Riley and Repatriation Commission
[2007] AATA 1689
•24 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1689
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2006/838
GENERAL ADMINISTRATIVE DIVISION ) Re DANIEL RILEY Applicant
And
REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Ms N. Isenberg, Senior Member Date24 August 2007
PlaceSydney
Decision The decision under review is affirmed.
……[sgd]……………
Ms N Isenberg
Senior Member
CATCHWORDS
VETERANS’ ENTITLEMENTS – operational service – claim that chondromalacia patellae of both knees was war-caused – consideration of Statement of Principles – whether decision not to seek medical treatment was because of the culture of a military unit – decision under review is affirmed
LEGISLATION
Veterans’ Entitlements Act 1986 (Cth) – sections 6, 9, 13, 120, 196A, 196B
Statement of Principles – Instrument Number 33 of 2001 concerning chondromalacia patellae
CASE LAW
Repatriation Commission v Deledio (1998) 83 FCR 82
Lees v Repatriation Commission (2002) 125 FCR 331
Re Robertson and Repatriation Commission (1998) 50 ALD 668
Brew v Repatriation Commission (1999) 94 FCR 80
REASONS FOR DECISION
24 August 2007 Ms N Isenberg, Senior Member
1. The Applicant (“Mr Riley”) is seeking review of a decision by the Respondent, dated 20 May 2003, that rejected his claim to have the condition of chondromalacia patellae of both knees attributed to his military service in the Australian Army. This decision was affirmed by the Veterans’ Review Board (“the VRB”) on 17 March 2006.
Issue before the Tribunal
2. The issue to be considered by the Tribunal is whether Mr Riley’s chondromalacia patellae of both knees is causally related to his service.
Background
3. Mr Riley served in the Australian Army from 10 February 1965 until 9 February 1968.
4. His operational service, as defined by section 6C of the Veterans’ Entitlements Act 1986 (“the VEA”), was in Vietnam from 10 June 1966 until 9 May 1967.
legislation
5. Section 9 of the VEA provides for 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…”
6. Section 13(1) of the VEA provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
7. As Mr Riley had operational service, the determination of whether his claimed conditions are war-caused is to be made by applying sub-sections 120(1) and 120(3) of the VEA. Those sub-sections require me to find that Mr Riley’s condition was war‑caused, unless I am satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. I must be so satisfied if I am of the opinion that the material before me does not raise a reasonable hypothesis to connect Mr Riley’s condition with his service.
8. 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.
Outline of evidence and Applicant’s contention
9. I had before me documents lodged pursuant to section 37 of the Administrative Appeals Tribunals Act 1975 ("the T-Documents"), which I took into evidence.
10. In addition, the following documents were tendered:
· Statement of Mr Daniel Riley dated 26 April 2007 (Exhibit A1);
· Medical report of Dr Giblin dated 25 October 2006 (Exhibit A2);
· Clinical notes of Dr Menzies as at 15 September 2006 (Exhibit R1);
· Clinical notes of Dr Diebold (Exhibit R2);
· Respondent’s Statement of Issues dated 4 September 2006 (Exhibit R3);
· Respondent’s Statement of Facts and Contentions dated 14 May 2007 (Exhibit R4); and
· Dr Millons’ medical report dated 28 November 2006 (Exhibit R5).
11. Mr Riley gave evidence, as did his former colleagues, Mr Michael von Berg and Mr Robert Kearney. Oral evidence was also given by Dr Peter Giblin and Dr David Millons.
12. Mr Riley’s evidence was that he had first injured his right knee before commencing his operational service in 1965. However, during his operational service in Vietnam, he experienced three incidents that caused injury to his knees. On the first occasion, Mr Riley injured his right knee whilst jumping from a truck. He then injured his left knee while carrying an excessive amount of ammunition. On the final occasion he injured both knees when he fell down the side of a creek whilst on operations.
