Edwards and Repatriation Commission
[2005] AATA 624
•29 June 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 624
ADMINISTRATIVE APPEALS TRIBUNAL )
) No S2003/545
VETERANS' APPEALS DIVISION ) Re VICTOR STUART EDWARDS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr JG Short (Member)
Dr ET Eriksen (Member)Date29 June 2005
PlaceAdelaide
Decision The Tribunal sets aside the decision under review, and substitutes a decision that Mr Edwards’ chondromalacia patellae (right) be accepted as defence-caused with effect from 12 March 2002. The Tribunal directs that the assessment of Mr Edwards’ entitlement, following acceptance of this condition, be remitted to the Repatriation Commission for consideration.
(Signed)
JG SHORT
(Member)
CATCHWORDS
VETERANS' AFFAIRS – veterans’ entitlements – Disability Pension – defence service with Royal Australian Air Force – chondromalacia patellae (right) – reasonable satisfaction test – decision set aside
Veterans’ Entitlements Act 1986 ss 5S, 68, 70, 120, 120B
Re Lee and Repatriation Commission (1986) 11 ALD 68
Statement of Principles Instrument No 34 of 2001
REASONS FOR DECISION
29 June 2005 Mr JG Short (Member)
Dr ET Eriksen (Member)background
1. Mr Edwards served in the Royal Australian Air Force (the Air Force) from 7 January 1966 until 17 May 1987. His “defence service” as defined in the Veterans’ Entitlements Act 1986 (the Act) was from 7 December 1972 until 17 May 1987.
2. On 12 June 2002 Mr Edwards lodged a claim for pension for conditions including “knee problems”. Mr Edwards’ knee condition was diagnosed as chondromalacia patellae of the right knee, and on 18 November 2002 the Repatriation Commission (the Commission) rejected the claim. On 12 February 2003 Mr Edwards lodged an application for review by the Veterans’ Review Board (the VRB). On 30 June 2003 the VRB affirmed the decision and notified Mr Edwards of its decision by letter dated 4 July 2003. On 29 September 2003 Mr Edwards lodged an application with this Tribunal seeking a review of the Commission’s decision.
legislation
3. Section 68 of the Act provides:
“(1) In this Part, unless the contrary intention appears:
…
defence service means:
(a)continuous full-time service rendered as a member of the Defence Force on or after 7 December 1972 and before the terminating date; and
…”
4. In respect of Mr Edwards’ defence service s 120(4) of the Act provides that the standard of proof is the “reasonable satisfaction” of the Tribunal:
“120(4) Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note: This subsection is affected by section 120B.”
5. Since the claim for pension was lodged after 1 June 1994, s 120B of the Act applies, and the decision-maker is to assess to its reasonable satisfaction whether the applicant meets the criteria in accordance with any statement of principles (SoP) issued by the Repatriation Medical Authority (RMA).
6. Section 120B of the Act relevantly provides:
“…
(3)In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force:
(i)a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
(4)Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(3), nor declared that it does not propose to make such a Statement of Principles, in respect of:
(a) the kind of injury suffered by the person; or
(b) the kind of disease contracted by the person; or
(c) the kind of death met by the person;
as the case may be.”
7. In this matter it was contended by both parties that the appropriate SoP was Instrument No 34 of 2001 relating to chondromalacia patellae.
the applicant’s case
8. Mr Hemsley told the Tribunal that it was his client’s contention that his right knee problem is appropriately diagnosed as chondromalacia patellae, and that it is related to Mr Edwards’ period of eligible service through factors 5(b) or (c) or 5(e) or (f), which read as follows:
“…
(b)suffering an injury to the affected knee resulting in meniscal damage or permanent ligamentous instability within the three months immediately before the clinical onset of chondromalacia patellae; or
(c)suffering abnormal tracking of the patella of the affected knee at the time of the clinical onset of chondromalacia patellae; or
(d)…
(e)suffering an injury to the affected knee resulting in meniscal damage or permanent ligamentous instability within the three months immediately before the clinical worsening of chondromalacia patellae; or
(f)suffering abnormal tracking of the patella of the affected knee at the time of the clinical worsening of chondromalacia patellae or
…”
9. Mr Hemsley suggested that Mr Edwards either sustained chondromalacia patellae as a result of an injury to his right knee experienced on or about 25 February 1986 when stepping from or into a vehicle (the February 1986 incident), or in the alternative sustained chondromalacia patellae prior to eligible service, which was made clinically worse as a result of the February 1986 incident. Mr Hemsley referred to a reference in Mr Edwards’ service records to an injury to his right knee in February 1986. He also suggested that expert medical opinion evidence from Orthopaedic Surgeon, Dr N Cullen, supported his contention that the February 1986 incident either caused or clinically worsened, Mr Edwards’ chondromalacia patellae.
