 April 2019, when the veteran was assessed by Dr Thomas, he was recovering well from the surgery – Exhibit 1 T22 p. 96.
Dr Hughes completed a Medical Certification – Ability to Work on 23 April 2019. Dr Hughes reported that the veteran had undergone ligament reconstruction and was then receiving weekly physiotherapy. The duration of the medical certificate was from 12 March 2019 until 16 April 2019 – Exhibit 1 T21 p. 93.
Dr Hughes was requested to prepare a comprehensive report on the veteran’s injuries to his knees and right ankle. In his report of 31 July 2019, he made the following observations about the veteran’s left knee – Exhibit 1 T31 pp. 170 – 171:
“With respect to his knees, he had a left knee injury in 1992 prior to enlisting in the Military. This was declared at his enlistment medical. He had an arthroscopy performed in 1992 where he had a partially torn left cruciate ligament but it did appear to be intact at that stage. He was treated with physiotherapy and went on to return to playing football. He cannot recall any specific injuries to either knees, except the repetitive load bearing activities that go with military service, including carrying a heavy pack on uneven ground and regular physical training and sport. He has gone on to have a left knee ACL reconstruction after having increasing pain and instability and investigations performed on 29 October 2018 show a chronic ACL tear of the left knee which on 8 March 2019 was treated with a left knee ACL reconstruction with medial and lateral meniscal debridements….
An MRI performed of his left knee on 29 October 2019 at Qscan shows degenerative lateral compartment and patellofemoral changes and a chronic ACL rupture and a medial meniscal tear.
An MRI performed on his left knee at Queensland Diagnostic Imaging on 3 June 2019 shows an intact ACL graft, evidence of previous bilateral partial meniscectomies and lateral compartment degenerative changes.”
At the request of the Respondent, the veteran was examined and assessed by Dr Allen on 14 October 2020. Dr Allen was briefed with most of the material currently before the Tribunal and was asked a number of questions in relation to the veteran’s left knee condition – Exhibit 4.
After setting out the veteran’s history and observations on his physical condition and social life, Dr Allen set out, in summary form, his assessment of the veteran’s left knee condition – Exhibit 5 p. 7:
“Mr Cox sustained an internal derangement to his left knee in 1992 before joining the Defence Force.
He sustained an anterior cruciate ligament rupture as well as torn menisci.
The internal derangement to the knee was a consequence of trauma prior to enlisting with the Defence Force.
The condition has progressed in line with the natural history of this condition over this time in the Defence Force and would have progressed in a similar fashion regardless of employment with the military.
He now has evidence of early degenerative change in the left knee which is in keeping with the sequelae of a longstanding anterior cruciate ligament rupture and meniscal damage.”
Dr Allen then answered the numerous questions that were posed. For present purposes, the only Question and Answer that need be referred to is set out below – Exhibit 5 p. 9:
“On the available material, is there a connection between the claimed internal derangement of the knee and some particular defence service rendered by the Applicant while a member? Please explain why or why not.
No.
The condition of the left knee is, in its entirety, ascribed to the injury in 1992. It has evolved in line with the natural history of this condition over time and would have evolved in a similar fashion regardless of his military service.”
(bold in the original)
After the 12 May 2021 Hearing, the veteran obtained two medical reports in support of his case.
The first is a report of Dr Hughes dated 23 June 2021. Dr Hughes gave the following diagnosis:
“It is my opinion that Mr Cox sustained a partial injury to his ACL in 1992 which was treated successfully with non-operative measures and rehabilitation. He went on to return to pivoting and twisting sports and was physically fit enough to join the Australian Army. At some stage during his military service, he sustained an internal derangement to the knee with a rupture of the left knee anterior cruciate ligament and I think this should be considered a new injury related to his military service.”
The second report was prepared by Dr Chris Cunneen, Occupational and Environmental Physician. Dr Cunneen agreed with the diagnosis of Dr Hughes:
“I would concur with Dr C Hughes (treating Orthopaedic Surgeon) in his report (dated 23 June 2021) that PTE Cox did have a prior left ACL sustained during 1992 but it was a partial ACL tear not requiring surgical intervention. I would support the situation that this Veteran’s service with the Australian Army over the period 2002 to 2014 particularly, has led to complete rupture of his left ACL, further meniscal injury left knee requiring surgery (2019) and the acceleration of early onset degenerative Osteoarthritis left knee joint. I discussed this situation with PTE Cox on the day.”
