Pickering and Repatriation Commission
[2005] AATA 736
•3 August 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 736
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2004/401
VETERANS' APPEALS DIVISION )
Re JOHN PICKERING Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member P McDermott Date3 August 2005
PlaceBrisbane
Decision The Tribunal sets aside the decision under review dated 11 December 2002, and substitutes for it a decision that the condition of osteoarthrosis of the left knee suffered by the applicant is a defence-caused injury. The date of effect is 2 July 2002.
..............................................
P McDermott
Senior Member
CATCHWORDS
VETERANS AFFAIRS - veteran’s entitlements - defence caused injury - injury sustained in travelling to workplace - osteoarthrosis of (left) knee – decision set aside
Veteran’s Entitlement Act 1986 sis 70(5)(b), 119, 120, 120A, 196(B)
Deledio v Repatriation Commission (1997) 25 AAR 396
Ball v Repatriation Commission (2001) 188 ALR 756
Repatriation Commission v Keeley (2000) 31 AAR 150
Cook v Repatriation Commission [2000] FCA 1756
Forbes v Repatriation Commission (2000) 31 AAR 381
Harris v Repatriation Commission (2000) 31 AAR 270REASONS FOR DECISION
3 August 2005 Senior Member P McDermott 1. The applicant, who was born on 26 August 1943, has sought review of a decision made by a delegate of the respondent. The applicant is currently in receipt of a disability pension at 60% of the general rate.
Decision Under Review
2. The decision was made by a delegate of the respondent on 11 December 2002 which determined a claim made by the applicant.
3. In that decision the delegate determined that a claim for osteoarthrosis of the left knee that is suffered by the applicant was not defence caused.
4. The Veterans’ Review Board affirmed the delegate’s decision on 22 January 2004.
Service Of Applicant
5. The applicant served in the Australian Army from 10 July 1972 until 6 January 1985. His eligible war service in Vietnam is 23 September 1970 until 9 June 1971. The applicant also has defence service from 7 December 1972 until 6 January 1985.
Current Issue For Resolution
6. The issue that has to be determined is whether the condition of osteoarthrosis of the left knee suffered by the applicant is defence caused.
Accepted Conditions
7. The applicant has a number of war-caused accepted conditions: bilateral sensorineural hearing loss; bilateral tinnitus; chronic foot strain; and irritable bowel syndrome.
Non-accepted Conditions
8. The applicant has a number of conditions which are not accepted as war-caused: tinea versicolor; osteoarthrosis of the right foot; bilateral pterygia; and bilateral pes planus.
Background
9. There is no dispute that the applicant was injured in a motor vehicle accident on 18 May 1982.
10. The applicant gave evidence of a motor vehicle accident in May 1982 when he was on the way to work. The applicant stated that when he was on his bike a car pulled out in front of him from a side road. He was unable to avoid a collision and hit the car. The applicant stated that he sustained some injuries including an injury to his left knee. The applicant in a declaration of 4 October 2004 stated that he had extreme pain, swelling and lacerations.
11. The incident is confirmed in a medical report of 18 May 1982 which records a MVA (presumably motor vehicle accident) on the way to work: fol. 16.
12. There is also some evidence that in 1989 the applicant as a reservist sustained an injury to his left knee whilst unloading a truck. This is the incident that was considered by the Veterans’ Review Board.
13. The respondent quite rightly points out that the 1982 injury was not raised before the Veteran’s Review Board. However, the proceedings before the Board were conducted in the absence of the applicant who was represented by a representative of VVAA. The Board also did not appear to have had before it the medical records of the 1982 incident.
14. Since 2000 the applicant had been attending his local general practitioner, Dr Manton, due to his experiencing pain and suffering as a result of his left knee complaint. He has been experiencing such pain and suffering for some 5 years.
15. The applicant also gave evidence that as a commissioned officer he was expected to “lead from the front” and that he participated in vigorous exercise including walking and running on hard surfaces whilst carrying a pack which included weights.
16. The respondent has contended that in February 2003 the applicant in a statement attributed the injury to the left knee to his duties including physical training and testing and carrying heavy loads: see Contention 5.5. However the statement of the applicant, who is not medically trained, should not prejudice his case.
Medical Diagnoses
17. Dr Winstanley, orthopaedic surgeon, examined the applicant on 6 October 2004 and made a report on 11 October 2004. Dr Winstanley has concluded that the applicant’s condition within his knee joint is consistent with early degenerative change of the medial compartment associated with degenerate meniscal pathology.
18. Dr Winstanley states that an MRI scan of the left knee joint of the applicant confirms the presence of some degenerative osteoarthritic change present in the medial compartment associated with a horizontal oblique tear present within the posterior horn of the medial meniscus.
19. This tear is also confirmed in a report dated 30 August 2004 from Dr J Savage, Queensland Diagnostic Imaging.
20. Dr Winstanley is of the view that the 1982 motor vehicle accident made a minor contribution to the condition.
21. Dr Winstanley considers that the functional capacity of the applicant would improve with an arthroscopic examination of his knee joint, resection of his meniscal tear and irrigation.
