Davis and Repatriation Commission (Veterans' entitlements)

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Davis and Repatriation Commission (Veterans' entitlements) [2021] AATA 526 (16 March 2021)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2018/2215, 2018/2223, 2018/2630, 2018/2632-33

Re:Gary Davis

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:16 March 2021

Place:Brisbane

(a)the reviewable decision of 20 October 2016 is set aside in part, and in substitution the Tribunal decides that:

(i)the veteran’s claimed chronic obstructive pulmonary disease (COPD) is a defence-caused disease pursuant to s 70 of the Act with effect from 9 February 2014;

(ii)       the rate of pension is to be reassessed;

(b)the reviewable decision of 20 October 2016 is affirmed with respect to the claimed condition of cervical spondylosis;

(c)the reviewable decision of 21 March 2017 is set aside and in substitution the Tribunal decides that:

(i)the veteran’s claimed osteoarthritis affecting both hips is a defence-caused disease pursuant to s 70 of the Act with the date of effect to be determined by the Respondent;

(ii)the application is remitted for the Respondent to reassess the rate of pension;

(d)the reviewable decision of 23 April 2018 is affirmed with respect to the decisions that the veteran’s claimed osteoarthritis affecting both shoulders and elbows and fracture of the left rib are not related to his defence service; and

(e)the reviewable decision of 23 April 2018 is set aside in part with respect to the decisions relating to the disability pension, the application is remitted for the Respondent to reassess the rate of pension.

Deputy President J Sosso

CATCHWORDS

VETERANS’ AFFAIRS  – disability pension – cervical spondylosis – osteoarthritis – causal connection between injury and defence service – Cyclone Tracy – but for test – decision set aside and substituted – decision affirmed

LEGISLATION

Civil Liability Act 2002 (NSW)

Repatriation Act 1920 (Cth)
Veterans’ Entitlements Act 1986 (Cth)
Statement of Principles concerning Cervical Spondylosis (No. 67 of 2014) (Cth)
Statement of Principles concerning chronic obstructive pulmonary disease (No. 37 of 2014) (Cth)
Statement of Principles concerning Fracture(Balance of Probabilities) (No. 95 of 2015) (Cth)
Statement of Principles concerning osteoarthritis (Balance of Probabilities) (No. 62 of 2017) (Cth)

CASES

Roncevich v Repatriation Commission (2005) 222 CLR 115

Gilkinson v Repatriation Commission (2011) 197 FCR 102
Repatriation Commission v Tuite (1993) 39 FCR 540
Repatriation Commission v Cornelius [2002] FCA 750
Lees v Repatriation Commission (2002) 125 FCR 331
Kaluza v Repatriation Commission [2010] FCA 1244
Kaluza v Repatriation Commission [2011] FCAFC 97
Youngnickel v Repatriation Commission [2004] FCA 1691
Lake and Department of Defence [1993] AATA 87
Stewart and Repatriation Commission [2003] AATA 1174
Woodward and Repatriation Commission [2006] AATA 1099
Holthouse v Repatriation Commission (1982) 1 RPD 287
Wedderspoon v Minister of Pensions [1947] 1 KB 562
Pridham and Commonwealth of Australia [1987] AATA 4
Chaney and Repatriation Commission [2015] AATA 286
Franks and Repatriation Commission [2010] AATA 329

March v Stramare Pty Limited (1991) 171 CLR 506

Strong v Woolworths Limited (2012) 246 CLR 182

REASONS FOR DECISION

Deputy President J Sosso

16 March 2021

INTRODUCTION

  1. Mr Gary…

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Details
Case
[2021] AATA 526
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal by a veteran against decisions of the Repatriation Commission, which had affirmed previous decisions to deny certain disability pension claims. The veteran sought to establish a defence-caused connection for conditions including osteoarthritis of the shoulders and elbows, a fractured left rib, and cervical spondylosis. The veteran's service included postings to RAAF Base Edinburgh and RAAF Base Darwin, where he sustained several injuries, including to his knees and ankles. A significant event during his Darwin posting was Cyclone Tracy, which disrupted medical procedures he was scheduled to undergo for a knee injury.

