Polglaze and Repatriation Commission - [2002] AATA 1223

DECISION AND REASONS FOR DECISION [2002] AATA 1223

ADMINISTRATIVE APPEALS TRIBUNAL )

) No W2001/179

VETERANS' APPEALS DIVISION     )
           Re      RONALD POLGLAZE
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Associate Professor S D Hotop, Deputy President

Date26 November 2002
PlacePerth

Decision The Tribunal affirms the decision under review.

………...(sgd S D Hotop)......................
Deputy President

CATCHWORDS
VETERANS' AFFAIRS – veterans' entitlements – disability pension – applicant served in Royal Australian Navy from 1946 to 1949 and in Royal Australian Naval Reserve from 1962 to 1974 – applicant rendered operational service in certain periods during 1965 and 1966 and eligible war service (not being operational service) from 1946 to 1949 – applicant sustained bruising and soreness in his hip region during operational service and eligible war service – applicant subsequently suffered from osteoarthrosis of both hips – whether that condition war-caused – whether a reasonable hypothesis connecting that condition with circumstances of applicant's operational service – whether Tribunal satisfied beyond reasonable doubt that no sufficient ground for determining that condition to be war-caused – whether Tribunal satisfied on balance of probabilities that that condition connected with circumstances of applicant's eligible war service – whether Tribunal reasonably satisfied that that condition was war-caused

Veterans' Entitlements Act 1986 ss9(1), 120, 120A, 120B
Statements of Principles concerning Osteoarthrosis (Instruments No 81 and No 82 of 2001)

Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Gorton (2001) 110 FCR 321
Repatriation Commission v Keeley (2000) 98 FCR 108
Re Robertson and Repatriation Commission [AAT Decision No 12666, 2 March 1998]

REASONS FOR DECISION

26 November 2002 Associate Professor S D Hotop, Deputy President

Ronald Polglaze ("the applicant") has applied for a review of a decision of the Veterans' Review Board ("VRB") dated 11 April 2001, which affirmed a decision of a delegate of the Repatriation Commission ("the respondent") dated 29 August 2000, that the applicant's condition of "osteoarthrosis affecting both hips" is not related to either his "operational service" or his "eligible war service" and is, therefore, not a "war-caused injury" or a "war-caused disease" within the meaning of s9 of the Veterans' Entitlements Act 1986 ("the Act").
At the hearing the applicant was represented by Mr B Cooper, a lay advocate, and the respondent was represented by Mr C Ponnuthurai, an advocate employed by the Department of Veterans' Affairs ("DVA"). The Tribunal had before it the documents ("T documents", T1-T14, pp1-92) lodged by the respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered in evidence by the parties:
·     statement of the applicant dated 31 August 2001 (A1);
·     letter from the applicant to the District Registry of the Tribunal dated 8 June 2001 (A2);
·     report of Dr A Barr dated 4 July 2001 (A3);
·     report of Dr A Barr dated 25 April 2002 (R1);
·     DVA "Medical History Sheet" regarding the applicant prepared by Dr V Hughes and dated 25 November 1980 (R2);
·     DVA "Report by a Medical Practitioner on the Incapacity of a Member of the Forces" prepared by Dr V Hughes in relation to the applicant and dated 29 May 1981 (R3).

Oral evidence was given by the applicant and by Dr A Barr (by telephone).
The Factual Background

The relevant background facts, about which there is no dispute between the parties and as found by the Tribunal on the basis of the T documents and exhibits, are as follows.
The applicant, who was born on 23 December 1927, rendered "eligible war service" (not being "operational service"), within the meaning of the Act, in the Royal Australian Navy ("RAN") from 16 July 1946 to 25 February 1949. He subsequently (from 1962 to 1974) served in the Royal Australian Naval Reserve ("RANR") and rendered "operational service", within the meaning of the Act, in the RANR while serving on board HMAS Vendetta during the following periods:

from 31 August 1965 to 7 September 1965;
from 19 October 1965 to 19 November 1965;
from 29 November 1965 to 29 December 1965; and
from 29 January 1966 to 9 February 1966.
(T2, p4; T3, p10)

