Spencer and Repatriation Commission [2000] AATA 319 (20 April 2000)

Last Updated: 4 May 2000

DECISION AND REASONS FOR DECISION [2000] AATA 319

ADMINISTRATIVE APPEALS TRIBUNAL)

Nº N98/1212

VETERANS' APPEALS DIVISION)

Re: HERBERT HAMILTON SPENCER

Applicant

And: REPATRIATION COMMISSION

Respondent

DECISION

Tribunal: Mrs H. E. Hallowes, Senior Member Dr J. D. Campbell, Member

Date: 20 April 2000

Place: Sydney

Decision: The decision under review is set aside and the matter is remitted to the respondent with directions that the applicant's osteoarthrosis of both knees is war-caused. The rate of pension payable to him is to be determined by the respondent.

(sgd) H.E. Hallowes

Senior Member

VETERANS' AFFAIRS -- entitlement -- osteoarthrosis knees -- whether war-caused -- whether trauma to joint -- whether discrete joint injury -- whether requires medical intervention described in SoPs -- pain after football, motor vehicle accident -- whether lasted for a period of at least seven days

Veterans' Entitlements Act 1986 ss.9, 120(1), (3), 120A(3)

Statements of Principles concerning osteoarthosis

Instrument Nº 71 of 1995 as amended by Instruments Nº 336 and Nº 352 of 1995

Instrument Nº41 of 1998 as amended by Instrument Nº19 of 1999

Keeley v Repatriation Commission (1999) 56 ALD 455

Ogston v Repatriation Commission (1999) 29 AAR 89

Repatriation Commission v Deledio (1998) 49 ALD 193

Re Barrett and Repatriation Commission (1999) AATA 509

REASONS FOR DECISION

20 April 2000 Mrs H. E. Hallowes, Senior Member

Dr J. D. Campbell, Member

1. On 20 December 1995 Mr Spencer lodged a claim for disability pension in respect of a number of disabilities including osteoarthrosis of both knees which he contended had been caused by his war service as a result of hard knocks he received when playing football during Army service. By a determination dated 11 April 1996 the Repatriation Commission decided that his "osteoarthrosis of both knees and both hips" was not war-caused (T15). Mr Spencer's post traumatic stress disorder, bilateral sensorineural hearing loss with tinnitus, cervical spondylosis, peptic ulcer disease and recurrent fungal infections affecting the toes were accepted as war-caused with effect from 20 September 1995. Pension was granted at 100% of the general rate. The decision of the delegate of the Repatriation Commission with respect to Mr Spencer's knees and hips was affirmed by the Veterans' Review Board ("the VRB") on 5 June 1998. Mr Spencer has applied for a review of that decision.

2. Mr M. Smith, of counsel, who appeared for Mr Spencer at the hearing, told the Tribunal that he was not aware why Mr Spencer's osteoarthrosis of both hips, for which he had made no claim, had been included in the decision and it was not a matter which Mr Spencer was pursuing before the Tribunal. A decision may have been made with respect to Mr Spencer's osteoarthrosis of both hips because his general practitioner, Dr S. Howe, diagnosed bilateral osteoarthrosis of the "hips and knees" when he was asked to provide a report to the Department of Veterans' Affairs ("the department") with respect to Mr Spencer on 24 January 1996. Nor was there an issue before the Tribunal with respect to the rate of pension payable to Mr Spencer as other claims remain before the Repatriation Commission and Mr Smith put to the Tribunal that, if the decision of the Repatriation Commission with respect to Mr Spencer's osteoarthrosis of both knees was other than affirmed, the Tribunal should remit the issue with respect to the rate of pension payable to him to the Repatriation Commission for determination.

3. The Tribunal had before it the documents lodged pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 ("the documents") together with additional material lodged by both parties at the hearing. The Repatriation Commission was represented by Ms S. Breuer, an advocate with the department. The documents disclose that Mr Spencer was born on 30 June 1920. His service in the Army between 16 February 1941 and 22 January 1946 was operational service. The report with respect to medical examination prior to discharge records that Mr Spencer had injured his right shoulder at Townsville in June 1944. A note on the form states: "The member is to be warned that the answers given by him may be of great importance if he should claim a pension later". On the form Mr Spencer had responded "No" when asked if he had suffered any other injuries or diseases during service. He explained to the Tribunal at the hearing however that he had been anxious to be discharged from the Army and, although his knees were sore at the time, he did not mention them. Nor had he mentioned any problems with his eyes which was later picked up on examination by the Medical Board on 22 January 1946 (T3).

