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Administrative Appeals Tribunal of Australia |
Last Updated: 19 March 1999
ADMINISTRATIVE APPEALS TRIBUNAL )
) No W1998/96
VETERANS' APPEALS DIVISION )
Re PAUL ANTONIO GIBSON
Applicant
And REPATRIATION COMMISSION
Respondent
Tribunal Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr D Weerasooriya, Member
Date 12 February 1999
Place Perth
Decision In accordance with section 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal: 1. Sets aside the decision of the Veterans' Review Board dated 16 February 1998; and 2. In substitution therefor decides that the conditions of Multiple Osteochondromatosis, and Osteoarthritis of the right hip, suffered by the applicant are defence-caused within the meaning of s.70 of the Veterans' Entitlements Act 1986, with effect from 8 December 1995. 3. The matter is remitted to the respondent for assessment of disability pension payable to the applicant in respect of the abovementioned conditions.
...........(sgd S D Hotop) ...........
Senior Member
ADMINISTRATIVE APPEALS TRIBUNAL[rbracetop]
[rbracemid] No W1998/96
VETERANS' APPEALS DIVISION [rbracebot]
Re: PAUL ANTONIO GIBSON
Applicant
And: REPATRIATION COMMISSION
Respondent
Tribunal : Associate Professor S D Hotop, Senior Member
Date : 18 March 1999
Place : Perth
WHEREAS:
1. The Tribunal made a decision on 12 February 1999;
2. It has come to the Tribunal's attention that there is an obvious error in the text of that decision;
3. The Tribunal wishes to amend the decision pursuant to s.43AA of the Administrative Appeals Tribunal Act 1975;
NOW THE TRIBUNAL THEREFORE DIRECTS that the Registrar alter the text of the decision by deleting the comma appearing after the word "Osteochondromatosis" and the comma appearing after the word "hip" in the sixth line thereof.
..............................................
Senior Member
CATCHWORDS
VETERANS' AFFAIRS - disability pension - defence service - applicant had congenital condition of multiple osteochondromatosis - applicant enlisted in RAAF in January 1991 - congenital condition disclosed to medical officer at enlistment medical examination - condition asymptomatic until May 1991 when applicant suffered pain in knees after a 15 km battle run - applicant had ongoing problems thereafter - applicant also had pre-existing hip deformity - applicant's hip deformity not discovered by medical officers until July 1995 - applicant also developed osteoarthritis in hip - applicant discharged by reason of medical unfitness in November 1995 - whether applicant's conditions of multiple osteochondromatosis and osteoarthritis defence-caused - application of Statements of Principles - whether inability to obtain appropriate clinical management for multiple osteochondromatosis - whether multiple osteochondromatosis aggravated by defence service - whether osteoarthritis arose out of defence service
Veterans' Entitlements Act 1986 ss5D(1), 70(1) and (5), 120(4), 120B(3)
Statement of Principles concerning Multiple Osteochondromatosis (Instrument No. 2 of 1999)
Statement of Principles concerning Osteoarthrosis (Instrument No. 42 of 1988, as amended by Instrument No. 20 of 1999)
Re Ogston and Repatriation Commission (1988) 27 AAR 176
12 February 1999 Associate Professor S D Hotop, Senior Member Brigadier R D F Lloyd, Member Dr D Weerasooriya, Member
1. On 10 March 1998 Paul Antonio Gibson ("the applicant") lodged with the Tribunal an application for review of a decision of the Veterans' Review Board ("VRB") made on 16 February 1998. In that decision the VRB affirmed a decision of a delegate of the Repatriation Commission ("the respondent"), dated 1 April 1996, that the condition of diaphysial aclasis, the subject of a claim for disability pension lodged by the applicant with the Department of Veterans' Affairs ("DVA") on 8 March 1996, was not defence-caused within the meaning of s.70 of the Veterans' Entitlements Act 1986 ("VE Act").
2. At the hearing the applicant was represented by his mother, Mrs T Gatell Gamir, and the respondent was represented by Mr C Ponnuthurai, a DVA advocate. The Tribunal had before it the documents ("T documents") furnished by the respondent pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 and the following documentary exhibits tendered by the applicant:
* Facsimile letter from Papamihail, Barristers & Solicitors, to Dr J Fenollosa, dated 11 January 1999, and facsimile reply letter from Dr J Fenollosa, dated 17 January 1999 (A1);
* Medical report of Dr J Fenollosa, dated 5 May 1998 (A2);
* Medical report of Dr C Villas, May 1998 (A3);
* Medical report of Dr C Villas, May 1998 (A4);
* Medical report of Dr F Gomar Sancho, dated 21 May 1998 (A5);
* Medical report of Dr M Guijo, dated 24 March 1998 (A6);
* Medical report of Dr E T Owen, dated 25 September 1998 (A7);
* Medical report of Dr W Anell, dated 23 November 1998 (A8);
* Radiology report of Dr J Nash, dated 8 September 1998 (A9);
* Radiology report of Dr J Lagerberg, dated 18 August 1998 (A10);
* Radiology report of Dr D Sweeney, dated 5 March 1998 (A11);
* Medical report of Dr G Groom, dated 13 August 1996 (A12);
* Radiology report of Dr Drury, dated 25 September 1996 (A13);
* MRI report from Sir Charles Gairdner Hospital, dated 10 October 1996 (A14);
* Discharge Summary report of Dr K Eng, Hollywood Hospital, dated 19 October 1996 (A15);
* Histopathology report from Hollywood Hospital, dated 16 October 1996 (A16);
* Radiology report of Dr S Davis, dated 10 January 1997 (A17);
* Letter from Professor D Wood to Dr W Anell, dated 20 January 1997 (A18);
* Letter from Franconi & Associates, Barristers & Solicitors, to Professor D Wood, dated 2 July 1997, and Professor Wood's reply letter, dated 7 May 1998 (A19);
* Letter from Franconi & Associates, Barristers & Solicitors, to Professor D Wood, dated 30 June 1997, and Professor Wood's reply letter and report, dated 25 August 1997 (A20);
* Letter from Mr C Ponnuthurai to Professor D Wood, dated 8 April 1998, and Professor Wood's reply letter, dated 15 April 1998 (A21);
* Report of Flight Lieutenant K E Palmer, dated 22 May 1991 (A22);
* Document headed "Airfield Defence Guard - General" (A23);
* Comsuper Assessment Form in relation to the applicant, dated 2 November 1995 (A24);
* Document headed "Airfield Defence Guard - Basic Course Joining Instructions" and attachments (A25);
* Statement of Mr Paul A Gibson, dated 31 January 1999 (A26);
* Pages 1-5 of Applicant's Amended Statement of Facts and Contentions, filed on 25 January 1999 (A27);
* Statement of Anthony P Gibson, dated 1 January 1999 (A28);
* Statement of Teresa Gatell Gamir, dated 1 January 1999 (A29).
Oral evidence was given by the applicant and, on his behalf, by Mr A P Gibson, Mrs T Gatell Gamir, Mr C J Gibson, Dr E Owen and (by telephone) Dr J Fenollosa. No witnesses were called by the respondent.
The Factual Background
3. The relevant background facts, as found by the Tribunal on the basis of the T documents, are as follows.
4. The applicant was born on 11 March 1968.
5. The applicant served in the Royal Australian Air Force ("RAAF") from 29 January 1991 to 28 November 1995 and rendered "defence service", within the meaning of ss.5Q(1A) and 68(1) of the VE Act, during that period. By virtue of para (a) of the definition of "defence service" in s.68(1) of the VE Act, the relevant period of the applicant's service in the present case is from 29 January 1991 to the "terminating date" which is defined in that subsection to mean "the date on which the Military Compensation Act 1994 commences" - namely, 7 April 1994.
6. At his enlistment medical examination on 6 September 1990, the applicant's medical history was taken and it was recorded by the examining medical officer that the applicant had undergone operations for the removal of bony exostoses from his right wrist (at the age of 6 years), his left shoulder (at the age of 9 years) and his left tibia (at the age of 13 years). (T6, pp.13,14) Following his medical examination the examining medical officer recorded that the applicant had exostoses over the upper medial left tibia with no functional impairment and his recommendation regarding the applicant's medical fitness for service was "Class 1". (T6, p.15)
7. On 20 May 1991 Flt. Lt. K E Palmer, a medical officer at Amberley RAAF Base (where the applicant was then stationed), requested that x-rays be taken of the applicant's knees, tibiae, fibulae and lower femur. On 21 May 1991 Dr G K Wade reported the results of the x-rays as follows:
"There are multiple exostoses arising from the medial and lateral aspects of the distal shafts of femur, the proximal and distal tibiae and fibulae although the right ankle is less affected than the other regions. The exostoses arise in the metaphyseal regions and there is associated broadening of these areas due to failure of bone modelling. All the lesions appear benign in nature.
The condition is due to diaphyseal aclasia (multiple exostoses) which is a hereditary condition." (T6, p.17)
8. On 20 May 1991 Flt. Lt. Palmer referred the applicant to Dr B Martin, an orthopaedic surgeon. Flt. Lt. Palmer's referral note stated:
"Your assessment of this fellow's exostoses & suitability for mustering is required.
He is a trainee air defence guard who will be required to do an enormous amount of physical work (running ... etc) in his career."
The note then referred to the applicant's medical history of excision of exostoses from his wrist, shoulder and tibia and continued:
"He has a recurrence of his tibial exostosis & is getting pain running >15 km, especially when carrying a pack.
...
X rays have been arranged - these show multiple exostoses on his femurs and tibiae." (original emphasis) (T6, p.19)
9. On 3 June 1991 Dr Martin reported on the applicant as follows:
"Thank you very much for referring the above. As you know, he has multiple osteochondromatosis. The exostosis which is troubling him most, is the one arising from the upper inner aspect of the left tibia. There is a long one emanating from the lower medial aspect of the right femur, but he says that this does not trouble him. He would like to have the left tibial exostosis excised and I am to (sic) happy to do this for him. Please let me know if you would like us to proceed and make appropriate arrangements. He should remain in hospital for one night following this procedure." (T6, p.20)
10. On 6 June 1991 Flt. Lt. Palmer requested that further x-rays be taken of the applicant - namely, "long bones survey (excluding previous x-rays) - include (R) femur". The request form included a section headed "History" in which the following words were written:
"multiple exostoses
(R) femur - x-ray disappeared". (T6, p.18)
11. On 7 June 1991 Dr G K Wade reported the results of the x-rays as follows:
"Exostoses are visible affecting the medial aspect of the proximal shaft of the right humerus, the lateral aspect of the right humerus just above the deltoid insertion, and there is alteration in the trabecular pattern of the proximal half of the right humerus due to defected bone modelling.
