Newson and Repatriation Commission
[2007] AATA 1539
•11 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1539
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/999
VETERANS' APPEALS DIVISION ) Re CEDRIC NEWSON Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N. Isenberg, Senior Member
Dr S. H Toh, MemberDate11 July 2007
PlaceSydney
Decision The decision of the Tribunal is to:
(a) Affirm the decision under review in relation to lumbar spondylosis;
(b) Set aside the decision under review in relation to osteoarthrosis of the right hip and both knees, and determine that those conditions are war-caused; and
(c) Remit the matter to the Repatriation Commission for assessment of Mr Newson’s entitlements to pension in accordance with these reasons for decision, and on the basis that his entitlement to pension in respect of the conditions of osteoarthrosis of the right hip and both knees will commence from 16 March 2005.
.................[sgd]...........................
Ms N. Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – eligible war service – claim that lumbar spondylosis and osteoarthrosis of both knees and hip are war caused – consideration of Statement of Principles – clinical onset of conditions – decision under review in relation to lumbar spondylosis affirmed – decision under review in relation to osteoarthrosis of both knees and hip set aside and remitted to the Repatriation Commission
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) – sections 7, 9, 13, 120, 120B, 196A and 196B
Statements of Principles – Instrument Numbers 47 of 2002 and 38 of 2005 concerning lumbar spondylosis and Instrument Numbers 82 of 2001, 31 of 2005 and 32 of 2005 concerning osteoarthrosis
CASE LAW
Gorton v Repatriation Commission [2001] FCA 286
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750
Re Watson and Repatriation Commission [2007] AATA 1205
Kattenberg v Repatriation Commission [2002] FCA 412
REASONS FOR DECISION
11 July 2007
Ms N Isenberg, Senior Member
Dr S. H. Toh, MemberDecision Under Review
1. The Applicant is seeking review of a decision by the Respondent, dated 25 October 2005, that rejected his claim to have the conditions of lumbar spondylosis, osteoarthrosis of both knees and the right hip, and spondylolytic spondylolisthesis attributed to his service in the Royal Australian Air Force (“RAAF”). This decision was affirmed by the Veterans’ Review Board (“the VRB”) on 19 July 2006.
Issue before the Tribunal
2. At the beginning of the hearing, counsel for the veteran withdrew the application for review insofar as it related to spondylolisthesis.
3. The issue to be considered by the Tribunal was whether the claimed conditions were related to the veteran’s service.
Background
4. Mr Newson (“the veteran”) served in the RAAF between 3 November 1942 and 6 January 1947.
5. Mr Newson did not serve outside Australia. Therefore, pursuant to section 7 of the Veterans’ Entitlements Act 1986 (“the VEA”), Mr Newson’s service is defined as eligible war service and not operational service.
Legislative Background
6. Section 9 of the VEA outlines when an injury or disease is taken to be war-caused, and provides relevantly as follows:
“9 War-caused injuries or diseases
(1)Subject to this section and section 9A, 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; …”
7. Section 13(1) of the VEA provides, in effect, that where a veteran has become incapacitated from a war-caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
8. As the veteran did not have operational service, the determination of whether his claimed conditions are war-caused is to be made by applying section 120(4) as affected by section 120B of the VEA. These provisions require us to consider whether, on the balance of probabilities, his conditions were war-caused.
9. The Repatriation Medical Authority (“RMA”) was established under section 196A of the VEA. If the RMA believes that there is sound medical-scientific evidence indicating a condition can be related to a veteran’s service, the RMA must determine a Statement of Principles (“SoP”) - section 196B of the VEA. The SoP sets out the factors. A minimum of one factor must exist, and that factor must be related to the veteran’s service, before it can be said that there is a connection between the condition and that service. The reference in section 196B(2) of the VEA to a “particular kind of injury, disease or death (being related) to … service” is expounded in section 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service rendered by a person” if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to that service.
10. We must apply the relevant SoP for the claimed conditions on the basis of Gorton v Repatriation Commission [2001] FCA 286; that is, the relevant SoP is the instrument currently in force, unless the SoP in force when the claim was first determined is more beneficial to the veteran.