22. Dr Winstanley considers that the applicant is fit for light work activity but not heavy work activity.
23. Dr Ferreira, orthopaedic surgeon, in his report of 17 January 2005 also diagnosed a posterior horn tear of the medial meniscus with “probably” secondary osteoarthritis due to this tear. Dr Ferreira considers that the tear is of long-standing duration as there is no recent history of injury and this is probably the only reason for his cartilage degeneration and damage.
24. Dr Ferreira considers that the osteoarthritis is not the primary disease and it did not cause degeneration of the cartilage but is actually due to the tear which is probably sustained during the car accident.
25. Both of the orthopaedic surgeons consider that the 1982 motor vehicle accident has some significance on the condition of the applicant. One of the orthopaedic surgeons considers that the 1982 motor vehicle caused the degenerative condition of the applicant’s knee. Whilst the other orthopaedic surgeon concedes that the 1982 motor vehicle accident made a minor contribution to the condition. The weight of medical evidence is that the motor vehicle accident contributed to the degenerative condition of the applicant.
26. Having regard to the substantial merits of the case as I am required to do under s 119 of the Veteran’s Entitlement Act 1986 (the Act), I find that the condition of the applicant’s knee was caused by the 1982 motor vehicle accident.
27. I have considered the first test in Repatriation Commission v Deledio (1998) 25 AAR 396. I find that the evidence points to an hypothesis connecting the conditions of the applicant’s left knee with his defence service, that hypothesis being that the applicant was injured in a motor vehicle accident while on the way to work on 18 May 1982 and that his left knee was injured in that accident. In this respect I am guided by the remarks of Emmett and Allsop JJ in Ball v Repatriation Commission (2001) 188 ALR 756 at [18] who explained that the hypothesis must not be too “fanciful or impossible or not tenable”. In this case it is not fanciful that the left knee of the applicant would be injured as the applicant was riding a bike.
28. Having satisfied that first test I am now required by the second test enunciated in Deledio to ascertain whether there is in force an appropriate Statement of Principles.
Relevant Statement of Principles
29. The claims of the applicant are subject to a Statement of Principles that has been determined by the Repatriation Medical Authority: see s196B, Veterans’ Entitlement Act 1986.
30. The relevant Statement of Principles is Osteoarthrosis (Instrument No 82 of 2001). This Statement of Principles was in force when the delegate determined the claim and it is the instrument which I must consider in this matter. This is established by the decision of the Full Court in Repatriation Commission v Keeley (2000) 31 AAR 150. No later Statement of Principles appears to have been made.
31. I will examine the claims of the applicant having regard to the applicable Statement of Principles.
32. I am required to consider whether the events that are experienced by the applicant during his period of eligible service fit into the template of a relevant Statement of Principles. As Heerey J observed in Deledio v Repatriation Commission (1997) 25 AAR 396 at 412 the purpose of the Statement of Principle, which reflects proved or known scientific fact, is to see if the facts raised by the applicant give rise to a reasonable hypothesis.
33. The main factor in the Statement of Principles that is relied upon by the applicant is factor 5 (h) which requires the applicant to be “suffering a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint”.
34. The applicant also relies on the following factors: 5 (d); 5 (n); 5 (v); and 5 (w).
35. The applicant submits that the injury sustained by the applicant can be related to each of all of these factors.
Standard Of Proof
36. For the applicant to succeed any connection between the claimed condition and the service of the applicant must be established to the reasonable satisfaction of the Tribunal: see s 120(3).
37. Where there is a Statement of Principles the hypothesis is to be assessed by reference to the Statement of Principles: see s 120A(3) of the Act.
Army Medical Reports
38. There is a considerable amount of medical documentation. In these reasons I discuss the documents which have relevance to the determination of his claim
39. The medical report of 18 May 1982 (fol. 16) is not easy to read. One contention of the respondent is that the report, apart from recording the motor vehicle accident, has the following comments: “abrasions on lower left leg and upper left leg, neck and head ache, pain lower back and abrasions left upper arm”. The applicant was also rated fit for restricted duty with no running: see Contention 5.3 (a). I accept that the contention of the respondent fairly represents the remarks on the report.
40. The medical report of 18 May 1982 also contains the following restriction: “limited use L leg no running”. It does not record whether the applicant was fit for duty.
41. There is also a medical report of 24 May 1982 (fol. 17) which is also not easy to read. One contention of the respondent is that the report records a skin infection on the lower left leg. That contention also states that the applicant was advised against prolonged walking for 30 days, no drill or PT for 30 days: see Contention 5.3 (a). I accept that the contention of the respondent fairly represents the remarks on the report. That medical report also contains the comments that the applicant was not fit for duty and contains some comments concerning the lower leg
42. One contention of the respondent is that on 21 December 1984 the applicant on a medical discharge questionnaire noted in respect of his knee, bilateral KJ (presumably knee joint) pain after jogging and an injury to the ankle.
