Re Richards and Repatriation Commission

Case [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…

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AGLC
Re Richards and Repatriation Commission [2012] AATA 308
Case
[2012] AATA 308
Decision Date

CaseChat Overview and Summary

The case of Re Richards and Repatriation Commission involved a dispute concerning the eligibility of Mr. Richards for veteran's entitlements under the Australian Veterans' Entitlements Act 1986. Mr. Richards claimed that his osteoarthritis of the knees was attributable to his eligible war service with the Australian Army. The matter was heard and determined by the Administrative Appeals Tribunal. The primary legal issue before the Tribunal was whether the clinical onset of Mr. Richards' osteoarthritis of the knees was attributable to his eligible war service. The definition of "clinical onset" was central to this issue. According to the Statement of Principles (SoP), the clinical onset must be reasonably satisfied by the evidence presented. Mr. Richards' evidence and medical reports suggested that the clinical onset of his osteoarthritis was prior to 1971, supported by Dr. Phillip Vecchio's opinion. The Tribunal considered the interpretation of "clinical onset" as provided in Cornelius and Lees, which allowed for the clinical onset to be established when a person becomes aware of symptoms or when a finding on investigation indicates the presence of the disease. The Tribunal concluded that the clinical onset of Mr. Richards' osteoarthritis was reasonably satisfied to be prior to 1971 and that his condition was attributable to his war service. Consequently, the Tribunal set aside the decision under review and substituted its own decision that Mr. Richards' osteoarthritis of the knees was war-caused. The matter was remitted to the Repatriation Commission for the determination of the date of effect of the decision and the assessment of pension.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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 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 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. 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]. 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].

Decision

Reasons for decision

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 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.

Ratio Decidendi

Legal Principle Established

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 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. 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]. 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].