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). It was also decided that the Applicant's Disability Pension was to be increased to 90% of the general rate, with effect from 16 March 1998. The Applicant's other war-caused disabilities at that time were post-traumatic stress disorder ("PTSD") and gastritis (Exhibit TD1, folio 1). The Respondent also accepted the disability of right ankle osteoarthrosis as war-caused as of 10 September 1998 (Exhibit TD1, folio 1).
The Applicant lodged an application for review of the Respondent's decision with the Veteran's Review Board ("the VRB") on 14 October 1998. With this application, the Applicant submitted service medical records, which recorded ankle and knee injuries (T12).
On 29 July 1999 the VRB affirmed the decision of the Respondent dated 6 October 1998 that osteoarthrosis of the left knee was not causally service-related (T16). It was stated in this decision (p83):
"…it was agreed the matter to be reviewed was osteoarthrosis of the veteran's left knee. The original claim for osteoarthrosis of the left ankle was incorrect and should have sought a disability for the right ankle. This condition has subsequently been accepted by the Commission".

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/CHRONOLOGY
Medical 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].

Medical evidence – relevant post service medical treatment
1992

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)
In a number of medical impairment assessment forms from the DVA dated 28 August 1998, the following appeared (T9):
·the Applicant's symptoms are due solely to PTSD, with flashbacks and anxiety occurring daily, which renders him incapable of working and affects his ability to continue personal relationships. He has consulted a psychiatrist for treatment of PTSD (T9, folios 50-51);
·the Applicant suffers from symptoms of Gastritis such as indigestion and bloating, which causes him embarrassment in public places (T9, folios 52-53).

On 31 August 1998 the Applicant had a repeat arthroscopy performed on his left knee, by Dr Wije-Tunga (with the first being performed on 17 March 1997 (T10 and Exhibit R2)).
In a report dated 7 September 1998, Dr Wije-Tunga commented on the results of the Applicant's arthroscopy, noting minimal swelling, full movement and no pain (Exhibit R2).
On 15 September 1998, an x-ray of the Applicant's left ankle showed changes of osteoarthritis within the ankle (Exhibit R1).
On 14 October 1998 the Applicant lodged an application for review of the decision dated 6 October 1998. Attached to this application was a medical report completed by Dr Godwin dated 12 October 1998, which noted the following (based on the veteran's history alone):
·the Applicant stated he experienced "multiple episodes of trauma to the left knee – especially when jumping from helicopter 24/5/66";
·the trauma resulted in symptoms of pain, tenderness, altered mobility for about a week;
·an x-ray of the right foot on 6/9/66 was negative;
·the soft tissue injury was reported on the right foot and not on the left knee.
In a report dated 5 November 1998, Dr Wije-Tunga noted that the Applicant complained of constant, severe pain in his left knee with significant disability. He was referred for x-rays (Exhibit R2).
In a letter dated 26 November 1998, the Respondent refused to conduct an internal review (T13). The delegate for the Repatriation Commission stated:
"There is evidence to indicate that you injured your left ankle on 31 August 1965. This is before your period of eligible service under the Veteran's Entitlements Act 1986. There is no evidence to indicate that the injury to your left ankle was aggravated during eligible service. There is no evidence to indicate that you sought treatment for any kind of injury to your left knee during service. Whilst I can accept that you may have experienced some degree of trauma to your left knee during service…"

On 8 December 1998, an x-ray of the right ankle showed no features of osteoarthritis (Exhibit R1).
1999
A total left knee joint replacement was performed on the Applicant on 11 January 1999, confirmed in an x-ray report (T14) and in Dr Wije-Tunga's operation notes (Exhibit R2).
Dr Wije-Tunga reviewed the Applicant's condition on 1 February 1999 and found that he was walking with no limp (Exhibit R1).
In a report dated 22 February 1999, Dr Godwin stated that the Applicant:
"suffers with PTSD and is unemployable due to anxiety, poor cognitive function, depression and poor social interaction and skills. This situation is long term and unlikely to improve over the next five years" (T15).

In a statutory declaration dated 23 February 1999, the Applicant stated that as a result of jumping out of a helicopter at 5ft (3ft being the standard height), he hurt his right ankle and left knee, later reported the injury and saw the company medic, Mr Nichols (T15, folios 77-80). In a statutory declaration dated 19 April 1999, Ronald Nichols confirmed the details of the Applicant's statutory declaration (T15, folio 79).
On 29 July 1999 the VRB affirmed the decision of the Respondent dated 6 October 1998 that osteoarthrosis of the left knee was not causally service-related (T16).
On 3 August 1999, Dr Wije-Tunga again reviewed the Applicant's condition and found he walked without a limp and that his knee was stable (Exhibit R2).
2000
In a report dated 24 January 2000, Dr Benanzio, orthopaedic surgeon, stated the following, with references to Statement of Principles ("SoPs"), SoPs no 19/1999 and no 41/1998 (Exhibit A1):
"It can be concluded that the accident of 24th May 1966 was the cause of a trauma to the left knee joint, acting as a discreet [sic] injury followed by immediate ache in the left knee with symptoms of pain and impaired movements which persisted as described above.
The trauma of 24th May 1966 significantly contributed to the development of osteoarthritic changes in the left knee."

