Haensel and Repatriation Commission
[2005] AATA 1254
•16 December 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1254
ADMINISTRATIVE APPEALS TRIBUNAL )
) No A2005/86
VETERANS' APPEALS DIVISION ) Re GARRY HAENSEL Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr S. Webb, Member Date16 December 2005
PlaceCanberra
Decision The decision under review concerning algodystrophy is set aside and in substitution thereof the Tribunal determines that Mr Haensel’s left knee arthralgia is defence-caused.
The decision under review concerning non-Hodgkin’s lymphoma is affirmed.
The matter is remitted to the Commission to determine the degree of Mr Haensel’s incapacity and the applicable rate of pension consistent with these reasons.
..............................................
Mr S. Webb, Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Disability Pension - defence service – non-Hodgkin’s lymphoma – decision affirmed - uncertain diagnosis of left knee condition – algodystrophy - patello-femoral arthralgia – issue of causation – reasonable satisfaction standard of proof – decision set aside
Veterans' Entitlements Act 1986 ss 5D, 68, 70, 120
Benjamin v Repatriation Commission [2001] FCA 1879
Repatriation Commission v Smith (1987) 74 ALR 537
East v Repatriation Commission (1987) 74 ALR 518REASONS FOR DECISION
16 December 2005 Mr S. Webb, Member 1. By this application Garry Haensel is seeking relief from a decision of the Repatriation Commission (“Commission”), as affirmed by the Veterans’ Review Board (“VRB”) on 9 November 2004, to reject his claim for acceptance of non-Hodgkin’s lymphoma and algodystrophy as defence-caused.
2. The matter came on for hearing in Canberra on 24 November 2005. Mr Haensel represented himself. The Commission was represented by Mr N. Bunn, Commission advocate. Mr Haensel and Dr William Coyle, Orthopaedic Surgeon, gave oral evidence. Materials were tendered and labelled as exhibits.
issues for determination
3. Mr Haensel informed me at the outset of the hearing that he was not challenging the Respondent’s decision to reject his claim in relation to non-Hodgkin’s lymphoma. It follows, therefore, that the decision under review concerning non-Hodgkin’s lymphoma will be affirmed.
4. The issues for determination by the Tribunal are whether Mr Haensel’s claimed left knee condition, identified as ‘algodystrophy’, is defence-caused and the appropriate rate of pension that is payable.
5. Mr Haensel agreed that if his claim in relation to his left knee is unsuccessful there is no basis for reassessment of the rate of his pension.
factual context
6. Having carefully considered all of the material placed before me and the oral evidence of Mr Haensel I make the following findings of fact.
7. Mr Haensel (date of birth: 10 April 1950) enlisted in the Royal Australian Air Force (“RAAF”) on 24 January 1968 and was discharged on 9 July 2000. He has defence service within the meaning of section 68 of the Veterans’ Entitlements Act 1986 (“the Act”) from 7 December 1972 to 9 July 2000. Mr Haensel suffers from bilateral sensorineural hearing loss with tinnitus that was accepted as defence-caused on 9 April 2003. His present rate of pension is 30 percent of the General Rate.
8. Mr Haensel injured his left leg as a child, requiring sutures to a cut below the knee. That injury healed without apparent complications and is identified by scar tissue. I accept Dr Coyle’s evidence that the level of the scar tissue, being below the left knee, indicates that there is no causative relationship between the childhood injury and Mr Haensel’s present symptoms, and so find.
9. Mr Haensel played Australian Rules Football on service until 1971. He was required to maintain a level of physical fitness sufficient to pass an annual fitness assessment in accordance with Australian Defence Force policy (see Exhibit A1).
10. Mr Haensel asserted that while undertaking exercise on service he tripped and fell on a number of occasions (see Exhibit A2). His oral evidence was that he usually fell to his left side, having been taught to do so as a child in football training. Mr Haensel stated that he recalls hurting his left knee in such falls but did not obtain medical treatment because the defence culture was to “get on with the job” and his injuries did not prevent him from doing so. He could not be precise in his evidence concerning the dates or circumstances or frequency of such alleged falls and any resultant injuries. However, he gave evidence of falling on two occasions that he did recall: the first occurred in the period from 1985 to 1987 while running on the tan track in the Botanic Gardens in Melbourne, when he tripped over a tree root and grazed his left knee; the second occurred in the period from 1997 to 2000 in Canberra while running on the Lake Burley Griffin circuit, when he tripped on a gutter and fell onto hard paving, grazing his left knee and arm.