13. It was submitted on behalf of Mr Riley that one or more of the incidents in Vietnam gave rise to his chondromalacia patellae. Alternatively, in respect of the right knee, it was submitted that the clinical onset of the condition was as a result of the 1965 incident, with the incidents in Vietnam causing a clinical worsening.
14. It was further submitted on behalf of Mr Riley that either no medical treatment was available, or that the culture of his unit was such that he did not seek medical treatment after the incidents.
15. Counsel for Mr Riley relied on factors 5(a), (b) and (h) in SOP Instrument No. 33 of 2001:
· (5)(a) - “suffering direct trauma to the patella of the affected knee within the six months immediately before the clinical onset of chondromalacia patellae;”
“direct trauma to the patella - means a blow to the kneecap causing immediate patellar pain that persists for at least 24 hours unless alleviated by analgesia” – paragraph 8
· (5)(b) – “suffering an injury to the affected knee resulting in meniscal damage or permanent ligamentous instability within the six months immediately before the clinical onset of chondromalacia patella…”
· (5)(h) – “inability to obtain appropriate clinical management for chondromalacia patellae.”
16. In the alternative, Mr Riley relied on factor 5(e) in SOP Instrument No. 33 of 2001 in relation to his right knee:
· (5)(e) – “suffering direct trauma to the patella of the affected knee within the six months immediately before the clinical worsening of chondromalacia patellae…”
· “Paragraphs 5(e) to 5(h) apply only to material contribution to, or aggravation of, chondromalacia patellae where the person’s chondromalacia patellae was suffered or contracted before or during (but not arising out of) the person’s relevant service; paragraph 8(1)(e), 9(1)(e), 70(5)(d) or 70(5A)(d) of the Act refers.” - paragraph 6
Evidence
17. Mr Riley gave evidence that he first injured his right knee during training at Ingleburn in 1965. He spent six days in hospital, and underwent physiotherapy for some months. After that incident, Mr Riley said that his right knee was always sensitive, and that he was always aware of it.
First incident during operational service
18. Mr Riley again injured his right knee in Vietnam, during the period of his operational service, when he fell about a metre and a half from a truck onto the hard ground. He said that he twisted his knee, and bashed the front of the knee into the ground. At the time, he was carrying a full kit and his rifle. He said that he hobbled back to his tent. In his claim form (T6, Folio 31), Mr Riley said that he had twisted his right knee and that he was able to rest it for two days before operations.
19. Mr Riley said that after the incident happened he was “embarrassed”. He did not seek any treatment because as the unit was only new, there was only a “token” first aid post.
20. After that incident, the right knee remained “sensitive”, and the symptoms never went away completely. He made sure that he protected it by trying to walk “flat”, and by avoiding twisting or aggravating the knee or the knee joint. The knee was particularly troublesome when he was standing, and would slightly bend backwards causing sharp pains.
21. When Mr Riley was asked what differences he experienced in his right knee between the incident at Ingleburn and the first incident in Vietnam, he said that the symptoms were “similar, but a little bit different”. After the Ingleburn incident there was soreness “in and through the knee”, whereas following the first incident in Vietnam, the right knee was sore at the front and on the sides. He continued to describe his right knee as being “sensitive”.
Second incident during operational service
22. About eight weeks after the first incident, a second incident occurred involving Mr Riley’s left knee. At the time, Mr Riley’s company was reinforcing another company outside the wire. Because of this, he was carrying more ammunition than usual and it was dark. He “bashed” the left knee, “gave it a good twist” and rolled on the ground. Mr Riley then got up, and “hobbled” back to the gun pits, where he remained for 24 hours before returning to base. In his claim form (T6, Folio 31), he said he that he had tripped in the dark and twisted his left knee.
23. Mr Riley said that he did not seek medical treatment after the second incident because he did not want to miss an operation - there was no-one else to do his job, and at that time, they were all young and enthusiastic to participate. The only time that he missed an operation was when he was ordered out for other medical reasons. To miss an operation meant being labelled an “ops-dodger”. This was confirmed by Mr Kearney’s evidence.
