Beale v Repatriation Commission

[1998] AATA 312

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(Decision by: Lynch, M, Lewis, SM;)

Re: John Elgar Beale, Applicant
And: Repatriation Commission

Tribunal:

Lynch, M
Lewis, SM;

Subject References:
Practice and Procedure
Veterans affairs
review of Statement of Principles by Specialist Medical Review Council not favourable to Applicant
outstanding review by Repatriation Medical Authority
Tribunal directed that matter not be delayed further while awaiting review by RMA
Applicant applied to Federal Court for review of Tribunal's proposal to conduct a hearing
Federal Court dismissed application
held that Tribunal's exercise of discretion to proceed to a hearing had not miscarried.

Legislative References:
Veterans' Entitlements Act 1986 - ss 119(1)(h); 120; 120A
Administrative Appeals Tribunal Act 1975 - s 33(1)(a); 34(3)
Administrative Decisions (Judicial Review) Act 1977 - s 6

Case References:
Re McMillan and Repatriation Commission - (1997) 25 AAR 123
Beale and Repatriation Commission - (AAT 12385, 12 November 1997)
Beale v Administrative Appeals Tribunal and Repatriation Commission - (Lindgren J, 16 March 1998, 218/98, unreported)
McMillan v Repatriation Commission - (Marshall J, 27 February 1998, 127/98, unreported)

Other References:
Statement of Principles - No. 71 of 1995, No. 336 of 1995, No. 352 of 1995

Hearing date: 17 March 1998
Decision date: 21 April 1998

Sydney

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Decision by:
Lynch, M
Lewis, SM;

1. This is an application for review lodged by John Beale ("the Applicant") on 4 December 1995 in respect of that part of the decision of the Repatriation Commission ("the Respondent") dated 26 April 1995 which determined that the conditions of osteoarthritis left knee and osteoarthritis right foot were not war-caused (T.2).

History of the Matter

2. It was not in dispute that the Applicant had rendered operational service pursuant to s. 6 of the Veterans' Entitlements Act 1986 ("the Act"), and that this matter must be decided in accordance with ss. 120(1) and 120(3) of the Act. These provisions are affected by s. 120A which provides that if a claim is made on or after 1 June 1994, any relevant Statement of Principles must be applied. In the present matter, the Applicant lodged a claim with the Respondent on 21 December 1994 and as such, pursuant to s. 120A the matter is to be determined by reference to the relevant Statement of Principles determined by the Repatriation Medical Authority ("the RMA"). The Applicant lodged an application for review by the Veterans' Review Board on 11 May 1995 and the decision of the Respondent in respect of the abovementioned conditions was affirmed on 31 October 1995 (T.24).

3. As Instrument No 71 of 1995 in respect of osteoarthrosis dated 20 February 1995 was gazetted before the Respondent made its decision on 26 April 1995 it was applied by the Delegate in making her decision. Instrument No. 71 was then amended by Instrument No. 336 of 1995 dated 29 August 1995, and was amended further by Instrument No 352 of 1995 dated 3 October 1995. The Veterans' Review Board, in its decision dated 31 October 1995, applied the Statement of Principles as amended in affirming that part of the decision under review.

4. After the application for review was lodged with this Tribunal and by the time of the first Conference on 13 February 1996, the Applicant, through his representative, advised that he was seeking a review of the Statement of Principles by the Specialist Medical Review Council ("the SMRC"). The Applicant requested at the first Conference that the matter "be taken out of the list" pending the review by the SMRC. The Respondent did not object and the Tribunal did not list the matter further at that stage. Ultimately the Respondent requested the Tribunal to list the matter for a Directions Hearing in order to consider the Respondent's request that the matter should be listed for hearing without allowing further delay for the Statement of Principles review to be completed. Pursuant to s 34(3) of the Administrative Appeals Tribunal Act 1975 ("the AAT Act") the history of the delay was revealed at the Directions Hearing on 7 November 1997 with the permission of the parties.

5. At the Directions Hearing the Tribunal was advised that evidence had been put to the SMRC on behalf of the Applicant and that the SMRC had completed its review which was dated 24 March 1997 (exhibit A). The SMRC made the following declaration -

"In relation to the Repatriation Medical Authority Statement of Principles, Instrument No. 352 of 1995 concerning osteoarthrosis, made under subsection 196B(2) of the Veterans' Entitlements Act 1986 (the Act), the Specialist Medical Review Council (The Council) declares, under subsection 196W(5) of the Act, that:

(a)

The council recommends that the Repatriation Medical Authority reconsider the effects of "repetitive micro-trauma" as a factor having regard to the Reasons for Decisions of the Council, the information that was available to the Repatriation Medical Authority when it made that Statement of Principles, together with any further information that may arise from any later studies relating to osteoarthrosis; and

(b)

the Council is of the view that there is no sound medical-scientific evidence that justifies any other amendment of that Statement of Principles."

