Doutch and Military Rehabilitation and Compensation Commission (Compensation)

Doutch and Military Rehabilitation and Compensation Commission (Compensation) [2018] AATA 3812 (31 August 2018)
Division:VETERANS’ APPEALS DIVISION
File Number(s): 2017/3356
Re:Kenneth Doutch
APPLICANT

Military Rehabilitation and Compensation CommissionAnd
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date of decision:               31 August 2018
Date of written reasons:        12 October 2018
Place:Melbourne

The Tribunal affirms the decision under review.
...................[sgd].............................
Senior Member

VETERANS’ AFFAIRS – claim for compensation – right knee osteoarthritis – right knee replacement – claim that right knee condition arises from accepted left knee condition – right knee condition not caused by military service – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Safety, Rehabilitation and Compensation Act 1988 (Cth)
Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (Cth)
Compensation (Commonwealth Government Employees) Act 1971 (Cth)
Cases
Lees v Repatriation Commission (2002) 125 FCR 331
Treloar v Australian Telecommunications Commission (1990) 26 FCR 316
Taylor v Military Rehabilitation and Compensation Commission, Re [2014] AATA 78
Benton v Military Rehabilitation and Compensation Commission, Re [2005] AATA 620
Robertson v Repatriation Commission, Re [1998] AATA 127
Negri v Secretary, Department of Social Services [2016] FCA 879
Secondary Materials
Statement of Principles Concerning Osteoarthritis (Reasonable Hypothesis), No. 61 of 2017
Statement of Principles Concerning Osteoarthritis, Instrument No. 14 of 2010 (as amended by Amendment Statement of Principles No. 36 of 2011)
Dorland’s Illustrated Medical Dictionary, 2003, 30^th Edition, Saunders, Philadelphia.
Yuqing Zhang and Joanne M. Jordan, ‘Epidemiology of Osteoarthritis’ (2008) 34 Rheumatic Disease Clinics of North America 515
Y.M. Golightly et al, ‘Relationship of limb length inequality with radiographic knee and hip osteoarthritis’ (2007) 15 International Cartilage Repair Society 824
Nigel Arden and Michael C. Nevitt, ‘Osteoarthritis: Epidemiology’ (2006) 20(1) Best Practice & Research Clinical Rheumatology 3
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
12 October 2018
INTRODUCTION

The Applicant, Mr Kenneth Doutch, lodged a compensation claim on 14 June 2016 under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRCA), for three conditions: ‘Right Knee Problems, Right Knee Problem OA[1] and Right Knee Replacement’.[2] He contended that his right knee condition is a long-term sequela of his accepted left knee condition, arising from compensatory weight-bearing through his right leg.
[1] Osteoarthritis.
[2] Exhibit R1, 99-101.
In a Determination dated 23 May 2017,[3] a delegate of the Military Rehabilitation and Compensation Commission (the Commission), affirmed an earlier decision[4] to deny liability for Mr Doutch’s claim. The decision-maker was not satisfied there was a relationship between Mr Doutch’s right knee condition and his military service. On 6 June 2017 Mr Doutch asked the Tribunal to review the Commission’s decision.[5]
[3] Ibid, 172-174.
[4] Ibid, 110-113.
[5] Ibid, 3-4.
The hearing was conducted on 30 and 31 August 2018. Mr Doutch was represented by Mr Wayne Taylor, an advocate from the Hume Veterans’ Information Centre. The Commission was represented by Mr Nam Nguyen of Sparke Helmore Lawyers. Three expert medical witnesses gave evidence as follows:
(a)Orthopaedic Surgeon, Mr Richard Kjar, was called by the Respondent. He appeared by telephone, gave oral evidence and was cross-examined. Mr Kjar had performed extensive surgery on Mr Doutch since 2010, encompassing right ankle surgery, bilateral knee replacements in 2011, a left knee arthroscopy in 2013, and a left knee revision in 2014. Reports by Mr Kjar were tendered into evidence;
(b)Consultant Orthopaedic Surgeon, Mr John Bartlett, was called by the Respondent. He appeared in person, gave oral evidence and was cross-examined. His report dated 27 December 2017[6] was tendered into evidence; and
(c)Orthopaedic Surgeon, Mr Andrew McQueen, was called by the Applicant. Mr McQueen appeared by telephone, gave oral evidence and was cross-examined. His reports dated 8 March 2017[7], 4 July 2017[8] and 19 September 2017[9] were tendered into evidence.
[6] Exhibit R3.
[7] Exhibit A6.
[8] Exhibit A7.
[9] Exhibit A8.
The report of Orthopaedic Surgeon Mr Elie Khoury[10] was tendered into evidence without objection, but Mr Khoury was not called as a witness.
[10] Exhibit R2.
At the conclusion of the hearing I gave my decision ex tempore. On 20 September 2018 Mr Doutch requested a statement in writing of the reasons for my decision. These are the reasons requested, consistent with the requirements of section 43(2B) of the Administrative Appeals Tribunal Act 1975 (Cth) (AATA). In providing them I have had regard to the decision of Negri v Secretary, Department of Social Services [2016] FCA 879, in which Bromberg J considered the extent to which the Tribunal could elaborate upon its oral reasons when producing written reasons. His Honour stated:[11]
As long as the reasoning remains consistent, there can be no objection to the provision of a more-elaborate exposition of the same reasoning that was orally explained. What is not permissible is altered or new reasoning. The Tribunal is not permitted to substantially divert from the reasoning upon which its decision was made, but is permitted to explain that reasoning differently and, in doing so, is required to address the matters specified in s 43(2B).
