York and Repatriation Commission

[2006] AATA 111

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2006] AATA 111

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2005/245

VETERANS' APPEALS DIVISION		)
Re		DAVID YORK

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Senior Member, Mrs Josephine Kelly and Dr John Campbell

Date10 February 2006

PlaceSydney

Decision The decision under review is set aside and substituted for that decision is the decision that the internal derangement of Captain York’s right knee is war-caused for the purposes of the Act. The matter is remitted for assessment in accordance with our finding.

[sgd] Senior Member, Mrs Josephine Kelly

Presiding Member

CATCHWORDS

VETERANS’ APPEALS -  whether injury “war-caused” –operational service - internal derangement of the right knee – diagnosis of internal derangement of right knee not in dispute – four incidents involving the right knee- whether third and fourth incident involving right knee injury, which occurred during operational service, contributed to internal derangement of right knee – decision set aside

LEGISLATION

Veterans’ Entitlements Act 1986 (Cth) sections 9, 13(1), 120(1) and (3) and 120A

CASELAW

Byrnes v Repatriation Commission (1993) 177 CLR 564

Cameron v Repatriation Commission [2003] FCA 1323

Lees v Repatriation Commission (2002) 125 FCR 331

Meehan v Repatriation Commission [2003] FCA 1371

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Cornelius[2002] FCA 750

Repatriation Commission v Deledio (1998) 83 FCR 82

Whitworth v Repatriation Commission [2003] FCA 1530

REASONS FOR DECISION

10 February 2006 Senior Member, Mrs Josephine Kelly
Dr John Campbell

Proceedings

1.      Captain David York is seeking a review of a decision made by the Repatriation Commission on 2 July 2004 to refuse his claim that “internal derangement of the right knee” was war-caused within the meaning of the Veterans’ Entitlements Act 1986 (the “Act”). The decision was affirmed by the Veterans’ Review Board (“VRB”) on 21 January 2005.

2.      Captain York enlisted in the Australian Army (“Army”) on 6 July 1996 and he is still serving. His period of operational service in East Timor pursuant the Act was from 24 January 2002 until 31 July 2002.

Issues

3. The issue before the Tribunal is whether the condition of internal derangement of the right knee is war-caused for the purposes of the Act.

Date of Effect

4.      It is accepted that if Captain York is successful the date of effect would be 13 January 2004.

The Evidence

5.      The following is a summary of the material before the Tribunal and does not include any findings of fact.

Matters not in dispute

6.      On 12 October 2000 (“the first injury”), Mr York injured his right knee playing touch football as part of an organised sport put on by the army. On 5 July 2001 (“the second injury”) he again injured his knee while playing touch football as part of organised sport by the Army. 

Captain York’s Evidence

7.      Captain York gave oral evidence by telephone. The following is a summary of his evidence, including in response to cross-examination and questions from the Tribunal. He said that after the first injury he saw medical people the next day. The diagnosis was strain/slight tear of the cruciate ligament. He was on crutches for a week or less and rested. He had six months of physiotherapy including supervised running, lower body work and deepwater running, and received a clean bill of health but was on restrictions for 12 months. He was not to run over uneven ground, turn or drill. He has done no drill since. He had had no prior history of problems with his knee before the first injury. 

8.      The second injury occurred in the first game he played after his first injury. He sought medical attention and again had physiotherapy for six months. There had not been as much swelling following the second injury. He was on crutches for a couple of days. He had a basic fitness assessment and was given a clean bill of health at Robertson Barracks before going to East Timor. The assessment included sit-ups, push-ups, a 2.4 km run over flat ground which did not include having to step from side to side. He said he would not have accepted the decision to go to East Timor if he had had a problem with his knee.

9.      He arrived in East Timor in January 2002. There were not many parades and he did PT and had no trouble. He had a fully functional knee. He had no twinges and no swelling and was able to do squats and kneel. In March 2002, his right knee gave way as he pushed off to leap-frog over another soldier (“the leap-frog injury”). He ended up on the ground. He had some minor pain and minor swelling. He walked back to his unit after resting for 15 to 20 minutes. He put ice on his knee which reduced the swelling. He did not think it was too serious but told his supervisors who said to keep an eye on it and if it gets worse, seek medical attention. He had no further problems following the injury.