11. Mr Haensel was cross-examined on these points and, even though his memory was imprecise, his reliability as a witness was not challenged. I am satisfied that Mr Haensel is a witness of truth, even though he has problems with his memory and his evidence must be treated with some caution for that reason. Nonetheless, I am reasonably satisfied and find that Mr Haensel fell onto his left knee on at least two occasions during the period of his eligible service, causing minor injury in the form of grazing and bruising that did not require medical treatment at the time.
12. Mr Haensel estimated that he started experiencing pain and difficulties with his left knee in or about 1980, but did not obtain medical treatment at that time. The Respondent did not challenge that evidence and I accept it. The first clinical record of Mr Haensel obtaining medical treatment in relation to his left knee complaint, however, is on 29 October 1990 (T3 folio 4). In the years thereafter until his discharge in July 2000 the medical records reveal that he complained of intermittent left knee pain and obtained pharmacological and physiotherapy treatment (see T3 folios 5, 6, 10-23). I note in passing that Mr Haensel complained of bilateral knee pain of one month’s duration on 12 July 1994 (T3 folio 20).
13. On 18 April 2000 Mr Haensel underwent a medical examination prior to discharge from the RAAF. That examination indicated a preliminary diagnosis of left knee neuroma (T3 folios 8-9). An X-ray conducted on 26 April 2000 returned normal findings (T3 folio 7).
14. In 2002 Mr Haensel experienced symptoms of vertigo, dizziness and loss of balance and non-Hodgkin’s lymphoma was diagnosed in December 2002. The lymphoma was successfully treated in the period to 2004.
15. On 16 October 2003 Dr Edwin Cassar, Consultant Physician, reported that clinical examination did not support a diagnosis of left knee neuroma but that clinical “tests were … indicative of ‘Algodystrophy’ diagnosis of left knee” (see report by Dr Wes Cormick at T8 folio 66). Dr Cassar noted, however, that “the actual aetiology [of algodystrophy] is indeterminate as it is usually preceded by traumatic injury to the joint and there is no such history in respect of the left knee that the veteran could indicate” (T8 folio 61).
16. On 28 June 2005 Dr William Coyle, Orthopaedic Surgeon, reported that the diagnosis of Mr Haensel’s left knee condition “is uncertain. But possibly left knee patello femoral arthralgia” (Exhibit R1, p3). Dr Coyle stated in his oral evidence that he was not familiar with the term ‘algodystrophy’ but noted that he would expect the symptoms of a pain syndrome to be more continuous than the intermittent pain experienced by Mr Haensel. In his oral evidence Dr Coyle accepted that if Mr Haensel repeatedly fell onto his left knee with sufficient force to cause grazing, then as a matter of probability those minor impact traumas to the left knee may have contributed to cause arthralgia.
legislation and law
17. Under the Act the Commonwealth is liable to pay a pension by way of compensation to a veteran who is incapacitated by a defence-caused injury or disease (s.70(1)). An injury or disease is taken to be defence-caused, inter alia, if it “arose out of, or was attributable to” any eligible defence service (s.70(5)) rendered by the veteran.
18. The first step for the Tribunal is to determine whether the claimed “injury” or “disease” is consistent with the definitions of those terms at s.5D. Questions of diagnosis are to be determined according to the “reasonable satisfaction” standard of proof (s.120(4)) before considering whether there is a relevant Statement of Principles (“SoP”) that applies. The Full Federal Court in Benjamin v Repatriation Commission [2001] FCA 1879 stated at paragraph 55:
“The first question for the Tribunal will be how to characterise the psychiatric problems exhibited by the Veteran. If the Tribunal is satisfied that the symptoms constitute an injury or disease, the second question will be whether there is an SoP in force in respect of the disease. The diagnosis of that disease, and the determination of whether or not there is an SoP in force in respect of that kind of disease, falls for determination according to the standard of proof laid down in s.120(4). The characterisation of a disease (or injury or death in an appropriate case), for the purposes of determining whether or not an SoP is in force in respect of that kind of disease (or injury or death), is separate from the question of whether a claim relates to the operational service rendered by a veteran within s.120(1).”
