Lauder and Repatriation Commission - [2000] AATA 303

DECISION AND REASONS FOR DECISION [2000] AATA 303

ADMINISTRATIVE APPEALS TRIBUNAL )

) NoV1999/1010

VETERANS APPEALS DIVISION )

Re GEORGE BRYAN LAUDER
Applicant

And REPATRIATION COMMISSION
Respondent

DECISION

Tribunal Mr J. Handley, Senior Member

Date19 April 2000
PlaceMelbourne

Decision The decision under review concerning gastro-oesophageal reflux is affirmed. The decision under review concerning left knee osteoarthritis is set aside and in substitution for it IT IS decided that osteoarthritis of the left knee is war-caused.

.......Sgd. Mr J. Handley...........
Senior Member

Veterans' Entitlements: eligible service; left knee osteoarthrosis; whether occupationally required to undertake heavy physical activity; decision set aside.

Statement of Principles No. 72 of 1995 and 353 of 1995

REASONS FOR DECISION

19 April 2000 Mr J. Handley, Senior Member

The applicant applies to review a decision of the Veterans Review Board (the "VRB") made on 7 June 1999 which affirmed a decision previously made by the respondent on 23 June 1998. The respondent decided that the conditions of gastro-oesophagael reflux disease and osteoarthritis of the left knee were not war-caused.
Upon the hearing the applicant only challenged the decision with respect to osteoarthritis of the left knee.
The applicant presently receives 70% pension paid under the general rate. He has accepted disabilities of asthma, chondromalacia patellae of the right knee, bilateral sensori-neural hearing loss and calcaneum spurs.
The hearing commenced in Mildura on 27 January. Mr Lauder appeared unrepresented and did not call evidence. The respondent was represented by Mr Rudge who also did not call evidence.
For reasons which will be given later the hearing was adjourned, part heard, for the purposes of permitting each party to provide written submissions upon the evidence and upon the Statements of Principles.
The relevant Statement of Principle for the purposes of this application (having regard to the date of the primary decision) was instrument number 72 of 1995 as amended by instrument number 353 of 1995. The relevant factors were-
"2(b)(vi) suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis".
or
"2(b)(vii) 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 onset of osteoarthrosis".
The definition of "trauma to the relevant joint" found within the Statement of Principle reads-
"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 10 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 Statement of Principle, contains a definition of the words "being occupationally required to undertake continuous heavy physical activity" which reads-
"means working in a job requiring continuous and repetitive flexion, extension, or twisting of the affected joint, frequent carrying of loads of at least 35 kg, lifting of maximal loads in a twisted or bent position or exposure to any combination of these activities on most days for a period of at least 15 years".

(This definition is found in Instrument 357 of 1995.)

