Madler-Edwards and Repatriation Commission
[2006] AATA 462
•26 May 2006
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2006] AATA 462
ADMINISTRATIVE APPEALS TRIBUNAL Nº V2004/1130
VETERANS' APPEALS DIVISION
Re:MARK WILLIAM MADLER‑EDWARDS
Applicant
And:REPATRIATION COMMISSION
Respondent
DECISION
Tribunal: Regina Perton, Member
Date: 26 May 2006
Place: Melbourne
Decision:The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s osteoarthrosis of the right knee is defence‑caused. The Tribunal remits the matter to the respondent for assessment of the rate of pension.
(sgd) Regina Perton
Member
VETERANS' AFFAIRS ‑ veterans’ entitlements – osteoarthrosis of the right knee – whether defence caused.
Veterans Entitlements Act 1986 ss 70(5), 120(4), 120B(3), 196B(14),
Lees v Repatriation Commission [2002] FCAFC 398
Repatriation Commission v Cornelius [2002] FCA 750
REASONS FOR DECISION
26 May 2006 Regina Perton, Member
1. Mark William Madler-Edwards was born on 29 December 1954. He served in the Royal Australian Air Force (RAAF) from 4 January 1971 to 3 January 1983. His service from 7 December 1972 to discharge, constitutes eligible service as defined in the Veterans Entitlements Act 1986 (the Act).
2. Mr Madler-Edwards lodged a claim for a disability pension on 12 February 2004 due to problems with his right knee. On 19 February 2004, a delegate of the Repatriation Commission classified the injury as internal derangement of the right knee and refused the application. The Veterans’ Review Board (VRB) amended the diagnosis of the condition to osteoarthrosis of the right knee but otherwise affirmed the decision under review. Mr Madler‑Edwards lodged an application for review with the Tribunal on 1 October 2004.
3. It is not disputed that Mr Edwards suffers from osteoarthrosis of the right knee. The issue before the Tribunal is whether the condition has arisen as a result of injuries suffered during his eligible service and consequently, whether he is entitled to disability pension.
BACKGROUND
4. Mr Madler-Edwards joined the RAAF as a 16 year old and undertook an apprenticeship as an instrument fitter. He was very involved in sport, playing soccer and field sports in his early years in the RAAF. In 1972, he suffered a knee injury while playing inter-service soccer in Canberra and again when throwing a javelin later that year. His knee was examined but did not require any drastic treatment. He continued to participate in sport. However, in February 1973, during soccer training, he suffered a twisting injury to his knee. Upon examination by the medical officer, he was referred to an orthopaedic specialist in March 1973. After the February 1973 injury, Mr Madler‑Edwards gave up soccer and other active field sports due to his knee condition.
5. Mr Madler-Edwards took up motor cycle racing. In the initial phases of his claim, there was a focus on later injuries he received to his right knee while a member of the RAAF Motor Cycle Club in Butterworth. There was extensive investigation, by WriteWay Research and others, into whether Mr Madler‑Edwards’s participation in these activities constituted part of his RAAF duties and whether the motor cycle club was an officially auspiced RAAF body. Earlier decision makers considered that his participation in the RAAF Motor Cycle Club was not service related. The Tribunal was not required to consider the injuries incurred through motor cycle racing. Nor was the Tribunal required to make findings as to whether the squatting associated with tasks performed as an instrument fitter were the cause of his present condition.
6. At the hearing, Mr Purcell, counsel representing the Repatriation Commission provided the Tribunal and Mr Turner, the advocate who was representing Mr Madler‑Edwards, with relevant documents of which the Tribunal and Mr Turner had previously been unaware. These documents assisted the Tribunal in determining the timing of the clinical onset of the osteoarthrosis and in assessing whether there was a pertinent injury during eligible service. Expert evidence from Dr Stephen Hall, a rheumatologist, was also valuable in making the determination.
EVIDENCE
7. Mr Edwards gave oral evidence about the injuries he incurred playing soccer. The first injury was in 1972 playing against the army team in Canberra. He was based at Wagga at that time. There was medical evidence that he had sought treatment for the injury. However, he recovered and continued to participate in soccer and other sports. In February 1973, he injured the knee again at soccer training. This time he was referred to a specialist. He subsequently gave up soccer and the other RAAF sports activities and took up motor cycling. He has had difficulties with his knee ever since and was diagnosed with osteoarthritis some twenty or so years ago.
