Solomon and Repatriation Commission - [2002] AATA 921

DECISION AND REASONS FOR DECISION [2002] AATA 921

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2001/84

VETERANS' APPEALS DIVISION       )
           Re      DAVID FRANK SOLOMON
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms A F Cunningham (Part-time Member)

Date14 October 2002
PlaceHobart

Decision The Tribunal sets aside the decision under review, in so far as it found that the applicant's injury was not war-caused and determines (1) that the applicant's injury is war-caused and (2) remits the matter to the respondent for assessment with effect from 20 April 1999.

[Sgd A F Cunningham]
Part-Time Member
CATCHWORDS
Veterans' Entitlements – osteoarthritis of right knee – whether war-caused injury – Statement of Principles – decision set aside.
Veterans' Entitlements Act 1986 – ss9(1)(b), 120

REASONS FOR DECISION

14 October 2002 Ms A F Cunningham (Part-time Member)

The applicant has sought the review of a decision made by the Repatriation Commission on 21 July 1999 which determined that the applicant's claimed knee condition was not war-caused. On 7 May 2001 the Veterans' Review Board varied the diagnosis of the decision under review to include osteoarthritis of the right knee and affirmed the Repatriation's decision which determined that the condition was not service related.
The applicant gave oral evidence at the hearing and was represented by Mr R M Webster. Oral evidence was also given by Mr John Mills, orthopaedic surgeon. The respondent was represented by Mr Castle, who called no evidence. The T documents were tendered pursuant to the provisions of s37 of Administrative Appeals Tribunal Act 1975.
Section 9(1)(b) of the Veterans' Entitlements Act 1986 ("the Act") provides:
"9(1) Subject to this section, 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) …;
(b) the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran".
It was accepted that the applicant had served in the Australian Army from 11 July 1952 until 16 March 1979 and had the following periods of operational service: 28 September 1964 to 29 December 1964; 31 December 1964 to 1 April 1965; 6 July 1965 to 15 July 1965; 29 September 1965 to 30 December 1975.
Accordingly, the application is to be determined pursuant to the provisions of s120(1) and (3) of the Act which states that the injury shall be accepted as being war-caused unless the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for making such a determination. Further that the Tribunal shall be satisfied beyond reasonable doubt where the material before it raises a reasonable hypothesis connecting the injury with the circumstances of the applicant's particular service. As the application was lodged after 1 June 1994, pursuant to the provisions of s120A of the Act, the Tribunal is required to assess the reasonableness of a hypothesis in accordance with any relevant Statement of Principles issued by the Repatriation Medical Authority or any relevant determinations or declarations under the Act.
The Statements of Principles referred to by the parties were Instruments No. 59 and 60 of the 1997 in respect of internal derangement of the knee and Instrument No 81 of 2001 in respect of osteoarthritis.
Evidence
The applicant's evidence was that between April 1964 and March 1966 he commanded the Detachment 3 Army Air Supply Organisation of the Royal Army Service Corps, which conducted operations from the RAAF base at Butterworth, Malaysia. Part of the applicant's duties involved the dropping of rations and fuel in 450 to 500 lb bundles by parachute from aircraft to ground forces who were conducting cross-border patrols against the remnants of the communist insurgents. The applicant described the procedure for manhandling these loads which was made particularly difficult in the Valetta aircraft because of the 18 inch high wing spar which was several feet in width. The applicant said that the flights were subject to turbulence which often caused the aircraft to pitch, roll and wobble on a vertical axis. He described the job as physically demanding with two men trying to manhandle the loads across the spar towards the door.
The applicant went on to describe an incident which occurred during one of these flights in November 1994 when he recalled feeling "something give" in his right knee as he was handling a store package. He described the pain as extreme and said that whilst his knee was not swollen very much initially, it subsequently became very stiff and swelled over the following 24 hours. When asked whether he sought treatment for his injury, the applicant said that he did not, and that he attributed his injury to "a normal course of events". The applicant stated that he expected to experience some injuries when "working hard". He said that he strapped his knee with an elastic bandage and took some aspirin. The applicant recalled that the pain persisted for 10 days and that he continued to wear the bandage for "quite a few days". During this period, the applicant said that he continued to consume approximately 3 to 6 aspirins each day. His knee was very painful and swollen and he was unable to walk very far. As a result of the injury he ceased his flying until he felt that he could resume his full responsibilities on board the aircraft.
