Davis and Repatriation Commission (Veterans' entitlements)
[2021] AATA 526
•16 March 2021
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 329March 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
Mr Gary Davis (the veteran) was born in 1952 and is currently 68 years of age. The veteran served in the Royal Australian Air Force (RAAF) between 16 January 1970 and 15 January 1976 and on discharge had achieved the rank of Leading Aircraftman – Exhibit 1 T10 p. 56. During his service the veteran served as a telecommunications technician – Exhibit 1 T21 p. 106, T55 p. 305. The veteran’s service between 7 December 1972 and 15 January 1976 constitutes eligible defence service for the purposes of Part IV of the Veterans’ Entitlements Act 1986 (the Act) – Exhibit 1 T9 p. 36.
After his discharge from the RAAF the veteran was employed as a telecommunications technician from 1976 until 1982. From 1982 until 2014 he was employed by Nixon Communications and was at one time the second-in-charge of the company - Exhibit 1 T56 p. 308. From 2014 until 2016 the veteran was engaged as a sole trader – Exhibit 1 T55 p. 306.
Set out below are the conditions which have been accepted as defence-caused by the Repatriation Commission (the Respondent). Those set out immediately below were accepted on 24 June 2011 and each decision took effect from 31 October 2010 – Exhibit 1 T22.1 pp. 118 - 119:
(a) Lumbar spondylosis – Exhibit 1 T9 pp. 37;
(b) Sensorineural hearing loss – Exhibit 1 T9 pp. 38 – 39;
(c) Tinnitus – Exhibit 1 T9 pp. 39 – 40;
(d) Solar keratosis – Exhibit 1 T9 pp. 40 – 41;
(e) Osteoarthrosis of the left knee – Exhibit 1 T9 pp. 41 – 42 and
(f) Osteoarthrosis of the right knee – Exhibit 1 T9 pp. 37 – 38, T22.1 p. 121.
In determining that the osteoarthrosis of both knees was service-related, the delegate of the Respondent referred to a report of Dr H J P Khursandi (Consultant Orthopaedic Surgeon). Dr Khursandi diagnosed osteoarthrosis in both knees, and in the case of the left knee opined that there were mechanical symptoms since 1974/1975 when the veteran slipped, on duty, on a oily floor and injured his left knee – Exhibit 1 T21 pp 105 – 110. However, the delegate accepted liability not on this basis but on lifting loads whilst on duty – Exhibit 1 T22.1 pp. 121 – 122.
The disability pension was granted at 50% of the General Rate with effect from 31 October 2010 – Exhibit 1 T22.1 p.118.
The disability pension was subsequently increased to 80% of the General Rate by a decision of 16 October 2013, with an effective date of 12 November 2012 and then to 100% by a decision of 8 April 2015 effective as from 14 November 2012 – Exhibit 1 T9 p. 54.
In addition, the Veterans’ Review Board (the Board) on 24 February 2015 set aside decisions of the Respondent with respect to the conditions outlined below and determined them to be defence-caused – Exhibit 2 ST2 pp. 390 – 400:
(a) Post-traumatic stress disorder;
(b) Alcohol dependence and alcohol abuse;
(c) Osteoarthritis affecting both ankles; and
(d) Gastro-oesophageal reflux disease.
With respect to the osteoarthritis affecting both ankles, the Board was satisfied that the clinical date of onset was 1989 – Exhibit 2 ST2 p. 398. The Board set out the contentions of the veteran as follows – Exhibit 2 ST2 pp. 398 – 399:
“52. Mr Davis contends that he has a history of manually lifting or carrying heavy loads on a regular basis during his service years.
53. From 12 June 1972 to 10 February 1976…Mr Davis contends as part of his duties he lifted and carried:
•Tele type printers for repair and servicing. He notes the printers weighed 60kgs.
•Removed and replaced cable tray covers to the radar tower weighing 60kgs.
• Removed and replaced batteries on GM Generators weighing 40kgs.
• Removed and replaced air conditioner fan motors weighing 40kgs.
• Removed and replaced radar operator console weighing 100kgs.
• Loaded and unloaded stores truck twice weekly weighing 50kgs.
• Serviced the generators lifting and carrying oil drums weighing 40kgs.”
Reference was made to the then Statement of Principles (SoP) No 14 of 2010 for osteoarthritis (Balance of Probabilities), with the relevant Factor being Cl. 6(m). The equivalent Factors in SoP 62 of 2017 are Cl. 9 (14) (b) and (c). The Board made the following finding – Exhibit 2 ST2 pp. 399 – 400:
“56. The Board accepts Mr Davis evidence that as part of his duties he manually carried and lifted loads in excess of 35kgs.
57. Based on the applicant’s evidence about service; the Board is reasonably satisfied that Mr Davis had been lifting loads of at least 35 kgs while bearing weight through his ankles of at least 168 000 kgs in the years 1972 to 1982. The Board is reasonably satisfied the clinical onset of the osteoarthritis of both ankles occurred within 25 years following 1982. The Board finds that the applicant satisfies factor 6(m)(i) of the SoP concerning osteoarthritis.
58. For the reasons given above, the Board finds that the factor set out in the Statement of Principles are satisfied by the evidence in this case. The Board is therefore reasonably satisfied that the material before it raises a connection between…Mr Davis’ osteoarthritis affecting both ankles and the relevant service required by the Act.”
The Board determined that the Commonwealth of Australia was liable to pay pension for incapacity arising from the above accepted conditions from and including 14 November 2012 – Exhibit 2 ST2 p. 400.
Further, a number of conditions have not been accepted as defence-caused. Those conditions which do not form part of the decisions under review are as follows:
(a) Cervical spondylosis, rejected 24 June 2011 – Exhibit 1 T9 pp. 45 – 46;
(b) Dysthymic disorder, rejected 24 June 2011 – Exhibit 1 T9 pp. 47 ;
(c) Cervical spondylosis, rejected 4 June 2012 – Exhibit 1 T9 pp. 44 – 45;
(d) Dysthymic disorder, rejected 4 June 2012 – Exhibit 1 T9 pp. 46 ;
(e)Chronic bronchitis and emphysema, rejected 18 October 2013 – Exhibit 1 T9 pp. 48 – 49;
(f) Cervical spondylosis, rejected 26 August 2015 – Exhibit 1 T9 pp. 43 – 44.
In this matter the reviewable decisions are, firstly, those of the Board of 20 October 2016. The Board affirmed a decision of the Respondent that claimed Chronic Obstructive Pulmonary Disease (COPD) and cervical spondylosis were not defence-caused. Further, the Board also affirmed a decision of the Respondent not to increase the veteran’s pension above 100% of the General Rate – Exhibit 1 T54.1 pp. 294 – 302.
During the course of the proceedings the Respondent accepted that the veteran’s COPD is a defence-caused disease – Superseding Statement of Issues, Facts and Contentions of the Respondent (RSSIFC) para 79. Accordingly, the Tribunal has not dealt with the material relating to this condition in the discussion below.
The Respondent’s Closing Submissions (RCS) very helpfully deals with the date of clinical onset of COPD (para 33) and the service connection of COPD (paras 34 – 38).
The Tribunal accepts the analysis of the Respondent and is reasonably satisfied that the evidence presented and the relevant SoP uphold the contention that the veteran’s COPD is, on the balance of probabilities, connected with the defence service he rendered.
The Tribunal accordingly finds that the veteran’s COPD is a defence-caused disease pursuant to s 70 of the Act with effect from 9 February 2015. That part of the reviewable decision of 20 October 2016 relating to COPD is, therefore, set aside.
Secondly, the Board of 21 March 2017 affirmed a decision of the Respondent that osteoarthritis affecting both hips was not defence-caused. Exhibit 1 T59.1 pp. 322 – 327.
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.”
The Tribunal has been provided with contemporaneous RAAF medical records which support the veteran’s recollection of events in the Northern Territory.
The Outpatient Clinical Record of 1 September 1972 discloses that the treating medical officer noted that the veteran was tender over the medial joint line of his left knee following a fall – Exhibit 1 T11 p. 65.
By 6 March 1974 the treating medical officer noted that the veteran had trouble with his left “knee for last 2 years – pain over the medial side of the joint…local tenderness…giving way & clicking, but no locking & no swelling” – Exhibit 1 T11 p. 67. The veteran was again examined by a medical officer on 1 April 1974 who noted that he had returned with “knee trouble. Still has marked tenderness over medial joint line.” It was noted that the veteran had been referred for X-rays and an opinion – Exhibit 1 T11 p. 67.
The veteran was duly X-rayed, and in a letter dated 18 April 1974 the Surgeon who performed the X-ray wrote to Squadron Leader G Thompson as follows – Exhibit 11:
“Gary Davis had his left knee x-rayed and this shows two bony opacities in the lateral compartment of the knee joint. It is not certain but it is likely that these opacities are free within the joint and are the cause of his recurrent swelling. I think they should be removed and I can arrange operation for the 23rd May. His admission letter is enclosed.”
In fact, the operation did not take place. However, in a note of 22 August 1975, Dr Rowe, Orthopaedic Surgeon, made the following observations – Exhibit 11:
“History typical of medial meniscus tear. Was to have been removed Darwin, but postponed by cyclone.
Locking, swelling, used to give way.
For Left Medial meniscectomy.”
The veteran testified that he has never had surgery performed on his left knee as recommended by Dr Rowe – Tr. 1.7.2019 p. 46.
The veteran was still serving in Darwin when Cyclone Tracy struck on 25 December 1974. The following testimony was given about what occurred – Tr. 1.7.2019 pp. 32 - 33:
“Right. Can you tell me what happened during Cyclone Tracy? --- I lived in a caravan. I was at work on Christmas Eve. We were all told probably early to mid-afternoon it was imminent the cyclone was going to strike Darwin and we were all ordered to go home, secure our premises – our homes or our abodes – and I was on duty tech that day as well so that included me. I was on the day shift, and then I was due on day shift the next day, which meant that I went home. I had to report for duty again, but no one knew the extent of what the cyclone was going to do. I still reported the next morning out there, only to find the aftermath was something that you would never want to go through again in your life – but in brief, I went home, secured my property, and then tried to withstand the cyclone, the furious of it, in the caravan until it started all blowing apart, and that’s when my wife and I went over to where we had our car parked beside the Woolworths supermarket, which was adjacent to the caravan park, and then we basically rode the cyclone out here, you know, which wasn’t a nice time, so….