In a letter dated 31 January 2000, Dr Benanzio determined an impairment rating of 10 under the Guide to the Assessments of Rates of Veterans' Pensions (5th ed, for the Applicant's total knee replacement according to Table 3.2.4 (Exhibit A2).
Dr Dowda, consultant occupational physician, in a report dated 16 March 2000 commented on the condition of the Applicant's right ankle, left ankle and left knee:
- In relation to the right ankle, an accepted condition, Dr Dowda stated "I do not consider that the right ankle is contributing significantly to functional loss in terms of lower limb function."
- In relation to the left ankle, a rejected condition, he found "no difference between the presentation of his left ankle and his right ankle" and "walking, with respect to the function of the ankles, does not appear to be impeded".
- In relation to the left knee, a rejected condition, he stated "I do not consider that the left knee is contributing significantly to loss of muscoskeletal [sic] function in the lower limbs". He found an impairment rating of 10 "on the criteria provided in keeping with the presentation clinically and the history as given by Mr McMillan."(Exhibit R5).

Dr Dowda further found that the accepted disabilities are sufficient to prevent the Applicant from undertaking relevant work at more than 8 hours a day or more than 20 hours a week. Further he stated "certainly the left knee condition, I believe, is one of the most significant conditions impeding him from being able to carry out, in terms of both fitness and safety, his normal work activities, in that he has had to have a total knee replacement as a result of progressive osteoarthritic change."
In a report dated 31 March 2000, Dr Schultz, consultant psychiatrist, found that the Applicant's cessation of work related to several factors such as workplace changes, osteoarthritis of his knee, and anxiety, although it was not possible to clearly determine a cause and effect relationship for these problems. He also noted that in the future, the PTSD problems are not likely to change significantly and will probably contribute to his unemployability. Dr Schultz gave a lifestyle rating of 4, under GARP (Exhibit R6).
Dr Baz, occupational physician, in a report dated 5 May 2000, commented on the Applicant's knee osteoarthritis and PTSD (Exhibit A3). She found that the Applicant was unfit to work eight or more hours a week and that this was due to his war caused conditions. Dr Baz stated:
"The knee osteoarthritis would not have precluded more physically suitable work. Work which allows some posture autonomy, with some freedom to sit or stand and which is essentially light work and does not require repeated bending, squatting, kneeling or heavy lifting, would be physically suitable…
However I do not consider he could perform satisfactorily in these more physically suitable types of work because of the effects of the post-traumatic stress disorder…"

Mr C H Ducker, historian with Writeway Research Services, noted the following in a report dated 10 July 2000, in response to contentions made by the veteran (Exhibit R7):

"7. The 5 RAR War diary for 24 May 66 indicated that A Coy… commenced their insertion by helicopter to LZ HUDSON around 0950 hrs. By 1030 hrs 5 RAR (less its D Coy) were inserted into LZ Hudson. The fly-in of the main body of 5 RAR had been completed by 1127 hrs.
8. The 5 RAR Ops Offr (whose operation order for the helicopter movement to LZ HUDSON was in the War diary) confirmed to me that the landing was into a secure LZ and there was no need for soldiers to jump out from any height such as '5 feet' from the helicopters… the helicopter hovered just above the ground if not actually touching…
9. …soldiers alighted carrying not only their weapons and equipment but also rations and ammunition to last several days. The weight would exceed 40 kgs and would be considerably more for radio operators and machine gunners.
10. …In any event friendly fire engaging enemy about 2.5 kms away (as advised in this case) would be unlikely to cause a helicopter pilot to force his passengers to jump from an unsafe height."

Mr Ducker also noted that it was puzzling that the veteran, at the time of his injuries, did not seek treatment in his own company (A Coy), which would have been more accessible, but instead reported his injuries to a medical assistant in another company (B Coy). Despite this, however, Mr Ducker stated the following:
"16. …it is quite possible that any soldier serving in 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."
In response to a request of the Respondent, Dr Wije-Tunga filed a report on 17 October 2000 (Exhibit R8), stating:
"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…
His later work as a rigger and scaffolder after discharge is inconsistent with a significant injury to his left knee and ankle in 1966…
As far as I can gather from the documentation this patient's left knee osteoarthritis may have been due to a number of contributing factors:
a) Overweight.
b)Sub-clinical repetitive trauma which may have occurred during his period of service but has not been documented.
c)The subsequent injuries after discharge which also may not have been documented.
d) Age changes."

