McMillan and Repatriation Commission - [2001] AATA 731

DECISION AND REASONS FOR DECISION [2001] AATA 731

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N1999/1520

VETERANS' APPEALS DIVISION       )
           Re      ROBERT McMILLAN
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal M J Sassella, Senior Member

Date22 August 2001
PlaceSydney

Decision      The decision under review is set aside and in substitution for that decision the Tribunal decides that: 1)     The Applicant's condition of osteoarthrosis of the left knee is a war-caused condition. 2) The date of effect of the decision is 16 March 1998. 3) The matter is remitted to the Respondent for it to assess the appropriate rate of pension payable.
   [Sgd] M J Sassella
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – disability pension –Guide to the Assessment of Rates of Veterans' Pensions – osteoarthrosis – war caused disabilities - operational service - eligible war service - special rate of pension - standard of proof - reasonableness of hypothesis to be assessed by reference to Statement of Principles – trauma to a joint – applicable Statement of Principles where later Statement more beneficial
Veterans' Entitlements Act 1986, ss 6C(1), 7(1)(a), 9(1)(a), (b), 13(1)(b), (d), 14(1), (3), (4), 20(1), 24(1)(2), 120(1), (3), (4), 120A(1), (3), 196B(1), (2), (3), 196D
Statement of Principles concerning Osteoarthrosis No 41 of 1998
Amendment of Statement of Principles concerning Osteoarthrosis No 19 of 1999

Williams v Repatriation Commission [2001] FCA 601
Harris v Repatriation Commission [2000] FCA 873
Arnott v Repatriation Commission [2001] FCA 262
Flentjar v Repatriation Commission (1997) 48 ALD 1

REASONS FOR DECISION

22 August 2001 M J Sassella, Senior Member

HISTORY OF THE APPLICATION

Robert McMillan ("the Applicant") lodged a formal claim for Disability Pension and Medical Treatment, with the Department of Veteran Affairs ("the DVA") on 16 June 1998 (T7), in respect of the following:
·"ankle-knee injury", diagnosed as left knee and ankle osteoarthrosis, and confirmed by x-ray, which the Applicant stated was sustained as a result of landing awkwardly from a jump out of a helicopter, during his operational service;
·"hearing/tinnitus", diagnosed as aural trauma, due to exposure to gunfire while on service [this is noted as having been accepted earlier by the Respondent as a war-caused condition, on 16 March 1998 (folio 1 of Exhibit TD1)];
·"abdominal pain", diagnosed as helicobacter gastritis [this is also noted as having been accepted earlier by the Respondent as a war-caused condition, on 8 November 1995 (folio 1 of Exhibit TD1)].

Attached to this claim were a number of the Applicant's service medical records (T7, folios 27-41). The Applicant also attached a Lifestyle Rating Self Assessment, which produced a 4 points rating (T7, folio 41).

The Repatriation Commission ("the Respondent") made a decision on 6 October 1998 to accept the Applicant's claim for "bilateral sensorineural hearing loss ('BSHL') with tinnitus", with effect from 16 March 1998. However, the Applicant's claim for medical treatment and pension for incapacity from "osteoarthrosis of the left knee and osteoarthrosis of the left ankle" was refused on the ground that the condition was not war-caused (T2 & T11).…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McMillan and Repatriation Commission

Details

AGLC: McMillan and Repatriation Commission [2001] AATA 731
Case: [2001] AATA 731
Decision Date: 22 August 2001

CaseChat Overview and Summary

The case of McMillan v Repatriation Commission involved the Applicant, who sought a review of a decision regarding the recognition of his left knee osteoarthrosis as a war-caused condition. The Applicant argued that the osteoarthrosis of his left knee was a consequence of his service in Vietnam and should be recognised as a war-caused condition, entitling him to a special rate of pension under the Veterans' Entitlements Act 1986. The primary legal issue before the court was whether the Applicant's left knee osteoarthrosis was caused by his operational service in Vietnam, thereby qualifying as a war-caused condition. This determination hinged on whether the evidence supported the hypothesis that the trauma to the knee, which occurred during his service, led to the development of osteoarthrosis.

The court evaluated the Applicant's hypothesis against the requirements set out in the relevant Statement of Principles concerning Osteoarthrosis. It considered whether the trauma to the joint, as described by the Applicant, met the criteria for a serious injury as per the applicable Statement of Principles. The court also assessed whether there was a sufficient relationship between the trauma and the operational service to conclude that the osteoarthrosis was war-caused. The Tribunal found that the Applicant's account of the injury was credible and that there was insufficient evidence to refute his claim. Furthermore, the Tribunal noted that the lack of official documentation of the injury was not unusual given the circumstances of military service.

