Haskings and Repatriation Commission
[2005] AATA 815
•25 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 815
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/27
VETERANS' APPEALS DIVISION )
Re HERBERT HASKINGS Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy, Member Date 25 August 2005
PlaceBrisbane
Decision The Tribunal affirms the decision under review. ....................[Sgd].....................
K S Levy
Member
CATCHWORDS
VETERANS’ AFFAIRS –Veteran’s Entitlement Act – depressive disorder – Osteoarthrosis of the right hip – Osteoarthrosis of the right knee – defence caused injury – war caused injury – application of Statements of Principles – effect of being medically downgraded and by virtue unable to undertake operational service - pneumonia as a severe psychosocial stressor
Veterans’ Entitlements Act 1986 ss 5D, 6, 7, 9, 13, 120, 120B, 196B
Repatriation Commission and Gosewinckle (1999) 59 ALD 690
Benjamin and Repatriation Commission (2003) 70 ALD 622
Fogarty and Repatriation Commission [2003] FCAFC 136
Repatriation Commission and Hancock [2003] FCA 711
Lees and Repatriation Commission (2002) 125 FCR 331
White v Repatriation Commission [2004] FCA 663
Stonehouse and Repatriation Commission [2004] AATA 707
Repatriation Commission v Law (1980) 31 ALR 140
Repatriation Commission and Stoddart [2003] FCAFC 300
Sparks and Repatriation Commission [2005] AATA 319
Hillier and Repatriation Commission [2004] AATA 897REASONS FOR DECISION
25 August 2005 Dr K S Levy, Member Introduction
1. The applicant, Herbert Haskings, has applied under section 29(1) of the Administrative Appeals Tribunal Act 1975 for a review of a decision of the Veterans’ Review Board dated 4 December 2003. That decision affirmed two previous decisions of the Repatriation Commission dated 18 July 2003 and 22 August 2003 which determined that the condition of depressive disorder; and osteoarthrosis of the right hip and right knee, respectively, were not war-caused under the Veterans’ Entitlements Act 1986 (the Act).
2. The present claim is based on the contentions that the condition of depressive disorder and osteoarthrosis of the right hip and osteoarthrosis of the right knee meet the definitions and diagnostic criteria for these conditions and that they are related to his service during World War II.
3. The applicant was represented by Mr G King and Mr G Mylne of Mylne, Lawyers and the respondent was represented by its Advocate, Mr M Smith.
4. The following documents were tendered into evidence –
§ Exhibit 1 Applicant’s Statement with McCallum Mylne Lawyers facsimile cover sheet dated 20 July 2004
§ Exhibit 2 Service Medical Documents under cover of Department of Veterans’ Affairs letter dated 27 August 2004
§ Exhibit 3 Medical Opinion from Dr P A Grant dated 24 August 2004
§ Exhibit 4 Report by Dr Anne Young dated 7 October 2004
5. Oral evidence was admitted from the applicant, Herbert Haskings, and his Psychiatrist, Dr Maxwell Katz. Witnesses for the respondent were Dr Peter Grant and Dr Anne Young.
Background
6. The applicant was born on 2 August 1920 and is currently 85 years of age. He had non-operational service in World War II in the Australian Army from 6 October 1941 to 2 April 1946. Mr Haskings undertook recruit training and was assigned to a Mortar Unit of 47th Infantry Battalion and undertook training in the Townsville area. He was present during the Japanese bombing there in 1943, although the bombing occurred at an airport a number of miles away from where he was at that time.
7. Mr Haskings was training with his unit for deployment overseas in New Guinea. However, prior to his unit embarking on service in New Guinea, Mr Haskings was down-graded medically because of a congenital heart condition. This condition was subsequently found to be benign after his unit had been posted overseas. Mr Haskings was posted to a Leave in Transit Unit for the remainder of the war where he helped in the kitchen until his discharge in 1946.
8. The applicant has the following service-related disabilities –
§ Bilateral sensori-neural hearing loss with tinnitus
§ Acquired cataracts in both eyes
§ Impotence
§ Chronic simple bronchitis
§ Solar keratosis
§ Non-melanotic malignant neoplasm of the skin of various sites
9. He is also eligible for treatment for all malignant conditions which are not service-related. The following non-service-related disabilities are recorded –
§ Osteoarthritis right hip
§ Osteoarthritis right knee
§ Gall stones
§ Depressive disorder
§ Ischaemic heart disease (no incapacity found)
§ Atrial fibrillation
§ Osteoarthrosis of the right hip
§ Osteoarthrosis of the right knee
Issues for Determination
10. The issues for determination in this case, taking account of the oral and written evidence presented to the Tribunal, are whether the applicant’s claimed conditions of depressive disorder, osteoarthrosis of the right hip and osteoarthrosis of the right knee are related to war service by virtue of section 7 of the Act.
Legislative Framework
11. The statutory authorities contained in the Act which are relevant in determining the applicant’s eligibility for disability pension in relation to these conditions are outlined below.
12. The applicant did not serve outside Australia during World War II and therefore he does not satisfy the definition of “operational service” in section 6 of the Act, nor does he satisfy any provision of sections 6A to 6F. However, he does satisfy the requirements of “eligible war service” by virtue of section 7 of the Act, which relevantly provides as follows:
“7 Eligible war service
(1) Subject to subsection (2), for the purposes of this Act:
…..
(c)a person who has rendered continuous full-time service (not being operational service) as a member of the Defence Force during World War 2, being service that commenced before 1 July 1947, shall be taken to have been rendering eligible war service while the person was so rendering continuous full-time service; and
…..
Note 1: For World War 1 and World War 2 see subsection 5B(1).
(2) …..
9 War-caused injuries or diseases
(1)Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
(a)…..
(b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
(c)the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(e) the injury suffered, or disease contracted, by the veteran:
(i)was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;
but not otherwise.
