Symons and Repatriation Commission
[2001] AATA 712
•10 July 2001
DECISION AND REASONS FOR DECISION [2001] AATA 712
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2000/1119
VETERANS' APPEALS DIVISION )
Re COLIN WILLIAM SYMONS
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date10 July 2001
PlaceSydney
ADMINISTRATIVE APPEALS TRIBUNAL ) No N2000/1119
)
VETERANS' APPEALS DIVISION )
Re: COLIN WILLIAM SYMONS
Applicant
And: REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Senior Member M D Allen
Date 10 July 2001
Place Sydney
DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is SET ASIDE and the Tribunal substitutes in lieu thereof its decision, namely THAT:
1.The Applicant, COLIN WILLIAM SYMONS, is entitled to pension for the war-caused disease of Osteoarthrosis of the left knee as and from 20 July 1998; and
2.This matter is remitted to the Respondent so that it might assess the rate of pension to be paid for all war-caused injuries and diseases suffered by the Applicant.
(Sgd) M.D. ALLEN
.............................
Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS - Osteoarthritis left knee. Aggravation for asymptomatic condition. Reverse onus of proof applies to facts required by Statement of Principles to support hypothesis.
Veterans' Entitlements Act 1986
Repatriation Commission v Deledio 83 FCR 82
Meehan v Repatriation Commission [2000] FCA 597
Treloar v Australian Telecommunications Commission 26 FCR 316
REASONS FOR DECISION
Senior Member M D Allen
At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Respondent of a copy of the decision that was in fact made, the Respondent pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Respondent a statement in writing of the reasons of the Tribunal for its decision.
The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service. Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.
The said transcript is annexed hereunto and furnished to the Respondent and to the Applicant as it is the reasons for the Tribunal's decision.
I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:
Senior Member M D Allen
Signed:
..................................................................................……………………………….Associate
Date of Hearing 10 July 2001
Date of Decision 10 July 2001Solicitor for Applicant Mr P Jones, Rockliffs
Solicitor for Respondent Ms M Doggett, Department of Veterans' Affairs
DRAFT DECISION
ADMINISTRATIVE APPEALS TRIBUNAL
Matter No N2000/1119
By MR M.D. ALLEN, Senior Member
C. SYMONS and REPATRIATION COMMISSION
SYDNEY, TUESDAY, 10 JULY 2001MR ALLEN: In this matter, pursuant to an application made 21 July 2000, the applicant sought a review of a decision by the respondent Repatriation Commission made 30 January 1998 and affirmed by Veterans' Review Board that his condition of osteoarthritis left knee was not attributable to his war service. The applicant served in the Australian Army from 29 July 1958 to 30 November 1978 and rendered operational service in the period 26 June 1966 to 26 October 1966 in the Republic of South Vietnam.
The initial injury to the applicant's left knee occurred whilst undergoing recruit training at Kapooka in 1958 and that injury and subsequent treatment at Repatriation General Hospital Concord is well documented in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The significance of that particular injury will become clear later.
The applicant's claim today is that an injury to his left knee whilst aboard the army vessel 'Clive Steel' in Vietnam in 1966 either caused or aggravated the osteoarthritis in his left knee. At the outset it can be said that both parties agree that the correct diagnosis of the applicant's condition is osteoarthritis of the left knee and that the relevant Statement of Principles in this matter is instrument number 352 of 1995.
As the applicant did have operational service the standard of proof in this matter is that set down in subsections 120(1) and 120(3) of the Veterans' Entitlements Act 1986. Those particular subsections provide that the Tribunal shall grant the applicant's claim unless it is satisfied beyond reasonable doubt that there is no connection between the applicant's war service and the injury or disease complained of.
However, the Tribunal is deemed to be so satisfied beyond reasonable doubt if there is no reasonable hypothesis connecting the applicant's injury or disease with the circumstances of his eligible service. Section 120A then provides that an hypothesis will only be a reasonable hypothesis for the purposes of the Act if it conforms with the so called Statement of Principles issued by the Repatriation Medical Authority.
symrepJ 10.7.01 P-1
©Auscript Pty Ltd 2001The relationship between subsections (1) and (3) of section 120 and section 120A was discussed by the Full Court of the Federal Court in Repatriation Commission v Deledio 83 FCR 82. There was set out a four stage process which by now is well known to the parties and I see no need to recapitulate the particular passage from that decision in these reasons.