Relevant legislation

Relevant to this application is the Veterans' Entitlements Act 1986 ("the Act"), in particular sections 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:
"6C Operational service - post World War 2 service in operational areas
(1)       Subject to this section, a member of the Defence Force who has rendered continuous full-time service in an operational area as:
          (a)       a member who was allotted for duty in that area; or
          (b)       a member of a unit of the Defence Force that was allotted for duty in that area;
is taken to have been rendering operational service in the operational area while the member was so rendering continuous full-time service.
…"
"7 Eligible war service
(1)       Subject to subsection (2), for the purposes of this Act:
          (a)       a person who has rendered operational service shall be taken to have been rendering eligible war service while the person was rendering operational service; and
…"
"9 War-caused injuries or diseases
(1)       Subject to this section, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:
          (a)       the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;
          (b)       the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;
…"
"13 Eligibility for pension
(1)       Where:
          …
          (b)       a veteran has become incapacitated from a war-caused injury or a war-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
          …
          (d)       in the case of the incapacity of the veteran—pension by way of compensation to the veteran;
in accordance with this Act.
…"
"14 Claim for pension
(1)       Subject to subsection (2), a veteran, or a dependant of a deceased veteran, may make a claim for a pension in accordance with subsection (3).
…
(3)       A claim for a pension:
          (a)       shall be in writing and in accordance with a form approved by the Commission;
          (b)       shall be accompanied by such evidence available to the claimant as the claimant considers may be relevant to the claim; and
          (c)       shall be made by forwarding to, or delivering at, an office of the Department in Australia the claim and the evidence referred to in paragraph (b).
(4)       Subsection (3) shall not be taken to impose any onus of proof on a claimant or to prevent a claimant from submitting evidence in support of the claim subsequently to the making, but before the determination, of the claim.
…"
"20 Date of operation of grant of claim for pension
(1)       Where a claim in accordance with section 14 for a pension is granted, the Commission may, subject to this Act, approve payment of the pension from and including a date not earlier than 3 months before the date on which the claim for a pension, in accordance with a form approved for the purposes of paragraph 14 (3) (a) was received at an office of the Department in Australia.
…"
"24 Special rate of pension
(1)       This section applies to a veteran if:
          (aa)     the veteran has made a claim under section 14 for a pension, or an application under section 15 for an increase in the rate of the pension that he or she is receiving; and
           (aab) the veteran had not yet turned 65 when the claim or application was made; and
          (a)       either:
(i)        the degree of incapacity of the veteran from war-caused injury or war-caused disease, or both, is determined under section 21A to be at least 70% or has been so determined by a determination that is in force; or
(ii)       the veteran is, because he or she has suffered or is suffering from pulmonary tuberculosis, receiving or entitled to receive a pension at the general rate; and
          (b)       the veteran is totally and permanently incapacitated, that is to say, the veteran's incapacity from war-caused injury or war-caused disease, or both, is of such a nature as, of itself alone, to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours per week; and
          (c)       the veteran is, by reason of incapacity from that war-caused injury or war-caused disease, or both, alone, prevented from continuing to undertake remunerative work that the veteran was undertaking and is, by reason thereof, suffering a loss of salary or wages, or of earnings on his or her own account, that the veteran would not be suffering if the veteran were free of that incapacity; and
          (d)       section 25 does not apply to the veteran.
(2)       For the purpose of paragraph (1) (c):
          (a)       a veteran who is incapacitated from war-caused injury or war-caused disease, or both, shall not be taken to be suffering a loss of salary or wages, or of earnings on his or her own account, by reason of that incapacity if:
(i)        the veteran has ceased to engage in remunerative work for reasons other than his or her incapacity from that war-caused injury or war-caused disease, or both; or
(ii)       the veteran is incapacitated, or prevented, from engaging in remunerative work for some other reason; and
          (b)       where a veteran, not being a veteran who has attained the age of 65 years, who has not been engaged in remunerative work satisfies the Commission that he or she has been genuinely seeking to engage in remunerative work, that he or she would, but for that incapacity, be continuing so to seek to engage in remunerative work and that that incapacity is the substantial cause of his or her inability to obtain remunerative work in which to engage, the veteran shall be treated as having been prevented by reason of that incapacity from continuing to undertake remunerative work that the veteran was undertaking.
…"
"120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
          …
(3)       In applying subsection (1) or (2) 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 the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
          (a)       that the injury was a war-caused injury or a defence-caused injury;
          (b)       that the disease was a war-caused disease or a defence-caused disease; or
          (c)       that the death was war-caused or defence-caused;
as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.
(4)       Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
…"
"120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the operational service rendered by a veteran;
          (b)       a claim under Part IV that relates to:
(i)        the peacekeeping service rendered by a member of a Peacekeeping Force; or
(ii)       the hazardous service rendered by a member of the Forces.
          …
(3)       For the purposes of subsection 120 (3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
          (a)       a Statement of Principles determined under subsection 196B (2) or (11); or
          (b)       a determination of the Commission under subsection 180A (2);
that upholds the hypothesis.
…"
"196B Functions of Authority
(1)       This section sets out the functions of the Repatriation Medical Authority.
Determination of Statement of Principles
(2)       If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
          (a)       operational service rendered by veterans; or
          (b)       peacekeeping service rendered by members of Peacekeeping Forces; or
          (c)       hazardous service rendered by members of the Forces;
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
          (d)       the factors that must as a minimum exist; and
          (e)       which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…"
"196D Disallowable instrument
A determination of the Repatriation Medical Authority under section 196B is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901."