The Tribunal was advised also that before the SMRC hearing, the RMA had initiated its own review of the relevant Statement of Principles, which was still proceeding at the time of the Directions Hearing on 7 November 1997.

6. At the Directions Hearing the Respondent submitted that notwithstanding its previous position in not opposing the delay pending the SMRC review, following the decision of the Tribunal Re McMillan and Repatriation Commission (1997) 25 AAR 123, which determined that matters such as this should not be delayed, the matter should be listed for hearing forthwith.

7. It was submitted for the Applicant that if the matter was decided on the basis of the present Statement of Principles the Applicant would not succeed. His only chance of success was if para. 2(b)(vii) of Instrument No. 352 of 1995 was amended in respect of the ten year period. That was the issue before the SMRC and presumably it will be considered by the RMA when it comes to its review. It was submitted that, if ultimately the Statement of Principles was amended in the Applicant's favour, if he was not permitted to delay the hearing he would lose the effective date for payment of pension which could date back to 21 September 1994. It was also submitted for the Applicant that if the Tribunal did not allow sufficient time for the review to be completed then there was in effect no point in allowing a Veteran the right to request review of a Statement of Principles, either by the SMRC or the RMA, given the lengthy periods required in order for those bodies to complete their reviews.

8. Having considered the submissions the Tribunal directed that the matter not be delayed further while awaiting the review of the RMA and so it was listed for hearing on 17 March 1998.

9. The Applicant then applied to the Federal Court under s 6 of the Administrative Decisions (Judicial Review) Act 1977 for an order of review in respect of the conduct of the Tribunal, namely the proposal to conduct a hearing on 17 March 1998. On 16 March 1998 Lindgren J dismissed the application: Beale v Administrative Appeals Tribunal and Repatriation Commission (Lindgren J, 16 March 1998, 218/98, unreported). Before that decision was made the Federal Court handed down a decision by Marshall J. dated 27 February 1998: McMillan V Repatriation Commission (Marshall J, 27 February 1998, 127/98, unreported). In that decision Marshall J held that s 120A(2) of the Act did not require the decision maker not to determine a claim for pension until the RMA had completed its review of an existing Statement of Principles. In Beale Lindgren J. held that the Act did not require the Tribunal to adjourn the hearing until the RMA's review was complete and that the Tribunal's exercise of discretion under s. 33(1)(a) of the AAT Act to proceed to a hearing of this matter was not shown to have miscarried.

10. The reasons for the Tribunal's Direction are set out in a separate document: Beale and Repatriation Commission (AAT 12385, 12 November 1997), and the Tribunal adheres to that Direction and reasons.

Reasons Why the Tribunal Refused to Allow Further Delay Pending Completion of the Rma Review

11. At the substantive hearing of this matter on 17 March 1998 the Tribunal was again asked by the Applicant's representative to adjourn the proceedings pending the completion of the RMA review. The Applicant's representative advised that the RMA would not complete the review until the middle of 1998 at the earliest. The Respondent's representative said that the Respondent had been advised that there was no certainty as to when that review would be completed. The Tribunal again refused to adjourn the proceedings on the same basis as that indicated at the Directions Hearing. The Tribunal was then advised by the Applicant's representative that the Applicant did not propose to withdraw his application, and asked that the Tribunal proceed to make its decision on the papers before it, without taking any further evidence. The Respondent was in agreement with that course of action.

12. At this stage it is appropriate to reiterate the reasons given by the Tribunal at the Directions Hearing for not allowing further delay before the matter was heard and decided, because the Tribunal as presently constituted has endorsed those reasons and they were considered by the Federal Court in Beale . The Tribunal said -

"The Tribunal Re McMillan in refusing adjournments, held that the legislation did not contemplate there being indefinite adjournments pending the review of an initial decision by the RMA. In that matter Deputy President McDonald said -