Small exostoses are visible in the ulnar aspect of the distal shaft of the right radius and in the radial aspect of the distal shaft of the left ulna.
In the hands, there is a tiny exostosis arising from the radial aspect of the distal shaft of the left 4th metacarpal, and from the radial aspect of the base of the right little finger proximal phalanx. The 4th and 5th metacarpals are relatively short on each side.
In the feet, there are several small exostoses affecting the proximal phalanges of the toes, the right second metatarsal and right 5th metatarsal. The right 4th metatarsal is relatively short." (T6, p.18)
12. On 6 June 1991 Flt. Lt. Palmer referred the applicant to Dr Sharwood, an orthopaedic specialist. The referral note stated:
"This fellow has multiple exostoses affecting his femurs, tibiae & fibulae (diaphyseal aclasia). He is required to do an enormous amount of physical work both as a trainee & in his mustering after training. He has had 3 exostoses removed in the past - (R) wrist, (R) shoulder and (L) medial proximal tibia.
He has had a recurrence of his (L) tibial exostosis & is getting a lot of pain from running etc.
He recently saw Dr Martin who has proposed further excision of exostoses but unfortunately did not comment on his suitability for mustering.
Your 2nd opinion would be greatly appreciated." (original emphasis) (T6, p.21)
13. On 17 June 1991 Dr Sharwood reported:
"One month ago, this man was recorded as having pain in the legs thought to be due to multiple exostoses. He denies symptoms now. He describes 'pinching' pain in the leg but denies paraesthesia. Pain seems variable - developed pain a few times AFTER 15 KM runs. Indicates the pain around the top, anterior compartment.
...
I think that this man has problems to a greater extent than that which he is stating. I believe he is going to have ongoing problems which would make it inappropriate for him to be trained as an ADG.
I suggest change mustering or consider separation from service." (original emphasis) (T6, p.22)
14. On 5 July 1991 an Employment Standard Review ("ESR") of the applicant was subsequently undertaken by a medical board for the stated reason that it had been indicated that the applicant was medically unfit for the full duties of ADG mustering. On the ESR form the applicant's history was recorded as follows:
"AC Gibson was seen in MAY 91 with a painful left knee after running with full packs, webbing and rifle on a 15 km battles run at SFS in the 5th week of his airfield defence guard training. He had a past history of excision of 2 exostoses - from his left knee and high right wrist - as a teenager.
AC Gibson's knee was xrayed and following the finding of a large bony exostosis on his medial left tibia he had a long bone skeletal xray survey (reports enclosed). These xrays showed bony exostoses in multiple sites including his femurs, tibiae, fibulae, each humerus, right radius and left ulna. He has diaphyseal aclasia which is an hereditary condition.
It should be noted that AC Gibson is a keen sportsman and was able to complete all his 1RTU physical training without problems. He and other trainees ran 4-5 km 4 times per week in full webbing with rifles. ie., much more physical exercise than the usual 1RTU trainee. He was not troubled by his exostoses at all until required to do long runs with full combat gear. His general level of fitness is higher than that of the average RAAF members."
The medical board's concluding remarks were as follows:
"AC Gibson is keen to remain in the RAAF. He is particularly interested in remuster to RAAFPOL. The board feels that he would cope with the exercise and physical demands of the RAAFPOL mustering without problems. The board strongly recommends medical remuster." (T6,pp. 26,27)
15. On 2 December 1991 the applicant was posted to Wagga RAAF Base and remustered as a Clerk. He was thereafter treated by the Chief Medical Officer at the Base, Dr K McMahon, and by a local orthopaedic surgeon, Mr A Van Der Rijt.
16. On 8 April 1992 Mr Van Der Rijt reported to Dr McMahon on the applicant as follows:
"Thank you for asking me to see this man. He has recently been transferred to the area and this involved him undertaking more exercise than he is used to. He was undertaking a 5km run and following the run developed pain in the lateral aspect of his left ankle. This has resolved now that he has ceased activity but it is a requirement that he run on a regular basis for fitness assessment.
He is known to have a diaphyseal achalsis (sic) and has had prior surgery to excise bony exostoses.
The ankle is undeformed and he walks without a limp. He indicates pain over the antero-lateral aspect of the ankle. There is a prominence of the lateral border of the talus but this is symmetrical and does not represent a bony exostosis. He has a full range of movement in the ankle but has pain on stretching in full dorsiflexion and inversion. The lateral ligament is stable.
X-rays show a normal ankle joint but significant deformity in the distal tibia and fibula. There is a large tibial exostosis and this appears to be confluence with a fibular exostosis. It is not clear if there is a localised synostosis or if this is due to overlap on x-ray.
Clinically his pain is arising in the region of the lateral ligament rather than the exostoses. It is possible that the distal tibio-fibular joint is not functioning normally and this may be a factor in the ideology (sic) of his pain.
He certainly will not benefit from any surgical endeavour at present. There is no suggestion of malignant change within the exostosis. He should be undertaking regular stretching exercise, particularly on a wobble board and exercise bike to stretch and strengthen the lateral ligament and I think this alone will alleviate his pain to a degree that he can undertake his training without difficulty. I will see him again as required." (T6, p.31)
17. On 20 May 1993 Dr McMahon conducted a periodic medical examination of the applicant and reported that the applicant's current employment standard was valid and should not be reviewed. Dr McMahon recorded the applicant's history as follows:
"Diaphyseal Achalsis (sic). Doesn't cause disability. Due for operation to remove exostosis chest and (L) knee. ... Last operated on 11 years ago." (T6, p.91)
18. On 27 May 1993 Mr Van Der Rijt reported on the applicant as follows:
"Thank you for asking me to see this man with multiple exostoses or diaphyseal aclasis.
He is troubled by bony masses in the right and left chest wall and by a large exostosis arising from the left femur. There is no suggestion of recent significant alteration in size or malignant degeneration within his exostoses. These are sufficiently troublesome to require excision and this could be undertaken at one operative procedure. He will recover from his chest surgery very quickly but the thigh will take a little longer to recover, he will need to undertake specific quads strengthening and range of movement exercises and his knee should settle over a three to four month period.
...". (T6, p.43)
Mr Van Der Rijt subsequently reported that the exostoses had been excised from the applicant's left femur and from his left and right chest walls (9 June 1993), and that he was recovering satisfactorily from his surgery and his symptoms should resolve over the next 2-3 weeks (15 June 1993). (T6, pp.42, 44)
19. On 21 March 1994 Dr M Stebnyckyj, Diagnostic Radiologist, reported to Mr Van Der Rijt on the applicant as follows:
"Osteochondromata arises from the lateral and medial aspect of the proximal shaft of the right fibula. There is also some deformity of the lateral aspect of the distal shaft of the right tibia with a pseudo arthrosis between the fibula and the tibia.
The larger of the two exostoses in the proximal tibia protrude posteriorly into the calf. Unfortunately it is difficult to differentiate if it is the medial or lateral exostosis. This may cause soft tissue impingement. Depending upon further clinical management a CT may be useful to determine if there is muscle belly involvement or entrapment." (T6, p.53)
20. On 23 March 1994 Mr Van Der Rijt reported on the applicant as follows:
"Thank you for asking me to see this man again. He is troubled by an osteochondroma in the medial aspect of his right femur. This causes difficulty with him riding horses or if he knocks the area.
In addition, he has tightness in the calf which has been present for several months and he wonders if an osteochondroma could be contributing to those symptoms.
He has a palpable mass in the adductor region of the thigh and the x-ray confirms an osteochondroma is present. There is an osteochondroma over the postero medial flare of the proximal tibial metaphysis and this does protrude into the calf muscle, particularly the medial gastrocnemius to a limited extent. I have arranged for him to have further x-rays to exclude the presence of a large osteochondroma within the calf.
He requires excision of the femoral osteochondroma and any significant tibial osteochondroma and he will come into Calvary for that surgery." (T6, p.54)
On 17 May 1994 Mr Van Der Rijt reported that he had excised both the femoral and the tibial exostoses and that he expected the applicant to regain "relatively normal function" over the next 3-4 weeks. (T6, p.57)
21. On 20 May 1994 Mr Van Der Rijt reported on the applicant as follows:
"This man was reviewed as he had developed acute severe pain in the medial aspect of his tibia. He also has paraesthesia in the antero lateral aspect of the knee and shin.
His surgical wounds appear unremarkable. There is no evidence of avascular lesion. His calf and anterior compartment muscles are soft without tenderness and he has normal circulation in the foot. The pes tendons were retracted with the surgical approach and part of the pes insertion was reflected to enable ressection of the bony lesion. He feels that the medial hamstrings are involved but clinically these are intact today.
I have suggested he continue with restricted function and should use his crutches. I would expect his acute pain to settle and he will be reviewed in ten days." (T6, p.58)
22. On 16 August 1994 Mr Van Der Rijt reported on the applicant as follows:
"This man's symptoms have resolved apart from the annoying presence of altered sensation over the lateral aspect of his shin and anterior calf. He has recovered full movement in the knee and limb and does not have any pain or functional restriction. He finds the altered sensation annoying rather than troublesome.
His wounds have healed satisfactorily. He has a prominence of the medial aspect of the tibia, this is a diffuse generalised bulge of firm tissue rather than arising in association with a discrete prominence or osteochondroma. He has reduced sensation over the lateral aspect of the shin and anterior calf. He does not have a Tinel's sign or pain of neuroma.
It is still possible that some or all of the area of paraesthesia will settle as his surgery was undertaken recently. The extent of the area of paraesthesia is unusual and must arise in association with an anomalous branch from the saphenous nerve. Even if the paraesthetic area does not recede there will not be serious disability in association. He remains fit to continue with normal training and normal lifestyle activities. I will see him again if required." (T6, p.60)
23. On 18 July 1995 Dr McMahon again referred the applicant to Mr Van Der Rijt. Dr McMahon's referral note stated:
"Thank you for seeing this member with constant (L) knee aches with cold weather and history of exostosis for which you have been operating.
I would appreciate your advice on the current severe ache re management and ? fitness for military service.
...
P.S. Ache last four weeks in (R) hip.
See X Rays !!!