(2)For the purposes of this Act, where any incapacity of a veteran was, in the opinion of the Commission, due to an accident that would not have occurred, or due to a disease that would not have been contracted, but for his or her having rendered eligible war service or but for changes in the veteran’s environment consequent upon his or her having rendered eligible war service:
(a)if that incapacity was due to an accident—that incapacity shall be deemed to have arisen out of the injury suffered by the veteran as a result of the accident and the injury so suffered shall be deemed to be a war-caused injury suffered by the veteran; or
(b)if the incapacity was due to a disease—the incapacity shall be deemed to have arisen out of that disease and that disease shall be deemed to be a war-caused disease contracted by the veteran.
…..
(5) Paragraph (1)(c) does not apply:
(a)to an accident that occurred while the veteran was travelling on a journey from the veteran’s place of work in a case where the veteran had delayed commencing the journey for a substantial period after he or she ceased to perform duty at that place (otherwise than for a reason connected with the performance of the veteran’s duties) unless, in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of that risk was not substantially increased, by that delay or by anything that happened during that delay;
(b)to an accident that occurred while the veteran was travelling on a journey, or a part of a journey, by a route that was not reasonably direct having regard to the means of transport used, unless:
(i)the journey, or that part of the journey, was made by that route for a reason connected with the performance of the veteran’s duty; or
(ii)in the circumstances of the particular case, the nature of the risk of sustaining an injury, or contracting a disease, was not substantially changed, and the extent of the risk was not substantially increased, by reason that the journey, or that part of the journey, was made by that route; or
(c)to an accident that occurred while the veteran was travelling on a part of a journey made after a substantial interruption of the journey, being an interruption made for a reason unconnected with the performance of the veteran’s duties, unless, in the circumstances of the particular case, the nature of the risk referred to in subparagraph (b)(ii) was not substantially changed, and the extent of that risk was not substantially increased, by reason of that interruption.
13 Eligibility for pension
(1) Where:
(a) …..
(b)a veteran is incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) …..
(d)in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
120 Standard of proof
….
(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.
120B Reasonable satisfaction to be assessed in certain cases by reference to Statement of Principles
(1)This section applies to any of the following claims made on or after 1 June 1994:
(a)a claim under Part II that relates to the eligible war service (other than operational service) rendered by a veteran;
(b) …..
(2)If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
(a)has determined a Statement of Principles under subsection 196B(3) in respect of that kind of injury, disease or death; or
(b)has declared that it does not propose to make such a Statement of Principles.
(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.”
13. As the applicant has eligible war service under section 7, but not operational service, the standard of proof is that of reasonable satisfaction, and not that of a reasonable hypothesis [section 120(4)].
14. The applicant’s facts and contentions seem to rely on section 120(1) and section 120(3) and the “balance of probabilities” as the standard of proof. It is clear, however, as the respondent submitted, that the standard of proof that is relevant here is that referred to in section 120(4).
15. It is clear that section 120B applies where the Repatriation Medical Authority has issued Statements of Principles (SoPs) under section 196B(3) of the Act. In this matter, SoPs have been issued for the following relevant conditions –
§ Instrument No 59 of 1998 – Depressive Disorder
§ Instrument No 82 of 2001 – Osteoarthrosis
16. The standard of proof relevant to all other decisions, such as incidents during war service, or the assessment of pension, is that of “reasonable satisfaction” (section 120(4)). The relevant legal principles which apply to the standard of proof which are set out in the Act, was set out in Repatriation Commission and Gosewinckel (2000) 59 ALD 690 at 691:
“The standard of proof for determining whether a veteran was suffering a morbid condition was the reasonable satisfaction standard in s120(4) and not the reasonable hypothesis standard in s120(1) and (3). The reasonable hypothesis standard was to be used to decide whether an injury, disease or death of a veteran was war-caused. All other matters were to be dealt with the reasonable satisfaction standard in s120(4).” [Emphasis added]
17. The standard of “reasonable satisfaction” has been held to be equivalent to the civil standard of proof, or proof on the balance of probabilities (Benjamin and Repatriation Commission (2003) 70 ALD 622; Fogarty and Repatriation Commission [2003] FCAFC 136; Repatriation Commission and Hancock [2003] FCA 711.
Evidence
§ The Applicant
18. The applicant, Herbert Haskings, gave oral evidence and referred to his statement in Exhibit 1. That statement refers to his hospitalisation in World War II for pneumonia and injury to his right knee. His medical documents refer to a post traumatic arthritis of the right knee.
19. In relation to his hospitalisation for pneumonia, he provided oral evidence that he was unconscious for a period of time with that condition and was seriously ill. He was advised after he recovered, that his parents had been called to visit him in the ward as he was delirious for almost a week and believes that he was close to death. In his evidence, he stated that he was isolated from the main ward so that he was able to be provided with specialised attention. After he recovered, however, he was allowed to walk around the ward even though he was still quite ill. He stated that after having pneumonia, he never quite felt completely recovered and whereas he used to play sport prior to that illness, he never played sport again. In fact he often felt “despondent” and never quite had the energy to go about his duties vigorously.
20. This lethargic feeling was with him to a greater or lesser degree all of the time subsequent to having pneumonia. He recalled waking four or five times per night, having silly dreams and not wanting to play sport again. He felt he just wanted to be alone and not necessarily with people. He said he often got the “shakes” when agitated.
21. As he recuperated in hospital, he was asked to take the tea trolley around the ward, which he willingly did. On one day, while pushing the trolley, he said that he slipped on the floor and fell. He was still recovering from pneumonia at the time and remained in hospital for another week. After his fall, he said that there was a lot of noise which attracted attention and the nurses got him back to bed. He described the pain as being very severe on the left side of his knee.
22. He did not see a doctor until the next day who suggested that he should go to the gymnasium which he did and did leg raises and other exercises. He thought there may have been some guilt on the part of the staff of the hospital as the nurses could not do enough for him. A few days later, the doctor recommended discharge as he believed they wanted to get him about of the hospital. He stated he was walking at the time but with “some difficulty”, and did not then see another doctor in the Army.
23. At the time discharge, Mr Haskings said he was asked whether he wanted to apply for a disability pension for pneumonia or for his hip or knee conditions. The Army medical authorities at discharge determined that none of his conditions were related to his service. He believes that since he was discharged from the Army in 1946 he felt he has been nervous or on edge much of the time.