First of all, do you consider that you were ordered to go home and secure your premises? --- Absolutely. The whole base was stood down. We were all out on the parade ground, which wasn’t a normal occurrence…
Okay. During the cyclone what happened to you? --- Well, during the cyclone….all the windows were blowing in and the whole van was rocking and rain was pouring in, we decided to get out of the caravan and go and sit in the car, which was beside the concrete wall of the supermarket…So that’s when we went over and hopped in the car, only to find out forgot the bird and the dog in the adrenaline rush of getting out and going through the wind and the flying debris, and I went back, and that’s when I came back and the wind got hold of me and ran me into a car – a parked car, probably just not far from where we had our car parked….
When you hit the car what happened to you? --- Well, I did get knocked out. It wasn’t for a great – long time. It was probably – may have – might have been a minute, minute-and-a-half or something like that. Then I was dazed, and I was still dazed for a while after it, and then got into the car and that’s where we sat it out.
Did you report to work the next day? --- Absolutely.
And what happened on the way back to work? --- ….I heard people wailing and they called me over, and there was…a deceased person there, and he would covered in blood and excreta, and I threw up. I helped them off the road. He was on the middle of the road, but there was debris anywhere so…I was on a motorbike….I had to clear the road even to where I was getting at to get through, and then I got to the Air Force base only to find that just it had been totally abandoned and it wasn’t long after one to guards did come back…Me and my wife were there for probably two or three days before quite a number of people then did come…me and a few other members of the Air Force , we helped secure the place and then we were involved in the clean up once communications got back into Darwin…”
The veteran, therefore, contends that when he was thrown against the car during the cyclone he hit his neck and injured it – Tr. 1.7.2019 p. 21. In a Claimant Report – Trauma Cervical Spondylosis, which the veteran completed on 2 February 2011, he stated – Exhibit 1 T18 p. 99:
“I have always had neck pain since 1975 after Cyclone ‘Tracy’”.
The following symptoms were reported following the injury – Exhibit 1 T18 p. 100:
“Sore neck for 2-3 weeks and occasional neck pain since”.
The veteran claimed the symptoms commenced once he had regained consciousness and persisted, initially, for two to three weeks. As for medical treatment obtained following the injury, the following information was provided – Exhibit 1 T18 p. 100:
“There was no treatment available in the immediate days after the cyclone. As my neck pain improved daily, I did not seek treatment as medical [people] were attending to more serious patients.”
Immediately after Cyclone Tracy the veteran testified that he was involved in cleaning up activities which, inter alia, required him to lift and carry heavy items. He gave the following testimony – Tr. 1.7.2019 pp. 34 - 35:
“…the Air Force transport planes were coming in with goods and then loading people on to take them out, because they ordered all Air Force – nearly all non-essential people to take Air Force planes and get out of…Darwin because there was no facilities available. Electricity was gone, sewerage, water, homes were destroyed, food was in short supply…
You said that the planes were bringing in tents? --- Yes.
And chairs and FF tables and eskies of ice and whatever else? --- Yes.
You had to help to set all that up? --- Yes, yes.
How did you carry most of – like, the bulky items? --- Well, it’s on your head. You know, there’s some things you carry by your arms or down by the side, but some of the big items that – you just carried on your head. It’s like, you know, there was times when even when I was at the radar unit, where the radar wave guides were that took the signals of the building onto – they had all these big trays on them, and the only way you could carry these long trays was on your head….You just put them on your head and two arms, and it was easier to do than to try and carry them by your side or drag them or do whatever, and they were all quite heavy…
…I’ve carried cable trays on my head, I’ve carried tents on my head, I’ve carried – even in the clean-up where you’re carrying mattresses and things like that, you carried them on your head to get them over the truck, to throw them in the back of the truck.”
It is contended by the veteran that carrying heavy items on his head immediately after Cyclone Tracy exacerbated his neck problems – Tr. 1.7.2019 p. 22.
The veteran was medically examined prior to his discharge from the RAAF on 15 October 1975 by Flight Lieutenant Kitto MD. Dr Kitto noted that the veteran had been booked for surgery on his left knee but his had not eventuated due to his imminent discharge from the RAAF which the veteran “didn’t want to be held up” – Exhibit 1 T11 p. 72.
On 15 January 1976, the veteran was discharged from the RAAF – Exhibit 1 T9 p. 36.
The next report of the veteran suffering an injury is from 7 April 1983 – Exhibit 3 p. 4:
“Whilst erecting antenna at the back of the premises I stumbled and fall was broken by my right hand which hit a thorny bush on the ground.”
The veteran made a workers’ compensation claim for medical expenses for a cut right index finger – Exhibit 3 p. 5.
The veteran also stated that he had a fall in 1989 from the roof his sister’s house in Casino whilst fitting a television antenna – Tr. 1.7.2019 pp 50 - 51. The following account was given during the veteran’s testimony – Tr. 1.7.2019 pp. 36 – 37:
“…I was fitting a TV antenna on roof…you try and get it to the peak of the roof where the highest possible spot is…you put a little bracket on the top of the roof and you mount a little pole, couple of little…wires, and then you put a ladder up…a ten foot ladder…you just climb the ladder and mount the antenna on it, run the cable down…inside the roof, and what happened is….I was getting down off the ladder. My knee gave way…I just collapsed on the roof and started sliding down the roof and over the edge, and fell about six or seven metres, it would have been, two storey house…fell in a heap on the ground, broken ankles, couldn’t walk…
What else did you hurt? --- Well, everything….I couldn’t move…the ambulance was called…I went into…Casino Hospital first, and the doctor in there said he couldn’t do anything for me, it was too complicated…they took the X-rays there and both my ankles were pretty well fractured. Then they organised an ambulance and they put neck braces on me…they took me into Lismore and they called an orthopaedic surgeon out…They gave me a spinal injection just to stop the pain, and he operated that night, and I was in hospital for 10 days after it…
What happened after that? --- After that I went back to my home town of Gladstone and rehabilitated there for quite a few months. Probably after….a month or six weeks, I did go into work on a wheelchair. I lived on a wheelchair for probably three or four months…once the fractures had mended they removed all the pins and everything that were in there and I started the rehabilitation process, and it probably took me another six months before I could sort of start walking on….walking sticks, and then probably before I could go it alone there’s probably another 12 months or more…I did extensive physio for months and months until such time as I could get around on a couple of crutches, and then you’d be able to strengthen your legs again, and probably two years before I could probably walk unaided…”
This account of the roof fall is consistent with a statement that the veteran made dated 29 August 2016. The latter part of the statement is set out below – Exhibit 1 T51.1 p. 286:
“8. I still suffer today with the after effects of that fall. I am more cautious these days but my knee still gives way nearly everyday.
9. This has caused what my Doctor calls ‘Disordered Joint Mechanics’, which affects my back, hips and knees.
10. This would have been the trauma to my neck, back, hips and knees and results in Osteoarthritis of my neck, back, hips and knees, by 2011, well prior to the twenty year requirement, of the Statement of Principle for Osteoarthritis of my neck, back, hips and knees.”
Mr Brian O’Neill, the veteran’s RSL Advocate, in an email of 4 September 2016 made the following submissions – Exhibit 1 T51 p. 285:
“Attached is a statement and letter from his treating Doctor that his hips were caused by ‘Disordered Joint Mechanics’ as well as trauma, in January 1989, when his left knee gave way and he fell of (sic) a roof.
So both trauma and ‘Disordered Joint Mechanics’ have caused his Osteoarthritis of the hips. It has also caused Cervical Spondylosis and worsened his Lumbar Spondylosis and Osteoarthritis of his Knees and Ankles.”
The medical report referred to by Mr O’Neill is a short report by Dr Les Diefenbach of 2 September 2016 which is set out in full below – Exhibit 1 T51.2 p. 287:
“This is to certify that I concur with the diagnosis of disordered joint mechanics as being in play in the genesis of arthritis of the hips in Gary’s case.
Plainly, with the accepted disabilities of arthritis in the knees, ankles and lower back, this would profoundly alter the joint mechanics of his gait, ad predispose him to arthritis of the hip joints. This causes him to walk with a limp, throwing unusual stresses on joints that should otherwise be working within normal parameters.”
The veteran testified that Dr Diefenbach, a General Practitioner from Gladstone, treated him immediately after he returned to Gladstone from Lismore Hospital, and had been his GP for a number of decades – Tr. 1.7.2019 pp. 78 – 79. Dr Diefenbach gave evidence on 18 February 2020 and testified that he had been treating the veteran since the late 1980s and he recalled seeing him after his fall from the roof – Tr. 18.2.2020 p. 8.
A further workers’ compensation claim was made by the veteran for an accident that occurred on 5 October 2010 at Foxleigh Mine, Middlemount. The veteran was employed as Project Manager by Nixon Controls Pty Ltd – Exhibit 3 p. 19. Dr Adebiyi examined the veteran on 12 October 2010 and noted that he had fallen from a water truck and had suffered groin and lower back injuries – Exhibit 3 p. 21. A report of 28 October 2010 provides the following information – Exhibit 3 p. 15:
“-58yo Project Manager
exiting the LHS of truck, slipped and fell to the ground
lower back/pelvic injury
initially taken to Gladstone Hospital then transferred to Rocky Hospital 18/10
has someone caring for him, meals, shopping etc…
medication: brufen, panadeine forte and diazapan”
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 Campbell
Report 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.
Reference is also made to the onset of pain in the veteran’s right knee in 1981. Dr Khursandi made the following observations – Exhibit 1 T21 p. 106:
“In 1981, Mr Davis developed pain in the right knee of gradual onset with periodic locking. There was no trauma or incident which preceded the onset of pain. He self-treated the right knee with strapping, liniment rub, application of heat and ice.”
With respect to the veteran’s back pain, Dr Khursandi made these observations – Exhibit 1 T21 p. 106:
“Early in the 1980s, Mr Davis developed backache of gradual onset, often precipitated by lifting. The episodes of backache became more frequent over the subsequent years which he self-treated with liniment rub, paracetamol and application of heat.”