I think that this member might be becoming medically unfit to serve. For your comments please." (T6, p.76)
24. On 25 July 1995 Dr Stebnyckyj, Diagnostic Radiologist, reported to Dr McMahon on the applicant as follows:
"RIGHT HIP
Date of Examination: 25.7.95
There is reasonable preservation of the right hip joint space. Early osteoarthritic changes are present. The contour of the right femoral head is within normal limits. However there is gross abnormality of the right neck and intertrochanteric region of the femur with a large bony exostosis arising from the anterior aspect of the neck with multiple smaller bony exostoses. There is considerable widening of the neck and intertrochanter region of the right neck of femur. No fracture or other focal bone pathology is identified about the right hip joint. Bone exostoses arise from the intertrochanteric region of the left neck of femur." (T6, p.73)
25. On 4 August 1995 Mr Van Der Rijt reported to Dr McMahon on the applicant as follows:
"Thank you for asking me to see Mr Gibson again. He is concerned by symptoms persisting in his left knee and by occasional symptoms in the right knee. He also has symptoms arising in the right hip and occasionally a trace of symptoms in the left hip.
He describes varying ache occurring in the medial aspect of the left knee. This occurs postero medially. He feels there is something inside "pushing out". The knee can ache for up to twenty four hours. Certain activities tend to increase the pain. He finds it difficult to squat.
He also develops a shock or ache or pinch in the right knee.
Approximately four weeks ago he slipped and fell and heard something crack in the right hip and that has continued to bother him. It can be painful if he walks, he describes a pinching present in the backside.
At present he is engaged in clerical duties. He used to be an airfield defence guard but subsequent to his problems has undertaken clerical work.
Examination reveals that he walks without a limp and his scars appear satisfactory. His left knee has full extension and will flex so that the heel reaches within four inches of the buttock. He finds this produces pain in the popliteal fossa. I cannot detect any mass or abnormality in the popliteal fossa. He does not have any joint line tenderness. Examination of the right knee is unremarkable.
Examination of the right hip reveals there is full flexion and he has fifty percent of the expected range of internal and external rotation. This produces an ache and he does have a palpable click when the hip is rotated.
X-rays of the pelvis show extensive osteochondroma over the posterior aspect of the right femoral neck. There is a very large osteochondroma which is present within the femoral neck and is extrinsic to it. There is long standing deformity in the neck with alteration in the usual shape. It is of interest that no osteochondroma is evident in the left femoral neck but the neck and proximal femur do not have the usual shape.
X-rays of the left knee show a lytic area within the proximal metaphysis. This appears chronic and similar to that present on prior x-rays. There is no abnormality within the left knee joint.
This patient has extensive skeletal osteochondroma. There is a very large lesion present in the right femoral neck and his current symptoms are consistent with the radiographic appearance. This is clearly long standing.
I would not recommend any operative intervention to the right neck of femur. The mass is very large and does involve the femoral neck. Excision of the mass would constitute a significant surgical invasion and it would involve invasion of the integrity of the femoral neck with a risk of significant complications. Surgery would only be required if the patient had substantial restriction from his symptoms.
The presence of the multiple lesions and in particular, the lesion in the femoral neck make him basically unfit to continue with hard physical training or work that involves a high level of fitness and training. I would therefore feel that he is not really capable of fulfilling the expected fitness requirements of the military service.
There is a risk of malignant degeneration occurring in the multiple osteochondromas. The usual signs of malignant degeneration are of a pain of unexplained origin or of increasing size in the masses. I have discussed that with the patient. At the time of the consultation I felt there was no need to proceed with further investigations but upon reflection I feel it is probable (sic) worthwhile performing a CT scan of the lesion within the femoral neck as it is very large and it does invade the normal contour of the femoral neck. I would recommend a CT scan be undertaken, perhaps only as a baseline investigation and I will happily see the patient again if you wish." (T6, pp.78-89)
26. On 29 August 1995 Mr Van Der Rijt made a brief follow-up report to Dr McMahon as follows:
This man's CT scan shows the anticipated features in his right femoral neck osteochondroma. There is no evidence of malignant change.
Further the CT scan confirms that the lesion is basically non resectable and its presence really does make him unfit to continue in the Military." (T6, p.75)
27. On 5 September 1995 the Director-General, Air Force Health Services, recommended that the applicant be regarded as medically unfit for further service. (T6, p.83)
28. On 28 November 1995 - the date of the applicant's discharge - a medical officer, Dr T P Knight, made the following handwritten comments on the Discharge Health Statement form:
"Has well documented case of Multiple Exostoses arising from long bones of lower leg. Was admitted into service with knowledge of this condition. New growths have occurred whilst in service. This condition was asymptomatic (from the point of view of pain) before commencing service (although previous excisions). His most significant lesion (R hip - at present inoperable) has been known of for 6 months (obviously present longer - unknown time). He has received discharge on medical grounds for this complaint and this is documented.
Member feels that the acceleration in deterioration of his condition (knees and hips) was caused by ADG training with excessive physical demands that this entailed.
Possibly, this is true ie that complications of the condition were caused and/or accelerated by the demands of his service." (T6, p.96)
(The Tribunal notes that the first word of the last sentence in Dr Knight's comments was originally written as "Probably", but that the word "Probably" was subsequently struck out and the word "Possibly" was printed above it. This amendment was initialled in the margin.)
29. On 8 March 1996 the applicant lodged with the DVA a Claim for Disability Pension and Medical Treatment. In the Claim form the applicant referred to the relevant disability as "Diaphysial Aclasis" and stated;
"Airfield Defence Guard Trainee course was too intensive
Aggravated the condition". (T7, pp.150, 151)
30. On 1 April 1996 Dr C Yin, a DVA medical officer, made a brief handwritten report which summarised the applicant's condition of multiple exostoses and concluded:
"His claim on the basis of aggravation cannot be accepted, as his condition would have occurred whether he was in service or in civilian life. This is part of the natural history of the disease and it is unfortunate that the exostoses have occurred in the knees & especially the hip joint which is causing the exmember pain & difficulty in walking. The claim cannot be accepted." (T7, p.155)
31. On 1 April 1996 a delegate of the respondent made the following decision in relation to the applicant's claim:
"Your claim for diaphysial aclasis has been refused".
The delegate's reasons for that decision were stated as follows:
"In your claim you have contended that training requirements in the RAAF aggravated this condition which was present before enlistment.
After examination of your records, a departmental medical officer has advised that the claim on the basis of aggravation cannot be accepted, as the condition would have occurred irrespective of service or civilian life and the progress of the disease is part of the natural history of this condition. I have noted an RAAF medical report which also indicates that the condition is likely to be gradually progressive. There is another medical report raising the possibility of a connection between your service activities and the complications of the condition, however, I find that this does not establish the probable causal connection, required by the legislation, between your defence service and the claimed disability.
The claim in respect of diaphysial aclasis is therefore refused." (original emphasis) (T7, pp.156, 157)
32. On 1 July 1996 the applicant lodged with the VRB an application for review of the delegate's decision of 1 April 1996.
33. On 10 September 1996 Mr M Alexeef, an orthopaedic surgeon, reported to Dr W Anell, the applicant's treating general practitioner, as follows:
"Thank you for asking me to see this 28 year old man with Diaphyseal Aclasis who presents for a second opinion in regard to his (R) hip. I note the past history of previous bilateral knee surgery presumably for excision of exostoses and his discharge from the RAAF on medical grounds.
He apparently slipped a year ago onto his (R) hip and has been having trouble with pain ever since.
I note that he has seen Professor Wood at SCGH who has organised a bone scan for him and may require an MRI depending on the bone scan results.
Clinically, his leg lengths were equal. He walked with an antalgic limp. Range of motion of the (R) hip was diminished with the impression of bony impingement.
Xrays reveal deformity of the proximal (R) femur and a CT scan confirms a large exostosis arising from the intertrochanteric region and extending to the hip capsule.
His symptoms are related to his (R) femoral exostosis and although it is appropriate to exclude abnormal activity in relation to his exostosis with technitium scan, it is far more likely that he has mechanical impingement simply from the size of the lesion about the (R) hip." (T7, p.163)
34. A medical report on the applicant by Dr F J Martin Espinosa of Valencia, Spain, dated 15 December 1996, states:
"Mr AC (sic) Gibson has a hereditary bone disease called multiple osteochondromatosis. A salient feature of this illness is an anomaly of skeletal development which causes the formation of multiple exostosis as well as disturbances in bone growth.
In many cases the illness produces no symptoms, whereas in other patients the deformities and/or mechanical problems are the main characteristics. Given the benign character of these osteochondromas and the fact that they rarely degenerate (1-2% in most of the series), surgery is indicated according to the level of disability caused by the skeletal deformities and, in such cases, by the mechanical symptoms determined by the region affected.
Obviously, in certain bone regions the possibility that exostoses will cause symptoms due to compression of nerves, muscles and/or blood vessels is greater. In such cases an important trigger in causing symptoms is physical exercising (pain, paresthesias, functional disabilities, vascular conditions, etc).
Mr AC (sic) Gibson underwent three operations in his childhood:
At the age of six years an exostosis of the right wrist was removed, when he was seven scraping was applied to an exostosis in his right shoulder and at thirteen scraping of an exostosis on the right tibia was performed.
The patient does not require any other surgery until twelve years later when, in 1993, exostoses in the left femur and the ribs need to be removed. In 1994 he requires further surgery to remove exostoses in right femur and right tibia. In 1995 a ganglion is removed for anatomopathological analysis, and in 1996 he requires more surgery to remove exostoses on right hip, as well as for ganglion biopsy of the same area.
The multiple surgical interventions carried out since 1993 coincide with the need to do intense physical activity (running up to 15 km), given his professional career in the Armed Forces. At the same time most of the surgery was related to the removal of exostoses on long bones in the right leg." (T7, pp.164-165)
A follow-up report by Dr Martin Espinosa states:
From the patient's medical history we can establish why he required surgery on several occasions during his childhood, coinciding with the significant physical characteristics of his age at the time. Also, further exacerbation of his symptoms is observed since 1993, coinciding with the need to do intense physical activity (running up to 15 km), given his professional career in the Armed Forces. Most of the operations were for exostoses on long bones of the right leg.