[11] At [27].
For the reasons that follow, I affirm the decision under review.
BACKGROUND
On 9 July 1969, at the age of 20, the Applicant was conscripted for National Service. About seven weeks into his basic training he twisted his left knee.[12] His service medical record (SMR) states that he damaged the cartilage in his left knee while playing football:
‘Was playing football – went up for a mark and landed awkwardly + twisted L knee’. [13]
[12] Exhibit R1, 218.
[13] Ibid, 221. See also: 201-202; 218; 238; 287-289;
Mr Doutch disputes that he injured his knee playing football, contending that the injury occurred during a route march while carrying a 15kg pack.[14] In any event, not much turns on the circumstances in which the Applicant suffered the injury. Organised sport is an integrated component of the Army’s recruit training course and there is no dispute that Mr Doutch was on duty when he injured his left knee.
[14] Ibid, 9.
Initial management of Mr Doutch’s left knee injury was conservative, but his symptoms persisted and surgical repair of the torn cartilage was recommended by an orthopaedic surgeon.[15] A left medial meniscectomy was performed on 19 November 1969.[16] While convalescing from that surgery, Mr Doutch suffered a grand mal epileptic seizure on 12 December 1969.[17] He was diagnosed with Idiopathic Epilepsy, rendering him unfit to complete his period of conscription. He was discharged as medically unfit on 19 August 1970, after one year and 42 days of service.[18] Mr Doutch subsequently returned to civilian life in his former trade as a carpenter.[19]
[15] Ibid, 218.
[16] Ibid, 185; 217.
[17] Ibid, 209.
[18] Ibid, 292.
[19] Ibid, 50.
Approximately 40 years after his discharge, on 9 March 2011, Mr Doutch lodged a claim for compensation in respect of his left knee.[20] While his claim was being processed, orthopaedic surgeon Mr Richard Kjar performed total knee replacements, first on Mr Doutch’s left knee on 23 March 2011 and then the right knee on 8 June 2011.[21]
[20] Ibid, 7-13.
[21] Ibid, 40.
By determination dated 3 July 2012, the Commission found that Mr Doutch had suffered permanent impairment from ‘left knee replacement secondary to osteoarthritis arising from the meniscectomy in 1969’.[22] He received $50,581.51 under section 24 of the SRCA, and $21,075.64 for non-economic loss under section 27 of the SRCA.[23]
[22] Ibid, 72.
[23] Ibid, 83-84.
On 14 June 2016, approximately five years after both of his knees were replaced, Mr Doutch lodged a new claim for his right knee.[24] He contends his right knee condition is a long-term sequela of his accepted left knee condition, arising from compensatory weight‑bearing through his right leg. He states in his claim:
‘My accepted left knee conditions and resulting knee replacement caused my gait to change which in turn resulted in Osteoarthritis of the right knee’.[25]
[24] Ibid, 96-104.
[25] Ibid, 100.
Prior to rejecting the right knee claim, the Commission sought advice from Mr Kjar, who had performed bilateral knee replacements on Mr Doutch’s knees in 2011. Mr Kjar considered that Mr Doutch’s right knee condition was unrelated to either the accepted left knee condition or his Defence service.[26] On 25 October 2016 Mr Doutch sought reconsideration of the Commission’s decision.[27] On 1 February 2017 Mr Doutch also applied for a review of the level of permanent impairment in his left knee, which he contended had further deteriorated.[28] This was rejected on 16 June 2017 on the basis that impairment in his left knee had ‘not increased to the next threshold required for further compensation’.[29]
[26] Ibid, 113.
[27] Ibid, 114.
[28] Ibid, 116.
[29] Ibid, 176.
STATUTORY FRAMEWORK
Although Mr Doutch’s claim is made under the Safety, Rehabilitation and Compensation (Defence-Related Claims) Act 1988 (Cth) (DRCA),[30] the circumstances of this case are such that liability for compensation must be considered under earlier legislation, the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act). Although the 1971 Act is no longer in force, due to the chronology of Mr Doutch’s claim he is required to have complied with the notice provisions at sections 53 and 54 of the 1971 Act, which provide:
[30] The DRCA, which commenced on 12 October 2017, provides for compensation coverage for all members and ex-serving members of the ADF between 3 January 1949 and 30 June 2004.
Section 53
(1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth-
(a)as soon as practicable after the occurrence of the injury;
(b)if the employee was not, immediately after the injury, aware that he had sustained an injury-as soon as practicable after he became so aware; or
(c)...
(2) This Act does not apply in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by an employee unless notice in writing of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease, as the case may be, was served, as prescribed, on the Commonwealth-
(a)as soon as practicable after the employee became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
(b)…
(3) …
(4) …
Section 54
(1)   Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.
(2)   If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is-
(a)in the case of a claim in relation to an injury to the claimant-
(i)the period of six months commencing on the day of the injury; or
(ii)
if the claimant was not, immediately after the injury, aware that he had sustained an injury-the period of six months commencing on the day on which he became so aware;