10.     On 24 April 2002 he was going down some stairs in East Timor near a “Jesus Statue” and his right knee gave way (“the stairs injury”). These were narrow stairs, which he was walking down in a normal fashion when his right knee gave way. After the incident he was in extreme pain and there was severe swelling. He had to be helped down the rest of the stairs, and when the pain subsided he was taken in a car to the medical centre. He was told to keep an eye on it.  He iced the knee all day and by the next morning the swelling had gone down. 

11.     After that injury Captain York felt that although the knee had settled down, there was a lot more instability and by June it was getting to the point where he was making conscious decisions because of it, such as avoiding uneven ground. He went back to the medical centre in East Timor in June when he had about six weeks of his deployment left. He requested a knee brace to give the leg further stability. A doctor there referred him to a physiotherapist who said he could not make a diagnosis and that it was a matter for an orthopaedic surgeon. He was very careful and watched what he was doing before he returned to Australia. The limitations on his activities were self-imposed.

12.     It was not until he returned to Australia from East Timor around the end of July or the beginning of August, that he saw a doctor in Melbourne who diagnosed a torn anterior cruciate ligament. He was referred to Dr Stephen Doig, and underwent knee reconstruction in February 2003. He used crutches for six weeks following the knee reconstruction and could not run or do gym work for 12 months. 

13.     Since the knee reconstruction he has difficulty with stairs and must hang on to the banister. He also has pain after walking for long periods of time and after running a couple of kilometres on a road. He also has a problem kneeling. He is unable to play sport such as Rugby Union. If he turns sideways there is some instability in his knee. In the Army he can no longer do parades or carry a pack. He no longer performs the military police defensive tactics as he cannot kick effectively. He has received promotions and is more office bound. He is choosing, and his superiors are putting him in such positions. He takes osteoease and buys flax seed tablets. 

14.     In his claim form (T4, p 33 received 13 April 2004) Captain York claimed for “aggravation R/Knee injury”. The symptoms that he records are “pain, restriction of movement and loss of mobility.” In response to the question “How do you believe your service caused, contributed to, or aggravated this disability”, Mr York wrote: “causally related to fall and twisting injury during PT in Timor & falling down stairs.”

Military Compensation and Rehabilitation Service

15.     The following material was contained in the “T documents”.  On 3 July 2003, a delegate under the Safety, Rehabilitation and Compensation Act 1988 determined that Captain York had suffered a “tear of the anterior cruciate ligament of right knee on Thursday, 12 October 2000” arising out of or in the course of his military service (T7 p 47).

16.     An outpatient clinical record (T33 p22) records the following. On 13 October 2000 Captain York presented with a right knee injury that occurred while he was playing touch football when he changed direction suddenly. On 20 October 2000 there was still some swelling to the right knee.  A physiotherapist suspected that he had “a mild MCL strain”, described treatment, and said that he expected him to settle “in around 1/12” (T3 p26). 

17.     Another outpatient clinical record (T3 p 23) records that on 5 July 2001 at 1310 Captain York sought medical treatment of the right knee. It states that he damaged the right knee last year and injured it “today while playing touch football - went to side-step - knee gave away - fell to the ground”. It states he was able to walk, ice was applied, that it was tender at the base of the patella, slight swelling, ice-reapplied and “refer M.O”. A further note on the same day by Dr Andropov at 1315 noted “(R) Knee mild effusion”, “good ROM (a+p)”; “(R) Sloppy MCL”, and found a “probable MCL strain again given recent Ph Stable knee”.

18.     On the same day Captain York was referred to Robert Moore, a physiotherapist. Mr Moore records that “specific orthopaedic tests revealed a mild strain of MCL and moderate straining of ACL” (T3 p 24). Captain York was commenced on a rehabilitation regime to improve the stability of the knee. “Focus will be also to determine the cause of these incidences of indirect injury. .His prognosis will be long term as per his previous presentation over 4-6 months”.  There are various physiotherapy reports from 11 December 2000 to 27 February 2001 (T3 p28 to 30).  On 11 December 2000 the note was “MCL strain.  Going well.  Trouble running”.  By 22 February, Captain York was hopping and jumping, he had a brace to use which had a “good effect”. He was to continue with knee class over the next two to three weeks “(hopping / jumping / lunges + impact work)”. 