In my opinion, this worsened the patient's previous condition, and he had to undergo surgery as a result of the high level of physical activity that he carried out as a member of the Armed Forces. On signing up, as well as prior to his later posting with the Armed Forces, the patient's illness should have been diagnosed. Had this been the case he would have performed duties that would not have exacerbated the symptoms of his illness and therefore, if not all, at least most of the operations he had to undergo since 1993 would have been avoided." (T7, p.177)
35. Professor D J Wood, Head of the Orthopaedic Unit, Department of Surgery, The University of Western Australia, examined the applicant on 1 August 1997 and prepared a report, dated 25 August 1997, for the applicant's solicitors. Professor Wood's report states as follows:
"HISTORY
This patient, known to have diaphysial aclasia since childhood, had exostoses removed from his right wrist, right shoulder, right tibia, left femur and right ribs from the ages of six to twenty-five respectively. He was first referred to me in August 1996 with a painful right hip associated with exostoses arising from the right proximal femur. Staging studies were arranged including a technetium bone scan to gauge the level of activity of the lesion and an MRI to estimate the cartilage cap thickness and taken together these investigations indicate that the likelihood of malignancy in the cartilaginous component of these exostosis was remote and it was concluded that his pain was mechanical in nature related to impingement of the proximal femoral exostosis against the rim of the acetabulum and adjacent soft tissues. On this basis he was advised that it would be reasonable to remove the exostoses from his right proximal femur. There were circumferential lesions. However, to remove all of these may have rendered the proximal femur avascular and it was elected to remove the posterior lesions which were the most troublesome and caused discomfort when he was sitting.
On 15 October 1996 Mr Gibson underwent excision of proximal femoral exostoses with an uncomplicated post-operative recovery. He was discharged from hospital on 19 October with Panadeine Forte medication. He was subsequently reviewed in the Outpatient Department at Sir Charles Gairdner Hospital when he complained of persistent pain in the right groin.
Further investigations were made at that time again demonstrating the collection of fluid or ganglion around the proximal femur and the know residual anterior and superior lesions.
He has, on direct questioning today, benefited from surgery in that he has less discomfort sitting but has had some pain recently associated with cold weather and gets an occasional click anteriorly in his right groin. He is on no pain medication at present.
Pain
He associates the onset of his pain with his basic training course on admission to the Airforce in January 1991 and he stated that since then he has had persistent pain.
Family History
His father suffers from diaphysial aclasia.
EXAMINATION
He walks with a slightly asymmetrical gait although this is not truly antalgic. He has a full and free range of motion of his right hip with the exception of external rotation of the hip in flexion which causes some anterior capsular discomfort. Specifically he has a range of flexion to 120º, no fixed flexion deformity, abduction to 60º, adduction to 50º, and an arc of rotation of 80º. He is able to toe and heel walk without discomfort. He is able to squat and rise from a squatting position unassisted. He has a good range of movement of his lumbar spine.
RADIOGRAPHS
The most recent MRI taken of his proximal femur demonstrates the residual anterior sessile osteochondroma and a 9 cm collection of fluid.
His previous x-rays demonstrate his multiple exostoses.
...
The problems associated with diaphysial aclasia include more mechanical problems and these may be exacerbated by physical activity, more rarely malignant transformation of the cartilage cap may occur. The rate of malignant transformation is disputed but is certainly more common in those patients with multiple exostosis as opposed to a single solitary exostoses and those lesions closer to the axial skeleton are more prone to malignant transformation than peripheral lesions.
Most frequently this malignant transformation is into a low grade chondrosarcoma with late metastatic potential.
...
Specifically in relation to his right hip the symptoms may be related to persistent capsular irritation although there is no specific capsular oedema on the anterior aspect of his hip joint and I would be reluctant to recommend an anterior capsulotomy so soon after a posterior capsulotomy as this may adversely affect the blood supply to his proximal femur. It is feasible that the physical exercise program in 1991 exacerbated mechanical symptoms associated with proximal femoral diaphysial aclasia. However, symptoms at that time were also experienced around the knee and it may be more appropriate for his medical practitioners in the armed forces to comment on the degree of associated hip discomfort in relation to exercise at that time.
...". (T7, pp.175-176)
36. On 19 September 1997 Mr R McWilliam, an orthopaedic surgeon, reported on the applicant as follows:
"I saw this gentleman as arranged on the 11.9.97 and I note that he enlisted in the RAAF in 1991 and was allotted into the mustering branch of the Air Defence Guard, a role which demands extremely heavy training equivalent to Army Infantry training. This was followed by a series of battle training runs carrying full pack and rifle and most specifically a 15 kilometre battle run. It was during this latter run that he first experienced acute leg pain and his left knee became swollen and tender followed in several days with similar symptoms in his right knee. Aches and pains set in from that point onwards. His duties from then on were of a more restricted nature and he did clerk duties until discharge in December 1995. I note that whilst doing duties in the Snowy Mountains he slipped on the right hip and at that time an exostosis was noted in the region of the right hip. He had surgery to the right hip last October performed by Professor Wood at the Hollywood Hospital. He has found since this was removed that he sits better, but he is experiencing, if anything, more significant pain in the front of the hip, and he understands there is a further exostosis present.
He has a well documented case of multiple exostosis which was known prior to airforce service. He had exostoses removed prior to entry into the airforce. New growths have occurred whilst in service and he was asymptomatic on entry into service.
The crux at issue in this young ex-airman's possible compensation case is could the heavy Air Defence Guard training regime have accelerated the deterioration of his condition.
In my view, this would not be the case as these osteochondromata occur not in the joint but adjacent to the joint surface and the effect on the tissues is on the muscular tissues rather than on the joint surfaces. The effect of a heavy training regime would therefore only be temporary and would normally only be expected to last perhaps 6 weeks after an episode." (T7, p.218)
37. On 16 February 1998 the VRB made a decision affirming the decision of the delegate of the respondent, dated 1 April 1996, that the condition of diaphysial aclasis was not defence-caused.
The Applicant's Evidence
38. The applicant told the Tribunal that he was first diagnosed with the condition of multiple exostoses at the age of 6 years when he was suffering discomfort in his right wrist. He underwent an operation at that time to remove an exostosis from his wrist and he subsequently underwent two further operations, at the ages of 12 and 13 years respectively, to remove exostoses from his shoulder and from his left leg below the knee. He said that, apart from those operations, he did not experience any symptoms or problems in respect of his condition, prior to his enlistment with the RAAF on 29 January 1991, although he led "a very active life ... and played a lot of sports". (Transcript, p.29)
39. The applicant said that, prior to his enlistment, he had "the usual recruiting medical examinations" at which he disclosed his condition of multiple exostoses and his earlier operations for the removal of exostoses. He said that no comment was made to him by the examining medical officer about his condition; nor was he subjected to any additional tests or x-rays in relation to that condition.
40. Upon his enlistment the applicant was posted to 1 RTU (No 1 Recruit Training Unit), RAAF Base, Edinburgh (South Australia) where he commenced his recruit training in early February, 1991. He described his recruit training as a 10-week course, comprising mainly drill, a lot of physical exercise and a lot of theory. He said that the physical exercise included a weekly 2.4 kilometre run, rope climbing and one 8 kilometre battle run carrying bags and stretchers. He added that he completed the recruit training course without any problems apart from lower back pain when performing "sit-ups".
41. In April 1991, after completing his recruit training, the applicant was posted to the Security and Fire School (SFS), RAAF Base, Amberley (Queensland) to undertake the ADG (Airfield Defence Guard) Basic Course - a 13-week course which is described in the RAAF document entitled "Airfield Defence Guard - General" (Exh A23, p.2) as "physically very demanding". The applicant described the course to the Tribunal as follows:
"It was a very, very intensive course. It was infantry training. More or less we had an idea of what we were getting ourselves into, but not up to the extent that - what we went- what we went through. From day one it was running everywhere. Everywhere we went we had to carry our weapon, rifles. Field exercises nearly every day including contact drills, which would be performed for about 500 metres at a time. It ran for 2 or 3 hours. We had theory classes which were a blessing. Weapons handling, a lot of running, one of the requirements for the physical - for the physical training course itself, run by the Physical Training Instructors, was to pass the 5 kilometre run. That was just a run in itself with no webbings or anything. Also we performed I think two 8 kilometre battle runs. The 15 kilometre battle run, obstacle course, oh, that was just about twice a week." (Transcript, p.31)
He added that the 15 kilometre battle run had to be completed within 2 hours carrying full combat gear weighing 25-30 kilograms.
42. The applicant told the Tribunal that after he had completed the 15 kilometre battle run (during the 5th week of the course) he "started having big problems". (Transcript, p.31) He said that his knees were swollen and sore. He did not seek medical treatment at first because he expected the swelling to subside but, after 2-3 days when he was still in "a lot of pain" and "wasn't getting any sleep" (Transcript, p.32), he consulted Flight Lieutenant Palmer in the medical section on 20 May 1991. He said that he reported his symptoms to her and she arranged for x-rays to be taken of his knees. In para 12 of his written statement dated 31 January 1999 (Exh A26), the applicant stated that he was then placed on restricted duties - no running over 3 kilometres; no contact drills.
43. The applicant said that he saw the medical officer again when the x-rays arrived and she told him that he had multiple exostoses and referred him to an orthopaedic specialist. He added that he subsequently saw 2 or 3 orthopaedic surgeons one of whom was familiar with the requirements of ADG training and told him that if he continued in the ADG mustering he "would end up in a wheelchair". (Transcript, p.38)
44. The applicant told the Tribunal that he wished to remain in the Defence Force and he requested a remuster in the RAAF police (RAAFPOL). He said that he put in the paperwork for a remuster and all the papers, including comments from the medical officers and his commanding officer, were sent to Canberra for a decision. In the meantime, he was taken off the ADG course and placed on "pool flight" - that is, a holding position - pending a decision on his remustering.
45. The applicant told the Tribunal that in late November 1991 he injured his left ankle when he slipped on the stairs in the building block where he was living on the Base. He said that the building was dilapidated and that the stairs were cracked. He added that he continued to suffer pain in his left ankle for about 3 weeks.
46. On 2 December 1991 the applicant was posted to RAAF Base, Wagga Wagga (New South Wales) and was remustered as Clerk, Financial Accounting (CLKFA). He told the Tribunal that he was still experiencing pain in his left leg and left ankle and he reported this to the medical section. He said that the medical officer, Dr McMahon, referred him to Dr Van Der Rijt, an orthopaedic surgeon.
47. The applicant told the Tribunal that when he was first posted to Wagga Wagga his pain and discomfort had "more or less stabilised", although he was still taking painkillers. He subsequently experienced, however, an exacerbation of his pain symptoms, especially in his knees, during the very cold winters in Wagga Wagga. He said that each year after his posting in Wagga Wagga he requested a posting to a warmer climate, but all his requests were denied. He also said that in 1994 he requested a discharge from the service on medical grounds but this request was also denied.
