Adams and Military Rehabilitation and Compensation Commission (Veterans' entitlements)

[2023] AATA 1596

Adams and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2023] AATA 1596 (12 June 2023)

Division:VETERANS' APPEALS DIVISION

File Number(s):      2022/5365

Re:Douglas Adams

APPLICANT

AndMilitary Rehabilitation and Compensation Commission

RESPONDENT

DECISION

Tribunal:Deputy President J Sosso

Date:12 June 2023

Place:Brisbane

The decision under review is set aside and the matter is remitted to the Commission for calculation of the amount of compensation payable to the veteran in accordance with Division 5 of Part 4 of Chapter 4 of the Military Rehabilitation and Compensation Act 2004 (Cth).

........................................................................

Deputy President J Sosso

CATCHWORDS

VETERANS’ ENTITLEMENTS – Incapacity payments – injury or disease – when disease was contracted – gradual onset – relevance of SoP regime – disease contracted when veteran experienced the clinical manifestation of the disease – decision under review set aside and remitted

LEGISLATION

Compensation (Commonwealth Government Employees) Act 1971 (Cth)

Commonwealth Employees’ Compensation Act 1930 (Cth)

Limitation of Actions Act 1958 (Vic)

Military Rehabilitation and Compensation Act 2004 (Cth)

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth)

Safety, Rehabilitation and Compensation Act 1988 (Cth)

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

CASES

Australian Telecommunications Corporation v Moffat (1992) 15 AAR 289

Budworth v Repatriation Commission (2001) 33 AAR 48

Burns Philp & Company Limited v Myrhe (1934) 51 CLR 463

Comcare v Etheridge (2006) 149 FCR 522

Harrison v Melhem (2008) 72 NSWLR 380

K & Lake Freighters Pty Ltd v Gordon & Gotch Limited (1985) 157 CLR 309

Lennon v Gibson and Howes Ltd (1919) 26 CLR 285

NSW Associated Blue-Metal Quarries Ltd v FCT (1956) 94 CLR 509

Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355

Repatriation Commission v Bawden (2012) 206 FCR 296

Repatriation Commission v Gorton (2001) 65 ALD 609

Repatriation Commission v Gosewinckel (1999) 59 ALD 690

Repatriation Commission v Keeley (2000) 98 FCR 108

Repatriation Commission v Warren [2007] FCA 866

Robertson and Repatriation Commission (1998) 50 ALD 668

Seay v Eastwood [1976] 1 WLR 1117

Stingel v Clark (2006) 226 CLR 442

Vietnam Veterans’ Association of Australia NSW Branch Inc v Cohen (1996) 70 FCR 419

Wallis and Repatriation Commission [2000] AATA 1060

Woodward v Repatriation Commission [2003] FCAFC 160

SECONDARY MATERIALS

Explanatory Memorandum, Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth)

Military Rehabilitation and Compensation Bill 2003 (Cth)

Statement of Principles concerning Lumbar Spondylosis (Reasonable Hypothesis) (No. 62 of 2014)

Statement of Principles concerning Thoracolumbar Spondylosis (Reasonable Hypothesis) (No. 13 of 2023)

REASONS FOR DECISION

Deputy President J Sosso

12 June 2023

INTRODUCTION

1. Mr Douglas Adams (“the veteran”) seeks a review of a decision of the Veterans’ Review Board (“the Board”) of 2 March 2022 which affirmed a Determination of 29 October 2020 of a Delegate of the Military Rehabilitation and Compensation Commission (“the Commission”). The Delegate determined the veteran’s incapacity payment to be $225.91 gross per week for the period 7 September 2020 to 7 September 2020 and $552.83 gross per week for the period 14 September 2020 to 19 January 2021 pursuant to the Military Rehabilitation and Compensation Act 2004 (Cth) (“the Act”) – Exhibit 1 T15 pp. 53 – 58, T21 pp. 75 – 83.

2. The veteran was born in September 1988 and enlisted in the Australian Regular Army on 19 July 2011. He was discharged on 16 September 2015 and then transferred to the Reserves where he served on a part-time basis until his medical discharge on

   
   

   22 January 2020. During his service in the Australian Regular Army, the veteran was deployed to Operation Slipper (Afghanistan) between 16 May 2013 and 27 November 2013. The veteran took up civilian employment with G James Aluminium Products on

   
   

   22 January 2016 as an accountant – Exhibit 1 T4 pp. 9 – 11, T21 p. 79, Exhibit 2 R1 p. 33.

3. In the veteran’s Separation Health Statement of 11 August 2015, he denied suffering from any medical conditions resulting from any injury or disease caused by his defence service. Further the veteran denied having suffered any significant injuries or illnesses during his defence service – Exhibit 2 A5 pp. 58 – 59.

4. It is not disputed that the reason that the veteran transferred to the Reserves was to continue his accountancy studies which, it is claimed, was not possible while he served full-time in the Australian Regular Army – Exhibit 2 A3 p. 55. At that time, the veteran was not aware that he was suffering from any medical condition and was not seeking any medical treatment – Transcript (“Tr.”) 3.4.2023 p. 4.

5. On 26 January 2018 the veteran was examined and assessed by Dr Lee Grayson. The clinical notes made by Dr Grayson are as follows – Exhibit 2 A29 pp. 161 – 162:

   “Left posterior thigh pain, radiated from left lower back down leg.

   Ongoing for past 3/12

   Feels getting worse

   Achy during day then sharp radiating pains when lies down

   Nil dysuria, bone pain, wt loss, bowel issues

   Nil red flags…

   Management:

   Get CT lower spine

   Simple analgesia

   Review next week…

   Actions:

   Diagnostic imaging requested: CT lumbar spine”.

6. Dr Grayson referred the veteran to Dr John Albietz, Spinal Surgeon, who examined and assessed him on 5 March 2018. In a letter to Dr Grayson of the same date, Dr Albietz made the following observations – Exhibit 2 A9 p. 65:

   “…Douglas presents due to lower back and radiating left leg pain travelling into his buttock, hamstring and occasionally the calf. The symptoms commenced with discomfort in the left hamstring progressing to the lower back and distal leg.  Douglas is currently more concerned by the pain in the lower back particularly aggravated through prolonged sitting or attempting to increase activity. Douglas hasn’t attended a therapist though has been taking Panadol and Ibuprofen for analgesia.

   …

   Douglas has had an MRI scan of the lumbar spine demonstrating discogenic deterioration of the L4/5 and L5/S1 levels. At the L4/5 level there is bilateral subarticular recess stenosis caused by a shallow broad based disc bulge. There is no compression of neural structures at the L5/S1 level. Plain film demonstrates a well aligned spine without listhesis or scoliosis.

   …

   His symptoms are likely due to the L4/5 pathology causing discogenic irritation and neural irritation. We discussed management options for back pain including analgesia medication, therapy including strengthening and stretching, various spinal blocks or surgical intervention.  I recommended Doug trial a L4/5 epidural and make contact with a local therapist to commence a strengthening and stretching program…”

7. It is not disputed that the veteran continues to suffer lower back pain as a result of his condition and required reduced work hours to avoid surgery. In a Medical Certificate of

   
   

   7 September 2020, Dr Albietz made the following observations – Exhibit 2 A1 p. 14:

   “I consulted with Douglas today in relation to his lower back and radiating left leg pain. He is struggling significantly with the level of lower back pain that has not responded to non operative management. Douglas would likely benefit from reduced work hours to a part time role in an effort to avoid spinal surgery.”

8. It is also not disputed that the veteran requires ongoing medical management of his spinal condition, including nerve blocks performed by Dr Burge, Specialist Anaesthetist and Pain Medicine Physician – Exhibit 2 A1 pp. 15 – 17.

9. On 6 March 2018 the veteran made a claim for compensation under the Act for “lumbar spondylosis (L4/5 lateral recess stenosis)” and “lumbar spondylosis (L4/5 disc bulge impinging on nerve root and degenerative discs” – Exhibit 2 R1 p. 34. The signs and symptoms of both conditions were stated to be as follows – Exhibit 2 R1 p. 39:

   “constant and severe lower back pain, constant and severe pain in left thigh, loss of feeling in left leg, can’t walk longer than 15 mins due to pain, can’t sit/stand for long time. I must lay down to relieve pain to a manageable level, loss of range of movement.”

10. The veteran claimed that he first noticed the signs or symptoms of both conditions on

    
    

    3 September 2017 and first received medical treatment on 26 January 2018 – Exhibit 2 R1 pp. 39, 41.

11. In response to a Question asking how the claimed injuries or diseases affected the veteran’s employment and performance of duties in the ADF, the following response was given – Exhibit 2 R1 p. 34:

    “Doctor has advised to stop employment with Army Reserves – current employment is in jeopardy due to limitations on the amount of time  I can sit/stand.”