4. A report of a department medical examination in March 1967 records that Mr Spencer had an ache in a muscle at the "back of calf" after exertion. A further medical report, dated 28 March 1967 (T5), records that Mr Spencer was obese, that he had played football at school and that he was presently playing golf but his "legs let him down". In April 1967 he reported to a medical specialist that his legs were aching and that he had pain in the muscles of his legs. There is no record of knee problems which are first mentioned in a rheumatologist's report in January 1974 as follows:

For years knees would swell L > R, much better since lost 2 stone by diet. Left quad. is markedly wasted, but no effusion present and good range. Needed walking stick 18/12 ago but now walks well.

The knee swelling was apparently relieved at that time by fluid tablets and the loss of weight. A departmental file note by Dr Corrigan, dated 11 March 1974, states that it was difficult to "sort out his story" which was also a difficulty for the Tribunal as, in giving his evidence to the Tribunal, Mr Spencer explained that he had recently suffered a stroke and a heart attack, which have knocked him about, and he said that he may have difficulty responding to questions. The Tribunal has taken that into account in considering his evidence. Professor P. Sambrook, rheumatologist, who gave oral evidence for the Repatriation Commission, also commented on the history he obtained from Mr Spencer which was "unclear". It was not as detailed as the history Mr Spencer had given to the Tribunal. Professor Sambrook commented that the more questions you ask, the more history you obtain. The file note dated 11 March also records that Mr Spencer was taking medication "for gout". An X-ray was taken on 21 July 1975 and the record shows "Osteophytic spurs consistent with O.A. are present bilaterally". However, on medical examination on 14 February 1978 it is reported that "Knees - no tenderness or effusion, full range of pain free movements".

5. In October 1979 "other joints NAD" is recorded when Mr Spencer's shoulders were found to be stiff. His knees are again mentioned in the documents in the medical report dated 23 October 1984 where it is recorded that his left knee was causing a problem but his right knee was "OK". By 1988 Mr Spencer's left knee was causing him sufficient problem for him to be referred to an orthopaedic surgeon, Mr R. Drummond, who recorded that Mr Spencer reported having pain in his left knee for many years and that he was receiving non steroidal anti-inflammatory drugs, hydrocortisone injection and physiotherapy (T10). Dr Drummond expressed the opinion that Mr Spencer had left knee medial compartment osteoarthritis with osteophytes, crepitus with movement and local joint line tenderness.

6. The original determination was made on 11 April 1996. The relevant provisions of the Veterans' Entitlements Act 1986 ('the Act") include section 9 with respect to war-caused injuries. Subsections 120(1) and (3), with respect to the standard of proof to be applied in determining issues, provide:

(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.

. . .

(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.

Subsection 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

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

that upholds the hypothesis.

. . .

7. The Statement of Principles ("SoPs") considered by the Repatriation Commission's delegate was presumably Instrument Nº 71 of 1995 concerning osteoarthrosis as amended by Instruments Nº 336 and Nº 352 of 1995 which were provided to the Tribunal at the hearing. Although Instrument Nº 41 of 1998 as amended by Instrument Nº 19 of 1999 concerning osteoarthrosis, which revoked Instruments Nº 71, Nº 336 and Nº 352, was included amongst the documents (T21) this cannot be the Instrument considered by the VRB, which made its decision on 5 June 1998 as Instrument Nº 41 of 1998 came into effect on 29 June 1998.

8. If Instrument Nº 41 of 1998 as amended is the Instrument which the Tribunal must apply, Mr Spencer put to the Tribunal that factor 5(j) existed such that a reasonable hypothesis was raised connecting the osteoarthrosis of his knees with the circumstances of his relevant service. Factor 5(j) provides:

5. The factor that must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthrosis or death from osteoarthrosis with the circumstances of a person's relevant service are:

. . .

. . .

(j) suffering a trauma to a joint before the clinical onset of osteoarthrosis in that joint; ...

(k) . . .

. . .

"Trauma to a joint" as amended by Instrument Nº 19 of 1999 is defined as meaning:

. . . a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These acute symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:

immobilisation of the joint or limb by splinting, sling or similar external agents; or

injection of corticosteroids or local anaesthetics into that joint; or

aspiration of that joint; or

surgery to that joint;

9. Following the Federal Court decision in Keeley v Repatriation Commission (1999) 56 ALD 445, the SoPs in effect at the time of the primary decision should be applied, Heerey J, having distinguished the Full Federal Court decision of Ogston v Repatriation Commission (1999) 29 AAR 89. If Instrument Nº 71 of 1995 as amended applies, the factor relied on by Mr Spencer to connect the osteoarthrosis of his knees with the circumstances of his service is "2(b)(vi) suffering a trauma to the relevant joint before the clinical onset of osteoarthrosis" trauma to the relevant joint meaning:

"trauma to the relevant joint" means 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 injury and treatment, such evidence may be considered.