48. The applicant said that his posting in Wagga Wagga was much less physically demanding than his ADG training at Amberley. He said that in his first year at Wagga Wagga (1992) he was able to avoid the normal obligatory physical training - namely, a 2.4 kilometre run in under 12-minutes, 35 "sit-ups" and 10 "chin-ups", once per year - but that he completed those annual training requirements in subsequent years with the aid of painkillers. He added that, ever since his recruit training, "sit-ups" had always given him problems with low back pain. He said that he also tried to keep up his general fitness level by regular walking and working out at the gym and playing sports such as volleyball or basketball once a week or once a fortnight.
49. The applicant told the Tribunal that, when he was referred to Dr Van Der Rijt by Dr McMahon in relation to his complaint of constant left knee pain, Dr Van Der Rijt's advice was to have the exostosis removed from his left femur. Such an operation was performed on him by Dr Van Der Rijt in June 1993. Subsequently, following complaints by the applicant of pain in his right calf, Dr Van Der Rijt performed a further operation, in May 1994, to remove exostoses from the applicant's right femur and tibia. The applicant told the Tribunal that neither of those operations alleviated his pain symptoms.
50. The applicant next referred to an incident in June 1995 while he was on duty in the Snowy Mountains area. He said that when he stepped out of the RAAF vehicle he slipped on the icy road and landed on his right hip. He added that he heard a "crack" and his hip was very painful. He subsequently reported the matter to Dr McMahon who again referred him to Dr Van Der Rijt. The applicant said that Dr Van Der Rijt then ordered x-rays of the hip area and subsequently told him that he had "another osteochondroma coming out of the femur". He also said that he was then told by the medical section that "that was basically it". (Transcript, p.59) The applicant was eventually discharged from the RAAF, by reason of his being "medically unfit for further service" (MUFS), on 28 November 1995.
51. The applicant told the Tribunal that, since his discharge from the RAAF, he consulted Professor Wood, an orthopaedic surgeon, about his ongoing pain symptoms in his right hip and Professor Wood's suggestion was to operate to remove the exostoses from his right femur. That operation was performed by Professor Wood in October 1996 but, the applicant said, the pain persisted and he had to continually take painkillers. He said that in 1998 he decided to go to Spain (where he had lived with his mother from 1981 to 1988) in order to consult medical specialists about his condition. He said that he consulted Dr Fenollosa in Spain and was informed for the first time that he had a deformity in the right femur and osteoarthritis in the right hip. He added that, while in Spain, he underwent an operation performed by Dr Villas which helped to alleviate his pain symptoms.
The Evidence of Lay Witnesses
52. Anthony Percy Gibson, the applicant's father, gave evidence. He told the Tribunal that the applicant left Spain and came to live with him in Perth in late 1988 and stayed with him for 2 years before joining the RAAF. The applicant, he said, was "a strapping ... super-athletic kid with a lot of enthusiasm" before joining the RAAF and that when he left the RAAF "he was a wreck". (Transcript, pp.90, 93) Mr Gibson also told the Tribunal that he suffers from the same condition as the applicant, "but in a very, very small amount". (Transcript, p.91) He said that he had played a lot of professional sport and had never had any problems maintaining a high level of fitness, nor had he experienced any symptoms or undergone any surgical procedures in relation to that condition.
53. Teresa Gatell Gamir, the applicant's mother, gave evidence. She told the Tribunal that the applicant was born in London and lived with her in England until he was 13 years of age when they moved to Spain. She told the Tribunal about 3 operations that had been performed on the applicant in his youth at Great Ormond Street Children's Hospital in London for the removal of "minor bony lumps" from his right wrist, left scapula and left tibia. She said that the specialist at the Hospital explained to her that the applicant's condition was hereditary, that it was not serious and that if the lumps recurred and bothered him they could simply be "scraped" off in hospital and he could continue to lead a normal life. She said that the specialist also told her that a recurrence of the condition was "very unusual" after the bones stopped growing at about the age of 16 years. Mrs Gatell Gamir also told the Tribunal that while living with her until 1988 the applicant led a normal, active life and never had any problems. She said, however, that, while he was in the RAAF, he visited her in Spain over the Christmas period in 1993 and "he was totally ruined ... completely changed". (Transcript, p.96) She said that he visited her in Spain again at Christmas, 1994 and she then decided to move to Australia to be with him.
54. Christopher John Gibson, the applicant's younger brother, also gave evidence. He told the Tribunal that he will be 27 years of age in March 1999, is in perfect health, plays soccer and, as far as he is aware, does not suffer from the condition which both his father and brother have.
The Evidence of Dr E Owen
55. Dr E Owen, a rheumatologist, confirmed that he had examined the applicant and prepared a report, dated 25 September 1998 (Exh A7). That report, after reciting the applicant's medical history, states as follows:
"His gait is not normal and he has a short right hip extension action. Trendelenburg tests are normal but I made his leg length unequal with the right being 89 cm. and the left 90 cm. He has some surgical scars in the vicinity of the right hip and scars visible on the knees and the right wrist. There are also scars over his chest wall where he has had exostoses removed and the left scapular area. He had some minor features of joint hypermobility in the upper extremities with hyperextension of the right elbow in particular, and the 4th and 5th metacarpals on both sides. When walking without shoes there is definitely midfoot collapse. With the exception of the right wrist where there was a minor developmental deformity, other joints in the upper extremities were normal. Though in the right wrist he had reasonable abduction it was not as good as in the left and he was very guarded as he was fearful of a sharp stabbing pain mentioned in his history. Flexion was to approximately 100º in both right and left hips, but external rotation in the right hip was limited to 15º and internal rotation to 5º. One could palpate a hard tumour over the right medial femoral condyle of about 1cm in diameter but other than that his knees were clinically normal.
He had an enormous collection of x-rays which I viewed and there is certainly no doubt about the congenital deformity in the right hip and the numerous exostoses that one can see. The combination of CT scans and MR scans demonstrate that he has got secondary osteoarthritis of the right hip; the knee films I saw were 1995 but the CT scan of the knees of August '98 seemed reasonable.
With the poor response to analgesics and his upper GE symptoms from medications there is little one can offer. He has not as yet tried the Voltaren as he feels his medications are costing him too much. The chances of an intra-articular steroid injection of the right hip giving any prolonged relief would be very slight. Because of the anatomical variations I would be very hesitant to consider yttrium synovectomy of the right hip for fear of a leak and making the situation worse. I think the only way we are going to improve the right hip is to consider a total hip replacement but he would have to have one made to his x-rays because of the abnormal shape of the right femoral neck and upper femur. ...".
56. Dr Owen was referred to the Statement of Principles ("SoP") concerning Multiple Osteochondromatosis determined by the Repatriation Medical Authority ("RMA"), dated 14 January 1999 (Instrument No. 2 of 1999). He confirmed that the applicant has the condition, multiple osteochondromatosis, as defined in para 2(b) of that SoP. Dr Owen elaborated that the applicant has an abnormal-shaped upper femur, femoral neck and hip because the growth centre was disturbed by the presence of an osteochondroma. Dr Owen also confirmed that there is a malalignment or dysplasia in the applicant's hip. He added that "any dysplastic hip is prone to secondary osteoarthritis because the forces around it or on it or in it are grossly abnormal because it's malformed". (Transcript pp. 77-78) Dr Owen agreed that, because the applicant's right hip is abnormal, it is "extremely likely" that that hip joint was "irritated" by the kind of running and excessive weight-bearing activities that the applicant performed when in the RAAF. (Transcript, p.71) He later said that there is "a high probability" that such "increased physical weight-bearing activities would aggravate an abnormal joint" (Transcript, p.78) and would aggravate the applicant's condition.
57. Dr Owen was also referred to the SoP concerning Osteoarthrosis determined by the RMA, dated 29 June 1988 (Instrument No. 42 of 1998), and agreed that the applicant has osteoarthrosis (as defined in that SoP) in the right hip. He added that the applicant has "clinical osteoarthritis". (Transcript, pp. 80-81)
58. Asked for his opinion on "proper clinical management" of the applicant's condition, Dr Owen responded:
"In this particular case we've got to look at it in several ways. One is, we have not yet available something that will stimulate the growth of the cells in the cartilage called chondrocytes, and that's the only way you're going to try and overcome the abnormal hip. We can treat it by other modalities such as medications which will settle down the chronic non-specific irritated soft lining, and there are, on other occasions injection techniques." (Transcript, p.77)
59. As regard the applicant's knees, Dr Owen said that there was no evidence of osteoarthritis or osteoarthrosis, although there were "some abnormal features". He elaborated that the CT report on the applicant's knees states that "there is wear on the lateral surface of the left patella and ... a narrowing of that joint" and that he believed that the applicant has "mechanical problems ... of the degenerative type". Dr Owen said that that condition had not been caused or developed with hyper mobility of the joint; rather, the applicant "would have been born with it". (Transcript, p.81)
60. Dr Owen told the Tribunal that the appropriate way to treat multiple osteochondromatosis is to cut the bony tumours out. He agreed that, when exostoses were discovered in the applicant during his period of service in the RAAF, the appropriate treatment was to remove them.
61. Dr Owen expressed surprise that the applicant had been accepted into the RAAF, having regard to his pre-existing abnormal hip joint. He said that, with the applicant's history of surgery to remove bony outgrowths, to accept him without first having his hips x-rayed carried "a high risk rate". (Transcript, pp. 72, 75) Dr Owen agreed that, had a full skeletal survey been conducted at the time of the applicant's enlistment and had it revealed a deformity of the femoral neck, his opinion would have been that the applicant should not have been allowed to remain in the defence service or to undergo the training programme.
Evidence of Dr J Fenollosa
62. Dr J Fenollosa gave evidence by telephone from Valencia, Spain. He told the Tribunal that he is an orthopaedic surgeon and is Head of the Department of Orthopaedic Surgery at the Medical School of the University of Valencia, Spain.
63. The following report on the applicant by Dr Fenollosa, dated 5 May 1998, had been tendered in evidence (Exh A2):
"MR PABLO GIBSON GATELL, of 30 years of age, attended my surgery on 4 May 1998, complaining of constant pain in his right hip which increased on exertion. He referred a medical history of several surgical interventions to excise cartilaginous exostoses in various bones of the body. The last one of such operations, precisely on his right hip, had been performed in Australia. He stated that pain had began (sic) after rigorous physical training.