24. Under cross-examination by Mr Smith, the applicant admitted that his feelings of despondency come and go, but may last for days at a time. He said that there were not years of good times. He also agreed that as he was not sent to Papua New Guinea during the war, he felt lonely because of that and because of his medical down-grading and that he tried to get a discharge. In relation to the issue of the bombing of Townsville Airport, he agreed with Mr Smith that that was some miles away and that he was not near the location where the bombs were dropped.
25. He was referred to Folio 105 of the “T” Documents which was the report by Dr James Downes, Orthopaedic Surgeon dated 3 December 1986. He agreed with Dr Downes’ report that at that time, he had a severely arthritic right hip and a moderately severe osteoarthritis of the right knee. Dr Downes stated that Mr Haskings was at that time 66 years of age and that the symptoms had only become evident six years earlier.
26. In questioning by the Tribunal, Mr Haskings admitted that after leaving the Army in 1946, he worked as a storeman for twelve years, despite having the knee injury to which was referred in evidence. There was originally an injury to the right knee from playing football in 1940 (prior to his Army service) together with the additional injury to his knee when he fell in hospital. In relation to his depression, he stated that he did not suffer from that condition before he joined the Army. It was noted that he married at 50 years of age.
§ Dr Maxwell Katz
27. Dr Katz was the examining psychiatrist for Mr Haskings and in examination in chief, he was referred to his report of 26 August 2003. In that report he noted that Mr Haskings grew up in a stable and supportive family and was the youngest of five siblings. His developmental years occurred during the depression years which resulted in Mr Haskings leaving school early and entering the workforce at age 14. He was employed as a storeman initially and then was drafted into the Army at the age of 21 in 1941. He advised Dr Katz that in his youth he played sport regularly, including A Grade Cricket and played with the Australian Football League and represented the State of Queensland in 1939.
28. He described to Dr Katz that following his war service, he felt that he was nervous and dispirited that the conditions in Townsville had been “very tough”. He then lost interest in his previous social activities, started smoking heavily but has only ever been a moderate drinker. His social life was diminished after the war. He married at the age of 50 and has no children. He presently still leads a quiet home life mostly watching television, but avoids programmes with any war content. Dr Katz concluded that, based on the history reported to him by Mr Haskings, that “in all probability” he has had depressive symptoms since the end of World War II. Since that time the symptoms have developed into what is now a condition which satisfies the diagnostic criteria for major depression. He believes it is possible that Mr Haskings’ serious war-time illness could have significantly contributed to the onset of his symptoms of mood disorders as his health had been relatively good subsequently, with only a hip replacement in 1988.
29. Under cross-examination, Dr Katz stated that his diagnosis depends on the accuracy of Mr Haskings’ account and described that a major illness can effect depression as it effects the nervous system and therefore would deplete energy. Dr Katz said that the applicant does not have to be conscious of medical implications, but he just has to experience the consequences which could lead ultimately to the onset of the depressive illness. He indicated that people normally will overcome these conditions if they are self-limiting stressors but where there are cumulative stressors, for example, he was not allowed to go to Papua New Guinea, then a number of self-limiting stressors could be cumulative and have an effect on a person’s moods. He said it is not usual for them to last sixty years but there can at times be genetic or other reasons, for example different levels of resilience, that are the cause of depressive illness..
30. On re-examination by Mr King, Dr Katz stated that people can become depressed and reside in chronically low energy states, while other stressors can aggravate this condition if not treated. He indicated some of these conditions can be treated but there can still be a recurrence. He mentioned that there can be an increasing frequency of these conditions as a person gets older.
§ Dr Anne Young
31. Dr Young provided telephone evidence from New Zealand. She indicated she had examined Mr Haskings on two occasions and provided a report dated 3 June 2003 (Folios 59-68 of the “T” Documents) and also a report dated 7 October 2004 (Exhibit 4). Dr Young described Mr Haskings as being more irritable when she interviewed him in May 2003 but when she saw him in October 2004, he was “noticeable brighter in mood and appeared as a smiling, pleasant, almost chirpy elderly man”. However, he reported on that occasion that his mood remained low and that he was concerned particularly about his anxiety.
32. Dr Young concluded that Mr Haskings reports symptoms that would be consistent with a diagnosis of a major depressive disorder, recurrent. She thought the onset of Mr Haskings’ depressive disorder occurred “in the context of his Army experience”. However, she thought it was not a single stressful experience that may have caused this but rather a combination of issues such as not being posted to Papua New Guinea, his medical down-grading at the time and a consequence of a feeling of frustration and boredom. She said that he reported being stressed by the Townsville bombing and the incident with American soldiers, however, he was not particularly stressed by these events. She stated particularly that he reported to her that he “hasn’t thought of these experiences for years”.
33. In relation to his pneumonia she thought that this is probably “not a particularly significant stress”. She said the more important stressor to Mr Haskings was that he slipped while pushing a trolley during his recuperation period and that his right knee symptoms have not been covered by the Department of Veterans’ Affairs. She referred to the report by Dr Katz and thought that he concluded that Mr Haskings’ war-time experiences “contributed to the onset of his disorder” and she agreed with this conclusion. However, her clinical view was that almost sixty years after leaving the Army, that “it is very difficult to clinically attribute the perpetuation of his disorder to any of his war-time stressors”.
34. In oral evidence when asked whether these events cause or precipitate the depressive disorder, she said that no-one knows exactly. Her evidence concluded that Mr Haskings:
“did suffer significant psychosocial stressors (even though these were predominantly to do with a sense of frustration, wasting time and boredom) … it was a similar time that his depressive disorder commenced from his description, although this cannot be clearly dated.”
She also concluded that:
“.. although it is probable that the onset of Mr Haskings major depressive disorder was majorly contributed to by his service stressors experienced in the 1940s, in my clinical view it is highly unlikely that the same service stressors have continued to contribute to the perpetuation of his depressive disorder nearly 60 years later”.
35. Under cross-examination by Mr King, he requested further clarification on the words “majorly contributed”. She indicated that these events may have been significant at the time but most people would remit between five and seven years later unless there was some other intervening factor. She said he had good social support, particularly his wife in later years; he had only had two jobs in his career and therefore there was some employment stability. She said it was “highly unlikely” that this is attributable to the depression that he has today.
