Drew and Repatriation Commission - [2002] AATA 832

DECISION AND REASONS FOR DECISION [2002] AATA 832

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1138

VETERANS' APPEALS DIVISION          )
           Re      KENNETH EDDLESTON DREW
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member

Date24 September 2002
PlaceSydney

Decision      The tribunal sets aside the decision under review and substitutes its own decision that Mr Drew's disease of osteoarthrosis of the right hip ("the disputed disease") is a war-caused disease, with effect from 25 August 1994 and that Mr Drew qualifies for payment of Disability Pension at 90% of the general rate with effect from the first pension payday following the last pension payday on which the disputed disease was an accepted disability.
   [SGD] M J SASSELLA
  Senior Member
CATCHWORDS
VETERANS' ENTITLEMENTS – Disability Pension – Australian mariner – operational service – whether mariner was employed in Australia immediately before and immediately after employment outside Australia – osteoarthrosis of hip – whether a war-caused disease – trauma to the right hip
WORD AND PHRASES – "immediately"

Veterans' Entitlements Act 1986 ss 5C(1) ("Australian mariner"), 6A(1) (Item 1, column 3(c)), 6B(1), 7(1)(a), (e), 21(1), 120(1), (3), 120A, 196B, 196D
Seaman's War Pensions and Allowances Act 1940

Statement of Principles 81/2001 concerning osteoarthrosis

Bayley, Commissioner for Superannuation v (1979) 41 FLR 385
Bull v Repatriation Commission (2001) 66 ALD 271
Deledio, Repatriation Commission v (1998) 49 ALD 193
Gorton, Repatriation Commission v (2001) 33 AAR 370
Williams, Repatriation Commission v [2001] FCA 1195
Wood and Commissioner for Superannuation, Re (1989) 9 AAR 528

REASONS FOR DECISION

24 September 2002 Mr M J Sassella, Senior Member

THE APPLICATION

This is an application by Kenneth Eddleston Drew ("the applicant"), born 14 February 1941 (T9), to the Administrative Appeals Tribunal ("the tribunal") for review of a decision of the Veterans' Review Board ("the VRB") dated 9 May 2000 (T18) which affirmed a decision of the Repatriation Commission dated 2 July 1998 (T2). In the decision under review the respondent decided that Mr Drew's osteoarthrosis of the right hip was not war-caused and that Mr Drew was qualified for a Disability Pension payable at 70% of the general rate.
THE HEARING
The tribunal convened a hearing in this matter in Newcastle on 5 March 2002. Ms J Buss from the NSW Legal Aid Commission represented Mr Drew and Mr S Modder from the Department of Veterans' Affairs ("DVA") Advocacy Service represented the Repatriation Commission. The tribunal heard oral evidence from Mr Drew and took into evidence the following documents:

Exhibit TD1 – Section 37 Statement and associated documents (exhibits T1 – T25) provided by the respondent.
Exhibit A1 – Applicant's revised statement of facts and contentions, 9 October 2001.
Exhibit A2A – Report by Ms C Carter, 24 August 2001.
Exhibit A2B – Report by Ms Carter, 20 February 2002.
Exhibit A3 – Report by Dr Y A E Ghabrial, orthopaedic and spinal surgeon, 12 February 2001.
Exhibit A4 – Statement by applicant, 12 October 2000.
Exhibit R1 – Respondent's statement of facts and contentions, 28 February 2002.
Exhibit R2 – Report by Dr A Smith, orthopaedic surgeon, 31 January 2001.
Exhibit R3 – Report by Dr D Pacey, consultant in rehabilitation and pain medicine, 10 August 2001.
Exhibit R4 – Letter dated 4 March 2002 from respondent to tribunal.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS
was mr drew an "australian mariner"?

Mr Drew served in the Australian Merchant Navy from 1941 to 1977 (ex A1). A portion of this period was eligible service under the Veterans' Entitlements Act 1986 ("the Act"). The relevant provisions operate as follows:

Section 5C(1) defines an "Australian mariner" as a person who was, during the period of World War 2 from its commencement to and including 29 October 1945, a person described in one of seven paragraphs. Clearly Mr Drew fell within paragraph (a) as a seaman employed under agreement in sea-going service on a ship registered in Australia that was engaged in trading between a port in a State or Territory and any other port.
Section 6B decrees when an Australian mariner was engaged in World War 2 operational service. Under s 6B(1)(a) this was during any period of employment outside Australia as an Australian mariner on a ship, or (b) during "any period of employment within Australia as an Australian mariner on a ship if that period of employment ended immediately before, or started immediately after, the period of employment referred to in paragraph (a)" (tribunal's emphasis).
Section 7(1) provides that an Australian mariner is taken to have rendered "eligible war service" if engaged in operational service (s 7(1)(a)) and, in accordance with s 7(1)(e):
(i) if part of that employment was operational service—for the part of that employment that was not operational service; or
(ii) in any other case—while the person was so employed.