12. In a Statement dated 12 March 2018, the veteran provided the following information about the service he rendered whilst serving in the Australian Regular Army – Exhibit 2 R1 p. 43:

    “…I enlisted as a Logistics soldier (Operator supply) and my main duties and tasks in this role consisted of working in warehouses lifting and moving stores on and off pallets and trucks to get supplies to where they needed to go.  I believe my injury is linked to the duties performed because of the constant carrying and lifting of heavy items and twisting and bending with them that were part of my daily duties.  Every day in this role I would easily estimate that I would lift and move over 255 kg a day over my ARA career of 1052 days this equates to 268,260kgs…”

13. In a Determination of 11 May 2018, liability was accepted for “Degenerative lumbar disc disease with radiculopathy with effect from 24 February 2018” – Exhibit 2 R1 pp. 45 – 46.

14. In the Reasons for Decision the Delegate applied the Statement of Principles (“SoP”) concerning Lumbar Spondylosis (Reasonable Hypothesis) No 62 of 2014. The Delegate was satisfied that the veteran met the Factor “lifting loads of at least 25 kilograms bearing weight through the lumbar spine to a cumulative total of at least 120000 kilograms within any ten year period before the clinical onset of lumbar spondylosis”. In addition, the Delegate considered the veteran’s duties in the Defence Force and was satisfied the SoP was met, and that the veteran’s warlike service made a contribution. Consequently, the Delegate accepted that the veteran’s claimed condition was related to his service with effect from 24 February 2018. This was the date that an X-ray of the lumbar spine confirmed the diagnosis – Exhibit 2 R1 pp. 47 – 49.

15. The veteran subsequently made a claim for Permanent Impairment compensation which was accepted on 31 July 2018. Based on the evidence, the veteran was allocated a combined impairment rating of 58 points. The accepted weekly entitlement was $233.69 (tax free) with an option to convert the weekly amount into a whole or partial lump sum (also tax free) – Exhibit 2 A1 pp. 8 – 13.

16. On 14 October 2020 the veteran lodged a Claim for Incapacity Payments – Exhibit 1

    
    

    T4 pp. 9 – 16. Included in the Claim was a Certificate of capacity for work completed by Dr John Albietz, General Practitioner – Exhibit 1 T4 pp. 14 – 15. Dr Albietz opined that the veteran’s injury/disease was contracted on 1 June 2013 and was caused by “lifting & carrying occupation duties whilst in deployment”. Further, Dr Albietz opined that it was a continuing injury/disease.

17. As previously noted, on 29 October 2020 the veteran’s claim for incapacity payments was accepted and for the amounts set out. In reaching this decision, the Delegate proceeded on the basis that the veteran’s Normal Earnings was calculated on the basis of his earnings whilst serving in the Australian Regular Army and not on his incapacity to serve as a Reservist plus the loss of his civilian earnings.

18. On 11 May 2021 the veteran’s legal representative sought a review of the Determination – Exhibit 1 T2 pp. 3 – 6. The reasons given for the application were as follows –

    
    

    Exhibit 1 T2 p. 5:

    “The Applicant is dissatisfied with the findings of the Respondent as it is not in accordance with the medical and legal considerations of the Applicant’s claim.”

19. As previously indicated, the Board, on 2 March 2022, affirmed the Determination of the Delegate of the Commission. The Board outlined the veteran’s case as follows –

    
    

    Exhibit 1 T21 pp. 76 – 77:

    7“The claimant’s case, in summary, is that his ‘normal earnings’, for the purposes of calculating the amount of compensation for incapacity for service or work, should be calculated under Division 3 of Part 3 of Chapter 4 of the MRCA, which sets out the rules for calculating normal and actual earnings of part-time Reservists, instead of under Division 4 of Part 3 of Chapter 4 of the MRCA, as applied by the MRCC, which sets out the rules for calculating normal and actual earnings of part-time Reservists who were previously Permanent Forces members.

    8The effect of applying the rules in Division 3 of Part 3 of Chapter 4 of the MRCA is that the claimant’s normal earnings are calculated by reference to both his civilian and reserve pay, while applying the rules in Division 4 of Part 3 of Chapter 4 of the MRCA results in normal earnings being calculated by reference to the claimant’s salary as a full-time member of the Australian Defence Force.

    9The claimant considers the MRCC’s reliance on section 104 of the MRCA to be misplaced and submits that he instead meets the requirements of section 94 of the MRCA, as the relevant service injury or disease was contracted while he was a Reservist. As a result, his normal weekly earnings should be assessed by reference to his income from civilian employment and to any concurrent income from his Reserve service, rather than by reference to his previous income in the Australian Regular Army.”

20. After setting out the relevant statutory provisions, the Board gave a detailed and well-reasoned consideration. It is important to note that the Board, having regard to the diagnostic label attached to the veteran’s accepted condition and the definition in

    
    

    SoP 62 of 2014 of lumbar spondylosis, concluded that the veteran’s accepted condition was a service disease rather than a service injury – Exhibit 1 T21 p. 81 para 22. The relevant portions of the Consideration are set out below – Exhibit 1 T21 pp. 79 – 83:

    11The critical criterion for determining which Division of Part 3 of Chapter 3 of the MRCA applies is whether the claimant’s service injury or service disease is associated with his Reserve service or with his service in the Permanent Forces…

    …

    14The critical issue before the Board is whether the claimant is appropriately described as a ‘part-time Reservist when the service injury was sustained or the service disease was contracted’ within the meaning of section 94(c) of the MRCA or whether he was appropriately described as a ‘Permanent Forces member […] when the service injury was sustained or the service disease contracted’ within the meaning of section 103(c) of the MRCA. If the first description applies to the claimant, he falls within Division 3 of Part 3 of Chapter 4 of the MRCA. If the second description applies to the claimant, he falls within Division 4 of Part 3 of Chapter 3 of the MRCA.

    15The MRCA does not explicitly specify whether the determination of the period in which ‘the service injury was sustained or the service disease contracted’ requires a temporal or a causal connection between a period of service and the service injury or disease. If it is the former which is required, the clinical onset of the claimant’s accepted MRCA condition occurred during his period of service in the Army Reserve and, on that basis, he could be described as being a ‘part-time Reservist when the service injury was sustained or the service disease was contracted’, within the meaning of section 94 of the MRCA.  If it is the latter which is required, the claimant’s accepted condition is attributable to his period of warlike service while he was a member of the Australian Regular Army and, on that basis, he could be described as ‘a Permanent Forces member […] when the service injury was sustained or the service disease contracted’ within the meaning of section 103 of the MRCA…

    …

    23The issue before the Board is therefore when the claimant’s service disease can be said to have been ‘contracted’ for the purposes of sections 94 and 103 of the MRCA and, in particular, whether the relevant time is the date of clinical onset of the disease, being the point in time where the symptoms of the disease, as defined in the relevant Statement of Principles, became sufficiently severe and specific for the condition to be diagnosed by a medical practitioner, or whether it is the time when the claimant acquired the disease…

    …

    25…In the absence of a specific statutory definition, the Board is reasonably satisfied that the word ‘contracted’ was intended to be given its ordinary meaning, as set out in the Macquarie Dictionary. The focus is therefore on the point in time at which the disease was acquired, not the point in time at which the symptoms of the disease became sufficient for a diagnosis to be made…

    26….In this case, the claimant contended, and the MRCC accepted, that his degenerative lumbar disc disease with radiculopathy was attributable to activities undertaken during his period of warlike service in Afghanistan, which fell within his period of service with the Australian Regular Army. There was no contention made that his claimed condition was causally associated with his Army Reserve service, nor was any evidence produced to support that proposition. The period of service in which  the respondent’s lumbar disc disease with radiculopathy was acquired was therefore his service in the Australian Regular Army.  Therefore, while the claimant was a member of the Army Reserve when the disease was formally diagnosed, he was a Permanent Forces member when the service disease was contracted within the meaning of section 103 of the MRCA….”

    LEGISLATIVE OVERVIEW

21. Subsection 23(1) of the Act provides, inter alia, that the Commission must accept liability for an injury sustained, or a disease contracted, if:

    (a)“the person’s injury or disease is a service injury or disease under section 27.”

22. Section 27 defines what constitutes a “service injury” or a “service disease”. For the purposes of this matter, the following paragraph is applicable:

    (b)“the injury or disease arose out of, or was attributable to, any defence service rendered by the person while a member.”