The clinical examination showed pain when pressure was applied to the right retro trochanterean region, where a surgical scar was observed, but the painful area did not coincide with the scar. Also noticeable were scars in knee and wrist. A hard mass was felt on the internal aspect of the knee, in the area of the condyle of femur. This measured 1 cm in diameter. Ankle and knee mobility were within the normal range, equal to the other limb, but external rotation of the hip was limited and painful; whereas flexion, extension, abduction, adduction and internal rotation of the same were normal. No dysmetria was observed. AP pelvic X-rays showed enlargement of femoral neck at right hip joint, imaging of sessile exostoses with an elaborate profile in the metaphysis-epiphyseal level, joint profile seemed to be of a similar width to that of the left hip, angle measurement show a normal Mikulicz's angle but angle of inclination is 170º (left side 130º). The MRI of 4 March 1998 shows similar bone images to the ones observed in hip X-rays, cartilaginous exostoses in distal right femur and proximal tibia, cartilaginous images in the interior aspect of proximal femur similar to enchondromas, intra-articular effusion in hip joint, extra-articular cystic degeneration (2cm wide x 9cm high) at the external rotatores level. The 3-D reconstruction of the hip images shows proximal metaphyseal deformity of femur, which is enlarged in both diameters, irregular surface caused by bone spicules in the osteocartilaginous line of the femoral head, images which are typical images of sessile cartilaginous exostoses at this level.
In my opinion Mr PABLO GIBSON suffers from multiple congenital cartilaginous (osteochondromas) exostoses, deformity of proximal femur secondary to this congenital condition, which after the trigger created by intense physical activity produced an incipient hip arthrosis. Such arthrosis can progress in the future towards clear coxarthrosis which may require surgical treatment. Currently, according to the Spanish scale for residual injuries due to traffic accidents, or the French scale of disabilities by Mayet & Rey, Mr Gibson has a reduction of his physical capacity ranging between 5 and 10%."
Also tendered in evidence was a report dated 17 January 1999 from Dr Fenollosa to the applicant's then solicitors (Exh A1(Pt)) which stated:
"1. - In my opinion the present condition of joint effusion and pain in the hip of Mr. Paul Gibson is the consequence of the strenuous exercises he went through while training with the RAAF acting on a hip slightly deformed by sessile osteochondroma.
2. - Has (sic) Mr. Gibson not been subjected to the RAAF training his condition today would be better,
3. - In all probability the secondary osteoarthritis Mr Gibson suffers today, has him (sic) not been subjected to hard physical training wouldn't have started yet, and probably he would have been free of pain in the hip for a longtime.
4. - In my opinion Mr. Paul Gibson, due to existence of ostechondromata (sic) in both hips was unfit for active service in the armed forces already at the time he was admitted. Had those cartilaginous hip lesions been identified by the medical doctors, they shouldn't have admitted Mr. Paul Gibson."
64. Dr Fenollosa, in his oral evidence, said that diaphyseal aclasis and multiple osteochondromatosis are different diseases in the sense that, in the case of diaphyseal aclasis, the lesions are located in the diaphysis (the central area of the bone shaft), whereas, in the case of osteochondromatosis, the lesions are located in the metaphysis (the area towards the ends or the extremities of the bone shaft). He said that, in the case of the applicant, the correct diagnosis is osteochondromatosis.
65. Dr Fenollosa said that the applicant suffers from multiple osteochondromatosis in the hip - more specifically in the head of the femur - and secondary osteoarthritis in the hip. When asked about the applicant's knees, Dr Fenollosa said that he had no recollection of them.
66. Dr Fenollosa was questioned about the possible connection between the heavy exercise which the applicant was required to perform in his RAAF service and his condition of multiple osteochondromatosis. Dr Fenollosa said that the chondromas themselves do not grow or increase by reason of exercise. He explained, however, that the applicant's hip had been deformed by the chondromas and thereby rendered fragile and weak. He said that, although the applicant's hip could withstand light running, it could not withstand very heavy training because that would lead to early wearing of the cartilage and that in turn had led to secondary osteoarthritis in the applicant's hip. He said that the applicant's osteoarthritis arose from the deformity of his hip and would not have commenced so soon but for the strenuous physical activity involved in his service training. He confirmed that the applicant had a malalignment of his hip joint before the clinical onset of osteoarthrosis.
67. Dr Fenollosa said that, in a case where an osteochondroma is found in a patient's bone, because of the possibility of multiple exostoses being found elsewhere it is the usual practice to obtain x-rays of the knees, the upper side of the upper extremity of the humerus, and from the hip. He agreed with a suggestion by the Tribunal that the reasons for routinely obtaining such x-rays were to provide a base line from which future progression of the condition could be measured, and to ascertain whether exostoses were located in potentially dangerous sites.
68. Dr Fenollosa also expressed the opinion that, by reason of his pre-existing condition of multiple osteochondromatosis, the applicant had not been fit to enter military service and to undergo military training.
Additional Medical Evidence
69. A medical report, dated 24 March 1998, by Dr M Guijo of Valencia, Spain was tendered in evidence. (Exh A6) In that report Dr Guijo refers to the applicant attending his clinic suffering from pain in the hip joint, summarises the applicant's medical history, and concludes:
"In my opinion the patient suffers from a congenital illness which characteristically presents multiple cartilaginous exostoses causing deformity of the right proximal femur worsened by intense physical activity; a cystic lesion at the level of the external rotatores, compatible with a residual haematoma, the result of an earlier operation, as well as permanent cartilaginous lesions; all of which cause functional disability/impotence with an approximate 10% reduction of physical capacity."
70. Two medical reports by Dr C Villas, University Clinic, Department of Orthopaedic Surgery, University of Navarra, Spain were tendered in evidence. (Exhibits A3 and A4) Those reports relate to surgery which the applicant underwent on 12 May 1998 for the "excision of masses in soft tissue" in the right hip.
71. A medical report dated 23 November 1998, by Dr W Anell, the applicant's treating general practitioner, was tendered in evidence. (Exh A8) That report states:
"This letter in support of Mr. Paul Gibson for his upcoming medical hearing of his claim to the Department of Veteran (sic) affairs. Mr. Gibson suffers from an inherited disorder known as Diaphyseal Aclasia. As you may know this disorder can produce multiple bony exostosis that also have the potential to become malignant. Mr. Gibson has had this condition since before he entered the RAAF. This disease has, however, caused considerable deformity to his right hip joint which has in turn caused osteoarthritis. There is no other treatment currently available to Mr. Gibson other than a hip replacement. What Mr Gibson seeks is recognition that his time in the RAAF may have contributed to his disease, either precipitating or aggravating the osteoarthritis in his right hip joint through the vigorous training he had to participate in. He particularly remembers onset of pain in his knees (x-rays confirm that he has patellofemoral arthrosis) after a 15 km battle run in June 1991. He has also noticed pain in his right groin since that event. I feel that though the accepted view is that his disorder led to secondary osteoarthritis, one cannot dismiss beyond reasonable doubt the view of Mr. Gibson that the vigorous training contributed to the osteoarthritis in his hip. My opinion therefore is that Mr. Gibson should be granted liability by the DVA for future medical treatment of his hip and knee joints."
The Legislation
72. Section 70 of the VE Act relevantly provides:
"(1) Where:
(a) the death of a member of the Forces or member of a Peacekeeping Force was defence-caused; or
(b) a member of the Forces or member of a Peacekeeping Force has become incapacitated from a defence-caused injury or a defence-caused disease;
the Commonwealth is, subject to this Act, liable to pay:
(c) in the case of the death of the member - pension by way of compensation to the dependants of the member; or
(d) in the case of the incapacity of the member - pension by way of compensation to the member;
in accordance with this Act.
...
(5) For the purposes of this Act, the death of a member of the Forces (other than a member to whom this Part applies solely because of section 69A) or member of a Peacekeeping Force shall be taken to have been defence-caused, an injury suffered by such a member shall be taken to be a defence-caused injury or a disease contracted by such a member shall be taken to be a defence-caused disease if:
(a) the death, injury or disease, as the case may be, arose out of, or was attributable to, any defence service, or peacekeeping service, as the case may be, of the member;
...
(d) the injury or disease from which the member died, or has become incapacitated:
(i) was suffered or contracted during any defence service or peacekeeping service of the member, but did not arise out of that service; or
(ii) was suffered or contracted before the commencement of the period, or the last period, of defence service or peacekeeping service of the member, but not during such a period of service;
and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any defence service or peacekeeping service rendered by the member, being service rendered after the member contracted that disease; ...
...".
The word "disease" is relevantly defined in s.5D (1) of the VE Act as follows:
"disease means:
(a) any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or
(b) the recurrence of such an ailment, disorder, defect or morbid condition;
but does not include:
(c) the aggravation of such an ailment, disorder, defect or morbid condition; ...
...".
73. By virtue of s.120(4) of the VE Act the Tribunal is to decide the matter before it "to its reasonable satisfaction." For the purpose of applying s.120(4) in the present case the Tribunal, by virtue of s.120B(3) of the VE Act
"is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was war-caused or defence-caused only if:
(a) the material before the [Tribunal] raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and
(b) there is in force
(i) a Statement of Principles determined under subsection 196B(3) or (12); or
(ii) a determination of the Commission under subsection 180A(3);
that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service."
74. The RMA has determined, under s.196B(3) of the VE Act, a SoP concerning each of Multiple Osteochondromatosis (Instrument No. 2 of 1999, dated 14 January 1999) and Osteoarthrosis (presently Instrument No. 42 of 1998, dated 29 June 1998, as amended by instrument No. 20 of 1999, dated 14 January 1999).
75. The SoP concerning Multiple Osteochondromatosis relevantly states:
"Kind of injury, disease or death
2. (a) This statement of Principles is about multiple osteochondromatosis and death from multiple osteochondromatosis
(b) For the purposes of this Statement of Principles,
'multiple osteochondromatosis' means a congenital condition marked by the presence of multiple osteochondromas, which are benign tumours consisting of bone capped by cartilage projecting from the lateral contours of endochondral bones, most commonly the long bones, pelvis, scapulae and ribs, attracting ICD-9-CM code 756.4. This definition excludes synovial osteochondromatosis.
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that multiple osteochondromatosis and death from multiple osteochondromatosis can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, the factor set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factor that must exist before it can be said that, on the balance of probabilities, multiple osteochondromatosis or death from multiple osteochondromatosis is connected with the circumstances of a person's relevant service is:
(a) inability to obtain appropriate clinical management for multiple osteochondromatosis
Factors that apply only to material contribution or aggravation
6. Paragraph 5(a) applies only to material contribution to, or aggravation of, multiple osteochondromatosis where the person's multiple osteochondromatosis was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.
Inclusion of Statements of Principles
7. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
Other definitions
8. For the purposes of this Statement of Principles:
...