'The Tribunal is satisfied that in its content and form the legislation does not contemplate there being indefinite adjournments pending the review of an initial decision by the RMA as to whether or not it will grant a SoPs. Given that in carrying out a review, both the RMA and/or the SMRC are involved in a legislative function, the case law does not support the applicants' contention that an adjournment should be granted. Despite the beneficial nature of the legislation in this case, there must, as always, be limitations on the rights conferred. It would, in the view of the Tribunal, be extending those rights to a greater degree than is contemplated by the Act or by the decided cases if the adjournments were to be granted upon request. There may be specific cases where it is appropriate to grant adjournments. Each case would depend on its particular circumstances. There is, however, nothing suggested in the circumstances of any of the cases before the Tribunal which would give rise to such a consideration being undertaken .'(emphasis added)

The Tribunal adopts the reasoning of Deputy President McDonald Re McMillan . In Re McMillan the Tribunal relied on the decision of Thornton v Repatriation Commission (1981) 52 FLR 285, which related to an alleged 'unreasonable delay' of the Repatriation Commission in making its decision. The Court drew a distinction between delay caused awaiting an amendment to the law and delay while awaiting clarification or settling of the law by a court. The Federal Court determined that the meaning of "unreasonable" had a broad ambit, and the term 'unreasonable delay' was to be assessed objectively by reference to the question of 'whether or not a reasonable person acting in good faith would, in the circumstances, have approved the delay'.

The Tribunal notes that Statements of Principles are legislative instruments. Awaiting a change to a Statement of Principles is akin to awaiting an amendment to the law.

The Tribunal has taken into account the delay which has occurred already in this matter where, unwittingly, the matter was delayed without objection. The Tribunal has taken the circumstances of that delay into account. It would be unfair to have allowed such a delay and then, at this stage, refuse a further delay if there was any reasonable indication that the RMA had received a recommendation from the SMRC which could be identified to be in the Applicant's favour. However, that is clearly not the case. The following paragraphs of the SMRC decision highlight for the Tribunal that in referring the issue to the RMA there is no apparent solution to the problems which have been raised.

'103 Considering the question as to whether heavy physical activity could produce osteoarthrosis in a previously healthy joint of the lower limb the Review Council was of the unanimous opinion, based on the literature available to them in the review, that this was not so. They carefully considered the alternative viewpoint advanced by Professor Sambrook but could not find substantiation in the literature reviewed that did not raise concerns about the scientific or medical validity or credibility of that material.

104 The Review Council examined the definition of osteoarthrosis advanced by the Repatriation Medical Authority and agreed in general with its content. There was however a strong opinion that inflammation of the synovium should be included even though 'defective integrity of the articular cartilage' was expressly stated. Members of the Review Council expressed the view that without inflammation of the synovium and the consequent release of slowly progressively injurious substances, osteoarthrosis was most unlikely to develop.

105 Considering the question of the 10 year requirement being excessive, arbitrary and taking no account of individual veterans the Review Council could appreciate why this figure had been set by the RMA on the basis of the major studies which it had used. The Review Council felt that there was no actual time period which could be accurately or reliably placed but did not consider that it could find sufficient evidence in the literature to refute, modify or delete the time period set by the RMA. To this extent the accusation of arbitrariness might be recognised, but the removal of such an 'arbitrary' period would, in the opinion of the Review Council, leave no figure whatsoever on which to base further considerations as evidence becomes available.

106 In supporting the current status enunciated by the Repatriation Medical Authority the Review Council would wish to call for a search for such studies as may address this Profound (sic) problem and for the setting up of a means to scientifically explore the problem as it relates to Australian service personnel on active and normal duties.'

The Tribunal considers that there is nothing in those relevant paragraphs of the SMRC decision that gives any particular joy to the Applicant in this matter except to indicate that 'the door is not yet locked'. Even if it had been reasonable to allow time for the Applicant to take his application for review of the Statement of Principles to the SMRC (and the Tribunal makes no admission that that is so), having received the SMRC decision in its terms, there is no justification in that decision to allow a further delay. Had the SMRC recommended a lessening of the ten year period of the relevant paragraph to the RMA the situation would have been quite different, for then there may have been some indication that the RMA review could have assisted his case. Moreover, there is no clear indication that the matter will be resolved by the RMA by February/March 1998. All that the Tribunal has before it at this stage is an informal indication provided by the RMA to the parties, being a date before which it will not be considered.

The Tribunal also considered the question as to what the Applicant had to lose in not being able to pursue the issues under the head of this application if eventually there was an amendment to the Statement of Principles in his favour. As it stands the Applicant stands to lose the benefit of the effective date, 21 September 1994, from which any pension is payable. The Tribunal was assured that an earnings related pension was not at issue. The Applicant has been assessed by the Veterans' Review Board as being entitled to a continuation of payment of pension at 70 percent of the General Rate, even though its assessment in respect of his war caused conditions was at 40 percent (see Revocation of the Guide to the Assessment of Rates of Veterans' Pensions - Instrument No.6 of 1994). From the evidence in the T. documents and based on the VRB assessment, it is possible that even if the Applicant was to succeed in the matter under the head of this application, the margin by which his pension assessment would have to increase consequentially before it had any material effect on the rate he is receiving already is quite significant.