The Statement of Principles concerning Osteoarthrosis, no 41/1998 (as amended by SoP no 19/1999) is a relevant statutory instrument:

"…
Kind of injury, disease or death
2. (a) This Statement of Principles is about osteoarthrosis and death from osteoarthrosis.
(b) For the purposes of this Statement of Principles, "osteoarthrosis" means a heterogenous group of clinical joint disorders, associated with inflammation of the synovium and defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following clinical characteristics:
(a) a history of pain;
(b) impaired function;
(c) joint swelling; and
(d) stiffness, attracting ICD-9-CM code 715.
Basis for determining the factors
3. The Repatriation Medical Authority is of the view that there is sound medical-scientific evidence that indicates that osteoarthrosis and death from osteoarthrosis can be related to relevant service rendered by veterans, members of Peacekeeping Forces, or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
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 a joint before the clinical onset of osteoarthrosis in that joint; or
…
Other definitions
8. For the purposes of this Statement of Principles:
…
"ICD-9-CM code" means a number assigned to a particular kind of injury or disease in the Australian Version of The International Classification of Diseases, 9th revision, Clinical Modification (ICD-9-CM), effective date of 1 July 1996, copyrighted by the National Coding Centre, Faculty of Health Sciences, University of Sydney, NSW, and having ISBN 0 642 24447 2;
…
"trauma to a joint" means a discrete joint injury 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 that joint. These acute symptoms and signs must last for a period of at least seven days immediately after the injury occurs;
"relevant service" means:
(a) operational service; or
(b) peacekeeping service; or
(c) hazardous service;
…"

This SoP was amended by no 19/1999, relevantly:

"1. The Repatriation Medical Authority amends, under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), Instrument No.41 of 1998, (Statement of Principles concerning osteoarthrosis), by:
A. deleting the definition of "trauma to a joint" in clause 8 and inserting after the definition of "terminal event" in clause 8 the following definition:
"'trauma to a joint' means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These acute symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint";
…"

Hearing and appearances

The Tribunal convened a hearing in Sydney on 17 November 2000. Mr Neale Dawson of counsel represented the Applicant. Mr Peter Godwin from DVA represented the Respondent.
The Tribunal had before it the following documentary material:

Exhibit TD1 – Section 37 Statement and associated documents.

Exhibit TD2 – Service Pension documents.

Exhibit A1 – Report by Dr M Benanzio, orthopaedic surgeon, 24 January 2000.

Exhibit A2 – Report by Dr Benanzio, 31 January 2000.

Exhibit A3 – Report by Dr M Baz, occupational physician, 5 May 2000.

Exhibit A4 – Applicant's amended statement of facts and contentions, 23 May 2000.

Exhibit A5 – Applicant's written submissions, 20 November 2000.

Exhibit R1 – Clinical notes by Dr R Godwin.

Exhibit R2 – Clinical notes by Dr L Wije-Tunga.

Exhibit R3 – Medical records from Wyong Medical Centre.

Exhibit R4 – Medical records from South Lakes Medical Group.

Exhibit R5 – Report by Dr D Dowda, 16 March 2000.

Exhibit R6 – Report by Dr N Schultz, 31 March 2000.

Exhibit R7 – Research report by Mr C H Ducker, 10 July 2000.

Exhibit R8 – Report by Dr Wije-Tunga, 17 October 2000.

Exhibit R9 – Letter dated 27 June 2000 from Pacific Power to DVA.

Exhibit R10 – Respondent's amended statement of facts and contentions, 5 July 2000.

Exhibit R11 – Respondent's written submissions in reply, 22 November 2000.

MFI 1 – Veterans' Review Board transcript.

MFI 2 – Documents from Pacific Power.

Findings on material questions of fact with reference to the evidence and other material in support of those findings

The Tribunal notes, or makes findings, on the following uncontentious matters relevant to the required decision:

The Applicant was born on 24 July 1936 and was aged 61 when he lodged the relevant claim with the DVA (T7).