According to the applicant's service medical records, his "limbs and joints" were "normal" when commenced service with the RAN in July 1946 and when he was discharged from that service in February 1949 (T3, pp18-22), although in the Final Medical Board report dated 24 February 1949 there is a reference to the applicant's experiencing symptoms described as "occasional pain anteriorly lower left thigh passing posteriorly and upwards". (T3,p25)
An "Entry History Questionnaire" completed by the applicant on 7 December 1961 for the purpose of his enlistment in the RANR indicated that he had never had, and did not then have, "swollen of painful joints" or " any knee, back or joint injury". (T3, p27) A "Medical Examination Record" completed by a medical officer on the same date indicated that the applicant's "lower extremities", "spine", "posture (standing)" and "gait" were all "normal". (T3, p29) Subsequent Medical Examination Records, dated May 1962, May 1963, June 1963, April 1964, February 1965, June 1965, May 1967, February 1968, March 1969, September 1969, February 1971 and February 1974, all indicated that the applicant's "lower extremities", "spine", "posture (standing)" and "gait" were "normal". (T3, pp31-55)
In November 1980 the applicant lodged with DVA a claim for disability pension in respect of, inter alia, "spasmodic pain in upper part of legs". In a DVA "Medical History Sheet" completed by Dr V Hughes on 25 November 1980 the applicant's relevant medical history was recorded as follows:
"II PAIN IN UPPER PART OF LEGS
First came on in 1948 and has it on and off since. Never been investigated. The pain is not in the legs but in the upper part of the thighs. It is front and medial aspect of thighs. It may come on after walking for a long distance. May come on for no reason. No pain in calves on walking, or at an (sic) other time. No pain in lower back or in the hips. It varies between a dull ache and a sharp pain. Has dermatitis of the groin. But pain is not related to this."

An accompanying physical examination report signed by Dr Hughes indicated that, in respect of the applicant's bones and joints (including his left and right hips), there was no apparent disorder. (Exhibit R2)

An X-ray report by Dr S Yu to Dr Hughes, dated 23 December 1980, stated that the applicant's lumbar spine and both hips appeared to be "normal". (T4, p56)
In a DVA "Report by a Medical Practitioner on the Incapacity of a Member of the Forces" prepared by Dr Hughes, dated 29 May 1981, the following comment was made regarding the applicant's claim in respect of upper leg pain:
"Seen by orthopaedic surgeon and neurologist and no cause was found for the pain in the upper part of the legs. As the pain is mainly on the medial aspect of thighs but also in the front of the thighs it is considered to be due to crural neuralgia."

It was also noted that the applicant had had pain in the "front of left thigh" during his first eligible period of service, namely from 16 July 1946 to 25 February 1949. (Exhibit R3)

On 25 June 1981 "crural neuralgia" was accepted by the respondent as a service-related disability for the purpose of the payment of disability pension to the applicant.
A DVA "Lower Limb Conditions – Medical Impairment Assessment" form completed by Dr A Barr, dated 17 May 1997, stated (relevantly) that the applicant was suffering "chronic pain" in both hips, thighs, knees" and "lower back pain". (T5, p57)
A report by Dr R Vaughan, Neurological Surgeon, to Dr Barr, dated 29 May 1997, referred to the applicant's complaints of "worsening pain" in his lower back, buttock and right leg, and "acute episodes" of left leg pain, but noted that his "hips did not appear to be painful on testing". He confirmed a diagnosis of "foraminal stenosis" and "a degree of spondylitic spondylolisthesis at L4/5, worsened by arthropathies".
The applicant had a total right hip replacement on 3 August 1998 and a total left hip replacement on 14 May 2000. (T8, p68 and Exhibit R1)
On 3 July 2000 the applicant lodged with DVA an application for an increase in the rate of his disability pension by reason of the worsening of his accepted disability of "crural neuralgia or pain & discomfort in upper (sic) limbs". (T7, pp59-67)
On 21 July 2000 the applicant lodged with DVA a claim for a disability pension in respect of disabilities not yet accepted as service-related, including osteoarthritis of both hips. (T9, pp69-76)
On 29 August 2000 a delegate of the respondent made a decision refusing the applicant's claim in respect of "osteoarthritis affecting both hips" on the basis that that disability is not service-related. (T2 and T11)
On 11 April 2001 the VRB affirmed the decision of the delegate of the respondent. (T13)
On 15 May 2001 the applicant lodged with the Tribunal an application for a review of the decision of the VRB. (T1)
The Applicant's Evidence
A written statement of the applicant, dated 31 August 2001, was tendered in evidence. (Exhibit A1) The applicant orally confirmed that he had signed that statement and that its contents are true and correct. The contents of that statement are as follows:
"On HMAS Lachlan during June/July 1948 near the Victorian town of Geelong I was down in the tiller flat area of the ship, with 4-5 other ratings and we attempted to secure loose equipment which included gas cylinders.
During this period of duty the ship was pitching and rolling which made the task very difficult indeed. The movement of the ship caused me to be flung against the tele motor several times quite hard. On completion of this task I noticed substantial bruising mainly on my left hip.
The area was sore and the bruising lasted for a period of 2-3 weeks before dissipating. There were no medical facilities on board except a sick bay attendant who I believe was only a Leading Seaman, so all I would have been able to get would have been pain killers of some kind. Possibly aspirin or something similar.
My memory does not exactly recall what I took for the pain and bruising, it was a matter of just getting on with the job as best as one could and forget about our own little problems. There were probably other ratings on the ship in the same predicament.
Later in the year, approximately 2-3 months, on sailing from Sydney on HMAS Lachlan we came across the Great Australian Bight where we were unlucky enough to strike very rough weather and were not able to go onto the Quarterdeck without a lifeline strapped to our bodies.
My duties took me out onto the Quarterdeck and going through hatchway I was thrown against the hatch combing several times which resulted in my hip being hurt and bruised. This time it was my right hip that suffered the most damage. I was required to do this task 3-4 times a day. The task was to check oil levels and temperatures of the tele motor. The bad weather lasted 2-3 days.
This meant that I was buffeted against the hatch combing approximately 12 times during this period. I was sore and bruised again for about 2-3 weeks. The same medical treatment was available as in the first incidents 2-3 months previously and more than likely was taken.
During further service there were quite a number of occasions that I was flung against steel railings and hatchways which would have aggravated the already existing hip problems.
I believe that the information contained in this statement is as accurate as my memory allows."