19. Beaumont J discussed the meaning of the term “reasonable satisfaction” in Repatriation Commission v Smith (1987) 74 ALR 537 and observed at 547:
“There is, in this connection, a distinction of substance to be drawn between probabilities on the one hand and mere possibilities, even if they are real as distinct from fanciful, on the other.”
20. The standard of proof to be applied in relation to claims under Part IV involving defence service (s.68) (other than in a peacekeeping force or involving hazardous service) is the “reasonable satisfaction” standard (s.120(4)) (East v Repatriation Commission (1987) 74 ALR 518). For claims brought after 1 June 1994 reference is to be had to any relevant SoP and the state of reasonable satisfaction will only be achieved if the material before the Commission raises a connection that is consistent with that SoP (s.120B).
consideration
21. The first issue is one of diagnosis. Plainly, on the medical evidence, there is difficulty diagnosing Mr Haensel’s intermittent left knee symptoms with any degree of certainty. Dr Cassar found evidence of altered vascularity in the left knee on examination that he considered to be consistent with a diagnosis of ‘algodystrophy’, ruling out a diagnosis of neuroma. However, Dr Cassar observed that ‘algodystrophy’ “is usually preceded by traumatic injury to the joint”, but found no such joint injury in Mr Haensel’s case. Mr Haensel asserted that the falls he sustained on service constituted sufficient trauma to his left knee to support a diagnosis of ‘algodystrophy’. Dr Cassar was not called to give evidence. I must rely on the contents of his written report (T8), in which he states that Mr Haensel could not indicate a history of trauma to his left knee joint to cause ‘algodystrophy’, in consequence of which Dr Cassar concluded that the cause (aetiology) of the ‘algodystrophy’ was indeterminate. If Mr Haensel intended to challenge Dr Cassar’s expert opinion concerning these points he should have called him to give evidence.
22. Dr Coyle was not familiar with the term ‘algodystrophy’, suggesting that any such diagnosis may be controversial. On the basis that ‘algodystrophy’ refers to a form of pain syndrome (I note that a Departmental Medical Officer described ‘algodystrophy’ as a form of reflex sympathetic dystrophy (T9 folio 67)), Dr Coyle’s evidence, which I accept, was that he would expect greater continuity and consistency of symptoms than the intermittent symptoms complained of by Mr Haensel.
23. In Dr Coyle’s assessment, considering the symptoms and the radiological findings, left knee patello femoral arthralgia was a possible diagnosis. In the Respondent’s submission, on the evidence, a diagnosis of arthralgia is to be preferred to a diagnosis of ‘algodystrophy’. Considering the medical evidence, I agree with that submission and am persuaded, to the reasonable satisfaction standard, to accept Dr Coyle’s tentative patello femoral arthralgia diagnosis of Mr Haensel’s left knee condition. However, given the uncertainty attaching to that diagnosis, I will proceed to consider issues of defence-causation in relation to both diagnoses.
24. The Repatriation Medical Authority has not determined a Statement of Principles for patello femoral arthralgia or for ‘algodystrophy’.
25. In either case, the medical evidence is that repetitive trauma to the knee joint may be causative. On Mr Haensel’s evidence, I am reasonably satisfied that he first experienced symptoms in his left knee in or about 1980. That occurrence predates by at least five years the two falls that Mr Haensel recalled in his evidence. It cannot be said, therefore, that those two falls caused the symptoms in his left knee in 1980. It is possible that Mr Haensel fell over and hurt his left knee on a number of occasions prior to 1980. He claims that he did, but cannot now recall any specific incidents. Mr Haensel asserted that he would have landed on his left knee repeatedly playing football prior to 1971. However, any such incidents are outside the period of his eligible defence service. He asserted that he would have fallen on his left knee while playing cricket on service in 1971-1972 and 1978-1980, and “while marching through the bush carrying packs” and “while running round blocks and ovals”, but he could not recall any specific incidents of falling and hurting his left knee.
