Varricchio and Repatriation Commission
[2001] AATA 606
•29 June 2001
DECISION AND REASONS FOR DECISION [2001] AATA 606
ADMINISTRATIVE APPEALS TRIBUNAL )
)No S1999/367 & ) S1999/368
VETERANS' APPEALS DIVISION )
Re PETER VARRICCHIO
Applicant
And REPATRIATION COMMISSION
Respondent
DECISION
Tribunal Deputy President B.H. Burns
Date29 June 2001
PlaceAdelaide
Decision The decision of the Tribunal is that the decision under review is set aside and in substitution therefor it is decided that internal derangement of the knee is war-caused with date of effect being 12 February 1998 and the matter is referred to the respondent for the purpose of assessing the appropriate rate of pension.
..............(Signed)...............………..
DEPUTY PRESIDENT B.H. BURNS
CATCHWORDS
VETERANS' AFFAIRS – whether internal derangement of the knee is a war-caused injury – decision set aside.
Veterans' Entitlements Act 1986 – s120(1)
Repatriation Commission v Deledio (1998) 83 FCR 82
Meehan v Repatriation Commission [2001] FCA 597
Statement of Principles – Instrument No 59 of 1997 as amended by Instrument No 96 of 1997
REASONS FOR DECISION
29 June 2001 Deputy President B.H. Burns
This is an application for review of the respondent's decision to refuse the applicant's claim of war-caused internal derangement of the right knee as affirmed by the Veterans' Review Board.
The Tribunal had before it the documentary evidence tendered, together with the oral evidence of the applicant, Dr Byrne, Mr Doube, and Drs Keene and Davidson.
The applicant was represented by Mr Hemsley and the respondent by Ms Maharaj, both of counsel.
The applicant's claim is one under Part II of the Veterans' Entitlements Act 1986 ("the Act") in respect of incapacity from injury relating to operational service rendered by him in Vietnam.
The evidence before the Tribunal and in particular the accepted evidence of the applicant [both oral and in writing (see PT 20 pages 148-152) and the statements of Messrs Rigby, Fisher, Panossian and Mitchell], clearly establishes to the reasonable satisfaction of the Tribunal (on the balance of probabilities) that the applicant sustained an injury in 1969 related to his operational service (emphasis added).
The main issue in this matter relates to the nature of any injury sustained in 1969.
The applicant claims the injury in question to be internal derangement of the knee. It is not in dispute that when operated on in 1981 by Dr Davidson, the applicant was suffering from internal derangement of the right knee consisting of tears in the posterior horns of both the medial and lateral menisci.
The applicant's claim is that one of the menisci was torn in 1969 in Vietnam whilst on operational service.
The respondent maintains that if the applicant's right knee was injured at all in Vietnam, it certainly did not result in internal derangement of the knee.
Section 120(1) of the Act sets the relevant standard of proof. The Tribunal would indicate that it is mindful of the path to be taken when considering matters of this nature and in that regard of the Full Court's views expressed in Repatriation Commission v. Deledio (1998) 83 FCR 82. The four steps of the path are to be found at pages 97-98. It is conceded by the respondent that the material before the Tribunal completes the taking of the first three steps as outlined in Deledio and the Tribunal so determines.
In short, these steps are as follows.
Step 1
The material before the Tribunal points to the following hypothesis, namely, that whilst on operational service in Vietnam the applicant was involved in an incident which resulted in an injury to his right knee, namely, a chronic disorder of the knee due to a torn meniscus of the knee resulting in ongoing or intermittent signs and symptoms such as pain, instability or abnormal mobility of that knee attracting ICD code 717.2 or 717.43.
Step 2
The applicable Statement of Principles (SoP) is Instrument No 59 of 1997 as amended by Instrument No 96 of 1997.
Step 3
The hypothesis raised is a reasonable one as it fits, that is to say, is consistent with the template to be found in the SoP. The hypothesis fits para 2(b) of the SoP and it contains one of the factors that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting internal derangement of the knee with the circumstances of the applicant's operational service in Vietnam in 1969, namely, para 5(a):
"(a)suffering a direct trauma or a twisting or wrenching injury to the affected knee:
(i)within the six months immediately before the clinical onset of internal derangement of the knee; and
(ii)resulting in pain and swelling of the knee within the 12 hours immediately following the trauma or injury; …"
This latter aspect of the hypothesis comes from the evidence of the applicant and that contained in the statements of Messrs Rigby, Fisher, Panossian and Mitchell (Exhibits A1-A4), together with that of Dr Byrne.
The Tribunal now turns to Step 4 as outlined by the Full Court in Deledio at pages 97-98.
"4.The Tribunal must then proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved."
At the outset, the Tribunal would make the observation that the four steps in Deledio are summarised steps as was pointed out by Wilcox J in Meehan v Repatriation Commission [2001] FCA 597 (at para 15). When one considers the actual words used by the Full Court to outline the fourth step, it is clear that the Tribunal must "proceed to consider under s120(1) whether it is satisfied beyond reasonable doubt … in the case of a claim for incapacity that the incapacity did not arise from a war-caused injury" (emphasis added).