23. Chapter 4 of the Act provides for compensation and other benefits to be provided to current and former members who suffer a service injury or service disease.

24. The term “member” is defined in s 5 to include, inter alia, a member of the “Defence Force”. The latter term is defined in s 5 to include:

    (a)“the Permanent Forces; and

    (b)the Reserves.”

25. “Injury” is defined in s 5 to mean:

    “any physical or mental injury (including the recurrence of a physical or mental injury) but not include:

    (a)a disease; or

    (b)the aggravation of a physical or mental injury.”

26. “Disease” is defined in s 5 as follows:

    (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; or

    (d)the temporary departure from:

    (i)     the normal physiological state; or

    (ii)    the accepted ranges of physiological or biochemical measures;

    that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, blood pressure on blood cholesterol levels).”

1. Part 4 of Chapter 4 provides for compensation to be paid to former members who are incapacitated for work from a service injury or service disease. Although the Board made its Determination by reference to Part 3 of Chapter 4, that Part only applies to current members and not former members. As the veteran is a former member, the appropriate provisions are located in Part 4. Likewise, in the Applicant’s Statement of Facts, Issues and Contentions – Exhibit 2 pp. 1 – 7, reference is made to ss 94 – 95 (para 23). These sections are located in Part 3, and are not applicable to the circumstances of the veteran as they relate to persons who are current members. At the Hearing, Mr P Nolan of Counsel, pointed out that at the time of making his claim, the veteran had been discharged completely from all service and that former member provisions of the Act apply – Tr. 3.4.2023 p. 6.

2. Section 117, which provides a simplified outline of Part 4, explains that the compensation a person receives for a week depends on the difference between the person’s normal and actual earnings for the week. The person’s normal earnings are a notional amount whilst the actual earnings are based on how much the person actually earns for the week. Normal earnings are calculated under Divisions 3 to 8. Division 3 is applicable to a person who left the Defence Force as a Permanent Forces member, while Division 4 applies to a person who left the Defence Force as a continuous full-time Reservist. Divisions 5 to 8 apply to a person who left the Defence Force as a part-time Reservist. The applicable Division depends on a person’s status, for example, as a Permanent Forces member or Reservist, when the service injury or disease occurred and on leaving the Defence Force.

3. Subsection 118(1) provides that the Commonwealth is liable to pay compensation to a person for a week if:

   (a)“the person is a former member; and

   (b)the Commission has accepted liability for a service injury or service disease; and

   (c)the service injury or disease results in the person’s incapacity for work for the week; and

   (d)a claim for compensation has been made under s 319.”

4. The term “incapacity for work” is defined in s 5 as follows:

   “in relation to a person who has sustained an injury or contracted a disease, means:

   (a)an incapacity of the person to engage in the work that he or she was engaged in before the onset of the incapacity, at the same level at which he or she was previously engaged; or

   (b)if the person was not previously engaged in work, an incapacity of the person to engage in any work that is reasonably likely that he or she would otherwise be engaged in.”

5. Subsection 118(2) provides that the amount of compensation the Commonwealth is liable to pay, other than when a person has chosen to receive a Special Rate Disability Pension, is worked out under Division 2 of Part 4 of Chapter 4.

6. It will be noted, that whilst the Act contains numerous definitions of key words and phrases, it does not supply a definition of “sustained” or “contracted”. This omission is of importance for the resolution of this matter.

7. The key issue before the Tribunal is whether the veteran was a part-time Reservist or a Permanent Forces member when the service injury was sustained or the service disease was contracted. If the veteran was a part-time Reservist at the relevant time, then

   
   

   Division 5 (working out normal earnings and normal weekly hours for former part-time Reservists who were engaged in civilian work) applies. However, if the veteran was a Permanent Forces member at the relevant time, then Division 7 (working out normal earnings for former part-time Reservists who were previously Permanent Forces members) applies.

8. Turning to Division 5, s 152 provides that this Division applies to a person in respect of a week if:

   (a)“the person was a part-time Reservist immediately before last ceasing to be a member of the Defence Force; and

   (b)the person is incapacitated for work for the week as a result of a service injury or disease; and

   (c)the person was also a part-time Reservist when the service injury was sustained or the service disease was contracted; and

   (d)the person was engaged in civilian work before last ceasing to be a member of the Defence Force.”

9. The Tribunal accepts that paragraphs (a), (b) and (d) are met, based on the material presented.

10. Attention now must be given to Division 7. Section 163 provides that this Division applies in respect of a week, if:

    (a)“the person was a part-time Reservist immediately before last ceasing to be member of the Defence Force;

    (b)the person is incapacitated for work for the week as a result of a service injury or disease;

    (c)the person was a Permanent Forces member, or a continuous full-time Reservist, when the service injury was sustained or the service disease was contracted; and

    (d)the person was a Permanent Forces member immediately before completing his or her last period of full-time service.”

11. The Tribunal also accepts that paragraphs (a), (b) and (d) are met, based on the material presented.

12. The veteran submits that Division 5 applies, whilst the Commission submits that Division 7 applies.

13. A subsidiary question is whether the veteran sustained a service injury or contracted a service disease. The Commission submitted that the veteran’s lumbar disc condition is a disease within the definition of that word in the Act as well as the definition in SoP 62 of 2014 – Exhibit 2 R1 p. 29 para 4.8.

14. At the 3 April 2023 Hearing, Mr Nolan, for the veteran, also submitted that the veteran contracted a service disease as distinct from sustaining a service injury – Tr. 3.4.2023 p. 8.

15. The Tribunal proceeded on the basis that the key question to be determined is when the veteran contracted his service disease.

16. It should be noted that in the documentation presented to the Tribunal prior to the 3 April 2023 Hearing, and on that day, reference was made to SoP 62 of 2014. The Tribunal subsequently became aware that this SoP had been repealed, effective from 27 March 2023, by SoP 13 of 2023 – Statement of Principles concerning Thoracolumbar Spondylosis (Reasonable Hypothesis). As will be explained below, although there are differences between the two instruments, those differences do not have a material effect on the ultimate disposition of this matter. For ease of reference to the submissions made by the parties, the Tribunal will refer to the provisions contained in SoP 62 of 2014, however reference will also be made to the current provisions in SoP 13 of 2023.

17. Although SoP 13 of 2023 applies to thoracolumbar spondylosis, subsection 7(3) provides that for the purposes of the SoP:

    “‘thoracolumbar spondylosis’ means a degenerative joint disorder affecting the thoracolumbar vertebrae or intervertebral discs including spondylosis at thoracolumbar and lumbosacral junctions.”

    [Emphasis in original]

18. The wording of the SoP makes it clear that diagnoses of lumbar spondylosis or thoracic spondylosis can be made when the degenerative disc disorder is limited to either the lumbar or thoracic spine. However, a combined diagnosis of thoracolumbar spondylosis can be made if the degenerative disc order impacts on both the lumbar and thoracic spines.  In this matter a diagnosis of lumbar spondylosis alone nonetheless falls with the definition of thoracolumbar spondylosis.

19. At the 24 May 2023 Hearing, the Tribunal’s attention was drawn to s 341 of the Act, which provides that if the Tribunal is reviewing  a determination in relation to a claim to which

    
    

    ss 338 or 339 applies, the Tribunal is required to apply the current SoP. This provision has the effect of reversing the Full Court decision of Repatriation Commission v Keeley (2000) 98 FCR 108.

20. In this matter, the Tribunal is not making a determination to which s 338 applies, as the issue of liability has already been made and is not in dispute. The only question is the relevance of the SoP to the question of when a disease is contracted. As will be explained below the wording of both SoP 62 of 2014 and No 13 of 2023 are similar, and, accordingly, no issue arises irrespective of which SoP applies.

    THE HEARING

21. An in-person Hearing was convened in Brisbane on 3 April 2023 and a further Hearing was convened on 24 May 2023 to deal with the implications of the repeal of SoP 62 of 2014 by SoP 13 of 2023.

22. At the 3 April 2023 Hearing, Mr Nolan appeared for the veteran and Mr B Dube appeared for the Commission.

23. No witnesses were called by either party, and the focus of the Hearing was receiving oral submissions from Mr Nolan and Mr Dube on the proper interpretation of the relevant provisions in the Act.

24. At the 24 May 2023 Hearing, Mr Isolani appeared for the veteran and Mr Dube appeared for the Commission.

    CONSIDERATION

    Introduction

25. In resolving the question before the Tribunal, it is necessary to first state some overarching principles of statutory interpretation that assist in reaching the correct or preferable result.