THE HEARING
A Hearing was convened on 12 May 2021 in Brisbane with the Applicant represented by Mr Ken Cullen, Military Compensation Advocate with the Gaythorne RSL and the Respondent by Mr Benjamin Dube of Sparke Helmore Lawyers.
Due to social distancing requirements brought about by the COVID-19 pandemic, the Hearing was conducted remotely.
The veteran elected to testify and was cross-examined by Mr Dube.
The only witness called by the Respondent was Dr Allen, who was cross-examined by Mr Cullen.
At the conclusion of the evidence, Mr Cullen requested an opportunity to adduce further medical evidence to assist the veteran’s case. This course of action was not opposed by Mr Dube.
The Tribunal directed that the veteran and/or his representative would inform the Tribunal no later than 26 May 2021 whether it wished to call further medical evidence in support of the application.
The Tribunal was subsequently informed that the veteran did wish to call further evidence and that arrangements had been made with two Doctors to provide reports to the Tribunal and the Respondent.
A further Hearing was convened on 3 June 2021, and, after receiving submissions from the parties, the Tribunal directed that the veteran was to provide to the Tribunal and the Respondent any further medical evidence that he wished to rely upon by close of business 26 July 2021.
On 20 July 2021, the veteran filed and served a report of Dr Hughes dated 23 June 2021 and a report of Dr Cunneen dated 6 July 2021.
The Respondent subsequently advised the Tribunal that a further Hearing day was not needed for the cross-examination of Dr Hughes and Dr Cunneen. Rather, the Tribunal was requested to make Directions giving the parties the opportunity to provide written submissions following receipt of the reports of the Doctors.
On 26 July 2021, the Tribunal made the following Directions:
“1. The Respondent is to provide to the Tribunal and to the Applicant written closing submissions, not exceeding 15 pages, within 4 weeks of receipt of the briefing letters to Dr Hughes and Dr Cuneen [sic].
2. The Applicant is to provide to the Tribunal and to the Respondent written closing submissions, not exceeding 15 pages, within 4 weeks of receipt of the Respondent’s written closing submissions.”
The Applicant confirmed, by email on 2 August 2021, that no briefing letters had been provided to either Dr Hughes or Dr Cunneen.
The Respondent subsequently provided to the Tribunal and the veteran its Respondent’s Outline of Submissions (ROS) dated 26 August 2021.
Finally, the veteran filed and served the Applicants Submission Following Adjournment 12 May 2021 (ASFA) dated 14 September 2021.
THE ISSUES
The Respondent contends (ROS para 2.1), and the Tribunal agrees, that the issues for determination in this matter are as follows:
(a)The correct diagnosis of the veteran’s claimed left knee injury;
(b)The date of clinical onset of the condition;
(c)Does the material raise a connection between the condition and the veteran’s service;
(d)Is there one or more applicable SoP’s, and, if so, whether the applicable Factor(s) have been satisfied; and
(e)Has the relevant causal relationship(s) in s 27 of the Act been satisfied.
THE LAW
The Act provides rehabilitation and compensation protection for, inter alia, members of the “Defence Force” on or after 1 July 2004.
Pursuant to s 5(1), the “Defence Force” is defined to mean:
“(a) the Permanent Forces; and
(b) the Reserves.”
Consequently, the Act provides protection to all members of the permanent ADF and all members of the Reserve Force.
It follows that, if a member of the Defence Force suffers an injury or disease arising from either service or non-service prior to 1 July 2004, the injury or disease is not covered by the Act.
Under the Act, three types of service are dealt with - s 6(1):
(a)Warlike service;
(b)Non-warlike service; and
(c)Peacetime service.
The term “defence service” is defined in s 6(1)(d) to cover all three types of service.
Section 7 provides, to avoid doubt, that a reference in the Act to a service injury being sustained, or a service disease being contracted, includes a reference to an injury or disease that is aggravated, or materially contributed to, by defence service.
The characterisation of the type of service is important, as warlike and non-warlike service has a more beneficial standard of proof and a higher amount of compensation for permanent impairment – s 335.
For those members of the Defence Force who have rendered warlike or non-warlike service, a satisfaction beyond reasonable doubt standard applies – s 335(1). The reverse beyond reasonable doubt standard applies after a decision-maker, having considered all the material, determines that it raises a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the veteran – s 335(2).