In all the circumstances of this case, and taking into account the test of 'unreasonable delay' as defined by the Federal Court in Thornton , the Tribunal refuses to allow further delay in this application proceeding to hearing."

Evidence on the Substantive Issues

13. In considering the substantive issues the Tribunal had before it the documents provided by the Respondent pursuant to s 37 of the AAT Act, and the "SMRC declaration -Statement of Principles Nos. 352 of 1995 Osteoarthrosis" dated 24 March 1997, and the reasons for decision (exhibit A).

14. The Applicant served in the Australian Army from 6 January 1944 to 16 December 1946, including service in the South-West Pacific. It was common ground that the Applicant had operational service and that his claim falls for determination pursuant to subs. 120(1) and (3) of the Act. That being so, the Tribunal is required to find that the Applicant's osteoarthritis of the left knee and right foot were war caused unless it is satisfied beyond reasonable doubt that there is no sufficient ground for making that finding. The Tribunal must be so satisfied if it is of the opinion that the material before it does not raise a reasonable hypothesis to connect those conditions with the circumstances of the Applicant's war service.

15. The Applicant was born on 20 December 1925. He provided a Statutory Declaration dated 12 August 1995 (T.22) and an undated and unsworn statement (T.23) to the Veterans' Review Board. He also made a written statement to the Repatriation Commission dated 22 July 1995 (T.21).

16. After enlisting in January 1944 the Applicant trained as an infantry soldier specialising in mortars. He was involved in heavy load and long distance training, including 3 inch mortars, at Cowra, Bathurst, Singleton, Canungra and Atherton Tableland. He said that his training required extensive kneeling for periods of half to one hour. While undertaking rapid firing he was kneeling and loading 10 pound bombs into the barrel at the rate of 30 per minute for extended periods. He also carried loads of 65 to 70 lbs during training for distances of up to 10 kilometres. Jungle training at Canungra early in 1945 "required extensive crawling, load carrying and exceptional leg strain" (T.21). One training march was undertaken by the Applicant over a distance of 248 kilometres in four and a half days while carrying three inch mortar components for many hours at a time. The Applicant landed at Balikpapan in June 1945 and transferred to Rabaul in June 1946. He stated that he was involved in Battalion football games at various camp locations and suffered regular injuries, most of which were not reported. He said he sustained many leg and knee injuries while playing football (T.21).

17. At school the Applicant was involved in swimming, tennis and athletics. He sustained no major injuries in his sporting activities. He was also involved in scouting, reaching the status of Patrol Leader. He left school at Intermediate School Certificate level and commenced work in 1942 as a junior draftsman with an oil company and attending night school.

18. After he was discharged from the Army the Applicant was required to attend night classes from 1947 to 1956 for up to five nights weekly and occasionally on Saturday mornings. He then became qualified as a civil engineer. Because of his study commitments he stated that he was involved only in passive and recreational sport during that period, apart from playing rugby occasionally as a reserve. He also said that from 1956 to 1983 when he retired he was involved in family recreational activities including walking callisthenics, fishing, swimming, tennis and golf.

19. It was the Applicant's submission that when considering his lifestyle the stresses imposed on his legs would have been most severe during his Army service. He had surgical removal of loose fragments in his left knee in 1991 which provided temporary relief. He said that his legs now restrict him in many activities including walking, fishing, dancing and normal sporting activities usually undertaken by people of his age. He suffered from gout in his feet in 1970-71 while living in New Guinea, but not since that time. He also said that he had no hereditary history of osteoarthritis.

20. The Applicant has complained about the absence of some of his service documents, including his attendance at Regimental Aid Posts for treatment for various ailments, and an admission to hospital in Muswellbrook. The Tribunal notes that s 119(1)(h) of the Act requires the Respondent, and the Tribunal standing in the shoes of the Respondent, to take into account any difficulties that lie in the way of ascertaining the existence of any fact because of the absence of relevant official records or that an occurrence that happened during the veteran's service was not reported to the appropriate authorities. The Tribunal notes that the Applicant has not identified particular injuries to his left knee and right foot for which there is no record and therefore it is unlikely that the lack of records is of importance to his case.