The Applicant served in the Army from 31 May 1965 to 30 May 1971. His operational service was in Vietnam between 8 May 1966 and 8 May 1967, 27 March 1968 and 2 April 1969, and 12 May 1969 to 15 October 1969 (T3).

The Applicant lodged a valid claim in respect of osteoarthrosis of the left knee on 16 June 1998 (T7).

The date of effect of any decision favourable to the Applicant would be 16 March 1998 (s 20(1) of the Act).

The standard of proof in this matter as regards the status of the osteoarthrosis condition is the reasonable hypothesis standard as in s 120(1) and (3) of the Act. The standard of proof in respect of the Applicant's entitlement to payment of Disability Pension at the special rate is the reasonable satisfaction standard as in s 120(4) of the Act. The standard of reasonable satisfaction equates to satisfaction on the balance of probabilities (Repatriation Commission v Smith (1987) 74 ALR 537, 547).

The SoP in force at the date of the primary decision was SoP no 41/1998. This SoP was amended in a material respect by SoP no 19/1999 and an issue will arise as to whether the amendment applies in this case.

Osteoarthrosis of the left knee as a war-caused injury or disease

The first issue for determination is whether the Applicant's osteoarthrosis of the left knee is a war-caused disease. Applying the approach sanctioned by the full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, 206 in relation to s 129(1) and (3) of the Act, the Tribunal considers that the following questions require answers in order to deal with the issue:

Question 1 – Is there a hypothesis linking the Applicant's disease to operational service?

Question 2 – If the answer to question 1 is yes, is there a relevant SoP?

Question 3 – If there is a relevant SoP does the hypothesis conform to the requirements in the SoP?

Question 4 – In order to answer question 3, does the hypothesis suggest that the Applicant suffers from osteoarthrosis of the left knee as defined in the SoP?

Question 5 – If the answer to question 4 is yes, does the hypothesis suggest that the Applicant suffered a trauma to a joint (the knee) before the clinical onset of osteoarthrosis in that joint?

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?

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?

Question 1 – Is there a hypothesis linking the Applicant's disease to operational service?

The answer to this question is yes. In Exhibit A5 in paragraphs 10-11 there is a useful description of the core of the hypothesis. This is:
"The veteran was required to jump from a helicopter whilst on service in Vietnam. His evidence was that apart from carrying a pack he was weighed down with rounds of ammunition around his neck and shoulders and he was required to carry one mortar under each arm. It is noted that the historian's report provided by the Respondent [Exhibit R7] accepts that in such circumstances, troops would sometimes have been carrying weights of over 40 kilograms.
"The veteran's evidence was that the weight was not evenly distributed and the helicopter was approximately five feet above the ground when troops were told to jump. The veteran stumbled injuring his right ankle and his left knee."

Question 2 – If the answer to question 1 is yes, is there a relevant SoP?

There is a relevant SoP, ie no 41/1998 concerning osteoarthrosis. SoP no 19/1999 was promulgated on 14 January 1999. It amended SoP no 41/1998 in that it provided for a new definition of "trauma to a joint". The differences are that the newer definition requires possibly less in the way of physical trauma but it imposes new requirements where there has been medical intervention.

The original SoP required "acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of that joint" – that is, there appears a need to find symptoms and signs of all of pain, swelling, tenderness and altered mobility or range of movement.

The new definition appears to require acute signs and symptoms of only pain and, perhaps, tenderness. There is no reference to swelling. There must also be altered mobility or range of movement but that requirement no longer appears governed by the need for acute signs and symptoms. This may be important in that "[t]hese acute symptoms and signs must last for a period of at least seven days following their onset" in the new definition. It may be arguable that the altered mobility or range of movement does not any longer have to be perceptible for the period of at least seven days. These distinctions receive some support from the Federal Court in Harris v Repatriation Commission [2000] FCA 1687, paragraph 54.

The import of the new requirements where there has been medical intervention is that the trauma should be quite serious.

