Smith and Repatriation Commission - [2001] AATA 104

DECISION AND REASONS FOR DECISION [2001] AATA 104

ADMINISTRATIVE APPEALS TRIBUNAL )

) Nos.T1999/88-89

VETERANS' APPEALS DIVISION       )
           Re      JOHN FRANCIS SMITH
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date14 February 2001
PlaceHobart

Decision      The Tribunal sets aside the decision under review in so far as it determined that osteoarthritis of the left and right knee was not war-caused and in substitution therefore determines that osteoarthritis of the left and right knees is a war-caused injury. The matter is remitted to the Repatriation Commission for assessment of the rate of pension.
  [Sgd A F Cunningham]
  Part-Time Member
CATCHWORDS
Veterans' Entitlements – disability service pension – osteoarthritis of knees – whether war-caused – Statement of Principles – definition of trauma to the relevant joint – fall during paratroop training – standard of proof – reasonable hypothesis – decision set aside.

REASONS FOR DECISION

14 February 2001 Ms A F Cunningham (Part-time Member)

The applicant has sought the review of a decision of the Veterans' Review Board dated 5 May 1999 which affirmed a decision of the Repatriation Commission dated 9 February 1999 rejecting the applicant's claims for osteoarthrosis of left and right knees and varying the applicant's rate of pension to 100 per cent of the General Rate with effect from 2 September 1997.
The applicant has appealed the decision claiming that the osteoarthrosis of his right and left knees is a consequence of a trauma that he suffered during training whilst on operational service with the Australian Army between 16 July 1942 and 30 November 1945.
At the hearing the applicant was represented by Mr Ross Hart and gave oral evidence. Dr. Andreas Ernst was also called to give evidence on the applicant's behalf. The respondent was represented by Mr M Castle who called no evidence. The T documents were submitted pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 together with the applicant's proof of evidence and medical reports from Dr Andreas Ernst dated 31 January 2000, 17 April 2000, 9 August 2000 and 22 August 2000.
The applicant gave evidence as to his service conditions and in particular his paratroop training. He said that very few soldiers were selected from the many applicants for the positions and that one had to be extremely fit to gain selection. He said that there were only two soldiers from his unit that were selected for the training program. The Tribunal was informed that the training program consisted of marathon runs as well as jump training sessions which involved jumping from various heights.
The applicant relayed a particular incident that occurred in either June or July in 1945 when he was required to jump from a tall tower known as the "high mockup jump". The applicant recalled how he was required to climb a ladder and then sit in a stationary tower that represented the fuselage of an aeroplane where a harness was clipped to him and then he jumped. He tendered in evidence a photograph of the tower construction which was familiar to Mr Castle.
The applicant said that as he jumped the instructor would trip the release mechanism, the object of the exercise being to free-fall into a sandpit. However on the particular occasion referred to by the applicant, he understood that the trip mechanism was "tripped" before he reached the ground, resulting in a fall by him of some 15 to 20 feet whereupon he landed on hard ground rather than in the designated sand pit.
The applicant said that as a result of this fall he "felt very sore all over". He was reluctant to complain however. He said the instructors were always looking for people to class out of the training program if they did meet the grade. The applicant said that you were "no good to your battalion" if you were "less than perfect" and that you would not "let on" that you had been injured.
The applicant informed the Tribunal that on the evening following the fall he experienced pain to his chest, back and legs and was subsequently sent to a hospital at Richmond. He said that he was reluctant to relay too much detail of the circumstances of the fall as this could have resulted in the Sergeant in charge being reprimanded for his neglect. After a couple of days the applicant was released from hospital as his bed was needed following an aircraft accident which occurred nearby.
When he returned to his unit, the applicant said that he remained in bed in his tent for some 8 to 10 days recuperating from his injuries.
The applicant confirmed that he had viewed his medical records which indicated that he had only spent one day in hospital. The applicant contended that the medical records did not accurately reflect the reason for his admission and that he had a clearer recollection of his stay in the Richmond hospital for 2 days following the fall.