In his oral evidence-in-chief the applicant described the abovementioned incidents but that oral evidence did not add significantly to the contents of the abovementioned statement.

A handwritten statement of the applicant, dated 8 June 2001, was also tendered in evidence. (Exhibit A2) The applicant orally confirmed that the contents of that statement are true and correct. That statement refers to the abovementioned incidents in 1948 and also to incidents in 1965-1966 during the applicant's "operational service" on board HMAS Vendetta. As regards to the latter period, the statement refers to HMAS Vendetta carrying out patrols off Malaya and Borneo during which the outside of the ship was "completely blacked out" making it necessary, when going forward from the stokers' messdeck to a machinery space, to "feel your way along a handrail" in the darkness. The statement continues:
"A common occurrence was to bump into somebody coming the other way or to misjudge the position of a piece of machinery or equipment and to bump into it."

The applicant added, in his oral evidence, that all the crew "got bumped around … and had bruising" and that they would sometimes "compare [their] bruises". The applicant's statement also recounts an incident which occurred on HMAS Vendetta on New Year's Day 1966 as follows:

"We sailed from Singapore on New Year's Day 1966, into a typhoon, to escort HMS Albion to Hong Kong. On the first or second day out I was off watch and asleep on my bunk when I was thrown into the air. I went on the upper deck to see what had happened and was told that the whole ship had flipped. … Within minutes the same thing happened again and we had to alter course as there was a real chance that the ship would break its back if that situation had continued."

The applicant was questioned by Mr Ponnuthurai (for the respondent) about the abovementioned incidents in 1948 and 1965-1966 referred to in his evidence-in-chief. As regards the incident on board HMAS Lachlan in 1948 in which he said that he experienced soreness and substantial bruising in his left hip area, the applicant acknowledged that he was not confined to his bunk at any stage and he continued to perform his duties on the ship, including climbing up and down ladders, although "not without difficulty at times" because of the pain. He said, as regards the pain, that it "hurts like hell when you sustain the bump" and then it "becomes less and less after that". As regards the incidents of bumping into machinery or equipment on board HMAS Vendetta in the 1965-1966 period, the applicant acknowledged that those bumps were "not as heavy" as that which occurred on board HMAS Lachlan in 1948. He said that they nevertheless caused pain and soreness but not to the extent that he was ever confined to his bunk or prevented from carrying out his duties as a stoker. He added:
"I can't recall that any sailor ever went off duty because he was bruised and sore."

(Transcript, p19)

Asked whether, when he left the RANR in 1975, he was having problems with his hips, the applicant said:
"Oh yes … off and on I would have – and, you know, times I would limp quite badly and other times I didn't."