26. First, the Tribunal agrees with the Commission’s submission that words not defined in an Act should be given their ordinary meaning – Exhibit 2 R1 p. 29 para 4.10. This is a basic principle of statutory interpretation adopted throughout the common law world – see, for example, Seay v Eastwood [1976] 1 WLR 1117 at 1121 and NSW Associated Blue-Metal Quarries Ltd v FCT (1956) 94 CLR 509 at 514.

27. Second, a statute is to be read as a whole, or to put it another way, words should be interpreted as part of an instrument and not divorced from their context. As Mason J (as he then was) observed in K & Lake Freighters Pty Ltd v Gordon & Gotch Limited (1985) 157 CLR 309 at 315:

    “…to read the section in isolation from the enactment of which it forms a part is to offend the cardinal rule of statutory interpretation that requires the words of a statute to be read in their context…”

    The veteran’s submissions

28. The veteran’s case is set out in both the Applicant’s Statement of Facts, Issues and Contentions (“ASFIC”) of 13 October 2022 as well as in Mr Nolan’s oral submissions at the 3 April 2023 Hearing.

29. Turning first to the ASFIC, it is pointed out that the Commission accepted liability for the veteran’s condition of degenerative lumbar disc disease with radiculopathy with effect from 24 February 2018, however it is also pointed out that Dr Grayson opined that the approximate date of the onset of the injury or disease was September 2017 – Exhibit 2 A1 p. 6 para 28. At the Hearing Mr Nolan submitted that the difference in times was of no consequence as the veteran was a Reservist and an accountant throughout – Tr. 3.4.2023 p. 5.

30. It is submitted in the ASFIC that the “date of effect” for the acceptance of liability was calculated by reference to the date of clinical onset of the veteran’s condition, which in turn was calculated by reference to the earliest available imaging evidence of the condition – Exhibit 2 A1 p. 6 para 29. In short, liability was accepted for the manifestation of the veteran’s condition whilst he was serving as a Reservist – Exhibit 2 A1 p. 6 para 30.

31. Somewhat confusingly, the ASFIC proceeds on the basis that the veteran sustained a service injury as distinct from contracting a service disease. However, it is tolerably clear that the thrust of the submissions in the ASFIC proceed on the basis that the contraction of the service disease (or in the terminology of the ASFIC, the sustaining of the service injury) was the time that the symptoms of the disease manifested themselves.

32. The Tribunal had the benefit of more fulsome submissions on behalf of the veteran by Mr Nolan.

33. Consistent with the ASFIC, Mr Nolan submitted that a service disease is not contracted until there are symptoms based on the relevant SoP – Tr. 3.4.2023 p. 8.

34. Section 6 of SoP 62 of 2014 set outs the factors, one of which, must as a minimum exist before it can be said that a reasonable hypothesis has been raised connecting lumbar spondylosis with the circumstances of the veteran’s service. It is not disputed that Factor 6(j) applies to the veteran’s service, namely:

    “lifting loads of at least 25 kilograms while bearing weight through the lumbar spine to a cumulative total of at least 120 000 kilograms within any ten year period before the clinical onset of lumbar spondylosis.”

35. Section 9 of SoP 13 of 2023 is the equivalent provision. The relevant Factor in this SoP is 9(13):

    “lifting loads of at least 20 kilograms while bearing the weight through the thoracolumbar spine to a cumulative total of at least 100,000 kilograms within any ten year period before the clinical onset of thoracolumbar spondylosis.”

36. There is no material difference between these Factors, except the latter only requires the lifting of 100,000 kilograms within any 10-year period before clinical onset.

37. The term “clinical onset” is not defined either in SoP 62 of 2014 nor in the Act. However, it is well accepted that the clinical onset of a disease is “…either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present…” – Robertson and Repatriation Commission (1998) 50 ALD 668 (“Robertson”) at [23].

38. Helpfully, Schedule 1 of SoP 13 of 2023 contains a definition of “clinical onset”:

    “the point backwards in time from the first date of imaging confirming thoracolumbar spondylosis, to the date at which the symptoms of thoracolumbar spondylosis were persistently present, as assessed by a registered medical practitioner.”

39. This definition is broadly consistent with the test outlined in Robertson.

40. It will be seen that both SoPs focus on, in the relevant Factor, the clinical onset of lumbar spondylosis. There is no mention of the contraction of lumbar spondylosis or indeed, if clinical onset and contraction are synonymous or different concepts.

41. Mr Nolan drew the Tribunal’s attention to the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth) (“the Consequential and Transitional Provisions Act”). This statute deals with transitional matters in relation to the Act. The Explanatory Memorandum which was circulated with the Bill provides the following information about the objects of the legislation:

    “This Bill makes provision for consequential and transitional amendments required following commencement of the Military Rehabilitation and Compensation Act 2003 (MRCA). The Bill comes into effect on the day that section 3 of the MRCA commences.

    The transitional provisions of this Bill relate to:

    •    service rendered on or after the MRCA commencement date; and

    •    a period of service activity which spans a period before and after the commencement date.

    The same heads of liability as appear in the Veterans’ Entitlements Act 1986 (VEA) and the MRCA for the purpose of determining whether an injury or disease relates to defence service will be used.

    A person who has a VEA accepted condition (the old injury or disease) and that condition is made worse after the commencement of the MRCA can either:

    •    make a claim under the MRCA for an aggravation or material contribution to that condition; or

    •    apply for an increase in disability pension under the VEA because of worsening.

    The impairment rating for the old injury or disease, whether liability was accepted under the VEA or Safety, Rehabilitation and Compensation Act 1988 (SRCA), will be determined under the MRCA guide and deemed to have been impairment under the MRCA. Only that portion attributed to service after commencement will attract any further permanent impairment payment.”

    [Emphasis in original]

42. Mr Nolan also drew the Tribunal’s attention to s 7 of the Consequential and Transitional Provisions Act which provides as follows:

    “Application of the MRCA to certain injuries, diseases and deaths

    (1)  The MRCA applies to a person’s injury, disease or death if:

    (a)  the injury is sustained, the disease is contracted, or the death occurs, on or after the commencement date; and

    (b)  the injury, disease or death either:

    (i)  relates to defence service rendered by the person on or after that date; or

    (ii)  relates to defence service rendered by the person before, and on or after, that date.

    (2)  The MRCA applies to an aggravation of, or a material contribution to, a person’s injury or disease, or a sign or symptom of a person’s injury or disease, if:

    (a)  the aggravation or material contribution occurs on or after the commencement date (even if the original injury is sustained, or the original disease is contracted, before that date); and

    (b)  the aggravation or material contribution either:

    (i)  relates to defence service rendered by the person on or after that   date; or

    (ii)  relates to defence service rendered by the person before, and on or after, that date.

    (2A)  Subsection (2) is subject to section 9.

    Note:     Section 9 sets out when the MRCA does not apply to aggravations of, or material contributions to, VEA injuries and diseases.

    (3)  To avoid doubt, defence service is rendered before, and on or after, the commencement date whether the service spans the commencement date or is rendered during separate periods before and on or after that date.”

43. Mr Nolan submitted there was a distinction between the contraction of a disease and the rendering of defence service. In Mr Nolan’s submission, they are two separate questions, and in this matter the distinction was said to be between the heavy lifting over time which was the relevant defence service rendered, and the contraction of the disease which was said to be when the signs and symptoms of lumbar spondylosis manifested themselves – Tr. 3.4.2023 p. 9.

44. Mr Nolan then referred to s 10 of the Consequential and Transitional Provisions Act, which provides as follows:

    “Subsection 7(4) of the DRCA does not apply in determining the day on which a disease is contracted, or aggravated or materially contributed to, for the purposes of paragraph 7(1)(a) or (2)(a) or 8(1)(a) or (2)(a).”

45. Subsection 7(4) provides as follows:

    “(4) For the purposes of this Act, an employee shall be taken to have sustained an injury, being a disease, or an aggravation of a disease, on the day when:

    (a)the employee first sought medical treatment for the disease, or aggravation; or

    (b)the disease or aggravation resulted in the death of the employee or first resulted in the incapacity for work, or impairment of the employee.”

46. The Explanatory Memorandum to the Consequential and Transitional Provisions Act provides the following information regarding s 10:

    “Under subsection 7(4) of the SCRA, the date of injury in the case of disease is the date the person first sought medical treatment or the date the disease resulted in impairment, incapacity for work or death. Where the person’s disease can be attributed to service before the MRCA commencement date, then the MRCC must be able to determine a date that is relevant to the SRCA.