10. Mr Edwards said that he had joined the Air Force at age 17 years, and had not previously had any trouble with his knee. He said that prior to joining the Air Force he had not played much sport. However he said that he enjoyed service sport, playing union football, volleyball, soccer and to a lesser extent, Australian rules and league football. He also said that he was a keen runner. He explained that the Air Force expected its members to remain fit, and that playing sport was the preferred method of doing so.
11. Mr Edwards was referred to references contained in the service documents to an injury to his right knee sustained while playing sport in 1969 or 1970. There was no contemporaneous record of treatment for any such injury, however there were later recorded references of statements made by Mr Edwards to such an injury. Mr Edwards said that he recalls that his right knee gave him significant trouble while undertaking his sporting activities. He said that he managed his knee problem by wearing a knee brace and applying a regime of rest and then gradually increasing exercise after any acute episode of right knee pain.
12. Mr Edwards said that the first specific injury to his right knee which he can now recall was an injury which is recorded in his service records dated 25 February 1986 as follows:
“While stepping out of a car yesterday lunch time twisted his R knee o/e - no effusion - mild tenderness over medial ligament – flexion √ Ext √ Lat. Stress test ? painful – PD medial ligament sprain – Rx knee guard and Dencorub – light duties x 1 week.” [T14/105]
13. Mr Edwards said that all he can now remember of the February 1986 incident was that it occurred while he was stationed at 1 Central Ammunitions Depot. He said that he recalls being in front of the Officers’ Mess and being required to drag himself up on a nearby car, which he may have used to travel from his place of work to the Officers’ Mess or be about to use to return to work. He also recalls feeling embarrassed that he had stumbled or fallen or twisted his knee. Mr Edwards said that he has little if any other remaining independent memory of this incident which occurred nearly 20 years ago. He did say that at the time, he was stationed at a very busy Base, and attempted to use his previously successful methods of recovering from acute right knee episodes, he said however that on this occasion these methods did not work. He said that after the February 1986 incident he was no longer able to play competitive squash, his knee ached on driving, and he had difficulties climbing up and down steps.
14. In cross-examination, Mr Crowe suggested to Mr Edwards that his right knee problem, following the February 1986 incident, could not have been very bad as it was not until approximately 12 months later that Mr Edwards began a course of investigation and eventual treatment for his condition. Mr Crowe suggested that an inability to find time for such treatment could not have been the reason for the delay as Mr Edwards’ service records contain a number of references to seeking treatment for other conditions. He particularly referred to two hospital admissions, one in respect of suspected tonsillitis, and the other for toe surgery. Mr Edwards said that when he was admitted to hospital it was the presenting conditions which were discussed and treated.
15. Mr Edwards said that following the February 1986 incident his right knee became progressively worse. Service records indicate that in February 1987 Mr Edwards was referred for x-ray examination and for consideration by an orthopaedic surgeon. The reference reads as follows:
“This member has a history extending back to 1969 ex etseq of pain in his R knee under stress in sport and recreation. He also finds it pains on long drives. The origins cannot be pin pointed but are presumably due to accidents and over use in football and squash. Would you please see him and advise.” [T4/27]
16. A report dated 11 March 1987 describes Mr Edwards’ symptoms as:
“Anteromedial pain climbing stairs. No locking. Aggravated by walking, driving.
PAST: football injuries
O/E Patellofemoral irritability. X Ray Normal.
PDx Patellofemoral Arthralgia for P/T.” [T4/27]
17. On 16 March 1987 a physiotherapist is reported to have requested a knee guard for Mr Edwards. The same physiotherapist later provided a course of strengthening and stretching exercises. On 26 March 1987 Mr Edwards’ Discharge Statement records an injury to his right knee.
18. In cross-examination, Mr Crowe suggested to Mr Edwards that further indications that the February 1986 incident could not have been significant included the facts that in 1996, when making his first claim for acceptance of conditions, including his right knee condition, Mr Edwards simply referred to service sport, and not to any incident having occurred in 1986. In his second claim dated 13 May 2002, Mr Edwards referred to “Further trauma from service sport 1987”. Mr Crowe pointed out that Mr Edwards did not specifically refer to the February 1986 incident. Mr Edwards said that as his memory of the February 1986 incident was sparse, he probably referred to 1987 as a date of further injury, simply noting that the references contained in his service records to a right knee injury were dated 1987.
