Re Richards and Repatriation Commission

[2012] AATA 308

[2012] AATA 308

Division	GENERAL ADMINISTRATIVE DIVISION
File Number(s)	2011/4671
WILLIAM RICHARDS
APPLICANT
And	REPATRIATION COMMISSION
RESPONDENT

DECISION

Tribunal	Mr R G Kenny, Senior Member
Date	22 May 2012
Place	Brisbane

The Tribunal sets aside the decision under review in relation to osteoarthritis of the knees; substitutes its decision that those conditions are war-caused under the Veterans’ Entitlement Act 1986 (Cth); determines that pension is payable for incapacity from those conditions; and remits to the Repatriation Commission the matters of the date of effect of the decision and the assessment of pension.

............[Sgd]............................................

Mr R G Kenny, Senior Member

CATCHWORDS

VETERANS’ AFFAIRS – Veterans’ Entitlements – Eligible war service with Australian Army – Application of Statement of Principles – Diagnosis of osteoarthritis of knees – Clinical onset of osteoarthritis of the knees – Reasonably satisfied that osteoarthritis of the knees is attributable to eligible war-service – Decision under review set aside – Matters of assessment and date of effect remitted to Repatriation Commission.

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) ss 7, 9, 14, 120, 120B

CASES

Fogarty v Repatriation Commission [2003] FCAFC 136; (2003) 37 AAR 363

Kaluza v Repatriation Commission [2010] FCA 1244
Lees v Repatriation Commission (2002) 125 FCR 331
Repatriation Commission v Cornelius [2002] FCA 750
Repatriation Commission v Gorton (2001) 65 ALD 609
Repatriation Commission v Keeley (2000) 60 ALD 401

SECONDARY MATERIALS
Statement of Principles concerning Osteoarthritis Instrument No. 14 of 2010, as amended by Instrument No. 36 of 2011.

REASONS FOR DECISION

Mr R G Kenny, Senior Member

22 May 2012

BACKGROUND

1. William Richards served with the Australian Army (“the Army”) from 3 May 1945 until 13 December 1946. On 19 October 2010, he lodged a claim, in accordance with s 14 of the Veterans’ Entitlements Act 1986 (Cth) (“the Act”), with the Repatriation Commission (“the respondent”) for a disability pension for “marked degenerative arthritic changes both knees”. He contended this condition was related to his Army service.

2. On 23 November 2010, the respondent determined that the claimed condition was not related to Mr Richards’ service. On 27 September 2011, the Veterans’ Review Board affirmed the decision.

   SERVICE, STATEMENT OF PRINCIPLES AND ISSUES

3. Mr Richards completed eligible war service in Australia in accordance with s 7(1)(c) of the Act. Under s 9(1)(b) of the Act, a condition will be war-caused if it “arose out of, or was attributable to, any eligible war service rendered”. The standard of proof for determining diagnostic and causation matters under the Act in this matter is provided for in s 120(4) thereof. This requires that such matters be determined to the decision-maker’s reasonable satisfaction.[1] The application of that provision is affected by the terms of s 120B of the Act which requires that consideration be given to any relevant Statement of Principles (“SoP”) that have been published by the Repatriation Medical Authority (“RMA”).

   [1] This means that matters are determined on the balance of probabilities: Fogarty v Repatriation Commission (2003) 37 AAR 363 at 373.

4. It is common ground between the parties that the condition for determination in this matter is osteoarthritis of the knees. The RMA published Instrument No. 14 of 2010, as amended by Instrument No. 36 of 2011, as the SoP for osteoarthritis. Where a SoP has been amended by another, the matter is to be considered, initially, under the later Instrument but, in the event that its requirements are not met, it is then to be considered under the Instrument which was in force at the date of the primary decision.[2] The factor relied on by Mr Richards remained unamended and reads:

   6. (m) for osteoarthritis of a joint of the lower limb only,

   (i) lifting loads of at least 35 kilograms while bearing weight through the affected joint to a cumulative total of at least 168 000 kilograms within any 10 year period before the clinical onset of osteoarthritis in that joint, and where the clinical onset of osteoarthritis in that joint occurs within the 25 years following that period;…

   [2] Repatriation Commission v Keeley (2000) 60 ALD 401 at 415, 422; Repatriation Commission v Gorton (2001) 65 ALD 609 at 620, 625.

5. It is conceded by Mr Jeff Kelly, for the respondent, that Mr Richards met the load lifting component of that factor. The issue for the Tribunal is whether that condition is war-caused. Relevant to that consideration is the meaning of “osteoarthritis” which is set out in the SoP:

   SoP No. 14 of 2010

   “3 (b) For the purposes of this Statement of Principles, “osteoarthritis” means a degenerative joint disorder with:

   (i) clinical manifestations of pain, impaired function and stiffness; and

   (ii) radiological, other imaging or arthroscopic evidence of loss of articular cartilage or osteophytes.

   Other commonly associated features are sclerosis of the underlying bone and inflammation of the synovium. This definition excludes acute traumatic chondral defect and osteochondritis dissecans.”

   SoP No. 36 of 2011

   “For the purposes of this Statement of Principles, “osteoarthritis” means a degenerative joint disorder with:

   (i) clinical manifestations of pain, impaired function and stiffness; and

   (ii) radiological, other imaging or arthroscopic evidence of loss of articular cartilage or osteophytes.

   Other commonly associated features are sclerosis of the underlying bone, inflammation of the synovium and, for osteoarthritis in the knee, degenerative tears of the menisci. This definition excludes acute traumatic chondral defect and osteochondritis dissecans.”