26. Mr Haensel’s evidence was that his left knee condition had not changed substantially over time. However, the fact that he obtained medical treatment from 1990, 10 years or so after the onset of symptoms, points to some degree of deterioration or worsening of his left knee condition. Mr Haensel was a vague historian who had difficulty remembering events that are recorded in his medical records, for example a swollen knee in September 1995 (T3 folio 19). It is plain to me that his memory is unreliable. That being so, it is not surprising that he had difficulty recalling events or incidents that are not the subject of written record.
27. To a significant extent this case turns on whether the evidence of Mr Haensel can be accepted without corroboration in the context of his unreliable memory. It is his evidence alone that raises ‘facts’ that are necessary to establish defence-causation of his left knee condition. Nonetheless, the Respondent did not raise any issues of credit and did not seriously challenge Mr Haensel’s oral evidence under cross-examination. That being so and despite the attendant difficulties to which I have referred, I am persuaded to accept Mr Haensel’s evidence that he fell and hurt his left knee on more than the two specific occasions that he can recall during the period of his eligible service. Careful scrutiny of the medical records after 1990 plainly reveals that to be the case. There is no reason to conclude that Mr Haensel’s memory is any more faulty concerning events after 1990 than events that occurred previously. On that basis, I am reasonably satisfied that Mr Haensel suffered minor injuries to his left knee (that did not require medical treatment and did not cause incapacity) as a result of tripping or falling on more than one occasion prior to 1990, and in all likelihood during the period of his eligible service prior to 1980.
28. I note that while Dr Coyle stated in his report that the cause of Mr Haensel’s left knee condition is “probably developmental and possibly due to patello femoral arthralgia”, he agreed in his oral evidence that he would not expect to find degeneration of the knee joint as the result of a developmental condition in a man of Mr Haensel’s age in 1980 in the absence of any prior symptomatology, thereby pointing to some other cause. Even though Dr Coyle was unable to be certain in terms of diagnosis, his evidence was that left knee arthralgia could, as a matter of probability, be caused by repeated injuries such as those described by Mr Haensel in the two incidents he could recall. Dr Coyle clearly stated that one such fall would not in all probability be sufficient, but repeated falls during the period of service may be sufficient.
29. In the Respondent’s submission, only one such fall occurred before Mr Haensel obtained medical treatment in relation to his left knee in 1990 and that single event was not sufficient, on Dr Coyle’s evidence, to cause arthralgia. I do not agree and I am reasonably satisfied that Mr Haensel suffered minor injuries to his left knee on more than one occasion prior to 1990.
30. It follows that I am reasonably satisfied that Mr Haensel’s left knee patello femoral arthralgia arose from or is attributable to, or was contributed to in a material degree or was aggravated by the minor injuries to his left knee that he sustained as a result of tripping or falling during physical exercise activities during the period of his eligible defence service. I note, finally, that if I had been persuaded that ‘algodystrophy’ was the preferable diagnosis of Mr Haensel’s left knee condition, I would be compelled to reach a similar conclusion in relation to the issue of causation.
decision
31. The decision under review concerning ‘algodystrophy’ is set aside and in substitution thereof the Tribunal decides that Mr Haensel’s left knee patello femoral arthralgia is defence-caused.
32. The decision under review concerning non-Hodgkin’s lymphoma is affirmed.
33. The matter is remitted to the Commission to determine the degree of Mr Haensel’s incapacity and the applicable rate of pension consistent with these reasons.
I certify that the 33 preceding paragraphs are a true copy of the reasons for the decision herein of Mr Simon Webb, Member.
Signed:
AssociateDates of Hearing 24 November 2005
Date of Decision 16 December 2005
Representative for the Applicant Self Represented
Representative for the Respondent Nigel Bunn
Department of Veterans’ Affairs
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