Holt and Repatriation Commission

[2008] AATA 242

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2008] AATA 242

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/4715

VETERANS' APPEALS DIVISION		)
Re		RONALD FREDERICK HOLT

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mr J G Short (Member)

Date28 March 2008

PlaceAdelaide

Decision The decision made by the Repatriation Commission on 22 February 2007, and affirmed by the Veterans’ Review Board on 25 July 2007, determining that the applicant’s osteoarthrosis of the left knee is not related to service, is affirmed.  

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

J G SHORT
  (Member)

CATCHWORDS

VETERANS AFFAIRS – veterans' entitlements – Disability Pension – osteoarthrosis of left knee – whether disease caused by war service – trauma – lifting – date of clinical onset of condition – decision affirmed

Veterans’ Entitlements Act 1986 ss 13, 120, 120B, 196

Repatriation Commission v Smith (1987) 15 FCR 327
Lees v Repatriation Commission (2002) 125 FCR 331

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Statement of Principles Instrument No 32 of 2005

REASONS FOR DECISION

28 March 2008   Mr J G Short (Member)

1.      Mr Ronald Holt has sought review of a decision affirmed by the Veterans’ Review Board (the VRB) on 25 July 2007, determining that osteoarthrosis of his left knee is not related to his service.  Mr Holt contends that his condition is related to service through experiencing trauma to his left knee during service, and/or handling/lifting 44 gallon drums during his service.

background

2.      Mr Holt served in the Australian Army from 18 December 1941 until 10 April 1946.  All of this service is eligible service, however for the purposes of the Veterans’ Entitlements Act 1986 (the VE Act) it is not classed as operational service.

3.      It is not in dispute between the parties that Mr Holt presently suffers from osteoarthrosis in his left knee.

statutory framework

4. Section 13(1) of the VE Act relevantly provides that the Commonwealth is liable to pay a pension to a veteran where the veteran has become incapacitated from a war-caused injury or disease.

5. Because Mr Holt’s service was not operational service, the standard of proof applicable in this case is prescribed by s 120(4) of the VE Act, namely to the Tribunal’s reasonable satisfaction. This equates to the civil standard of proof, namely proof on the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327 at 335.

6. Neither party bears any onus of proof in relation to the matter (s 120(6) of the VE Act), but s 120B of the VE Act provides that the Tribunal will not be reasonably satisfied that a particular injury or disease was war-caused unless the material before the Tribunal, which raises the connection between the injury or disease and the relevant service, conforms to a Statement of Principles (SoP) determined under s 196B(2) of the VE Act. In the present case, the SoP relating to osteoarthrosis is Instrument No 32 of 2005.

7.      Clause 5 of the SoP requires that at least one of the factors set out in clause 6 be related to any relevant service rendered by the applicant.  The factors set out in clause 6, which may be relevant in the present case are:

“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

…

(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

…”

consideration

8.      I first note that factors 6(f) and 6(i) both require the clinical onset of osteoarthrosis to fall within 25 years of the event or, in the case of lifting, the 10 year period, during which the trauma or lifting occurred.

9.      I will first consider the question of the date of clinical onset of osteoarthrosis of the left knee.  The clinical onset of a disease occurs “either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present”.  See Lees v Repatriation Commission (2002) 125 FCR 331 and Re Robertson and Repatriation Commission (1998) 50 ALD 668. Mr Holt told the Tribunal that he had injured his left knee when jumping from the back of a truck. He said that his knee swelled over night and that he remained in hospital for about 7 days and then discharged himself, returning to his duties as a transport driver.

10.     Mr Holt said that during the approximate 4½ years he worked as a transport driver, he was primarily required to transport 44 gallon drums and that during virtually all of that time he was required to personally load and unload his truck.  He said he loaded the truck from a railway siding by leaning the 44 gallon drums onto one side of one end and then rolling the drums onto the back of his truck.  The drums were unloaded by pushing them from the back of the truck onto a cushion of truck tyres.

11.     Mr Holt was referred to an extract from the reasons of decision provided by the VRB following its hearing on 25 July 2007: 

“… He said that after the war he worked as a cabinet maker and joiner until he retired in 1987 and that he was not troubled by his knee during his working life.  Recently he went to see his local doctor because his knee just gave way and he was told his knee is ‘buggered’ as it is worn out. …”

Mr Holt confirmed that he had worked as a cabinet maker until about 1987 and that he had not been required to take any time off work due to his left knee.  He did say however that he was troubled from time to time with his knee.  He said that it may swell up on occasions.  He gave as an example swelling which might occur after twisting his knee while working in the garden. 

12.     Mr Holt said that the earliest date upon which he was likely to have consulted a doctor about his left knee would have been in or about 2005 and the first time the left knee condition was confirmed by x-ray report was in January 2007.

13.     The advocate for the respondent (the Commission) sought an adjournment so that he might obtain a transcript of the VRB hearing and further information from the applicant’s local medical officers.  Mr Holt strenuously opposed any such adjournment.  He wished the matter concluded as soon as possible.  The Tribunal declined the Commission’s application for an adjournment.

14.     “Clinical onset” of a condition is not to be confused with the first occasion upon which a person might experience pain from a particular condition.  The definition of osteoarthrosis for the purposes of the SoP is:

“… 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.”

15.     Although Mr Holt has now reported some periods of pain and impaired function during his working life, the Tribunal has had regard to all of the evidence in this case, including advice from Mr Holt’s current local medical officer that the first time Mr Holt consulted that particular doctor in relation to his condition was 22 January 2007 (T6/22).  The Tribunal has also noted a radiological report dated 23 January 2007 indicating, on that date, that Mr Holt’s knees showed significant degenerative changes bilaterally.

16.     Assuming for one moment that Mr Holt did experience a trauma as described in the relevant SoP and/or lifted loads of at least 35 kg while weight bearing through the affected joint to a cumulative total of 168,000 kg, perhaps during his last year of service, then in order to satisfy the SoP, the clinical onset of osteoarthrosis would need to be by about 1980.  In this case, the condition was first identified by x-ray in January 2007 and the earliest date, post service, upon which Mr Holt sought treatment for his knee was about 2005.  In these circumstances, the Tribunal is reasonably satisfied that the clinical onset of osteoarthrosis of Mr Holt’s left knee was no earlier than 2005.  In these circumstances, and without a need to make a finding in respect of whether Mr Holt satisfied the other requirements of factors 6(f) and/or 6(i), the Tribunal is satisfied that the clinical onset of osteoarthrosis of Mr Holt’s left knee was not within 25 years of the circumstances prescribed in the abovementioned  factors.

17.     The Tribunal has also considered the other factors recorded in the SoP, but has been unable to find that Mr Holt’s circumstances meet any of those factors.  The Tribunal has concluded that none of the factors contained in clause 6 of the SoP are satisfied and, accordingly, the decision under review is affirmed.

I certify that the 17 preceding paragraphs are a true copy of the reasons for the decision herein of Mr J G Short (Member)

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

Date of Hearing  22 February 2008
Date of Decision  28 March 2008
Advocate for the applicant        In person

Advocate for the respondent     Mr A Crowe

DVA