8. Service medical records confirm that Mr Madler-Edwards injured his right knee playing soccer in September 1972 and that his knee was sore again in November 1972, after throwing the javelin (T3 p 15). He experienced swelling on both occasions. The treatment was bandaging and rest. On 1 February 1973, a medical officer, W.J. Brooks, prepared a typed Outpatient Consultation Record referring his 18 year old patient to Alan Nicholls, an orthopaedic specialist, who responded on 2 March 1973. Their reports are as follows:
Dear Sir,
This lad initially injured his right knee playing soccer. Since then he has had recurrent pain in the knee on any stress.
Whilst training for soccer 2 days ago he twisted the knee >swelling and pain.
O.E. Moderate effusion
Tender over lateral posterior margin of lat meniscus
He is quite concerned by the limitation of his sporting activities and wants something done. Could you please see.
…
2.3.73. Thank you for referring this patient. He gives a six month history of pain in the right knee coming on originally while playing soccer but there was no definite history of injury. He has had moderate discomfort on and off since last August but two weeks ago when again playing soccer the pain suddenly became worse and is now more severe than ever. No definite giving way or locking.
On examination has a tense cyst associated with his right lateral meniscus. There is no other abnormality in the knee joint.
With a large tense cystic lateral meniscus causing trouble for over six months I think there is unlikely to be much spontaneous improvement and I recommend that the knee be explored and the cyst and associated cartilage excised.
9. An officer of the Department of Veterans’ Affairs (DVA) prepared a report, in relation to a claim for incapacity lodged by Mr Madler-Edwards in December 1982, in which he summarised his service medical history. At page VI (T3, p24), the report indicates that Mr Madler-Edwards was examined by Dr Boyden, rheumatologist, who found post-cruciate laxity and moderate effusion. Dr Boyden reported that Mr Madler‑Edwards showed signs of degenerative arthritis.
10. An X-ray report (Exhibit R10) dated 1982 shows that there was early degenerative lipping laterally in the right knee. A report by Dr W.H. Siegel dated 19 July 1983 (Exhibit R3), provides a diagnosis of internal derangement of R knee with degen. arthritis. Dr Siegel indicated Mr Madler-Edwards’s injuries to the knee are common in sportsmen/women: football, soccer, tennis, skiing, surf board riding, (motor) bike riding etc.
11. In a memorandum to the Regional Secretary, Department of Defence Compensation Section dated 24 May 1985 (Exhibit R7), P.M. Conway states at paragraph 2:
2. The personal and history records do not contain any Ground Incident or other reports relating to the former member’s injuries. It is considered however that the injuries to the knee in 1972/73 would have been “on duty” injuries. LAC Edwards was an apprentice at the time and it is highly unlikely that he would have been involved in other than RAAF sport which would have been played on base at Wagga.
...
12. Dr Stephen Hall examined Mr Madler-Edwards at the request of the Repatriation Commission and presented two reports dated 19 September 2005 (Exhibit R1) and 9 March 2006 (Exhibit R2). Dr Hall, in his oral evidence, indicated that he had not been aware of the 1982 and 1983 reports when examining Mr Edwards and writing his own reports. In his reports, Dr Hall gave the opinion that Mr Madler-Edwards’s problems arose from an injury in 1972 and a meniscectomy performed after discharge in 1983 due to the knee injury. He stated that osteoarthritis is a recognised problem 10 years after meniscectomy. He stated that the 1973 injury would have aggravated the earlier injury and in his opinion, would be described as a trauma. Given the length of time that had elapsed since the injury, he was not able to say so with complete certainty that the 1973 injury was the sole cause of Mr Madler‑Edwards’ condition, but was of the opinion that it would have made a significant contribution to his condition. This was particularly so as the medical records indicate that Mr Madler‑Edwards’ first referral to a specialist was after the February 1973 injury.
CONSIDERATION OF THE ISSUES
13. Section 70(5) of the Act provides:
For the purposes of this Act, … an injury suffered by such a member shall be taken to be a defence‑caused injury or a disease contracted by such a member shall be taken to be a defence‑caused disease if:
(a)the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
…
(d)…
(i)was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii)was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member suffered that injury or contracted that disease…
14. For claims made after 1984, it is necessary to apply any relevant Statement of Principles (SoP) issued by the Repatriation Medical Authority. Where there is an SoP in force for a particular medical condition, the Tribunal must determine whether the material before it raises a connection between the applicant’s condition and his or her service. The Tribunal has to decide whether the applicable SoP upholds the contention that the applicant’s injury is, on the balance of probabilities, connected with the applicant’s service (s 120B(3)(b)). The relationship to service must be one of the relationships prescribed in s 196B(14) of the Act.