19.     An outpatient record dated 5 June 2002 (T3 p 18) shows that Captain York sought a referral to get a knee brace while he was in East Timor. “Has torn ligaments – grade 2 – 1 ½ yrs ago.  Has been receiving physio tx for past 1 ½ years.  Stopped on deployment.  Has been maintaining steady PT.  Now starting to feel it give way.  A/c in R leg. A/-? Chronic ACL damage. P/Refer MO for Physio”.  Another record signed by a Captain, physiotherapy, dated 6 June 2002 refers to the first injury “playing touch NOV ’00” “rehab for injury/no surgery. Good recovery – running but occasionally instability lately - fell & able to keep running. other incident of slipping/twinges.”  “Rx 1. stability / strgth exs. 2. brace ordered for stability” (T3 p 16).

20.     Captain York had an MRI scan on 31 October 2002 (T3 p 13) which found “1.  Torn anterior cruciate ligament. 2. Tears of the posterior horns of the medial and lateral menisci, more extensively involving the medial meniscus. 3. Tiny focus of bone marrow oedema in the medial tibial plateau posteriorly and a tine joint effusion.”

21.     On 2 December 2002, Dr Doig (T3 p 14) recorded that “he injured his right knee playing touch football about 2 years ago. He had a forced internal rotation injury and the knee collapsed. Since then he has had ongoing problems with the knee although in fact he has dealt with his basic test fitness pretty well”.  Dr Doig concluded that Captain York had a torn anterior cruciate and that he should undergo an ACL reconstruction.

22.     The Specialist Referral and Report Discharge Summary dated 9/12/03 (T3 p6) completed by a physiotherapist refers to “(R) ACL Reconstruction + partial meniscectomy 28/2/03”.  It sets out the treatment Captain York had had from 7 April 2003 until 25 November 2003, including the home program and exercises to do over the Christmas holidays. The “Outcome” was “slight patello-femoral pain persisting.  Patello-Femo clicking persisting.  Running + functional agility skills going well.  Good propribception + strength (R) knee region.  (R) KF ROM very slightly restricted.  (R) ITB + gluts tight +++”.

Evidence of Dr Benanzio

23.     Dr Benanzio, orthopaedic surgeon, prepared a report dated 29 July 2005, but has died since then (Exhibit A1).  He reported that Captain York’s present complaints included ”intermittent right knee discomfort” and that there was also “right knee instability”. The knee sometimes disturbs his sleep and gives him discomfort in cold weather.

24.     Dr Benanzio took a history of three injuries to Captain York’s right knee, the first injury, the leap-frog injury and the stairs injury.  He did not take a history of the second injury. He concluded that “the first accident of October 2000 produced some injury to the internal structures of the right knee.” He considered it unfortunate that no specialist was seen at that stage, however he noted that the patient returned to full duties and stated that his symptoms settled.

25.     Dr Benazio also stated that “it is more likely than not that the accident in East Timor in March 2002 was the cause of further right knee internal derangement” however once again his symptoms settled. On 24 April 2002 there was a further injury to the right knee which Dr Benanzio described as discrete.

26.     His conclusion was that “It is more likely than not that the three accidents contributed equally to his present right knee symptoms.” He also feels that Factor 5(b) of Instrument No. 59 of 1997 applies to Mr York.

Evidence of Dr Millons

27.     

Dr Millions recorded a detailed history of Mr York’s injuries to his right knee which included the first injury, the leap-frog and stairs injury (Exhibit R2). From a review of Mr York’s file he also recorded the second injury on 5 July 2001. He

“ventured to suggest”

that his first injury was when “he tore his anterior cruciate ligament. If he had only sustained a mild strain of the knee, he certainly would not have needed six months’ physiotherapy to strengthen the knee”.  The second injury “very shortly after physiotherapy stopped....would indicate that he was perhaps carrying a torn anterior cruciate ligament even at that time. The physiotherapy entries would suggest that”. He thought the leap-frog injury when his knee gave way “would be indicative of a problem that he was carrying within the knee”. The “stairs injury” “would, again, be consistent with him carrying a torn anterior cruciate ligament”. 

