Macinnis and Repatriation Commission

[2002] AATA 152

DECISION AND REASONS FOR DECISION [2002] AATA 152

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No A2001/114

VETERANS' APPEALS  DIVISION       )          
           Re      BRIGADIER IAIN MACINNIS      
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal       Mr G A Mowbray    

Date30 January 2002

PlaceCanberra

Decision      The Tribunal sets aside the decision under review of the Respondent of 17 April 2000 and in substitution decides that the Applicant's condition of osteoarthrosis of the right knee is war-caused for the purposes of the Veterans' Entitlements Act 1986.  The date of effect is 14 December 2000.            
  ..............................................
  Member
CATCHWORDS
VETERANS' AFFAIRS - osteoarthrosis – reasonable hypothesis – meaning of "trauma to the affected joint" – no separate requirement for injury to be serious

Repatriation Commission v Gorton (2001) 110 FCR 321; 33 AAR 370
Repatriation Commission v Deledio (1998) 83 FCR 82; 49 ALD 193; 27 AAR 144
Harris v Repatriation Commission (2000) 31 AAR 270; 62 ALD 174
Arnott v Repatriation Commission (2001) 106 FCR 83; 32 AAR 445; 63 ALD 575

REASONS FOR DECISION

8 March 2002          Mr G A Mowbray                

History of the Application 
On 4 March 2000 the Department of Veterans' Affairs received a claim from Iain Macinnis (the Applicant) to have osteoarthritis of the right knee accepted as a war or defence caused condition.  On 17 April 2000 the Repatriation Commission (the Respondent) refused Mr Macinnis' claim.
On 16 May 2000 Mr Macinnis requested the Veterans' Review Board to review the decision. On 1 June the Repatriation Commission declined to intervene and conduct a review under section 31 of the Veterans' Entitlements Act 1986 (the Act).  On 13 November 2000 the Veterans' Review Board affirmed the decision under review.  An application was made to the Tribunal on 14 March 2001 and an extension of time was subsequently granted.
The hearing for this matter was held on 30 January 2002.  At the end of the hearing oral reasons for decision were given setting aside the decision under review.  On 6 February 2002 the Tribunal received a request for written reasons from Mr Macinnis' solicitor pursuant to s 43(2A) of the Administrative Appeals Tribunal Act 1975. Accordingly these written reasons have been prepared based on the reasons given at the hearing with appropriate minor editing.
Background
Mr Macinnis was born on 7 May 1940.  He joined the Australian Army as an officer cadet on 20 February 1959, was formally enlisted on 12 December 1962 and retired on 7 May 1995 having reached the rank of Brigadier.  He served in Vietnam in the period 18 May 1966 to 7 May 1967, which is operational service for the purposes of the Act.  He also performed eligible defence service from 7 December 1972 until his retirement.
At the time of his current claim Mr Macinnis already had had a number of conditions accepted as related to his service and a number had previously been rejected.  Prior to his claim Mr Macinnis was already in receipt of 100 per cent of the general rate of pension.  Mr Crabb for Mr Macinnis has informed the Tribunal that Mr Macinnis is not seeking the special rate of pension.
There have been several events recorded as affecting Mr Macinnis' right knee.  The first one relates to a period of prepatella bursitis in November 1962.  The second involved a fracture of the right knee in July 1965 which occurred while Mr Macinnis was playing squash.  The third one, which is the one of particular concern to the Tribunal, occurred in 1966 in South Vietnam.  In his "Statement On Trauma", Exhibit A2, Mr Macinnis stated:

6. I also recall a trauma to my right knee while serving in South Vietnam.  At the time elements of artillery were deploying to the feature south of the Nui Dat base known as The Horseshoe.  We were transported in armoured personnel carriers.
7. During this move my right knee was struck by an ammunition box which fell from where it had been positioned on top of command post stores in the tightly packed interior of the APC [taken to mean armoured personnel carrier].  The ammunition box was of solid metal construction, being rectangular in shape and with dimensions of approximately 30cm X 30cm X 15cm [during the hearing Mr Macinnis gave evidence that it was somewhat larger than that].  The boxes were used for the storage and movement of smaller calibre ammunition types.  The weight of such a box would vary with its ammunition type and the remaining quantity in the box; my recollection is that the box probably weighed in the order of 10 kilograms.
8. The ammunition box fell a distance of approximately three feet and landed such that a corner of the box struck my knee.  There was sharp pain associated with this and some bleeding where the skin was torn, and I was very aware that the knee had been damaged in some way.  However, as we were in a tightly packed, enclosed vehicle immediate action or further assessment on my part was not practicable.