15. Section 196B (14) of the Act provides:
A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
(a)it resulted from an occurrence that happened while the person was rendering that service: or
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service…
16. In coming to a decision, the Tribunal must form an opinion whether the contention raised by the applicant fits within or is consistent with a factor set out in the SoP.
17. There was no dispute between the parties that Mr Madler-Edwards had rendered eligible service, so that s 120(4) and s120B of the Act apply. This means that the Tribunal must decide the matter to its reasonable satisfaction.
18. The relevant SoP for osteoarthrosis at the time of the VRB’s decision was Instrument No. 82 of 2001. It has been superseded by Instrument No. 32 of 2005. Both SoPs contain the same factors relevant to Mr Madler-Edwards’s condition, albeit with different numbering and slightly different wording. The Tribunal will use the more recent SoP to illustrate its findings.
19. Osteoarthrosis is defined in paragraph 3(b) of Instrument No. 32 of 2005:
For the purposes of this Statement of Principles, “osteoarthrosis” means 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.
20. In relation to osteoarthrosis, there are twenty-nine different factors that may result in a finding that the circumstances of a person’s relevant service are connected with the condition. In Mr Madler-Edwards’s case, there are two or three that may be relevant. However, the parties and the Tribunal concur that the factor that best fits Mr Madler-Edwards’s circumstances is factor 6(f) of Instrument No. 32 of 2005 which states:
having a trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis in that joint.
21. Paragraph 9 of the SoP defines the trauma as:
"trauma to the affected joint" means a discrete joint injury that causes the development, within twenty-four 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. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred and that medical intervention involves either:
(a)immobilisation of the joint or limb by splinting, or similar external agent; or
(b)injection of corticosteroids or local anaesthetics into that joint; or
(c)surgery to that joint.
22. In reaching its decision, the Tribunal takes into account the oral and written evidence and the submissions made at the hearing. The standard of proof to be applied is that set out in s120(4) of the Act. The Tribunal must first be satisfied that an applicant suffers from the claimed condition. In this case, there is no dispute between the parties that Mr Madler-Edwards suffers from osteoarthrosis of the right knee and the Tribunal finds to its reasonable satisfaction that Mr Madler-Edwards has that condition.
23. There is no definition of the term clinical onset in the relevant SoP or in the Act. In Lees v Repatriation Commission [2002] FCAFC 398, Repatriation Commission v Cornelius [2002] FCA 750 and other earlier cases, the clinical onset of a condition was said to occur when the symptoms of a condition have become sufficiently specific and severe for a medical practitioner to diagnose that particular condition, within the definition of the condition in the relevant SoP, or when the condition is actually found on diagnostic testing, regardless of the extent of symptoms.
24. The service medical records presented to the Tribunal indicate that in 1983, there was a diagnosis of Mr Madler-Edwards’s condition by Dr Siegel. Dr Hall in his oral evidence did not disagree with that diagnosis. Therefore, the Tribunal finds that the clinical onset of Mr Madler-Edwards’s osteoarthrosis of the right knee was in 1983.
25. In relation to trauma, Dr Hall’s opinion was that what was described in Mr Madler-Edwards’s medical records in February and March 1973 would be described as trauma as defined in the relevant SoP. The applicant’s and respondent’s advocates agreed with that opinion. Therefore, the Tribunal is satisfied that Mr Madler-Edwards suffered a trauma to his right knee in February 1973. The Tribunal is also satisfied that the trauma is related to Mr Madler-Edwards’s eligible service.
26. The Tribunal finds that Mr Madler-Edwards meets the requirements of factor 6(f) of SoP No. 32 of 2005.
DECISION
27. The Tribunal sets aside the decision under review and substitutes the decision that the applicant’s osteoarthrosis of the right knee is defence-caused. The Tribunal remits the matter to the respondent for assessment of the rate of pension.
I certify that the twenty-seven [27] preceding paragraphs are a true copy of the reasons for the decision of:
Regina Perton, Member
signed: Lydia Zozula
Clerk
Date of hearing: 17 May 2006
Date of decision: 26 May 2006
Advocate for the applicant: Mr B Turner, RSL Advocate
Counsel for the respondent: Mr G Purcell
Solicitor for the respondent: Advocacy Section, Department of Veterans’ Affairs
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