expert opinion evidence
19. Dr N Cullen was called by Mr Edwards to provide evidence of the genesis and diagnosis of Mr Edwards’ right knee condition. Dr Cullen told the Tribunal that she first saw Mr Edwards in February 2002 at the request of his local medical officer. She said that at that time she recommended non-operative measures. She said that those measures were initially successful, but on 8 April 2004, following a further aggravation of his right knee condition, she used an arthroscope in order to look inside Mr Edwards’ right knee (this was performed on 17 June 2004). Dr Cullen said that the arthroscopy showed that Mr Edwards did suffer from chondromalacia patellae of his right knee. She referred particularly to a softening of the cartilage of the patella which was associated with a recurrent chronic patellofemoral pain. Dr Cullen also expressed the opinion that it was more likely than not that Mr Edwards had initially injured his right knee in or about 1969/1970. She also said that the incident recorded in Mr Edwards’ service records dated 25 February 1986 was the type of incident which she believes is more likely than not to have caused a clinical worsening of the pre-existing condition. In her most recent report, dated 17 June 2004, at page 5 she made the following comment:
“…
The findings at arthroscopy support the diagnosis of chondromalacia patella with softening and fibrillation of the patellofemoral joint. The findings were in keeping with the spectrum of patellofemoral pain.
…
The twisting injury resulting in a medial collateral ligament strain and clinical worsening of the chondromalacia patella as documented in 1996 [sic] falls within the definition of subset (f) of paragraph 5 “suffering abnormal tracking of the patella of the affected knee at the time of clinical worsening of the chondromalacia patella.
…” [Exhibit A1]
20. In answer to a question put to Dr Cullen by the Presiding Member, Dr Cullen said that she considers the injury in 1986 to have been more than simply a flare-up or acute episode of symptoms associated with a pre-existing condition. She said that she considered that an injury occurred in 1986 which permanently worsened the course the injury would normally have taken.
consideration
21. The Tribunal considered all of the evidence before it. It noted Mr Crowe’s suggestion that the February 1986 incident was unlikely to have been significant, given that the service records do not contain any reference to Mr Edwards seeking treatment from a doctor after the initial report of injury, until early the following year. The Tribunal also noted Mr Crowe’s reference to the date of onset and likely cause of injuries provided by Mr Edwards in his two claims for acceptance of his right knee condition. The Tribunal formed the view that it was more likely than not that Mr Edwards’ right knee was first damaged prior to 1972, probably in 1969 or 1970. The Tribunal noted that Mr Edwards managed his right knee symptoms by rest and then increasing exercise, and indeed managed to continue to play competitive squash, along with other sporting activities until the February 1986 incident. The fact that Mr Edwards has little recollection of the February 1986 incident is, in the Tribunal’s view, perhaps explained by the fact that nearly 20 years have now passed, and that Mr Edwards suffered a number of acute episodes relating to his right knee from about 1969 onwards. None of these other episodes of right knee pain however appear to have been sufficiently concerning to Mr Edwards to have caused him to seek medical investigation and treatment. However, according to Mr Edwards, and the Tribunal found Mr Edwards to be a credible witness, the usual treatment he had successfully applied in the past was no long effective after the February 1986 incident. The knee did not respond adequately to rest and then increasing exercise, and in 1987 Mr Edwards underwent specialist examination and treatment for his right knee condition. The Tribunal found Dr Cullen to be a valuable witness. Her expertise was unquestioned. She examined Mr Edwards' medical records and formed the view that the type of injury he experienced in 1986 was just the type of injury which is likely to have involved Mr Edwards “suffering abnormal tracking of the patella of the affected knee at the time of clinical worsening of chondromalacia patellae”. Dr Cullen is the only person to have seen inside Mr Edwards’ knee, and although there will always remain some doubt as to the precise process by which Mr Edwards’ right knee sustained it’s now presenting pathology, the Tribunal has accepted Dr Cullen’s expert medical opinion and has found, on the balance of probabilities, that Mr Edwards satisfies factor 5(f) of the Statement of Principles described in Instrument No 34 of 2001 relating to chondromalacia patellae. As a consequence, this condition should be accepted as defence-caused. The Tribunal considers it appropriate in this case to grant Mr Hemsley’s request that assessment of Mr Edwards’ accepted conditions, now including right chondromalacia patellae, be remitted to the Commission.
decision
22. The Tribunal sets aside the decision under review, and substitutes a decision that Mr Edwards’ chondromalacia patellae (right) be accepted as defence-caused with effect from 12 March 2002. The Tribunal directs that the assessment of Mr Edwards’ entitlement, following acceptance of this condition, be remitted to the Repatriation Commission for consideration.
I certify that the 22 preceding paragraphs are a true copy of the reasons for the decision herein of Mr JG Short (Member) and Dr E Eriksen (Member)
Signed: ..................J Coulthard.................................
AssociateDate/s of Hearing 4 May 2005
Date of Decision 29 June 2005
Counsel for the Applicant Mr G Hemsley
Solicitor for the Applicant Graeme D Hemsley
Counsel for the Respondent Mr A Crowe
Solicitor for the Respondent DVA
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