43. There is a medical report of 18 June 1982 (fol. 18) which is not easy to read. One contention of the respondent is that the report records an attendance for an ulcer on left lower leg 1.5 by 1 inch. The applicant was rated fit for duty. I accept that the contention of the respondent fairly represents the remarks on the report.
44. A medical report of 31 August 1982 (fol. 19) appears to record a clicking left cap which presumably refers to the left knee.
Definition of “trauma to the affected joint”
45. Factor 5(h) contains the expression “trauma to the affected joint”. I have noted that clause 8 of the Statement of Principles contains a definition of “trauma to the affected joint”.
46. Weinberg J in Cook v Repatriation Commission [2000] FCA 1756 at [8-10], made some observations about the changes to this definition in the successive Statements of Principle relating to Osteoarthrosis which precede the Statement of Principles under consideration.
47. Since the decision in Cook vRepatriation Commission [2000] FCA 1756 the definition has since been amended again by providing that the requisite “symptoms and signs” must last for a period of at least 10 days (and not 7 days) following their onset.
Was there a “trauma to the affected joint”?
- Discrete joint injury
48. The definition of “trauma to the affected joint” requires “a discrete joint injury”. This requires consideration of whether there was there in fact an injury to the left knee joint in 1982.
49. The respondent contends that the contemporary medical records do not disclose any injury to the left knee joint.
50. In examining this issue I have endeavoured to adopt a common sense approach on the evidence available, cf., see Forbes v Repatriation Commission (2000) 31 AAR 381 at 388 per R D Nicholson J.
51. The medical report of 18 May 1982 (fol. 16) records “abrasions on lower left leg and upper left leg”. In these circumstances I am satisfied that on the balance of probabilities there was some injury to the knee which, of course, is between the “lower left leg” and the “upper left leg”. If there are abrasions on the “lower left leg” and the “upper left leg” it would be unrealistic for me to conclude that the left knee remained immune from any injury.
52. Although the contemporary medical records do not expressly mention an injury to the left knee joint, I believe that the documents must be construed having regard to the spirit of s 119 of the Act. The contemporary medical records are brief and illegible. They certainly do not disclose the full circumstances of the injury of the applicant and do not disclose the process of examination. Under s 119 any deficiency in contemporary medical reports must not prejudice the applicant: see s 119(1)(h)(ii). I have also taken into account that there has been the passage of time and the unavailability of the medical witnesses: see s 119(1)(h)(i). I also mention that the 1982 incident occurred before the introduction of Statement of Principles which would have required more detailed clinical reporting in order not to prejudice the rights of veterans.
- Symptoms and signs
53. The definition of “trauma to the affected joint” requires that certain requisite “symptoms and signs” must be present. These are “symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint”.
54. I have been assisted by the decision of Finn J, who construed a similar Statement of Principles in Harris v Repatriation Commission (2000) 31 AAR 270, that it is necessary that there be an indication of, or phenomenon evidencing, each of the three stipulated matters: see Harris (at 281). See also Cook v Repatriation Commission [2000] FCA 1756 at [49] where Weinberg J regarded the approach of Finn J as being relevant to the predecessor Statement of Principles on Osteoarthrosis.
55. The Tribunal is satisfied that there is evidence supporting these three stipulated matters. The symptoms and signs of “pain and tenderness” can be satisfied by the declaration of the applicant who stated that he suffers with respect to his knee extreme pain, swelling and lacerations. The applicant in declaring that he had extreme pain, swelling and lacerations certainly satisfies this requirement.
56. This leaves for consideration the requirement of “either altered mobility or range of movement of the joint”. There is certainly no evidence before the Tribunal of the range of movement of the joint. The Tribunal, however, considers that there certainly is evidence of “altered mobility”. This is because on 24 May 1982 the applicant was advised by a medical officer against prolonged walking for 30 days as well as no drill or PT for 30 days. This is relevant evidence of “altered mobility”, the fact that the mobility of the applicant was altered by restricting his movement. This restriction on activities was done on medical advice.
57. The definition also requires that the symptoms and signs must last for a period of at least 10 days following their onset. The injury occurred on 18 May 1982. The fact that within the 10 day period the medical officer advised against prolonged walking for 30 days as well as no drill or PT for that period means that this temporal requirement is satisfied in this case.
Findings
58. The Tribunal finds that the osteoarthrosis of the left knee that is suffered by the applicant was caused by an injury which was sustained by the applicant on 18 May 1982.
59. The fact that on that date the applicant was injured on his way to work has the consequence that the injury is a defence-caused injury: see s 70(5)(b).
60. The date of effect is 2 July 2002.
Decision
61. The Tribunal sets aside the decision under review dated 11 December 2002, and substitutes for it a decision that the condition of osteoarthrosis of the left knee suffered by the applicant is a defence-caused injury. The date of effect is 2 July 2002.
I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member P McDermott
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 16 May 2005
Date of Decision 3 August 2005
Counsel for the Applicant Mr J Selfridge
Solicitor for the Applicant Sciacca's Lawyers
For the Respondent Mr B Williams, Departmental Advocate
0
6
0