Hawksworth and Repatriation Commission

[2008] AATA 71

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 71

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/3317

VETERANS’ APPEALS DIVISION		)
Re		RODNEY WILLIAM HAWKSWORTH

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)
Mr S J Ellis (Member)

Date25 January 2008

PlaceAdelaide

Decision The Tribunal sets aside that part of the decision of the Repatriation Commission dated 6 November 2006 which refused acceptance of osteoarthrosis of the right hip as being defence-caused.  In substitution for that decision the Tribunal determines that, with effect from 2 May 2006, osteoarthrosis of the right hip is defence-caused.  In all other respects, the decision of the Repatriation Commission is affirmed.  The Tribunal remits the issue of assessment, following acceptance of osteoarthrosis of the right hip, to the Repatriation Commission for determination.

..............................................

J G SHORT
  (Member)

CATCHWORDS

VETERANS' AFFAIRS – veterans' entitlements – osteoarthrosis of hips – osteoarthrosis of right hip caused by trauma experienced in a fall in 1987 – not caused by “tug-of-war” training – definition of trauma to right hip satisfied – decision in relation to osteoarthrosis of right hip set aside

Veterans’ Entitlements Act 1986 ss 120(4), 120B

Statement of Principles Instrument No 32 of 2005

REASONS FOR DECISION

25 January 2008   Mr J G Short (Member)
  Mr S Ellis (Member)         

1.      On 2 August 2006 Mr Hawksworth lodged a claim for acceptance of conditions later diagnosed as osteoarthrosis of both hips.  The application in relation to Mr Hawksworth’s hips was rejected by both the Repatriation Commission (the Commission) and, on 3 May 2007, the Veterans’ Review Board (the VRB). 

2.      Mr Hawksworth has served in the Australian Army since 12 January 1983 and his service until 30 June 2004 constitutes defence service as defined in the Veterans’ Entitlements Act 1986 (the VE Act).

3. Sub-section 120(4) of the VE Act applies in relation to Mr Hawksworth defence service, and consequently the Tribunal is required to decide all relevant matters to its reasonable satisfaction. This means that the Tribunal must decide whether, on the balance of probabilities, his claimed conditions are defence-caused.

4. As the claim was lodged after 1 June 2004, the Tribunal is required to apply s 120B of the VE Act in reaching its decision. This means that the Tribunal must decide matters to its reasonable satisfaction in accordance with any Statement of Principles (SoP) issued by the Repatriation Medical Authority. In this case it is common ground that the relevant SoP relating to osteoarthrosis is Instrument No 32 of 2005.

mr hawksworth’s case

5.      Mr Hawksworth suggested that his osteoarthrosis of both hips was related to his service through either factor 6(f) or 6(i) of SoP Instrument No 32 of 2005.  These factors describe trauma to the affected joint and lifting while weight bearing through the affected joint, respectively.

6.      In relation to weight bearing, Mr Hawksworth described training sessions for tug-of-war competitions.  He said that a pulley was used during these training sessions which effectively transferred a horizontal pulling force into a lifting effect.  He suggested that this action of pulling was equivalent to lifting loads of at least 35 kg while weight bearing through the affected joint. 

7.      In relation to trauma, Mr Hawksworth described an injury which occurred while he was undertaking service-related physical training/sport in 1987.  He said that he was playing basketball and leapt into the air, but as a result of impact from an opponent, landed directly on the right side of his body, sustaining an injury to his right hip.  Mr Hawksworth said that the game had been played on asphalt and the immediate sign of the injury was a severe abrasion in the area of his right hip about the size of his palm.  Mr Hawksworth immediately proceeded to the Regiment Aid Post for treatment and dressing of the abrasion.  Mr Hawksworth said that the next morning he awoke and found that he was stiff and sore.  He said that he could not get out of bed in his usual way and that a restriction in his ability to move his hips, particularly his right hip, lasted for up to 40 minutes.  Mr Hawksworth said that he was then able to get to work and perform his sedentary duties.  He said however that after a period of sitting, he again found that his ability to walk was restricted for a time.  He also said that in the evenings, he found it difficult to raise himself from a seated position.  Mr Hawksworth said that he developed a limp and could not participate in physical training or any other activities that would have tested out his range of motion, for at least 14 days.

8.      Mr Hawksworth referred to a report recorded at his medical board in 1997 of a restriction in range of movement of his right hip.  He also said that in 2001, x-rays revealed osteoarthrosis of his hips, more significant on the right side.  Mr Hawksworth referred to a radiological report dated 26 March 2003 (T9/76).  This report reads as follows:

“Degenerative changes are present in both hip joints.  Changes are more advanced on the right side and appearances suggest previous trauma at this site.  There is no recent boney injury.”

9.      Mr Hawksworth submitted that osteoarthrosis of his right hip had been caused by a process of degeneration triggered by trauma, experienced in a service-related fall in 1987.

consideration of the evidence

10.     It was common ground that Mr Hawksworth did experience osteoarthrosis of both hips, more significant on the right.  It was also common ground that this condition had been diagnosed within 25 years of both service training for tug-of-war activities and of a fall on the basketball court in 1987.  The Tribunal so finds.

