Kandilas and Repatriation Commission
[2000] AATA 405
•12 May 2000
DECISION AND REASONS FOR DECISION [2000] AATA 405
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N1999/755
VETERANS' APPEALS DIVISION )
Re FRANCIS LEON KANDILAS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date12 May 2000
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N1999/755
)
VETERANS' APPEALS DIVISION )
Re FRANCIS LEON KANDILAS
Applicant
AndREPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M.D. Allen
Date 12 May 2000
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant, Francis Leon Kandilas, is entitled to pension for the war-caused injury of osteoarthritis of the right knee as and from 9 October 1997; and
2.This matter be remitted to the Respondent, Repatriation Commission, in order that it might assess the rate of pension to be paid for incapacity from all war-caused injuries and diseases suffered by the said Francis Leon Kandilas.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Osteoarthritis of knee as a result of war time injury. Application of Statement of Principles. Trauma. Not satisfied injury did not occur and sequelae not as described by Applicant.
Veterans' Entitlements Act 1986
Repatriation Commission v Deledio 83 FCR 82
Repatriation Commission v Gosewinckel (1999) FCA 1273
Keeley v Repatriation Commission [2000] FCA 532
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed: Ivanka Mamic
....................................................................................Associate
Date of Hearing 12 May 2000
Date of Decision 12 May 2000
Counsel for Applicant Mr C ColborneSolicitor for Applicant Mr B Williams, Vardanega Roberts
Advocate for Respondent Mr P Godwin, Department of Veterans' AffairsDRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N755 of 1999
KANDILAS and repatriation department
sydney, friday, 12 may, 2000MR ALLEN: In this matter by way of application lodged with the Tribunal on 20 May 1999, the applicant seeks review of decision by the respondent made 12 January 1998 to refuse his claim for osteoarthritis of the right knee. That decision was affirmed by a Veterans Review Board on 9 April 1999.
The general facts are not within great dispute, and the respondent's statement of facts and contentions concede that the standard of proof in this matter is that specified in subsections (I) and (iii) of the section 120 of the Veterans' Entitlements Act 1987 the claim being lodged in 1998. In order to support a reasonable hypothesis, the facts must fit within the template of a so called statement of principles.
The manner in which the Tribunal should approach its task where there is a statement of principles was set out by the Full Court of the Federal Court in Repatriation Commission v Dalidio (1983) FCR 82 and I would refer also to the discussion of that case by Wineberg J in Repatriation Commission and Goosewinkle (1999) FCA 1273.
The Court said in Dalidio that:
(1)The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
(2)If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force a statement of principle determined by the authority under subsections 196B(2) of (11). If no such statement of principle is in force, the hypothesis will be taken not to be reasonable.
I would only pause to say that latter statement is now generally conceded to be incorrect. If there is no SOP, then one reverts to simple reasonable hypothesis standard but that doesn't apply in this case. The Court then continued:
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©Auscript Pty Ltd 2000If an SOP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say is consistent with the template to be found in the SOP. The hypothesis raised before it must thus contain one or more of the factors which the authority has determined to be the minimum which must exist and be related to the person's service, as required by subsections 196B(2)(d) and (e).
If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be reasonable and claim will fail.
The Tribunal must then proceed to consider under subsection (1) of section 120 whether it is satisfied beyond reasonable doubt that the death was not war caused or, in the case of a claim for incapacity, that the incapacity did not arise from a war caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it.
In so doing, no question of onus of proof or the application of any presumption will be involved. In this matter, as the particular statement of principle, which was in force at the time the respondent made its initial decision, is instrument number 71 of 1995, as amended by instruments numbers 336 and 352 of 1995.
As was pointed out by the Full Court of the Federal Court in Repatriation Commission v Keely, 2000 FCA 532, it is the statement of principle in force at the time of the original decision which must be applied by this Tribunal in considering the matter. The applicant throughout has given a consistent history as to what happened to him. He was stationed at Bundaberg and was working on an aircraft engine when one of the cylinders of the engine fired and the air screw turned so that it swung around, hit him on his side and knocked him off the engine stand so that he fell approximately 6 feet onto the asphalt tarmac.