28.     Dr Millons’s opinion is that the date of onset “appears to have been the incident at touch football in October 2000”. Dr Millions does not consider that the condition has clinically worsened.  “The problem had been in train since 2000 and there were further incidents in July 2001, March 2002 and April 2002 which served to indicate that a problem was still train. That problem was identified in an MRI in October 2002”.

29.     In relation to the two injuries in East Timor, Dr Millons stated “Those incidents are not referred to in the subsequent documents or in Dr Doig’s reports. I would venture to suggest that those incidents merely served to indicate that a problem was still in train and did not cause a clinical worsening of the condition.”

30.     Dr Millons reviewed Dr Benanzio’s report and pointed out that Dr Benanzio did not refer to the second injury which indicated that there was something amiss with the knee. He disagreed with Dr Benanzio’s opinion that Captain York was able to resume his normal activities and that symptoms settled after the first injury because the second injury indicated that was not the case. 

31.     Dr Millons also gave oral evidence. In his opinion the six months physiotherapy after the first and second injuries showed that there was more than a simple strain, and there was no major incapacity caused by the stairs injury. Captain York had little treatment. He conceded that a person would have some difficulty doing squats with a torn anterior cruciate ligament. He also said that Captain York’s knee may have got worse because of less muscle tone when he was doing less activity. 

32.     Dr Millons could not rule out the possibility that the injuries in East Timor had contributed to the condition as Dr Benanzio found, but in his opinion, on balance the first injury had caused the problem. 

Diagnosis

33.     The diagnosis of internal derangement of the right knee is not in dispute.  What is in dispute is the cause of that internal derangement.

The Law

34. Section 9 of the Act provides for when an injury or disease is taken to be war-caused, and provides relevantly as follows:

“9 War-caused injuries or diseases

(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)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;…

35. Section 13(1) of the Act provides, in effect, that where a veteran has become incapacitated from a war-caused injury or a war-caused disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.

36. As the applicant has performed operational service, the determination of whether his asserted conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the Act. Those sections provide relevantly as follows:

“120 Standard of proof

(1)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.

Note: This subsection is affected by section 120A.

…

(3)In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:

(a)       that the injury was a war-caused injury or a defence-caused injury;

(b)that the disease was a war-caused disease or a defence-caused disease; or

(c)       that the death was war-caused or defence-caused;

as the case may be, if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.

Note: This subsection is affected by section 120A.”

37. Section 120A of the Act applies in the case of applications lodged after 1 June 1994. It provides that where the Repatriation Medical Authority (“RMA”) has made a Statement of Principles (“SoP”) in respect of a particular kind of injury or disease, the reasonableness of an hypothesis is to be assessed by reference to that SoP. Section 120A(3) provides:

“(3)For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of a person with the circumstances of any particular service rendered by the person is reasonable only if there is in force:

(a)a Statement of Principles determined under subsection 196B(2) or (11); or

(b)a determination of the Commission under subsection 180A(2);

that upholds the hypothesis.

38. That there is a relevant SoP for Internal Derangement of the Knee (Instrument No. 59 of 1997 as amended by Instrument No. 96 of 1997 (T documents pages 64 to 67)) was not in dispute. Therefore, the Tribunal must follow the steps set out by the Act, as explained in Repatriation Commission v Deledio (1998) 83 FCR 82 as follows:

“1 The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person.  No question of fact finding arises at this stage.  If no such hypothesis arises, the application must fail.

2 If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.

3 If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one.  It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP.  The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person’s service (as required by ss 196B(2)(d) and (e)).  If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful.  If the hypothesis fails to fit within the template, it will be deemed not to be “reasonable” and the claim will fail.

4 The Tribunal must then proceed to consider under s 120(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.”

Does the material before the Tribunal point to an hypothesis connecting the injury with Mr York’s service?

