Hodgkinson and Repatriation Commission - [2000] AATA 732

DECISION AND REASONS FOR DECISION [2000] AATA 732

ADMINISTRATIVE APPEALS TRIBUNAL )

) No A1999/372

VETERANS' APPEALS DIVISION       )
           Re      MICHAEL JOHN HODGKINSON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE

Date21 August 2000
PlaceCanberra

Decision      Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
  (Signed)
  J.A. KIOSOGLOUS
  (Senior Member)
CATCHWORDS
VETERANS' AFFAIRS – Veterans' Entitlements – osteoarthrosis – statement of principles (SoP) considered – whether applicant meets SoP – "trauma to the relevant joint" considered
Veterans' Entitlements Act 1986
SoP No. 72 of 1995
SoP No. 337 of 1995
SoP No. 353 of 1995

REASONS FOR DECISION

21 August 2000 Senior Member J.A. Kiosoglous MBE

This is an application by Mr Michael John Hodgkinson (the applicant) for review of a decision of the Veterans' Review Board (VRB) dated 22 March 1999 (T11) which affirmed upon review a decision of a delegate of the respondent dated 8 August 1996 (T2) refusing the applicant's claim in respect of osteoarthrosis right and left knees.
The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T14), together with six exhibits, one lodged by the applicant (Exhibit A1) and five lodged by the respondent (Exhibits R1-R5). In addition, the Tribunal heard evidence from the applicant, and from Dr A. Brook, Rheumatologist, called by the respondent. The applicant represented himself and the respondent was represented by Mr P. Godwin, a departmental advocate.
The applicant was not contesting the decision under review in respect of his right knee, leaving the issue for the Tribunal to determine as to whether or not the applicant's osteoarthrosis of the left knee is war-caused.
history of the application
The applicant served in the Royal Australian Air Force from 24 January 1952 to 1 February 1990, with eligible service being from 7 December 1972 to 1 February 1990.
The applicant's claim for osteoarthritis of right and left knees was rejected by the respondent on 8 August 1996 (T2). This decision was affirmed upon review by the VRB who stated (inter alia) in its reasons for decision (T11):
"…
19. The material before the Board showed that certain injuries to Mr Hodgkinson's knees did take place, but they had occurred prior to his eligible defence service, which commenced 7 December 1972. There was no material before the Board showing any trauma (as defined) during eligible service.
20. It followed from the foregoing that eligible defence service related trauma to the knees was neither a causal nor an aggravating (clinical worsening) factor in the development of Mr Hodgkinson's condition in that the relevant factors …did not exist in this case.
…"
The relevant Statement of Principles (SoP) for osteoarthrosis is No. 72 of 1995, as amended by SoP Nos. 337 and 353 of 1995. SoP 72 of 1995, as amended, provides (inter alia):
"…
2.…
(vi)suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis
…
(x)suffering a trauma to the relevant joint before the clinical worsening of osteoarthrosis; or
(xi)for osteoarthrosis of a weight bearing joint of the lower limb, being occupationally required to undertake continuous heavy physical activity for at least 15 years before the clinical worsening of osteoarthrosis;
…
6. …
"trauma to the relevant joint" means a joint injury caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least ten days immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of injury and treatment, such evidence may be considered.
…"
The relevant date of effect is 13 April 1999. The standard of proof is to the Tribunal's reasonable satisfaction, which means that it need be more probable than not.
applicant's evidence and submissions
The applicant stated that he had problems with his knees in the 1960s and 1970s but did not worry about consulting doctors at that stage because he was concentrating on his career. He further stated that he had problems in Perth in the early 1970s and that such problems persisted throughout the 1970s and 1980s with the type of work he was required to do, which involved climbing all over aircraft.
The applicant told the Tribunal that he had an incident in 1988 in which he was running up stairs at the Defence Force offices in Russell. He reached a landing and his left knee gave way, resulting in him falling against the wall, striking his shoulder and the outer edge of his left knee. He stated that it was not a "hard whack" but more of a bump into the wall. He further stated that he would have exclaimed along the lines of "oh hell" and kept climbing. He considered "trauma" to be an emotional rather than physical impact, and so it did not occur to him that the incident was "trauma" until his more recent involvement with the SoPs.
He told the Tribunal that, as the swelling following this incident did not go down as it had on previous occasions, he attended his doctor, and eventually specialists, resulting in surgery.
medical evidence
Dr R. Vance, Orthopaedic Surgeon, stated (inter alia) in a specialist consultation report dated 25 June 1987 (T11/71):
Aching in the knees has occurred especially in winter, for some years. (L) knee "gave way" on stairs about 1/12 ago. Swells from time to time. Feldane relieved the aching.
…
"