Third incident during operational service
24. The third incident occurred shortly before Mr Riley’s return from Vietnam, whilst he was walking on the edge of a creek during a patrol. With a radio on his back, and carrying a machine gun, Mr Riley said that he “miscued”, and his right leg gave away causing him to roll down the hill. During the fall, he bashed both knees against a tree that was lying in the creek, and he ended up on his back with the radio beneath him. Mr Kearney remembered Mr Riley hurting his knee whilst they were on patrol, recalled him limping, and being very relieved when Mr Riley said he was able to continue walking because they could not have carried him out. Again, in his claim form (T6, Folio 31), Mr Riley said that he had “twisted” the knee.
25. After the fall, Mr Riley said that he managed to “scamper” back up the side of the creek, although his right knee was really sore. He reported the injury to the platoon medic, “Doc” White, but there was no prospect of a medical evacuation and they were due to be extracted within the next day or day and a half. The medic advised Mr Riley to seek treatment on his return to base. Mr Riley said that after the third incident, his right knee started to “seize up” to such an extent that when he got back inside the perimeter and reported in, he had trouble squatting, and had to keep the right leg straight for between 24 to 36 hours because he was unable to bend it.
26. By the time they returned to Nui Dat, Mr Riley said that he felt good, and therefore did not go to the battalion doctor. Mr von Berg thought he saw him limping for a long period of time – possibly as long as a fortnight.
27. After the third incident, Mr Riley had continual “niggles” in the right knee. He managed it by protecting the knee, and using commonsense.
28. Following his return from Vietnam, in about October or November 1967, Mr Riley completed a parachute course. Both knees were really sensitive, but he did not want to fail the course and be known as “the bloke who failed the parachute course”. He would go swimming in the cold water to take some of the sting out of his knee, and also massaged “the knee”. Otherwise, he said, the parachuting did not affect his knees.
Post service history
29. Mr Riley said that in February 1968, after leaving the Army, he commenced Wollongong Teachers’ College. At the beginning of the course, there was a game in Physical Education that involved standing on one leg and bumping into classmates. Mr Riley said that when playing this game, he realised that his right knee was sore and really sensitive. He described the top part of his leg moving, whilst the bottom part remained still, whenever he attempted to move.
30. In the middle of 1968, approximately 12 months after he left Vietnam, his right knee gave out during a hockey match. The College doctor put frozen peas on it. He described the event as being “the thing that really sealed it”. He explained this as meaning that his knee became “really sensitive”. Despite this, he decided that he just had to get on with things.
31. In his evidence, Mr Riley said that he sought advice from the Returned and Services League of Australia (“RSL”) in 1968 about claiming his knees as a service related injury, but was told that there was nothing available, and to just “get on with it”. Notwithstanding that he had health insurance, Mr Riley did not seek medical treatment.
32. In cross-examination, Mr Riley was referred to his medical documents. On his discharge medical examination (T3, Folio 3) he did not mention any problem with his knees. The reason for this, he said, was because only serious matters, for which he was hospitalised, were mentioned. He told the VRB that the discharge medical had been “very short”, and was asked if he had any “aches and pains”.
Consideration
33. In Repatriation Commission v Deledio (1998) 83 FCR 82 (“Deledio”) at 97 the Federal Court said that the first step for the Tribunal is to determine whether the material points to a hypothesis connecting the injury, disease or death with the circumstances of service. I found that the material presented raises a reasonable hypothesis connecting Mr Riley’s chondromalacia patellae with his war service within the meaning of subsection 120(3) of the VEA.
34. The second step is to ascertain whether there is a SOP in force in respect of the relevant injury. The relevant SOP has been identified as Instrument No. 33 of 2001.
35. I now turn to the third step as enunciated in Deledio. This entails considering all of the evidence, and determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SOP. This step involves considering all of the material before me, but without making any findings of fact at this stage of the process. If the evidence taken as a whole does not fit within the relevant SOP factors, then any hypothesis will not be reasonable: section 120A(3). The claim would therefore not be successful.
clinical onset
36. 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 - with the exception of factor (5)(h) - it is essential to determine when the clinical onset (or clinical worsening) of the condition occurred.