    This clause provides that the day on which the disease is contracted, aggravated or materially contributed to for the purpose of paragraphs 7(1)(a), 7(2)(a), 8(1)(a) or 8(2)(a) of the Bill is the day the MRCC determines it to be and in accordance with the SoPs (where required), not the day arrived at by applying subsection 7(4) of the SRCA.

    This will ensure that that where person’s disease can be traced back to service covered under the SCRA but the disease does not manifest in impairment, incapacity for work or death until on or after the MRCA commencement date (or treatment is not sought until then), the person’s eligibility for compensation remains under the SRCA.”

47. It is tolerably clear that s 7(4) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (and the later defence-related claims version) is not directly applicable to the resolution of this matter. However, what is important, is that the Parliament chose to insert a deeming provision in the 1988 Act which provided that the date a disease is contracted is when, inter alia, a person first sought medical treatment. Reference can be made to the following judgment of Heerey J in Australian Telecommunications Corporation v Moffat (1992)
    15 AAR 289 at 292 – 293:

    “The applicant contended that by virtue of s.7(4) the respondent sustained his injury, being a disease, on 14 August 1990, when he first sought medical treatment for his condition. At this time he was no longer employed by the applicant. Therefore, so the argument runs, there was no liability to compensate under s.14, because an "employee" must be someone who is presently employed by the Commonwealth or a Commonwealth authority. Reference was made to the use of the present tense in s.5(1) which provides:

    5(1) In this Act, unless the contrary intention appears, "employee" means a person who is employed by the  Commonwealth or by a Commonwealth authority, whether the person is so employed under a law of the Commonwealth or of a Territory or under a contract of service or apprenticeship.

    This is a startling contention. It confronts head on two basic principles which have long been enshrined in workers' compensation legislation in this country. First, that either a causal or a temporal nexus between injury and employment is sufficient: cf Kavanagh v Commonwealth (1960) 103 CLR 546, at 558 per Fullagar J. Secondly, that incapacity arising from work related disease should be no less compensible than incapacity arising from injury. Practical differences between injury and disease have necessitate some distinctions, so that in the case of the latter a mere temporal relationship between employment and contraction of the disease is not sufficient; see for example s.29 of the 1971 Act and the definitions of "injury" and "disease" in s.5(1) of the present Act. But disease can be just as disabling as injury and if either is caused by employment, long accepted policy is that the employer should compensate the worker for that incapacity.

    The applicant's argument would mean that, notwithstanding overwhelming and incontrovertible proof of a causal connection between employment and disease, there would be no compensation for a Commonwealth employee who did not seek medical treatment until after employment ceased, even if that occurred the next day and even if there had been dismissal by an employer who suspected the onset of the disease. The injustice of such an outcome is self evident.

    Further, there is often a long delay between the contraction of a disease and the emergence of symptoms indicating medical treatment. An excellent example is mesothelioma itself, where the condition will lie dormant for at least 10 years and often up to 20 or 30 years. Thus in very many cases the employee will have ceased employment before medical treatment is sought. The applicant's argument would wipe out any obligation to compensate in such cases.

    Where the applicant's argument breaks down in my opinion is s.5(1). I think a contrary intention necessarily appears in s.7(4) because reading "employee" in the prima facie s.5(1) sense would lead to absurd and unjust results of the kind mentioned. In my opinion s.7(4) is to read as applying to any employee who has otherwise established a right to compensation in respect of incapacity from an "injury" in the nature of a disease. Such a right is determined elsewhere in the Act, namely by s.14.

    As the AAT pointed out, s.7(4) can have useful work to do by providing a certain starting point in the case of diseases, some of which may be of gradual development, to enable the calculation of such matters as entitlements to benefits, or the commencement date from which a statutory period for making an election or lodging a claim should run. I do not think the decision of the New South Wales Court of Appeal in Commonwealth v Holland (unreported, 30 August 1991) supports the applicant's argument. If it does, I would respectfully decline to follow it.”

1. It will be seen that Heerey J proceeded on the basis that there is a difference between the contraction of a disease in the case of insidious diseases and the manifestation of signs and symptoms of that disease some time thereafter.

2. So, at first blush, the operation of the above provisions would not appear to advance the veteran’s cause.

3. Mr Nolan also drew the Tribunal’s attention to some case law.

4. The first case was the Full Federal Court decision of Comcare v Etheridge (2006) 149 FCR 522. The claimants in this matter were exposed to asbestos while employed by the Commonwealth between 1939 and 1976 but did not develop symptoms or seek treatment for mesothelioma until 1999.

5. The first question before the Court was whether the mere experiencing of an event or condition necessary for the development of a disease contracted by gradual process
   (e.g. inhalation of asbestos fibres) is capable of constituting an injury with the meaning of the Commonwealth Employees’ Compensation Act 1930 (Cth) (“the 1930 Act”) or the Compensation (Commonwealth Government Employees) Act 1971 (Cth) (“the 1971 Act”).

6. Branson J made the following observations:

   40“…The scheme of the 1930 Act (both before and after 3 January 1949) makes plain, in my view, that the mere experiencing of a condition necessary for the contraction by gradual process of a disease was not, without more, capable of constituting an ‘injury’ within the meaning of the 1930 Act…

   …

   45Similarly, in my view, the scheme of the 1971 Act makes plain that the mere experiencing of an event or condition necessary for the development of a disease by gradual process did not fall within the definition of ‘injury’ contained in that Act. The 1971 Act contained provisions that dealt separately with claims for compensation as a result of injury and claims for compensation as a result of the contraction of disease. These provisions included provisions which facilitated proof, in the case of certain diseases, that the employment in which the employee was engaged by the Commonwealth contributed to the contraction of the disease. The legislative intent behind these provisions would be largely rendered unnecessary if the mere experience of a condition necessary for the contraction by gradual process of a disease were itself to be regarded as a ‘injury’ within the meaning of that Act.”

7. Her Honour then dealt with authorities relied upon by Comcare and noted that they involved State Workers’ Compensation legislation and did not involve a consideration of the provisions of the 1930 and 1971 Commonwealth legislation. Branson J observed (at [46]/533):

   “The authorities upon which Comcare placed reliance do not suggest that the above conclusions concerning the proper interpretation of the 1930 Act and the 1971 Act are not open and appropriate. As mentioned, generalities are dangerous where the relevant question is one of statutory construction.”

8. Mr Nolan submitted that while the Full Court in the above matter was considering different Commonwealth statutes the provisions contained in the Act are similar, and without stating more, implicitly submitted that it was open to the Tribunal to apply the same principles in this matter – Tr. 3.4.2023 p. 10.

9. The other case cited by Mr Nolan was another Full Federal Court decision, Repatriation Commission v Bawden (2012) 206 FCR 296 (Bawden).

10. Badwen involved a claim in respect of post-traumatic stress disorder under the Veterans’ Entitlements Act 1986 (Cth). The Full Court referred to the following passage from the earlier Full Court decision of Repatriation Commission v Budworth (2001) 116 FCR 200:

    19“The expression ‘as claimed’ in s 19(7) to which Whitlam J drew attention in the passage from Benjamin which we have just cited, qualifies the whole clause to which it is attached, namely, ‘that the veteran suffered the injury or contracted the disease’. This means, we consider, that the decision-maker has to identify the collection of relevant symptoms which he or she is satisfied constituted the disease which the veteran contracted. It is not a matter of nomenclature or attaching a traditional medical label to the collection of symptoms. That, as the conflicting expert psychiatric evidence of Dr Knox and Dr Dent on the one hand and Dr Spragg on the other, shows in relation to the label “Post Traumatic Stress Disorder”, may turn on questions of causation or aetiology. Once the decision-maker has identified to his or her reasonable satisfaction, the collection of relevant symptoms from which an applicant suffers, the question of whether those symptoms were war-caused has to be resolved by imposing on the commission the reverse onus of proof on the criminal standard in accordance with s 120(1) as qualified by s 120(3).”

    [Emphasis in original]

11. The passage of the Full Court decision in Bawden was as follows ([47]/307):

    “In our respectful opinion, this passage means that the decision-maker must be satisfied that a collection of symptoms manifests a diagnosable disease, and if it is so satisfied, it must then consider whether the illness or disease is war-caused. The point for present purposes is that PTSD can only be diagnosed as an illness or disease in terms of a traumatic event. It may be that, as Dr White suggested in his evidence before the Tribunal, there are PTSD-like diseases not falling within the DSM-IV description, such as, for example, an adjustment disorder or a depressive disorder. The decision-maker needs to consider whether the veteran’s symptoms manifest any illness or disease resulting in incapacity. But, to the extent that the claim is for incapacity from PTSD and a decision-maker is not satisfied that a traumatic event produced those symptoms, the decision-maker cannot proceed to a diagnosis of PTSD.”

