Robinson and Repatriation Commission
[2001] AATA 1
•3 January 2001
DECISION AND REASONS FOR DECISION [2001] AATA 1
ADMINISTRATIVE APPEALS TRIBUNAL )
) NoQ1999/740, Q2000/374
VETERANS' APPEALS DIVISION )
Re RODNEY C ROBINSON
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Mr K L Beddoe (Senior Member)
Date3 January 2001
PlaceBrisbane
Decision In Application Q1999/740 the Tribunal decides that the decision under review is set aside and in substitution thereof decides to accept osteoarthritis left knee as being war caused with effect from 27 April 1997. The matter is remitted to the respondent for assessment. In Application Q2000/374 the Tribunal affirms the decision under review.
(Sgd) K L Beddoe
Senior Member
CATCHWORDS
VETERANS' AFFAIRS – whether the applicant's left knee osteoarthritis was war caused – whether the applicant suffered a relevant trauma to the knee – whether the applicant was entitled to pension at a rate higher than the general rate – whether the applicant was totally and permanently incapacitated so as to render him incapable of undertaking remunerative work for more than 8 hours per week or part-time or intermittently
Veterans' Entitlements Act 1986 ss 9,23,24,120
Statement of Principles No 71 of 1995
Statement of Principles No 352 of 1995
Treloar v Australian Telecommunications Commission (1990) 97 ALR 321
REASONS FOR DECISION
3 January 2001 Mr K L Beddoe (Senior Member)
The applicant seeks review of two decisions of the Repatriation Commission.
By a decision notified on 4 March 1997 the respondent decided, amongst other decisions, to refuse a claim that osteoarthritis left knee be accepted as war-caused. By a further decision notified on 12 November 1997 the respondent refused a claim for osteoarthritis right knee. The right knee is no longer claimed by the applicant (Q1999/740).
By a decision notified on 28 October 1999 the respondent decided to refuse a claim for increase in disability pension and continued pension at 70% of the general rate. On a section 31 review this was varied to 80% (Q20000/374).
The above decisions were subsequently affirmed by the Veterans' Review Board.
At the hearing Mr Richards represented the applicant and Mr Stoner represented the respondent. The documents lodged in the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 were placed before the Tribunal and marked as Exhibit 1 (Q1999/740) and Exhibit 2 (Q2000/374). Further documents were tendered and marked as exhibits. Oral evidence was given by the veteran. Following the hearing the parties also made written submissions.
The veteran who was born 26 February 1945, enlisted in the Army on 4 October 1967 and was discharged on 3 October 1969. During service he had operational service in Vietnam from 8 February 1969 to 20 August 1969.
Document T4 is an extract of the service records including medical records. Those include an in-patient record relating to the applicant's admission to 7 Camp Hospital on 16 October 1967 and discharge from hospital on 18 October 1967. The noted diagnosis of injury was "(L) medial meniscus contusion" and noted as having occurred during PT. In The Final Medical Board report on discharge the applicant relevantly recorded "Disability L Knee Kapooka 1967". No other reference appears as to knees except that the medical officer recorded: "L: Knee no effusion or crepitus – full? Movements No X eaxity slight tenderness over L int cartilage". Sprain L knee at PT October 1967 at ITB is also recorded by the medical officer.
The applicant was called up under the National Service Act and following recruit training at Kapooka he served as an assault pioneer in 5 Battalion Royal Australian Regiment.
In a claim for pension dated 4 September 1996 the applicant said:-
"I suffered an injury to my left knee while performing my training duties at the gym at Kapooka training centre." (Exhibit 1/T4)
However in a life style rating form lodged with the respondent on 27 October 1997 the following appears in response to question 2 on the form:-
"Jumping from helicopter and Army (trucks) while loaded down with (?) equipment plus(?) down with mine detecting equipment in Vietnam combat caused (?) knee conditions as a qualified assault pioneer landmine and explosive trained expert". Exhibit 1 T4/42)
A more specific incident related explanation appears in the applicant's pension claim lodged on 27 October 1997 (Exhibit 1 T4/53 at 54) for the claimed osteoarthritis both knees. No mention is made of the incident at Kapooka.