For those members of the Defence Force who have rendered peacetime service, a reasonable satisfaction standard applies – s 335(3).
For those members who have rendered defence service which covers both peacetime service and other forms of service, a more focused approach is required. This is discussed below.
A key element of the Act is found in Part 3 of Chapter 2, which outlines definitions of service injury, disease or death.
For the purposes of this matter, the relevant provision is s 30, which deals with an aggravation of, or a material contribution to, a sign or symptom of an injury or disease relating to defence service. Section 30 provides as follows:
“For the purposes of this Act, an injury sustained, or a disease contracted, by a person is a service injury or a service disease if:
(a) the injury or disease:
(i)was sustained or contracted while the person was a member rendering defence service, but did not arise out of that service; or
(ii)was sustained or contracted before the commencement of a period of defence service rendered by the person while a member, but not while the person was rendering defence service; and
(b) in the opinion of the Commission, a sign or symptom of the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service rendered by the person while a member after he or she sustained the injury or contracted the disease.”
Next consideration must be given to the provisions in Part 2 of Chapter 7 of the Act which deals with the determination of claims.
The Respondent is required to decide all claims under the Act in accordance with Part 2. As explained above, there are two standards of proof which the Respondent applies in deciding matters under Part 2: that pertaining to warlike and non-warlike service, and that relating to all other decisions under the Act, but principally, peacetime service.
In reaching a decision, however, Part 2 introduces the Statement of Principles (SoP) regime, which has its origins in the Veterans’ Entitlements Act 1986 (Cth) (VEA). A SoP is an instrument made under the VEA which sets out all Factors related to defence service that have been determined by the Repatriation Medical Authority to cause specific injuries, diseases and deaths.
Section 338 deals with reasonable hypothesis SoP’s, while s 339 deals with reasonable satisfaction SoP’s.
Of particular relevance is s 339(3) which provides that in applying s 335(3) to a determine a claim, a decision-maker is to be reasonably satisfied that, inter alia, an injury sustained, or a disease contracted, is a service injury or disease only if:
(a)the material before the decision-maker raises a connection between the injury or disease and some particular defence service rendered by the person whilst a member of the ADF;
(b)there is in force, inter alia, a SoP; and
(c)the material, and the SoP, upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.
It will be noted that a decision-maker has to be “reasonably satisfied”. This phrase was considered by the Full Federal Court in Repatriation Commission v Smith (1987) 15 FCR 327. Beaumont J made the following observations (at 335):
“Even if the Tribunal is not bound by the traditional evidentiary principles, s 120(4) constitutes a clear direction to the Tribunal that it must be reasonably satisfied before it makes any decision. In my opinion, this could only have been intended to introduce the standard of proof required in civil litigation…
It follows, in my view, that the Tribunal erred in adopting the Bishop test. Instead, it should have asked itself whether on the facts of the case, it was, persuaded on the civil standard. There is, in this connection, a distinction of substance to be drawn between the probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other…”
A threshold issue which needs to be addressed is whether the material before the Tribunal supports one of the following propositions:
(a)a reasonable hypothesis SoP is apposite;
(b)a reasonable satisfaction SoP is apposite; or
(c)both types of SoPs apply.
Mr Cullen, on behalf of the veteran, initially contended that, although a number of SoP’s were applicable to the veteran’s condition, he relied primarily on No. 8 of 2019 – Internal Derangement of the Knee (Balance of Probabilities) – Exhibit 11.
Subsequently, however, Mr Cullen referred not only to SoP No. 8 of 2019, but also SoP No. 26 of 2019 – Acute Meniscal Tear of the Knee (Balance of Probabilities) – ASFA paras 8 – 10.
Mr Cullen drew the Tribunal’s attention to the Full Federal Court decision of Repatriation Commission v Deledio (1998) 83 FCR 82 and then contended – ASFA para 13:
“The following is an extract of the Commission Guidelines into the four steps applicable to a case where the Reasonable Satisfaction Test applies.
It is more likely than not the injury, disease or death was war or defence caused? This can be considered a four step process.”
Then, under the heading “Where the Reasonable Satisfaction Test Applies”, Mr Cullen set out the Deledio four step methodology – ASFA para 13.