11. The submission made on behalf of the veteran relied on the following factors in the relevant SoPs in respect of the claimed conditions:
(A) Lumbar Spondylosis
(a) Instrument No. 38 of 2005
Relevant Factor(s)
· (5)(h) - “carrying or lifting loads of at least thirty-five kilograms while bearing weight through the lumbar spine to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis, and where the clinical onset of lumbar spondylosis occurs within the twenty-five years following that period” where:
“lifting loads” is defined as “manually raising an object” – paragraph 9
(b) Instrument No. 47 of 2002 as amended by No. 78 of 2002
Relevant Factors
· (5)(d) – “having disordered joint mechanics affecting the lumbar spine before the clinical onset of lumbar spondylosis” where:
“Disordered joint mechanics” means maldistribution of loading forces on the lumbar spine that has resulted from:
(a) scoliosis, or
(b) loss or enhancement of the normal anterioposterior curvature of the vertebral column, or
(c) spondylolisthesis, or
(d) retrospondylolisthesis, or
(e) a deformity of a vertebra, or
(f) a deformity of a joint of a vertebra, or
(g) necrosis of bone…” – paragraph 9
· (5)(i) - “ manually lifting or carrying loads of at least 35 kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of lumbar spondylosis, and where such physical activity has ceased, the clinical onset of lumbar spondylosis has occurred within the 25 years immediately following such activity.”
· (5)(j) – “repetitive or persistent flexion, extension or twisting of the lumbar spine for at least one hour each day on more days than not for at least 10 years before the clinical onset of lumbar spondylosis, and where such physical activity has ceased, the clinical onset of lumbar spondylosis has occurred within the 25 years immediately following such activity.”
(B) Osteoarthrosis of right hip
(a) Instrument No. 32 of 2005
Relevant Factor(s)
· (5)(i) - “for osteoarthrosis of a hip, knee or ankle joint only, lifting loads of at least thirty-five kilograms while bearing weight through the affected joint to a cumulative total of at least 168 000 kilograms within any ten year period before the clinical onset of osteoarthrosis in that joint, and where the clinical onset of osteoarthrosis in that joint occurs within the twenty-five years following that period”
(b) Instrument No. 82 of 2001
Relevant Factor(s)
· (5)(j) - “for osteoarthrosis of a hip or knee joint lifting loads of at least 35kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of osteoarthrosis in that joint, and where such physical activity has ceased, the clinical onset of osteoarthrosis has occurred within the 25 years immediately following such activity”
(C) Osteoarthrosis of both knees
(a) Instrument No. 32 of 2005
Relevant Factor(s)
· (5)(h) - “for osteoarthrosis of a hip, knee or ankle joint only, having disordered joint mechanics affecting that joint before the clinical onset of osteoarthrosis in that joint” where:
“Disordered joint mechanics” means maldistribution of loading forces on that joint resulting from:
(a) a rotation or angulation deformity of the long bones of the affected limb;
(b) a rotation or angulation deformity of the hip, knee or ankle joint of the affected limb;
(c) necrosis of bone near the affected joint;
(d) amputation involving either leg; or
(e) a permanent limp involving either leg resulting from pelvic, thoracolumbar spine, long bone or joint pathology;” – paragraph 9
· (5)(l) - “for osteoarthrosis of a knee joint only, kneeling or squatting for a cumulative period of at least one hour each day, on more days than not for a continuous period of at least two years before the clinical onset of osteoarthrosis in that joint, and where the clinical onset of osteoarthrosis in that joint occurs within the twenty-five years following that period.”
(b) Instrument No. 82 of 2001
Relevant Factor(s)
· (5)(j) - “for osteoarthrosis of a hip or knee joint lifting loads of at least 35kg while weight bearing to a cumulative total of 168 000 kg within any 10 year period, before the clinical onset of osteoarthrosis in that joint, and where such physical activity has ceased, the clinical onset of osteoarthrosis has occurred within the 25 years immediately following such activity”
· (5)(k) - “ for osteoarthrosis of a knee joint, kneeling or squatting for at least one hour each day on more days than not for at least two years before the clinical onset of osteoarthrosis in that joint, and where such physical activity has ceased, the clinical onset of osteoarthrosis has occurred within the 25 years immediately following such activity.”
12. The submission made on Mr Newson’s behalf was that his conditions were substantially contributed to by his four and a half years eligible war service as a fitter, and by the hard physical work he undertook post- service until 1967, especially in the five and a half years immediately before 1967.