(Transcript, p20) He confirmed that he subsequently lodged a disability claim with DVA in 1980 and the condition of "crural neuralgia" was accepted as a disability for the purpose of disability pension in 1981. He described the pain he was suffering at that time as "mainly in the upper part of the legs", sometimes extending as far as the knees, and he added that if the pain was severe he would "limp quite severely".

The applicant said that a physiotherapist he had attended had described his hips as "very stiff" and advised having them X-rayed, and that he was subsequently advised to have his hips replaced. He said that he was unable to be specific about the date when his hips started to deteriorate but that since his hip operations (in 1998 and 2000) he no longer experiences severe pain when walking although he still experiences pain in the upper leg.
The Evidence of Dr Barr
Dr A Barr told the Tribunal that he is a general practitioner and that he has been treating the applicant since October 1984.
Two reports of Dr Barr regarding the applicant were tendered in evidence. A short report dated 4 July 2001 (Exhibit A3) states:
"This man has been treated for progressive osteoarthritis of both hips since my initial consultation with him in 1983 (sic). I have treatment records from the previous principal at this practice prior to this time – he has attended this practice since the 1950's.
I have read his account of his naval war service and the stresses on a Stoker on the maritime vessels of the time, and I consider that they are compatible with his current complaints.
…"

In his oral evidence Dr Barr said that he had no clinical notes regarding the applicant's consultations and treatment at the medical practice prior to 1984. Dr Barr's second report, dated 25 April 2002, is addressed to DVA and states as follows:

"I supply this report to your specific questions posed in your letter dated 15th April 2002.
1. When did Mr Polglaze first start to complain of pain in his hips?
Mr Polglaze had been having pain in his hip regions for many year – prior to my first seeing him in 1984. He had always put this pain down to his 'crural neuralgia'. However, Dr Vaughan, neurosurgeon, first separated this hip pain from his neuralgia in 1998. He also assumed that the hip pain had been incorrectly assigned prior to this time. He had been assessed by Dr Edibam, orthopaedic surgeon, in 1980 at which time his x-rays were reported as normal.

2. What history, if any, did he give of injuries to his hips?
Mr Polglaze has reported a slowly progressive bilateral lower limb and hip sensation and subsequent pain since I have attended him. He describes the various rigours of military life many years previously. He has not given any specific history of direct hip trauma. His history is of a slowly progressive osteoarthritis.
3.When did Mr Polglaze first start to complain of symptoms attributable to osteoarthritis of the hips, as against crural neuralgia?
I am unsure as I am not familiar with the diagnosis and clinical symptomatology of 'crural Neuralgia' and I am unable to find reference to it in my neurological texts. Definite diagnosis was made as early as 1998.

4. When was the diagnosis of osteoarthritis of the hip confirmed?
Definitive diagnoses were made at the time of total hip replacements on 03/08/1998 for the right and 14/05/2000 for the left. This diagnosis was made by his specialist Dr Sikorski, who was led to performing the operations, by radiology at the appropriate times, and by visual and histological appearances of the removed joint remnants.
5.What treatment, apart from the bilateral hip replacement, has been received for the hips?
He has been advised, prior to and post surgery, to undertake general non invasive treatments such as analgesia, anti-inflammatory medications, exercise, physiotherapy and hydrotherapy. These had been prescribed on a long term basis by Dr Sikorski and still continue.

6. When did this commence?
Prior to his first hip replacement, to minimize his rehabilitation time and to maintain a general level of fitness – as is standard practice.
…".

Dr Barr said that he first saw the applicant in October 1984 and that from that time his symptomatology has been almost the same, namely, quite severe pain at times around the buttocks, the inner and outer thighs, occasional weakness in the legs with some numbness at times. Asked what led to the applicant's being diagnosed with osteoarthritis in the hips, Dr Barr said that when he took over the applicant's management he was unsure about the diagnosis of "crural neuralgia" and that he "probably automatically thought of osteoarthritis". He said that he eventually referred the applicant to Dr R Vaughan, Neurologist, in 1997 and he noted Dr Vaughan's report of 29 May 1997 (see paragraph 12 above). Asked whether there has been any change in the applicant's reported symptoms since his hip replacements in 1998 and 2000, Dr Barr said that there had not been and that the applicant, although he has a bit more mobility, has still got the same symptoms in his lower torso and pelvic, buttock region.
The Legislation
The Act

Section 9 of the Act relevantly provides:
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;
…".

