Davis and Military Rehabilitation and Compensation Commission (Compensation)

The Administrative Appeals Tribunal considered the case of a veteran and the Military Rehabilitation and Compensation Commission concerning a claim for a hiatus hernia. The dispute centred on whether the veteran met the criteria set out in Statement of Principles (SoP) No. 61 of 2022, which replaced SoP No. 69 of 2014, for the condition. The veteran's service history, including an ankle injury and subsequent medical management, was detailed, as was medical evidence regarding his body mass index (BMI) and the diagnosis of his hiatus hernia.

The Tribunal was required to determine two primary legal issues. Firstly, it needed to ascertain the meaning and effect of the change in wording in SoP No. 61 of 2022, specifically Factor 9(3), which referred to "being obese for at least the 2 years before the clinical onset of hiatus hernia," compared to the previous wording in SoP No. 69 of 2014, Factor 6(c), which required "being obese for a continuous period of at least two years before the clinical onset of hiatus hernia." Secondly, the Tribunal had to consider the correct approach to determining the "clinical onset" of the hiatus hernia, including whether it necessarily coincided with the first medical consultation.

The Tribunal reasoned that the change in wording from "continuous period" to "at least the 2 years before" did not substantively alter the requirement for obesity. It found that the natural meaning of the revised wording still imported a requirement for obesity to exist for at least two years prior to clinical onset, and this period must be continuous, not an aggregate of non-consecutive periods. Regarding clinical onset, the Tribunal applied the principles from *Kaluza v Repatriation Commission* [2011] FCAFC 97, holding that clinical onset is determined by medical evidence of the presence of symptoms or features, which may precede the date a patient first seeks medical treatment. The Tribunal also affirmed that a finding of clinical onset requires all symptoms of the disease to be present at or within the relevant period specified by the SoP, as supported by *Youngnickel v Repatriation Commission* [2004] FCA 1691.