He was picked up by his colleagues and taken to the base medical facility and there he remained in bed for 3 days with bruising to his right side, extending from his calf to his thigh and he was bandaged. Other treatment also consisted of a hot bath. The fact of the accident and his treatment is contained in his service medical documents and they are reproduced at pages 12, 13 and 14 of the documents prepared
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for the Tribunal pursuant to section 37 in the Administrative Appeals Tribunal Act 1975.
After 3 days in the base medical facility, he was given a walking stick and discharged to light duty. He said today that, "He had difficulty getting up the steps into his hut and he spent most of the time there in his bed recuperating; reading mostly but having no actual duties." He was in pain from his injury. It was difficult to localise the pain as the whole area was painful. He put it as "pretty awful at the time". As for the stick, he had that for some months and he became at times embarrassed about it because as he said, "The other chaps made jokes about it" and he had a limp.
It was only in recent years that the injury came back on him and he first had problems he said in the early 1970s. He then went to a Dr Cumberland, an orthopaedic surgeon, because of pain in his knees in the 1990s and there is a report by that orthopaedic surgeon at document T8 of the Tribunal documents. It reads, inter alia:
Mr Kandilas presents for a review of his right knee. He asked if an injury during the war may have initiated his arthritis and this is certainly possible reading his record of injury, which states that an air screw kicked and hit him on the right thigh, knocking him about 6 feet away. Subsequent examination showed a range of motion in his right knee, like today, but he had difficulty weight bearing and had extensive bruising along the anteriolateral aspect of his right thigh. In the absence of any other history of right knee or leg injury, which is the case with Mr Kandilas, it seems only reasonable to attribute his right knee arthritis, at least in part, to his war injury.
Dr Cumberland ends his report by stating:
If Mr Kandilas wanted to use this letter in any claim against Repat, he has my blessing.
Normally one would think that would be sufficient, being a report from the treating orthopaedic surgeon to found a reasonably hypothesis. However, apparently the Repatriation medical authority knows more than treating surgeons and therefore we must have regard to the statements of principle. There is a further report in the documents, which is at T12, from Dr Hopcroft, who is also a surgeon specialising in orthopaedics. That report dated 18 November 1988 reads, inter alia:
The patient can recall having extensive bruising along the anteriolateral aspect of his thigh and although his knee was
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©Auscript Pty Ltd 2000able passively to be put through a full range of movement, he had extreme difficulty moving his knee actively and great difficulty weight bearing on the right leg. He had an abrasion with extensive bruising surrounding it, also on the right anteriolateral thigh.
He remained in hospital for a period of 3 days, a relatively protracted period of time under the circumstances and I believe reflecting the severity of the injury. Even today, such an injury is unlikely to be kept in hospital for 3 days unless it was particularly severe. Although the patient was discharged back onto duty by Dr Knott on 6 November 1944, he continued to limp for a period of 3 weeks and used a walking stick for a period of 3 months.
Dr Hopcroft concluded by stating:
This patient obviously continues to suffer from the effects of an ancient injury of his knee, which I believe dates from 03/11/44, the time of a significant injury to his anteriolateral thigh and knee where he fell 6 feel from a stand after being knocked by an air screw which kicked. 3 days in hospital was a considerable period of immobilisation for such an injury and reflects only the degree and severity of the signs and symptoms at the time.
The patient walked with a stick for 3 months, once more reflecting a significant knee injury which obviously progressed gradually to marked osteoarthritis in the joint and disruption of the ….. meniscus. It is also most important, in considering the ethology of this injury, that the patient has no problems whatsoever with his left knee. He has also not had any further trauma to this joint, that episode of 03/11/44 being the only injury suffered.
There are in evidence further reports from Dr Hopcroft, the first of which is dated 1 December 1999, which reads, inter alia:
It is also important to note that the patient has basically 2 injuries on 03/11/44. One was the striking of his right thigh by an air screw and secondly of immediately falling 6 feet to the ground. While the initial blow certainly would have involved a significant valgus strain to this patient's right knee, it may well have been that on landing a virus component to the injury took place.
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©Auscript Pty Ltd 2000It is to be noted that the patient did not go onto a complete recovery from his thigh injury over a period of a few weeks but in fact limped for a period of 3 weeks and used a walking stick for a period of 3 months.