Under cross-examination the applicant conceded that medical attention would have readily available to him at the Butterworth base, but that he did not consider that it was "an emergency situation". From prior experience with various football injuries, he thought that a strapping of the knee and taking aspirin was sufficient treatment.
The applicant agreed that he had not discussed his injury with Mr John Mills who he consulted in March 1999 about a problem with his knee which arose in November 1998. The applicant also agreed that there was no reference to his injury in his discharge form, dated February 1979. He said that he had not mentioned the injury as he was not then experiencing problems with his right knee. The applicant said that whilst he continued to suffer various aches and pains, particularly when exercising or after prolonged periods of gardening, he self treated his ailments with aspirin and did not seek any medical attention until he saw Mr Mills in March 1999.
Mr Mills confirmed that the applicant had consulted him after experiencing "an acute exacerbation while mowing a lawn". Mr Mills said that he understood that he "was dealing with something that occurred as a result of an injury some months before that had failed to settle". Mr Mills said at the time of his consultation the applicant had not related his knee injury to his prior army service. An arthroscopy revealed significant degenerative changes which were significantly severe in the medial compartment with associated relevantly minor meniscal tears. The applicant subsequently underwent surgery on 27 September 1999. Whilst there was a temporary improvement in his condition, Mr Mills said that he has continued to see the applicant with period exacerbations. Mr Mills noted that the applicant continues to have pain, swelling, a lack of mobility and the usual manifestations of quite significant arthritic change.
As a result of documentation supplied to Mr Mills by the Commonwealth Department of Veterans' Affairs relating to the injury in question and the applicant's description of a wrenching injury followed by swelling and difficulty of weight-bearing on the knee for some days, Mr Mills stated that the history was typical of a traumatic effusion in the knee joint which is often the result of a mensical tear. Mr Mills stated in his report dated 11 December 2000 that such derangement of the function of the mensicus will lead to premature wear and tear of the new knee joint and the subsequent early onset of degenerative arthritis. He stated:
"It is therefore possible that Mr Soloman did in fact suffer a meniscal tear of his knee at this time which resulted in acute symptoms which gradually settled. The internal derangement as a result of this meniscal tear has subsequently led to the early onset of degenerative arthritis to his present condition.
When viewing a degenerative knee joint and associated meniscal tears, it is often impossible to tell the difference between the degenerative arthritis which has subsequently gone onto develop or become associated with degenerative meniscal tears as part of the degenerative process and those in which the meniscal tear occurred first and which then inturn precipitated the degenerative change."
Mr Mills went on to state in his report that there were two factors which suggested that the applicant did not carry a long term meniscal tear which in turn led to his degenerative arthritis.
The applicant's evidence in relation to the circumstances of his 1964 injury was put to Mr Mills. He was then asked by Mr Webster whether that injury to the applicant's knee could have been the initiator of the condition for which Mr Mills operated. Mr Mills replied "that description of his symptoms at that time is typical of the traumatic effusion in the knee joint and one of the causes of such an effusion would be meniscal tear".
Under cross-examination, Mr Mills said that it was impossible to tell the age of the meniscal tears and whether they were caused by the injury sustained during service or not. Mr Mills conceded that on the basis of the applicant's description of his injury, that he had sustained a significant injury at that time and that "commonest cause of a traumatic effusion remains a meniscal tear". Mr Mills said that the meniscus does not have a capacity to heal unless it is very peripheral and can remain asymptomatic for long periods of time until a twist or turn represents with pain and swelling and even locking. Mr Mills agreed that the lawn-mowing incident may well have exacerbated an earlier tear.
Standard of Proof
The combined effect of s120A(3), subsections 120(1) and (3) of the Act is that the Tribunal is to determine the reasonableness of a hypothesis connecting the applicant's injury with his service in accordance with a relevant Statement of Principles.