Thus, the effect of these provisions is to accommodate Australian mariners within the Act in such a way as they can qualify for a Disability Pension for an eligible war service caused injury or disease or for a war-caused injury or disease in the same way as a member of the Defence Force. An Australian mariner who has an injury or disease allegedly contracted through operational service can take advantage of the favourable onus of proof provisions in s 120(1) and (3) of the Act regarding the cause of the injury or disease. At the same time he or she is subject to s 120A in that the operational service connection to an injury or disease must be considered in the light of any applicable Statement of Principles ("SoP") published by the Repatriation Medical Authority under ss 196B and 196D of the Act.
In the present case Mr Drew has the diagnosed disease of osteoarthritis of the right hip. This is in addition to accepted disabilities bilateral sensorineural hearing loss, asbestosis associated pleural plaques and generalised anxiety disorder. His osteoarthritis had been thought to have had its onset in 1977 when Mr Drew slipped on an oily surface and fell down some metal stairs on the Express (T4). Until the primary decision in the present case he was receiving a Disability Pension at 80% of general rate (T2/4). The VRB had considered a number of issues when Mr Drew appealed to it and raised with the respondent whether Mr Drew had injured his hip during eligible service (T14). A DVA review officer concluded that Mr Drew's 1977 injury had been erroneously regarded as war-caused (T2). To be war-caused the injury must have occurred between 1941 and 1945, not in 1977. The decision granting pension in respect of right hip osteoarthritis was revoked and an ongoing rate of 70% was assessed.
mr drew's falls
From the Section 37 documents the first mention of events occurring between 1941 and 1945 that might be linked to Mr Drew's osteoarthritis occurred at the VRB on 9 May 2000 (T18). There were three events. One was a fall on the Mildura in Darwin Harbour in 1942. The next was on the Alagna and was another fall. The third incident was on the Munmorah. There was also a fall outside any eligible service period on the BP Endeavour in 1974, in addition to that in 1977 already noted.
In oral evidence, and in ex A4, Mr Drew discussed the falls during eligible service. From ex A2B it appears that Mr Drew served on the Mildura from 29 January 1944 until 18 March 1944. The ship was in Darwin from 26 February 1944 until 6 March 1944. Mr Drew said that he fell over a winch in the dark on the way back to his quarters after a watch. He said he fell onto his right side. A colleague, William Dwyer, helped Mr Drew to his bunk. He took a shower before resting and noticed heavy bruising on his right leg from his "hip halfway down to [his] right knee". Mr Drew saw the second mate, the man responsible for medical problems, the next day but was given no treatment. The hip remained tender to touch for a week or so. The ship was in port "for about another week" and Mr Drew had light duties only, mainly painting and cleaning. Mr Drew limped around for a while because of hip and muscular leg pain. The ship then sailed for Cairns and Mr Drew had to resume normal duty as a trimmer supplying coal to the fireman with a wheelbarrow. He said he could not do his duties properly and was helped by mates. In Cairns he was hospitalised with scabies for a week and the hip was "much improved". He said in oral evidence that he went into hospital about a week or so after the fall, but in fact he went into hospital on 18 March (ex A2B). Mr Drew said that he still had the limp when he was admitted to hospital. Further, he said that the right leg and hip never fully recovered. They were always "a bit dicky". However, Mr Drew did not report this to successive doctors.
The second fall was on the Alagna. Mr Drew served on the Alagna from 25 April 1945 until 22 August 1945 (ex A2B). The Alagna sailed overseas, which no other of Mr Drew's ships did during the World War 2 period. When in the Solomon Islands Mr Drew slipped about 10 feet down a metal stairway and "banged [his] right hip heavily". This occurred in daylight. The fall was not a clear fall. He slipped down a ladder. Mr Drew said that he scraped the skin from his hip and there was heavy bruising. He reported to the second mate but obtained no treatment. He was fireman and there was no one to relieve him. He had a great deal of difficulty and pain doing his shift. The pain was in the hip. He was able to tolerate the pain. At the same time he worked overtime as trimmer in return for additional pay and because no one was assigned to that job. He was able to shed the overtime duties after the fall. He limped again.
The third fall was on the Munmorah. He sailed on that ship from 5 September 1945 until 17 September 1945. Mr Drew said that he fell badly onto his right hip during very heavy weather in the Tasman Strait. He said he scrambled to his bunk to rest and he took hot showers to relieve pain. He reported to the second mate but received no treatment. He was "sore and hobbling" for the next few days but he did his work. He said that he was sore "a good while".