The appropriate standards of proof on which it is to be determined whether injuries or diseases are war-caused are prescribed by s120 of the Act which relevantly provides:

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.
Note: This subsection is affected by section 120A.
…

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 … ;
(b) that the disease was a war-caused disease… ; or
(c)that the death was war-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.
Note: This subsection is affected by section 120A.
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.
Note: This subsection is affected by section 120B.
…".

Section 120A of the Act relevantly provides:

"…

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) …;

that upholds the hypothesis.
…".

Section 120B of the Act relevantly provides:

"…

In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:

(a) the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

(b) there is in force:

(i)a Statement of Principles determined under subsection 196B(3) or (12); or

…";
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.
…".

The Statements of Principles

Various Statements of Principles ("SoPs") have been determined since 1995 by the Repatriation Medical Authority under subss 196B(2) and 196B(3) of the Act in relation to the relevant injury or disease in this case, namely, osteoarthrosis. The relevant SoPs that are presently in force are Instruments No 81 and No 82 of 2001. The relevant SoPs that were in force at the time of the respondent's decision in this matter on 29 August 2000 were Instrument No 41 of 1998, as amended by Instrument No 19 of 1999, and Instrument No 42 of 1998, as amended by Instrument No 20 of 1999. Instruments No 41 of 1998 and No 19 of 1999 were revoked by Instrument No 81 of 2001, and Instruments No 42 of 1998 and No 20 of 1999 were revoked by Instrument No 82 of 2001.
Instrument No 81 of 2001 relevantly states:
"…
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 the affected joint before the clinical onset of osteoarthrosis in that joint; or
…
Other definitions
8.        For the purposes of this Statement of Principles:
          …
          'relevant service' means:
          (a)       operational service; or
          (b)       peacekeeping service; or
          (c)       hazardous service;
          …
'trauma to the affected joint' means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least 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;
…".
Instrument No 82 of 2001 relevantly states:
"…
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 exist before it can be said that, on the balance of probabilities, osteoarthrosis or death from osteoarthrosis is connected with the circumstances of a person's relevant service are:
"…
(h)suffering a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint; or
…
Other definitions
8.        For the purposes of this Statement of Principles:
          …
'relevant service' means
(a)       eligible war service (other than operational service); or
          (b)       defence service (other than hazardous service);
          …
'trauma to the affected joint' means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred, 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;
…".
In accordance with the decision of the Full Federal Court in Repatriation Commission v Gorton (2001) 110 FCR 321 the Tribunal will first consider the current SoPs – namely, Instruments No 81 and No 82 of 2001 – in determining whether the applicant's condition of osteoarthrosis in both hips is a war-caused injury or a war-caused disease. If consideration of those current SoPs leads to the conclusion that the applicant's abovementioned condition is not war-caused, the Tribunal will then, in accordance with the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108, consider the SoPs that were in force at the time of the respondent's decision in this matter – namely, Instrument No 41 of 1998 as amended by Instrument No 19 of 1999, and Instrument No 42 of 1998 as amended by Instrument No 20 of 1999 – for the purpose of finally determining whether applicant's abovementioned condition is a war-caused injury or a war-caused disease.

The Issue

It is common ground that the applicant suffered from osteoarthritis (osteoarthrosis) of both hips and that that condition is an "injury" or a "disease" within the meaning of the Act. The issue for determination by the Tribunal is whether that condition is a "war-caused injury" or a "war-caused disease" within the meaning of s9 of the Act.