The primary legal issues before the court were whether the veteran's diagnosed conditions of osteoarthritis of the shoulders and elbows, cervical spondylosis, and a fractured left rib were defence-caused. This required the court to consider the application of the relevant Statements of Principles (SoPs) and the "but for" test in determining the causal link between the veteran's service and his claimed disabilities. Specifically, the court had to assess whether the factors outlined in SoP 62 of 2017 (for osteoarthritis) and SoP 67 of 2014 (for cervical spondylosis) were met, and whether the veteran's account of a fall in Darwin and subsequent medical events established the necessary connection.

The court considered the medical evidence, including reports from Dr. Christine Campbell and Dr. H J P Khursandi, which indicated degenerative changes and arthritis in various joints, and a potential healing fracture of the left 5th rib. The court also examined the veteran's testimony regarding an incident where he slipped on an oily floor in Darwin in 1973/1974, sustaining an injury to his left knee that required surgery, which was postponed due to Cyclone Tracy. The court applied the "but for" test, considering whether the veteran would have developed these conditions but for his defence service. The court found that the veteran's account of the slip in Darwin, coupled with the subsequent medical advice and the timing of his discharge, established a causal link for his left knee condition. The court also considered the evidence relating to trauma to the cervical spine and the development of osteoarthritis in his shoulders and elbows, applying the relevant SoPs.

The court set aside the decision of the Repatriation Commission regarding the fractured left rib and substituted a decision that this condition was defence-caused. The court affirmed the decisions of the Repatriation Commission in relation to the osteoarthritis of the shoulders and elbows and cervical spondylosis, finding that the veteran had not established, on the balance of probabilities, that these conditions were defence-caused.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Finally, on 23 April 2018 the Board affirmed three decisions of the Respondent. Two of the affirmed decisions continued the veteran’s disability pension at 100% of the General Rate and the third decision, of 29 August 2017, was that the claimed conditions of osteoarthritis of both shoulders and elbows and a fracture of the left rib were not defence-caused – Exhibit 1 T69.1 pp. 368 – 380.BACKGROUND As previously noted, the Applicant enlisted in the RAAF in January 1970, and on 19 January 1970 he was posted to RAAF Base Edinburgh in South Australia – Exhibit 1 T11 p. 63. The first issue of a medical nature after this time was a note of 11 March 1970 that the veteran had injured his right knee on exercise the previous day. The treating doctor noted that it was a “minimal sprain” - Exhibit 1 T11 p. 63. Subsequently, on 20 November 1970, the treating medical officer opined that the veteran had “twisted both ankles at PT” and that he suffered “very unusual swelling both ankles” – Exhibit 1 T11 p. 64. There is a further notation of 22 February 1971 where the treating medical officer reported that the veteran had twisted his right ankle the previous night and the ankle was swollen – Exhibit 1 T11 p. 64. On 20 June 1972 the veteran was posted to RAAF Base Darwin – Exhibit 1 T11 p. 65. Following his posting to the Northern Territory, the veteran began to experience problems, inter alia, with his left knee. The veteran provided the following account of the problems afflicting his left knee – Transcript (Tr.) 1.7.2019 pp. 31 – 32:“MR O’NEILL…Tell the Tribunal how you initially injured your left knee? --- It happened while I was serving in the Royal Australian Air Force. I did hurt my knee on a couple of occurrences but the main issue that I believe caused my next – my knee to be the way it is, is when I slipped on an oily [floor] in the power house between 1973/1974….I slipped on…the floor was just a painted concrete floor, and there was water on it and oil, which was a common occurrence in those days, and as much as you can be careful I did slip, I banged the knee on the corner of the concrete plinth that the engine sat on, huge big engines, and that where I tore that ligament.…were [you] told…you had to have an operation on your knee? --- Yes.When? --- Probably 1973/1974, when I had it – when they found that – after they did the X-rays that they found the problem, and I was due to have it done and then Cyclone Tracey hit, and then obviously I got – I wasn’t long after there was nothing in Darwin to do the procedure after the cyclone. I got posted to Sydney and there were to do it and when they were about to do it in Sydney I was due for discharge. They told me I wasn’t going to be able to walk for six months, probably, after they did it, and so I chose -at the time I elected discharge and they told me that I could have that knee repaired in – once I got out of the forces, because it was a service-related injury, so.”