The decision of the Federal Court in Williams v Repatriation Commission [2001] FCA 601, paragraphs 52-71 (per Wilcox J) suggests that the SoP in force on the day when the Tribunal makes its decision is the applicable SoP. However, a veteran can nevertheless have the advantage of a more favourable SoP that was in force on the day when the primary decision was made on the basis of an accrued right. In the instant case, if it is advantageous for the Applicant to apply the amending definition in SoP no 19/1999, the Tribunal will do that.
Question 3 – If there is a relevant SoP does the hypothesis conform to the requirements in the SoP?
The answer to this question depends on the answers to questions 4, 5 and 6 below. The answer to each of those questions has been found to be in the affirmative. Therefore, the answer to question 3 is that the hypothesis does conform to the requirements in the SoP.
Question 4 – In order to answer question 3, does the hypothesis suggest that the Applicant suffers from osteoarthrosis of the left knee as defined in the SoP?
The answer is yes. Dr Benanzio (Exhibit A1) diagnosed osteoarthrosis. Dr Wije-Tunga's reports in Exhibit R2 support the diagnosis, although Dr Wije-Tunga (Exhibit R8) (along with Drs Baz and Godwin) tends to describe the condition as osteoarthritis. The SoP definition is in clause 2(b) of the SoP. Neither party made any submissions as to any inferences to be drawn from an apparent confusion between the two terms.
Question 5 – If the answer to question 4 is yes, does the hypothesis suggest that the Applicant suffered a trauma to a joint (the knee) before the clinical onset of osteoarthrosis in that joint?
The trauma to the knee as described by the Applicant was described in answer to question 1, above. However, in relation to question 5 the Applicant's representative in Exhibit A5 went on to say:
"Given the circumstances of the battle the veteran was entering, the veteran did not seek treatment for his injury until some nine days later.
…
"The Applicant's evidence is that his knee ached, was 'red hot' and he was grateful when it rained to cool it down, and that he limped for some time. The fact that the veteran's ankle injury was more serious and the circumstances of the battle they were in meant that the Applicant tolerated the injury, as to use his words, he 'had a job to do', having just arrived with a major battle underway is reasonable."
The elements of trauma that must be replicated in the hypothesis from the earlier SoP are:

There must be a discrete joint injury. The hypothesis allows for this in that it posits a stumble with consequent injury to right ankle and left knee.

Within 24 hours there must be acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of that joint. The hypothesis posits that the symptoms, those phenomena subjectively experienced by the Applicant (Harris v Repatriation Commission [2000] FCA 873), were an ache and a "red hot" sensation. The signs were the development of a limp. These have to be "acute". The Federal Court discussed this requirement in the Harris decision (supra) and in Arnott v Repatriation Commission [2001] FCA 262. It is not abundantly clear what these authorities require in order that a symptom or sign can be "acute". However, it appears that if the symptom or sign has a sudden onset and is sharp or acts keenly on the senses it will, in the relevant sense, be acute. In the Tribunal's view the hypothesis in this case does assert that the Applicant's symptoms and signs were acute. The onset was sudden. The impact of the Applicant's stumble was sharp and did act keenly on the Applicant's senses. There must also be altered mobility or range of movement of the relevant joint. In the present case the hypothesis would suggest that this requirement is satisfied because of the limp developed by the Applicant. There is a potential problem for the Applicant in that there is no mention of swelling amongst the symptoms. However, as this is not a requirement in the equivalent definition in SoP no 19/1999, and as the Tribunal has already decided that it will apply the later SoP if that is more advantageous to the Applicant, his hypothesis appears to comply with the SoP, as amended.

The Respondent submitted that Mr McMillan's evidence to the VRB (MFI 1, P-10) of a niggling nuisance, which he forgot times, that is in relation to his knee, or which became apparent when he tripped on undergrowth, is inconsistent with Mr McMillan experiencing acute symptoms of pain, swelling, tenderness and altered mobility for at least seven days as required by the definition of "trauma to a joint" in SoP 41/1998. This evidence, as recorded by the Tribunal, was that the knee bothered the Applicant for 10 days of the operation. Elsewhere he said that it had been sore for two or three weeks. When he was moving through heavy scrub, vines, creeks and the like it was a nuisance. The knee would become "red hot". The knee was relieved when rain came. The Applicant said that the knee was painful but that other activities were uppermost in his mind. These other activities masked his concern over his knee.
The Respondent identified other evidence suggesting that the injury to the knee was not of great severity. Treating doctor, Dr Godwin (T12, folios 64-65), notes on 12 October 1998 that problems with the left knee were not reported to him by the Applicant. He Applicant explained that he called in aid his less severe conditions when he was originally given only a 50% impairment rating.
Dr Benanzio (Exhibits A1, A2) recorded no report of left knee problems by the Applicant. The Applicant explained that he was relying only on PTSD as a likely condition when he saw Dr Benanzio.
The Applicant is not recorded as ever having seen a doctor in the Army about his left knee. The applicant responded that the knee did not bother him sufficiently at the time, although it did plague him the whole time. He "didn't think much of it".
The Respondent also argued that the Applicant's specialist, Dr Wije-Tunga, was of the opinion that the Applicant's ability to complete the patrol, and later work as a scaffolder and rigger is inconsistent with the Applicant having suffered any significant injury.
The Respondent referred to the explanatory notes by the Repatriation Medical Authority that accompanied the SoP on trauma to a joint in 1995. Note 3 reads:
"The Authority recognises that the previous definition of 'trauma to the relevant joint' did not clearly reflect the available epidemiological and biological literature on the subject of significant joint trauma and its biological effects. The new definition reflects the fact that initial internal damage to the joint, and not only overlying soft tissue injury, is needed to increase the risk of osteoarthritis. Such internal joint injury would be associated with cartilage injury, effusion or haemorrhage into the joint, a situation which would produce the elements of the proposed new definition."