11.     The Tribunal found Mr Hawksworth to be a credible witness.  At one stage Mr Hawksworth said that he had been told that he “doesn’t sell himself very well”.  The Tribunal could understand this comment.  Mr Hawksworth provided his evidence honestly and certainly did not overstate the gravity of the symptoms he experienced as a result of his fall on the basketball court.

12.     The Tribunal first considered whether Mr Hawksworth’s circumstances fell within factor 6(i) of the relevant SoP.  This factor reads as follows:

“6.The factor 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 is:

…

(i)for osteoarthrosis of a hip, knee or ankle joint only, lifting loads of at least thirty-five kilograms while bearing weight through the affected joint to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of osteoarthrosis in that joint, and where the clinical onset of osteoarthrosis in that joint occurs within the twenty-five years following that period; or

…”

13.     Mr Hawksworth relied on his training for tug-of-war competitions.  He said that the use of a pulley simply transferred the direction of the weight.  It had the effect of lifting weight which would, in competition, be pulled.  Mr Hawksworth suggested that the definition of “lift” was satisfied in that by pulling on the rope, weight was lifted vertically through the affect of a pulley.

14.     The Tribunal was not satisfied that the horizontal force exerted by pulling on a rope was equivalent to the vertical force normally experienced through lifting.  Had the Repatriation Medical Authority intended to include force through hips caused by pulling as well as lifting, it could have included this term in the relevant factor.  The Tribunal is reasonably satisfied that Mr Hawksworth’s circumstances do not match factor 6(i) of the relevant SoP. 

15.     In relation to trauma, factor 6(f) of the relevant SoP reads as follows:

“6.The factor 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 is:

…

(f)having a trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis in that joint; or

…”

16.     The SoP defines “trauma to the affected joint” as meaning:

“… a discrete joint injury that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the 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 and that medical intervention involves either:

(a)       immobilisation of the joint or limb by splinting, or similar external agents; or

(b)       injection of corticosteroids or local anaesthetics into that joint; or

(c)       surgery to that joint.”

17.     On the evidence before it, the Tribunal finds that Mr Hawksworth experienced a significant trauma to his right hip while playing service-related basketball in about 1987.  Whilst the grazing caused by the fall, which has now left a scar, may not be relevant in itself, it is, in the Tribunal’s view, consistent with significant trauma to Mr Hawksworth’s right hip.

18.     The Tribunal also finds, on Mr Hawksworth’s evidence, that he experienced symptoms and signs of pain and tenderness and altered mobility and range of movement of his right hip joint within 24 hours of the trauma.  Mr Hawksworth was found to have osteoarthrosis of both hips, more prominent on the right, within 25 years of his fall.  The Tribunal notes the radiological report dated 26 March 2003 which indicated that the degenerative changes were more advanced on the right side and appeared suggestive of previous trauma to that site.  The Tribunal was also satisfied that the above-mentioned symptoms and signs continued for a period of at least 14 days.

19.     The Commission argued that any symptoms and signs which were present, could not be considered to have lasted for 14 days because the verb “to last” required those symptoms and signs to be present constantly throughout the period of at least 14 days.  The Commission did not refer to any authority supporting this contention and the Tribunal has been unable to find any.  The Tribunal has noted the beneficial nature of the veteran’s legislation and in considering the intent of the Repatriation Medical Authority in defining “trauma to the affected joint”, has reached the view that relevant signs and symptoms such as those experienced by Mr Hawksworth during periods of each day for at least 14 days following the trauma, satisfy the definition of “trauma to the affected joint”.

20.     The Commission also suggested that any alteration in mobility or range of movement of the joint needed to result from a boney or mechanical impediment to movement in the joint rather than an impediment to movement caused by pain.  It was pointed out that on eventual diagnosis, the restriction in Mr Hawksworth’s hip seemed to be caused by such a mechanical obstruction.  The Tribunal notes that the minimum requirement provided in the SoP, that altered mobility or range of movement last for at least 14 days, seems to anticipate that such symptoms and signs would abate thereafter.  In the Tribunal’s view, such an easing of symptoms may occur through an easing in pain in the area.  The Tribunal has accepted all of the evidence provided by Mr Hawksworth in respect of trauma to his right hip.  The Tribunal is satisfied that Mr Hawksworth’s service-related fall in 1987 and the effects of that fall meet factor 6(f) of the relevant SoP in relation to Mr Hawksworth’s right hip joint. 

21.     The Tribunal finds that Mr Hawksworth’s osteoarthrosis to his right hip was defence-caused with effect from 3 months prior to his claim, that is from 2 May 2006.  In all other respects, the Tribunal affirms the decision under review.  In relation to osteoarthrosis of the right hip, the Tribunal sets aside the decision under review and substitutes a new decision that osteoarthrosis of Mr Hawksworth’s right hip was defence-caused.

I certify that the 21 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)
And Mr S J Ellis (Member)

Signed:         .....................................................................................
  Associate

Date of Hearing  12 December 2007
Date of Decision  25 January 2008
Advocate for the Applicant        Self represented

Advocate for the Respondent   Mr A Crowe

DVA