§ Other Medical Evidence
36. In relation to the applicant’s right knee injury, there was evidence of a pre-existing twist injury to the right knee in 1940 whilst playing football, and prior to his joining the Army. The record states that he experienced severe pain on the inner side of the joint and was unable to continue the game. His service medical records also show a record of a “mild post traumatic arthritis of the right knee” but his discharge medical on 25 March 1946 declares that he has full joint movement and he made no mention of disability in his right knee. It was concluded that there was no disability which was related to his period of service with the Army. However, Dr Grant’s report dated 24 August 2004 indicates that his interpretation of the medical records do not indicate Mr Haskings having sustained trauma to the right knee of such a magnitude as to satisfy the definition in the SoPs. He also states:
“There are no clinical notes to support the above diagnosis being present prior to 1970 (being the twenty-five year benchmark for trauma).”(Exhibit 3)
The diagnosis referred to is that of osteoarthrosis of the right knee.
37. In relation to the right hip, Dr Downes’ report is at Folio 105-106 of the “T” Documents. His report dated 3 December 1986 says that he does not usually support the theory concerning the throwing of body weight as a result of an injured knee and which might give consequential hip problems. However, he concludes that the hip and knee problems are probably affected by his war service. Dr Grant in his report of 24 August 2004 refers to some support in the medical community about damage to a joint in a lower limb having consequential effects on other lower limb joints. He states, however:
“..reputable published studies support the link only when there are longstanding changes of the mechanics of the joint in which osteoarthrosis develops. The report of Dr Thomson suggests that this condition first presented about 1994….”
38. Dr Grant concludes that hip changes are age-related in his opinion.
SUBMISSIONS
39. The applicant’s solicitor argued that the applicant here is not simply a person who is prone to nervousness. He submitted that the applicant had suffered one or more, “or even an amalgam” of stressors that would constitute a “severe stressor”. He further stressed that in the years following World War 2, the psychology of people was such that they just “got on with life”.
40. The respondent argued that given the requirement of a psychological stressor was not met, he emphasised that the applicant had been depressed for about 3 years before the incident claimed. He further submitted that the applicant had a genetic predisposition to depression and that his condition was not caused by the war, even though it occurred during the period of the war. The respondent argued that the experience in World War 2 merely emphasised the “essentially endogenous symptoms” of Mr Haskings.
41. Final written submissions were made by the Applicant’s solicitor on 9 August 2005 and were responded to by the Respondent dated 9 August 2005 also. No counter submissions were subsequently put by the Applicant’s solicitor by the due date of 18 August 2005. The applicant contends that even the Respondent’s medical adviser, Dr Grant, conceded the possibility of a medial meniscus tear occurring in 1945 as well as the possibility of the pre-existing injury from 1940 increased the risk or predisposition to aggravation of that injury. In relation to osteoarthrosis of the hip, the applicant’s solicitor said the limp occurred approximately 2 years after his discharge from the Army.
42. The respondent argued the applicant did not suffer “trauma” as defined by the SoP and that clinical onset was not within the prescribed period. The respondent also argued the documented medical evidence from 1945 and the applicant’s oral evidence relying on a memory after 59 years were inconsistent, and that the contemporary medical records should be relied upon. Also, the evidence of Dr Grant that osteoarthrosis of the hip arose before the limp , negated the applicants case in that regard. The respondent also contends the incidents claimed are not psychosocial stressors, as previously submitted at the hearing. As a result, the respondent argued the evidence is not in favour of the applicants case.
Consideration of the Issues
43. The Tribunal has reached a decision in this matter after taking account of all of the oral evidence and documentary exhibits, together with the statutory provisions and relevant case law.
§ Diagnoses
44. There is authority to the effect that the Tribunal’s role is not to make a diagnosis, but it should determine the most acceptable diagnosis where appropriate (Benjamin and Repatriation Commission (2001) 70 ALD 622).
45. In relation to depressive disorder, Dr Katz’ report of 26 August 2003 opines that based on the applicant’s reporting of life events, that he now fulfils the criteria for major depression. Dr Young in her report of 3 June 2003 diagnosed symptoms of a major depressive disorder of mild to moderate severity. In her later report of 7 October 2004, she confirmed the diagnosis of major depressive disorder.
46. The aetiology of the depressive disorder is said by both psychiatrists to be referrable to the context of his Army experience, while Dr Young doubts that this can be attributable to his current condition sixty years later. On the basis of the evidence presented, the Tribunal accepts that a diagnosis of major depressive disorder is currently appropriate for Mr Haskings.
47. With respect to osteoarthrosis of the right hip, Dr Downes saw the applicant in 1986. He disputes the theory put by the applicant to him that body weight of being thrown because of a bad knee can cause hip problems. However, despite being sceptical about that theoretical cause of the hip problem, he concluded that at the age of 60, he had developed early onset of quite advanced osteoarthritis in the hip and in the absence of family history, acute injury or a chronic repetitive injury, from past life (which are not present), he believed that the hip and knee problems were “in all probability affected by his war service”. It is noted that he had a hip replacement in 1988.
48. On the other hand, Dr Grant’s report dated 24 August 2004 attributed this condition to age-related factors. However, he invited the Department of Veterans’ Affairs to seek a contemporary opinion from an orthopaedic surgeon, but this was not done.
49. As Dr Downes is an orthopaedic surgeon and was frank and objective in his advice, and as there is no contrary opinion of equal efficacy, I accept his opinion that Mr Haskings has osteoarthrosis of the right hip.
50. In relation to the claim of osteoarthrosis of the right knee, the applicant’s local General Practitioner, Dr W Thompson, diagnosed this condition. Dr Grant, Department of Veterans’ Affairs, regards the conclusion that this has been present since 1945 as speculation only. Certainly, the applicant was hospitalised and reviewed on a number of occasions and on discharge, but no such diagnosis appears. It seems to have been affected by the evidence of a previous severe injury to his right knee from a football game, prior to his Army service.
51. On the basis of the evidence available, I regard Dr Grant’s view as preferable to that of Dr Thompson. In the circumstances, the diagnosis of osteoarthrosis of the right knee is accepted as a current diagnosis, but is age-related.