The Statement of Principles referred to by the Veterans' Review Board was in relation to Internal Derangement of the Knee. It was contended on behalf of the applicant that the applicant's condition satisfied the provisions of factor 5(a) in Instrument 59, in that he suffered a direct trauma or a twisting or wrenching injury within the six months immediately before the clinical onset of internal derangement of the knee which resulted in pain and swelling within 12 hours immediately following the trauma or injury.
The VRB determined on the basis of Mr Mills' report of 11 December 2000, that the applicant had not suffered a meniscal tear (internal derangement) in the incident which occurred in 1964, but that any meniscal tear had occurred in recent years. The VRB however, varied the decision under review to include osteoarthritis of the right knee. The applicable Statement of Principles for osteoarthritis is Instrument No 81 of 2001. It was contended by Mr Webster that the applicant satisfied the provisions of Factor 5(j) in that he suffered a "trauma to the affected joint before the clinical onset of osteoarthritis in that joint."
It was submitted by Mr Castle that the evidence does not give rise to a reasonable hypothesis under the Statement of Principles and accordingly the Tribunal could not be satisfied that the injury was sufficiently connected to the applicant's service. Mr Castle contended that the symptoms of the applicant's injury do not satisfy the criteria of trauma to a joint under either Statement of Principle No. 59 of 1997 as amended by No 96 of 1997 in respect of internal derangement of the knee or Statement of Principle No 81 of 2001 in respect of osteoarthritis of the knee. In support of this contention, Mr Castle referred to the fact that the applicant did not report the injury or seek medical attention and was able to continue "to perform his normal duties without significant restrictions".
Determination
The first question for the Tribunal to determine is whether the circumstances of the applicant's injury give rise to a reasonable hypothesis connecting the injury to his service. The Tribunal must find that a reasonable hypothesis arises unless it concludes that there is no sufficient ground for so finding.
The fact that the applicant did not seek medical attention immediately following his injury would not in the Tribunal's view affect the reasonableness of the hypothesis. Whilst Mr Castle contended that the applicant continued to perform his normal duties without significant restrictions, the applicant's own evidence was that he took himself "off his flying duties" following the injury.
The evidence of Mr Mills was that the description of the applicant's symptoms and injury supported a finding of traumatic effusion in the knee joint, one of the causes being a meniscal tear which he said could have resulted from the significant injury suffered by the applicant in the 1964 service incident. Mr Mills went on to say that meniscal tears can cause degenerative arthritis, but that he could not definitively conclude that this occurred in the applicant's case.
The Tribunal is satisfied that the evidence given by the applicant of his injury and that of Mr Mills gives rise to a reasonable hypothesis that the applicant's knee injury is connected with his period of service.
As the applicant's claim was lodged after 1 June 1994 pursuant to the provisions of subsection 120(A)(3) of the Act, the Tribunal is to determine whether a hypothesis connecting the applicant's injury with the circumstances of his service is reasonable by reference to a relevant Statement of Principle.
The Tribunal is satisfied that the circumstances of the applicant's injury satisfy the provisions of factor 5(j) of Statement of Principle in relation to osteoarthritis contained in Instrument No 81 of 2001. Trauma to the affected joint as defined in paragraph 8:
"means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of symptoms and signs of pain and tenderness and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least 7 days following the onset; save for where medical intervention for the trauma to that joint has occurred…".
The evidence of the applicant was that whilst he did not seek medical treatment he experienced almost immediate pain which was extreme and persisted for some 10 days requiring him to take 3 to 6 aspirin per day. Whilst the knee did not swell immediately, it did so over the following 24 hours, which resulted in him experiencing difficulty in walking for the following 10 days.
The Tribunal is satisfied that the evidence gives rise to a reasonable hypothesis connecting the applicant's injury and his service.
The Tribunal accordingly sets aside the decision under review in so far as it found that the applicant's injury was not war-caused and determines that the applicant's injury is war-caused, and remits the matter to the respondent for assessment with effect from 20 April 1999.

I certify that the 28 preceding paragraphs are a true copy of the reasons for the decision herein of Ms A F Cunningham (Part-time Member)
Signed: K L Miller (Administrative Assistant)
Date/s of Hearing  18 June 2002
Date of Decision  14 October 2002
Counsel for the Applicant        Mr R M Webster
Solicitor for the Applicant         R M Webster
Counsel for the Respondent    Mr M Castle
Solicitor for the Respondent    Department of Veterans' Affairs