The Deledio methodology is a useful tool for the identification and assessment of a veteran’s hypothesis in matters covered by s 335(1) and (2). The Deledio methodology has no application to those matters where the reasonable satisfaction standard of proof applies. Insofar as Mr Cullen relies on the Deledio principles in matters governed by s 335(3), he proceeds on an incorrect basis.
It is the case that the veteran has served overseas in both Iraq and the Solomon Islands. However, the fact that a veteran may have rendered warlike or non-warlike service is not an “answer” to satisfying the requirement of a causal connection to service – JQVC and Repatriation Commission [2018] AATA 478 at [80].
No material has been submitted that specifically links the veteran’s overseas service to the claimed condition of derangement of the left knee. Indeed, Mr Cullen, in fact, relies upon the SoP’s that relate to peacetime service, namely the reasonable satisfaction standard of proof SoP’s.
The Tribunal, therefore, proceeds on the basis that, insofar as a SoP is relevant to the disposition of this matter, it is a reasonable satisfaction SoP.
Finally, reference should be made to s 27 which defines service injury, disease and death.
In order for an injury sustained or a disease contracted to be a service injury or disease, one or more of the following must apply:
(a)the injury or disease resulted from an occurrence that happened while the person was rendering defence service;
(b)the injury or disease arose out of, or was attributable to, any defence service rendered by the person;
(c)the injury was sustained due to an accident that would not have occurred, or the disease would not have been contracted, but for rendering defence service or changes in the person’s environment consequent upon rendering defence service;
(d)the injury or disease was sustained or contracted while the person was rendering defence service but did not arise out of that service or was sustained or contracted prior to rendering defence service, and the injury or disease was contributed to in a material degree, or aggravated by, any defence service rendered by a person;
(e)the injury or disease resulted from an accident that occurred while the person was travelling to a place for the purpose of performing duty, or away from a place of duty upon having ceased to perform duty.
CONSIDERATION
Diagnosis of claimed injury or disease
It is not disputed by the parties, and the Tribunal agrees, that internal derangement of the left knee is the appropriate diagnosis of the veteran’s condition – ROS para 5.3, ASFA p. 5.
Date of clinical onset
Although the term “clinical onset” is not defined in the Act, it has been the subject of numerous Federal Court judgments. The Respondent referred the Tribunal to the following explanation provided by Jacobson J, at first instance, in Kaluza v Repatriation Commission [2010] FCA 1244 at [92] – [93] – Exhibit 2 para 4.5:
“The meaning of the expression ‘clinical onset’ was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:
‘when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or
when a finding is made on investigation which is indicative to a doctor that the disease is present.’
The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.”
The undisputed evidence before the Tribunal is that the veteran experienced no problems with his left knee from 1992 until 2017.
At the 12 May 2021 Hearing, Mr Cullen made the following submission to the Tribunal – Tr. 12.5.2021 p. 10:
“You know, it’s – it’s pretty clear that…he went from…’92 right through till ’17 without any issues with his knee….”
Under cross-examination from Mr Dube, the following exchange occurred – Tr. 12.5.2021 p. 12:
“And just to confirm, you said when you were answering Mr Cullen’s questions a few moments ago that in terms of your recollection of when you felt difficulties or problems in your knee, it first came on some time in 2017 after you had had a flare up of your ankle injury, is that right?---…that is correct. So I felt it was bone on bone with the knee, it was quite excruciating and annoying…”
In the Injury or disease details sheet of 14 November 2018, the veteran claimed that he first noticed signs or symptoms of the injury or disease in November 2017 - Exhibit 1 T12 p. 67. In a subsequent Injury or disease details sheet of 2 January 2019, the veteran claimed he first noticed signs or symptoms in December 2017 – Exhibit 1 T15 p. 78.
The Respondent contends that the date of clinical onset is 1992 and that the date of clinical worsening is November/December 2017 – ROS para 5.4.
Conversely, the Applicant contends, based on the reports of Dr Hughes and Dr Cunneen, that the veteran suffered a new injury in 2017, and, as such the date of clinical onset is October/November 2017.