§ What Kind of Injury Has Been Suffered By Mr Haskings?
52. This question is a preliminary one and the Tribunal must be satisfied to its reasonable satisfaction in relation to two pre-conditions set out by Selway J in Repatriation Commission and Hancock [2003] FCA 711 –
(1) Was Mr Haskings a veteran?
(2) Is the kind of injury or disease claimed consistent with an SoP issued.
53. Here, Mr Haskings’ service in World War II was not challenged. He is therefore a “veteran” in the sense intended, each of the conditions claimed is a disease or injury within the meaning of section 5D(1) of the Act. Therefore, the claim relates to a disease or injury for which a SoP has been issued. The conditions in Hancock have therefore been satisfied.
§ Is The SoP For Depressive Disorder Satisfied?
54. In SoP Instrument No 59 of 1998, the relevant provisions are:
“Kind of injury, disease or death
2. (a) …..
(b) For the purposes of this Statement of Principles, “depressive disorder” is defined as:
(A)the presence of major depressive disorder, dysthymic disorder or depression not otherwise specified where:
(i) major depressive disorder is either a single episode or recurrent episode as defined in DSM-IV; and
(ii) dysthymic disorder, as defined in DSM-IV, is a chronic mood disturbance, of at least two years duration, involving depressed mood, or loss of interest or pleasure, with manifestation of the symptoms used to diagnose major depression such as neurovegative signs, social withdrawal, cognitive impairment and suicidal ideation; and
(iii) depression not otherwise specified, such as minor depressive disorder and recurrent brief depressive disorder, as defined in DSM-IV, includes disorders with depressive features that do not meet the DSMIV diagnostic criteria for other specific mood disorders,
attracting ICD-9-CM code 296.2, 296.3, 300.4 or 311.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, depressive disorder or death from depressive disorder is connected with the circumstances of a person’s relevant service are:
(a)experiencing a severe psychosocial stressor or stressors within the one year immediately before the clinical onset of depressive disorder; or
…..
Other definitions
8. For the purposes of this Statement of Principles:
“severe psychosocial stressor” means an identifiable occurrence that evokes feelings of substantial distress in an individual, for example, being shot at, death or serious injury of a close friend or relative, assault (including sexual assault), severe illness or injury, experiencing a loss such as divorce or separation, loss of employment, major financial problems or legal problems;”
55. The definition in paragraph (2)(b) has been satisfied as the diagnosis has been accepted based on the evidence of Dr Katz and Dr Young. However, in relation to this condition, two further terms need to be considered – “clinical onset”; and “Severe psychosocial stressor”.
56. In relation to the term “clinical onset”, this has been considered by the Full Federal Court in Lees and Repatriation Commission (2002) 125 FCR 331 at 337 which held that there must be sufficient proximity between the events claimed during military service and the manifestation of the disease to point to a causal link between the disease and the service. This term requires a determination of the timing of the onset of the disease in relation to the stressors. As is required by factor 5(a) in the SoP, it must occur within one year before the clinical onset of the depressive disorder. In Dr Young’s view, the clinical onset has been attributable to “the context of his Army experience”. Dr Katz places onset “in all probability” as being “the end of the war”, that is in 1945. Therefore, the chronology of the illness as suggested by both psychiatrists and the evidence in the service medical records seems to accord with the meaning of “clinical onset” in terms of causality. In respect of the incidents relied upon as “severe psychological stressors”, at least one of them occurred within twelve months of the end of World War 2, the time of “clinical onset”.
57. But did Mr Haskings experience a “severe psychosocial stressor” within the one year period before clinical onset of the depressive disorder? The psychiatrists seem to refer to multifactorial incidents which culminate in the depressive disorder condition. These include the bombing of Townsville, the applicant’s medical down-grading, frustration of not being posted to Papua New Guinea and the boredom in Townsville for the remainder of the war. However, he indicated to Dr Young that he “hadn’t thought of these experiences for years”. It is also suggested that the experience of pneumonia was a contributory factor although Dr Young says it was “probably not a particularly significant stress”. The more important stressor is the fall when pushing the tea trolley whilst he was in hospital, resulting in injury to his right knee. That occurred in October 1945 and is therefore within the twelve month period before the end of the war.
58. Therefore, if the stressor occurred, within the twelve month period before clinical onset as provided by factor 5(a), it must also be determined that it was in fact a “severe psychosocial stressor”.
59. In assessing this claim of the applicant, the Tribunal considered White v Repatriation Commission [2004] FCA 633 where reference is made to the benchmarks which have been defined in the SoP as being the standards of severity of threat or injury. If these examples are not used as a guide to the standard to be applied, then the SoP would be ineffectual. The examples are therefore regarded as an integral guide to the assessment.
60. In White’s case Spender J held that a severe psychosocial stressor has both a subjective and objective element. The application of the principles required to arrive at a reasoned decision consistent with the definitions and the decision in White, was summarised in Hillier v Repatriation Commission [2004] AATA 897. At paragraph 65, Deputy President Jervis specified that consideration be applied as follows:
“(a) There must be an occurrence, and this connotes an objective event.
(b)The occurrence must be such that it ‘evokes feelings of substantial distress in an individual’ and this must be an objective and assessable state of affairs, judged objectively from the point of view of a reasonable person in the position of and with the knowledge of the applicant experiencing the occurrence and not by reference to a person who has full information in relation to the relevant occurrence.
(c)The occurrence must be such as to cause ‘substantial’ distress, and this, together with the inclusive examples listed in the definition, indicates that the occurrence must be such that it could reasonably be expected to produce a significant level of distress.
(d)Under the relevant factor of the SoP, it is also necessary to determine whether the applicant experienced a stressor as defined. This entails examining the subjective effect on the applicant, and allowance should be made for the applicant’s particular susceptibilities, and that some circumstances might be extremely stressful to one person but would not be stressful to another.
(e)Nevertheless, an idiosyncratic and personal perception of the relevant event would not satisfy the definition if the event does not meet the objective requirements referred to in paragraphs (b) and (c).”