21. Dr D G Seaton was the Applicant's treating orthopaedic surgeon in 1981. In his report dated 24 July 1981 (T.9) he referred to the Applicant having had a locked medial meniscus playing football when he was aged 23 years. Dr Seaton opined that the Applicant has had a chronically degenerative and torn medial meniscus in the left knee with nearly two inches of quadriceps wasting in the left thigh. In a later report dated 9 December 1982 (T.14) Dr Seaton noted X-ray evidence of loose bodies in the Applicant's knee which he said "had probably been there since his service days".

22. The Applicant had no symptoms from his left knee injury until the early 1980s by which time a degenerative process was evident from x-rays and loose fragments in the joint were reported.

23. Dr G Carr, rheumatologist, examined the Applicant and reported on 23 October 1995 (T.23). On examination Dr Carr noted that the Applicant had Heberden's nodes scattered throughout the distal interphalangeal joints of the fingers and the bony bossing over the midtarsal regions of his feet. Dr Carr noted that the Applicant's major problem was mid-tarsal osteoarthritis in both feet. X-rays of both feet and both knees showed moderate degenerative osteoarthritis. Dr Carr noted that the Applicant carried heavy loads during his war service and had to kneel "recurrently" on his left knee. He noted that epidemiological studies suggested that increased loading of the joints related to premature osteoarthritis in the joint. He did not consider that the Applicant's activities on service were associated with sudden acute injury, but he suggested that the chronic loading over that period was a contributing factor to the premature development of osteoarthritis. However, he also noted the primary generalised osteoarthritis in the Applicant's hands which may be an important genetic factor, but he said that trauma was another factor which may have contributed. Although golfing was a factor with long walking over eighteen holes, nevertheless he considered that the most stressful period of the Applicant's life was probably during his service when he was involved in recurrent kneeling and rising from that position while carrying loads. He did not consider that the Applicant's history of having had gout or the football injury were particularly relevant to the development of osteoarthritis in his knee.

Consideration of Evidence and Findings of Fact

24. The Tribunal notes that the Applicant was aged 21 years when he was discharged from the Army, and therefore the football injury to which Dr Seaton referred probably occurred after his discharge from the Army. The Tribunal also notes the report of Dr Macken, Departmental Medical Officer, in respect of a claim for osteoarthritis of the left knee lodged by the Applicant in 1981 (T.10). Dr Macken did not examine the Applicant and compiled that report on the basis of the information before him, including the reports from Dr Seaton. The report of Dr Macken goes no further than to indicate that he understood from the information before him that the Applicant sustained a football injury to his left knee following discharge from the Army. Elsewhere in the evidence the Applicant referred to advice he had been given to seek medical treatment for the football injury through the rugby insurance. That too would suggest that the injury did not occur during war service. The Tribunal notes the Applicant's evidence that during the period when he was studying after his discharge from the Army and until 1956 he played football only occasionally as a reserve. That evidence does not preclude the probability of that knee injury having occurred then.

25. The Tribunal is reasonably satisfied on the evidence before it that for the three years of the Applicant's war service he was required to undertake continuous heavy physical activity involving his lower limbs. Moreover, there is no evidence of similar heavy physical activity having been undertaken by the Applicant during any other periods of his lifetime.

26. The hypothesis pursued by the Applicant in respect of osteoarthritis left knee and right foot was in respect of minor multiple traumata or micro trauma while on service. Taking into account the Statement of Principles Instrument No. 71 of 1995 which was amended by Instruments No 336 of 1995 and No. 352 of 1995 in respect of osteoarthrosis, the relevant clause is contained in para. 2(b)(vii) of Instrument No. 352 which requires -

"For osteoarthrosis of a weight bearing joint of the lower limb, being occupationally required to undertake continuous heavy physical activity for at least 10 years before the clinical onset of osteoarthrosis."

Application of Statement of Principles

27. The Applicant's war service was for only three years. Therefore, although in all other respects it would appear that he meets the criteria of the relevant Statement of Principles in respect of micro trauma, he was not subject to micro trauma for the requisite ten year period. Therefore, applying s 120A of the Act as the Tribunal is required to do, the hypothesis does not meet the requirements set out in the relevant Statement of Principle, and therefore no reasonable hypothesis has been raised pursuant to s 120(3) of the Act. Hence that part of the decision under review in respect of osteoarthritis of the left knee and right foot is affirmed.

Counsel for the Applicant: N/A

Solicitor for Applicant: Mr R Sherlock, Legal Aid Commission NSW

Counsel for the Respondent: N/A

Advocate for the Respondent: Mr J Prince, Department of Veterans' Affairs