Whether the veteran suffered a new injury or contracted a new disease in 2017, or experienced an aggravation of an extant injury or disease, is not determinative of the liability of the Respondent. However, in reaching a conclusion on the preferrable date of clinical onset, consideration of the medical evidence presented to the Tribunal is important. For reasons given below, the Tribunal prefers the advice given, and conclusions reached, by Dr Allen. In his report of 4 November 2020, Dr Allen, when asked what was the date of clinical onset, opined as follows – Exhibit 5 para 4.6:
“The date of onset is 1992. There is contemporaneous evidence of that time together with the surgical procedure.”
The Tribunal, therefore, concludes that the date of clinical onset of the veterans’ condition is 1992.
A further issue needs to be addressed.
Although the term “clinical onset” is not defined in the Act, as it is a creature of the SoP regime, neither is the term “clinical worsening”, which is likewise a term used in many SoP’s.
Of relevance to this matter, both terms are used in SoP No. 8 of 2019 – Internal Derangement of the Knee (Balance of Probabilities).
A perusal of the numerous Federal Court and Tribunal decisions on this term lead to the following conclusion about “clinical worsening”: clinical worsening is intended to convey the worsening of an existing condition, as distinct from a temporary worsening of symptoms of an existing condition. In short, the worsening must be, or appear to be, a permanent worsening – see Hatherall and Repatriation Commission (2002) 70 ALD 194 and Dawson and Repatriation Commission [2004] AATA 107.
It is unfortunate in an area of the law which is, at times, so difficult, opaque and byzantine, that the framers of the SoP regime use terms not used in the Act itself, so there is not some degree of unison of terminology. It is tolerably clear that “clinical worsening” is the equivalent of “aggravation” of signs or symptoms as prescribed in s 30.
Does the material raise a connection between the veteran’s condition and his defence service?
First, it needs to be noted that the original injury to the veteran’s left knee occurred in 1992, before he commenced defence service. That fact is not in dispute. The issue in contention is the veteran’s condition in 2017, and whether that condition was a new injury brought about by defence service, an aggravation brought about by defence service, or, as Dr Allen has opined, the natural progression of the 1992 injury which would have evolved irrespective of the veteran’s defence service.
In support of the contention that there is a connection between the veteran’s condition and his defence service, Mr Cullen first made the following submissions – Exhibit 11 p. 2:
“I wish to bring to attention of the Respondent and the Tribunal that the injury in 1992 is not an issue.
The condition was surgically repaired, the Applicant was able to pass the required physical fitness tests so as to enlist in the Army, with the Army being fully aware of the pre-existence of the condition. The Applicant subsequently enlisted in the Army into an Armoured Corp position that required a huge amount of lifting and carrying loads and to maintain his physical fitness as required by Defence personnel. He maintained this requirement throughout his career without any problems with his left knee at least (I cannot find any mention of left knee injury throughout his medical documents).
The injury that occurred in 2017 happened while carry [sic] out physical training during off duty hours. This training was in accordance with an instruction named Army Standing Instruction (Personnel) Part 8, Chap 4 8.4.3 Conduct of Physical Training Activities During Off-Duty Hours…”
(bold in the original)
After receipt of the reports of Dr Hughes and Dr Cunneen, Mr Cullen made the following submissions – ASFA paras 5 – 6:
“The Applicant was able to maintain his physical fitness plus his normal army duties which was a crewman on armoured vehicles among other duties eg Lifting and Carrying Heavy Equipment. All of this time there were no problems at all with his knee, especially his left knee. It is obvious that the duties did not impact on his knees in any shape or form until 2017 which is 25 years after the initial injury.
As per the MRI carried out in 2018 – it showed evidence of chronic ACL Rupture, post-surgical changes of the Menisci and early degenerative changes etc etc. Dr Hughes has given an opinion in his report dated 23 June 2021 where he states ‘At some stage during his Military Service he sustained an internal Derangement of the Knee with a Rupture of the Left Knee Anterior Cruciate Ligament and this should be considered a new injury related to his Military Service.’ Dr Cunneen, an Occupational Physician agrees with Dr Hughes opinion that the Applicant’s service has led to a complete rupture of the Left ACL.”
Mr Dube, on behalf of the Respondent, initially contended as follows – Exhibit 2 paras 4.10 – 4.12:
“The Respondent submits that the material linking the Applicant’s claim with service and the contention that his condition arose due to the high level of fitness is very limited. Dr Hughes in his report dated 31 July 2019…stated that the Applicant ‘cannot recall any specific injuries to either knees, except the repetitive load bearing activities that go with military service, including carrying heavy pack on uneven ground and regular physical training and sport’. Dr Hughes does not however, provide any clear opinion regarding his view about the cause of the Applicant’s condition. That is, the opinion does not expressly provide evidence ‘raising a connection’.