(b)in the case of a claim in relation to a disease contracted, or an aggravation, acceleration or recurrence of a disease suffered, by the claimant-the period of six months commencing on the day on which the claimant became aware of the contraction of the disease, of the commencement of the aggravation or acceleration of the disease or of the recurrence of the disease; or
(c)…
(3)   …
(4)   …
(5)   If the claimant is a person to whom the compensation is payable by virtue of paragraph (b) or paragraph (c) of sub-section (5), or sub-section (9), of section 37 or by virtue of section 44, the prescribed period for the purposes of sub‑section (1) of this section is the period of six months commencing on the day on which the liability to pay the cost to which the claim relates arose, or on which the expenditure to which the claim relates was incurred, as the case may be.
Section 29 of the 1971 Act provides that:
(1) Where-
(a)an employee contracts a disease or suffers an aggravation, acceleration or recurrence of a disease; and
(b)any employment of the employee by the Commonwealth was a contributing factor to the contraction of the disease or to the aggravation, acceleration or recurrence, as the case may be, whether or not the disease was contracted or the aggravation, acceleration or recurrence was suffered in the course of that employment,
the succeeding provisions of this section have effect…
Section 124 of the DRCA provides for application of the Act to pre-existing injuries, including if compensation was or would have been payable in respect of that injury under the 1971 Act.
Section 7(4) of the DRCA provides that for the purposes of the Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:
(a) the employee first sought medical treatment for the disease, or aggravation; or
(b) the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee;
whichever happens first.
ISSUES FOR THE TRIBUNAL
The issue to be resolved in this application is whether Mr Doutch’s right knee injury claim should be accepted, having regard for the requirements of sections 29, 53 and 54 of the 1971 Act, and section 124 of the DRCA.
EVIDENCE
Mr Doutch
On 10 August 2017 a bundle of documents were lodged with the Tribunal by Mr Doutch’s advocate, Mr Taylor. It included a statutory declaration by Mr Doutch dated 26 July 2017,[31] information from the Repatriation Medical Authority (RMA),[32] Statements of Principles concerning Osteoarthritis,[33] and a number of journal articles relating to osteoarthritis. Three of the journal articles were subsequently tendered into evidence.[34]
[31] Exhibit A1.
[32] Letter from Registrar, RMA dated 30 May 2017 and supporting documents consisting of a briefing paper, list of medical authorities, and three published articles on the topic of ‘asymmetrical gait.’
[33] The Statements of Principles relating to Osteoarthritis are: Instrument No.14 of 2010; and Amendment Statement of Principles No.36 of 2011.
[34] Exhibit A5. Yuqing Zhang and Joanne M. Jordan, ‘Epidemiology of Osteoarthritis’ (2008) 34 Rheumatic Disease Clinics of North America 515; Y.M. Golightly et al, ‘Relationship of limb length inequality with radiographic knee and hip osteoarthritis’ (2007) 15 International Cartilage Repair Society 824; Nigel Arden and Michael C. Nevitt, ‘Osteoarthritis: Epidemiology’ (2006) 20(1) Best Practice & Research Clinical Rheumatology 3.
Mr Doutch submits he is entitled to compensation because his right knee problems are causally-linked to his accepted left knee condition. He says this is because his accepted left knee condition changed his gait, resulting ‘in an increased misalignment’[35] on his right side. In his oral evidence at the hearing, Mr Doutch summarised the development of his right knee condition over time as follows:
[35] Exhibit R1, 131.
(a)In terms of physical fitness on commencing his period of conscription, Mr Doutch stated: ‘there was nothing wrong with me’;
(b)After his left knee meniscectomy in November 1969, Mr Doutch said it ‘took a very long time’ to recover. Mr Doutch did not distinguish between hospitalisation relating to his left knee surgery, and hospitalisation relating to the grand mal seizure he suffered during his post-surgical recovery;
(c)Mr Doutch claims to have noticed his gait was abnormal immediately after the meniscectomy in 1969, but first noticed pain in his right knee around 1975. He claims that a limp arising from the meniscectomy persisted for the next 40 years;
(d)Mr Doutch initially claimed he ‘could not return’ to his trade as a carpenter after discharge from the Army. However, in response to questions from the Tribunal, Mr Doutch explained that he was able to continue in his trade, but could not undertake the full range of tasks, particularly heavier jobs like fitting wall frames and floors. He consequently focussed on ‘lighter work’ like architraves. Mr Doutch agreed with the note in Dr Van Geyzel’s report that he had nevertheless continued to work as a carpenter for about 60 per cent of his working life,[36] which he said was ‘roughly up until 2012’;
(e)In addition to his work as a carpenter, Mr Doutch states that he worked as a taxi driver on three occasions for 6 to 9 months each time, as an estimator of building and labour costs, as a supervisor of other builders, as well as putting in stumps to re‑level houses. In relation to re-levelling houses, Mr Doutch said he mainly did supervising work and had a ‘junior’ to assist him when required. Mr Doutch continues in remunerative work to the present day as a console operator at a service station for 3 hours a day, five days a week. He says that he has an understanding employer and is able to sit or stand when required, to manage the discomfort in his joints.
(f)Mr Doutch says he only became aware in 2011 that he could claim for his left knee condition after contacting the Yarrawonga RSL, who advocated on his behalf with the Department of Veterans’ Affairs. Liability for his left knee and left hip was subsequently accepted for compensation purposes, and he has continued to receive assistance in relation to his right knee claim. He claims to have received a disability pension in 2011 due to ‘gut problems’, although no evidence was tendered in relation to that pension, or whether it was still being paid;
(g)Under cross-examination, Mr Doutch agreed that he first became aware of the veterans’ claims process in 2011 after consulting with an RSL advocate and successfully having his left knee condition accepted as arising from his service. He had further developed his understanding of the process by 2013, but did not lodge a claim for his right knee until 14 June 2016;
(h)Mr Doutch contends that his left knee operation in 2011 caused his right foot ‘to turn in 45º’, which exacerbated his gait problems. Mr Doutch agrees there are no medical records available to support that contention. He insisted, however, that his gait became worse after the left knee operation as a direct consequence of his ‘right foot turning in further’;
(i)Mr Doutch says he stopped seeing Mr Kjar, who had performed his knee replacement surgeries, after Mr Kjar advised he ‘could do nothing more’ to help. He had subsequently sought a second specialist opinion from Mr Khoury in relation to the causative relationship between his accepted left knee condition and claimed right knee condition. Dissatisfied with that consultation, Mr Doutch sought a third specialist opinion from Mr McQueen; and
(j)Deterioration of his knees over the years had caused Mr Doutch to use knee braces and to rely on a walking stick. He says that he continues to take pain and sleeping medication, submitting that he no longer sleeps with his wife because of the restlessness arising from his knee pain.
[36] Ibid, p.50.
Mr Doutch elaborated upon his work as a carpenter, referring to a 4½ apprenticeship prior to conscription which required repetitive bending in both knees and frequent load carrying. When asked if he had injured himself at work prior to his Army service, Mr Doutch initially stated said he could not recall. When referred to a medical report dated 4 June 1969 regarding an injury after ‘lifting a heavy wall frame’, which required approximately three months off work,[37] Mr Doutch recalled the incident but disagreed with the reference to three months off work, describing it as ‘definitely not correct’. Mr Doutch also recalled a workplace accident in 2007-08, when he fell 2.5 metres from a scaffold and required treatment at the Alfred Hospital. Mr Doutch said the only injury he sustained in the fall was a head wound requiring stitches.
[37] Ibid, 229.