Mr Newson’s evidence
13. Mr Newson gave evidence that his mustering in the RAAF was as a fitter. This involved assisting in removing engines from planes, which was undertaken by four to five men with the assistance of a block and tackle. Once the engine was out of the plane, it was pushed by way of a trolley into a hanger and then it was stripped, before being lifted onto a bench to be worked on. The procedure was then repeated in reverse order for the engine to be re-assembled, and re-connected to the plane. The re-connection took place inside the aircraft, requiring the veteran to manoeuvre into awkward positions, including kneeling. This engine work occurred on most days whilst Mr Newson was in the Northern Territory, for a period of some 16 months.
14. During the period that Mr Newson served in the Northern Territory, he had a toolbox that he would take to each job during the day, which he thought probably weighed about 35 kilograms. The toolbox would be lifted onto the bench, and might remain there for a week. However, if the toolbox was taken out to the plane, it would be returned inside at night.
15. For a couple of months during Mr Newson’s service in the Northern Territory, a three coil water pipe needed to be laid. It was "not that heavy”, but required three people to lift the pipe, involving a lot of bending and kneeling. Squatting was also required.
16. Whilst in the Northern Territory, Mr Newson changed locations several times. This required moving his kit bag, which he described as "not heavy for one person to carry". He had to lift it onto a truck.
17. Following the Northern Territory, Mr Newson was posted for six months to George’s Basin, and then to Richmond between August 1945 and his discharge (T3). In Richmond, Mr Newson did work similar to what he had done in the Northern Territory, although with less frequency. It was, however, a busy time, as the task being undertaken required restoring the aerodrome to its pre-war condition. This involved shifting heavy machinery such as lathes, turners and welding gear. Although the machinery was heavy, it was not lifted by one person alone, but by six or seven people. This work continued for a few months.
18. When discharged, Mr Newson entered the building industry as a carpenter. Between 1947 and 1967 he worked for various building companies, lifting bearers and joists, and assembling walls. Mr Newson would also cut roofing material. Rafters could be up to 16 feet long, and required two people to lift. This work involved kneeling and squatting on a daily basis, and required frequent bending in order to lift the timber.
19. In 1967, Mr Newson was offered a job with what is now known as Sydney Electricity. He had been experiencing pain in the middle of his lower back when lifting, and his wife would sometimes have to help him out of bed. He saw the position with Sydney Electricity as an opportunity to undertake lighter work, although there was still some bending, kneeling and squatting involved. He continued in that position there until 1989, when he retired following a heart attack.
20. Mr Newson said that while at Sydney Electricity, he had suffered back pain periodically and would take on lighter work. However, he did not take any days off work because of back pain. He said he consulted his General Practitioner (“GP”), Dr Tobias, in 1967 and 1968 about the pain he was experiencing. However, Mr Newson said that he did not discuss his back pain with Dr Tobias or his current GP, Dr Goderie (who acquired Dr Tobias’ practice), for some years after 1968.
21. Mr Newson said he still experiences pain in the back if he sits for too long, and has to stand up and walk around. He has difficulty getting out of bed because of stiffness. However, Mr Newson stated that his condition had not worsened over the years.
22. In relation to his hip, Mr Newson said that he could not recall when he first experienced problems. However, he had started to limp, and when the pain worsened, Dr Tobias referred him to Dr Stalley, who conducted a total hip replacement in 1994.
23. In relation to his knees, Mr Newson cannot remember when he first experienced knee problems.
Consideration
24. The first matter to be determined is the clinical onset of the claimed conditions. This is because in respect of all of the relevant factors for each condition, it is essential to determine when the clinical onset of the condition occurred.
25. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded at 670 that:
“…there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”
26. That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.
27. We were referred to Re Watson and Repatriation Commission [2007] AATA 1205 where it was noted at paragraph 31 that:
“In Lees supra, the Court also pointed out that for a disease to exist, all of the symptoms (or features) given as the diagnostic criteria in the Statement of Principles must exist, not just some of them.”
28. We therefore turn to each condition in turn.
Lumbar Spondylosis
29. Mr Newson’s evidence at the hearing was that he had experienced back pain in the period prior to 1967, and that he consulted Dr Tobias about it in 1967 and 1968. However, he did not mention it again until 1994. He said that his symptoms had not changed over the years.
30. Mr Newson’s GP, Dr Goderie, provided a diagnostic report dated 23 September 2005 (T7) wherein he reported that the first symptoms or signs of the condition were of "gradual onset of back pain in late 1980s with stiffness and reduced mobility". Diagnosis was confirmed following a lumbar x-ray and CT scan done on 22 August 2005 (Exhibit A2).