Under the heading “Past Medical History”, Dr Khursandi noted – Exhibit 1 T21 p. 107:
“Mr Davis denies having any right knee symptoms prior to 1974/1975, left knee symptoms prior to 1981 and neck symptoms prior to the fall in December 1974.”
Dr Khursandi physically examined the veteran and made these observations – Exhibit 1 T21 p. 108:
“…He walked with a normal gait and was able to stand on his heels and toes…
He negotiated 17 steps of a flight of stairs and used the support of side rails.”
The veteran’s head and neck were examined, and Dr Khursandi opined – Exhibit 1 T21 p. 108:
“In the examination of the cervical segment of the spine, he had no deformity. Full range of flexion and extension was noted. There was slight limitation of lateral flexions and rotations. Tenderness was present in the soft tissues of the dorsum of the neck between C6 and C7 spinous processes with no spasm of the paraspinal muscles.”
The following observations were made by Dr Khursandi about the veteran’s lower limbs – Exhibit 1 T21 p. 108:
“In the examination of his lower extremities, straight leg raising were up to 80o bilaterally. There was no muscle wasting.
Examination of both knees showed no deformity and full range of flexion and extension bilaterally. Tenderness was present along the medial borders of both patellae and the medical (sic) joint lines. There was no ligamentous laxity in either knee and no effusion.
Full range of movements were elicited in the joints of the hips, ankles and feet.”
Dr Khursandi concluded his report with the following assessment – Exhibit 1 T21 p. 109:
“From my assessment of Mr Davis on 31 March 2011, I am of the view that he has developed chronic backache due to spondylosis involving the facet joints at L4/5 and L5/S1 levels with associated partial loss of movement of the lumbrosacral spine and no radiculopathy. He treats the back pain with liniment rub, paracetamol and application of heat.
Following an injury of the neck sustained during cyclone Tracy in December 1974 in Darwin, Mr Davis has developed intermittent episodes of neck pain which have become chronic. X-rays performed on 31 March 2011, revealed degeneration of the C5/6 disc and osteoarthrosis of the adjacent facet joints, which would account for his neck pain. Clinical examination revealed slight partial loss of movement of the cervical spine with no associated radiculopathy in his upper extremities.
Mr Davis has developed pain and mechanical symptoms of both knees since 1975/1975 in the left knee and since 1981 in the right knee. The left knee was preceded by an injury when he slipped on an oily floor at a power station and there was no incident or trauma prior to the onset of his right knee symptoms. Current X-rays revealed osteoarthritic changes involving the medial and patellofemoral compartments of both joints with presence of loose bodies in the left knee. He treats both knees with liniment rub, paracetamol and application of local heat.”
Further, Dr Khursandi prepared three diagnostic reports in which he answered specific questions posed by the Respondent.
In the cervical spondylosis diagnostic report, Dr Khursandi noted that the veteran had been experiencing neck pain since the Cyclone Tracy incident but in response to the Question of whether the veteran had any predisposing factors for the development of this condition he opined – Exhibit 1 T21 p. 114:
“Constitutional factors consistent with age. Radiologically, there is no evidence of any trauma.”
Dr Khursandi, in the diagnostic report dealing with osteoarthrosis affecting both knees, gave the following response to the predisposition Question – Exhibit 1 T21 p. 116:
“Most likely constitutional, notwithstanding the fall of 1974/1975, which injured the right knee.”
Dr Gregory Bookless
Report 26 May 2015
Dr Bookless, Orthopaedic Surgeon, examined the veteran on 13 May 2015 and prepared a detailed report dated 26 May 2015 – Exhibit 1 T37 pp. 211 – 234.
Dr Bookless also dealt with the veteran’s employment history and medical history. Unlike Dr Khursandi, however, he specifically dealt with the claimed conditions of both ankles – Exhibit 1 T37 p. 213:
“He stated that he fell from a roof in 1978 and landed heavily on his feet. He was troubled with fractures involving both calcanea. He was treated with cast immobilisation, non-weight bearing over a three-month period. He was off work for two months and resumed work in a wheelchair. Now he stated that both heels seem relatively stiff and there is a variable degree of pain. He is unable to run. He can walk for a 100 metres at which point his walking is limited by his back discomfort rather than heel pain.”
The veteran underwent a full physical examination, and Dr Bookless made these observations – Exhibit 1 T37 pp. 213 – 214:
“PHYSICAL EXAMINATION
On examination, he was observed walking over a 60 metre distance with a normal gait carrying a walking stick. On using the stairs, he had the help of rails. He was able to toe (sic) walk but could not walk on his heels due to pain…
Head/Neck
On examination of the cervical spine there was no evidence of muscle spasm. There was a mild restriction of movement in a symmetrical fashion…
Back/Spine
…3. Right and Left Knees:
On examining his knees there was no joint effusion and both joints moved from 0o to 135o. There was no focal tenderness. All ligaments were intact. The popliteal fossae were clear and hip movements full.
4. Right and Left Ankle
There was virtually no subtalar movement in the right or left feet. There was no dorsiflexion. Plantar flexion was 0o to 30o.”
Dr Bookless opined that the date of onset for the observed conditions were as follows – Exhibit 1 T37 pp. 215, 219, 222:
(a) cervical spine – 31 March 2011, 20 April 2011;
(b) lumbar spine – March 2011;
(c) right and left knees – March 2011;
(d) right and left ankles, bilateral fractured calcanea resulting from roof fall – 1989.
In response to a Question on the severity of the conditions, Dr Bookless provided the following response – Exhibit 1 T37 p. 215:
“1.Cervical spine – mild condition with essentially normal range of movement and minimal pain. There is no functional loss.
2.Lumbar spine – mild loss of motion of the lumbar spine with his lumbar spine condition causing most of his pain and restricting his overall movement. There was no functional loss however.
3.Right and left knees – essentially full range of movement with minimal symptoms and no functional loss.
4.Right and left ankle – there is virtually no subtalar joint movement on either side. There is restriction in ankle joint movement.”
Dr Bookless opined that the veteran’s lifestyle was mildly affected as a result of the above conditions and that his back condition limited his overall mobility as did his heels – Exhibit 1 T37 p. 216.
Supplementary Report 6 December 2018
The Respondent sought a supplementary report from Dr Bookless and provided him with a schedule of questions – Exhibit 16.
Dr Bookless was asked to assume that the veteran did not fall off a generator in 1975 and in such circumstances whether it would change his opinion about the cause of the veteran’s osteoarthritis of the left knee – Exhibit 16 p. 2:
“Assuming that Mr Davis did not fall off the generator in 1995 (sic), this would change my opinion as to cause of his osteoarthritis. This alternative opinion is that the arthritis in the knee was caused by constitutional factors. It is noted that the X-rays taken on 31 March 2011 showed evidence of osteoarthritis in the medial compartment of both knees that was similar in nature. This would suggest that the degeneration was constitutional in nature. If there had been particular trauma to one joint which caused osteoarthritis, you would expect that joint to be quite different on X-rays from the other joint.”
Further, Dr Bookless opined that the veteran’s presentation when he was examined in 2015 was not consistent with a person who had suffered degenerative changes to their left knee since 1989 – Exhibit 16 p.2:
“If there had been degenerative changes taking place at that point, one would have expected them to quite severe 26 years later and on X-ray to be very different from the right knee.”
Dr Bookless opined that the veteran has osteoarthritis of the hips, and X-rays performed on 9 February 2016 confirm degenerative changes in both hips, with the left hip worse than the right hip – Exhibit 16 p. 3. The clinical onset was said to be 9 February 2016 when the condition was first detected by X-ray – Exhibit 16 p. 3.
Dr Bookless again opined that the veteran suffered from cervical spondylosis with X-rays of the cervical spine performed on 31 March 2011 confirming degenerative changes at the C5/6 level – Exhibit 16 p. 5.
Finally, Dr Bookless opined that the veteran did not have a fracture of the left rib as defined in the relevant SoP for the following reason – Exhibit 16 p. 6:
“The nuclear bone scan of 10 January 2003 is not a study that can be used to diagnose a fracture.”
Supplementary Report 20 January 2020
The Respondent sought a further report from Dr Bookless which was provided on 20 January 2020.
Clarification was sought as to why a nuclear body scan could not diagnose osteoarthritis, and Dr Bookless provided the following answer – Exhibit 13 p. 2:
“…A nuclear bone scan when positive is a reflection of increased blood supply to an area. As such, it can be positive with rheumatological conditions affecting joints, infection involving joints and bone, trauma to joints and bone and it can be positive with osteoarthritis. At the same time it is also possible to have osteoarthritis of a joint with a bone scan being negative. For these reasons a nuclear bone scan does not diagnose osteoarthritis.”
Several questions were posed to Dr Bookless regarding two bony opacities disclosed by a scan of the veteran’s left knee. Dr Bookless referred to an outpatient consultation record of 22 August 1975 where no mention was made of loose bodies within the joint, and he opined that this raised a question about the presence and aetiology of the loose bodies. A further question to Dr Bookless was the relationship, if any, between the two bony opacities and osteoarthritis in the leg knee of the veteran. The following answer was given – Exhibit 13 p 2:
“If there had have been loose bodies within the joint, one would have expected the end result of such a situation to result in significant degenerative changes leading to severe arthritis. It is noted from my previous supplementary report that X-rays taken some 26 years later of the right and left knees were very similar, suggesting that it was unlikely that loose bodies were present.”
When asked if the veteran was suffering from osteoarthritis of the left knee at the time of the 1989 roof fall, Dr Bookless gave a quasi-legal response – Exhibit 13 p. 3:
“Mr Davis did not have osteoarthritis of the left knee at the time of his 1989 roof fall, as I was unable to diagnose the condition until March of 2011.”
Dr Bookless was asked if the 1989 roof fall, as described by the veteran, caused the application of significant physical force to or through the hip, shoulder and elbow joints. The answer given was as follows – Exhibit 13 p. 3:
“Mr Davis’ fall from the roof resulted in severe crush fractures involving right and left calcaneum. As such, the initial severity of a direct fall onto the feet was absorbed by the crushing of these bones. Although there may have been other forces affecting the remainder of his body, there is no indication that the severity of these physical forces was significant to produce significant injuries to these regions. In particular there was no mention in related clinical material of injuries affecting the hips, shoulders or wrists.”