Consideration and Findings
Operational service

The Tribunal will first consider and determine whether the applicant's condition of osteoarthrosis of both hips is war-caused on the basis that it is connected with his "operational service". In applying the appropriate standard of proof, as prescribed by subss 120(1) and 120(3), together with subs 120A(3), of the Act, for the determination of that question, the Tribunal will proceed in accordance with the approach outlined by the Full Federal Court in Repatriation Commission v Deledio (1998) 83 FCR 82 at 97-98.
First, does the material before the Tribunal point to a hypothesis connecting the applicant's osteoarthrosis of both hips with the circumstances of his operational service? The Tribunal is prepared to accept that the applicant's evidence, that during a period of his operational service in 1965 when HMAS Vendetta was carrying out patrols off Malaya and Borneo he (and the other crew members) commonly bumped into machinery and equipment in the darkness and he thereby sustained bruising in his hip region, does raise such a hypothesis.
Accordingly, it is necessary for the Tribunal to refer to the relevant SoP – namely, Instrument No 81 of 2001 – and to consider, having regard to that SoP, whether the raised hypothesis is a reasonable one. That hypothesis will be reasonable, according to Deledio, if it is consistent with the "template" to be found in the relevant SoP. Clause 5 of that SoP lists various alternative minimum factors, at least one of which must exist and, according to cl 4, must be related to the applicant's operational service, before it can be said that a reasonable hypothesis has been raised connecting the applicant's osteoarthrosis of both hips with the circumstances of that service. It is common ground that the only relevant factor in the present case is that specified in para (j) of cl 5, namely:
"suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint".

The phrase "trauma to the affected joint" is defined exhaustively in cl 8 (see paragraph 29 above). In the Tribunal's opinion the abovementioned raised hypothesis does not fall within para (j) of cl 5 of the SoP because that hypothesis refers only to bumping and bruising of a kind and degree commonly suffered by crew members in the ordinary course of duty during night patrols on board the relevant ship. Such bumping and bruising are insufficient, in the Tribunal's opinion, to constitute "trauma to the affected joint" (namely, the hip joint) as defined in cl 8, for the purposes of para (j) of cl 5, of the SoP. Accordingly, the Tribunal is of opinion that the abovementioned raised hypothesis is not a reasonable one. Alternatively, if it could be said that the raised hypothesis is that the applicant suffered a "trauma to the [hip] joint", within the meaning of cl 5 of the SoP, during his operational service on board HMAS Vendetta in 1965 and that it is, therefore, a reasonable hypothesis, the Tribunal nevertheless, on the basis of the applicant's own evidence and the contemporaneous service medical records, is satisfied beyond reasonable doubt that the applicant did not suffer a "trauma to the [hip] joint", within the meaning of cl 5(j) of the SoP.

It follows, therefore, that by reason of s120(3) of the Act, the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the applicant's condition of osteoarthrosis of both hips is war-caused on the basis that it is connected with his operational service, and the Tribunal so finds.
Eligible war service
The Tribunal now turns to consider and determine whether the applicant's condition of osteoarthrosis of both hips is war-caused on the basis that it is connected with his "eligible war service (other than operational service)". Section 120(4) of the Act requires that that matter be determined by the Tribunal "to its reasonable satisfaction" – that is, on the balance of probabilities. In accordance with s120B(3) of the Act the Tribunal will be reasonably satisfied that the applicant's condition of osteoarthrosis of both hips was war-caused if the material before it raises a connection between that condition and the applicant's eligible war service, and the relevant SoP – namely, Instrument No 82 of 2001 – upholds the contention that the condition is, on the balance of probabilities, connected with that service. Clause 5 of that SoP lists various alternative factors, at least one of which must exist and, according to cl 4, must be related to the applicant's eligible war service, before it can be said that, on the balance of probabilities, the applicant's condition of osteoarthrosis of both hips is connected with the circumstances of that service. It is common ground that the only relevant factor in the present case is that specified in para (h) of cl 5, namely:
"suffering a trauma to the affected joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint".

The phrase "trauma to the affected joint" is exhaustively defined in cl 8 (see paragraph 30 above).

Before considering whether the applicant suffered a "trauma to the [hip] joint", within the meaning of cl 5(h) of the relevant SoP, it is convenient for the Tribunal first to consider when the "clinical onset" of osteoarthrosis in the applicant's hip joints occurred. As regards the meaning of the phrase "clinical onset", the Tribunal in Re Robertson and Repatriation Commission [AAT Decision No 12666, 2 March 1998] said (at para 23):
"… we consider 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".

That dictum was cited with apparent approval by the Federal Court in Repatriation Commission v Cornelius [2002] FCA 750 at para 26.