31. An entry dated 8 July 1994 in Dr Goderie’s clinical notes (Exhibit A2) recorded:
"…persisting pain right lower back and down buttocks thigh to knee. Worse moving around...”
32. There were no other entries made by Dr Goderie in relation to Mr Newson's back.
33. Professor Sambrook recorded the veteran’s history, which was outlined in his report of 16 February 2007 (Exhibit A1). In the report, Professor Sambrook noted that Mr Newson gave a history of becoming aware of back pain from around the age of 50 (which would be 1974). On the basis of Mr Newson’s evidence that he had complained to Dr Tobias about back pain in 1967, Professor Sambrook believed that to be a reasonable date for the clinical onset. Professor Sambrook conceded that it was unusual Mr Newson’s back symptoms had not worsened with age. As to the lack of reference in Dr Goderie’s notes of ongoing complaints of back pain, Professor Sambrook noted that no medical records had been kept prior to 1989. Further, doctors’ records note what a patient complains of at the time of consultation, and are necessarily brief. Professor Sambrook also explained that sometimes patients just "put up with" a condition because they have tried all the treatments. He said that if the veteran had lumbar spondylosis from 1967, he would still have been able to work as a carpenter depending on his level of pain tolerance, and the ability to take time off when there was a flare-up.
34. In his report dated 12 December 2006 (Exhibit R1), Dr Millons referred to Dr Goderie’s diagnostic report. During his evidence, he was asked to comment upon the veteran’s evidence that he had experienced back pain from at least 1967. Dr Millons said that pain in the back did not necessarily indicate lumbar spondylosis; that it "could have been anything", such as a muscle strain; and that he would have expected further references to Mr Newson's back pain in Dr Goderie's clinical notes.
35. Insofar as is relevant, both SoPs (Instrument No. 38 of 2005 and Instrument No. 47 of 2002) define lumbar spondylosis as follows:
“degenerative changes affecting the lumbar vertebrae or intervertebral discs, causing local pain and stiffness or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression …”
36. While we may accept that Mr Newson first reported experiencing back pain in 1967 to his GP, Dr Tobias, the evidence is that he did not persist in these complaints between 1968 to 1994. We do not accept Professor Sambrook’s evidence that Mr Newson may have put up with his back condition because he had tried all the treatments. There was no evidence that treatment had been tried at all. Further, Professor Sambrook’s evidence suggested that the condition could have been managed by Mr Newson taking time off work if there was a flare-up. Mr Newson gave direct evidence of needing no time off work for his back complaint.
37. Dr Millons further said that pain in the lower back did not necessarily indicate lumbar spondylosis, and that it "could have been anything", such as a strain.
38. We also note Mr Newson’s evidence that his symptoms did not change over the years.
39. There is nothing in Dr Goderie’s notes about Mr Newson’s back, even between 1989 (the earliest entry) and 1994. Like Dr Millons, we would have expected further references to Mr Newson's back in the doctor’s clinical notes. Even in 1994, Dr Goderie apparently did not consider that the veteran’s back pain warranted further investigation by way of x-ray. It was only in 2005 that an x-ray and CT scan took place.
40. The x-ray evidence confirmed mild degenerative changes in the lumbar spine. It also showed spondylosis and spondylolisthesis (T7). We note that the lumbar spondylosis was described as “mild’”. By comparison, there was evidence from both Professor Sambrook and Dr Millons in respect of the veteran’s osteoarthrosis of the hips that “moderate to marked osteoarthritic changes” led them to the view that clinical onset was some time before the x-rays were taken in 2005.
41. Accordingly, we are reasonably satisfied that a diagnosis of lumbar spondylosis could not have been made in Mr Newson’s case, only on the basis of signs and symptoms of lumbar pain and stiffness which he may have complained about in 1967 and 1968, and in the absence of radiological or other clinical investigations. We accept that the clinical onset of lumbar spondylosis was not until 2005, when his mild degenerative condition was confirmed by x-ray.