Evidence

Evidence Before The Court

By 5 November 2010 the veteran had been advised to discard his walking frame and he was by then “walking as advised & doing some theraband exercises as shown by PT” – Exhibit 3 p. 15.KEY MEDICAL EVIDENCE The Tribunal has been presented with a number of medical reports. Set out below is a summary of the key medical evidence.Dr Christine CampbellReport 10 January 2003 Dr Campbell, of Central Queensland Medical Imaging, performed a whole body bone scan on the veteran on 9 January 2003 and made the following findings – Exhibit 1 T12 p. 73:“There is a focus of mildly increased tracer uptake in the left 5th rib laterally. The patient also has mildly increased tracer in both acromioclavicular joints and the hips, knees and ankles and a more profound increase in tracer uptake in the elbow joints, particularly the right elbow joint and in the proximal left tibiofibular joint.COMMENT:Findings are in keeping with degenerative change and arthritis in the above mentioned joints.There appears to be a solitary rib focus. It is likely that it is a healing fracture.”(bold in the original)Supplementary Report 6 February 2020 Dr Campbell was asked to review the bone scan images from 9 January 2003, and she provided the following analysis – Exhibit 12:“There is no doubt there is at least moderate periarticular increase in tracer uptake in the elbow joints, the right proximal tibiofibular joint, right patellofemoral joint and in both ankle joints at possibly the subtalar joints although specific view of these was not performed. Similarly the small joints of the hands and wrists have not been formerly imaged however on the images that are available there is no doubt there is increased periarticular tracer uptake in the small joints of the hands and wrists which are on the images. Increased tracer uptake is also evident in the AC joints and glenohumeral joints bilaterally.These findings support the diagnosis of active arthritis in [the] above mentioned joints. Unfortunately the bone scan is not specific for an active osteoarthritis as opposed to other forms of active arthritis but it is certainly very sensitive for active arthropathy. Bone scans are routinely used to assess for inflammatory arthritis of the joints of the appendicular skeletal and are particularly useful when there are no findings on the plain x-ray as the x-ray may be noncontributary.”Dr H J P Khursandi Dr Khursandi examined the veteran on 31 March 2011 and prepared a detailed report dated 20 April 2011 – Exhibit 1 T21 pp. 105 – 116. The report sets out at length the veteran’s post-service employment history as well as a history of the various injuries the veteran suffered to his left and right knees and back. Dr Khursandi does not mention in his report the fall from the roof in Casino in 1989 – Exhibit 1 T21 pp. 106 – 107. Dr Khursandi refers to the veteran slipping on an oily floor whilst stationed in Darwin in 1974/1975 with a consequent injury to his left knee – Exhibit 1 T21 p. 106.

Decision

Reasons for decision

Dr Adebiyi referred the veteran for an MRI of his left hip. The MRI findings were as follows – Exhibit 3 p. 27:“CONCLUSION:MRI findings suggest fractures through the anterior aspect of the left acetabulum extending into the superior pubic rami.Another fracture is seen through the left inferior pubic rami with some oedema of the adjacent muscles.No femoral fracture.Incidentally noted was large ill-defined oedema along the left sacrum also. This could be due to a sacral fracture.The area has not been well covered on the present examination and dedicated MRI for the sacrum can be obtained to better assess this finding.”(bold in the original) By 5 November 2010 the veteran had been advised to discard his walking frame and he was by then “walking as advised & doing some theraband exercises as shown by PT” – Exhibit 3 p. 15.KEY MEDICAL EVIDENCE The Tribunal has been presented with a number of medical reports. Set out below is a summary of the key medical evidence.Dr Christine CampbellReport 10 January 2003 Dr Campbell, of Central Queensland Medical Imaging, performed a whole body bone scan on the veteran on 9 January 2003 and made the following findings – Exhibit 1 T12 p. 73:“There is a focus of mildly increased tracer uptake in the left 5th rib laterally. The patient also has mildly increased tracer in both acromioclavicular joints and the hips, knees and ankles and a more profound increase in tracer uptake in the elbow joints, particularly the right elbow joint and in the proximal left tibiofibular joint.COMMENT:Findings are in keeping with degenerative change and arthritis in the above mentioned joints.There appears to be a solitary rib focus. It is likely that it is a healing fracture.”(bold in the original)Supplementary Report 6 February 2020 Dr Campbell was asked to review the bone scan images from 9 January 2003, and she provided the following analysis – Exhibit 12:“There is no doubt there is at least moderate periarticular increase in tracer uptake in the elbow joints, the right proximal tibiofibular joint, right patellofemoral joint and in both ankle joints at possibly the subtalar joints although specific view of these was not performed. Similarly the small joints of the hands and wrists have not been formerly imaged however on the images that are available there is no doubt there is increased periarticular tracer uptake in the small joints of the hands and wrists which are on the images. Increased tracer uptake is also evident in the AC joints and glenohumeral joints bilaterally.These findings support the diagnosis of active arthritis in [the] above mentioned joints. Unfortunately the bone scan is not specific for an active osteoarthritis as opposed to other forms of active arthritis but it is certainly very sensitive for active arthropathy. Bone scans are routinely used to assess for inflammatory arthritis of the joints of the appendicular skeletal and are particularly useful when there are no findings on the plain x-ray as the x-ray may be noncontributary.”Dr H J P Khursandi