37. In attributing his condition to the incidents in Vietnam, the clinical onset (or worsening) of Mr Riley’s chondromalacia patellae must, on the balance of probabilities, be within 6 months of the incident(s). The precise dates of the incidents are unclear. Therefore, even on the most generous interpretation of the date of the incidents – being the date Mr Riley ceased operational service in May 1967 – the clinical onset (or worsening) would need to have occurred by November 1967.
38. The earliest available medical evidence is Mr Riley’s medical discharge documents, which were dated 8 February 1968 (T3, Folio 6). On those documents, both knees were described as being “normal, with a full range of movement”. Mr Riley’s counsel attempted to dismiss this report, describing the Army doctor who conducted the medical as “inexperienced”; however, there is no evidence to support that claim. The doctor may not have been an orthopaedic surgeon, but it was clear no abnormality was detected in either knee, and there was a full range of movement. Further, there was no complaint recorded by Mr Riley at that time. In his evidence, Mr Riley explained this by saying that the medical examination was very brief, and he only mentioned conditions that had required hospitalisation. He continued by saying that he did not mention other matters, including his knees, because [they] were “not serious enough to mention”.
39. Mr Riley said that in 1968 he sought advice from the RSL about claiming his knees as a service injury, but was told that there was nothing available and to just “get on with it”. He therefore did not seek medical “treatment” until 2002, some 34 years later.
40. Mr Riley told Dr Millons (Exhibit R5) that in the 1970s he saw a Dr McEwen about some right knee pain, and was given a knee brace to use. Around the same time, he also saw a bush nurse, who advised him to put frozen peas on it if it played up. Dr Millons’ report further noted that Mr Riley saw a Dr Batts about his knees in the early 1980s, and was advised to take care.
41. In Dr Giblin’s report (Exhibit A2), Mr Riley made no mention of these consultations. However, the report did note that when Mr Riley’s knees became “much more symptomatic”, he sought medical attention in 1994.
42. It was not until October 2002 (Exhibit R1) that he saw Dr Menzies, who was his General Practitioner (“GP”) at the time, about his knees, with a view to making a claim. X-rays were carried out on his left and right knees. He was referred to Dr Diebold, an orthopaedic surgeon, who made the first formal diagnosis of chondromalacia patellae in March 2003 (Exhibit R2). The history taken by Dr Diebold was of a “10 year history of bilateral anterior knee pain”. Mr Riley explained in cross-examination that “for the last 10 years it has been a real pain in the neck (sic)”.
43. 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 (“Robertson”), 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.”
44. That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius (“Cornelius”) [2002] FCA 750.
45. Dr Giblin thought Mr Riley‘s chondromalacia patellae, at least in respect of the right knee, dated back to the 1965 injury, having regard to the need for hospitalisation. The condition may have been present in a “sub-clinical” form, or there was a propensity to the condition. Dr Giblin also said that the condition could be present “microscopically”, even if a doctor was unable to observe it.
46. Dr Millons was prepared to accept that Mr Riley may have had a minor degree of chondromalacia patellae from the mid 1970s and considered that he had “some symptoms suggestive of patellofemoral pain, certainly on the right, from some time in the mid 1970s”. He agreed in cross-examination that the first symptoms of chondromalacia patellae would be pain behind the kneecap, and that symptoms in the first six months are relatively minor. Mr Riley’s description of “sensitivity at the front and sides of the knee” after the first incident in Vietnam, whilst imprecise, could indicate “irritability” behind the kneecap. This symptom forms part of the clinical diagnosis of chondromalacia patellae. The condition develops over time, and range of movement becomes restricted.