42. We are reasonably satisfied that the clinical onset of Mr Newson’s lumbar spondylosis was not within 25 years of the cessation of the lifting and weight bearing that he undertook during service. Before the clinical onset, there were no symptoms that would enable Dr Goderie to say lumbar spondylosis was present: per Lees v Repatriation Commission (2002) 125 FCR 331. Even on the Applicant’s submission that the clinical onset may be within 25 years of the cessation of heavy lifting (i.e. 1967), the veteran’s claim cannot succeed.
43. As to the Applicant’s submission in relation to factor (5)(d) (Instrument No. 47 of 2002, as amended by Instrument No. 78 of 2002), there was no evidence that Mr Newson’s spondylolisthesis was connected with his service.
44. That being so, Mr Newson’s contention that his lumbar spondylosis is connected with the circumstances of his eligible war service is not upheld by either of the applicable SoPs. It follows that we are reasonably satisfied, pursuant to section 120B(3) of the Act, that Mr Newson’s lumbar spondylosis is not war-caused.
Osteoarthrosis right hip
45. Mr Newson could not recall when he first experienced problems with his hip, but at some stage he had started to limp. When it worsened, Dr Tobias referred him to Dr Stalley who conducted a total hip replacement in 1994.
46. Dr Goderie, in his diagnostic report dated 16 September 2005, thought the clinical onset was about 12 months before the hip operation i.e. in 1993 (T7).
47. Professor Sambrook was referred to an entry in Dr Goderie’s clinical notes (Exhibit A2), dated 15 October 1991, wherein the veteran was recorded as experiencing pain in the right buttock for 2 days. An initial episode was said to have occurred 10 years previously when lifting. During examination, there was pain on hip rotation. Professor Sambrook therefore thought that clinical onset was in 1981. Moderate to marked osteoarthritic changes were noted in the x-ray, dated 13 November 1991 (Exhibit A2). On this basis, Professor Sambrook considered the clinical onset to be “well before” 1991.
48. Dr Millons agreed that clinical onset was likely to be “a few years before” 1991.
49. Both relevant SoPs (Instrument No. 32 of 2005 and Instrument No. 82 of 2001) define “osteoarthrosis” as:
“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.”
50. On the balance of probabilities, we find that the clinical onset of osteoarthrosis was before 1991. Although diagnosis of the condition was not confirmed until the x-ray dated 13 November 1991, the changes at that time were recorded as being “moderate to marked.” Mr Newson’s symptoms were not investigated in 1981 when, according to Dr Goderie’s notes, he first experienced hip pain. By 1981 there had been no “history of pain, impaired function and stiffness”’ in relation to the hip required to meet the diagnostic criteria of the relevant SoP. Therefore, we accept that clinical onset was before 1991, but not as early as 1981: probably the mid 1980s.
51. Having come to the view that clinical onset of the veteran’s hip condition was in the mid 1980s, we now turn to the relevant factors.
52. In Instrument No. 32 of 2005 (the current SoP), factor (5)(i) requires the veteran to have lifted at least 168,000 kilograms within “any ten year period” before the clinical onset of the osteoarthrosis, and where the clinical onset of osteoarthrosis in that joint occurs within the 25 years following that period, or immediately following such activity.
53. In our view, the submission on behalf of the veteran was a novel one. It was submitted that during his service, and in the period between 1962 and 1967 before he commenced lighter work with Sydney Electricity, the veteran had lifted the requisite weight. Therefore, in order to meet the factor, clinical onset would have had to occur by 1992. As the clinical onset was, on the basis of our findings, the mid 1980s, the veteran would come within the requisite time period. We were invited by the Applicant’s counsel to construe “any 10 year period” as meaning “any 10 years”. It was suggested that if the veteran had multiple periods of service, those periods would be added together and subsequent “periods” of heavy lifting could also be added: per Kattenberg v Repatriation Commission [2002] FCA 412.
54. We consider this submission to be flawed. We were asked to compare other factors which require a continuous period, such as in Instrument No. 31 of 2005 (concerning osteoarthrosis):
“for osteoarthrosis of a hip or knee joint only, ascending or descending at least 300 stairs or rungs of a ladder per day, on more days than not for a continuous period of at least two years, before the clinical onset of osteoarthrosis in that joint; or” – factor (6)(l)
“for osteoarthrosis of a knee joint only, kneeling or squatting for a cumulative period of at least one hour each day on more days than not for a continuous period of at least one year before the clinical onset of osteoarthrosis in that joint” – factor (6)(m)
55. Each of these factors focuses on a relatively innocuous activity - climbing stairs, and kneeling or squatting respectively, but the activity is carried out with a high degree of repetition. However, in respect of the lifting factor, the whole of the weight could be lifted in a relatively short period of time and the veteran’s claim would be unaffected. There is no requirement for continual lifting as long as the total weight is lifted in a 10 year period.