In effect, the only differences in the relevant SoPs are in the definition of trauma to joint, the present definition including the word "discrete", the word "swelling" being deleted and one week being deleted and seven days substituted.

10. When the hearing resumed on a second day, the Full Federal Court had not handed down its decision in Keeley's case. The parties agreed that the Tribunal should consider the matter under the present SoPs, which may be more difficult for Mr Spencer to satisfy the Tribunal with respect to following the provision that a joint injury must be "discrete" although, applying the decision of Heerey J, it would be the SoPs in effect at the time of the Repatriation Commission's decision which the Tribunal should apply.

11. Mr Spencer told the Tribunal that before service he had not played much sport and he had experienced no knee problems. After enlistment, his unit was involved with the care of pack-horses and he was stationed at Liverpool for a fair while and later in Townsville before embarking for overseas in June 1945. The Tribunal had before it a recent statement made by Mr Spencer, which was written by his wife. She recorded:

In about the year 1942 at the end of a long day driving this route backwards and forwards numerous times, I was making another delivery crossing the old Liverpool bridge, when I struck the side of the bridge and was thrown forward banging my knees and legs on the front dash board. The army towed the vehicle back to camp where the sergeant was waiting to take me to Major Murphy, who fined me for destroying army property.

Next morning I went to R.A.P for treatment to my knees and was given the usual "Army Policy". "One week light duties". (exh D)

12. Mr Spencer said that he thought the bridge referred to in his statement was made of bricks but someone else had suggested to him that it may have been a wooden bridge. In any event, the truck he was driving had hit a hole on the carriageway which slewed the truck into the side of the bridge, causing damage along the side and back of the truck tray. Mr Spencer said his chest had hit the steering wheel and his knees hit the dashboard. He was sore all over. Next day he reported to the RAP and he was given some liniment to use. He thought his knees may have been swollen. Originally it was his involvement playing second row rugby league which he thought had had a detrimental affect on his knees. During service he had played rugby two or three times a week when he was stationed at both Liverpool and Townsville. At Townsville the surface of the rugby field was like "cement". It was a matter of "push, push, push" which had placed pressure on his knees. At the end of a game he felt as if he had been "in a washing machine". Everybody had to keep fit.

13. After the incident when he was driving the truck Mr Spencer thought that he probably returned to playing football a fortnight later. He recalled an occasion when he was carried off the football field after being met by a particularly tough opponent. The only medical attention provided by the RAP was to hand out liniment and the provision of hot and cold packs. Mr Spencer said that "you had to carry on regardless" because otherwise you would "cop it". He thought that there had been swelling in his knees. He told the Tribunal that his knees have troubled him since service. He did not play football after the war. When asked to explain why he had not recorded the incident with the truck on his claim form (T13), Mr Spencer explained that he had not completed the form and at that time he had forgotten the truck incident. The Tribunal notes that the form was signed by him before he suffered his stroke.

14. Dr M. Benanzio, consultant orthopaedic surgeon, whose reports dated 28 March 1999 and 8 April 1999 were before the Tribunal, gave oral evidence. In his report 28 March Dr Benanzio recorded, amongst other things, in the history he obtained from Mr Spencer that he:

. . . stated that he repeatedly sustained strains and bumps of both knees, without a specific accident. He developed increasing ache in both knees, more in the right one, and had to have periods off duty. He cannot remember if he was seen by the medical officer. (emphasis added) (exh A)

Dr Benanzio noted that bilateral knee osteoarthritis had resulted in Mr Spencer undergoing total knee replacements. In his opinion

. . . multiple contusions/strains of both knees sustained during his Army service between February 1941 and January 1946 precipitated knee complaints when the patient was still between 21 and 26 years of age and contributed to the perpetuation of those complaints and the evolution of degenerative changes, leading to bilateral total knee replacements.

According to the Amendment of Statement of Principles concerning OSTEOARTHROSIS (Instrument No. 19 of 1999) there has most likely been:

A. "Trauma to a joint", meaning "a discrete joint injury that caused the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness . . ."

. . . (exh A)

In his later report Dr Benanzio reported:

. . .

Following my report of 28th March 1999, today I received a telephone call from the patient stating that when seen on 22nd March 1999 he did not tell me that, when serving in the Army, before going to Townsville, on duty, he was driving a truck on a wooden bridge. He hit the side of the bridge and was propelled forward, hitting both knees against the dashboard. There was ache in both knees. The matter was reported and he was taken to Major Murphy, the C.O.