The applicant said that after his period in bed in his tent, he went back on parade, but did not resume full-time duties. The applicant claimed that he did not return to fall fitness before his discharge from the army. He said that as the end of the war was nearing he was not required to undertake any further training.
The applicant said that he recalled being given elastic support for both of his knees following his injury. He said that he has since suffered a constant nagging pain in his knees which has restricted his normal day to day activities in that he has experienced a loss of freedom of movement particularly in his left knee.
He recalled having to wear the elastic supports when playing football following his discharge from the Army when he was aged only 22 or 23 years.
Following demobilisation in 1945, the applicant returned to farming at Winnaleah in Tasmania which was his mother's property. After running a dairy farm on his own account he went into partnership with his son, but said that his back pain intruded on a regular basis with his work on the farm. The applicant said that when he had back problems the only remedy was for him to take an aspro and retire to his bed. The applicant said that his wife was able to carry out most of the farm duties when he was prevented from doing so and that his periods of incapacity from back pain would often last between a week and 10 days. During that period he experienced intense pain for two days and then needed to rest to allow the pain to settle so that he could resume his farm activities.
The applicant informed the Tribunal that because of his back pain he was required to modify certain of his working activities. He was one of the few farmers in the district in the early 1950's who purchased a small grey Massey Ferguson with hydraulic lifts to minimise any heavy lifting. At the time he was not even 30 years of age.
The applicant recalled that the "flare ups in his back" were related to his workload on the farm which meant that he experienced more back problems during the summer months when activity was higher. He said that he recalled a particular incident when his back simply went and he was unable to walk at all. His son Lyndon, had to carry him back to the car and drive him home where he was put to bed.
The applicant said that he recalls that his knees were always "a nagging problem". He particularly noticed soreness when walking downhill.
Unfortunately the applicant's medical records could not be located and were therefore not tendered in evidence. The applicant said that he recalled many visits to Dr. Jones and other doctors who practised in Derby and that the advice generally given was to take an aspro and bed rest. The applicant said that he had never sought specialist treatment as he understood that he had to accept the back pain would continue for the rest of his life.
Following the evidence given by the applicant Mr Castle informed the Tribunal that Mr Smith's credibility was not an issue for the respondent and that the respondent accepted the totality of his evidence. Mr Castle advised the Tribunal that the issue for determination was whether the circumstances of the injury suffered by the applicant constituted a trauma within the definition of the relevant Statement of Principles. The Tribunal was referred to and accepts the relevant Statement of Principle as contained in Instrument No. 71 of 1995 and amended by Instrument Nos. 336 and 352 of 1995.
In accordance with subparagraph 2(b)(i) of the relevant Statement of Principles, the Tribunal can be satisfied as to the applicant's claimed condition of osteoarthritis if it is satisfied that the applicant suffered "a trauma to the relevant joint before the clinical onset of osteoarthritis". Trauma to the relevant joint is defined in paragraph 6 of Instrument 352 of 1995 as meaning: "a joint injury caused by the force of an extraneous physical or mechanical agent that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility or range of movement of the joint, and where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg splinting, corticosteroid injection, surgery), and there is evidence relating to the extent of an injury and treatment, such evidence may be considered."
Oral evidence was given via telephone by Dr Andreas Ernst whose written reports previously referred to were also tendered in evidence. In Dr Ernst's report of 9 August 2000 he advanced the following hypothesis:
"Mr Smith suffers from osteoarthritis in his knees, which is primarily the result of a traumatic incident during paratroop-training in 1945".