In response to questions about first noticing pain his right knee in 1975 and what treatment he had sought, Mr Doutch said he had seen other doctors in the 80s and 90s about his right knee and thought one general practitioner may have been located in East Ringwood. He could not recall the names or other details of the doctors he had consulted. Mr Doutch said he had not attempted to locate these doctors or the medical records that may have been produced. He agreed that the first reference in the documents before the Tribunal, to an altered walking gait as a contributing factor to his right knee problems, was in April 2016, as recorded by exercise physiologist Ms Shelley Harper, and then by his general practitioner in June 2016. Neither was called to give evidence at the hearing.
Under cross-examination, Mr Doutch was asked about the right knee arthroscopy Mr Kjar referred to in his reports, which purportedly arose from an injury after Mr Doutch’s military service. Mr Doutch said this was the ‘first investigation’ undertaken of why he was experiencing pain in his right knee. Mr Doutch disagreed with Mr Kjar’s opinion that there was no link between his left and right knee conditions. Given that Mr Kjar could do no more for him, Mr Doutch subsequently sought a second opinion from Mr Khoury, whose view was that the right knee problem was unrelated to the left. Mr Doutch said he was not impressed by Mr Khoury and also disagreed with his opinion. He subsequently sought a third opinion from Mr McQueen. Mr Doutch said he had not seen any of the specialist reports prepared by Mr Kjar, Mr Khoury, Mr Bartlett or Mr McQueen, leaving those matters and management of his claim to his RSL advocate.
The Medical Evidence
Reports of Orthopaedic Surgeon Mr Richard Kjar
Orthopaedic Surgeon Mr Richard Kjar performed both knee replacements on Mr Doutch in 2011.[38] He has provided three medical opinions:
[38] An operation report for the right knee replacement is at Exhibit R1, 19.
(a)The first on 27 September 2016 confirms a diagnosis of osteoarthritis in Mr Doutch’s right knee, which required replacement. But he opined in that report that there was ‘0%’ causation or aggravation as a result of Mr Doutch’s Army service.[39]
[39] Exhibit R1, 106.
(b)Mr Kjar’s second report dated 13 April 2017 states in part:[40]
[40] Ibid, 171.
‘Mr Doutch gave a history to me on his initial consultation regarding his knees on 10 February 2011 of injuring his left knee whilst in military service. He underwent a left knee open meniscectomy at that time.
He subsequently also informed me he had had a right knee arthroscopy sometime later, the injury of which was not the result of his military service.
It is my opinion that Mr Doutch’s right knee condition is not related to his left knee condition.
Although it sounds logical that having many years of a knee injury on one side that this would then affect the other knee, I am not aware of any scientific paper that confirms this conclusion. Furthermore to this, there are significant numbers of patients in my practice that have had a unilateral knee injury for many, many years and have no symptoms or signs suggesting degenerative changes affecting the opposite knee.
Therefore it is my opinion that the left knee injury is a stand alone condition and the right knee condition has not been created or worsened by the left knee condition.
In my history, again taken 10 February 2011, Mr Doutch gave no indication that his right knee condition was related to his military service and indeed the injury he suffered in his right knee was, to my understanding, after he left the military.
Therefore I can find no connection between his right knee condition and his military service’. (emphasis added)
(c)Mr Kjar’s third report dated 20 March 2018[41] confirms that his ‘opinion as to the diagnosis of Mr Doutch’s claimed right knee condition has not changed.’ Mr Kjar states in part:
‘It is my opinion that the etiology of Mr Doutch’s right knee condition is primarily a result of the right knee injury he sustained after he had left military service. I do not believe that his left knee injury has significantly contributed to the etiology of his right knee injury’. (emphasis added)
[41] Exhibit R7.
In his oral evidence, Mr Kjar stated that he had first seen Mr Doutch on 26 February 2010 for right ankle arthritis. He subsequently performed a right ankle arthroscopy to remove a protrusion of bone in Mr Doutch’s right ankle. He had then seen Mr Doutch in 2011. On this occasion Mr Doutch presented with arthritic pain in both of his knees. Mr Kjar performed a left total knee replacement in March 2011, followed by a right total knee replacement three months later, in June 2011. Mr Kjar said he did not record any issues with Mr Doutch’s gait in his notes, even though an assessment of gait is part of the examination he performs. The assessment includes observing the patient as they enter the consultation room and position themselves on the examination couch. Mr Kjar said that if he had observed gait issues, or had Mr Doutch referred to an altered gait since 1969, or persistent right knee symptomology in the decades since, he would have documented it in his notes. Moreover, Mr Kjar said his records showed Mr Doutch did not present with long-standing pain in his right knee over decades, but with pain in the preceding ‘three months only’.
Mr Kjar said Mr Doutch re-presented with problems with his left knee on 28 November 2013, for which Mr Kjar first performed an arthroscopy on 18 December 2013 and then a revision of the left knee replacement in September 2014. He has not seen Mr Doutch since 23 March 2015. He said he didn’t even know altered gait was being claimed as a causative issue in relation to Mr Doutch’s right knee until being asked to provide a medical report in relation to that possibility.
Mr Kjar considers there is no significant causative relationship between Mr Doutch’s left and right knee conditions. He states there are other compelling factors contributing to Mr Doutch’s right knee problem that are unrelated to service. These include a genetic predisposition to arthritis, as evidenced by the fact that Mr Doutch has arthritis in his right ankle, hip, and both knees. Dr Kjar also referred to the history of a previous injury to Mr Doutch’s right knee after he left the Army, for which an arthroscopy was conducted. He considers these are more ‘significant factors’ to explain Mr Doutch’s right knee arthritis. In relation to journal articles referred to by the applicant, Mr Kjar stated he was unaware of scientific proof that arthritis in one knee, of itself, causes arthritis in the other knee and that it was extremely common to have osteoarthritis in both knees.