However, Deledio has of course been further discussed in several decisions of the Federal Court. In particular I would refer to the decision of his Honour Wilcox J in Meehan v Repatriation Commission [2000] FCA 597. Paragraph 47 of his judgment his honour said:
It seems to me that, in the present case, the Tribunal fell into two errors of law. First, it failed to follow the procedural steps required by ss 120 and 120A, as explained in Deledio. Second, and because of that failure, the Tribunal disposed of Mr Meehan's claim by reference to a finding, made on the balance of probabilities, that his case did not fit the requirements of the relevant Statement of Principles …
His Honour then continued at paragraph 48:
What the Tribunal should have done, first, was to consider whether the material before it pointed to a hypothesis or hypotheses connecting Mr Meehan's psychological symptoms (whatever their clinical label) with his operational service. This should have included consideration of the question whether the material suggested those symptoms were aggravated by his operational service. If the answer to that was in the affirmative, the Tribunal ought to have identified (as it did) all the Statements of Principles that were possibly relevant to the hypothesis or hypotheses. The Tribunal should then have examined the consistency between the hypothesis, or hypotheses, and the various Statements of Principle, making no findings of fact at that stage. Finally, the Tribunal should have asked itself the s 120(1) question: whether it was satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that any disease by which Mr Meehan was incapacitated was a war-caused disease. In resolving that question, the Tribunal was entitled (and required) to make findings in relation to the facts of the case and to relate those findings to any relevant Statement of Principles: see s 120A(3) of the Act. At that point, it was material to determine whether, as a matter of fact as distinct from hypothesis, Mr Meehan's case fell within the terms of the Statement of Principles pertaining to generalised anxiety disorder.
symrepJ 10.7.01 P-2
©Auscript Pty Ltd 2001In this matter the applicant gave evidence that in September 1966 whilst aboard the Australian vessel 'Clive Steel' he was leaving the orderly room and in doing so had to step through a bulkhead door sill so as to have access to the ship's deck. At the moment of stepping through the vessel tilted to starboard and the hatch, normally secured, swung to the closed position and slammed into his left knee. The knee began to swell almost immediately and he experienced excruciating pain. He reported to the medical assistant aboard the landing craft, Sergeant McLeod, who wrapped his knee with pressure bandages and gave him medication for the pain. At the direction of Sergeant McLeod he was taken to his bunk by two other persons and stayed there the rest of the day. Sergeant McLeod instructed him that he was to be on light duties for the next 14 days and that he was to stay in his bunk until the swelling and pain had subsided.
The next morning he was in fact summoned to the bridge by the master of the 'Clive Steel', however Sergeant McLeod, seeing the applicant on his way to the bridge, interposed, ordered him back to his bunk and informed the captain that the applicant was under medical treatment and was not to climb stairs.
Whilst in Vietnam aboard the 'Clive Steel' one of the applicant's duties was as a driver for the vehicle allocated to the ship. After his injury he was unable to perform those duties and a relief driver, a Corporal Fitzsimmons, was given the duties and he had to accompany Corporal Fitzsimmons in order to show him the various places where to go.
The applicant left Vietnam in October 1966. At that time the knee was still giving him pain and the pressure bandages were still on. The pressure bandages gave some relief when walking and helped support his knee when mobile. He was still taking pain killers up to four or five times a day. Upon arrival back to Australia he was given 14 days leave and during that time he consulted his local medical officer at Beacon Hill and was prescribed Bufferin, which is an anti-inflammatory, to my knowledge.
The respondent pointed to the fact that there is no documentation in the applicant's service medical records referring to his injury in South Vietnam. The applicant's evidence was that he filled out the appropriate injury form, a D11, but for some reason that has not been included in his medical documents. There was a reference, of course, to section 119 of the Veterans' Entitlements Act which enables the Tribunal to take into account lack of documentation. As anyone who has experience of the forces knows, documentation whilst on periods of active service is not always kept in the same meticulous standards as one might expect in a peace time situation.
symrepJ 10.7.01 P-3
©Auscript Pty Ltd 2001I was referred to the case of Mason v Repatriation Commission [2000] FCA 1409, a decision of his Honour Weinberg J, and I agree with the submission that Mason is authority for the fact that section 119 cannot be used to manufacture evidence, but at the same time it seems to me that section 119 can be taken into account when it is suggested that because of the lack of evidence a particular event did not take place.