In the remainder of these reasons this incident will be referred to as "the South Vietnam incident".
Legislation
The relevant sections of the Act are ss 9(1), 120(1), 120(3) and 120A.  Both parties accept that the relevant Statement of Principles under s 120A is Instrument No.81 of 2001 concerning osteoarthrosis.  The Federal Court decided in Repatriation Commission v Gorton ((2001) 110 FCR 321; 33 AAR 370) that the Tribunal should look first at the current Statement of Principles, and only if a favourable decision could not be made for the Applicant should it then look at a Statement of Principles operative at the time of the reviewable decision. The relevant parts of Instrument No.81 of 2001 are as follows:

Factors
5. The factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis or death from osteoarthrosis with the circumstances of a person's relevant service are:
…
(j) suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint;
…

Other definitions
8. For the purposes of this Statement of Principles:
…
"trauma to the affected joint" means a discrete joint injury that causes the development, within 24 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.  The symptoms and signs must last for a period of at least seven days following their onset… [subject to an exception not presently relevant]

Issues
As Mr Macinnis did not pursue the issue of special rate pension, the issue before the Tribunal is whether his condition of osteoarthritis was war-caused.  In view of a number of concessions made by the Repatriation Commission the only real question was whether the South Vietnam incident amounted to a "trauma to the affected joint" within the terms of the Statement of Principles.
Evidence
The Tribunal received into evidence T-documents T1 to T15, Applicant's exhibits A1 to A3 and Respondent's exhibits R1 to R4.  Oral evidence was also given by Mr Macinnis.
Findings on Uncontentious Matters
The Repatriation Commission accepted:

a)   that the South Vietnam incident occurred (although the Commission contested the severity of the trauma occasioned by it to the right knee);

b)   that Mr Macinnis suffers from osteoarthrosis in the right knee;

c)   that the clinical onset of the osteoarthritis in the right knee post-dated the 1966 South Vietnam incident.

Was the Osteoarthrosis War-caused?
  It is common ground that in assessing the question of entitlement the standard of proof is set out in section 120(1) and (3) and section 120A of the Act.  In applying those provisions the steps have been described by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-8; 49 ALD 193 at 206; 27 AAR 144 at 159-160:

[T]he course which the Tribunal is to take in a case, such as the present, (that is, one involving a claim to be decided after the 1994 Amendments) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person related to service rendered by that person is as follows:

(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 an SoP [Statement of Principles] determined by the Authority under s 196B(2) or (11).  If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail. [Note that this last sentence, which has no bearing on the present matter, was overturned in Repatriation Commission v Gosewinckel (1999) 59 ALD 690.]
(3) If 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 ss 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 the claim will fail.
(4) The Tribunal must then proceed to consider under s 120(1) 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.

Mr Modder for the Repatriation Commission accepted that steps 1 and 2 had both been satisfied.
Step 1 – Hypothesis
Mr Macinnis' hypothesis as put by Mr Crabb was as follows:

(1)Mr Macinnis experienced a trauma to his right knee when a 10 kilogram ammunition box fell a distance of approximately three feet and hit the knee.

(2)This resulted in trauma to the affected joint, being a discrete joint injury that caused the development within 24 hours of the injury being sustained of symptoms and signs of pain and tenderness, and of altered mobility, and these symptoms and signs lasted for a period of least seven days following their onset.

(3)(a)      Mr Macinnis experienced the onset of osteoarthrosis right knee in or about 1992, or

(b)he experienced the onset of his right knee osteoarthrosis in or about April 1999.

The material before the Tribunal clearly points to a hypothesis connecting the osteoarthrosis of the right knee with the circumstances of the operational service at the time of the South Vietnam incident.
Step 2 – Is there a relevant Statement of Principles in force?
This question can simply be answered yes.  The relevant Statement of Principles is Instrument No.81 of 2001. 
Step 3 – Is the hypothesis raised reasonable?
The third step is to form an opinion as to whether the hypothesis raised is reasonable.  If the hypothesis is consistent with the template in the Statement of Principles it will be reasonable.  The hypothesis raised must contain at least one of the factors in the relevant Statement of Principles which that Statement says must exist, and that factor must be related to the Applicant's service.  Justice Finn explained the proper operation of this step in Harris v Repatriation Commission (2000) 31 AAR 270; 62 ALD 174 at [37]:

It is important to bear in mind that the Tribunal, when dealing with stage 3 of Deledio, was concerned not with the proof or disproof of the various SoP factors as such in Mr Harris' case, but with whether material before it was consistent with the existence of those factors, or else properly allowed one or more of them to be assumed, so permitting the SoP to uphold the applicant's hypothesis. Importantly, as Heerey J noted in Deledio (47 ALD at 275), an hypothesis can so be upheld notwithstanding that "one of the disputed facts happens also to be a component of an SoP".