The Respondent addressed this by quoting from the Applicant's evidence that he saw the injury to his right ankle as the main injury at the time. His left knee was paining somewhat but "not enough to make you want to go home". There was a great deal else going on at the time. He forgot about the knee in the confusion. The Applicant had not consulted a medical officer about the knee until his return to Nui Dat where he saw Dr Nichols on about 3 June 1966 (nine days after the incident) (T15, folio 79). Further, the Applicant next saw a doctor about his left knee only in 1976 (Exhibit A1).
The signs and symptoms have to persist for seven days under the SoP. The Applicant's evidence before the Tribunal was that he limped for the rest of the operation, that is for a period of nine days. In the Tribunal's view this requirement in the SoP is satisfied by the Applicant's hypothesis.
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.
The Tribunal is therefore not satisfied beyond reasonable doubt that there is no sufficient ground for determining that the disease was war-caused. The Applicant's osteoarthrosis of the left knee is therefore an accepted disability.
Applicant's eligibility for a special rate Disability Pension
It is then necessary to consider whether the Applicant qualifies for payment of Disability Pension at the special rate. The combination of ss 24(1), (2) and 28 of the Act, and the decision of the Federal Court in Flentjar v Repatriation Commission (1997) 48 ALD 1, 4-5, dictate the following questions that must be answered:

Question 1 – Has the Applicant lodged a claim (s 24(1)(aa) of the Act)?

Question 2 – Was the Applicant aged under 65 when the claim was made (s 24(1)(aab)?

Question 3 – Is the Applicant's degree of incapacity at least 70% under s 21A of the Act (s 24(1)(a)(i) of the Act)?

Question 4 – What are the vocational, trade and professional skills, qualifications and experience of the Applicant (ss 24(1)(b) and 28(a) of the Act)?

Question 5 – What are the kinds of remunerative work which a person with the skills, qualifications and experience referred to in question 4 might reasonably undertake (ss 24(1)(b) and 28(b) of the Act)?

Question 6 – What is the degree to which the physical or mental impairment of the Applicant as a result of the war-caused injury or war-caused disease, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in answer to question 5 (ss 24(1)(b) and 28(c) of the Act)?

Question 7 – What was the relevant remunerative work that the Applicant was undertaking within the meaning of s 24(1)(c) of the Act (s 24(1)(c) of the Act, Flentjar v Repatriation Commission (1997) 48 ALD 1, 4-5)?

Question 8 – Is the Applicant, by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work (s 24(1)(c) and Flentjar (supra))?

Question 9 – If the answer to question 8 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the applicant from continuing to undertake that work (s 24(1)(c) and Flentjar (supra))?

Question 10 – If the answers to questions 8 and 9 are yes, is the Applicant by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity (s 24(1)(c) and Flentjar (supra))?

It may also be necessary to consider the requirements in s 24(2) of the Act.

Question 1 – Has the Applicant lodged a claim (s 24(1)(aa) of the Act).