Following from this, Dr Bookless opined – Exhibit 13 pp. 3 – 4:
(a)there would not have been a significant G force affecting the veteran’s cervical spine;
(b)there was no indication of significant injury or clinical damage affecting the veteran’s hips, shoulders, elbow joints or cervical spine; and
(c) there was no record of altered mobility to the veteran’s hip, shoulder or elbow joints.
Dr Phillip Vecchio
Dr Vecchio, Rheumatologist, examined and assessed the veteran, who was referred to him by Dr Diefenbach.
In his report of 14 November 2017, Dr Vecchio first dealt with the impact of the 1975 accident when the veteran slipped on an oily floor and injured his left knee. Dr Vecchio made the following observations – Exhibit 1 T66.1 p. 355:
“This impact would have initiated the subsequently diagnosed degenerative changes in that knee. He was designated to undergo surgery but he put up with the pain and decided not to proceed prior (and since) to his discharge in 1976. The left knee has been symptomatic since that time with intermittent give-way.”
Dr Vecchio expressed a different view to Dr Bookless about the medical consequences of the 1989 roof fall – Exhibit 1 T66.1 p. 355:
“2. In fact, the resultant left knee dysfunction and ongoing leg weakness was instrumental in being the sentinel contributing factor when he fell off a roof in 1989, landing 8 metres onto both feet, and then falling over. If the force was sufficient to fracture both calcanei, it would have been sufficient to micro-traumatise both hips and lower back, initiating irreversible changes that would contribute to future hip osteoarthritis, which was subsequently proven radiologically.”
Further, Dr Vecchio also differed from Dr Bookless about the efficacy of bone scans in discerning osteoarthritis – Exhibit 1 T66.1 p. 355:
“3. In my opinion, the January 2003 bone scan clearly indicates uptake in the late phase, strongly suggesting osteoarthritis of the hips, elbows and shoulders. I disagree with the erroneous statement that bone scans cannot indicate osteodegeneration. For such significant uptake to be present at this time easily suggests that the earlier phases of the degenerative process was present years prior, as osteoarthritis is the end stage of it. Therefore clinical onset was years before.”
Finally, Dr Vecchio diagnosed the veteran as suffering from bilateral degenerative arthropathy of his shoulders and elbows – Exhibit 1 T66.1 p. 355:
“Having a long experience of examining similar members, his RAAF employment, particularly as a telecommunications technician requiring lifting hundreds of thousands of kilograms over his 6 years of service would have contributed to those osteo-degenerative changes. Elbow arthritis is strongly correlated with loading that does not routinely occur in the civilian community. The Statement of Principles indicate that forceful and/or repetitive load bearing activities prior to the clinical onset of osteoarthritis is aetiologically important and I would submit that the bone scan of 2003 proved osteoarthritis that, on the balance of probabilities, would have initiated years, if not a decade or more, prior.”
Conclusion
Dr Vecchio gave oral testimony on 20 October 2020 and Dr Bookless gave testimony on 26 October 2020. The testimony given by both doctors, as well as that provided by Dr Diefenbach, will be considered below.
THE LAW
Where a member of the Defence Forces is incapacitated from a defence-caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran in accordance with the provisions of the Act – s 70(1).
“Disease” is defined by s 5D(1) to mean, inter alia, any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
“Injury” is defined by s 5D(1) to mean any physical or mental injury (including the recurrence of a physical or mental injury) but does not include a disease or the aggravation of a physical or mental injury.
Subsection 70(5) of the Act provides, inter alia, that an injury suffered or a disease contracted will be taken to be defence-caused if:
(a)the injury or disease arose out of, or was attributable to, any defence service of the veteran – s 70(5)(a);
(b)subject to s 70(8), the injury or disease resulted, inter alia, from an accident that occurred while the veteran was travelling, during any defence service, on a journey to a place for the purpose of performing duty or away from a place upon having ceased to perform duty – s 70(5)(b);
(c)the injury or disease is deemed by s 70(7) to be a defence-caused injury or disease – s 70(5)(c);
(d) the injury or disease from which the veteran was incapacitated:
(i)was contracted during any defence service, but did not arise out of that service; or
(ii)was contracted before the commencement of the period, or last period, of defence service, but not during such period of service;
and, in the opinion of the Respondent, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service of the veteran, being service rendered after the veteran suffered that injury or contracted the disease – s 70(5)(d).
It will be noted that s 70(5)(a) requires the Tribunal to determine if the injury or disease arose out of or was attributable to any defence service. There are numerous judicial pronouncements on the width of this test which impose on an applicant veteran a less demanding task. This was explained by McHugh, Gummow, Callinan and Heydon JJ in Roncevich v Repatriation Commission (2005) 222 CLR 115 (Roncevich) as follows (126/[27]):
“27. The use disjunctively in s70(5) of the expressions ‘arose out of’ and ‘attributable’ manifest a legislative intention to give ‘defence-caused’ a broad meaning, and certainly one not necessarily to be circumscribed by considerations such as whether the relevant act of the appellant was one that he was obliged to do as a soldier. A causal link alone or a causal connexion is capable of satisfying the test of attributability without any qualifications conveyed by such terms as sole, dominant, direct or proximate.”
The Full Federal Court in Gilkinson v Repatriation Commission (2011) 197 FCR 102 (Gilkinson) held that “defence-caused” is to be given a broad meaning. Perram, Nicholas and Robertson JJ said (110/[36] – [38]):
“36. Fifth, the learned primary judge’s conclusion rests on the proposition that s196(14)(b) requires the appellant’s operational service to be the dominant or effective cause of the factor causing or contributing to the appellant’s disease.
37. In our view this construction is inconsistent with Roncevich at [27] where the plurality in the High Court said that the use disjunctively in s 70(5) of the expressions ‘arose out of’ and ‘was attributable to’ manifested a legislative intention to give ‘defence-caused’ a broad meaning…
38. Her Honour’s construction is also, in our view, inconsistent with Law where the Full Court at 150-151 considered the expressions ‘has arisen out of’ and ‘is attributable to his war service’ then to be found in s 101(1)(b) of the Repatriation Act 1920 (Cth). As to the former of these expressions, ‘has arisen out of’, the Full Court said those words required a consequential relationship and that it was not useful to attempt to put a gloss upon the words of the Act by saying that the causal relationship must be ‘immediate’, ‘direct’ or ‘proximate’ or by saying it connotes a ‘real’, ‘sole’ or ‘dominant’ cause. Their Honours said that the expression ‘arisen out of’ was different to ‘caused by’ or ‘results from’ and was satisfied if some less proximate causal relationship was established rather than a relationship which was fanciful or so tenuous as to preclude its consideration as answering the description ‘arising out of’. As to the expression ‘is attributed to’ their Honours said the cause need not be the sole or dominant cause and that it was sufficient to show ‘attributability ‘if the cause is one of a number of causes provided it is a contributory cause.”
Nonetheless, there must be a causal connection with defence service, rather than simply a temporal connection: Repatriation Commission v Tuite (1993) 39 FCR 540. Davies J made the following observations (541 – 542):
“…if an injury or disease is claimed to have arisen out of or be attributable to a serviceman’s period of camp life, the question will usually be whether life in camp was a contributing cause and not merely the setting in which the event occurred. Denning J has said that the service ‘must be a cause as distinct from being part of the circumstances in or on which the cause operates. See Marshall v Minister for Pensions [1948] KB 106 at 110…
If the circumstances of eligible war service provide an operative cause contributing to the serviceman’s injury or disease, it matters not that the relevant circumstances, such as peer pressure to smoke, could be found elsewhere than in camp life. The question in each case, and it is a question of fact for the administrative decision-maker, is whether the eligible war service contributed causally to the injury or disease.”
Also of particular relevance in this matter is s 70(7), which provides for a “but for” deeming test. This subsection expands the scope of liability for the Respondent in particular circumstances and constitutes a wider test of causation. Subsection 70(7) is discussed in greater length below.
The standard of proof relevant to this matter is “reasonable satisfaction” – s 120(4). However, reasonable satisfaction is to be assessed by reference to the SoP regime – s 120B. Subsection 120B(3) provides:
“(3) In applying subsection120(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
(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”.
It is not contested that there are three applicable SoPs:
(a) SoP No 62 of 2017 – osteoarthritis;
(b) SoP No 67 of 2014 – cervical spondylosis; and
(c) SoP No 95 of 2015 – fracture.
HEARING
This matter was heard by the Tribunal over four days – 1 July 2019, 18 February 2020, 20 October 2020 and 26 October 2020. The Hearings of 1 July 2019 and 18 February 2020 were heard in person in Brisbane. The Hearings of 20 and 26 October 2020 were heard remotely by Microsoft Teams due to the social distancing requirements brought about by the COVID-19 pandemic.
On 26 April 2019 the Repatriation Medical Authority (RMA) issued two Notices of Investigation pursuant to s 196G of the Act concerning, inter alia, SoP 62 of 2017 and SoP 67 of 2014.
Subsection 120B(2) provides that when the RMA has given notice under s 196G, the Respondent (and, on review, the Tribunal) is not to determine a claim until the RMA has finalised its investigations and, inter alia, determined a SoP. In short, having issued the Notices of Investigation into two SoPs that form part of the veteran’s case, the Tribunal was unable to proceed and make a determination until the RMA had concluded its investigations.
Further, the onset of the COVID-19 pandemic resulted in further delays and it was not until the later part of 2020 that arrangements could sensibly be made to convene further Hearings and receive evidence from the medical experts.
The combination of the above circumstances resulted in this matter taking a lengthy time to be heard with consequent inconvenience for all concerned.
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.
CONSIDERATION
Introduction
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.”
The term “trauma to the cervical spine” is defined in Cl. 9 to mean:
“a discrete event involving the application of significant physical force, including G force, to the cervical spine 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 cervical spine. In the case of sustained unconsciousness or the masking of pain by analgesic medication, these symptoms and signs must appear on return to consciousness or the withdrawal of analgesic medication. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention has occurred and that medical intervention involves either:
(a) immobilisation of the cervical spine by splinting, or similar external agent;
(b) injection of corticosteroids or local anaesthetics into the cervical spine; or
(c) surgery to the cervical spine.”