However in Exhibit B which is a statement "To whom it may concern" by the applicant and dated 16 September 1999 he describes the incident at Kapooka and the need for hospitalisation. The statement also describes a twisting of the applicant's left knee when jumping out of a helicopter in Vietnam on 8 March 1969. He describes initial pain and then describes how he was able to continue to perform his duty in a very dangerous situation of clearing land mines. He was treated by the platoon medic the next morning for inflammation of the left knee and the RAP subsequently gave him 7 days no duties and then 7 days light duties by which time, he says, his knee had returned to normal. The statement then goes on to describe another incident in Vietnam involving pain in the knee. So far as I can see this incident has not previously been reported by the applicant.
Exhibit C is a further statement by the applicant undated but lodged in the Tribunal on 11 July 2000 which he seeks to explain part of his evidence before the Veterans' Review Board and then goes on to refer to two other incidents which, so far as I can see, had not previously been referred to.
In his oral evidence the applicant again described the incident involving the jump from the helicopter and mine clearing on 8 March 1969. In cross-examination the applicant explained that following the clearing of the minefield which took 5-6 hours he was "harboured up" which allowed a period of rest for his knee. Before the Veterans' Review Board the applicant referred to a couple of days cooling off period after the incident involving clearing the minefield whereas before this Tribunal the applicant said the two days were spent searching the co-ordinates of Walong looking for explosives, booby traps etc.
The applicant said that he ceased his business as a self-employed Building Contractor on 28 July 1997. He said that he had failed to get contracts because of his adverse attitude to others caused by his accepted disability of Post-Traumatic Stress Disorder. Furthermore sub-contractors were reluctant to work for him because of his attitude.
On 27 October 1997 the applicant lodged a claim for service pension (invalidity)(Exhibit 2/2-14). He nominated "Post-Traumatic Stress Disorder and both knees" as the reason for being unable to continue working or undertake retraining. That was put to him in cross-examination and he agreed he was having trouble with his knees in 1996 and that it was his knees and the Post-Traumatic Stress Disorder which caused him to give up work.
The Medical EvidenceExhibit 1 includes a copy of a medical report by Dr Hur, dated 26 September 1996, who diagnosed Bilateral Medial compartment degeneration in relation to the left knee. In a further report dated 1 February 1997 he agreed with a diagnosis of osteoarthritis of the left knee with minor loss of movement. Dr Hur also diagnosed a condition of gout with onset in 1996.
Exhibit 1 also includes a report by Dr Pentis, Orthopaedic Surgeon, dated 10 June 1997 and addressed to the applicant's then advocate. Dr Pentis said that he had reviewed the applicant on 3 June 1997 in respect to an injury sustained to the left knee joint. Xrays revealed degenerative changes in the medial compartment of the left and right knees with the left being much worse. He expected the degeneration to continue but did not attribute it to a particular event although overall the degeneration is probably due to injury of the knee as an initiating factor. In a further report "to whom it may concern" dated 19 May 2000 Dr Pentis expresses the view that the applicant could return to sedentary work. Supervisory work and clerical type work were said to be within the applicant's capacity.
Exhibit 2 includes two reports by Dr Jenkins, Consultant Psychiatrist, dated 7 April 1999 and 9 February 2000. Dr Jenkins is the treating psychiatrist. Dr Jenkins reported that the applicant ceased work in September 1997 on account of his marked irritability and bad temper and because he felt worn out during the day. He was said to be incapable of performing any kind of employment. In the second report Dr Jenkins affirms the opinion that the applicant ceased work in 1997 solely due to Post-Traumatic Stress Disorder.
The Applicant's CaseMr Richards submits that the applicant's evidence before the Veterans' Review Board was confused because of the ambiguous questions put by the Board. The applicant's evidence should be accepted.
While Dr Pentis thought the applicant was fit for sedentary work Dr Jenkins said he was not and it is the Post-Traumatic Stress Disorder which caused the applicant to cease work.
The Respondent's CaseThe applicant's evidence in relation to the left knee has changed as the matter has progressed. The evidence about the jump from the helicopter only appears in later versions of the applicant's story. The applicant did not cease self employment solely because of his Post-Traumatic Stress Disorder. The osteoarthritis of both knees was a contributing factor and that is confirmed by the applicant's service pension claim which is contemporaneous to the cessation of self-employment. Section 28 cannot be satisfied in this case because of the evidence in Dr Pentis' report that the applicant is capable of sedentary work.