Mr Kjar agrees with Mr Bartlett’s assessment that Mr Doutch’s right knee condition is constitutional in nature. He stated whether or not Mr Doutch has an altered gait is ‘not relevant’ because he considered other factors were the significant cause of his right knee osteoarthritis. He said that both he and Mr Bartlett were making the same point in dismissing a possible causative link between the left and right knee conditions. The 5 per cent probability Mr Bartlett attributed to altered gait as a possible causative effect, was because it could not be entirely ruled out because of conjecture. Mr Kjar considered there was 0 per cent actual causation or aggravation for the osteoarthritis in Mr Doutch’s right knee from military service.
Mr Kjar disagrees with Mr McQueen’s assessment regarding abnormal gait as ‘a major contributing factor in the development of arthritis in the right knee’.
27 December 2017 Report of Mr John Bartlett
Consultant Orthopaedic Surgeon Mr John Bartlett produced a report dated 27 December 2017,[42] which states in part:
[42] Exhibit R3.
‘…There is another record stating “knee a bit sore over the preceding five years…” Again Mr Doutch insisted that statement is “not true” as he had no symptoms prior to joining the Australian Army.
…
I consider that his right knee and right hip disability is not related to his left knee.
…
The right knee condition appears to have become symptomatic in about 1975 of a gradual onset not related to any specific injury… It is my opinion that his left knee condition did not affect his right knee. His left knee condition would have led to relative inactivity with a reduced walking distance, reduced number of steps per day, reduced walking speed, reduced stride length and all of these dynamic factors reduce load through the opposite knee. A limp protecting the left knee does result in a longer stance phase in the opposite leg with a relative increase of load compared to the injured (in this case left) leg. However the other factors as mentioned result in a reduced load through the “normal” leg and hence this does not accelerate or cause any arthritic process.
…
Mr Doutch stated that he has not sustained any specific injury to his right knee and the development of osteoarthritis can be attributed to constitutional factors.
…
I consider that the 1969-1970 service with the ADF had no significant influence on the development of his right knee condition’. (emphasis added)
In his oral evidence, Mr Bartlett confirmed his opinion that Mr Doutch’s right knee condition was unrelated to his left knee condition. He referred to papers he has authored on individuals with knee osteoarthritis, including after knee replacement surgery, and encompassing gait analysis. Mr Bartlett submits that Mr Doutch’s right knee condition reflects a constitutional or primary osteoarthritis, for which the cause could not be determined over the decades in question. He further stated that ‘any attempt to determine the cause is speculation’. He said he had no personal knowledge of any altered gait arising from Mr Doutch’s surgery in 1969 and had relied on Mr Doutch’s recollections in this regard. Having considered all of the evidence, Mr Bartlett considered that Mr Doutch’s right knee problem was constitutional in nature, stating that having regard for the specific circumstances of Mr Doutch’s case, matched to broader population controls like age, gender, and weight: ‘I could not put it at any more than 5 per cent probability that altered gait made a contribution’. Mr Bartlett explained that he was referring to probability only, and not an actual 5 per cent effect on the right knee arising from any gait issues. The 5 per cent reflected that in medical science, it is often difficult to say something is ‘impossible’.
8 March 2017 Report of Mr Andrew McQueen
In responding to a letter of instruction from Mr Doutch’s advocate dated 1 February 2017,[43] orthopaedic surgeon Mr Andrew McQueen states in part:
‘With an abnormal gait due to his left knee for many years it would be reasonable to consider that this has been a major contributing factor in the development of arthritis in his right knee and hence the requirement for a right TKR’.[44] (emphasis added)
[43] Exhibit R1, 117-118.
[44] Ibid, 119.
In his oral evidence, Mr McQueen discussed first seeing Mr Doutch on 13 July 2017, and then seeing or telephoning him on subsequent occasions in relation to treatment of his knees. Mr McQueen said his assessment was based on experience alone and that he agreed it was ‘a controversial area’. He states that his notes record Mr Doutch’s claim that the pain in his right knee goes back to the 1970s. He described the variables contributing to osteoarthritis as multifactorial, including weight, whether there has been an acute injury, or whether life’s activities had caused excessive strain on the knees. Consequently, it was not possible to put a specific timeframe on the onset or rate of development of osteoarthritis. He agreed with Mr Taylor that altered biomechanics could have been a factor in Mr Doutch’s case. Mr McQueen opined that an abnormal gait had contributed to Mr Doutch’s total knee replacements. However, he agreed this was based entirely on Mr Doutch’s claim that his knees had never returned to normal function in the case of the left knee, after the 1969 operation, and in the case of the right knee, after first noticing pain in 1975.
Mr McQueen agreed that he had never performed surgery on Mr Doutch, or reviewed any of Mr Doutch’s MRIs, his service medical records, the clinical records of Mr Doutch’s general practitioner, or many of the other specialist reports before the Tribunal. The exception being Mr Bartlett’s report and Mr Kjar’s reports dated 13 April 2017 and 20 March 2018. He said that while Mr Kjar and Mr Bartlett were entitled to theirs opinions, he did not agree with them. He maintained there was a contribution from Mr Doutch’s left knee problem, via an altered gait, to his right knee osteoarthritis. Contrary to the views of the other specialists, he considered the open meniscectomy in 1969 was ‘the most significant factor’. When asked whether persistent pain in the right knee since 1975 should have been recorded in medical evidence before April 2016, Mr McQueen stated he could ‘only accept what the patient told me’. When asked what he had recorded in his examinations about Mr Doutch’s gait, Mr McQueen said he ‘did not report on gait specifically, just that Mr Doutch’s knee would not straighten’.
30 January 2017 Report of Mr Elie Khoury
Mr Doutch was referred to orthopaedic surgeon Mr Elie Khoury by his general practitioner. Mr Khoury’s report was lodged with the Tribunal on 26 July 2017[45] by Mr Doutch’s advocate and states in part:
‘I also don’t believe the right knee problem was in any way caused by the left knee in capacity and surgery or disease in that left knee’.
10 June 2016 Diagnosis of Dr Kyaw Lynn[46]
[45] Exhibit R2.
[46] Exhibit R1, 94-95.
In a DVA Injury or Disease Details Sheet, general practitioner Dr Lynn states: ‘Initially injuring the left knee over 40 years ago, which has resulted in an altered walking gait, resulting in increased weight bearing through the right leg’. This is the first reference by a doctor to a causal link between Mr Doutch’s accepted left knee injury and right knee problems. Dr Lynn was not called to give evidence and his opinion was not tested in cross-examination.
26 April 2016 Report of Ms Shelly Harper[47]
[47] Ibid, 90-91.
Exercise Physiologist Ms Shelley Harper notes Mr Doutch’s contention that his left knee injury in 1969 had ‘resulted in an altered walking gait resulting in increased weight bearing through the right leg’. Ms Harper further notes ‘Ken reports right knee pain…’ and in her opinion, it was ‘neither unexpected nor unreasonable that such long term movement compensations and increased weight bearing through the right leg will result in the development of right knee pain’. This is the first chronological reference in the evidence to Mr Doutch’s claim of a causal link between his accepted left knee injury and right knee problems. Ms Harper was not called to give evidence at the hearing and her opinion was not tested in cross-examination.
18 February 2011 MRI[48]
[48] Ibid, 14-15.
In Dr Kjar’s referral for the MRI, it states that Mr Doutch has a ‘past history of right arthroscopy’. In reporting the results of the MRI, Dr Andrew Kong diagnoses: ‘Moderate medial tibiofemoral compartment osteoarthritis associated with complex degenerative tear of the posterior horn of the meniscus…’
18 July 2011 Report of Dr Nathan Pastor[49]
[49] Ibid, 20-25.
Occupational Physician Dr Pastor examined Mr Doutch on 11 July 2011 in relation to his claim for permanent impairment of his compensable left knee condition. This consultation took place in the early part of his rehabilitation from knee replacements in March and June 2011. Dr Pastor recorded that Mr Doutch iced both knees after exercise and used a single point crutch ‘mainly as an insurance policy for the right knee’. Given Mr Doutch was still in the early stages of his post-operative rehabilitation, Dr Pastor was unable to make an accurate assessment regarding long-term impairment/function and recommended review in 6 to 12 months.
Service Medical Record (SMR) (13 September 1969 – 17 September 1970)[50]
[50] Ibid, 180-292.
Mr Doutch’s SMR includes the following:
(a)a letter from orthopaedic surgeon W. Max Wearne dated 4 June 1969 to the National Service Registration Office, stating:
‘This man told me that he had injured his back at work in April 1969. He said that while lifting a heavy wall frame it slipped off a beam and he experienced immediate pain in the lower part of his back. He said that he was off work for approximately three months.
He is now back at work as a carpenter’s apprentice, but says that he avoids heavy duties. He claims to have a mild persistent low backache, but no pains in his legs…’[51]
(b)a description of the circumstances of Mr Doutch’s left knee injury and subsequent diagnosis in August 1969 of ‘Partial Tear Medial Meniscus L) Knee’.[52]
(c)a medical record dated 12 November 1969, which states that Mr Doutch had experienced a sore left knee ‘over the preceding five years’.[53] Mr Doutch disputes that, submitting that he never previously had any knee problems before commencing recruit training.
(d)medical records that show that conservative management of Mr Doutch’s left knee injury was unsuccessful and an Orthopaedic Surgeon recommended surgical repair of the torn cartilage.[54] This was performed on 19 November 1969.[55]
(e)while recuperating from his left knee surgery, Mr Doutch suffered a ‘sudden Grand Mal seizure’[56] on 12 December 1969. A range of tests and specialist examinations followed to accurately determine the diagnosis and cause of the seizure.
[51] Ibid, 229.
[52] Ibid, 181.
[53] Ibid, 218.
[54] Ibid, 218.
[55] Ibid, 185.
[56] Ibid, 209.
On 24 February 1970 Mr Doutch was readmitted to hospital as a result of ‘pain and swelling of the left knee.’[57] A medical record states in part:
‘This patient was admitted 24/2/70 with pain and swelling of the left knee following a meniscectomy 19/11/69.
Examination at the time of admission and subsequently we have been unable to find any abnormality.
He was treated with intensive physiotherapy with only mild improvement.
He is for review in two weeks’.[58]
[57] Ibid, 206.
[58] Ibid, 235.
A Discharge History Questionnaire by Dr D. Prentice dated 24 July 1970 states: ‘L Knee – Still has slight residual disability’.[59] In a box containing 31 issues for medical checking, the examining medical officer is required to tick a box titled ‘Normal’ or ‘Abnormal’, Dr Prentice ticked the ‘Abnormal’ boxes for Mr Doutch’s gait and nervous system.
[59] Ibid, 287.
A Certificate of Discharge records that Mr Doutch was discharged on 19 August 1970 for ‘Being medically unfit’.[60]
[60] Ibid, 292.
RESPONDENT’S CONTENTIONS
The Respondent does not accept that there is a causative relationship between Mr Doutch’s accepted left knee condition and claimed right knee condition. The Respondent relies on the opinions of orthopaedic surgeons Mr Kjar, Mr Khoury and Mr Bartlett.
Mr Nguyen submits that liability for Mr Doutch’s right knee condition doesn’t arise under the 1971 Act, because Mr Doutch could not overcome section 54 of that Act. Mr Doutch reports experiencing pain in his right knee since 1975, but there is no record of him reporting the condition or making a claim until over 40 years later. Moreover, Mr Nguyen contends that in light of Mr Doutch’s prior left knee claims and appeals since 2011, he was aware of the claims application process well before lodging his right knee claim in 2016. Mr Nguyen also referred to the absence of medical records about the claimed right knee condition for the last 40 years, as constituting considerable prejudice for the respondent.
Mr Nguyen referred to section 29 of the 1971 Act, which requires that the accepted left knee condition is a ‘contributing factor’ to the claimed right knee condition. He relied on Treloar v Australian Telecommunications Commission (1990) 26 FCR 316 at [323], in submitting that the contributing factor must be established on the probabilities. He contends that the causal connection Mr Doutch relies upon rises to no more than speculation and conjecture, which does not satisfy the causal connection required in the 1971 Act.
APPLICANT’S CONTENTIONS