'relevant service' means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service).
...".
76. The SoP concerning Osteoarthrosis relevantly states:
"Kind of injury, disease or death
2. (a) This Statement of Principles is about osteoarthrosis and death from osteoarthrosis.
(b) For the purposes of this Statement of Principles 'osteoarthrosis' means a heterogenous (sic) group of clinical joint disorders, associated with inflammation of the synovium and defective integrity of the articular cartilage and related changes in the underlying bone and joint margins, and which has the following clinical characteristics:
(a) a history of pain;
(b) impaired function;
(c) joint swelling; and
(d) stiffness,
attracting ICD-9-CM code 715.
Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation Medical Authority is of the view that it is more probable than not that osteoarthrosis and death from osteoarthrosis can be related to relevant service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of probabilities, osteoarthrosis or death from osteoarthrosis is connected with the circumstances of a person's relevant service are:
...
(d) having a malalignment of a joint before the clinical onset of osteoarthrosis
in that joint; or
...
(q) having a malalignment of a joint before the clinical worsening of osteoarthrosis in that joint; ...
...
Factors that apply only to material contribution or aggravation
6. Paragraphs 5(n) to 5(x) apply only to material contribution to, or aggravation of, osteoarthrosis where the person's osteoarthrosis was suffered or contracted before or during (but not arising out of) the person's relevant service; paragraph 8(1)(e), 9(1)(e) or 70(5)(d) of the Act refers.
Inclusion of Statements of Principles
7. In this Statement of Principles if a relevant factor applies and that factor includes an injury or disease in respect of which there is a Statement of Principles then the factors in that last mentioned Statement of Principles apply in accordance with the terms of that Statement of Principles.
Other definitions
8. For the purposes of this Statement of Principles:
...
'malalignment' means the presence of significant displacement out of line resulting from the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length;
...
'relevant service' means:
(a) eligible war service (other than operational service); or
(b) defence service (other than hazardous service);
...".
The Issues
77. The issues in this matter are:
* whether the applicant's condition of multiple osteochondromatosis is a defence-caused disease in that it was aggravated by the applicant's defence service;
* whether the applicant has contracted the condition of osteoarthrosis and, if so, whether that condition is a defence-caused disease in that it arose out of, or was attributable to, the applicant's defence service.
In determining those issues the Tribunal is required to apply the current SoPs referred to in paragraphs 73-75 above, notwithstanding that those SoPs were not in force as at the date of lodgment of the applicant's claim for disability pension (8 March 1996) or, for that matter, the date of lodgment with the Tribunal of the applicant's application for review (10 March 1998): Re Ogston and Repatriation Commission (1998) 27 AAR 176.
Findings on Material Questions of Fact and Consideration of Issues
78. There is no dispute that each of the relevant conditions claimed to be suffered by the applicant - namely, multiple osteochondromatosis and osteoarthritis (or osteoarthrosis) - is a "disease" as defined in s.5D(1) of the VE Act. For the purpose of determining whether each of those conditions is a "defence-caused disease" within the meaning of s.70 of the VE Act, it will be convenient for the Tribunal to consider each condition separately - first, in relation to the applicant's knees, and, secondly, in relation to the applicant's right hip (they being the parts of the applicant's body relevantly claimed by him to be affected by those conditions).
(a) Knees
(i) Multiple Osteochondromatosis
79. There is no dispute that the applicant was born with the condition of multiple osteochondromatosis, that he had that condition at the time of his enlistment in the RAAF, and that he continues to suffer from that condition. The applicant's condition was first diagnosed after his enlistment as "diaphyseal aclasia" (multiple exostoses) in the x-ray report on his knees by Dr G K Wade on 21 May 1991 (T6, p.17 - see paragraph 7 above), but it was subsequently diagnosed as "multiple osteochondromatosis" by Dr B Martin, orthopaedic surgeon, on 3 June 1991 (T6, p20 - see paragraph 9 above). Although the evidence before the Tribunal refers both to diaphyseal aclasia and to multiple osteochondromatosis, the Tribunal accepts Dr Fenollosa's evidence (see paragraph 64 above) that multiple osteochondromatosis is the more accurate diagnosis of the applicant's condition. Dr Owen also confirmed that the applicant has multiple osteochondromatosis, as defined in the relevant SoP (see paragraph 56 above).
80. According to cl 5(a) of the SoP concerning Multiple Osteochondromatosis, the factor that must exist before it can be said that, on the balance of probabilities, multiple osteochondromatosis is connected with the circumstances of a person's defence service is:
"inability to obtain appropriate clinical management for multiple osteochondromatosis".
Clause 6 of that SoP provides that cl 5(a) applies only to material contribution to, or aggravation of, multiple osteochondromatosis where that condition was suffered or contracted before or during (but not arising out of) the relevant defence service. That proviso is satisfied here because, as already mentioned, the applicant was suffering from multiple osteochondromatosis before, and at the commencement of, his defence service.
81. The phrase "appropriate clinical management" is not defined in the SoP and should be interpreted according to its commonly understood meaning having regard to standard prudent medical practice. Clinical management is an ongoing and dynamic process and "appropriate clinical management" of a disease, in the Tribunal's opinion, involves the timely diagnosis, and the preparation and execution of a plan of action and treatment, of that disease by a suitably qualified and competent medical practitioner exercising due care, skill and diligence.
82. According to the evidence in the present case, when the applicant first complained of pain in his knees following the 15 kilometre battle run in May 1991 he was treated by the medical officer who arranged for him to be placed on restricted duties and for x-rays to be taken of his knees. Within the next few weeks the applicant was examined by 2 orthopaedic surgeons following which, in July 1991, a medical board recommended that he be remustered to less arduous duties on medical grounds. He was subsequently posted to Wagga RAAF Base in December 1991 and remustered as a clerk and was thereafter treated by Dr K McMahon, the Chief Medical Officer at the Base, and by Mr A Van Der Rijt, an orthopaedic surgeon. Mr Van Der Rijt subsequently performed 2 operations on the applicant for the surgical removal of exostoses from his left femur (June 1993) and from his right femur and tibia (May 1994). Dr E Owen, in his oral evidence, confirmed that the appropriate way to treat multiple osteochondromatosis is to cut out the bony tumours and that, when exostoses were discovered in the applicant during his period of defence service, the appropriate treatment was to remove them.
83. On the basis of that evidence, the Tribunal is reasonably satisfied that the applicant obtained appropriate clinical management for multiple osteochondromatosis in relation to his knees during his defence service. Accordingly, the Tribunal finds that, in relation to the applicant's knees, the factor referred to in cl 5 of the SoP concerning multiple osteochondromatosis does not exist or is not satisfied in the present case and, therefore, it cannot be said that, on the balance of probabilities, that condition was contributed to in a material degree by, or was aggravated by, the applicant's defence service.
84. Quite apart from the SoP, however, the medical evidence before the Tribunal does not reasonably satisfy the Tribunal that the applicant's multiple osteochondromatosis in relation to his knees was contributed to in a material degree by, or was aggravated by, his defence service. In the first place, there is no evidence that the applicant's multiple osteochondromatosis involved any deformity in the knee joints which might have been aggravated by heavy physical exercise. In August 1995 Mr Van Der Rijt reported that examination of the applicant's right knee was "unremarkable" and that x-rays of his left knee showed that there was "no abnormality within the left knee joint". Dr Owen's evidence was that the applicant's knees were "clinically normal" and there was no deformity in the joints, although there were some "mechanical problems" and, as indicated by a recent CT report, wear on the lateral surface of the left patella and a narrowing of that joint (see paragraphs 55 and 59 above). Dr Owen, however, did not associate the condition of the applicant's knees with his defence service. Secondly, Dr Fenollosa said that chondromas or exostoses do not grow or increase by reason of exercise.
85. Accordingly, the Tribunal finds that the applicant's multiple osteochondromatosis in relation to his knees was not contributed to in a material degree, or aggravated, by his defence service, within the meaning of s.70 (5)(d) of the VE Act. That condition is not, therefore, a defence-caused disease, for the purposes of s.70 of that Act.
(ii) Osteoarthritis
86. The medical evidence (including CT and x-ray reports) does not indicate that the applicant has ever suffered, or presently suffers, from osteoarthritis in either of his knees. Dr Owen, in his oral evidence, said that there was no evidence of osteoarthritis or osteoarthrosis in the applicant's knees (see paragraph 59 above).
87. Accordingly, the Tribunal finds that the applicant had not previously suffered from, and does not presently suffer from, osteoarthritis in either of his knees. That being the case, no question of whether such disease is defence-caused, for the purposes of the VE Act, arises in this case.
(b) Right Hip
(i) Multiple Osteochondromatosis
88. It is generally accepted medical knowledge that the disease of multiple osteochondromatosis is characterised by the presence of multiple exostoses on the bones and may involve disturbances in bone growth and deformities in the metaphyseal region of the bones (see, for example, T7 p.166). Dr Martin Espinosa's report of 15 December 1996 (see paragraph 34 above) states:
"A salient feature of this illness is an anomaly of skeletal development which causes the formation of multiple exostoses as well as disturbances in bone growth."
In the applicant's case the medical evidence before the Tribunal confirms that his congenital multiple osteochondromatosis does involve a disturbance in the growth of his right upper femur and a deformity of the metaphysis of his right upper femur - more specifically, the neck of the femur at the hip joint (see the evidence of Dr Owen (paragraph 56 above) and Dr Fenollosa (paragraph 66 above)).
89. The question again arises whether the factor referred to in cl 5 (a) of the SoP concerning Multiple Osteochondromatosis - namely, "inability to obtain appropriate clinical management for multiple osteochondromatosis" - exists or is satisfied in relation to the applicant's right hip region. Unless that factor exists or is satisfied, the Tribunal, by virtue of s.120B(3) of the VE Act and cl 5(a) of the abovementioned SoP, cannot be reasonably satisfied that the applicant's multiple osteochondromatosis in relation to his right hip is a defence-caused disease, for the purposes of s.70 of the VE Act.