So far as whether this event took place or not, I have heard the applicant give sworn evidence and be cross-examined and it must be remembered that here is a man who, as pointed out by his counsel, not only has accepted the war caused condition of depressive disorder but is trying to remember events of some 35 years ago. If he is vague on some of the details it is of course perfectly understandable.
Furthermore, having seen him give evidence, heard him give evidence and being cross-examined, I find no reason to doubt the evidence which he gave on oath here this morning. Furthermore, there is at page 92 document T12, the section 37 documents, a statutory declaration by Mr Fitzsimmons which states, inter alia, that he served with the applicant aboard Australian vessel 'Clive Steel' in South Vietnam and that he was required to drive the applicant around in the course of his duties as he had been placed on light duties for a period of two to three weeks for an injury he had sustained to his left knee, that injury occurring whilst the applicant was going through a bulkhead hatchway.
At document T12 there is a statutory declaration by Alex Gordon McLeod who was the medical assistant on the 'Clive Steel' whilst it was in Vietnam and he declares that he gave medical treatment to the applicant for an injured knee. He says that the medical report showed he kicked his left knee while passing through a bulkhead doorsill. The injury contained excess fluid and excessive swelling, a compression bandage was applied to the knee injury and a course of medication issues. This injury happened approximately early to mid September 1966. It was an ongoing situation with the compression bandage and medication mainly for soreness and the continuing aggravation of the knee due to having to continually climb steel ladders and walk through bulkhead doorsills. The initial injury required the applicant to be placed on light duties and restricted to no driving vehicles for 10 to 14 days.
The Respondent Repatriation Commission has known of the evidence of those two particular witnesses since 1997 when the claim was received. As the Respondent has not made inquiry from the deponents at any time, and I note that one has now died, I see no reason to reject the contents of the documents referred to or to doubt their accuracy. Those documents corroborate the applicant's evidence that he did injure his left knee whilst in South Vietnam in September 1996. I note that the applicant was able to make reference to the
symrepJ 10.7.01 P-4
©Auscript Pty Ltd 2001
particular date by referring to other events and I have already referred to the situation that as at now the events occurred 35 years ago.The applicant has been examined by three medical practitioners. I would refer first to the report of Dr Ellis, orthopaedic surgeon, who examined the applicant on 17 July 1999. Dr Ellis took a history that in September 1966 he was serving in rough weather. That appears to be somewhat inconsistent but I can understand the applicant referring to the actual situation where the vessel tilted. Dr Ellis continued:
He went through one compartment to another, the door was tight and crushed the left knee against the hatchway. The knee swelled rapidly. He went on light duties for a few days, was not allowed to drive.
Dr Ellis then says:
Mr Colin Symons undoubtedly had effusion of fluid in his left knee while on service in Vietnam and on the balance of probabilities he probably did suffer aggravation of the inevitable osteoarthritis which in the long term is the result of meniscectomy in an active man.
He continued:
The question is how much of his army service spent in Vietnam from June to October 1966 is responsible for the osteoarthritis of his left knee. The only answer to that is that this cannot be assessed precisely but it is probable that some aggravation has occurred to the condition of his left knee because of his service in Vietnam between June and October 1966. It seems to be an attested fact that he had persistent effusion of the knee and persistent use of compressive bandages and medication for his knee condition while he was on service in Vietnam. It seems on the balance of probabilities an aggravation of his left knee condition is the responsibility of his service in Vietnam. The rest is directly attributable to the effects of the meniscectomy in 1958.
The applicant, prior to attending the Veterans' Review Board, was also examined by consultant physician Dr Geoffrey Miller. I note that Dr Miller in his curriculum vitae points out that in 1967 to 1971 he was a clinical examiner in medicine at the University of Queensland and in 1988 was appointed a member of the court of examiners for the Australian College of Rehabilitation Medicine. I mention that because although Dr Miller is a physician and not an orthopaedic surgeon, it seems to me that he has some qualifications to express an opinion in this matter. At page 6 of his report, which is document T26, Dr Miller says:
symrepJ 10.7.01 P-5
©Auscript Pty Ltd 2001Mr. Symons describes a specific, discrete injury to his left knee when the bulkhead door swung round and hit him on the left kneecap.