39.     We conclude that the material set out above points to a hypothesis relevantly connecting Mr York’s injury and his service. The hypothesis is that he had suffered the first and second injuries to his right knee and had been treated as set out above before going to East Timor. He was given a clean bill of health before he went. 

40.     In March of 2002 while in East Timor doing physical training, Captain York’s right knee gave way when he pushed off to leap-frog over another soldier. He fell. He suffered right knee pain, and swelling which he treated with ice. 

41.     On 24 April 2002 while in East Timor when he was going down stairs his right knee gave way and he fell. He suffered extreme pain and severe swelling. He had to be assisted down the rest of the stairs and then driven from the scene.  He “iced” his knee which had reduced the swelling the next day. Following that incident he became conscious that the right knee was unstable, which he had not been before, he obtained a brace and watched what he was doing, making conscious decisions about his activities. On his return to Australia he had a knee reconstruction.

42.     Both these injuries occurred while he was on operational service. 

43.     Dr Benanzio’s opinion was that the three accidents he was aware of contributed equally to his “present right knee symptoms”.

Is the SoP satisfied?

44.     The SoP as amended, relevantly provides:

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 or death from internal derangement of the knee with the circumstances of a person’s relevant service are:

…

(b) suffering a direct trauma or a twisting or wrenching injury to the affected knee:

(i) within the six months immediately before the clinical worsening 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; or

45.     The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668, in which Senior Member Dwyer concluded (at 670) that:

“... there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.”

46.     That analysis was specifically endorsed by Branson J in RepatriationCommission v Cornelius[2002] FCA 750.

47.     Dr Benanzio considered that factor 5(b) of the SoP applies to Captain York’s right knee condition. 

48.     In our opinion, in accordance with the third step in Deledio, pursuant to s 120A(3) of the Act,the hypothesis connecting Mr York’s knee injury with his operational service is reasonable as it is consistent with the “template” found within the SoP. That is, Mr York suffered two injuries to his right knee while on operational service in East Timor, the leap-frog injury and the stairs injury, when his knee gave way. Each resulted in pain and swelling of the knee within 12 hours immediately following the injury. Both occurred within six months of the clinical worsening of his knee condition, that is, instability of his knee which he had not experienced before. Following an MRI scan on his return to Australia a knee reconstruction was carried out.  Factor 5(b) of the SoP is satisfied.

Findings of Fact

49.     We now turn to the fourth step of Deledio. This involves making findings of fact from the material before us, bearing in mind that the claim will succeed unless we are satisfied beyond reasonable doubt that there is no sufficient ground for determining that Mr York’s injury is war-caused as provided by s 120(1) of the Act. In Byrnes v Repatriation Commission (1993) 177 CLR 564 at [13], Mason CJ, Gaudron and McHugh JJ said:

“If a reasonable hypothesis is established, sub-s.(1) of s.120 is applied.  The claim will succeed unless:

(a)one or more of the facts necessary to support the hypothesis are disproved beyond reasonable doubt; or

(b)the truth of another fact in the material is inconsistent with the hypothesis, is proved beyond reasonable doubt,

thus disproving, beyond reasonable doubt, the hypothesis.”

50.     Mr Bunn who appeared for the Repatriation Commission, argued on the basis of Cameron v Repatriation Commission [2003] FCA 1323, Meehan v Repatriation Commission [2003] FCA 1371 and Whitworth v Repatriation Commission [2003] FCA 1530 that we should disregard Dr Benanzio’s evidence because, as we understand his submission, the doctor’s opinion was unreliable as he had formed his opinion without taking into account the second injury, and he was not available for cross-examination.

51.     Dr Benanzio’s opinion was based on the history given by Captain York that his knee had settled down after the first and leap-frog injuries, that he was able to resume his normal duties after each incident, and that after the stairs injury, an MRI evidenced severe internal derangement, which was treated by a knee reconstruction.  Importantly, Dr Benanzio said that following the first injury, no specialist was seen and an MRI was not performed. “Therefore it is impossible to state dogmatically what really happened. The fact is that the patient was able to resume his normal activities, and he states that the symptoms settled. He continued to perform his normal duties without right knee problems.” The doctor went on to consider the leap-frog injury, which he considered was “more likely than not” the cause of further internal knee derangement, and “As is often the case, the symptoms again settled”.  Following the ”further discrete” stairs injury, an MRI evidenced severe internal derangement which was treated with a knee reconstruction.   