6. The issue for determination is whether the clinical onset of Mr Richards’ osteoarthritis in his knees had its clinical onset by 1971, the end of the 25 year period after Mr Richards’ service, as required by the SoP. The term “clinical onset” is not defined in any SoP or in the Act. Mr Kelly submitted that the clinical onset requires evidence of both paragraphs (i) and (ii) of the meaning given in cl 3(b) of the SoPs. In particular, he submitted, this required radiological, other imaging or arthroscopic evidence of loss of articular cartilage or osteophytes and no such evidence was present within the 25 years after Mr Richards’ service. He referred to the Full Federal Court decision in Lees v Repatriation Commission (“Lees”).[3]

   [3] (2002) 125 FCR 331.

7. Mr Anthony Hornby, for Mr Richards, submitted that the meaning of “clinical onset” was given in Repatriation Commission v Cornelius (“Cornelius”)[4] whereby it was sufficient if Mr Richards had become aware of symptoms at a time which enabled a doctor to say the disease was present at that time. He submitted that Mr Richards’ evidence of the history of his knee complaints and the medical evidence of consultant physician in rheumatology, Dr Phillip Vecchio, confirm the clinical onset in the time-frame required by the SoP.

   [4] [2002] FCA 750.

   EVIDENCE

8. Mr Richards’ evidence was that he experienced knee pain during his service and that this worsened after his discharge from the Army. He recalled having surgical procedures on his knees in the late 1940s and early 1950s as well as receiving massage treatment at that time. His treating practitioner, Dr Graham Welch, described, in Mr Richards’ claim form, a long history of knee pains and diagnosed marked degenerative arthritic changes in both knees. Dr Vecchio also diagnosed bilateral knee osteoarthritis and recorded a history consistent with that outlined above from Mr Richards. In reports, dated 30 November 2011 and 3 January 2012, Dr Vecchio expressed the opinion that, on the basis of the history described by Mr Richards, the clinical onset of his osteoarthritis in the knees was prior to 1971.

   CONSIDERATION

9. I am satisfied that the concessions by Mr Kelly in relation to the diagnosis of osteoarthritis of the knees and the factor in cl 6(m)(i) in the SoP have been properly made. I have noted Mr Kelly’s submission on the need for the clinical onset of osteoarthritis to be confirmed objectively by radiological, other imaging or arthroscopic evidence of loss of articular cartilage or osteophytes. Mr Kelly submitted that this was important with any condition defined in those terms, as was the case with the SoPs for osteoarthritis. No such evidence is available in Mr Richards’ case until 2009. Neither was evidence available at any time before 1971.

10. Mr Kelly referred to the decision of the Full Federal Court in Lees and noted that it was concerned with a psychiatric condition where an objective measure, such as appears in cl 3(b)(ii) of the SoP for osteoarthritis, is not required to establish clinical onset. In that case, the Court noted the approach adopted by Branson J in Cornelius which was concerned with a claim for carpal tunnel syndrome and where Branson J accepted the following as a correct interpretation of the term “clinical onset”:[5]

    “... 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....”.

    [5] [2002] FCA 750 at [26].

11. In Kaluza v Repatriation Commission (“Kaluza”),[6] considerations related to psychiatric conditions and hypertension. There, Jacobson J summarised the effect of the decision in Lees in the following way:[7]

    [92] The meaning of the expression “clinical onset” was considered by the Full Court in Lees. The effect of what their Honours (Heerey, Moore and Kiefel JJ) said at [13] was that there is a clinical onset of a disease, either:

    ·when a person becomes aware of some features or symptoms which enable a doctor to say that the disease was present at that time; or

    ·when a finding is made on investigation which is indicative to a doctor that the disease is present.

    [93] The definition therefore emphasises the need for a determination of the clinical onset by medical evidence. It is for the doctor to say when the clinical onset occurred by the presence of features or symptoms. But the clinical onset is not necessarily when the patient first sees a doctor for medical treatment.

    [6] [2010] FCA 1244.

    [7] [2010] FCA 1244 at [92], [93].

12. I have noted the submission of Mr Kelly. I accept that, for a diagnosis of osteoarthritis to be made, the objective requirements of the meaning ascribed to the condition in paragraph 3(b) of the SoP must be met. At the time of making a diagnosis, the medical practitioner would be able to obtain such evidence. However, when applying a SoP, the process of determining clinical onset will frequently require consideration of matters many years earlier, in this case up to 25 years, when an accurate assessment based on objective criteria may not be possible. The decisions in Lees, Cornelius and Kaluza do not make the distinction described by Mr Kelly and I am satisfied that the opinion of Dr Vecchio of the clinical onset of osteoarthritis in Mr Richards should be adopted.

13. I am reasonably satisfied that Mr Richards’ circumstances satisfy the SoP for osteoarthritis of the knees and is a war-caused injury in accordance with the terms of s 9(1)(b) of the Act.

    DECISION

14. The Tribunal sets aside the decision under review in relation to osteoarthritis of the knees; substitutes its decision that those conditions are war-caused under s 9(1)(b) of the Act; determines that pension is payable for incapacity from the conditions; and remits to the Repatriation Commission the matters of the date of effect of the decision and the assessment of pension.

I certify that the preceding 12 (twelve) paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Senior Member.

........[Sgd]..............................................

Associate

Dated 22 May 2012

Date(s) of hearing	11 May 2012
Advocate for the Applicant	Anthony Hornby
Advocate for the Respondent	Jeff Kelly