In the present case there is nothing in the material before the Tribunal that clearly indicates that the clinical onset of osteoarthrosis in the applicant's hips occurred prior to the early 1980s. In particular, in the reports of the regular service medical examinations which the applicant had during his periods of service in the RAN and the RANR, there is no record of any problem with the applicant's hips, and in December 1980 an X-ray report in relation to, inter alia, the applicant's hips stated that they appeared to be "normal". Dr Barr, the applicant's treating general practitioner since October 1984, stated in his report of 25 April 2002 (Exhibit R1) that the applicant had been "having pain in his hip regions for many years" prior to his first seeing him, but he was unable to express an opinion regarding the time of clinical onset of the applicant's osteoarthrosis in both hips. He also confirmed that Dr Vaughan, Neurosurgeon, had made a "definitive diagnosis" of osteoarthritis of the hips in 1998. He also stated that the applicant had not given any specific history of "direct hip trauma" and that his history was rather one of a "slowly progressive osteoarthritis".
On the basis of the material before it, the Tribunal finds that osteoarthrosis in the applicant's hips was present in 1998 and, that in all likelihood, the clinical onset of that condition occurred some years prior to that. The Tribunal cannot, however, be precise as to the date of clinical onset of osteoarthrosis in the applicant's hips but, having regard in particular to the X-ray report of 22 December 1980, it is satisfied on the balance of probabilities that the time of clinical onset was not prior to the early 1980s.
It necessarily follows from the above finding that, even if the Tribunal were to find that the applicant suffered a trauma to the hip joint, within the meaning of cl 5(h) of the relevant SoP, during 1948 within the period of his eligible war service (other than operational service) (as contended by him), the factor specified in cl 5(h) would nevertheless not be satisfied because any such trauma would have occurred well before the commencement of the 25-year period referred to in that paragraph. At the hearing Mr Cooper (for the applicant) conceded that this was the case and, accordingly, conceded that the applicant's condition of osteoarthrosis in both hips was not connected with his eligible war service (other than operational service) from 1946 to 1949. It will be apparent from the foregoing discussion that the Tribunal regards Mr Cooper's concession as correct.
The abovementioned finding, of course, makes it unnecessary for the Tribunal to determine whether the applicant suffered a "trauma to the [hip] joint", as defined in cl 8 of the relevant SoP for the purposes of cl 5(h) of that SoP, in 1948 during the period of his eligible war service. Suffice it to say, however, that on the material before it the Tribunal is inclined to the view that the bruising which the applicant, according to his own evidence, sustained in his left hip region during 1948 is not indicative of the serious kind of injury that is contemplated by the relevant definition of the phrase "trauma to the affected joint" in cl 8 of the SoP.
Accordingly, the Tribunal is satisfied, on the balance of probabilities, that the applicant did not suffer a "trauma to the [hip] joint within the 25 years immediately before the clinical onset of osteoarthrosis in that joint", within the meaning of paragraph (h) of cl 5 of the relevant SoP (namely, Instrument No 82 of 2001). It being common ground that none of the other factors set out in cl 5 of that SoP is applicable in this case, the Tribunal finds that the applicant's condition of osteoarthrosis in both hips is not connected with the circumstances of his eligible war service (other than operational service).

Conclusion

On the basis of the relevant SoPs presently in force – namely, Instruments No 81 and No 82 of 2001 – the Tribunal finds that the applicant's condition of osteoarthrosis in both hips is not a war-caused injury or a war-caused disease, within the meaning of s9 of the Act.
In accordance with the decision of the Full Federal Court in Repatriation Commission v Keeley (above), the Tribunal has also had regard to the relevant SoPs that were in force at the time of the respondent's decision in this matter – namely, Instrument No 41 of 1998 as amended by Instrument No 19 of 1999, and Instrument No 42 of 1998 as amended by Instrument No 20 of 1999. The Tribunal is of opinion, however, that the relevant provisions of those SoPs are not more favourable to the applicant's case than the current SoPs and that their application to this case would produce the same result as that produced by the application of the current SoPs – namely, that the applicant's condition of osteoarthrosis in both hips is not a war-caused injury or a war-caused disease, within the meaning of s9 of the Act.

Decision

For the above reasons the Tribunal affirms the decision under review.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor S D Hotop, Deputy President

Signed:         ........(sgd V Wong).........................................
  Associate
Date/s of Hearing  14 February, 31 October 2002
Date of Decision  26 November 2002
Counsel for the Applicant        Mr B Cooper
Counsel for the Respondent    Mr C Ponnuthurai

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Citations

Polglaze and Repatriation Commission [2002] AATA 1223

Cases Citing This Decision

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Cases Cited

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Statutory Material Cited

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Repatriation Commission v Gorton [2001] FCA 1194

Re Greenough and Repatriation Commission [2002] AATA 774

Repatriation Commission v Gorton [2001] FCA 1194