The Respondent relies on the opinion of Dr Allen. The Respondent contends that the Applicant’s left knee condition is entirely attributed to non-service-related factors which predated his admission to the Defence Force.
Therefore, the Respondent submits that the evidence before the Tribunal is insufficient to raise a connection with the Applicant’s service given the lack of evidence to support a link between the activities associated with service and the onset of his knee injury.”
After receiving the reports of Dr Hughes and Dr Cunneen, Mr Dube made the following submissions - ROS paras 5.6 – 5.8:
“The Respondent contends that the recent reports of Dr Hughes and Dr Cunneen do not advance the Applicant’s case that there is connection between his service and his condition. Dr Hughes’ report concludes that ‘at some stage’ there was an internal derangement and he ‘think[s] this should be considered a new injury related to his military service.’ Similarly, Dr Cunneen’s report only concludes that the Applicant’s ‘service’ has led to the complete rupture of the left ACL.
The Applicant’s original claim was that this condition was caused by the physical nature of his service. In his evidence before the Tribunal he contended that it was because of his left ankle. No corroborative medical evidence has been adduced in respect of the latter contention.
The Respondent contends that the material before the Tribunal is insufficient to raise a connection between the Applicant’s service and his condition.”
As previously explained, the standard of proof in this matter is reasonable satisfaction, and the Deledio principles do not apply as this is not a reasonable hypothesis case.
However, it is tolerably clear that the requirement in s 339(3)(a) that the material raises a connection between the injury or disease and defence service rendered is a threshold requirement and, only after it is satisfied, can a decision-maker turn attention to whether the requirements of the relevant SoP or SoP’s are met.
In some respects, this requirement is similar to the first step of the Deledio methodology in that a decision-maker is required to be reasonably satisfied that there is some evidence presented to support a veteran’s claim. A decision-maker does not, at this stage of the process, need to have material that satisfies the reasonable satisfaction test, merely that there is evidence of some type that supports the proposition of a connection between defence-service and the injury or disease claimed.
The Tribunal notes the factual propositions advanced by Mr Dube on behalf of the Respondent. However, the Tribunal has also been presented with medical evidence from the veteran which, without equivocation, opines that there is such a connection.
The Tribunal, at this stage of inquiry, does not have to conclude on the correctness of the evidence supporting a connection. Rather, the Tribunal is only required to determine if there is reasonable basis underpinning that evidentiary proposition.
In this matter, the Tribunal concludes that there is a basis for the medical evidence suggesting a connection between the veteran’s defence service and the injury or disease claimed and, therefore, the requirements of s 339(3)(a) are met.
SoP No. 8 of 2019 – Internal Derangement of the Knee
Both the veteran and the Respondent have contended that the most appropriate SoP for this matter is SoP No. 8 of 2019 – Internal Derangement of the Knee.
As previously noted, Dr Hughes, in his report of 7 November 2018, opined that the MRI of 29 October 2018 disclosed that the veteran was suffering from “a chronic ACL rupture with medial and lateral meniscal tears” – Exhibit 1 T11 p. 66. Likewise, Dr Allen, in his report of 4 November 2020, opined that the veteran was suffering from “(a)nterior cruciate ligament rupture with meniscal damage…(t)his constitutes an ‘internal derangement of the knee’.” – Exhibit 5 para 4.3.
Subsection 7(2) of SoP No. 8 of 2019 defines “internal derangement of the knee” as follows:
“For the purposes of this Statement of Principles, internal derangement of the knee:
(a) means 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; and
(b) excludes chondromalacia patella and other disorders of the patella, congenital discoid meniscus, osteochondritis dissecans, cysts of the menisci, degenerative tears of the menisci, and other degenerative processes such as osteoarthritis and loose bodies in the knee joint.”
Mr Cullen, on behalf of the veteran, made the following submission – Exhibit 11 p. 2:
“There are a number of SOPs that would fit the condition, however, let’s use SOP 8 of 2019 Internal Derangement of the Knee with Factor 9(1)(2)(3) and (4). At Clause 7 2(A) the meaning of Internal Derangement of the Knee is satisfied.”