I might say that that history is entirely consistent with the applicant's evidence here today. Dr Miller continues:
The knee had already been damaged prior to his eligible service but I consider that the injury at Vung Tau, during his eligible service, satisfies the definition of trauma to a joint of instrument number 19 of 1999 for osteoarthrosis. Mr. Symons had a discrete joint injury causing the development of acute symptoms and signs of pain and tenderness. The symptoms lasted for several months. In my opinion he satisfies the Statement of Principles of instrument number 41 of 1998 factor 5(v) in that he suffered a trauma to the joint before the clinical worsening of the osteoarthrosis. In my opinion, therefore, there is a reasonable hypothesis that his injury in September 1966 has contributed to his osteoarthrosis.
The applicant was also examined by Dr Bodel, orthopaedic surgeon, on behalf of the respondent. Dr Bodel took a history of injury to the left knee in 1958 whilst the applicant was at Kapooka and the subsequent lateral meniscectomy of the left knee. He also took a history of the applicant stepping through a bulkhead when the ship shifted which caused a door to unlock and hit him in the left knee. He says he was seen by the medic on board and the knee was swollen and put on 14 days restricted work. Dr Bodel says at page 3 of his report:
It is very difficult to determine exactly the timing of the clinical onset of Mr Symons' osteoarthritis. … It appears that the two episodes that probably occurred in 1966 settled without any ongoing symptoms and therefore although it is probable that the osteoarthritis was present at that time the patient was unaware of it.
I would only interpose that to say this, that the applicant, before boarding the 'Clive Steel' for duty in South Vietnam, would have had to have been fully medically fit for operational service. In the section 37 documents at page 17 it is noted that the applicant on 17 September 1959 was classified as med class 1. Unfortunately the documents are totally silent as to any medical examination which the applicant would have had to have undergone before service in Vietnam.
However, at document T5 page 33 is a medical examination which does not appear to have any particular date, but that document and
symrepJ 10.7.01 P-6
©Auscript Pty Ltd 2001
also the document at page 34 reveal that the applicant, as at 24 April 1975, had a medical classification of FE, which to my understanding means field everywhere, meaning that the applicant was fit for operational service in any part of the world in the field. It would seem, therefore, that it's quite clear that he was fully fit for service at the time he was in South Vietnam, which means in other words that any insipient osteoarthritis which may have been present as a result of the meniscectomy in 1958 was certainly not manifesting itself by either signs or symptoms to the applicant at that stage. Dr Bodel at page 4 of his report, referring back to 1966, says:
There is no documentation or report of x rays which would indicate that osteoarthritis was present at that time but it should have begun to develop within a few years of the lateral meniscectomy.
I would pause there to say that there is however an army form D11, report of accident or injury, which is at page 61, document T5, where the applicant himself states that he was sent to a Dr Watson for an X-ray of his knee following an incident on 4 February 1966. To quote the document as stated by the applicant:
I then reported back to Dr BATTERSBEY with the X-Ray and he said that nothing was broken, I reported to him again on Sun 6 Feb 66 for final check.
There is another X-ray report which is dated, it would appear, 15 November 1974. There appears to be two dates on the form, one referring to 1978, one to 1974. Either way it says:
There is marginal lipping on the lateral aspect of the left knee. No other abnormality is seen …
I think "within the knee". Just what that means I do not know but certainly it doesn't actually say that osteoarthritis is present. Dr Bodel in his report says:
In the first Amended Statement of Principles (Instrument No. 335 of 1995) there is a subsection (ga) – "suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis". It is also possible that this occurred and that the event during operational service could have accounted for a trauma to the relevant joint.
He also continues:
symrepJ 10.7.01 P-7
©Auscript Pty Ltd 2001
Clinically, it is probable that the patient did have osteoarthrosis in the knee at the time of that event in 1966 although there is no documentation to confirm that this is the case. This is based on my knowledge of the likely outcome of a lateral meniscectomy which has been done to that joint some eight years prior to the incident. At that time the patient would have had early signs of osteoarthritis in the joint had he been examined for them but he clearly had no symptoms of osteoarthrosis and the traumatic event settled, leaving him with what he felt was a normal knee joint subsequently.
He may therefore have had an event which caused "pain, swelling or tenderness of a joint" within the 24 hours after the force has been applied to the joint but there is no absolute certainty that the patient had osteoarthrosis in the knee at the time.