Because of the ache in both knees he was off duty for about one week and was seen at the R.I.P.

. . . (exh B)

15. When giving oral evidence to the Tribunal Dr Benanzio expressed the opinion that Mr Spencer's service had contributed significantly to the osteoarthrosis of his knees, but Dr Benanzio was unable to say that, if Mr Spencer had not played football, he would not be suffering from osteoarthrosis. In his opinion multiple trauma to the knees are "discrete" joint injuries.

16. The Tribunal had before it a report by Dr M. Baz, occupational physician, dated 18 March 1999 (exh C). She obtained a history from Mr Spencer that he had a "long history of knee problems, which he attributed to injuries playing football during service". The other aspects of Dr Baz's report with respect to the rate of pension payable are not relevant to the issues before the Tribunal.

17. The respondent had referred Mr Spencer to Professor Sambrook. His report dated 25 August 1999 was before the Tribunal:

In regard to the lower limb joints, Mr Spencer told me he played football in the Army for many years sustaining repeated blows and strains on many occasions. Although he couldn't remember one specific episode, he described making many tackles on much bigger men which resulted in him experiencing pain in multiple joints throughout his body (including his knees and hips) for several days. However he described the culture of the Army was one of not complaining at that time.

There is also a written statement in regard to when he was driving his truck along the old Liverpool Bridge. He struck the side of the bridge and was thrown forward banging his knees and legs on the front dashboard. He was seen at that the RAP and was recommended to have one weeks [sic] light duties. (exh 1)

18. The Tribunal notes that, when signing his claim for disability pension on 15 December 1995, Mr Spencer did not provide a history with respect to the truck incident when providing details of accidents, injuries or illnesses he suffered during service which may be related to the claim. Nor did he do so when asking the VRB to review the decision of the Repatriation Commission with respect to his knees. His advocate before the VRB said on his behalf that, after many games of rugby, he was stiff and sore and on occasions was on light duties for four to five days.

19. It appears to the Tribunal that the incident with the truck cannot have been of significance to Mr Spencer in that it only came to light after he had had his first consultation with Dr Benanzio, who had written his first report. Having advised Dr Benanzio about the particular incident on 8 April 1989, he did not recall it when providing a history to Professor Sambrook in August of that year. However, Professor Sambrook had been provided with a written statement about the incident. Professor Sambrook also noted that a medical report dated 14 February 1978 described Mr Spencer's knees as exhibiting a full range of pain free movement, with no tenderness or effusions. He diagnosed osteoarthrosis of both Mr Spencer's knees. He considered Instrument Nº 41 of 1998 and Instrument Nº 19 of 1999, accepting

. . . that Mr Spencer was exposed to multiple contusions whilst playing football in the Army, but none of these meet the definition of trauma or satisfy features suggesting an internal derangement of the knee. The episode described by Mr Spencer on the Liverpool Bridge again is one of a soft tissue injury without particularly dramatic symptomatology and does not meet the definition of trauma. . . . (exh 1)

He did not accept Dr Benanzio's opinion, that multiple contusions and strains of both knees sustained during service came within the definition in the SoPs. He expressed the opinion that the SoPs envisage "a severe discrete injury". What is envisaged in the SoP is, of course, a matter for the Tribunal. The Tribunal notes that the word "severe" does not appear in the definition of trauma to the joint.

20. In giving oral evidence to the Tribunal Professor Sambrook observed that the first clinical signs of Mr Spencer's osteoarthrosis of his knees was in the mid-1970s, although he conceded under cross-examination that it may have occurred at the beginning of the 1970s. The history he obtained from Mr Spencer made it unlikely, in his opinion, that Mr Spencer's war service caused his osteoarthrosis. Professor Sambrook noted that Mr Spencer has osteoarthrosis in both knees and both hips. In his opinion Mr Spencer would not have osteoarthrosis of both his hip and knee joints which was caused by playing football during service or the truck accident. Rather, Mr Spencer described soft tissue injury to him and he got the impression that Mr Spencer's symptoms at the time were minor. Professor Sambrook said that he obtained no history with respect to any non-war trauma which may have contributed to Mr Spencer's condition. If osteoarthrosis was established by 1971, his age may be a contributing factor as well as genetic and environmental factors.