In support of this hypothesis he advanced the following facts:

Mr Smith has never had any problems with his knees prior to the service.
Mr Smith was involved in an incident where he fell between 15-20 feet landing unexpectedly on a hard surface.
In addition to gravitational forces, he was exposed to acceleration forces increasing potential damaging energy.
Subsequent to the incident he was jarred "all over".
As a result of multiple injuries he was admitted to hospital for two days.
He was released from hospital after two days due to bed shortages and transferred to camp where he remained in bed for another 10-12 days.
Mr Smith was issued with and wore an elastic knee support for the whole of the period following his release from bed for the remainder of his service in the army (approximately three months).
More specifically, as a result of the incident, Mr Smith was immobilised for about two weeks, subsequently he required ongoing knee support and was given a break from all runs and heavy duties, eg training activities etc. until he was discharged.
Subsequent t discharge from the Army, he used a knee support strap intermittently.

In conclusion Dr Ernst stated:
"On the basis of all available information, I have to reject any other hypothesis unless proven otherwise. A young man in his mid twenties does not develop ongoing knee problems without a specific incident or pre-existing condition. The only credible hypothesis relates to the paratrooping incident, which led to a significant damaging energy exchange and resulted in immediate damage to his knees, which required immobilisation for two weeks and led to ongoing symptoms, which Mr. Smith never recovered from.
I therefore conclude that the paratroop-training incident led to trauma to knee joints, which later on triggered the development of osteoarthritis. A cause effect relationship is in my opinion established. I believe that my views are supported by the statement of principals [sic} concerning osteoarthritis."
During cross-examination Dr Ernst conceded that he had been referred to Instrument No. 71 of 1995 and in particular to sub-paragraph 1(g) which referred to "permanent ligamentous instability". Dr Ersnt stated that there are varying degrees of ligamentous instability but even on the lower end of the scale a partial rupture of a ligament may result in aches and pains from a simple overstretch, which in time results in increased wear and tear on a joint and subsequent osteoarthritis.
In Dr Ersnt's opinion there was no other credible explanation for the applicant's knee problems than the trauma he suffered during service. He pointed out that it is not normal for people aged in their twenties to develop knee problems without an occurrence of an incident, trauma or disease, and that in the applicant's case there was no evidence of any pre-existing condition that would explain his knee problem.
Dr Ernst was subsequently referred to the relevant definition of trauma to the relevant joint as contained in Instrument No. 336 of 1995 and confirmed that the applicant's circumstances satisfied that definition.
When Dr Ernst was referred to Instrument of 352 of 1995 he stated that on the basis of what the applicant had stated to him the definition of trauma to the relevant joint as stated in paragraph 6 of that Instrument was satisfied.
In accordance with the provisions of s.120 of the Veterans' Entitlements Act 1986 ("the Act"), the Tribunal shall determine that the incapacity from injury of the applicant was war-caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. Subparagraph 3 of s.120 states that the Tribunal shall be satisfied beyond reasonable doubt unless after considering all of the material before it, it is of the opinion that the material does not raise a reasonable hypothesis connecting the injury with the circumstances of the particular service rendered by the applicant. As the claim was lodged after 1 June 1994, the provisions of s.120(a) of the Act provide that the Tribunal must assess the reasonableness of a hypothesis in accordance with any relevant Statement of Principles issued.
This Tribunal accepts the evidence of Dr. Ernst that the circumstances of the applicant's injury meet the definition requirements of trauma to the relevant joint as stated in paragraph 6 of the Statement of Principle Instrument of No. 352 of 1995. There is evidence before the Tribunal that within 24 hours of the applicant's fall he experienced acute symptoms and signs of pain and felt "jarred all over" and was subsequently admitted to the Richmond Hospital. The applicant's evidence was that these symptoms and signs lasted for a period of between a week and 10 days and that he was subsequently given an elastic support for both knees. The Tribunal accepts the applicant's evidence as to his hospitalisation in preference to the medical records produced to the Tribunal which referred to an overnight stay between 9 April 1945 and 10 April 1945 for acute gastritis. The applicant's evidence as to his period of hospitalisation following his fall was clear and uncontradicted. He said there was some reluctance from the Army to record incidents of this nature. The applicant referred to another significant period of time of hospitalisation for mumps in respect of which there were no medical records.
The Tribunal having found that the applicant's condition of osteoarthritis was caused or contributed by his activities during service in the Australian Army during 1945, the remaining issue is whether the applicant has been correctly assessed as being entitled to a pension at 100% of the General Rate.
In assessing the correct rate of pension payable to the applicant, reference is made to the Guide of the Assessment of Rates of Veterans' Pension ("the Guide") which is approved under s.29 of the Act.
The assessment method in the Guide involves the calculation of a combined impairment rating and the determination of a lifestyle rating. Evidence was led from the applicant and the Tribunal was requested to make a determination as to lifestyle in accordance with the provisions set out in the Guide.
This Tribunal jurisdiction is limited to the review of decisions. It is noted that neither the decision of the Repatriation Commission or the Veterans' Review Board made a determination in relation to the assessment of the pension payable on the basis of the applicant's incapacity, as they had rejected his claim that his condition of osteoarthritis was war-caused. If this Tribunal was to make an assessment in relation to a lifestyle rating based on the evidence before it, this would in essence remove an avenue for appeal if the applicant was dissatisfied with the Tribunal's determination.
The Tribunal having determined that the applicant's condition of osteoarthritis is war-caused, it remits the matter to the Repatriation Commission for assessment at the appropriate rate of pension with effect from 3 August 1998.

I certify that the 36 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed:         .....................................................................................
  Associate
Date/s of Hearing  21 November 2001
Date of Decision  14 February 2001
Counsel for the Applicant        Mr Ross Hart
Solicitor for the Applicant         Rae and Partners
Counsel for the Respondent    Mr M Castle (Dept of Veterans' Affairs)