The other Factor of potential relevance (Cl 6(h)) provides:
“carrying loads of at least 25 kilograms on the head while upright to a cumulative total of at least 120,000 kilograms within any ten year period before the clinical onset of cervical spondylosis, and where the clinical onset of cervical spondylosis occurs within the 25 years following that period.”
SoP 95 of 2015
“Fracture” is defined by Cl. 7(2) of SoP 95 of 2015 as follows:
“(2) For the purposes of this Statement of Principles, fracture:
(a) means an acquired break or rupture of bone; and
(b) excludes spondylolysis.”
Clinical Onset
Legal Principles
The Respondent properly submits (RSSIFC para 56) that the Tribunal must determine the clinical onset of a claimed condition to its reasonable satisfaction.
The term “clinical onset” is not defined in the operable SoPs in this matter , but has been the subject of extensive Federal Court jurisprudence: Repatriation Commission v Cornelius [2002] FCA 750 at [26], Lees v Repatriation Commission (2002) 125 FCR 331 at 335 – 336. It is not disputed that clinical onset of a disease occurs either:
(a)when the veteran becomes aware of some feature of symptom which enables a doctor to say the disease is present at that time; or
(b)when a finding is made on investigation which is indicative to a doctor of the disease being present.
In Kaluza v Repatriation Commission [2010] FCA 1244, Jacobson J made the following observation on “clinical onset” (at [93]):
“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.”
On appeal, the Full Federal Court referred to this passage with apparent approval – Kaluza v Repatriation Commission [2011] FCAFC 97 at [51].
In short, the determination of the date of clinical onset is a factual question supported or underpinned by medical evidence – Youngnickel v Repatriation Commission [2004] FCA 1691 at [16].
Respondent’s submissions
The Respondent submitted that the clinical onset of – RSSIFC para 59:
(a)osteoarthritis of the hips was 9 February 2016 when an X-ray of the veteran’s hips was undertaken; and
(b)osteoarthritis of the elbows and shoulders was 8 May 2017 when an X-ray of the veteran’s elbows and shoulders was undertaken.
The X-ray of the veteran’s elbows and shoulders produced the following findings – Exhibit 1 T60.1 pp. 330- 331:
“X-RAY BOTH SHOULDERS
…Findings:
Degenerative changes are seen in both shoulders with osteophytic spurring at the articular margins of the humeral head and glenoid, more on the right side.
Minor degenerative changes and osteophytic spurrings are seen in the acromioclavicular joint margin.
Otherwise the bones of both shoulders appear normal and there is no fracture or dislocation seen.
The joint spaces appear to be maintained.
Soft tissues are unremarkable.
X-RAY BOTH ELBOWS
Degenerative osteophytic spurrings are seen at the joint margins on both sides.
Bony spurs are seen at the insertion of triceps tendon, larger one on the right side.
Otherwise the bones of both elbows are normal and there is no fracture or dislocation seen.
The joint spaces appear to be maintained.
Soft tissues are unremarkable.”
The Respondent submitted (RSSIFC para 60) that the whole body scan on 10 January 2003 was not an investigation which can indicate the presence of osteoarthritis because:
(a)the whole body scan does not provide radiological, other imaging or arthroscopic evidence of loss of articular cartilage or osteophytes as required by Cl 7(2)(b) of SoP 62 of 2017;
(b) Dr Bookless opined that a whole body scan cannot of itself diagnose osteoarthritis.
Reliance is also placed on the opinion of the Department of Veteran’s Affairs Claim Assessor who, in an email of 7 June 2017, made these comments – Exhibit 1 T62 p. 335:
“1. Bone scan is not an appropriate modality to diagnose osteoarthritis, as such, the date of onset [has] not been taken from this.”
The Respondent contends (RSSIFC para 61) that the clinical onset of the veteran’s cervical spondylosis was 31 March 2011 when an X-ray on his spine was undertaken.
A report from Central Queensland Medical Imaging confirms that an X-ray was performed on, inter alia, the veteran’s cervical spine, with the following analysis being given – Exhibit 1 T19 p. 101:
“There is flattening of the cervical lordosis. Vertebral height and alignment appear normal. Neural foraminal views are unremarkable. Craniovertebral junction appears normal. There is mild reduction of the C5/6 and C6/7 disc heights.”
The Respondent submits (RSSIFC para 62) that there is no clinical onset of a fractured left rib as the veteran does not have the disease as defined in SoP 95 of 2015.
Consideration
A key difference between the contentions of the veteran and the Respondent is the weight that can be placed on the whole body scan undertaken on 10 January 2003.
There is said to be a significant disagreement between the opinions of Dr Campbell and Dr Vecchio on the one hand and Dr Bookless on the other.
The Respondent submits (RSSIFC para63) that the Tribunal should prefer the opinion of Dr Bookless because:
(a) he has greater experience and expertise in diagnosing arthritis;
(b)he had the benefit of reviewing all the relevant material, including Tribunal documents and summonsed records; and
(c) he is independent.
First, the Tribunal is not satisfied that Dr Bookless has greater experience in diagnosing arthritis than Dr Vecchio. Indeed, as a Rheumatologist, prima facie, Dr Vecchio would be diagnosing and dealing with arthritic conditions on a daily basis. The Tribunal accepts that both doctors have extensive experience in dealing with arthritic conditions, and it is sensible to proceed on the assumption that both gentlemen are qualified to express a considered opinion in this area.
Second, the Tribunal does not agree that Doctors Campbell and Vecchio are any less independent than Dr Bookless. Whilst the Tribunal did not have the benefit of receiving oral testimony from Dr Campbell, there is no reason to doubt her professionalism and independence. In short, the Tribunal has proceeded on the assumption that it has received independent and considered medical evidence from professionals who brought to this matter their objective and expert assessments of the veteran.
Third, it is important to carefully analyse what exactly Dr Bookless said about the efficacy of bone scans and the diagnosis of osteoarthritis.
In his report of 20 January 2020 (Exhibit 13 at p. 2), Dr Bookless opined that a nuclear bone scan when positive reflected increased blood supply to an area, which can be positive with rheumatological conditions affecting joints and bone, including osteoarthritis. Conversely, a negative result cannot exclude the presence of osteoarthritis. On this basis Dr Bookless opined that a nuclear bone scan does not diagnosis osteoarthritis.
Again, when testifying on 26 October 2020, Dr Bookless stated that an increased blood supply was related to a spectrum of rheumatological conditions, including osteoarthritis, but, of course, not limited to that arthritic condition. Dr Bookless went on to opine that such a scan does not conclusively diagnose osteoarthritis, but helps as a means of “confirming your clinical diagnosis” – Tr. 26.10.2020 p. 49.
The testimony of Dr Vecchio was not at odds with the views expressed by Dr Bookless. Of relevance is the following exchange between Ms Cooper and Dr Vecchio – Tr. 20.10.2020 pp. 24 – 25:
“You don’t look at a scan on its own in a vacuum. Let’s assume that. And you’re not able to diagnose osteoarthritis from that bone scan. You rely on other information too? --- Well, yes, but if I was to say the most likely diagnosis is osteoarthritis in the regions of uptake. I think anybody would say that.
If you had other information as well?---Well, that reinforces the original opinion but I would be prepared to say that that scan demonstrates osteoarthritis in the manner that it’s reported, the uptake regions and what I understand scans to represent….
A person with osteoarthritis could have a negative result on a bone scan, couldn’t they? --- There are false negatives and false positives in medicine all the time.
But it would have to be a false---? ---So is it possible to have a negative? ---Yes, it is, but it’s difficult to have a false positive.
So the report itself. T12 it doesn’t refer to any increased uptake in the cervical spine. You would – that means MR Davis doesn’t have cervical spondylosis at that time doesn’t it? --- Well, I’m not sure that it excludes it but cervical spondylosis is a common symptom in the community. Everybody gets it over the age of 35, it’s a matter of degree and contribution. I certainly wouldn’t use a bone scan to exclude whether someone has it nor not. As you said, you can have a false negative in bone scanning and that may be the reason. I’m unable to comment any further on that one.
But you wouldn’t be confident with osteoarthritis? --- I’m confident that a bone scan that’s purported to have hip, knee, ankle uptake is pretty much consistent with degenerative change in the late phase of the scan.
So the Dr Campbell report, I don’t know if you have seen that but for everyone’s reference that’s exhibit 12. It refers to active arthritis and a bone scan being able to show active arthritis. But that’s not necessarily osteoarthritis, is it? --- Bone scans are not great at assessing the differential between active or osteoarthritis but osteoarthritis is still able to be active if the joint is sore or uncomfortable. So it’s a semantic argument but osteoarthritis is degenerative but it can be inflammatory as well. It doesn’t need to be an end stage worn out joint. So a bone scan is not the best investigation to distinguish al these possibilities.
That’s right. And osteoarthritis – yes, and what you’re saying that there is osteoarthritis is relevantly different a different condition, than inflammatory arthritis which – is that right? --- Yes but I know he didn’t – he doesn’t have inflammatory arthritis, certainly not when I saw him.
You’ve got a lot of other information available to you now though? --- Yes, but my conclusion is still the same that he has osteoarthritis.”
It will be seen that Dr Vecchio, like Dr Bookless, was not of the view that a bone scan could conclusively and exclusively act as a diagnostic tool for the ascertainment of whether a person was suffering from osteoarthritis. What Dr Vecchio testified, is that a bone scan is a useful aid in diagnosing whether a person has osteoarthritis in an area of uptake. In short, a bone scan followed by clinical judgment, on a balance of probabilities, would provide a proper basis for a diagnosis of osteoarthritis by a properly trained clinician.
Likewise, Dr Campbell did not state that a bone scan could conclusively diagnose osteoarthritis as distinct from other forms of active arthritis. However, she did opine that a bone scan was very sensitive for active arthropathy. In Dr Campbell’s clinical judgment, based on her extensive experience of radiology, the bone scan supported a diagnosis of active arthritis in the affected joints – Exhibit 12.