61. The subjective element of a severe psychosocial stressor requires the applicant to suffer “substantial distress”. This must involve an event which is dangerous, frightening and which causes distress. “An event that was merely dangerous or frightening – particularly an event that happened quickly, and which passed – does not amount to a psychosocial stressor without that additional dimension.” (Stonehouse and Repatriation Commission [2004] AATA 707). The objective element requires that the incident relied upon must be at least as severe as the examples in the definitions set out in the SoP. The decision in Hillier also underscored at [67] that the objective requirements should be evaluated not by the reasonable person test, but should be measured against an objective “member of the Armed Forces who is not, however, idiosyncratic or unduly timorous or sensitive (per Mansfield J in Stoddart)”. The wide variability and experience of servicemen and veterans was noted as affecting the objective assessment of this standard.
62. The respondent referred the Tribunal to Sparks and Repatriation Commission [2005] AATA 319 where at [25] the Tribunal said that the stressors shown in the examples to the SoP must be “…..such as to severely compromise a person’s health or social and financial supports.” Also, the decision in Stonehouse at [18] highlights that the “additional dimension” is the psychosocial impact of the severe stressor. That is, the mood disturbance must be sufficiently severe that it interrupts the capacity for normal functioning at an occupational or social level.
63. It will result in an effect on cognitive factors and social skills which reduces the person’s ability such that they will fail to integrate effectively at work or at home or into society generally. There may be a sense of hopelessness or tendency to overgeneralise conclusions about the self based on negative experiences or to selectively recall negative events affecting themselves. They may tend to overemphasise to themselves, the impact of negative consequences of events comparatively with the relative significance of positive events. But whatever the outcomes, there must be evidence of impairment in social and occupational performance.
64. The impairment in social and occupational outcomes might be manifested in the fact that the condition causes harm to person and it results in an inability to perform some natural functions. In cases falling under the Act, the condition or an aggravation of a pre-existing condition, must of course be attributable to the applicant's war service or defence service recognised under the Act.
65. It is clear therefore, that every dysfunction would not be regarded as a disorder, but relevant disorders under the SoP would be expected to reveal –
a.A level of dysfunction of perception, emotion, cognition or memory, linguistics, motivation or other interference with natural function as defined in the SoP; and
b.A level of harm to the individual, including subjective distress, of which high levels of anxiety or depression would be obvious examples; and
c.The dysfunction must be evident in occupational, domestic or general functioning; and
d.It must be relevant to war service or defence service.
66. Considering now the material relevant to the stressors alleged in this case and the authorities of White, Stonehouse and Re Hillier (supra), the stressors must firstly be seen to be “an occurrence”. An “occurrence” is defined as an “incident” or “event”. An “event” is an “incident or mishap” which can be differentiated from the ordinary course of life (Repatriation Commission v Law (1980) 31 ALR 140 at 149). I consider the word “event” and the word “occurrence” to be effectively synonymous in the present context.
67. Evaluating the applicant’s evidence, it must be assessed on the basis of whether a person with the same level of knowledge and in the circumstances of the particular applicant at that time, would reasonably lead to that person perceiving a threat of death or serious injury or other consequence as specified in the definition. Using that test, the standards or benchmarks shown in the examples and the factual material presented and considered in context, the Tribunal is not satisfied the incidents claimed by Mr Haskings in his Army service in World War II would lead to the degree of disability which he now attributes to his military service. That conclusion was reached after considering all of the evidence contributing to the condition and his domestic, occupational and general functioning in society.
68. The applicant’s solicitor submitted that the condition of pneumonia (which he was only aware of after recovering from that illness), and his medical (heart) condition preventing him from accompanying his Unit overseas in World War 2 were the kinds of occurrences contemplated by the examples in the SoP in accordance with the findings of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. In relation to the benchmarks and the definition, he was not shot at, nor did he experience death or serious injury of a close friend or relative, or any other of the examples used there.
69. It is not accepted that the fact that he did not accompany his Unit to Papua New Guinea is of the same magnitude as “loss of employment”. None of the uncertainty or insecurity aspects of a psychosocial nature which is implicit in loss of employment was part of the applicant’s circumstances. He did suffer a severe illness by virtue of contracting pneumonia, but as he was unconscious for much of the time, this was only known to him after the event. Also, the Townsville area in World War II was relatively safe, and even though he heard some bombing, the applicant’s evidence was that it was quite a distance away from where he was located. In addition, while he had some health issues, his heart problem was of concern but he had had this condition since he was five years old. Equally, the injury to the right knee occurred in hospital and also does not equate to the seriousness of the examples outlined in the definition of “severe psychosocial stressor”. Therefore, on the balance of probabilities the Tribunal is of the view that it could not be said that he would have experienced feelings of “substantial distress”.
70. Even though he may have had some feelings of anxiety or even become depressed to some degree at that time, in the circumstances of his military experience, using an objective assessment as set out in Repatriation Commission and Stoddart [2003] FCAFC 300, the requirements of experiencing “substantial distress” (Stonehouse) or that such feelings would be experienced as an objective and assessable state of affairs as referred to in the considerations set out in Hillier, are not satisfied.
71. In relation to the subjective aspect of the assessment, the Tribunal determined that the applicant did not experience the degree of fear or discomfort required to satisfy the definition. He was fit and had played football for Queensland although his self-confidence is not necessarily assured because of that. However, during the period he served in Townsville in World War II, his self-esteem seemed to have suffered some setbacks although the injury to his knee as a result of pushing a tea trolley in hospital, or any of the other issues raised by the applicant, could not be regarded as anywhere near the degree of severity as shown in the examples to the definition. Taken together, the objective assessment as well as the personal or subjective assessment, do not satisfy the definition of “severe psychosocial stressor”.