Turning to the patient's xray of his right knee taken on 11/12/96, it states that:
There is some ossification of the quadriceps tendon.
While the other features of that xray led the radiologist to the opinion that the patient had features consistent with mild osteoarthritis, osteoarthritis only addresses the changes intra-articularly in the joint and does not address the issue of ossification ectopically of the quadriceps tendon which is almost certainly a reflection of direct trauma to the knee.
The other reports by Dr Hopcroft, which were exhibits A3 and A4, refer to xray reports and Dr Hopcroft was being particularly cautious in his opinions. In the report of 15 February 2000, he particularly states:
I believe it will be mandatory for me to view both of these xrays concurrently to draw the necessary conclusion that his right knee does in fact manifest now objectively on xray unilateral changes of past trauma.
In evidence before the Tribunal today and also in the report which is A4, Dr Hopcroft refers to the xray of the left knee and, as he said:
Because I saw the xrays of the left knee which didn't show ossification
he can now say that the ossification shown in the right knee is due to trauma. He stated also that after a significant injury to the knee the patient can go for views asymptomatic and then become symptomatic and he repeated his opinion that the blow which the applicant suffered during service and before, is responsible for the now osteoarthritis of his right knee. In cross-examination he did say that a blow to the thigh would cause difficulty walking but no doubt when a person is injured, such as the applicant was, with considerable bruising etcetera, any injury to the knee is just part and parcel of a larger injury.
The applicant was questioned as to why he did not make any mention of this injury on discharge. I note that cross-examination he said he simply wanted to get out and get out in a hurry. Well, he is not the first
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©Auscript Pty Ltd 2000veteran who has stated that and one can readily understand it. I note also he said to the Veterans Review Board that he was not having any knee problems at the time of discharge and did not see the need to report it. The veterans Review Board said that the on-set of the osteoarthritis is of relatively recent origin but not, of itself, unusual.
The veteran has not previously mentioned knee problems in his past applications to the Commission is again, not of itself, remarkable nor is his account of why there was no reporting of the incident at the time of his discharge medical examination. I would only say that I concur with those particular comments. The statement of principle says, in paragraph 1(b)(6) that:
For generalised or localised osteoarthritis a factor is suffering a trauma to the relevant joint before the clinical onset of osteoarthritis.
"Trauma to the relevant joint" is then defined in the following terms:
Means a joint injury caused by the force of an extraneous physical or mechanical agent that causes the development …(reads)… and there is evidence relating to the extent of the injury and treatment such evidence may be considered.
It seems beyond dispute to me, in this case in any event, that the applicant did receive considerable injuries following the propeller striking him and his fall. It is documented that he was in a base medical facility for three days; that he was bandaged at that time he also had hot baths as treatment; then was discharged and although the records say "Discharged to duty" I accept his evidence that he, in fact, did nothing and also had a stick which he used for some time. Notwithstanding the report of Dr Hyatt Page to the respondent where that doctor says:
I have read the statement of principles which deal with trauma to a joint and do not feel the accident suffered by this man meets the requirements for this. This man's present knee condition would not be related to that incident back in 1944.
I am more persuaded, of course, by the reports of Dr Hopcroft and also the treating surgeon and I am also satisfied that the facts which have been raised in this mater brings the applicant clearly within factor (1)(b)(6), namely that he suffered a trauma to the relevant joint and as far as the definition of trauma is concerned there is, of course, the hospitalisation, the bruising, there was the pain all over, tenderness and there was an altered mobility which lasted for a considerable period. All
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©Auscript Pty Ltd 2000in all it seems to me that the state of the facts fit within the template of the particular statement of principle.
Then, the facts having been raised, almost certainly cannot be satisfied beyond reasonable doubt that those facts did not occur in the circumstances therefore the decision under review is set aside and in this matter the Tribunal substitutes its own decision namely that the applicant Francis Leon Kandilas is entitled to pension for the war caused injury of osteoarthritis, right knee as and from the 9th day of October 1997 and that this matter is remitted to the respondent Repatriation Commission in order that it might assess the rate of pension to be paid for all war caused injuries and diseases suffered by the applicant.
ADJOURNED INDEFINITELY [12.04pm]
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