12. Mr Nolan drew the Tribunal’s attention to the observation that “the decision maker must be satisfied that a collection of symptoms manifests a diagnosable disease, and if so satisfied it must then consider whether the illness or disease is war-caused.” He went on to submit that the scheme of the Act is that in determining if a disease has been contracted, reference must be made to the relevant SoP, but this in turn requires a diagnosis based on a collection of symptoms – Tr. 3.4.2023 p.11.

13. This is, in the opinion of the Tribunal, too broad a proposition, and care must be taken not to quote selectively from passages in judgments relating to different statutes. However, the Tribunal does accept that in determining if a particular disease has been contracted for the purposes of the Act, it is appropriate, if not necessary, to refer to the provisions of the relevant SoP.

14. In this matter the parties referred to SoP 62 of 2014. Relevantly s 3(b) defines lumbar spondylosis as “a degenerative joint disorder affecting the lumbar vertebrae or intervertebral discs…” The SoP then goes on to require:

    (i)“clinical manifestations of local pain and stiffness, or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression; and

    (ii)imaging evidence of degenerative change, including the disc space narrowing or osteophytes…”

15. The relevant definition in SoP 13 of 2023 of  “thoracolumbar spondylosis” is, to all intents and purposes, the same as  that of lumbar spondylosis in SoP 62 of 2014
    – see s7(2) and (3).

16. Mr Nolan submitted, after referring to the above provisions in SoP No 62 of 2014, that having asymptomatic or non-symptomatic lumbar spondylosis is not the condition that is considered and determined in accordance with the SoP. The SoP requires, by definition, that the disease of lumbar spondylosis must manifest symptoms of pain and stiffness. Accordingly, when determining if lumbar spondylosis has been contracted, reference must be made to the requirements of s 3(b) of SoP 62 of 2014 – see Tr. 3.4.2023 p.11. The same requirement is found in s 7(2) of SoP 13 of 2023.

17. Mr Nolan summed up this position as follows – Tr. 3.4.2023 p. 12:

    “…we need to take into account the specific condition that is being claimed in this case. Now, if there is a condition that doesn’t require the onset of symptoms in order to meet that diagnosis – so, for example, if we reverse this. Say the member, whilst being exposed to these traumatic events, puts in a claim under the DVA[,] liability will be rejected because he doesn’t have any symptoms, he doesn’t meet the SOP. He doesn’t have a disease at that point.  That’s the point. So, it wasn’t contracted at that point because he didn’t have the disease. You can’t contract something that doesn’t exist by definition. That’s the point. So, when you’re looking at those other cases that deal with disease just generally in, you know, extension of time applications for limitation dates we’re not talking about the general nature of the disease. We’re talking about a specific regime that deals with this situation.”

18. The Tribunal’s attention was also drawn to the Explanatory Memorandum  that was circulated with the Military Rehabilitation and Compensation Bill 2003. The following explanation was provided with respect to clause 117 which was the simplified outline of
    Part 4 of Chapter 4:

    “This clause provides a simplified outline of Part 4 of Chapter 4, which provides compensation for people who are incapacitated for civilian work as a result of service injury or disease… A person will be compensated for the amount of earnings actually lost as a result of the injury. This is determined by looking at the person’s normal earnings, subtracting the person’s actual earnings for a week, and paying the difference in the form of incapacity payments.”

19. Mr Nolan submitted that the Act contemplates that a person will be compensated for actual earnings lost, which in this case is the wages the veteran earned both as a Reservist and as an accountant, and not the wages he earned when rendering full-time service –
    Tr. 3.4.2023 p. 13.

    The Commission’s submissions

20. The Commission contends that the expressions “sustained” and “contracted” are temporal and causal having regard to the different thresholds by which liability under the Act is accepted for an injury or a disease – Exhibit 2 R1 p. 29 para 4.7.

21. Further, the Commission contends that the veteran’s lumbar spondylosis is a disease within the meaning of that term in the Act, and is not interchangeably referrable to being an injury – Exhibit 2 R1 p. 29 para 4.8. The Tribunal agrees with the Commission that the veteran suffers from a “disease” as defined in s 5 of the Act, and not, in addition, or in the alternative, an “injury” as defined in s 5 of the Act.

22. The Commission, therefore, contends that the key issue for determination by the Tribunal is when the veteran contracted lumbar spondylosis. As explained above, the Tribunal also agrees with this submission.

23. Reference was made to the accepted rule of statutory interpretation, that a word not defined in a statute is to be given its ordinary meaning – Exhibit 2 R1 p. 29 para 4.10.

24. Further, reference was made to the definition of “contract” in the Macquarie Dictionary as quoted by the Board, namely “to acquire, as by habit or contagion: to contract a disease” – Exhibit 2 R1 p. 29 para 4.11.

25. The Commission contends that in this matter the question is, when the service disease was contracted, which is when the veteran’s service, the facts and circumstances of that service, had the causal connection with the disease – Exhibit 2 R1 p. 29 para 4.12.

26. In support of this central contention, the Commission submitted that “contracted” in the context of veterans’ compensation and Workers’ Compensation had a long association, and the Tribunal was referred to provisions in a number of statutes – Exhibit 2 R1 p. 29 paras 4.14 – 4.17.

27. The Commission contends that in those statutes “contracted” is to be read in the context of causation, rather than by reference to the onset of symptoms or date of diagnosis. Further, as the Act was designed on principles flowing from the Veterans’ Entitlements Act 1986 and the Safety, Rehabilitation and Compensation Act 1988, a consistent interpretation and application was clearly intended by Parliament – Exhibit 2 R1 para 4.18. The Tribunal’s attention was drawn to the following observations of Mason P in Harrison v Melhem (2008) 72 NSWLR 380 at [131]:

    “There is a principle of statutory interpretation supporting a presumption that a legislature intends to attach the same meaning to the same words when used in a subsequent statute in a similar connection.”

28. The Tribunal agrees that this is a well-established principle of statutory interpretation: it was formerly referred to as the in pari materia principle. The Privy Council, in an appeal from the High Court of Australia, in Lennon v Gibson and Howes Ltd (1919) 26 CLR 285 at 287 made the following observation:

    “In the absence of any context indicating a contrary intention, it may be presumed that the Legislature intended to attach the same meaning to the same words when used in a subsequent statute in a similar connection.”

29. As the Privy Council made clear, the in pari materia principle, cannot be applied where there is a contrary intention manifested in a statute, whether that intention is clearly stated, or implicit in the scheme of the legislation.

30. The Commission referred the Tribunal to the High Court decision of Burns Philp & Company Limited v Myrhe (1934) 51 CLR 463 (Burns Philp). The case involved the interpretation of Articles of Agreement between Mr Myrhe and his employer whereby he would receive compensation in the event he contracted an illness “on board of the ship or in the service of the ship or her owner, or a hurt or injury sustained in the service of the ship or her owner.”

31. Gavan Duffy CJ, Rich and McTiernan JJ made the following observations (468 – 469):

    “The question on which the parties are at issue is whether the illness which incapacitated the respondent from following his duty was ‘so far as can be ascertained’ an illness ‘contracted on board of the ship or in the service of the ship or her owner’ (22(c)(3)). The issue was, indeed, narrowed by Mr Matthews conceding that the time at which an illness is contracted may precede the time when it incapacitates the seaman. Mr Fahey relied upon the decision of Angas Parsons J in Herbert v Inter-State Steamships Pty Ltd…the learned Judge said at page 402:- ‘It seems that when the section under consideration speaks of an illness having been contracted, it refers to the origin or source of it…a person would be said to have contracted the disease when he was infected with the cause.  For example, in the case of smallpox, a seaman, who, in this sense, contracted smallpox before signing on, cannot be said to contract the disease when it manifests itself and incapacitates him from doing his work’…The Supreme Court of Queensland in the present case held that it was erroneous to say that ‘an illness was ‘contracted’ within the meaning of clause 22 when the incapacitating results are experienced’. We agree that an illness may be contracted within the meaning of the clause before those results occur.”

32. It will be seen that this case involved the application of orthodox principles of statutory interpretation to the wording of the particular clause in the Articles. The judgment of the Court focused, as would be expected, on the compensation scheme enshrined in the Articles and how the drafting adopted gave effect to that scheme. This is illustrated by the extract of the judgment set out below (at 471):

    “It is only by reading the words relating to the onset of illness in ‘a spirit of meticulous literalism’…that clause 22 can be held to have any operation in the case of an illness contracted before the articles began. Clause 22 upon its true construction was intended to determine the rights and obligations of the parties in case the respondent might contract an illness during the currency of the agreement entered into on 10 January 1933, whether the illness was contracted on board the ship or not on board, as contrasted with illness contracted in other circumstances during that period.”