Mr Doutch relies on the Applicant’s Statement of Facts, Issues and Contentions dated 4 April 2018. In his closing, Mr Taylor said Mr Doutch had experienced an abnormal gait since the left knee operation in 1969. He handed up copies of:
(a)Re Taylor v Military Rehabilitation and Compensation Commission [2014] AATA 78 (Taylor), to support a submission that Mr Doutch had been ignorant of his rights about making a claim in relation to his right knee;
(b)Re Robertson v Repatriation Commission [1998] AATA 127 (Robertson), in support of a submission relating to clinical onset of Mr Doutch’s right knee condition;
(c)Re Benton v Military Rehabilitation and Compensation Commission [2005] AATA 620 (Benton), in support of the contention that Mr Doutch gave notice of his right knee injury as soon as he became aware of his rights of a disease; and
(d)Lees v Repatriation Commission (2002) 125 FCR 331 (Lees), in relation to a submission about clinical onset.
TRIBUNAL CONSIDERATION
In relation to contested medical opinion, the Tribunal places greater weight on the evidence of specialists compared to general practitioners or allied health staff such as exercise physiologists. In any event, I place little weight on the evidence of Dr Lynn and Ms Harper, who were not called to give evidence at the hearing and whose opinions were not tested in cross-examination.
On the evidence, I do not accept Mr Taylor’s submission that Mr Doutch has experienced ‘an abnormal gait since discharge’. The Discharge History Questionnaire dated 24 July 1970, which was signed by Dr Prentice, noted that Mr Doutch’s left knee ‘still has slight residual disability’.[61] Dr Prentice ticked the ‘Abnormal’ box for gait, confirming it was not normal at the time of discharge. However, there are no medical records before the Tribunal about a persistently abnormal gait over the next forty years, or the unresolved right knee symptomology that Mr Doutch says he became aware of in 1975. It should be reasonably expected that progressively worsening pain from a persistent limp or altered gait would have been explored, diagnosed and recorded during such an extended period of time. While Mr Doutch says he saw a number of doctors about his right knee over the years, he can’t recall who they were and no medical records were provided to the Tribunal. Moreover, his evidence about gait issues and incrementally worsening pain since 1975 is inconsistent with Mr Kjar’s evidence. Mr Kjar states he noted no gait issues worthy of recording in his notes after Mr Doutch’s initial presentation in 2010, and that Mr Doutch did not present with long-standing pain in his right knee over decades, but with pain in the preceding ‘three months only’.
[61] Ibid, 287.
Beyond Mr Doutch’s evidence that he could not undertake all of the tasks required of a carpenter following his discharge from the Army, there is no evidence of incapacity for work. The evidence is of a man who got on with his life after discharge from the Army. He returned to his former trade as a carpenter until 2012 and performed other manual and supervisory roles over time. As explained by Mr Kjar and Mr Bartlett, issues like Mr Doutch’s weight, genetic predisposition, and work as a carpenter between his discharge in 1970 until 2012 is, on the balance of probabilities, likely to have been a factor affecting the development of osteoarthritis in a number of areas of his body.
In relation to the authorities handed up by the Applicant:
(a)Taylor at [31-32] was handed up in support of the submission that Mr Doutch was ignorant of his rights, causing him to delay lodging his right knee claim until 2016. I consider that Taylor is distinguishable on the facts from the present matter.[62] Moreover, the evidence shows that Mr Doutch lodged his initial left knee claim in March 2011 and was aware of the veterans’ claims process from that time, after being ‘led through’ the claims process by the ‘RSL at Yarrawonga’. I do not accept that Mr Doutch was ignorant of his rights or acted without any knowledge of the Act, which were the findings the presiding Member in Taylor relied upon to grant an extension of time.
(b)In relation to Robertson, in support of submissions regarding the clinical onset of Mr Doutch’s right knee condition, I consider Robertson is distinguishable from the present matter.[63] Moreover, the basis on which Mr McQueen considers onset of Mr Doutch’s non-accepted right knee condition as causally linked to the accepted left knee condition, is founded on his ‘experience’ and Mr Doutch’s claims alone. For reasons detailed later, I do not accept Mr McQueen’s conclusions in this regard.
(c)In relation to the Applicant’s submissions relying upon Lees, I consider Lees is distinguishable from the present matter.[64] Mr Doutch’s right knee osteoarthritis was not diagnosed until February 2011,[65] over 35 years after he says he first experienced pain in the joint. There is no corroborating medical evidence relating to worsening pain since 1975 or referring to an asymmetric gait for at least five years before the clinical worsening of osteoarthritis in his right knee joint. Mr Kjar’s evidence is that Mr Doutch presented with right knee pain of a few months duration – not decades. It is not until April and June 2016 that an exercise physiologist and general practitioner refer to an altered walking gait and increased weight bearing through the right leg as causative factors. This has been expressly disavowed by Mr Bartlett, Mr Khoury and, perhaps most importantly, Mr Kjar who performed all of Mr Doutch’s knee surgeries.
(d)I have noted Mr Doutch’s reliance on Robertson at [21-22], which refers to some feature of a disease being required that would enable a doctor to say the disease was present at that time. The presiding Member in Robertson, however, goes on to say at [22]:
‘Dr King said that clinical onset refers to the time when a doctor or a patient becomes aware of problems, which either then or a later stage are determined to have been due to the relevant condition. He also said that there is a clinical onset of a disease when the disease process comes to the awareness of a doctor or a patient’.
In the present matter, Mr Doutch’s claimed awareness of pain in his right knee in 1975 is not accompanied by any report or other medical evidence over the subsequent 35 years, which would enable a reliable finding about clinical onset.
(e)In relation to the Applicant’s submissions citing Benton, to support the contention that Mr Doutch gave notice of his right knee injury as soon as he became aware of his rights, I consider Benton is distinguishable on the facts from the present matter.[66] On the evidence, I am not satisfied that Mr Doutch gave notice of the contraction of his right knee condition as soon as practicable after becoming so aware. He claims to have noticed pain in his right knee since 1975, causing him to consult doctors whose details he cannot recall and from whom no medical records are available for the Tribunal’s consideration. Almost four decades have passed since he claims to have first become aware of symptomology in his right knee. In those circumstances, significant prejudice arises for the Respondent from Mr Doutch’s failure to give notice of his right knee condition either in 1975, or when he says he became aware of the veterans’ claims process in 2011. Instead, Mr Doutch did not submit a claim for his right knee until 2016.
[62] Taylor is an extension of time matter, relating to an ankle injury the applicant claimed had occurred some 30 years previously – not an injury to a co-lateral joint arising from compensatory weight bearing over a period of 40 years after discharge and without any medical evidence. While there is an absence of medical records in Taylor (at [9]), there is evidence from a former military colleague and the Senior Instructor that Mr Taylor injured his ankle during training (at [6]). Moreover, further evidence was potentially being sourced prior to the hearing of the substantive matter in Taylor (at [35]). It is also clear that the sole issue before the Senior Member constituting the Tribunal in Taylor was whether it was reasonable to grant an extension of time (at [16]) – not to rule on the substantive application. Finally, the reason why the applicant in Taylor did not submit a compensation claim was because he had suffered a sprain in his ankle and thought it would recover (at [33]), whereas Mr Doutch’s claimed right knee injury was not suffered during service, but he seeks to causally link it to another injury during service.
[63] Robertson relates to an application for a widow’s pension for a veteran with operational service and in respect of ischemic heart disease.
[64] Lees relates to an application by a veteran for a number of psychological and physical conditions arising from operational service. The Court found that the Tribunal did not consider medical evidence relating to clinical onset (at [25]). In the present matter, there is an absence of medical evidence regarding clinical onset to consider.
[65] Exhibit R1, 15.
[66] Benton related to a compensation claim for ‘mental stress due to bastardisation…’, which had occurred early in the twenty year career of a sailor in the Royal Australian Navy.