Dr Vecchio made the following observations in his report of 14 November 2017 – Exhibit 1 T66.1 p. 355:
“I disagree with the erroneous statement that bone scans cannot indicate osteodegeneration. For such significant uptake to be present at this time easily suggests that the earlier phases of the degenerative process was present years prior, as osteoarthritis is the end stage of it. Therefore, clinical onset was years before.”
It is tolerably clear, then, that Dr Vecchio was satisfied that the bone scan strongly suggested that in 2003 the veteran was suffering from osteoarthritis of the hips, elbows and shoulders, and that clinical onset was likely to have occurred prior to that date.
The Tribunal, then, has not been presented with medical evidence which is at odds. Rather, based on the reports and testimony of Dr Vecchio, the bone scan together with his clinical judgment, supported the proposition that, on the balance, the veteran was suffering from osteoarthritis of the affected areas at the time of the bone scan in 2003.
The Tribunal, therefore, proceeds on the basis that the clinical onset of the veteran’s osteoarthrosis of the hips, elbows and shoulders was 10 January 2003, the date of the whole body bone scan.
As different considerations arise with respect to the fracture of the veteran’s left rib, the question of clinical onset is discussed below.
Fracture left rib
There is a relative dearth of evidence with respect to the veteran’s left rib fracture.
The veteran’s treating GP, Dr Diefenbach, prepared a “Diagnostic Report – Fracture Left Rib” which is dated 8 May 2017 – Exhibit 1 T58 pp. 319 – 320.
Dr Diefenbach made the following observations – Exhibit 1 T58 p. 319:
“Has fallen many times…unstable L knee – not sure which time fractured # rib”
When giving evidence, Dr Diefenbach gave the following testimony – Tr. 18.2.2020 p. 17:
“…the left rib healing fracture. Now, I know nothing about how that occurred or whether it occurred, or what…”
The Board in its decision of 23 April 2018 noted – Exhibit 1 T69.1 p. 377/ [46]:
“The Board takes into account the opinion of the Contracted Medical Adviser (CMA) (f.63) that there is insufficient evidence to make a diagnosis of a left rib fracture, and noting that it ‘appeared’ to be a fracture and was considered to be ‘healing’.”
When cross-examined by Ms Cooper, Dr Vecchio testified that he had not discussed with the veteran his rib fracture, and, consequently, did not address the matter in his 14 November 2017 report – Tr. 20.10.2020 p. 18:
“Just to cover a few things at the outset, has the applicant, Mr Davis, has he ever spoken to you about a left rib fracture? --- Well, our discussion really was about the degenerative osteoarthritis in the body so, - and this was three years ago. I don’t recall specifically a rib fracture discussion.”
The Tribunal accepts, on the balance, based on the whole body scan:
(a)the veteran fractured his left rib; and
(b)the clinical onset of the fractured left rib was 10 January 2003, being the date of the whole body scan.
However, the evidence presented is insufficient for the Tribunal to make any sensible findings as to when the fracture actually occurred or what caused the fracture.
In short, the evidence presented does not allow the Tribunal to sensibly determine what Factor or Factors in Cl 9 of SoP 95 of 2015 apply, let alone engage in an exercise to determine whether the evidence is sufficient to determine a relationship to the veteran’s defence service (Cl. 10).
The Tribunal is aware of the beneficial nature of the Act and also of the lower evidentiary threshold before findings of fact can be made. The Act was carefully drafted to ensure that the passage of time and the loss of documentary material would not pose insuperable barriers for a veteran in being able to justly prosecute his or her case. In these circumstances both the Tribunal and the Federal Court have adopted a common-sense and liberal approach to evidentiary matters in order that justice according to law can be appropriately applied.
However, no matter how liberal an approach that has been adopted, the Tribunal and the Federal Court have consistently required that a veteran advance a case which would allow sensible findings of fact. It is not sufficient simply to point to an injury or disease and, having satisfied the decision-maker of its existence, then contend that it is service-related without evidence of when the injury occurred or the disease was contracted and without linking that injury or disease to the conditions of that veteran’s military service.
In this matter the veteran points to a rib fracture without producing evidence of when it occurred or how it was related to his defence service. The veteran’s own treating GP of many decades, Dr Diefenbach, could not say when the rib was fractured. He pointed out that the veteran has fallen many times. Certainly he specifically referred to the veteran’s roof fall in 1989, but he did not go further and opine that this was definitely the incident that resulted in the fracture of the rib.
The Tribunal, therefore, finds that the evidence does not raise a connection between the veteran’s defence service and the fracture of his left rib, and affirms that part of the Board’s reviewable decision of 23 April 2018.
Cervical spondylosis
There is a degree of confusion with the veteran’s submissions about the timing and cause of the claimed cervical spondylosis.
It is necessary, therefore, to deal in turn with each of the possible scenarios raised by the veteran.
Cyclone Tracy
The first of the scenarios is that the veteran’s cervical spondylosis has its genesis in the accident he suffered during Cyclone Tracy. The Tribunal’s attention was drawn to the following conclusions by Dr Khursandi in his report of 20 April 2011 – Exhibit 1 T21 p. 109:
“Following an injury of the neck sustained during cyclone Tracy in December 1974 in Darwin, Mr Davis has developed intermittent episodes of neck pain which have become chronic. X-rays performed on 31 March 2011, revealed degeneration of the C5/6 disc and osteoarthritis of the adjacent facet joints, which would account for his neck pain. Clinical examination revealed slight partial loss of movement of the cervical spine with no associated radiculopathy in his upper extremities.”
The Tribunal proceeds on the assumption that the version of events given by the veteran during his testimony, which is set out above, is an accurate account of what occurred. It is necessary, however, to observe that Dr Bookless noted in his report of 26 May 2015 that the veteran had informed him that he hit his head on a tree during Cyclone Tracy and not a car as he testified before this Tribunal – Exhibit 1 T37 p. 212. The Tribunal has no reason to doubt the veracity of Dr Bookless’ account of what he was informed by the veteran.
Without referring to the possibly relevant Factors in SoP 67 of 2014, it is necessary to deal with the key issue with this scenario, namely whether there is a relation to the veteran’s defence service. It will be recalled that the veteran was not on duty when he suffered the injuries he has complained of. The Tribunal accepts, at the outset, that it is not necessary for a veteran to have been on duty to establish a relationship to service.
Mr O’Neill, on behalf of the veteran, referred the Tribunal to Lake and Department of Defence [1993] AATA 87 (Lake).
In that matter the veteran was a sergeant in the Australian Army and was posted to Lavarack Barracks in Townsville. He leased a Department of Defence house and lessees of such houses were issued with procedures to be followed in the event of a cyclone. On arrival in Townsville the veteran was given instructions regarding the maintenance of gardens, roof gutters, windows and general cleanliness of the property. In January 1981 the veteran attended an administrative parade at Lavarack Barracks where his Regiment had their attention drawn to the approaching cyclone season and their obligations under the terms of their leases of Defence Department houses.
The following Australia Day weekend the veteran undertook cleaning up work and in the process climbed a Jacaranda tree close to the house to clear deadfall from the tree. A branch on which the veteran was standing gave way and he fell onto the ground injuring himself.
It was not disputed that the veteran injured himself on a weekend when he was not on duty. The question to be determined was whether the injury was incidental to and arose out of the veteran’s duty as a regular soldier. In answering this question in the affirmative, the Tribunal gave the following reasons:
“50. To decide whether something is incidental to employment is determined by whether there is a sufficiency of connection between the employment and the activity undertaken by the employee. Factors relevant are the time, place, circumstance and practice which must be considered in the context of the conditions of employment…
51. In no sense is the present case one where the applicant can be said to have been on a frolic of his own when he climbed the tree to remove a dead limb of the tree. He climbed the tree because he believed he was required to do so and that requirement was in fact an order of a superior officer. In this context it is relevant to note that the administration parade was conducted by the applicant’s own unit and not by the District Support Unit – the unit responsible for the Defence Department housing. That parade was clearly in the course of employment and the applicant rightly formed the view that he had been given a direction which was subject to military discipline. It seems to us to be no longer arguable that because he performed his duty outside his normal working hours, i.e. when he was stood down, that the cyclone preparation work did not arise out of nor was incidental to his employment…
52. For these reasons we are satisfied that the injury to the applicant’s knee on Australia Day Weekend 1981 was incidental to and arose out of the applicant’s duties as a regular soldier. It follows that we are satisfied that the injury caused by the fall from the tree arose out of employment as an employee of the Commonwealth and is therefore compensable within the terms of section 27 of the Act.”
Also, as previously noted, the veteran’s left knee was X-rayed in April 1974 and it was shown that he had two bony opacities in the lateral compartment of the left knee joint, and surgery was recommended to remove them. A further medical report of 22 August 1975 noted that his left knee was “Locking, swelling, used to give way” – Exhibit 11.
The Tribunal has some difficulties with the submission of the Respondent.
As previously noted, the Respondent accepted, in a decision of 24 June 2011, that the osteoarthritis of veteran’s left knee was service related. The delegate of the Respondent, in reaching this conclusion, relied on the medical report of Dr Khursandi as well as a Claimant Report of the veteran dated 1 January 2011.
Dr Khursandi referred to an accident the veteran reportedly had in 1974/1975 when he slipped on an oily floor when working at a power station and injured his left knee. Dr Khursandi then noted – Exhibit 1 T21 p. 106:
“The symptoms of pain, periodical swelling and locking of the left knee persisted over the ensuing years, for which he has not received any treatment.”
The delegate, however, apparently did not primarily rely on this accident, and instead made the following finding – Exhibit 1 T22.1 p. 122:
“The Statement of Principles states that lifting loads while bearing weight is a factor contributing to osteoarthritis of the left knee. I am satisfied that Mr Davis meets this factor and I find it is causally related to his service. I have therefore decided that osteoarthritis of the left knee is service related.”
When accepting liability for the veteran’s osteoarthritis of the left knee, the Respondent, ostensibly, accepted that he had injured his left knee whilst on duty in circa 1974 and, further, had been lifting loads of the requisite weight. The evidence before the Tribunal also clearly points to the fact that the veteran’s left knee was clicking, locking and giving way as early as 1974. The Tribunal, therefore, does not agree with the opinion expressed by Dr Bookless that it would not be consistent with the veteran’s mild presentation in 2015 for his left knee to be giving way and/or locking in 1989 – Exhibit 16. This opinion is, ostensibly, at odds with the RAAF medical records of 1974 which clearly point to the veteran’s knee giving way and locking at that time.