21. Under cross-examination, Professor Sambrook said that he had changed his view with respect to the SoPs since giving evidence in an earlier matter before the Tribunal. In that earlier matter the Tribunal adopted the meaning given by Professor Sambrook to the word "acute", as referring to something which occurs suddenly in the medical context. Having added severity to the temporal aspect of the word "acute", Professor Sambrook said that he had not changed his view with respect to Mr Spencer and it was "more probable than not" that Mr Spencer does not meet the criteria of the SoPs. He had dictated his report in front of Mr Spencer and Mr Spencer did not disagree with what he was reporting at the time. Ms Breuer took Professor Sambrook to the definition of trauma to the joint and Instrument Nº 19 of 1999, in particular, the medical intervention there set out, which Professor Sambrook pointed to as more than trivial intervention.

22. Ms Breuer, in making a closing submission to the Tribunal, invited it to infer that the reference to discrete joint "injury" in Instrument Nº 19 is a reference to a serious injury possibly requiring the medical intervention outlined in the definition. The Tribunal rejects her interpretation of the meaning of trauma to a joint and accepts Mr Smith's submission. The definition provides that symptoms and signs must last for a period of at least seven days unless medical intervention of the kind referred to in the definition has occurred. It is the period of time the symptoms and signs last for which is provided for, not the type of medical intervention which may alleviate the symptoms and signs within the period.

23. In addressing the Tribunal Mr Smith noted that Professor Sambrook said that Mr Spencer's osteoarthosis would have been more likely to occur in one knee only if it was caused by playing rugby. As Mr Spencer has operational service, Mr Smith referred the Tribunal to the decision of the Full Federal Court in Repatriation Commission v Deledio (1998) 49 ALD 193, where the Full Federal Court, at page 206, restated the course the Tribunal is to take in respect of the incapacity of a person from injury or disease related to service. The Tribunal accepts Mr Smith's submission that the material before it points to a hypothesis connecting the osteoarthrosis of Mr Spencer's knees with the circumstances of his service, including the incident which occurred when he said that his knees hit the dashboard and he was given the usual "'Army Policy'. 'One week light duties'" (see paragraph 11 above). A SoPs is in force and the Tribunal is of the opinion that the hypothesis raised is a reasonable one. It is consistent with the template in the SoPs. As well as the truck incident, the evidence raised facts that, having played football, Mr Spencer was, on at least one occasion, carried off the field and he frequently experienced pain in his knees, again being placed on light duties from time to time. He may have suffered trauma to his knee joints. Dr Benanzio's evidence was that multiple contusions and strains precipitated Mr Spencer's knee complaints. If it is accepted that Mr Spencer continued to experience problems with his knees from that time until his condition was diagnosed, Professor Sambrook went so far as to say that it was a possibility that his osteoarthrosis may be connected to the football he played during service. The relevant factors under both the SoPs in effect when the Repatriation Commission made its decision and the SoPs now in effect both provide for suffering a trauma to a joint before the clinical onset of osteoarthrosis. The word "discrete" has now been inserted into the definition of trauma to a joint. The hypothesis raised by Mr Smith includes discrete injuries to Mr Spencer's knees on a number of occasions which satisfies the SoPs. With respect, the Tribunal would follow what was said by the Tribunal in Re Barrett and Repatriation Commission (1999) AATA 509 (decided 13 July 1999) where it said with respect to the word "discrete", in paragraph 39, ". . . if the Applicant can establish a number of 'discrete' injuries which meet the other components of the definition, then the definition will be satisfied". The evidence points to Mr Spencer having acute symptoms and signs of pain and tenderness affecting his mobility for up to seven days after playing football particularly on one occasion. Whichever SoPs is to be applied, the Tribunal has formed the opinion that the hypothesis raised by Mr Spencer is a reasonable one.

24. In giving reasons for the decision in this application the Tribunal has drawn attention to its concerns with respect to Mr Spencer's recollection and the differences in opinion between the medico/legal experts who gave evidence in the matter, but those concerns are not such as to satisfy the Tribunal beyond reasonable doubt that there is no sufficient ground for determining that Mr Spencer's osteoarthrosis both knees is war-caused.

25. It is for these reasons that the decision under review will be set aside, and a decision substituted by the Tribunal.

I certify that the twenty-five [25] preceding paragraphs are a true copy of the reasons for the decision herein of

Mrs H.E. Hallowes, Senior Member

Dr J.D. Campbell, Member

(sgd) Catherine Thomas

Personal Assistant

Dates of Hearing: 28.10.99, 29.03.2000

Date of Decision: 20.04.2000

Counsel for the Applicant: Mr M. Smith

Solicitor for the Applicant: Messrs Rockliffs

Solicitor for the Respondent: Ms S. Breuer, departmental advocate