However, s120(1) is in the following terms.
"Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination."
The emphasis in s120(1) is on the obligation of the Commission (and accordingly the Tribunal on review) to determine for present purposes that the injury was a war-caused injury unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. This comes to be (by the wording of s120(1)) "Where a claim under Part II for a pension in respect of the incapacity from injury … relates to the operational service rendered by the veteran…" (emphasis added). Section 120(1) does not apply the reverse standard of proof to incapacity as suggested in Deledio (emphasis added). Rather, the focus of the subsection in terms of the standard of proof is in relation to whether or not the injury is war-caused as distinct from whether or not incapacity arose out of a war-caused injury as outlined in the fourth step in Deledio.
Incapacity from a war-caused injury is a reference to the effects of that injury and not a reference to the injury itself (S.5D(2) of the Act). Section 120(4) relevantly provides:
"Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
It is well settled on the authorities that the standard of proof in relation to matters such as the incapacity of a veteran must be established to the Commission's reasonable satisfaction pursuant to s120(4) of the Act. The Tribunal does not consider that the fourth step in Deledio was intended to convey otherwise and has replaced the phrase "that the incapacity did not arise from a war-caused injury" with "that the injury was not war-caused". The Tribunal is of the view that that was what the Full Court intended to convey in outlining the fourth step.
As to the fourth step, the Tribunal is mindful that it is required to find facts from the material before it and in so doing no question of onus of proof or the application of any presumption is involved. The Tribunal would indicate that it has had regard to the whole of the evidence (both oral and written) and to the submissions of the parties.
The applicant gave oral evidence before the Tribunal as to the circumstances relevant to his alleged right knee injury in Vietnam in 1969 and alleged symptoms therefrom. The Tribunal had the advantage of closely observing and listening to the applicant in the giving of his testimony. The Tribunal found the applicant to be an impressive witness. He was an honest and credible witness. He at all times did his best to accurately portray the events in question. The Tribunal accepts his evidence, including that contained in his statement (PT20 pages 148-152). From his evidence the Tribunal finds that whilst on operational service in Vietnam in 1969 he injured his right knee by twisting it, resulting in pain and swelling of the knee within 12 hours immediately following the injury. This injury resulted in ongoing or intermittent signs and symptoms such as pain, instability or abnormal mobility of the knee as outlined in his testimony and the statements of Messrs Rigby, Fisher, Panossian and Mitchell. The strength of this evidence is such as to satisfy the Tribunal on the balance of probabilities.
The evidence of Dr Byrne and that of Drs Keene and Davidson (excluding examinations of the applicant's right knee from 1981 onwards), coupled with the above findings, is such as to find that the nature of the injury sustained in 1969 and the subsequent symptomatology is consistent with the applicant's having sustained internal derangement of the knee as defined in SoP No 59 of 1997, as amended, in the form of a torn meniscus of the right knee.
The Tribunal accepts, however, that the immediate above finding is placed in some doubt by the evidence of Drs Keene and Davidson with respect to their examinations of the applicant's right knee as and from 1981. Dr Davidson was the first medical specialist to closely examine and operate upon the applicant's right knee after the applicant injured it in 1969. He was the best placed to proffer an opinion as to whether or not the applicant's injury in 1969 was a torn meniscus. Whilst he proffered the opinion that the applicant's injury in 1969 was not that of a torn meniscus, he acknowledged that he did have a doubt about that if the factual situation was as the Tribunal has now found it to be. He described that doubt as reasonable.
The Tribunal accepts the evidence of Drs Byrne, Keene and Davidson with the proviso that to the extent that the evidence of Drs Byrne and Keene was at variance with that of Dr Davidson, the latter evidence is preferred. To the extent that Dr Byrne's evidence was at variance with that of Mr Doube, the former is preferred, as Dr Byrne had served in Vietnam and was more familiar with wartime medical practices and procedures.
The Tribunal would point out that it is mindful that pursuant to s120(1) of the Act it, in the shoes of the respondent, shall determine that the injury was a war-caused injury, unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that determination. On the accepted evidence the Tribunal is not so satisfied and, accordingly, determines that internal derangement of the knee is war-caused.
Accordingly, the decision of the Tribunal is that the decision under review is set aside and in substitution therefor it is decided that internal derangement of the knee is war-caused with date of effect being 12 February 1998 and the matter is referred to the respondent for the purpose of assessing the appropriate rate of pension.
I certify that the 23 preceding paragraphs are a true copy of the reasons for the decision herein of DEPUTY PRESIDENT BURNS
Signed: ....................(Signed).....................
Barbara Armstrong (Associate)Date/s of Hearing 9-10 October 2000 and 13-14 June 2001
Date of Decision 29 June 2001
Counsel for the Applicant Mr G Hemsley
Counsel for the Respondent Ms S Maharaj
Solicitor for the Respondent Australian Government Solicitor
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