72. The level of depression being assessed after 60 years is confounded with some complexity which may have a propensity to create an unfairness to the applicant. However, the Tribunal has considered the “additional dimension” (the psychosocial impact of any severe stressor) and has determined the incidents claimed cannot be regarded as severe stressors as defined. But what of the “additional dimension”, that is, the psychosocial impact on the applicant? The psychosocial outcomes for the applicant since World War 2 (whether emanating from war service or pre-existing), reveals some level of emotional dysfunction, and that some harm has been experienced by him resulting in a diagnosis of depression. But, as the applicant stated in his evidence, he had lived a lonely life. However, from the evidence of Dr Young, there is no apparent social or occupational impairment resulting from his war service. This overall assessment of the elements is consistent with the conclusion reached by Dr Katz and Dr Young that it is highly unlikely that the present condition could be attributable to the circumstances experienced by the applicant sixty years ago, or at least not because of an event or events which could be regarded as “severe psychosocial stressors”.
73. For these reasons, the Tribunal is reasonably satisfied, on the balance of probabilities, that there is no sufficient ground for determining that the applicant’s condition of depressive disorder was war-caused.
§ Does The Condition Of Osteoarthrosis Of The Right Knee Comply With The SoP?
74. The relevant provisions of SoP Instrument No 82 of 2001 are as follows:
“Kind of injury, disease or death
2. (a) …..
(b) For the purposes of this Statement of Principles, “osteoarthrosis” means a clinical joint disorder associated with progressive loss of articular cartilage, sclerosis of the underlying bone, proliferation of bone and cartilage at the joint margins, and inflammation of the synovium, as well as a history of pain, impaired function and stiffness, attracting ICD-10-AM code M15, M16, M17, M18 or M19.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, osteoarthrosis or death from osteoarthrosis is connected with the circumstances of a person’s relevant service are:
…..
(d)for osteoarthrosis of a hip, knee or ankle joint, having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis in that joint; or
….
(h) suffering a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint; or
…..
(n)suffering from internal derangement of a knee before the clinical onset of osteoarthrosis in that joint; or
….
(w)suffering a trauma to the affected joint within the 25 years immediately before the clinical worsening of osteoarthrosis in that joint;
….
(za) suffering from internal derangement of a knee before the clinical worsening of osteoarthrosis in that joint; or
Other definitions
8. For the purposes of this Statement of Principles:
“trauma to the affected joint” means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint;”
75. It is noted that none of the factors of paragraph 5 had been contended on behalf of the applicant. However, as outlined in the respondent’s Facts and Contentions, factors 5(h) and 5(w) seem to be the only applicable criteria.
76. The applicant has claimed the definition of osteoarthrosis is satisfied for the purposes of his claim with respect to the injury to his right knee. To be successful in this claim, the veteran must show that a trauma to the right knee occurred within twenty-five years of the clinical onset of osteoarthrosis (factor 5(h)) or within twenty-five years immediately before the clinical worsening of osteoarthrosis (factor 5w)).
77. In determining clinical onset, the meaning and authorities outlined above are also relevant here. While there is evidence that there was injury to the right knee in 1940 prior to the applicant’s military service, as well as the injury to the right knee during his fall in a military hospital in 1945, there is little medical evidence to support a diagnosis of osteoarthrosis until 1986. There is a reference to a “mild post-traumatic arthritis of the right knee” in 1945, but Dr Grant’s opinion is that the diagnosis is not consistent with the radiological evidence at that time and that the right knee was not mentioned at the final medical board on discharge from the Army in 1946. Indeed, there is evidence of some problem with the applicant’s knee in 1945 as treatment for the knee is recorded. However, the condition of the knee after undertaking some rehabilitative work was recorded at 27 October 1945 as “Wearing a pressure bandage on right knee. Good quadriceps. No effusion or periarticular thickening of the joint. Normal stability.” (See Folio 8 of Exhibit 2).
78. The diagnosis in 1986, however, suggests that the symptoms had been in existence for six years at that stage. Therefore, clinical onset seems to have occurred approximately thirty-five years after the date of the right knee injury in the Army in 1945, and is clearly outside the twenty-five year benchmark period specified in the definition.
79. In relation to whether the injury is “a trauma to the affected joint”, Mr King on behalf of the applicant argued that it does fall within the definition. The respondent argued that it was a manifestation of the 1940 injury together with the effect of the more recent fall in hospital. The Tribunal has determined that it may have been an aggravation in a medical sense but it does not satisfy the definition of “trauma to a joint” where signs and symptoms last for at least ten days and becomes manifest within twenty-five years.
80. In relation to factor 5(h), the medical evidence reveals a knee injury in 1940 when playing football. That was prior to joining the Army. This has been described on the service medical records as “quite a severe injury” (see Folio 17). It seems that the applicant also stated to Lieutenant Colonel McDonald in 1945 that he never recovered complete function in the joint following that injury. But he also had an injury while pushing a tea trolley whilst in hospital for pneumonia in October 1945. Also, the opinions of Dr Grant, particularly his report of 21 March 2005, conclude that injury to the knee most likely emanates from damage caused in 1940, prior to the applicant’s military service. However, under cross-examination by Mr Mylne, Dr Grant acknowledged that the injury in 1940 was probably a minor tear as he might not have been enlisted in the Army. Therefore, he acknowledges the injury in 1945 could have caused an aggravation to the previous injury in 1940.
81. However, Dr Grant’s view was that Lt. Col. McDonald appeared to be an orthopaedic surgeon in 1945 and that his conclusion at that time was that no lesion was detected in the right knee based on x-rays. Under cross-examination, Dr Grant acknowledged x-ray equipment 60 years ago would probably not be sensitive to an injury which might have occurred in 1940. He stated that Lt. Col. McDonald would have been looking at the x-ray for evidence of joint or soft tissue changes or even calcification. Dr Grant’s evidence was also that even an MRI scan today would have some difficulty picking up such changes.
82. Despite the medical interpretation by Dr Grant that there is nothing to suggest an aggravation or repeat injury during service, the knee injury in October 1945 might be regarded as an aggravation to a pre-existing vulnerability, that is, the severe injury to the right knee experienced in 1940 prior to his joining the Army. Clearly, the applicant had disclosed the previous injury as being significant as he was unable to continue playing the game of football in which he injured his knee. He also claimed that since that time, he has had pain in the knee when squatting or straightening the knee and where he was subjected to prolonged standing or extended walking. What occurred in hospital in 1945 is not accurately recorded but the Tribunal accepts the applicant’s account of a fall while pushing a trolley as there is a clinical record of treatment with gym work.