The Applicant lodged a claim in respect of osteoarthrosis of the left knee on 16 June 1998 (T7).
Question 2 – Was the Applicant aged under 65 when the claim was made (s 24(1)(aab)?
The Applicant was aged 61 years when he lodged his claim (T7).
Question 3 – Is the Applicant's degree of incapacity at least 70% under s 21A of the Act (s 24(1)(a)(i) of the Act)?
The Applicant's degree of incapacity under s 21A of the Act is 90% (T11).
Question 4 – What are the vocational, trade and professional skills, qualifications and experience of the Applicant (ss 24(1)(b) and 28(a) of the Act)?
The Applicant was educated to age 15. He served in the UK and Australian armies for 9 years in total. He worked as a miner for three years and in jobs involving labouring, cleaning, process worker and as a fitter for 22 years. From some time before 1993 until he retired in 1996 he worked as a rigger, scaffolder and crane driver. There is no evidence as regards any skills or qualifications the applicant derived from his Army experience. The Applicant thus appears to have little or nothing in the way of qualifications but considerable experience and skills in manual labouring and crane driving.
Question 5 – What are the kinds of remunerative work which a person with the skills, qualifications and experience referred to in question 4 might reasonably undertake (ss 24(1)(b) and 28(b) of the Act)?
On the reasoning advanced in answer to question 4, the kinds of remunerative work fitting the above description would involve manual labouring, scaffolding, rigging and crane driving. Dr Baz (Exhibit A3) countenanced the possibility of work such as garage console operator, stores worker and retail worker associated with the construction industry.
Question 6 – What is the degree to which the physical or mental impairment of the Applicant as result of the war-caused injury or war-caused disease, or both, has reduced his capacity to undertake the kinds of remunerative work referred to in answer to question 5 (ss 24(1)(b) and 28(c))?
The range of accepted disabilities includes PTSD, gastritis, BSHL with tinnitus, osteoarthrosis of the right ankle and osteoarthrosis of the left knee. The Applicant's osteoarthrosis conditions would appear to preclude the Applicant from doing much manual work. The Tribunal would expect that scaffolding, crane driving and rigging are occupations where knee problems would impede driving and climbing making it potentially unsafe for the Applicant to do such work. As noted above, Dr Baz (Exhibit A3) countenanced the possibility of work such as garage console operator, stores worker and retail worker. However she has doubts that the Applicant could perform satisfactorily in these "more physically suitable types of work because of the effects of the [accepted disability of PTSD]. His distress, anxiety and depression would cause significant problems identifying physically suitable work and presenting appropriately to a potential employer. His ability to sustain regular attendance and to work in a sustained and efficient manner is likely to be very limited."
The Tribunal therefore finds that the Applicant satisfies s 24(1)(b) of the Act in that his war-caused disabilities would prevent him from undertaking any remunerative work of the type appropriate to his qualifications, skills and experience. The Respondent in Exhibit R10 had conceded that the Applicant satisfies s 24(1)(b).
Question 7 – What was the relevant remunerative work that the Applicant was undertaking within the meaning of s 24(1)(c) of the Act (s 24(1)(c) of the Act, Flentjar v Repatriation Commission (1997) 48 ALD 1, 4-5)?
For the purposes of s 24()1)(c) of the Act the relevant remunerative work was scaffolding, crane driving and rigging. Not only was this the work he did at the close of his working life, but it was the most significant work generally available in the community that he had done.
Question 8 – Is the Applicant, by reason of his war-caused injury or war-caused disease, or both, prevented from continuing to undertake that work (s 24(1)(c) and Flentjar (supra))?
The answer is yes. The reasoning is much as for the answer to question 6, above.
Question 9 – If the answer to question 8 is yes, is the war-caused injury or war-caused disease, or both, the only factor or factors preventing the applicant from continuing to undertake that work (s 24(1)(c) and Flentjar (supra))?
Dr Baz (Exhibit A3) considered that the Applicant's non-accepted conditions would not prevent him from rejoining the workforce. She considered that the war-caused condition of PTSD would preclude his return to work. Dr Dowda's report (Exhibit R5) can be read at page 10 to suggest that the Applicant's generally disabling conditions are his psychiatric and left knee osteoarthrosis conditions, both accepted conditions. Dr Godwin (Exhibit R1, folio 2) noted on 5 August 1997 that the Applicant could not work because of PTSD. Dr Pohlen, a psychiatrist, on 15 March 1997 (Exhibit R1, folio 11 at 12) opined "he has been no longer able to work full time in his normal occupation of rigger and crane driver purely because of his war-caused psychiatric disabilities." The same source on 11 November 1997 (Exhibit R1, folio 14) noted that Dr Godwin has recommended a special rate pension because of "[the Applicant's] apparent total and permanent unemployability because of his war-caused [PTSD] and co-morbid disabilities."
Mr Godwin responded by referring to a number of factors that may suggest that the Applicant's war-caused disabilities do not alone prevent him doing relevant remunerative work. Much of this evidence was that his left knee had a flare-up in 1996 that disabled the Applicant for his normal work. However, the impact of that evidence falls away now that the left knee condition has been accepted as war-caused.
For the reasons just given the Tribunal is reasonably satisfied that it is the war-caused conditions alone that prevent the Applicant from continuing to engage in relevant remunerative work.
Question 10 – If the answers to questions 8 and 9 are yes, is the Applicant by reason of being prevented from continuing to undertake that work, suffering a loss of salary, wages or earnings on his own account that he would not be suffering if he were free of that incapacity (s 24(1)(c) and Flentjar (supra))?
The Tribunal finds that the answer to this question is yes. The Tribunal is reasonably satisfied that the Applicant is not in receipt of income to compensate him for the remuneration he has lost as a result of his accepted disabilities. Additionally, the Applicant's cessation of work seems attributable to the combination of inability to cope with change in the workplace and with a worsening of his left knee condition. The first of these has been seen by experts such as Dr Baz and Dr Dowda (and arguably Dr Schultz, Exhibit R6) as interacting with the Applicant's PTSD so as to affect adversely his work performance.
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.

Decision

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.

I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M J Sassella.
Signed:         .....................................................................................
  Associate
Date/s of Hearing  10 November 2000
Date of Decision  22 August 2001
Counsel for the Applicant  Mr Dawson
Representative for the Respondent        Mr Godwin