Subsequently, after receiving the medical reports of Dr Hughes and Dr Cunneen, Mr Cullen again relied on SoP No. 8 of 2019 and, in particular, on Factor (2) - ASFA para 8.
Section 9 of SoP No. 8 of 2019 lists the Factors, at least one of which must exist before it can be said, on the balance of probabilities, an internal derangement of the knee is connected with the circumstances of a person’s relevant service. The Factors relied upon are as follows:
“(1) having a sprain involving a ligament of the affected knee within the one year before the clinical onset of internal derangement of the knee;
(2) having an acute meniscal tear of the affected knee within the one year before the clinical onset of internal derangement of the knee;
(3) having a sprain involving a ligament of the affected knee within the one year before the clinical worsening of internal derangement of the knee;
(4) having an acute meniscal tear of the affected knee within the one year before the clinical worsening of internal derangement of the knee…”
As the Tribunal has found that the date of clinical onset was 1992, a number of years before the veteran commenced service, the relevant Factors are (3) and (4), with the focus on clinical worsening.
The Tribunal is required to be reasonably satisfied that the veteran either suffered a sprain involving a ligament of the left knee within a year of clinical onset or suffered an acute meniscal tear of the left knee within a year of clinical worsening.
Apart from the two medical reports of Dr Hughes and Dr Cunneen, the veteran has presented no factual evidence which would satisfy either or both of the two Factors. Further, the two reports of Dr Hughes and Dr Cunneen do not satisfy the factual inquiry required when addressing the requirements of the Factors that must exist in a SoP. It should be recalled that the SoP regime was introduced to obviate the need for a decision-maker to make medico-legal interpretations. One of the key innovations of the SoP regime was to introduce into the decision-making process a factual and objective inquiry devoid of recourse to medical debates.
In short, a decision-maker when determining if a Factor or Factors is satisfied, is required to assess whether the evidentiary matrix presented allows a conclusion to be drawn according to the evidentiary standard mandated by the governing statute for the particular Factors in question.
There is no factual evidence presented that allows the Tribunal to conclude that the veteran suffered a sprain or acute meniscal tear of the type dealt with in Factors (3) or (4) within the relevant time period.
In order for the Tribunal to be satisfied that either Factors (3) or (4) have been met (and the same applies to Factors (1) and (2)), the Tribunal must be presented with some factual material that this is the case. A medical hypothesis does not meet this standard.
In plain English, the Tribunal has not been presented with any evidence that the veteran, within a year of clinical worsening, actually suffered a sprain affecting the ligament of the left knee or experienced an acute meniscal tear of the left knee.
However, even if the Tribunal was to rely on the medical opinions presented, then the same result would occur.
As previously noted, Dr Allen opined, in his report of 4 November 2020, that the veteran’s left knee condition “is, in its entirety, ascribed to the injury in 1992. It has evolved in line with the natural history of this condition over time and would have evolved in a similar fashion regardless of his military service” – Exhibit 5 para 4.7.
Dr Allen rejected the proposition that there had been any clinical worsening of the veteran’s left knee condition and concluded by stating that his left knee condition is “entirely attributable to non-service related factors which predated his admission to the Defence Force” – Exhibit 5 paras 4.9 and 4.12.
The Tribunal had the benefit of observing Dr Allen giving evidence. Dr Allen was a compelling witness and while, at times, blunt in his opinions, was, nonetheless, authoritative and objective. It is also the case that Dr Allen was briefed by Sparke Helmore Lawyers with all of the relevant background material – Exhibit 4 para 2. In comparison, neither Dr Hughes nor Dr Cunneen were briefed with the same material.
The reports of both Dr Hughes and Dr Cunneen are brief and their opinions are not backed up by detailed reasoning. Further, neither Doctor was called to give evidence and neither Doctor was subjected to cross-examination.
The Tribunal is in no way critical of the opinions given by Dr Hughes or Dr Cunneen; however, for the reasons outlined, the reports and opinions given by Dr Allen are preferred. The Tribunal, therefore, finds that the veteran’s left knee condition has naturally evolved over time and there has not been any clinical worsening of the left knee condition as required by Factors (3) and (4).