83. Given the incident in hospital may have aggravated the pre-existing injury from 1940, was it a trauma to the affected joint? If so, this must elicit symptoms and signs of pain and tenderness within twenty-four hours and there must be either altered mobility or an altered range of movement of the joint (see definition in paragraph 8 of SoP).
84. Dr Grant informed the Tribunal that symptoms are those which the patient feels and can describe while signs are clinical observations of the doctor. According to the SoP, the symptoms and signs must last for at least ten days (except in certain circumstances which are not relevant to this case). The evidence of pain within twenty-four hours can be drawn from the evidence. Also, it must last for ten days. The record shows it commenced on 23 October 1945 and was referred to an orthopaedic surgeon on 25 October 1945. On 27 October 1945, four days after the apparent injury, the specialist orthopaedic surgeon reported no effusion, full movement without pain, normal stability and no tenderness about the joint. Therefore, this evidence reveals that the applicant does not satisfy the definition. Also, based on the evidence of clinical onset approximately 35 years after the 1945 injury, he does not satisfy factor 5(h).
85. The respondent also argues that Factor 5(n) may be relevant, that is, “…suffering from internal derangement of a knee before the clinical onset of osteoarthrosis in that joint”; or that factor 5(za) may be applicable, that is, “…suffering from internal derangement of a knee before the clinical onset of osteoarthrosis on that joint”. As the respondent points out, there is no time limit for the onset of osteoarthrosis with these sub-factors.
86. The respondent also, in its submission, points to evidence of an army doctor in 1945, Lt Col MacDonald, which records he was told by the applicant that the injury from the football game in 1940 was very severe and that he was unable to continue the game. He consulted his doctor and was treated with massage and local heat. He also stated he never completely recovered full functio in the joint.
87. In oral evidence at the Tribunal, the applicant said he returned to the game after half time and that he had not seen a doctor but that he had treated himself with heat and massage. The respondent argues that internal derangement of the knee is due to football injury prior to military service. It is also argued that this can lead to osteoarthrosis but it is a separate condition. The Tribunal accepts this and that, based on the evidence of Dr Downes above, onset of osteoarthrosis of the right knee occurred significantly later than that specified in the SoP.
88. However, do these circumstances point to an “aggravation” of the previous injury in 1940 (factor 5(w))? The injury in 1945 could be an aggravation of the injury in 1940 in a medical sense. However, has the condition been diagnosed within twenty-five years? Dr Downes’ report was prepared in 1986 and his opinion, based on the applicant’s account and his own judgment at that time, is that the injury had been in existence for almost 6 years. Therefore, as it is outside the period of twenty-five years as required, it does not satisfy factor 5(w). Likewise, the period of the injury must be at least ten days for it to be “a trauma to the affected joint” and, based on the evidence, that definition is not satisfied either.
89. In the circumstances, it is determined that this condition does not satisfy the requirements of the SoP.
Osteoarthrosis Of The Right Hip
90. The same provisions of Instrument No 82 of 2001 are relevant here as for the claim of osteoarthrosis of the right knee. The evidence of Dr Downes’ report of 3 December 1986 (Folios 105 and 106 of the “T” Documents) was raised by Mr Mylne in cross-examination of Dr Grant. Dr Grant concluded that Dr Downes’ opinion in that report about arthritic pain after 60 years, referred to the applicant’s hip complaint and not the knee injury. Dr Downes referred to the applicant’s claim that the hip problem was a result of his knee injury and the consequential body weight being thrown when walking . He did not support the applicant’s claim in that regard. However, he noted (at folio 105 of the T documents) that Mr Haskings was “…a man who at 60 developed the early onset of quite advanced osteoarthritis in the hip and in the absence of family history, acute injury or a chronic repetitive injury….I believe that this is a factor in this man and therefore his hip and knee are genuinely in all probability affected by his war service”. He concluded at that time that Mr Haskings had a 60% or greater functional disability.
91. Essentially, the same evidence which is relied upon to satisfy the factors in paragraph 5 of the SoP in relation to the right knee claim, are also relevant in relation to the claim for the right hip injury. The applicant’s submission is that he developed a limp approximately 2 years after he was discharged from the Army. The respondent submits the applicant could not say how long he suffered osteoarthrosis of the hip or how long he had a limp. He merely stated the limp was due to his knee. But as Dr Grant’s report of 21 March 2005 states, that for the right hip to be accepted, a limp which can be related to the right knee would need to be shown and which predated the onset of osteoarthrosis of the right hip. Dr Grant’s opinion is that the records are inadequate in this regard and he concluded that the genesis of this complaint is probably related to the injury in 1940, as well as age factors. He also opined that the osteoarthrosis of the hip occurred before the limp.
92. However, notwithstanding the inadequacy of evidence, the Tribunal has taken account of the applicant’s version of events and the medical evidence at various points of chronology, that is, the evidence of Lt Col MacDonald, Dr Downes and Dr Grant. The Tribunal finds that on the balance of probabilities, greater weight must be given to Dr Downes’ report who was a specialist in this field and at that time, considered the severity of the osteoarthrosis of the hip. Therefore, it is determined that the limp preceded the osteoarthrosis of the right hip. But this does not assist the applicant in his claim that osteoarthrosis of the right hip is the result of a permanent limp in the right knee. This is because Factor 5(d) requires osteoarthrosis of the right knee to be accepted as war caused and for the limp to predate the onset of osteoarthrosis of the right hip.
93. As the factors in paragraph 5 of the SoP are not satisfied in relation to the right knee, they are also not satisfied in relation to the claim of osteoarthrosis of the right hip. Therefore, the SoP for osteoarthrosis in relation to the right hip is also not satisfied.
94. For the reasons set out above, the Tribunal affirms the decision under review..
I certify that the 94 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy, Member
Signed: Jeff Mills
Legal Research OfficerDate/s of Hearing 4 February 2005 [at Coolangatta]
23 May 2005 [at Southport]
Date of Decision 25 August 2005 [at Brisbane]Solicitor for the Applicant Mr G King [4.2.05] and Mr G Mylne [23.5.05] - Mylne Lawyers
For the Respondent Mr M Smith, Departmental Advocate
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