52.     We accept Captain York’s evidence, which was not challenged.  We find that he suffered two injuries before going to East Timor, both of which settled, he resumed normal duties and was examined and declared fit before leaving for East Timor. He suffered two further injuries in East Timor as described above, and after the stairs injury he noticed instability, obtained a brace and took conscious decisions about his activities. Following his return to Australia, he had an MRI scan which showed internal derangement of the knee as described earlier in this decision, and then had a knee reconstruction. 

53.     Dr Millons conceded that there was a possibility that the four injuries, including the two in East Timor had contributed to Captain York’s knee (“Dr Millons’s concession”). That is, he accepted that the clinical reasoning evident in Dr Benanzio’s analysis was valid, but he had taken a different view on the evidence as he understood it. His conclusion that the clinical onset was at the time of the first injury was based principally on three matters. The first was that after the first injury Captain York had six months of physiotherapy which Dr Millons considered would not have been necessary for a mild strain to strengthen the knee. The second injury showed a continuing problem. The final matter was that the injuries in East Timor were not referred to in subsequent documents including Dr Doig’s report. 

54.     In our opinion, given Dr Millons’s concession, we are able to consider the evidence before us in the light of clinical analyses of Dr Millons and Dr Benanzio. 

55.     We take into account that Dr Benanzio’s opinion was based on an incomplete history, that is, he did not refer to the second injury. In forming his opinion, Dr Benanzio accepted the history that Captain York had given him that each of the first and leap-frog injuries had settled, that he had resumed normal duties after each, and that he  had been passed as fit before he went to East Timor.     

56.     We find on the evidence before us that both the first and second injuries settled and Captain York was able to resume normal duties following each one, that he was passed as fit before he left for East Timor, that the leap-frog injury settled and he again resumed normal duties, but that after the stairs injury, he noticed instability in his knee which he had not had before. We do not consider that six months physiotherapy means that the knee strain caused by the first injury was more severe than it was found to be at the time as Dr Millons suggested.  Further, while not detailed, there are references in the documents to injuries in East Timor (T3 pp 16 and 18, 5 and 6 June 2002), and in Dr Doig’s concise report. He set out a brief history of the first injury and “ongoing problems with the knee”, the results of examination, and sought permission to carry out surgery. Given his role as the treating orthopaedic surgeon, we infer that Dr Doig was concerned about the damage he was treating and getting permission to do something about it rather than what had caused it. That he did not give detailed reports of each injury is not inconsistent with or detract from Captain York’s evidence before us.

57.     Given those findings, Dr Benanzio’s analysis, and Dr Millons’s concession, we are not satisfied beyond reasonable doubt that the leap-frog and stairs injuries did not contribute to the internal derangement of Captain York’s right knee which was apparent on investigation on return from East Timor, and which was treated surgically. 

58.     We conclude that in East Timor Captain York suffered two injuries to his knee within the meaning of factor 5(b) of the SoP within six months of the clinical worsening of internal derangement of the knee and each of which resulted in pain and swelling within the 12 hours immediately following the injury. 

59.     We find that no fact necessary to support the hypothesis has been disproved beyond reasonable doubt, and no fact inconsistent with the hypothesis has been proved beyond reasonable doubt.  Accordingly, we are not satisfied that the internal derangement of Captain York’s knee was not war-caused.  

60.     For the above reasons, the decision under review is set aside and substituted for that decision is the decision that the internal derangement of Captain York’s right knee is war-caused for the purposes of the Act.

61.     The matter is remitted for assessment in accordance with our finding.

I certify that the 61 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member, Mrs Josephine Kelly and Dr John Campbell

Signed: Miss Sacha Keady

Associate

Date/s of Hearing  20 January 2006
Date of Decision  10 February 2006
Solicitor for the Applicant          Winship Lawyers
Advocate for the Respondent   Department of Veterans' Affairs