Dr Bodel concludes by saying:
The patient's history is typical of osteoarthritis of the knee joint and his symptoms are quite medically consistent.
In a second report dated 4 January 2001, exhibit R3, Dr Bodel says:
The event that is alleged to have occurred during operational service probably caused a soft tissue injury to the left knee …
I notice he used the work "probably" and is no stronger than that. He says:
It is unlikely that this injury caused a significant structural internal joint injury although it is possible that he did develop an effusion …
Turning then to instrument number 352 of 1995, the factor for osteoarthritis, being number 2(b)(x), is:
suffering a trauma to the relevant joint before the clinical worsening of osteoarthrosis;
Trauma to relevant joint is then defined 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
symrepJ 10.7.01 P-8
©Auscript Pty Ltd 2001symptoms 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 injury and treatment, such evidence may be considered;
Let me state at the outset that it seems to me that it is totally unfair to veterans to ask them to recount some 35 years later their signs and symptoms following a trauma. The submissions for the respondent have been that unless the veteran has given evidence referring to both symptoms of pain, swelling and tenderness and altered mobility and signs of pain, swelling, tenderness and altered mobility the SoP has not been met. As I said, one must go back in this case 35 years. It is just another example of the Repatriation Medical Authority attempting to subvert the standard of proof mandated by the Veterans Entitlements Act.
The word "acute" has been discussed by the Federal Court and has been pointed out that "acute" doesn't mean severe, it means occurring suddenly. Of course, this Tribunal, the members of it who also sit in the Workers Compensation jurisdiction, are well aware of the difference between symptoms of an injury and signs of an injury.
In this matter it also seems clear that there has been an aggravation of the applicant's osteoarthritis. The question is does it actually conform with the Statement of Principles. In passing I would simply refer again also when one speaks of the contribution to what was stated by the Full Court of the Federal Court in Treloar v Australian Telecommunications Commission 26 FCR 316 at 323, the court specifically said:
… "contribution" does not require that the contributing factor be a causa sine qua non; the "but for" test is not appropriate nor is the causa causans or "real effective cause" or "proximate cause" formulation. All that is required is that the relevant aspects of the employment add their measure to the creation of the condition, its aggravation or acceleration. They must, in truth, be part of the cause. If they are not, then, they do not "contribute".
They further said:
The causal connection must be established on the probabilities and not left in the area of possibility or conjecture. Once the link is established, however, it matters not that the contribution be large or small.
symrepJ 10.7.01 P-9
©Auscript Pty Ltd 2001
It seems to me that those principles regarding aggravation apply just as much in the Statement of Principles situation as in the workers compensation situation.
The only other matter I was referred to was a document entitled explanatory notes for tabling by the Repatriation Medical Authority. I mention that because that document ends up referring to instrument 336 of 1995 but amending the definitions of osteoarthritis and trauma to the relevant joint in paragraph 4 to reflect the above. In other words, it seems to me that if the particular amendment has been made in the instrument itself, then there is a necessity to refer to the explanatory memoranda. Section 15AB of the Acts Interpretation Act 1901 Commonwealth refer in particular. The definition as set out in the Act cannot be said to be ambiguous or obscure, neither is it necessary to have recourse to explanatory material to ascertain the meaning of the provision that is set out in the instrument itself.
Having regard to all those matters, therefore, and in particular to the formulation of how the Tribunal should approach its task, both set out in Deledio, supra but more importantly by his Honour Wilcox J in Meehan v Repatriation Commission, it seems to me that the situation is that I am satisfied that the applicant did injure his knee whilst in South Vietnam. That raises a hypothesis that the injury to the knee in South Vietnam caused or contributed to an aggravation of his current osteoarthritis. An aggravation can be caused by trauma as set out in the relevant Statement of Principles.
There is nothing in the material before me that persuades me beyond reasonable doubt that he did not suffer a trauma as defined in the SoP to his knee whilst in South Vietnam. The decision under review will therefore be set aside and the Tribunal will substitute its decision that the applicant is entitled to pension for the war-caused disease of osteoarthritis of the left knee as and from 20 July 1998. This matter is remitted to the respondent in order that it might assess the rate of pension to be paid for incapacity occasioned by all war caused injuries and diseases.
symrepJ 10.7.01 P-10
©Auscript Pty Ltd 2001
0