For the purposes of this application Mr Rudge conceded that the applicant does suffer osteoarthrosis of his left knee. Additionally Mr Rudge conceded that the clinical onset (by reason of the date of clinical onset not being known) occurred more than 15 years after Mr Lauder commenced his service. In my opinion both of these concessions have been properly and fairly made.
Mr Lauder was a member of the Australian Army between 7 March 1973 and 8 October 1993. All of his service was in Australia. In the circumstances he was engaged in eligible defence service.
George Bryan Lauder
Mr Lauder said that he first noticed left knee pain in about 1986 after physical training at Ennogra. He said the pain came on after performing exercises over very steep inclines and after other physical training exercises. He said he first learnt of a left knee injury at the time that the injury to his right knee was diagnosed. Nonetheless there are no documents recording any left knee injury during service or any treatment for the left knee. Mr Lauder said he did not know why there was no recording yet he only pursued the left knee injury after he completed his service in 1993. He said he frequently applied a liniment or heat to the knee during service and frequently wore an elastic bandage. He said it did not affect his career in the army and he was mindful that if he were to claim for his left knee during service he might have been denied promotion, which he was seeking. During his service Mr Lauder was stationed at a number of different locations, principally working either as a storeman or as a fireman. His first posting in NSW was as a welder, special class, where he was exposed to lifting and manoeuvring of heavy petrol driven motors and generators. Some generators required four persons to lift them. He also was required to lift and manoeuvre oxy acetylene bottles and equipment. He worked on large armoured personnel vehicles performing routine maintenance. One job he described was the removal of drainage plugs where he would work in a cramped confined position below the vehicle and was required to use electric drill to create a hole in the plug and then use an electric saw to either cut or remove the plug. He said adequate leverage was only obtained by positioning the drill against his chest and pushing up into the vehicle using both legs.
Later he was transferred to Townsville where as part of his fireman duties he would be performing daily training often carrying 30-35 kilogram packs of breathing apparatus. He would also have to carry and manoeuvre 100 foot fire hoses, lift and climb ladders and perform rescue drills carrying dummies. On occasions he would have to lift 20 litre drums of phone retardant.
Later Mr Lauder was transferred to a supply depot in Brisbane where he was the only fireman. He said on arrival at this depot it was "a mess". He said there were no overhead sprinklers and the fire system extinguishes had deteriorated. He said he was required over a period of 12 months to check and replace all fire extinguishers, which were varying weights and sizes. There were some forklifts available however some of the work was also undertaken by climbing ladders carrying heavy equipment. It was also required to test motor driven pumps of varying sizes.
Mr Lauder was next transferred to Bandiana base at Albury where he was required to train others in fire and rescue drills. Whilst at this base he was also required to fight a number of grass fires. He also travelled from time to time to Melbourne to collect supplies and deliver them to Albury. The supplies often were very heavy and were manually lifted.
Mr Lauder next was transferred to a depot at Liverpool in NSW where he was required to store, maintain and issue weapons and mortar and make up tool kits for apprentices. He described this work as being very heavy and repetitive and often exposed him to lifting and bending and stooping. He also found the depot to be in a state of deterioration with a great deal of waste and discarded truck and car batteries and tires, which he also manually removed. He said that ammunition was always unloaded by hand and not by forklift in fear of the risk of spark or the ammunition igniting from the mental thymes of the forklift.
At another part of the Liverpool stores Mr Lauder said it was required to maintain, store and manoeuvre large and heavy canvas tents that were used during exercises. He said he worked often alone at Liverpool and found this work to be very heavy. Additionally the Liverpool Depot stored stationary, furniture and electrical equipment and appliances, which he again was responsible for manoeuvring and storing by hand.
At another store he was required to maintain, manoeuvre and lift chain saws, motors, drums of chemicals, rope, cordage and heavy engineering equipment.
Later Mr Lauder was transferred to depots at Ennoggra and to a depot in Western Australia where he performed similar work to that of Liverpool.
When in Western Australia he was also engaged in a large military exercise known as "Kangaroo 89" which had a duration of three months. He said he was principally responsible for establishing the exercise and said that it was a very busy event where he worked six days continuously of each week. He said some forklifts were available but a lot of the work was carried out manually.
Later he was transferred to Port Augusta where he again was involved in loading and unloading equipment and stores, most of which was heavy.
In cross-examination Mr Rudge asked a number of questions of Mr Lauder in order to identify the extent and/or duration of the various jobs undertaken at each Depot.
When employed in NSW as a welder Mr Lauder said that a typical day would commence by a parade and then work would be undertaken repairing vehicles either in a workshop or in the field. He said a trolley was available to manoeuvre generators and oxy acetylene bottles, however if the equipment did not work or the bottles needed to be replaced they would have to be manoeuvred by hand. He said these tasks were very difficult and the equipment was very heavy. He said it would not be uncommon to have to replace generators that had broken down on one or two occasions per week.
He said that some of the welding would be conducted in awkward confined positions often on hands and knees or in a bent cramped or overhead position. The drainage plugs for example that he described in his evidence in chief, which were removed from armoured personnel vehicles would be replaced between two and four occasions per week.
In Townsville he said a typical day comprised checking equipment, comprising ladders, trucks and fire hoses for up to ¾ of an hour of each day. He said trucks were then test driven and radios were also checked and trucks were refuelled. Hoses were checked on one or two occasions per week. The hoses were 100 feet in length and two inches in diameter. This would require the hose being rolled out and checked for pressure and/or leaks and then hung out on racks to dry. He was engaged also in fire fighting drills from ladders where he would have to wrap his legs around wrungs so as not to be propelled from the ladder when the fire hoses were pressurised with water. He also was engaged in foam drills to extinguish fires which would expose him to carrying two 20 litre drums of foam retardant. On other occasions at Townsville he would undertake clerical work or routine store infantry work.
At the Brisbane Depot he said that he replaced extinguishers in 30 warehouses over a period of 12 months. Each extinguisher varied in weight depending on whether it was water or chemical based, but had external dimensions of approximately 18 inches in length and 7 inches in diameter. Each extinguisher was replaced as were mounting brackets and signs. He said that he would either work from a forklift or from a ladder in equal proportions. Additionally he checked petrol driven water pumps, which he said, were of the same size as a car engine. '
When based at Albury he said a typical day would comprise checking the equipment on fire trucks, test driving the trucks and refuelling. He would also be involved on one day per week in a training drill associated with fire fighting. For the rest of the week there would be at least one additional drill per day involving hoses ladders or rescues.
In Albury also he was required to travel to Melbourne for supplies and when in Albury supply equipment, clothing, and uniform to personnel as well as be responsible for repairs.
In Liverpool he was exposed to heavy work on occasions but he conceded that there were days when he also was exposed to light work involving stock control and clerical duties. Similarly he undertook routine stock control involving some light work at Ennoggra and in Western Australia but there were occasions also where he undertook heavy work.
In response to questions from me with respect to the condition of his left leg Mr Lauder said there have not been occasions where he has experienced swelling or tenderness of the knee. He says that he has restricted range of movement on occasions where his knee locks, but he says that those occasions have a duration of less than 1 minute. He is unable to associate the locking in his left knee with any activity.