In referring Mr Doutch for an MRI in 2011, Mr Kjar mentions a past history of right knee arthroscopy for an unspecified injury occurring after Mr Doutch’s military service. Neither Mr Kjar, Mr Bartlett nor Mr Khoury discern a link between Mr Doutch’s left and right knee conditions. Mr McQueen’s reference to such a link and opinion about clinical onset are entirely based on the recollections of Mr Doutch, for which there is no corroborating medical evidence in over 35 years.
The Tribunal accepts that on discharge, Mr Doutch had an abnormal gait resulting from unresolved symptoms after his left knee meniscectomy. The expert medical evidence is that this was not uncommon, with meniscectomies in the 1960s and 70s being a lot more intrusive than the arthroscopic procedures subsequently developed. Recovery periods were much longer from intrusive surgeries. Nonetheless, there is an absence of any medical evidence after the discharge medical report in 1969 until an MRI on 18 February 2011 confirmed osteoarthritis in the right knee. Moreover, Mr Kjar states there was a past history of arthroscopy in the right knee which his notes say occurred after Mr Doutch’s discharge. Mr Doutch’s presentation to Mr Kjar is also recorded as a three-month history of pain in the right knee, not incrementally worsening knee pain since 1975.
The Tribunal accepts the opinion of orthopaedic surgeon Mr Kjar, supported by the opinions of Mr Bartlett, and Mr Khoury, over that of Mr McQueen. Mr Kjar performed right ankle surgery on Mr Doutch, both knee replacements in 2011, and left knee revision surgery in 2014. He has the most extensive personal knowledge of Mr Doutch’s medical history to draw upon compared to the other specialists. Both Mr Kjar and Mr Bartlett dealt comprehensively with the Applicant’s medical history in their reports. This encompassed consideration of the possibility that Mr Doutch’s right knee condition was a long-term sequela of his accepted left knee condition. Both dismiss this possibility as remote, acknowledging it because in medical science little can be completely discounted. Their opinions are supported by Mr Khoury.
Only Mr McQueen opines that it may be ‘reasonable to consider’ that Mr Doutch’s left knee condition has been a contributing factor in the development of osteoarthritis in his right knee. Mr McQueen’s consultations with Mr Doutch were initiated by a letter of instruction from Mr Doutch’s advocate.[67] This letter of instruction contains the applicant’s assertions alone that ‘the initial injury to his left knee… subsequently altered his gait’, and that ‘according to Mr Doutch’s GP (Dr Kyaw Lynn), Mr Doutch’s gait changed due to his accepted left knee condition’. There is no independent, objective evidence that these assertions rest upon. Moreover, Mr McQueen’s single page letter and the single sentence he devotes to the issue of a potential connection between the left and right knee conditions, is superficial at best. The letter does not reflect the comprehensive history taken by other specialists. I therefore place little weight on Mr McQueen’s opinion in this matter. The preponderance of influential expert medical opinion, which I accept, is against Mr Doutch.
[67] Exhibit R1, 117-118.
I find on the balance of probabilities that Mr Doutch’s left knee condition is a standalone condition, and the right knee condition was not caused or worsened by the left knee or the Applicant’s military service. The settled jurisprudence is that an Applicant seeking to have an administrative decision changed is invited to demonstrate why that should be. I note from the evidence that the first reference to the altered gait Mr Doutch seeks to rely upon as causing the osteoarthritis in his right knee, is in April and June 2016. The only specialist support for that causal connexion is Mr McQueen, who is entirely reliant on Mr Doutch’s claims.
In contrast, Mr Kjar’s evidence is that such long-standing symptomology in the right knee, arising as a consequence of compensatory weight bearing from a left knee condition in 1969, would have certainly been medically recorded during the subsequent 35 years. The medical history taken by Mr Kjar refers to a right knee injury sustained by Mr Doutch after leaving the Army, and which required an arthroscopy. It is particularly noteworthy that Mr Kjar, who performed all of the surgery on Mr Doutch’s knees, made no record in his notes of an altered walking gait at any of their consultations. Mr Kjar also recorded that Mr Doutch’s right knee problem related to pain in the previous three months, not the previous three decades.
I accept the evidence of Mr Kjar and Mr Bartlett that there are constitutional factors like body weight, occupational effects over time, and a genetic predisposition to osteoarthritis which has been diagnosed in both of Mr Doutch’s knees, his hip and right ankle. I note in this regard, Mr Doutch sustained his left knee injury approximately seven weeks after commencing recruit training. He left the Army approximately a year later to return to his pre-military trade. He has since worked predominantly as a carpenter until 2012, but also as an estimator, supervisor, taxi driver, and currently as a console operator. I accept the influential weight of specialist medical opinion, particularly that of Mr Kjar and Mr Bartlett, that any attempt to specifically attribute cause over such a long period of time constitutes speculation. On the balance of probabilities, the Tribunal considers it more likely that Mr Doutch’s work roles over the last 40 years, coupled with the constitutional factors highlighted by Mr Kjar and Mr Bartlett, contributed to the development of right knee osteoarthritis, as opposed to compensatory weight bearing over almost four decades due to a left knee operation in 1969.
For the reasons previously adduced, the Tribunal places little weight on Mr McQueen’s opinion in this matter. Mr Bartlett assesses no more than a 5 per cent probability of Mr Doutch’s left knee operation contributing to his right knee condition. I note in this regard the Full Court’s decision in Treloar v Australian Telecommunications Commission[68] at [323], which states that ‘unless it is established by evidence that features of the employment did in fact…contribute to the condition complained of,’ they are not a contributing factor. The evidence before me from Mr Kjar, Mr Bartlett and Mr Khoury is compelling in this regard. In contrast, the lack of any medical evidence in the period since the left knee meniscectomy in 1969 renders the Applicant’s contention about a causal connection as speculative at best. It cannot be said therefore, that there is a sufficient basis to find that service was a contributory factor to Mr Doutch’s contraction of osteoarthritis in his right knee within the meaning of section 29 of the 1971 Act.
[68] (1990) 26 FCR 316.
Mr Doutch says he first noticed problems with his right knee in 1975, but he did not submit a claim for his right knee until June 2016, over 40 years later. There is no independent, objective evidence during the intervening period to support his claims about the causal link he now seeks to establish.
The Tribunal finds from the evidence that Mr Doutch was aware of the veterans’ claims process since 2011, when he first lodged a claim for his left knee. He succeeded in having his left knee condition accepted as service-caused and received compensation for permanent impairment and non-economic loss. The Tribunal does not accept that Mr Doutch was ignorant of his entitlement to claim for his right knee until five years later in 2016. I find that no claim was served on the then Commissioner by Mr Doutch, as required by section 54 of the 1971 Act in the case of a disease, within six months of becoming aware of the right knee problem in 1975 or, even on a generous reading of his evidence, after he became aware of his right to claim in 2011. In any event Mr Kjar, who performed all of the surgeries on Mr Doutch’s knees, and is best placed to comment on any connection arising from gait, provides no assistance to Mr Doutch’s claim.
CONCLUSION
The Tribunal is not satisfied on the balance of probabilities that a causal relationship exists between Mr Doutch’s accepted left knee condition and the development of his right knee condition. The Tribunal accepts the evidence of Mr Kjar, Mr Bartlett and Mr Khoury, in preference to the opinion of Mr McQueen.
DECISION
It therefore follows that the decision under review is affirmed.

I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

.....[sgd]..............................................
Associate
Dated: 12 October 2018

Date(s) of hearing: 30-31 August 2018

Advocate for the Applicant:
Hume Veterans Information Centre
Mr Wayne Taylor

Solicitors for the Respondent: Sparke Helmore Lawyers
Mr Nam Nguyen

[2018] AATA 3812

31 August 2018

Key Legal Topics

Areas of Law

Administrative Law

Statutory Interpretation

Legal Concepts

Appeal

Causation

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	30-31 August 2018
Advocate for the Applicant:	Hume Veterans Information Centre Mr Wayne Taylor
Solicitors for the Respondent:	Sparke Helmore Lawyers Mr Nam Nguyen