There is no inconsistency between paragraph 9(1)(e) of the Veterans' Entitlements Act 1986 ("the Act") and clause 3 of Statement of Principles No 71 of 1995 and No 352 of 1995. In any event the Tribunal should apply paragraph 9(1)(e) irrespective of any inconsistency and clause 3 is to be read as adopting that paragraph.
ConsiderationI am satisfied that the applicant injured his left knee while undertaking recruit training at Kapooka ie during a period of service not within the terms of the Act. I am also satisfied, on the basis of the applicant's evidence that he suffered a further injury to his left knee when jumping from a helicopter in Vietnam. It is therefore open to find a hypothesis that the osteoarthritis, which I accept is within the defined term osteoarthrosis, was contributed to in a material degree by the incident in Vietnam notwithstanding that the primary cause may be said to be the incident at Kapooka. I understand contribution in a material degree to be a contribution that is either large or small but not de minimis (Treloar v Australian Telecommunications Commission) (1990) 97 ALR 321.
In my view the hypothesis satisfies clause 1(b)(x) of the Statement of Principles (71 of 1995 as amended by 352 of 1995) because the applicant suffered a relevant trauma during his eligible war service in Vietnam which arose out of the service before the clinical worsening of the osteoarthritis. Clause 3 is satisfied because the osteoarthritis arose out of the earlier more serious incident at Kapooka, there being, in my opinion, a material contribution to the condition by the incident in Vietnam within the terms of paragraph 9(i)(e) of the Act. While there is some doubt about the facts surrounding the Kapooka incident I am satisfied that the knee was symptomatic for at least a week after the incident.
In my view there is a reasonable hypothesis connecting the osteoarthritis left knee with the applicant's eligible war service. I have given careful consideration to the applicant's evidence and in particular the respondent's submission that the applicant's story has changed and that the evidence before me has been tailored to meet the requirements of the law. That submission is not without a factual base and has caused me to hesitate as to the decision in this matter. However I am unable to be satisfied beyond reasonable doubt (s 120(I)) that there was not a material contribution to the claimed condition by the service in Vietnam, particularly the jump from a helicopter. On the evidence I am satisfied that it is more likely than not that there was an incident in which the applicant aggravated the previous injury to his knee resulting in a relevant material contribution.
The decision under review will be set aside and a decision substituted accepting osteoarthritis left knee as being war caused with effect from 27 April 1997.
The assessment of the applicant's claim for pension at the above general rates (ss 23 and 24 of the Act ) depends, in particular, whether I can be satisfied that it was the accepted condition of Post-Traumatic Stress Disorder which alone caused the applicant to cease remunerative employment. Alternatively, can I be satisfied that the Post-Traumatic Stress Disorder and other accepted conditions including osteoarthritis left knee were the only factors causing the applicant to cease remunerative employment?
I also have to be satisfied that the applicant is totally and permanently incapacitated so as to render the veteran incapable of undertaking remunerative work for periods aggregating more than 8 hours (s24(1)(b)) or part-time or intermittently (s23 (1)(b)). There is a conflict of evidence. Dr Jenkins says the applicant is completely incapable of performing any kind of employment whereas Dr Pentis says he is capable of undertaking sedentary type employment. I have come to the view, taking into account all the material and taking into account my observation of the applicant giving his evidence, that it is more likely than not that he is capable of undertaking sedentary type employment but chooses not to.
I am also satisfied that a relevant factor in limiting the applicant's employment opportunities is the diagnosed condition osteoarthritis right knee, which is not an accepted disability.
In these circumstances I cannot be satisfied that sections 23 and/or 24 of the Act have been satisfied.
In view of my decision in Q1999/740 the question of assessment is remitted to the respondent.
I certify that the 32 preceding paragraphs are a true copy of the reasons for the decision herein of Mr K L Beddoe (Senior Member)
Signed: .....................................................................................
AssociateDate/s of Hearing 27 July 2000
Date of Decision 3 January 2001
For the Applicant Mr Richards, Advocate
For the Respondent Mr J Stoner, Advocate
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