Conclusion

At the end of the hearing in Mildura I had hoped to be in a position to give oral reasons for decision.
I indicated to Mr Lauder and to Mr Rudge that I could not find as a fact that Mr Lauder was able to satisfy the Statement of Principle being "suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis". This is because I cannot be satisfied that Mr Lauder on his evidence satisfied the definition of "trauma to the relevant joint".
I was uncertain however as to whether Mr Lauder could satisfy the factor being "occupationally required to undertake continuous heavy physical activity for at least 15 years before the clinical onset of osteoarthrosis". This is because of the definition of those words, whether there is any other decision of the Tribunal with respect to this factor and indeed what is intended to be meant by the words which give rise to the definition of "being occupationally required to undertake continuous heavy physical activity". In the circumstances I indicated to the parties that my preferred course would be to adjourn the matter part heard and permit each party to provide written submissions. Mr Rudge indicated that he would provide his submissions within 14 days and I proposed then to have Mr Lauder respond to those submissions and to the Statements of Principles which I arrange for the Registrar to forward to him. Ultimately both Mr Lauder and Mr Rudge did provide written submissions which I have taken into account in concluding this decision.
Reasons For Decision
The ambit aim of this review has been considerably narrowed by the concessions of Mr Rudge, made during the hearing in Mildura, namely:
(i)the applicant does suffer left knee osteoarthritis; and
(ii)the date of the clinical onset of osteoarthritis was more than 15 years after commencement of service (1973).
Both of these concessions were, in my view, properly made. Dr Wishart diagnosed osteoarthrosis in a report to the respondent on 22 April 1998 (T documents page 53). There is nothing in the service documents or any other medical records, which could identify a clinical onset at any earlier date. The symptoms of left knee pain in 1986 giving rise, apparently, for a radiological referral could not amount to clinical onset but do amount to no more than investigation of left knee pain. The diagnosis then, if any, is not known and apparently not known to Mr Lauder. At medical examinations in March and September 1993 (page 20 and 24) there was no reference to the left knee, yet the previously accepted osteoarthrosis of the right knee is mentioned.
The ambit of this review is further reduced because Mr Lauder was in service for 20 years, that is a period of "at least 15 years" and the left knee necessarily amounts to a "weight bearing joint of the lower limb". I am also satisfied that the work performed by Mr Lauder and alleged by him to give rise to this injury was undertaken for at least 15 years.
The issue remaining for decision is whether he was "occupationally required to undertake continuous heavy physical activity ……. ". The phrase (recorded also at para 8) is defined as meaning:
"working in a job requiring continuous and repetitive flexion, extension, or twisting of the affected joint, frequent carrying of loads of at least 35 kg, lifting of maximal loads in a twisted or bent position or exposure to any combination of these activities on most days for a period of at least 15 years".
This definition describes different work concepts and practices. It is disjunctive in construction and requires an analysis of whether the work required:

continuous and repetitive flexion, extension or twisting of the affected joint;
frequent carrying of loads of at least 35 kg;
lifting of maximal loads in a twisted or bent position.

The concluding words require an analysis of whether work involving any of the above concepts or practices was undertaken singularly or in "any combination of these activities on most days (for a period of at least 15 years)".
There was evidence that Mr Lauder performed work for five and sometimes six days per week. This would constitute "most days".
There was much evidence heard from Mr Lauder, which would satisfy this definition. The applicant frequently worked in cramped confined and awkward positions, with his legs bent or extended. He undertook exercises and work where his legs were twisted or abnormally flexed for extended periods. He completed much heavy lifting, either by carrying with his arms or a back mounted pack.
The detailed description of his work as he recounted at the hearing, satisfies me that the applicable factor of the instrument in issue, connecting service with osteoarthrosis has been satisfied, on the balance of probabilities.
The submissions filed by the respondent were unfortunately of little assistance. These submissions referred to evidence of Mr Lauder at the Veterans' Review Board but did not refer to his evidence at the hearing before this tribunal in Mildura. The submissions were completed by an advocate, who did not appear at the hearing and, who apparently was unaware of the concessions made at the hearing.
In all of the circumstances, it is decided that the decision under review, in so far as it decided that gastro-oesophageal reflux was not war-caused shall be affirmed. The decision under review, in so far as it decided that osteoarthrosis of the left knee was not war-caused shall be set aside and, in substitution for it, it is decided that osteoarthrosis of the left knee is war-caused. It is further decided that the decision under review shall be remitted to the respondent, in regard to these findings, for assessment of any pension entitlement with respect to the left knee injury.
I certify that the forty three (43) preceding paragraphs are a true copy of the reasons for the decision herein of
Mr J. Handley, Senior Member
Signed:    Linda A Nemeth ……………………………….
                 Secretary
Date/s of Hearing  19 October 1999
Date of Decision  19 April 2000
Counsel for the Applicant        unrepresented
Solicitor for the Applicant
Counsel for the Respondent    Mr Rudge
Solicitor for the Respondent