In conclusion, the Tribunal determined that the Applicant's hypothesis was reasonable and met the criteria in the relevant Statement of Principles. It found that the Applicant's left knee osteoarthrosis was indeed a war-caused condition and remitted the matter to the Repatriation Commission to assess the appropriate rate of pension. The decision recognised the Applicant's condition as war-caused and set aside the previous decision of the Repatriation Commission.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 8 October 1999 the Applicant sought from the Administrative Appeals Tribunal ("the Tribunal") a review of the decision of the Respondent dated 6 October 1998, so that the osteoarthrosis of the left knee would be accepted as a war-caused condition (T1).BACKGROUND The Applicant was born on 24 July 1936. He attended school until July 1951 and worked as a miner in Britain from 1951 to 1954. He ceased mining and joined the British Army in around 1954, staying in that Army until 1957, with some service in Malaya. After serving in the Army, he worked as a fitter's assistant in the UK from 1957 to 1964. The Applicant came to Australia in 1964, worked as a process worker, and then joined the Australian Army on 30 June 1965. The Applicant served in the Australian Army from May 1965 30 May 1971 (T3). His eligible war service (also his operational service) was from 8 May 1966 to 8 May 1967; 27 March 1968 to 2 April 1969; and 12 May 1969 to 15 October 1969 in Vietnam. After leaving the Army, the Applicant engaged in various labouring jobs, factory work and a job as a fitter/labourer until about 1980. In June 1982 he obtained employment with the Electricity Commission (NSW) (later Pacific Power) as a cleaner/labourer until 1993, during which time he became a certified rigger. He resigned voluntarily from the Electricity Commission at the age of 57 in April 1993. He did, however, engage in further work on a casual basis, using his rigger's skills in particular, and crane driving. The Applicant retired at the age of 60. The Applicant is currently married to his second wife and has three adult children from his first marriage. MEDICAL and OTHER EVIDENCE/CHRONOLOGYMedical history/evidence – related to service period In the Applicant's service medical records (T3 and T7), the following relevant material was noted about the Applicant's health during his service period: ·he was treated for a sprained right ankle on 31 August 1965 (T3, folio 14C) as a result of a helicopter jump; ·he was treated with sprained left ankle on 4 November 1965 (T3, folio 4G) [there is no mention of a left knee injury]. An x-ray dated 29 June 1992 found "osteoarthritic changes present around the right knee joint" (T7, p27).1996 In a report submitted for consideration as regards any permanent incapacity, a report by Dr Stephen Green, dated 4 March 1996, in response to "list the conditions that are temporary", Dr Green stated "an effusion on his left knee should settle spontaneously" (Exhibit R3). In an x-ray report dated 29 May 1996, moderate degenerative changes were found "in both knee and patellofemoral joints" (Exhibit R2). On 26 August 1996, the Applicant was diagnosed with "war caused chronic post traumatic stress disorder" by Dr Grahame Pohlen, Consultant Psychiatrist (Exhibit R2). In a letter dated 27 August 1996, Dr Wije-Tunga, orthopaedic surgeon, stated the Applicant had "left knee pain of twenty years duration worse over the last two years. He has given up work over the last two months" (Exhibit R2). On examination he found that the patient was overweight and had an exaggerated limp.

Evidence

Evidence Before The Court

The Applicant retired at the age of 60. The Applicant is currently married to his second wife and has three adult children from his first marriage. MEDICAL and OTHER EVIDENCE/CHRONOLOGYMedical history/evidence – related to service period In the Applicant's service medical records (T3 and T7), the following relevant material was noted about the Applicant's health during his service period: ·he was treated for a sprained right ankle on 31 August 1965 (T3, folio 14C) as a result of a helicopter jump; ·he was treated with sprained left ankle on 4 November 1965 (T3, folio 4G) [there is no mention of a left knee injury]. An x-ray dated 29 June 1992 found "osteoarthritic changes present around the right knee joint" (T7, p27).1996 In a report submitted for consideration as regards any permanent incapacity, a report by Dr Stephen Green, dated 4 March 1996, in response to "list the conditions that are temporary", Dr Green stated "an effusion on his left knee should settle spontaneously" (Exhibit R3). In an x-ray report dated 29 May 1996, moderate degenerative changes were found "in both knee and patellofemoral joints" (Exhibit R2). On 26 August 1996, the Applicant was diagnosed with "war caused chronic post traumatic stress disorder" by Dr Grahame Pohlen, Consultant Psychiatrist (Exhibit R2). In a letter dated 27 August 1996, Dr Wije-Tunga, orthopaedic surgeon, stated the Applicant had "left knee pain of twenty years duration worse over the last two years. He has given up work over the last two months" (Exhibit R2). On examination he found that the patient was overweight and had an exaggerated limp. In a medical impairment assessment dated 2 September 1996, Dr Godwin listed left knee-osteoarthritis as one of the Applicant's disabilities (Exhibit R1).1997 On 15 March 1997, Dr Grahame Pohlen further stated in a letter that the Applicant "has been no longer able to work full time in his normal occupation as rigger and crane driver purely because of his war caused psychiatric disabilities" (Exhibit R1). On 17 March 1997, the Applicant had an arthroscopy performed on his left knee by Dr L S Wije-Tunga (T4), at North Gosford Private Hospital. On 24 March 1997 Dr Wije-Tunga reported that the Applicant complained of occasional mild left knee pain and that he was to continue an exercise program (T5). Dr Wije-Tunga reviewed the Applicant on 24 April 1997 and found that he only had intermittent pain in his left knee and was walking well (T6 and Exhibit R2). Dr Wije-Tunga stated in a report dated 22 July 1997 that the Applicant claimed his symptoms in the left knee were better (Exhibit R2). On 5 August 1997, it was noted in Dr Godwin's clinical notes that the Applicant was unable to work due to PTSD (Exhibit R1).1998 In an x-ray report dated 4 August 1998, "early osteoarthritis of both knee joints" was found. It was stated that "There has been slight progression of the arthritic changes in the left knee joint when compared to the previous films dated 29/5/96." (Exhibits R1 and R2)