56. In our view, “any 10 year period” provides flexibility in cases where, for example, significant weights are only lifted towards the end of a veteran’s service. The remaining weight may be lifted in the veteran’s post-service work, as long as the service portion of the lifting is a material contribution to the required weight. Alternatively, if the heavy lifting occurs intermittently throughout a veteran’s service, the 10 year calculations may start at any time during service which is most advantageous to the veteran, providing that the service portion of the lifting is a material contribution to the required weight.
57. On this view, the clinical onset of the veteran’s osteoarthrosis of the right hip would need to have occurred no later than 1980; that is, 1946 (the last full year of service) plus 9 years to make the 10 year period, plus an additional 25 years. This would be the most generous possible formula. We note that the bulk of the veteran’s service lifting occurred between 1943 and 1945.
58. As discussed above, we were reasonably satisfied that the clinical onset of Mr Newson’s hip condition was in the mid 1980s. However, based on the above considerations, we are not reasonably satisfied that Mr Newson met all criteria for factor (5)(i) in Instrument No. 32 of 2005, notably that the clinical onset of his condition was not within the 25 years following the period.
59. However, applying Instrument No. 82 of 2001 (the SoP in force at the time of the original decision) produces a different result. Mr Newson’s evidence was that his heavy work did not cease until his change of jobs in 1967. On that basis, we are reasonably satisfied that the clinical onset of his hip condition in the mid 1980s was within 25 years of the cessation of the activity i.e. heavy lifting in 1967. Further, we are reasonably satisfied that Mr Newson lifted weights of at least 35 kilograms, to a cumulative total of 168,000 kilograms, between 1943 and 1953. His heavy lifting did not cease until 1967, and the clinical onset of osteoarthrosis in the hip occurred within the 25 years immediately following such activity.
60. We therefore find that Mr Newson meets factor (5)(j) in Instrument No. 82 of 2001.
Osteoarthrosis both knees
61. Although Mr Newson could not recall when his knee pain started, it was agreed by the parties that the clinical onset of the veteran’s knee condition was 1999. We note an x-ray dated 4 July 2000 (Exhibit A2) in which osteoarthrosis in both knees was described as “severe”. We therefore accept that the clinical onset of osteoarthrosis of the knees was at least 1999.
62. For the reasons discussed above in relation to osteoarthrosis of the right hip, we considered that Instrument No. 82 of 2001 was more beneficial to the Applicant.
63. On the evidence, Mr Newson had roles throughout his service which involved continuous kneeling and squatting. Further, his post-service role as a carpenter was similarly demanding. Even after changing jobs in 1967, Mr Newson’s role with Sydney Electricity required continued kneeling and squatting.
64. We were reasonably satisfied that Mr Newson was kneeling or squatting for at least one hour each day, on more days than not, for at least the two years before 1999 (the date of clinical onset of osteoarthrosis of the knees). He had continued in that activity from the time of his service, ceasing only on his retirement in 1989. The clinical onset of osteoarthrosis in 1999 has therefore occurred within the 25 years immediately following such activity.
65. We therefore find that Mr Newson meets factor (5)(k) in Instrument No. 82 of 2001.
Decision
66. For the above reasons we:
(a) Affirm the decision under review in relation to lumbar spondylosis;
(b)Set aside the decision under review in relation to osteoarthrosis of the right hip and both knees, and determine that those conditions are war-caused; and
(c)Remit the matter to the Repatriation Commission for assessment of Mr Newson’s entitlements to pension in accordance with these reasons for decision, and on the basis that his entitlement to pension in respect of the conditions of osteoarthrosis of the right hip and both knees will commence from 16 March 2005.
I certify that the 66 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N. Isenberg, Senior Member and Dr S.H. Toh, Member
Signed: ...............[sgd].................................................................
AssociateDate of Hearing 1 June 2007
Date of Decision 11 July 2007
Witnesses Mr C. Newson
Professor P. Sambrook
Dr D. Millons
Counsel for the Applicant Ms E. Wood
Solicitor for the Applicant Mr P. Jones
Advocate for the Respondent Mr T. O’Reilly
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