90. The Tribunal has already (see paragraph 81 above) stated its understanding of the phrase "appropriate clinical management" for the purposes of cl 5(a) of the abovementioned SoP. In the present case the evidence before the Tribunal indicates that:
* at the applicant's pre-enlistment medical examination in September 1990, or at any time prior to his enlistment in the RAAF, the RAAF medical officers did not arrange for any x-rays to be taken of the applicant, notwithstanding that he had disclosed to them his prior medical history regarding the existence, and subsequent removal, of multiple exostoses from his wrist, shoulder and knee regions;
* x-rays were first requested by the medical officer on 20 May 1991 when the applicant complained of pain in his knees following a 15 kilometre battle run - the request relating to the applicant's knees (the tibiae, fibulae and lower femur) and those x-rays confirmed the existence of multiple exostoses in those parts of the applicant's body;
* further x-rays - specifically, a "long bones survey" (excluding the previous x-rays, but including the right femur) - were requested by the medical officer on 6 June 1991, but the reports of those x-rays on 7 June 1991 referred only to the applicant's arms, hands and feet and made no reference to his upper femurs and hips;
* the failure of the x-ray report of 7 June 1991 to refer to the applicant's upper femurs and hips was apparently not acted upon by the medical officer in that no follow-up request for an x-ray of the applicant's upper femurs and hips appears to have been made by the medical officer;
* thereafter the first x-rays and CT scan of the applicant's right hip region were carried out on 25 July 1995 following his complaint of pain in his right hip after a fall, and those x-rays and CT scan revealed "gross abnormality of the right neck and intertrochanteric region of the femur with a large bony exostosis arising from the anterior aspect of the neck with multiple smaller bony exostoses";
* Mr Van Der Rijt, on seeing the report of the x-rays and the CT scan of 25 July 1995, confirmed, in a report dated 4 August 1995, that the applicant has "extensive skeletal osteochondroma" and referred to the presence of:
* "extensive osteochondroma over the posterior aspect of the right femoral neck"
* "a very large osteochondroma...within the femoral neck"
* "long standing deformity of the neck"; and
* "a very large lesion present in the right femoral neck...(which) is clearly long standing";
* Mr Van Der Rijt, in his report of 4 August 1995, and in a further report of 29 August 1995, opined that the lesion in the applicant's right femoral neck rendered him unfit for military service;
* on 5 September 1995 the Director-General, Air Force Health Services, recommended that the applicant be regarded as medically unfit for further service and the applicant was discharged from the RAAF on that ground on 28 November 1995.
91. The Tribunal notes Dr Fenollosa's evidence that, in a case where an osteochondroma is found in a patient's bone, it is his normal practice to obtain x-rays of the patient's knees, the upper extremity of the humerus and the hip region because of the possible presence of multiple exostoses in those regions. Dr Fenollosa agreed that the reasons for obtaining such x-rays (a long bones skeletal survey) are to provide a "base line" from which to measure future progression of the disease, and to ascertain whether exostoses are located in potentially dangerous sites. The Tribunal accepts those reasons and regards Dr Fenollosa's normal practice as appropriate and in conformity with the standards of prudent medical practice in the event of a diagnosis of multiple exostoses or multiple osteochondromatosis. Accordingly, in the Tribunal's opinion, appropriate clinical management of a patient known to be suffering from multiple exostoses or multiple osteochondromatosis would include the carrying out of x-rays or a skeletal survey of the patient's long bones, including the upper femur and hip region, especially in a case (such as the present) where the patient is a member of the defence forces and is routinely required to participate in physically demanding training programmes.
92. In the present case it appears from the evidence that no x-rays were taken of the applicant at his pre-enlistment medical examination in September 1990, despite the examining officer being made aware of the applicant's history of multiple exostoses. After his enlistment on 29 January 1991 the first x-rays were taken in May 1991 when the applicant complained of knee pain following a 15 kilometre battle run, but these x-rays related only to the applicant's knees. Shortly afterwards, on 6 June 1991, a long bones survey (including the right femur) was requested - appropriately, in the Tribunal's opinion - but the resulting x-ray report on 7 June 1991 did not refer at all to the applicant's lower or upper femurs or hips. This omission was not commented on or rectified by follow-up action by the medical officers, and no x-rays of the applicant's right hip region were apparently taken until July 1995 following a complaint by him of pain in that region after a fall. Those x-rays revealed long-standing gross abnormalities in the applicant's right femoral neck and hip region and, when the seriousness of the applicant's right hip condition was reported to the Chief Medical Officer by Mr Van Der Rijt, relatively prompt action was then taken to discharge the applicant from the RAAF on the ground of his medical unfitness.
93. In the Tribunal's opinion, the omission of the applicant's treating medical practitioners effectively to procure x-rays of his upper femur and hip regions prior to July 1995, when they had known since September 1990 that he was suffering from multiple exostoses or multiple osteochondromatosis, did not conform with the standards of prudent medical practice and did not satisfy the requirements of appropriate clinical management of that condition. By reason of that omission, the applicant did not receive any clinical management for his condition of multiple osteochondromatosis in his right hip (including the gross deformity of his right femoral neck) during the relevant period of his defence service. He did not receive such management because his treating medical officers, and at least 3 orthopaedic surgeons to whom he was referred during that period, were unaware that he was suffering from multiple osteochondromatosis in his right hip region. The reason that all of those medical practitioners were unaware of that condition was that the applicant's right upper femur and hip regions were not x-rayed, during his period of service, until July 1995, or if they were x-rayed prior to that date, results of such x-rays were not brought to the attention of those medical practitioners. Either way, the applicant's treating medical practitioners were unaware of the multiple osteochondromatosis in his right hip (including the gross deformity of his right femoral neck), and, by reason of that unawareness, he was unable to obtain appropriate, or any, clinical management from those medical practitioners for that condition.
94. Accordingly, the Tribunal finds that, in relation to the applicant's right hip region, the factor referred to in cl 5 of the SoP concerning Multiple Osteochondromatosis does exist, or is satisfied, in the present case.
95. Mr Ponnuthurai (for the respondent) conceded that, if the Tribunal were to find - as it has - that, as regards the applicant's right hip, the SoP concerning Multiple Osteochondromatosis had been met, that condition would be a defence-caused disease for the purposes of s.70 of the VE Act on the basis that it was aggravated by the applicant's defence service, within the meaning of s.70(5)(d) of that Act. In the Tribunal's opinion that concession was rightly made because the weight of the medical evidence before the Tribunal clearly supports the proposition that it is probable that the heavy physical training that the applicant was required to undergo during his defence service made worse the pre-existing deformity or abnormality of his right hip joint (more specifically, the right upper femur and femoral neck) which (as the Tribunal has already found) is an integral part of his multiple osteochondromatosis condition: see, in particular, the evidence of Dr Owen and Dr Fenollosa and the reports of Dr Martin Espinosa and Dr Guijo. The contrary opinion of Mr McWilliam expressed in his report of 19 September 1997 - that the effect of the applicant's "heavy training regime would...only be temporary" - is based on his view that the effect of the osteochondroma "is on the muscular tissues rather than on the joint surfaces". That view is, with respect, inconsistent with what the Tribunal understands to be generally accepted medical knowledge, and the overwhelming weight of medical evidence before the Tribunal, that the disease of multiple osteochondromatosis may involve disturbances in bone growth and deformities in the metaphyseal region of the bones. In the applicant's case, the multiple osteochondromatosis in his right hip involves a gross deformity or abnormality of his upper femur and femoral neck. Accordingly, the Tribunal does not accept the opinion of Mr McWilliam on this point.
96. On the basis of the whole of the medical evidence before it, the Tribunal finds that the applicant's condition of multiple osteochondromatosis in relation to his right hip was aggravated by his defence service, within the meaning of s.70(5)(d) of the VE Act, and that that condition is, therefore, a defence-caused disease for the purposes of s.70 of that Act.
(ii) Osteoarthritis
97. Mr Ponnuthurai also conceded that, if the Tribunal were to find - as it has - that, as regards the applicant's right hip, the condition of multiple osteochondromatosis is a defence-caused disease for the purposes of s.70 of the VE Act, a similar finding would be appropriate in relation to the applicant's osteoarthritis in his right hip. The Tribunal is of the opinion that that concession also was rightly made for the following reasons.
98. The relevant essential factor referred to in cl 5 of the SoP concerning Osteoarthrosis is that specified in para (d), namely:
"having a malalignment of a joint before the clinical onset of osteoarthrosis in that joint".
The term "malalignment" is defined in cl 8 to mean:
"the presence of significant displacement out of line resulting from the effect of underlying muscle weakness, deformity of other joints, joint dysplasia or disparate leg length".
99. There is no dispute that, according to the recent medical evidence:
* the applicant has osteoarthritis (or osteoarthrosis within the meaning of the abovementioned SoP) in his right hip;
* the applicant has dysplasia of his right hip joint and, therefore, a malalignment (as defined in the SoP) of that joint;
* that malalignment of the applicant's right hip joint was present before the clinical onset of osteoarthrosis in that joint.
Accordingly, the Tribunal finds that, in relation to the applicant's right hip, the SoP concerning Osteoarthrosis has been satisfied.
100. Finally, on the basis of the recent medical evidence - in particular, the evidence of Dr Owen and Dr Fenollosa - the Tribunal finds that the development of osteoarthritis in the applicant's right hip was greatly accelerated by reason of the applicant's defence-caused disease of multiple osteochondromatosis - specifically, the aggravation of the gross deformity of his right upper femur and femoral neck by reason of his defence service - and thus arose out of that defence service, within the meaning of s.70(5)(a) of the VE Act. That condition is, therefore, also a defence-caused disease for the purposes of s.70 of that Act.
Conclusion
101. The Tribunal concludes, therefore, that the applicant's condition of multiple osteochondromatosis in relation to his knees is not a defence-caused disease for the purposes of s.70 of the VE Act, but that the applicant's conditions of multiple osteochondromatosis and osteoarthritis in relation to his right hip are both defence-caused diseases for the purposes of that section.
Decision
102. For the above reasons the Tribunal sets aside the decision under review and, in substitution therefor, decides that the conditions of multiple osteochondromatosis and osteoarthritis of the right hip suffered by the applicant are defence-caused within the meaning of s.70 of the VE Act, with effect from 8 December 1995 (being a date 3 months before the date of lodgment with the DVA of the applicant's Claim for Disability Pension - see ss.20 and 71 of the VE Act). The matter is remitted to the respondent for assessment of disability pension payable to the applicant in respect of the abovementioned conditions.
I certify that the preceding one hundred and two (102) numbered paragraphs are a true copy of the reasons for decision herein of Associate Professor S D Hotop, Senior Member, Brigadier R D F Lloyd, Member, and Dr D Weerasooriya, Member
Signed: ...................(sgd Catherine Osborn)....................
Associate
Date/s of Hearing 11, 12 February 1999
Date of Decision 12 February 1999
Counsel for the Applicant Mrs T Gatell Gamir
Counsel for the Respondent Mr C Ponnuthurai, Departmental Advocate
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