Again, in Arnott v Repatriation Commission (2001) 106 FCR 83; 32 AAR 445; 63 ALD 575 the Full Federal Court put the matter succinctly when it said (at [27]):

However, as explained above, in carrying out the third step in Deledio, namely of forming an opinion as to whether the hypothesis raised is a reasonable one, the AAT is required to determine whether the "particular claim" fits the "template laid" down in the SoP. As was stated by the Full Court at 95-96 in Deledio, the question at that stage is whether the facts raised by the claimant give rise to a reasonable hypothesis, with proof of the relevant facts not being in issue at that stage. [emphasis original]

The Tribunal's obligation in step 3 is to form an opinion whether the hypothesis in all its aspects as advanced by or for or in aid of the Applicant matches the template provided by the Statement of Principles identified as relevant.  It is therefore necessary to consider what is required in the Statement of Principles.
Factor 5(j), which has already been set out at paragraph 8, has two elements.  It is convenient to deal with the second element first, that is, "before the clinical onset of osteoarthrosis in that joint".  The Repatriation Commission has conceded that the clinical onset of osteoarthrosis occurred after the South Vietnam incident.  Dr Scott says in his report that it was "subsequent to the incident with the metal ammunition box" (Exhibit A3).  Similarly, Dr McGrath states that onset "certainly postdates May 1966 and [it] is likely that it did not arise until recent years" (Exhibit R2).
The first element of factor 5(j) is "suffering a trauma to the affected joint".  The definition of "trauma to the affected joint" has itself several elements.
"a discrete joint injury" – Mr Macinnis gave evidence of the South Vietnam incident in which the ammunition box fell, hitting his knee, and the Repatriation Commission conceded that this incident occurred.
"development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness" – there is a distinction here between pain and tenderness, and the difference is explained in Black's Medical Dictionary as follows:

TENDERNESS The term usually applied in medical nomenclature to pain experienced when a diseased part is handled, the term, pain, being reserved for unpleasant sensations felt apart from any manipulation.

Mr Macinnis gave adequate evidence of the development within 24 hours of symptoms and signs of pain and tenderness.  He spoke of a very sharp pain that lasted for many hours, of bleeding, and of a swollen knee which was painful to touch and to press.  It was treated with painkillers and a compression bandage which was on the knee for a couple of weeks.  He said that it was very different from the earlier patella injury incurred while playing squash.
"altered mobility or range of movement" – Mr Macinnis gave evidence that in the period after the South Vietnam incident his knee was more painful if he moved, especially if he inadvertently swivelled.  It was difficult to bend his leg or to put weight on it.  He used a walking stick to assist himself, and when he returned to Nui Dat he used to place his leg on a stool.  He also used other furniture to assist in his movement.
"The symptoms and signs must last for a period of at least seven days following their onset" – again Mr Macinnis' evidence was that the bandage was on for two weeks.  His movement was restricted for two weeks.  He needed help to put on his boots over that period.  He elevated his knee for in excess of one week.  He used painkillers at both The Horseshoe and Nui Dat, although he could not recall when he stopped using them.  It was probably more than two weeks before he could bend his knee.
Mr Modder for the Repatriation Commission submitted that the South Vietnam incident failed to meet the factors and definitions in Instrument No.81 of 2001.  He submitted that the definition of trauma requires a serious injury, but that this particular injury was only a nuisance injury causing discomfort.  It was not serious enough to require medical attention.  He referred to a passage in one of Dr McGrath's reports (Exhibit R3) that indicates the South Vietnam incident resulted in a trauma to the skin and soft tissues about the kneecap, rather than a trauma to the knee joint proper.
However, the degree of severity required is itself set out in the Statement of Principles, in the definition of "trauma to the affected joint".  This records a requirement for certain symptoms and signs and requires those to last at least for a specified period.  In the Tribunal's view this requirement cannot be read down in the way the Repatriation Commission contends.
Furthermore, step 3 does not allow for weighing or balancing of the evidence for and against a hypothesis.  If such balancing was included there might well be a different result.  Rather the Tribunal takes the correct approach at step 3 to be to have regard to the Applicant's case and see whether that meets the Statement of Principles template.  In this matter the Applicant's case includes evidence from Dr Scott relating Mr Macinnis' osteoarthrosis to the South Vietnam incident.
The Tribunal finds on the basis of the authorities following Deledio that step 3 is satisfied.  The hypothesis raised by Mr Macinnis is consistent with the template in Instrument No.81 of 2001, specifically factor 5(j).  That is, there is a reasonable hypothesis in terms of section 120(3).
Step 4 – Is there any other cause for the incapacity?
Section 120(1) of the Act provides that the Tribunal must be satisfied beyond reasonable doubt the Applicant's incapacity did not arise from a war-caused injury if it is to refuse his or her claim.
Taking the totality of evidence before it, the Tribunal cannot be satisfied beyond reasonable doubt that Mr Macinnis' osteoarthrosis in his right knee was not war-caused.
Decision
Consequently, the Tribunal sets aside the decision under review of the Repatriation Commission of 17 April 2000, and in substitution decides that Mr Macinnis' condition of osteoarthritis of the right knee is war-caused for the purposes of the Veteran's Entitlements Act 1986.  The date of effect is 14 December 2000, as agreed by the parties.

I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr G A Mowbray

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

Date of Hearing  30 January 2002
Date of Decision  30 January 2002
Date of Written Reasons         8 March 2002
Counsel for the Applicant        Mr Paul Crabb
Solicitor for the Applicant         Snedden Hall & Gallop
Counsel for the Respondent    Mr Stephen Modder
Solicitor for the Respondent    Departmental advocate