Alternative SoPs
Apart from SoP No. 8 of 2019, the Tribunal’s attention was drawn, albeit briefly, by the Respondent to a number of alternative SoP’s, namely:
(a)No. 37 of 2017 – Labral Tear;
(b)No. 22 of 2019 – Acute Articular Cartilage Tear;
(c)No. 26 of 2019 – Acute Meniscal Tear of the Knee;
(d)No. 58 of 2019 – Joint Instability; and
(e)No. 28 of 2020 – Sprain and Strain.
The only one of these referred to by Mr Cullen, on behalf of the veteran, is SoP No. 26 of 2019. Mr Cullen made the following submission – ASFA para 10:
“As a fall back, if SOP 8 of 2019 is not successful then he would fit the SOP concerning Acute Meniscal Tear of the Knee, No 26 of 2019 Factor 9(1) Having a significant physical force applied to or through the affected knee joint at the time of the Clinical Onset of Acute Meniscal Tear…
It is our contentions that the activities carried out by the Applicant during his Army Service but particularly in 2017 was the cause of the Meniscal Tear that required complete reconstruction of the Applicant’s knee.”
(emphasis in the original)
The term “acute meniscal tear of the knee” is defined in s 7(2) of SoP No. 26 of 2019 as follows:
“(2) For the purposes of this Statement of Principles, acute meniscal tear of the knee:
(a) means an injury causing tearing of a meniscus of the knee joint resulting in a sudden onset of pain and tenderness; and
(b) excludes chronic tear and degenerative disease of the meniscus.”
Dr Allen opined, in his reports of 4 November 2020 and 14 December 2020, that the veteran had suffered an acute meniscal tear of the left knee fitting the definition in s 7(2) – Exhibit 5 para 4.16; Exhibit 7 para 4.16.
Section 9 lists two Factors, the first of which is:
“(1) having a significant physical force applied to or through the affected knee joint at the time of the clinical onset of acute meniscal tear of the knee.”
It will be noted that the relevant time for the occurrence of the injury is clinical onset.
Again, Dr Allen agreed that the veteran had suffered such an injury to his left knee – Exhibit 5 para 4.16; Exhibit 7 para 4.16.
However, Dr Allen also opined that the veteran could not satisfy s 10, as the knee injury must be related to the veteran’s defence-service. This is because the injury occurred in 1992, before the veteran commenced service.
The Tribunal agrees that the acute meniscal tear of the veteran’s left knee occurred in 1992, and as this was some time before he started rendering defence-service, it cannot be said that there is any relationship to service, as mandated by s 10 of SoP No. 26 of 2019.
Although Mr Cullen did not address either SoP No. 58 of 2019 or SoP No. 28 of 2020, Dr Allen addressed both in his reports and reached the same conclusion as he did with SoP No. 26 of 2019 – Exhibit 7 paras 4.13 and 4.14. Even though it is not necessary for the disposition of this matter to reach any conclusions about these SoPs, the Tribunal is in agreement with the reasoning and conclusions of Dr Allen.
In reaching this conclusion, the Tribunal has preferred the opinion of Dr Allen that the veteran did not suffer a new injury in 2017 (or, in the alternative, an aggravation of his underlying condition), but, rather, there has been “an evolution of his condition in line with the natural history of this condition over the years” – Exhibit 5 para 4.9.
Section 27 – connection to service
As set out above, Dr Allen opined that the veteran’s current condition is not related in any causal sense to the defence-service he has rendered. Instead, Dr Allen opined that the veteran’s left knee condition is entirely related to the 1992 injury and the natural evolution of that injury over time. In Dr Allen’s opinion, his current left knee condition would have evolved regardless of the veteran’s defence-service – Exhibit 5 para 4.7.
The Tribunal has, for the reasons given above, preferred the diagnosis of Dr Allen to the opinions of Dr Hughes and Dr Cunneen.
The Tribunal, therefore, finds that the veteran does not meet any of the alternative tests of causation set out in s 27 which are referred to above.
CONCLUSION
139.
The decision under review is affirmed.
I certify that the preceding 139 (one hundred and thirty nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
................[SGD].......................................................
Associate
Dated: 27 January 2022
Dates of hearing:
5 May 2021 and 12 May 2021 Date final submission received:
14 September 2021 Advocate for the Applicant: Mr Ken Cullen
Gaythorne RSL
Solicitors for the Respondent: Mr Benjamin Dube
Sparke Helmore Lawyers
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