Ratio Decidendi

Legal Principle Established

The veteran was represented by Mr B O’Neill, and the Respondent at the Hearings of 1 July 2019, 20 October 2020 and 26 October 2020 by Ms L Cooper and at the Hearing of 18 February 2020 by Mr J Watts.CONSIDERATIONIntroduction The Respondent accepts that the veteran has been diagnosed with bilateral osteoarthritis of the hips, shoulders and elbows and cervical spondylosis – RSSIFC para 54. The Respondent does not accept that the veteran suffered from a fractured left rib – RSSIFC para 55.SoP 62 of 2017 “Osteoarthritis” is defined in Cl. 7(2) of SoP 62 of 2017 as follows: “(2) For the purposes of this Statement of Principles, osteoarthritis:(a) means degenerative joint disorder with:(i) clinical manifestations of pain, impaired function and stiffness; and(ii) osteophytes or loss of articular cartilage; and(b)excludes acute articular cartilage tear and osteochondritis dissecans.” Clause 9 of SoP 62 of 2017 sets out the Factors that must exist before it can be said, on the balance of probabilities, that osteoarthritis is connected with the circumstances of the veteran’s service. Although this aspect of the veteran’s case did not receive the attention it required, nonetheless, the Tribunal is reasonably satisfied that, at least, the following Factors are relevant:(6) having trauma to the affected joint within 25 years before the clinical onset of osteoarthritis in that joint;(10) having disordered joint mechanics of the affected joint for at least five years before the clinical onset of osteoarthritis in that joint;(14) for osteoarthritis of joints of the lower limbs:(c) carrying loads of at least 20 kg while bearing weight through the affected joint:(i) to a cumulative total of at least 3,800 hours within any 10 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. “Joint of the lower limb” is defined in Schedule 1 of SoP 62 of 2017 to mean:“the hip, knee, ankle, sacro-iliac joint or any joint of the foot.”SoP 67 of 2014 “Cervical spondylosis” is defined by Cl. 3 (b) of SoP 67 of 2014 to mean:“a degenerative joint disorder affecting the cervical vertebrae or intervertebral discs with:(i)clinical manifestations of local pain and stiffness, or symptoms and signs of cervical cord or cervical nerve root compression; and(ii)imaging evidence of degenerative change, including disc space narrowing or osteophytes.Other commonly associated features include facet joint arthritis, bone hypertrophy and spinal stenosis. This definition excludes diffuse idiopathic skeletal hyperostosis and bulging of an intervertebral disc in the absence of other signs of degeneration. Cervical spondylosis includes spondylosis at the cervicothoracic junction.” From the evidence presented to the Tribunal the relevant Factors appear to be Cl 6(f) and (h). Factor (f) is set out below:“having trauma to the cervical spine at least one year before the clinical onset of cervical spondylosis, and where the trauma to the cervical spine occurred within the 25 years before the clinical onset of cervical spondylosis.”