33. The Commission also relies on the High Court decision of Stingel v Clark (2006)
    226 CLR 442. This was a case involving the Victorian Limitation of Actions Act 1958. The Appellant sought damages for trespass to the person and submitted that she suffered as a consequence from an injury in the form of post-traumatic stress order of delayed onset. The question was whether the action was statute barred, and the resolution of this question turned, inter alia, on when the disease or disorder was contracted. The symptoms of the disease (PTSD) did not, in this case, manifest themselves for some years after the trespass occurred (1971).

34. Gleeson CJ, Callinan, Heydon and Crennan JJ made the following observations ([28]/459):

    “Section 5(1A) follows, and qualifies, s 5(1). The reference in s 5(1A) to a cause of action being taken to have accrued on a certain date is plainly related to the reference in s 5(1) to a limitation period expiring six years from the date on which the cause of action accrued. ‘Taken to have accrued’ means ‘taken to have accrued for the purposes of determining the limitation period’. The damages claimed by the appellant include damages in respect of personal injuries (of a psychiatric nature) consisting of a disorder contracted by the appellant.  There is nothing in s 5(1A) that limits its operation to cases in which the disorder was contracted before the expiry of the limitation period identified in s 5(1). Nor is its operation limited to diseases, insidious or otherwise. The expression used is ‘disease or disorder’, not ‘insidious disease’. The provision undoubtedly covers a case where a plaintiff suffered personal injuries before he or she knew of them. Indeed, such a case may be the most common case to which the provision applies. There is, however, nothing in the language which denies it application to a case where knowledge of disorder, and of its cause, occurs at or about the same time as the occurrence of the disorder.”

35. The Tribunal does not obtain much assistance from this decision. It is tolerably clear that it involved the interpretation of the wording of provisions in the Limitation of Actions Act 1958 (Vic).

36. The Commission submits that the above cases, as well as others not dealt with, demonstrate that there is a distinction between when a disease is contracted and when the signs and symptoms of that disease become readily apparent and diagnosable. “Contracted” in the context of the Act, the Commission submits, is intended to direct attention to the period of service attributable to the causation of the disease – Exhibit 2 R1 p. 30 para 4.22.

37. In support for the causal construction of the expression “contracted”, the Commission made the following submissions – Exhibit 2 R1 pp. 30 – 31 paras 4.23 – 4.24:

    (a)the Act distinguishes situations where “contracted” is used by reference to the disease itself (s 27) for existence of liability and the use of “contracted” in the context of a “service disease” in (e.g.) s 163. The latter directs attention to when an accepted disease, being a “service disease” was contracted;

    (b)in contrast, “service disease” direct the “contracted” inquiry to a “disease” being contracted including to before the commencement of service (s 27(d)), which can still be a “service disease” provided the necessary causal connection is met;

    (c)such an approach gives meaning to every word in the relevant sections, whereby every word has work to do and to give meaning to every word of the provision; and

    (d)if the veteran’s lumbar disease only manifested itself in 2021, then neither Division 5 or 7 would apply as he was neither a member of the Permanent Forces nor a member of the Reserves. That would create a legislative gap in the assessment of the veteran’s earnings, which clearly cannot be intended.

    Analysis of the submissions

38. The issue to be determined in this matter involves the application of accepted principles of statutory interpretation to, inter alia, what is contemplated in the Act as to the time that a disease is contracted, and specifically, in case, the disease of lumbar spondylosis.

1. The leading modern Australian authority on statutory interpretation is Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 194 CLR 355. Their Honours, McHugh, Gummow, Kirby and Hayne JJ made the following observations ([78]/384):

   “However, the duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning of the provision.  But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”

2. The Commission in its written submissions (Respondent’s Statement of Issues, Facts and Contentions) as well Mr Dube in his oral submissions at the 3 April 2023 Hearing, convincingly outlined that generally in Workers’ Compensation and related legislation, the contraction of an “illness” or “disease” is the time (or times) of the circumstances that gave rise to the incapacity for work, as distinct from the time that the signs and symptoms of the illness or disease appeared. To quote Angas Parsons J, “a person would be said to have contracted the disease when he was infected with the cause…” as distinct from the time when the incapacitating results are experienced. The Tribunal does not understand that Mr Nolan would contest that general proposition.

3. The issue for the Tribunal, however, is whether that general principle is manifested in the scheme prescribed by the Act.

4. Turning first to the definition of “disease” found in s 5 of the Act, it has the same wording as the definition of “disease” found in s 5D(1) of the Veterans’ Entitlements Act 1986. A different approach is manifested in the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988, with the requirement of significant contribution and a defence of reasonable administrative action – ss 5A(2), 5B(1).

5. The definition of “disease” in s 5 of the Act does not refer to the time when the disease is contracted. It does, however, cover the instances of whether a disease is of sudden onset or gradual development.

6. The Act, however, is different from the Veterans’ Entitlements Act 1986, in that it introduces the concept of service injuries and service disease in Chapter 2.

7. Section 23 of the Act first introduces the notion of a disease being “contracted”. As previously explained, s 27 then goes on to define, inter alia, what circumstances must arise if there is a “service disease” or a “service injury”. Generally speaking, the circumstances outlined link the nature of the rendering of service, in the case of a disease, with the contraction of the disease. It would be fair to say that implicit in some of the circumstances contained in s 27, is the notion that the contraction of a disease occurs at the time that a veteran was “infected with the cause”. This should not be a matter of contention, as the definition of disease contemplates ailments manifesting in either sudden onset or gradual development.

8. Section 22 of the Act, which contains a simplified outline of Part 2 of Chapter 2, contains the following explanation:

   “For some claims for acceptance of liability for an injury, disease or death the standard of proof can only be met if the injury or disease or the cause of death, is covered by a Statement of Principles…”

9. In this matter, the veteran’s claim is for a disease relating to warlike service, and s 338 applies. In short, reasonableness of hypothesis is to be assessed by reference to the relevant SoP.

10. Central to the veteran’s case is the role to be played by the SoP regime in determining when a disease is “contracted”. If not for the SoP regime, the principles of law surrounding the contraction of a disease which Mr Dube properly and helpfully submitted at the Hearing would be applied.

11. In numerous cases, the centrality of the SoP regime for the operation of both the Act and the Veterans’ Entitlements Act 1986 has been recognised by both the Federal Court and the Tribunal.

12. It is not necessary to outline the history of how and why the SoP regime was inserted into, initially, the Veterans’ Entitlements Act 1986 in 1994. However, as Heerey J observed in Repatriation Commission v Gorton (2001) 65 ALD 609 at 614:

    “A SoP is sui generis as a form of legislative instrument.”

13. The SoP regime provides “the medical-scientific frame of reference” for claims under the Act – Vietnam Veterans’ Association of Australia NSW Branch Inc v Cohen (1996) 70 FCR 419 at 422 per Tamberlin J.

14. A SoP is subject to the normal principles of statutory interpretation. Senior Member Allen made the following observations in Wallis and Repatriation Commission [2000] AATA 1060:

    32“In seeking to interpret the SoP it must be kept in mind that it is a legislative instrument - see Tamberlin J in Vietnam Veterans' Affairs Association New South Wales Branch Inc v Cohen and Others [1996] FCA 981; 70 FCR 41. As such it is subject to the normal canons of statutory interpretation.

    33In interpreting a statute, a court or tribunal must consider context in the first instance not merely after an ambiguity is identified - see Spigelman CJ in Repatriation Commission v Vietnam Veterans Association of Australia NSW Branch Inc and Ors [2000] NSWCA 65; 48 NSWLR 548 at p575, para 107 and the cases there cited.”

15. At the outset, it must be emphasised that SoPs are not designed or used for the initial issue of diagnosis. That is a purely medical issue which is resolved by a diagnosis by a qualified clinician. This point was explained by Kiefel J (as she then was) in Repatriation Commission v Warren [2007] FCA 866 as follows:

    25“The anterior, or threshold, question for the Tribunal is whether the veteran suffers from the disease as claimed.  It is a distinct and separate statutory question, in the nature of pre-condition to any entitlement to a pension. There is no provision of the VEA which expressly requires the Tribunal to have regard to the SoP criteria in determining this question. The requirement that the Tribunal be reasonably satisfied that the veteran suffers from the claimed disease will usually require medical opinion…”

16. As noted earlier, it is not disputed that the veteran suffers from lumbar spondylosis as defined in s 3 of SoP 62 of 2014 and s 7 of SoP 13 of 2023. Also, as previously noted, this condition is defined in s 3(b) and s 7(3) respectively as “a degenerative joint disorder”. In terms of the definition of “disease” in s 5 of the Act, lumbar spondylosis is a physical ailment of gradual development.