45. Nonetheless, Mr Riley made no complaint about his knees at his medical discharge because he did not think that the condition of either knee warranted mention. Also, on his evidence, Mr Riley had seen at least two doctors in the 1970s and 1980s about his knees. However, there was no evidence of a diagnosis of chondromalacia patellae having being made at those times. This would be unusual if Mr Riley had suffered the condition since 1967, particularly given the evidence of Dr Millons that the condition continues to develop over time. I do not accept Dr Giblin’s evidence that the condition could be present “microscopically” even if a doctor could not detect it on examination. The accepted definition of clinical onset referred to in Robertson and Cornelius relies on the classification by a doctor of symptoms upon presentation by the patient. There was no medical evidence suggesting that the condition was diagnosed at any time close to Mr Riley’s military service.
46. I therefore find that the clinical onset of chondromalacia patellae was not until a date outside the 6 months required by factors 5(a) and (b). Similarly, if the condition was not present until after mid 1967, then there can be no clinical worsening associated with service as required by factor 5(e).
Inability to obtain clinical management
47. Firstly, this is not a matter where doctors were unavailable. Mr Riley’s medical documents note that he was treated in Vietnam for diarrhoea, flu type symptoms, and for a swollen testicle on two occasions (T3, Folios 7 and 8), indicating that medical treatment was available.
48. In relying on factor 5(h), counsel for Mr Riley submitted that the culture of wanting to avoid being labelled as an “ops-dodger” prevented Mr Riley seeking treatment for his knee injuries while in Vietnam. In support of this contention, I was referred to Brew v Repatriation Commission (“Brew”) (1999) 94 FCR 80 where Merkel J said at 88:
“If a veteran is subjected to any psychological or emotional circumstances which are such that, as a matter of practical reality, the veteran could not reasonably be expected to take steps to obtain appropriate clinical management for a medical condition I see no reason why those circumstances are not capable of constituting a "condition of being unable" to obtain treatment.”
50. As to his reluctance to seek treatment for his knees, I accept that Mr Riley, and others, may have considered themselves “bullet proof”. He was young, fit and enthusiastic and did not want to miss operations. However, on some occasions he was prepared to, and in fact did seek medical assistance.
51. I note however, that paragraph 6 of the SOP states that factor (5)(h) only applies in circumstances where there is a “material contribution to, or aggravation of, chondromalacia patellae, where the [veteran’s] chondromalacia patellae was suffered or contracted before or during (but not arising out of) [his] relevant service”. That is, for factor (5)(h) to apply, I would need to be satisfied that the condition was suffered before or after Mr Riley’s operational service. The contention made on behalf of Mr Riley, about not wanting to consult doctors in Vietnam about his knees, necessarily relies on a finding that the condition arose as a result of the 1965 injury. This was similar to the Applicant’s claim in Brew that her varicose veins were related to her pre-army service employment.
52. I have already found that the clinical onset of Mr Riley’s chondromalacia patellae was not until sometime after his operational service, and not before his discharge from the Army. That being the case, Mr Riley cannot succeed on factor 5(h).
53. For the above reasons, I consider that the hypothesis raised by the material before me is not consistent with any of the factors in the SOP Instrument No. 33 of 2001. Therefore, the SOP does not uphold the asserted hypothesis connecting Mr Riley’s chondromalacia patellae with the circumstances of his operational service. As a result, the hypothesis is not reasonable and by virtue of section 120(3) of the VEA I must find beyond reasonable doubt that there is no sufficient ground for determining that the claimed condition was war-caused; as a result, Mr Riley’s claim must fail.
conclusion
54. In all of the circumstances, I am satisfied beyond reasonable doubt that there is no sufficient ground for determining that the condition of chondromalacia patellae was related to Mr Riley’s operational service.
Decision
55. For the above reasons, I affirm the decision under review.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N. Isenberg, Senior Member.
Signed: [sgd] Skye Owen
[Associate]Date of Hearing 20 July 2007
Date of Decision 24 August 2007
Witnesses Mr Daniel Riley
Mr Robert Kearney
Mr Michael von Berg
Dr David Millons
Dr Peter Giblin
Solicitor for the Applicant Ms Rhiannon Wheeler
Counsel for the Applicant Mr Michael Perry
Solicitor for the Respondent Ms Jean McCulloch
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