The Tribunal has no reason to doubt the veracity of the veteran’s account of the roof incident in 1989. Prima facie, his left knee gave way which resulted in him falling and injuring himself. Further, the Respondent has previously accepted that the osteoarthritis of the left knee was service related.
Clinical onset of osteoarthritis
Lastly, the Respondent submitted that the Tribunal could not be satisfied that osteoarthritis of the left knee could not have caused the 1989 roof fall because clinical onset was not until some time after that.
It is necessary to refer again to the report of Dr Vecchio. When referring to the findings of the 2003 bone scan of, inter alia, the hips made this observation – Exhibit 1 T66.1 p. 355:
“For such significant uptake to be present at this time easily suggests that the earlier phases of the degenerative process was present years prior, as osteoarthritis is the end stage of it. Therefore clinical onset was years before.”
As I read Dr Vecchio’s report, he is opining that clinical onset was, at its latest, 2003 when the bone scan was undertaken, and, more likely, “years before”. It is possible, then, that clinical onset may have occurred by 1989.
However, there is a more pressing issue. The Tribunal is not satisfied that clinical onset of osteoarthritis need have occurred at the time of the 1989 roof fall. What was required was that the degenerative process brought about by the veteran’s defence service caused his left knee to lock and therefore resulted in him falling from the roof. Determining with arithmetic certainty when a degenerative process reaches a stage where arthritis can be diagnosed is an impossible exercise. What the Tribunal in this matter needs to be reasonably satisfied of is:
(a) did the veteran fall from the roof in 1989;
(b) did he suffer the injuries he claimed;
(c) did his left knee lock resulting in his fall;
(d) did his left knee lock because of service-related incidents/activities.
The Tribunal has reached an affirmative conclusion for each of these propositions.
Arose out of, or attributable to, defence service
The Respondent next submits (RCS para 47) that the 1989 roof fall is too remote to be sufficiently connected with the veteran’s defence service.
First, the Respondent submits that the injuries and disease caused by the 1989 roof fall did not arise out of, nor are they attributable to, the veteran’s defence service as required by s 70(5)(a) – see also s 196C(14)(b).
Quite properly, the Respondent submits that there is no temporal connection between the veteran’s defence service and the roof fall which occurred 13 years after his discharge from the RAAF and when he was undertaking activities in a private capacity.
The Tribunal was referred to Pridham and Commonwealth of Australia [1987] AATA 4 (Pridham). The veteran was serving in the RAAF and rented quarters owned by the RAAF about two miles from his place of work which was a Radar Station Lee Point. The Radar Station operated all night and the veteran served in the equipment store.
Prior to leaving for his place of work, the veteran was shaving when he fell over in the bathroom injuring himself. On this day the veteran was rostered as on-call which meant that he was available to be called back to work by telephone if equipment was required out of normal working hours (in his case 7:50 am until 4:25 pm).
In affirming the reviewable decision, the Tribunal made the following observations:
“12. In determining whether the applicant was injured in the course of his employment it is not in issue that the applicant was injured when he was shaving in his normal pattern of life before going on duty at the normally prescribed hour. It did not occur while he was attending to a telephone call requiring equipment or while waiting for such a call on stand by during his off duty hours…
14. It seems to us that counsel’s statement that ‘the person who was on call was not strictly entitled to leave his home’ would be enough, on its own, to distinguish the facts from the true ‘on call’ lline of case…Furthermore, as we have said, the injury took place whle the applicant was doing something unconnected with any ‘on call’ arrangement but while he was shaving piror to putting on his uniform to go to work as he would on any other day. The fact that he had to shave well to meet RAAF requirements is not sufficient to make the shaving something he was ‘reasonably, required, expected or authorised to do or order to carry out his duties….nor, in our view, would putting on an RAAF uniform rather than a suit.”
Reference was previously made to Holthouse where Davies J held that the veteran moving a pot plant while not on duty and when at home were matters purely within that veteran’s private life and unrelated to his defence service.
It will be noted that in both Pridham and Holthouse the veterans were injured while still rendering defence service, albeit while not at their place of work.
The Tribunal’s attention was also drawn by the Respondent (RCS para 47.1 fn 43) to Chaney and Repatriation Commission [2015] AATA 286 (Chaney), a matter which has some similarities to this case.
In that matter the deceased veteran served in the Australian Army from 1974 until 1998 and had rendered eligible defence service. The veteran suffered from osteoarthritis of his left knee which was an accepted condition documented in his defence history. There was a history of his left knee giving way and of tender, swollen and unstable knee joints. Whilst both knees were affected, his left knee caused most of his problems, and resulted at times in him falling down. It was not disputed that this condition was linked to his defence service – at [33].
After his wife left for work it would appear that the veteran climbed a ladder to check work that was being done on the roof of their home. What subsequently occurred is unclear, but it would appear that the veteran fell from the roof suffering fatal head injuries.
In affirming the decision under review, the Tribunal found that there was no evidence that the veteran’s left knee problem caused or contributed to the accident – at [34]. The Tribunal made the following findings:
“35. There was no one present to witness the fall of the Veteran from the roof and therefore a complete lack of any direct evidence as to what occurred. Nor is there any useful circumstantial or contextual evidence as to what occurred. The submissions to the effect that there was some connection between the joint instability and the death is therefore a matter of inference without any basis to back up the inference sought to be made in this case…
38. Some of the evidence from the medical records speculates that weakness of the left knee may have been the cause of the fall but there is no sound basis for such a conclusion and are no more than speculation….
40. In the absence of any evidence as to what occurred, the Applicant makes a suggestion that because of the history of joint instability and the absence of any evidence that there was any other operative medical condition, then it should be concluded that the fall and death were consistent with failure of the left knee.
41. In my opinion, these attempts to infer that there was a connection between eligible defence service and the death in this case, in the absence of any indication whatsoever as to what happened at the time of death, is speculation and falls far short of a justification of reaching such a conclusion.”
It will be seen that Chaney is distinguishable from this matter. In Chaney there were no witnesses to what occurred. The veteran was alone at the time and was fatally injured. The cause of his fall was unclear and the proposition that his service-related knee condition was the operative cause of the veteran falling to his death was not able to be established on the balance of probabilities. On the contrary, the Tribunal found that this proposition was no more than speculation. This factual matrix can be compared with this matter where the Tribunal has been presented with direct evidence from the veteran as to why he fell from the roof. Appropriate factual findings can be made in this matter as the Tribunal has not been presented with speculative propositions but with relevant primary and secondary evidence.
As was explained earlier the words “arose out of” or “was attributable to” any defence service are to be given a broad meaning – Gilkinson..
However, the mere fact that a veteran has rendered eligible service does not mean that in the years following his or her discharge from the military that any incident resulting from post-service social or employment activities can be said to arise out of or be attributed to a condition contracted or injury inflicted during service. The cause of the post-service incident must be sufficiently proximate to (in this case) defence service for it to be deemed to be service related.
A careful reading of the many cases in this area shines some light as to how the Tribunal should determine if the causation tests in s 70(5)(a) are met in a particular case. The following factual issues are relevant:
(a) was the veteran injured during the period he or she was rendering service;
(b) did the injury occur whilst the veteran was performing service-related duties;
(c) was the veteran on military property or private property when the incident occurred;
(d) did the injury occur as a result of social activities voluntarily undertaken;
(e)was there a service expectation, albeit not a legal obligation, that the veteran was in a particular place or undertaking particular duties;
(f)did the incident occur because of the impact of a previously accepted service-related injury or disease;
(g) did the injury occur, or was it contributed to, by the negligence of the veteran;
(h)could the veteran have taken reasonable steps to minimise the risk of the incident occurring or the severity of the impact of the incident; and
(i) is there direct evidence of the incident and the cause or causes of the incident.
In this matter the roof fall occurred approximately seven years after the veteran had ceased rendering service in the RAAF. In short when the roof fall occurred the veteran was no longer rendering defence service. The decision of the veteran to assist his sister was one made voluntarily by him and was purely of a social nature. As in Holthouse, it was no interest to the Respondent whether he engaged in act of private charity for his sibling.
The veteran had, it would appear, a long history of his left knee locking with attendant instability. Yet despite this history he undertook the dangerous task of going onto a roof of a two-storey house by himself and without any tangible safety precautions. In short, he voluntarily put himself in harm’s way.
Despite the substantial period of time post service when this incident occurred, and despite the fact that a dangerous action was performed for a purely social and benevolent purpose, the veteran seeks to attribute it to his defence service.
Although the tests of arising out of or attribution in s 70(5)(a) are broad, they are not infinite. Here the circumstances of the roof fall are too remote from the veteran’s defence service for it to said sensibly that the tests of causation in s 70(5)(a) are satisfied.
This is not to say that simply because a veteran is no longer rendering service that the causation tests in s 70(5)(a) cannot be met in a particular case. If such a scenario was intended by the Act, then s 70 would have been drafted in a different manner. Both the framers of the Act and the Courts when interpreting its provisions, have given it a broad and generous interpretation. However, there must be a relationship to the relevant service rendered. The more remote in time and circumstance the occurrence of the post-service injury, the more difficult it will become for a decision-maker to be satisfied that the test of proximity to service is satisfied.
But for test – s 70(7)
This finding does not exhaust the task of the Tribunal. Consideration must be given to the operation of s 70(7), namely where the incapacity was due to an accident that would not have occurred, or to a disease that would not have been contracted, but for the veteran having rendered defence service. In such a circumstance subparagraph 70(7)(a) provides:
“(a) if the incapacity of the member was due to an accident – that incapacity shall be deemed to have arisen out of the injury suffered by the member as a result of the accident and the injury so suffered shall be deemed to be a defence-caused injury suffered by the member.”
As I understand it, the thrust of the veteran’s submission is that but for the fact that he injured his left knee whilst rendering defence service he would not have been suffering from osteoarthritis which resulted in his left knee locking which in turn caused him to fall off the roof and injuring himself. In short, the veteran’s submission is that there is a direct causal link between his fall from the roof with consequent injuries to his lower body and his defence service.