17. The disease claimed by the veteran, namely lumbar spondylosis, is that disease as defined in SoP 62 of 2014 and SoP 13 of 2023. The SoP regime requires a decision-maker to apply the relevant SoP, and only if there is no applicable SoP, or there is no declaration by the Repatriation Medical Authority that a SoP is proposed, can a decision-maker go outside the SoP regime.

18. The definition of lumbar spondylosis in s 3(b)(i) of SoP 62 of 2014 and s 7(2)(a) of
    SoP 13 of 2023 require the clinical manifestations of local pain and stiffness, or symptoms and signs of lumbar (thoracolumbar) cord or lumbosacral (thoracolumbar) nerve root compression. In short, the SoP mandated disease of lumbar spondylosis is not recognised until the signs and symptoms of that ailment become apparent.

19. The question for resolution by the Tribunal is whether, as a matter of statutory interpretation, it is sensibly open to the Tribunal to find that the veteran’s lumbar spondylosis was contracted while he was rendering warlike service in Afghanistan in the context of a SoP in force that does not recognise that the disease of lumbar spondylosis exists until there are clinical manifestations of local pain and stiffness, which, in the case of the veteran did not occur until he was rendering service as a Reservist.

20. This is a difficult question, and both Mr Nolan and Mr Dube presented their respective clients’ cases persuasively and eruditely.

21. I have come to the conclusion that the preferable answer to the question, is that in the context of the disease of lumbar spondylosis, that disease is contracted when a veteran experiences the clinical manifestations of that disease rather than the time of the onset of the disease. This results from the operation of both s 3 of SoP 62 of 2014 and s 7 of SoP 13 of 2023. Lumbar spondylosis is given, by those SoPs, a specific definition. A veteran claiming that he or she has contracted that disease must “fit” within the template mandated by the SoP – Woodward v Repatriation Commission [2003] FCAFC 160. A decision-maker cannot rely on medical or other expert evidence to avoid or undermine the medical, scientific or other facts prescribed in the SoP. A hypothesis which does not fit within the SoP is not “reasonable” and the claim will not succeed – see Repatriation Commission v Gosewinckel (1999) 59 ALD 690 at [67] per Weinberg J.

22. A veteran must have a disease that meets the requirements, first, of s 3 or s 7, and then one or more of the Factors mandated in s 6 or s 9. It will be noted, also, that the relevant Factor in this matter, namely Factor (j) or Factor (13) requires the lifting of specified weights within any ten year period “before the clinical onset of lumbar spondylosis” or “thoracolumbar spondylosis”. What constitutes “clinical onset” has been explained above. Both SoPs focus on the time that the disease manifests itself in signs and symptoms and a diagnosis can be made.

23. It should also be noted in passing that the vast majority of the Factors outlined in both

    
    

    ss 6 and 9 refer to periods of time, events or symptoms before or after clinical onset or clinical worsening of lumbar spondylosis. The focus of the inquiry in ss 6 or 9 is overwhelmingly limited in time to when the signs and symptoms of lumbar spondylosis appear or deteriorate further, and not to the timing of the onset of the disease.

24. It is clear that when a disease is of sudden onset, the difficulties of determining the time the disease is contracted do not arise. The temporal and causal issues are capable of immediate resolution. The difficulty of determining when a disease is contracted arise when the disease is of gradual development. Even then, the authorities quoted by Mr Dube, sensibly lead to the conclusion that the date of contraction is usually the onset of the disease even though the symptoms of that disease may not manifest themselves for some time thereafter. I say “usually” because the High Court in Burns Philp specifically did not say that a disease is always contracted when a “person is infected with the cause”. Those were the words of Angas Parsons J of the South Australian Supreme Court. What the High Court did say was “the time at which an illness is contracted may precede the time when it incapacitates the seaman”. Their Honours went on to observe: “We agree that an illness may be contracted within the meaning of the clause before those results occur.” Their Honours specifically left open the possibility that a disease could be contracted at the time that a person first experiences the symptoms. This, no doubt, is for the sensible reason that in all cases a decision-maker must be guided by the statutory or contractual context in which that term is used.

25. The context the Tribunal has to deal with is a detailed statute which places at its centre, in terms of resolving the question of liability to pay compensation, the SoP regime. It would not be sensible or desirable to decide that the veteran contracted the disease of lumbar spondylosis, when the SoP does not recognise the existence of the disease until it has reached the stage when a veteran experiences the clinical manifestations of the disease. Mr Nolan presented this as the centrepiece of his contentions, and the Tribunal has come to the view that this submission carries with it great weight. It would be a strange result if the Tribunal found that the veteran contracted a disease at a time when the SoP for that disease does not recognise its existence.

26. It will be obvious then, that the conclusion reached by the Tribunal is predicated on the wording of the SoP for lumbar spondylosis. The conclusion reached is specific to that SoP, and it is not intended to constitute a general precedent for the time that any compensable disease is contracted for the purposes of the Act.

27. Turning to the Commission’s submissions outlined above at para 4.23 of the Respondent’s Statement of Issues, Facts and Contentions, the Tribunal is not persuaded by the analysis.

28. As previously noted, s 27 sets out the various circumstances that arise where either a service disease was contracted or service injury was sustained. In this matter the most likely paragraph of relevance is s 27(b), namely that the veteran’s lumbar spondylosis arose out of, or was attributable to, any defence served rendered by the veteran. With respect to the Commission, it is not apparent from a reading of this paragraph that it follows as a matter of logic that the contraction of the disease occurs at any particular time. In comparison, paragraph (a) refers to a service disease resulting from an occurrence that happened while the person was a member rendering defence service. As a matter of logic, it could be surmised that the disease is contracted, pursuant to s 27(a), when the occurrence happened.

29. Reference can also be made to Divisions 5 and 7 of Part 4 of Chapter 4. The key provisions in both Divisions are located in ss 152 and 163. In both sections, reference is made to “service injury or disease” and “when the service disease was contracted”. No particular guidance is provided from a reading of both Divisions as to when a particular disease was contracted. Somewhat unhelpfully ss 151 and 162, which set out a simplified outline of the respective Divisions, refer to the time when “the service injury or disease occurred”. This appears simply to be a short form of drafting to avoid reference to injury sustained or disease contracted, and the use of the word “occurred” does not appear to be of any significance or to divert attention away from the key concept, in this matter, of the contraction of a disease.

30. Again, it is not helpful when determining when a particular disease is contracted in the context of the Act, to engage in generalities. A decision-maker has to engage in a fact specific inquiry, focusing on the nature of the disease, the statutory scheme and, specifically, the wording of the relevant SoP, if, in fact, there is one. It is not correct to assume that in each case the SoP will provide a conclusive answer to the question of when a disease is contracted. However, when the disease claimed is one of gradual development, in some circumstances, as in this matter, assistance will be gleaned from the wording of the SoP.

31. Mr Dube, as highlighted above, outlined persuasively the history of how the Courts have generally determined, in the context of Workers’ Compensation and veterans’ entitlements law, when a disease is contracted. The Tribunal has no reason to cavil, overall, with Mr Dube’s analysis.

32. The issue before the Tribunal is not, however, how best to apply those cases to the present circumstances, but to ascertain how the Act operates and how best to determine when a disease is contracted in the context of the particular statutory scheme in question.

33. It would be helpful in the future if the Executive would give consideration to either presenting to Parliament legislation inserting a definition of “contracted” in the Act as well as the Veterans’ Entitlements Act 1986, or at least giving some legislative guidance to decision-makers. Clearly, the law is less than clear in this area, and for the sake of both veterans and the Commission, some clarity in this area would ensure that proceedings of the type now before the Tribunal, and previously before the Board, would not be required in the future.

    DECISION

34. The decision under review is set aside and the matter is remitted to the Commission for calculation of the amount of compensation payable to the veteran in accordance with Division 5 of Part 4 of Chapter 4 of the Act.

I certify that the preceding      145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J Sosso

..............................

Associate

Dated: 12 June 2023

Date of hearing:	3 April 2023 and 24 May 2023
Counsel for the Applicant:	Mr Philip Nolan
Solicitor for the Applicant	Mr Greg Isolani KCI Lawyers
Solicitor for the Respondent:	Mr Ben Dube Sparke Helmore