Decision

Reasons for decision

In view of the Tribunal's findings in relation to s 24(1) there is no need to consider s 24(2) of the Act. Conclusion The Tribunal has found that the Applicant's condition of left knee osteoarthrosis is a war-caused condition and that the Applicant merits payment at the special rate. The matter will have to be remitted to the Respondent for it to assess the correct rate of pension which will be payable with effect from the first pension payday on or after 16 March 1998. The decision under review is set aside and in substitution for that decision the Tribunal decides that: The Applicant's condition of osteoarthrosis of the left knee is a war-caused condition. The date of effect of the decision is 16 March 1998. The matter is remitted to the Respondent for it to assess the appropriate rate of pension payable.

Ratio Decidendi

Legal Principle Established

The Applicant's hypothesis, then, is that the trauma to his knee satisfies the relevant SoP because the requirements in the relevant definition are met, on a literal reading. The Tribunal has considered the Respondent's arguments as to the seriousness of the trauma suffered by the Applicant when he jumped from the helicopter. The Tribunal has decided that the Applicant's hypothesis does meet the requirements in the SoP. A literal reading of the requirements for a trauma to the joint meshes closely with the hypothesis advanced for the Applicant. The extract from the explanatory notes to the SoP seems to the Tribunal to emphasise that the osteoarthrosis (as defined in clause 2(b) of SoP no 41/1996) as diagnosed must be serious. It does not directly address the requirements for a trauma to a joint which is covered in clause 8 of the SoP.Question 6 – If the answer to question 5 is yes, does the hypothesis suggest that there is a relationship between the trauma and operational service? The Applicant's hypothesis is that there is the necessary relationship between the trauma and his operational service. It was in the very act of jumping from the helicopter in the course of performing his operational service that the Applicant injured his knee.Question 7 – If the answer to question 6 is yes, can the Tribunal be satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was a war-caused disease? In considering this question the Tribunal notes that there is very little evidence to counteract the hypothesis advanced by the Applicant. The report of the historian (Exhibit R7) concludes in paragraph 16 with the comment that it is quite possible that any soldier serving a rifle company in Vietnam could sustain knee or ankle injuries alighting from helicopters... as detailed in this report it is also likely, unless the injury involved evacuation, that due to the exigencies of operational service those injuries would not be recorded in medical records. (The Applicant's injury was not recorded in Army medical records.) Dr Wije-Tunga in Exhibit 8 provided some support for the Respondent when he wrote, it is highly unlikely, if the patient had symptoms of the severity required by the definition of "trauma to a joint", that the patient could have continued on patrol carrying heavy equipment. The doctor said that the Applicant's later work as a rigger and scaffolder after discharge is inconsistent with a significant injury to his left knee and ankle in 1966. He commented that the patient's left knee osteoarthritis may have been due to a number of contributing factors such as the Applicant's overweight, repetitive trauma which may have occurred during his period of service but which was not documented, subsequent injuries after discharge from the Army, and age changes. The Tribunal has considered Dr Wije-Tunga's views but has concluded that the Applicant's version of the events is credible. In the Tribunal's view Dr Wije-Tunga seems not to have taken account of the weight borne by the Applicant when he jumped. The experts quoted in Exhibit R7 accept it as reasonable that the Applicant's injury was not recorded officially. It is conceivable that in the heat of an operation the Applicant may have been able to press on despite a painful knee and ankle. Dr Wije-Tunga came onto the scene apparently about 30 years after the alleged incident. The Tribunal is not convinced that he is in a position to satisfy the Tribunal beyond reasonable doubt that the Applicant's osteoarthrosis of the left knee is not war-caused.