Dr D. McNicol, Orthopaedic Surgeon, prepared a report dated 2 October 1991 (T6/42) in which he stated "this man's left knee problem was permanent and static on 13 June 1988". In a subsequent report dated 8 December 1998 (T10) he stated (inter alia):
"…
I first saw Wing Commander Hodgkinson on 4th July 19[8]8 at the age of 52 years. He presented with a history of bilateral knee pain worse on the left than the right side of some years duration. He told me his problem was intermittent in nature and usually followed minor injury. He experienced swelling and clicking. His left knee gave way but there was no locking.
…
… It would seem to me that it is likely that these injuries occurred in the period before the 7th December 1972, and have been aggravated in the subsequent years of service. …"
Dr W. Harrex, Occupational Physician, prepared a report dated 5 January 2000 (Exhibit A1) in which he stated (inter alia):
"…
Given your statement that you hit your knee against the wall running up the stairs on 21 June 1988, combined with the fact that you were using anti-inflammatory medication from then until at least 7 July 1988, and you required x-rays and a referral to an orthopaedic surgeon, I am of the opinion that you may have sustained an injury to your left knee on the 21 June 1988 which meets the definition of trauma as defined by the Repatriation Medical Authority (RMA).
… I am of the opinion that during your period of eligible RAAF service, trauma to your left knee has contributed to clinical worsening of osteoarthritis in that joint."
Dr A. Brook, Rheumatologist, prepared a report dated 29 February 2000 (Exhibit R4) in which he stated (inter alia):
"…
… Also there is no doubt in my mind and Dr McNicol agrees that the most likely cause of the internal derangement was sporting injuries and in fact he describes these playing Rugby where there is doubt is significant episodes of trauma since 1972. Apart from an episode of pain and swelling which fits in with the diagnosis occurring when the knee gave way going upstairs there is no other clear cut episode. I would of course regard this as a symptom of osteoarthritis. However I am impressed by the fact that he was obliged to work using his knees in ways I would specifically warn against for those with osteoarthritis of the knee namely squatting and kneeling and one also relatively warns against going up and down steep slopes and steps (this includes ladders) where again the knee has to be loaded while flexed."
In a subsequent report dated 24 July 2000 (Exhibit R5) he stated (inter alia):
"…
He [Dr Harrex] says "I am of the opinion that you may have sustained an injury to your left knee on 21 June 1988 which meets the definition of trauma as defined by the RMA". I agree with this as set out in the second paragraph page 3 of my report of the 29th February 2000.
…
Dr Harrex goes on "I am of the opinion that during your period of eligible RAAF service trauma to your left knee has contributed to clinical worsening of osteoarthritis in that joint". Given that the injury to the knee on 21.6.88 caused swelling and pain and ongoing referral to an orthopaedic surgeon I agree with the conclusion that the injury "contributed to clinical worsening of osteoarthritis in that joint".
In oral evidence, in support of his reports, Dr Brook stated that he considered that the "giving way" of the knee in the 1988 incident was indicative of a significant problem rather than the bump against the wall. He was sceptical however, as to whether the knee "giving way" and the "bump against the wall" could be separated or considered as distinct events.
In his opinion the giving way was more likely to be a significant event, as if it were bad enough to cause a fall then it would be an event of some significance.
respondent's submissions
Mr Godwin submitted, on behalf of the respondent, that the clinical onset of the applicant's osteoarthrosis in the left knee was no later than 1987, and that there is no evidence of trauma before this time.
He further submitted that the definition of "trauma to the relevant joint" is not met, as there was no extraneous agent contributing to the incident alleged in 1988. He also submitted that the applicant did not have a history of continuous heavy work for 15 consecutive years.
discussion and findings
From the Tribunal's point of view, this case is simply a matter of whether or not the applicant meets the relevant criteria in the SoP. There is no issue as to the applicant's credit, and the Tribunal certainly found him to be a credible witness. The Tribunal would also comment that the applicant has given significant service to his country.
The SoP definition of trauma to the relevant joint is that as amended by SoP No. 353 of 1995, and requires an extraneous physical or mechanical agent that causes the development of acute symptoms within 24 hours of the injury being sustained.