The Respondent rightly concedes (RCS para 47.2) that the test in s 70(7) constitutes a wider test of causation – see Franks and Repatriation Commission [2010] AATA 329 at [17]. Subsection 70(7) has been drafted in a broad manner, and, prima facie, its deeming operation expands the scope of the Respondent’s liability beyond the ordinary application of common law principles of causality.
It is important when properly applying s 70(7) to pay specific regard to its wording and not to default to applying common law principles in a vacuum, or, to automatically apply jurisprudence on the “but for” test which is inextricably intertwined with the drafting of other pieces of legislation.
In this regard some care must be taken in applying Holthouse. This is the only authority cited to the Tribunal on a repatriation “but for” test which has the authority of a Federal Court judge. In Holthouse, Davies J paid very careful attention to the wording of the Repatriation Act 1920 (the 1920 Act).
Davies J explained (at 290) that s 107M of the 1920 Act did not do away with the distinction between a causa causans (an operable cause producing an effect – the last link in the causal chain) and a causa sine qua non (a cause without which the injury would not have occurred). His Honour, when referring to the comparable provision in the 1920 Act, observed (at 291) that it did not abrogate the ordinary principles of causality or dispense with the requirement that the relevant defence service be a contributing cause of the incapacity.
Subsection 107M(2) of the 1920 Act provided, inter alia, as follows:
“(2) For the purposes of sub-section (1) but without affecting the generality of that sub-section, the incapacity or death of a member shall be deemed to have arisen out of his defence service if the incapacity or death was the result of –
(a) …
(b)an accident, a disease or an infection that would not have occurred or been contracted, as the case may be, but for –
(i) the member being on defence service; or
(ii) changes in the environment of the member consequent upon the member being on defence service.”
As will be seen, s 107M(2) of the 1920 Act is worded in a more restrictive manner than s 70(7) of the Act. The importance of this is illustrated below when the High Court considered the wording of more recent statutes that have attempted to codify the “but for” test.
The threshold point in the application of the “but for” test in s 70(7) is the seemingly obvious proposition that the injury or disease was caused by the relevant service rendered by a veteran.
A decision-maker, then, must ascertain if the service-related injury (in this case the osteoarthritis to the left knee) was a causally relevant factor for the veteran sustaining the injury (i.e. falling off his sister’s roof). In reaching a conclusion a decision-maker, when reviewing the evidence presented, will necessarily consider each of the events or occurrences which, cumulatively, comprise the causal chain. Whether a particular event is causally relevant is usually said to be whether it was necessary to (with the other relevant causes) sufficiently account for the injury or disease. This is the “necessary” condition or causa sine qua non.
Reference can be made to the following observations of Mason CJ in March v Stramare Pty Limited (1991) 171 CLR 506 (March) at 515:
“The common law tradition is what was the cause of a particular occurrence is a question of fact which ‘must be determined by applying commonsense to the facts of each particular case’…
It is beyond question that in many situations the question whether Y is a consequence of X is a question of fact…
Commentators subdivide the issue of causation in a given case into two questions: the question of causation in fact – to be determined by the application of the ‘but for’ test – and the further question whether a defendant is in law responsible for damage which his or her negligence has played some part in producing…It is said that, in determining the second question, considerations of policy have a prominent part to play, as to accepted value judgments…However, this approach to the issue of causation (a) places too much weight on the ‘but for’ test to the exclusion of the ‘common sense’ approach which the common law has always favoured; and (b) implies, or seems to imply, that value judgment has, or should have, no part to play in resolving causation as an issue of fact.”
More recently the High Court has considered s 5D of the NSW Civil Liability Act 2002. Subsection 5D(1) provides:
“(1) A determination that negligence caused particular harm comprises the following elements:
(a)that the negligence was a necessary condition of the occurrence of the harm (factual causation); and
(b)that is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (scope of liability).”
French CJ, Gummow, Crennan and Bell JJ made the following observations in Strong v Woolworths Limited (2012) 246 CLR 182 (Strong) at 190 – 191:
“The determination of factual causation under s 5D(1)(a) is a statutory statement of the ‘but for’ test of causation…the plaintiff would not have suffered the particular harm but for the defendant’s negligence. While the value of that test as a negative criterion of causation has long been recognised…two kinds of limitations have been identified. First, it produces anomalous results in particular cases, exemplified by those in which there is more than one sufficient condition of the plaintiff’s harm. Second, it does not address the policy considerations that are bound up in the attribution of legal responsibility of harm…
The division of the causal determination under the statute into the distinct elements of factual causation and scope of liability is n line with the recommendations in the Final Report of the Committee convened to review the law of negligence (the Ipp Report)…The policy considerations that inform the judgment of whether legal responsibility should attach to the defendant’s conduct are the subject of the discrete ‘scope of liability’ inquiry. In a case such as the present, the scope of liability determination presents little difficulty. If the appellant can prove factual causation, it is not in contention that it is appropriate that the scope of Woolworth’s liability extend to the harm that she suffered…”
(footnotes omitted)
It is tolerably clear that the drafters of s 70(7) intended to codify the “but for” test, but its deeming operation necessarily results in a decision-maker’s task concluding if an affirmative answer is evinced at the conclusion of the factual inquiry. In short, the manner in which s 70(7) is drafted obviates the need for a discrete scope of liability inquiry. To this extent, s 70(7) can be differentiated from the comparable provision in the 1920 Act, and the conclusions reached in Holthouse are applicable only to the 1920 Act.
The key question, then, is whether sufficient evidence has been adduced that the veteran’s service accepted osteoarthritis of the left knee was a necessary condition of the occurrence of the veteran’s injury to his hips or materially contributed to that state of affairs. The jurisprudence in this area of the law recognises that there may be more than one set of conditions leading to the injury. In this matter, for example, the veteran voluntarily assumed risk and, it would appear, took no particular steps to minimise the risk of him falling from the roof or the extent of the harm that would befall him if he fell from the roof.
It has been accepted by the High Court in both March and Strong that negligent conduct that materially contributes to a plaintiff’s harm but which cannot be shown to have been a necessary condition of its occurrence may, nonetheless, be accepted as establishing factual causation.
The Tribunal is satisfied that the veteran had a history of knee problems and that his left knee would lock. The Tribunal is further satisfied that this state of affairs had its genesis in a service-related injury which resulted in the veteran contracting osteoarthritis of the left knee. The Respondent has previously accepted that the veteran’s osteoarthritis of the left knee was a service-related disease emanating from an injury occurring whilst the veteran was rendering defence service.
It is the case that the veteran’s left knee problems were a necessary condition of his fall and consequent hip injuries. The fact that the veteran voluntarily went on the roof, and, further took no precautions to minimise the risk of falling or the severity of injuries that he would suffer should he fall, does not derogate from the proposition that his fall resulted from the consequences of his service-related disease of the left knee. Further, the private nature of the work the veteran was undertaking on his sister’s roof and the period of time elapsing since his discharge from the RAAF do not result in a break of the causal chain.
Some of the issues raised, quite properly, by the Respondent (RCS para 47) apply sensibly to the common law scope of liability inquiry stage, such as the issue of remoteness. The Tribunal recognises that at the second stage of the common law causation inquiry after the “but for” test has been resolved, a defendant’s fault must be determined to be a proximate cause of the injury, and the consequences must not be remote.
This conclusion necessarily flows from the deeming operation of s 70(7) and is line with the beneficial and generous manner that the Act has been drafted and interpreted. Whether this degree of generosity is apposite is a policy question, however the Tribunal does note that the deeming operation of s 70(7) prevents a decision-maker from sensibly considering the scope of liability inquiry and avoiding, at times, possibly anomalous outcomes.
Disordered joint mechanics
Mr O’Neill has generally asserted that Factor 9(10) is applicable to the veteran’s osteoarthritis of both hips.
The definition of disordered joint mechanics in Schedule 1 of the SoP has been set out above.
The Tribunal has been presented with no evidence of rotation or angulation deformity of the veteran’s hip bones or joints. In the absence of such evidence this Factor has not been made out.
Lifting loads while bearing weight through the hip joints
Mr O’Neill raised this Factor (Cl. 9(14)(b)) in VCS para 1.7(a), even though it had not been raised previously. Further, Mr O’Neill simply referred to lifting and carrying heavy weighs “as per the Statement of Principles” without referring to any particular Factor. The only contention made was as follows:
“The already accepted conditions of Lumber Spondylosis, Osteoarthritis of both Left and Right Knees and Osteoarthritis of Both Ankles.”
The Tribunal accepts the following submission of the Respondent – RCS para 52:
“The Applicant’s Closing Statement has given no argument in support of this factor beyond asserting this at paragraph 1.7(a), ‘lifting and carrying of heavy weights as per the Statement of Principles’. The Applicant does refer to other conditions that have separately been accepted as defence-caused under the VEA on the basis of weights and lifting. The merits of the Respondent’s acceptance or otherwise of those conditions as service related is irrelevant to the Applicant’s satisfaction of factor 9(14)(b).”
The Tribunal has before it an assertion made by Mr O’Neill with no evidence provided in support of it. Indeed, Mr O’Neill invites the Tribunal to make a finding which was not raised during the eighteen months that Hearings were held and when numerous opportunities were given to raise it and to lead evidence to support it.
Apart from the unfairness to the Respondent of this late submission, there is a more fundamental issue. When a party raises an assertion that party must advance their cause. It is not open to the Tribunal or another party to do the work of the party raising the assertion. In the absence of evidence, or even considered submissions, supporting the assertion, it must be dismissed as lacking in substance and without proper foundation. For these reasons, the Tribunal gives this submission no weight and does not accept that Factor 9(14)(b) is enlivened.
CONCLUSION
Having regard to the findings made above, the Tribunal makes the following Directions:
(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.
I certify that the preceding 325 (three hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso
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Associate
Dated: 16 March 2021
Dates of hearing: 1 July 2019, 18 February 2020, 20 and 26 October 2020 Date final submissions received: 24 December 2020 Advocate for the Applicant: Brian O’Neill Lawyers for the Respondent: Lindsay Cooper, Jaime Watts
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