In oral evidence before the Tribunal, the applicant was able to explain in greater detail than he had on previous occasions, the "traumatic" event in 1988 when he was running up the stairs at the Russell offices. This was the only alleged traumatic event before the Tribunal, and it was raised in relation to either factor 2(vi) or (x) of the SoP.
As described to the Tribunal, the applicant's knee gave way as he rounded the landing before tackling the next lot of steps. This caused him to fall, at which time he bumped his knee and shoulder against the wall. He described the actual bump as not being a "hard whack".
Dr Brook was given an opportunity to comment on the specifics of the applicant's evidence to the Tribunal. As his is the only medical evidence to take into account the applicant's evidence before the Tribunal, it must be accorded some weight. Dr Brook considered that the knee giving way was evidence of a significant underlying problem, and that the giving way was more likely to be the significant event. To cause a knee to give way he considered that there must be some significant problem already present. The knee giving way presents as either an aggravation and/or symptom of the underlying problem, which, by its very nature may well have been likely to require surgical intervention at some stage.
On the evidence before the Tribunal, it appears that the most likely explanation for the incident in 1988, is that the applicant's knee gave way, and that this giving way was the significant event or aggravation of the underlying condition that lead to the need for the subsequent operative treatment. In the Tribunal's assessment, banging his knee on the wall was only a secondary consequence. Whilst it is obviously difficult (or impossible) to separate the two aspects of the incident, the evidence before the Tribunal suggests that the knock on the knee was not the force which resulted in the need for subsequent medical treatment.
It is a possibility that the bang on the knee was causative of subsequent problems, but the Tribunal is required to be reasonably satisfied, that being, that it is more probable than not. On the evidence of the applicant and that of Dr Brook, the Tribunal is not reasonably satisfied that the incident as described satisfies the SoP definition of "trauma to the relevant joint" and so finds.
In relation to SoP factors 2(vii) and (xi), introduced by the amending SoP No. 353 of 1995, the applicant is faced with the difficulty of establishing 15 continuous years of heavy physical activity. "Continuous heavy physical activity" is not defined in this particular SoP, but to accord it a meaning consistent with common understanding and the definitions to be found in other SoPs, it would require evidence of repetitive bending, kneeling, carrying, climbing or lifting type movements, occurring for the most part of each and every day for the 15 year period. The applicant described his job requirements to the Tribunal, and certainly the activity involved in crawling around the planes would be heavy physical activity. The problem is establishing 15 consecutive years of continuous activity of this type. Whilst at times the applicant was flat out all day doing such work, over the course of 15 years there was some fluctuation in the physicality of the required work. This much was made clear to the Tribunal, and is also consistent with what the applicant told Dr Brook on 29 February 2000 (Exhibit R4),
"…
… He describes at least seven years when this was "occupationally required to undertake continuous heavy physical activity" (heavy being interpreted as being stressful on the knees because of kneeling squatting and crawling) and for several other years when his work was not as "continuous".
…"

As such, the Tribunal cannot be reasonably satisfied that there is continuous heavy physical activity for at least 15 years prior to either clinical onset or clinical worsening.
The Tribunal is left with the conclusion that the applicant cannot satisfy the SoP in this case. It is an unfortunate result, for the applicant has a long and impressive service record. He was also remarkably honest and forthright in his evidence, and never tried to twist his evidence with a view to the SoP requirements. Whilst this is to his credit, unfortunately, the Tribunal must apply the criteria of the SoP, and in this case, is not reasonably satisfied that any of the factors in SoP No. 72 of 1995, as amended by SoP Nos. 337 and 353 of 1995, are met by the applicant with respect to his left knee.
decision
For the above reasons, and pursuant to section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal affirms the decision under review.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE
Signed:         .........................(Signed)...............................................
  Personal Assistant
Date/s of Hearing  2 August 2000
Date of Decision  21 August 2000
Counsel for the Applicant        In person
Solicitor for the Applicant         -
Counsel for the Respondent    Mr P Godwin
Solicitor for the Respondent    DVA