Mr Drew first claimed in respect of his osteoarthritis on 25 November 1994 (T4). This was after the introduction of the SoP system on 1 June 1994 so the SoPs on osteoarthritis are relevant to Mr Drew's claim. SoP 81/2001 is relevant to any injury allegedly occurring during operational service. SoP 82/2001 is relevant to any injury allegedly occurring during eligible war service other than operational service. If Mr Drew cannot succeed in relation to the current SoPs then a SoP in force at the time of the primary decision (2 July 1998) can be considered (Repatriation Commission v Gorton (2001) 33 AAR 370 and Repatriation Commission v Williams [2001] FCA 1195).
when was mr drew's operational service?
A major concern in this case related to the timing of Mr Drew's operational service. From s 6B(1) of the Act it is clear that Mr Drew was on operational service when the ship on which he was serving as an Australian mariner was outside Australia, which means outside Australian territorial waters. From ex A2B that was from 7 May 1945 to 25 May 1945 when the Alagna visited the New Guinea ports of Lae and Milne Bay, 15 June 1945 to 3 July 1945 when the ship visited Torokina, and from 25 July 1945 until 8 August 1945 when the ship visited Lae. The tribunal is assuming that the ship cleared and re-entered Australian territorial waters quite soon after leaving the Australian port and quite soon before re-entering the Australian port. This is a reasonable assumption given the narrow breadth of Australian territorial waters. Latterly the breadth has been 12 nautical miles, although it was three nautical miles in the 1940s. The VRB (T18) saw the operational service period as from 30 April 1945 to 20 August 1945.
Beyond that, s 6B(1)(b) brings in as operational service any period of employment within Australia as an Australian mariner on a ship if that period of employment ended immediately before, or started immediately after, the period of employment outside Australia as discussed in paragraph 11. This is a similar formula of words used in paragraph (c) of column 3 within item 1 of s 6A(1) of the Act in relation to a member of the Defence Force. The well-known effect of the phrase in s 6A(1) is to convert to operational service the whole of a Defence Force serviceperson's period of continuous full-time service rendered within Australia immediately before, or immediately after, a period of continuous full-time service outside Australia.
For the applicant it was argued that s 6B(1)(b) had the effect of converting to operational service those periods of Mr Drew's service as an Australian mariner that occurred immediately before and after his employment outside Australia not only on the Alagna but also on the ships on which Mr Drew served "immediately before" and "immediately after" service on the Alagna. These were the Iron King (from 26 February 1945 to 14 April 1945) and the Munmorah (from 4 September 1945 to 17 September 1945. Further, the applicant submitted that service on the Beltana, the ship prior to the Iron King, could be regarded as operational if that service was immediately before service on the Iron King. This argument was extended back through five discrete periods of service to service on the Mildura. The purpose was to locate the dates of each of the three war-time falls within a period of operational service and thereby permit the utilisation of the reasonable hypothesis standard of proof.
The difficulty for the applicant was that the practice, described by the applicant in oral evidence, in the 1940s was for a mariner to be given a separate contract for the duration of a voyage. At the end of a voyage he or she would be paid off. The mariner was given money in lieu of having taken two-day weekends during the voyage, so he or she had ready cash for self-support for a period of time. The mariner would then queue up as soon as he or she wanted to do so at the docks for re-employment. The shipping company could select whomever it wanted. Mr Drew described the scene as a "public labour exchange".
Exhibit A2B shows the following about Mr Drew's time off between voyages:

From first voyage to second voyage: 18 April 1941 to 30 September 1943 (nearly 2½ years).
From second to third voyages: 24 to 29 November 1943 (5 days).
From third to fourth voyages: 14 to 29 January 1944 (15 days).
From fourth to fifth voyages [the first fall was on the fourth voyage]: 18 March to 27 April 1944 (40 days).
From fifth to sixth voyages: 16 – 17 June 1944 (1 day).
From sixth to seventh voyages: 17 July to 10 August 1944 (24 days).
From seventh to eighth voyages: 22 – 23 September 1944 (1 day).
From eighth to ninth voyages: 12 – 29 December 1944 (17 days).
From ninth to tenth voyages: 12 – 26 February 1945 (14 days).
From tenth to eleventh voyages: 14 – 30 April 1945 (16 days).
From eleventh to twelfth voyages [falls occurred on both the eleventh and twelfth voyages, the eleventh being operational service]: 22 August to 4 September 1945 (13 days).

From these figures it appears that most voyages lasted for just under 50 days. This would generate payment in lieu of weekends for some 14 days. The figures show that commonly there was about a fortnight's lay-off between voyages. The inference is that Mr Drew gave himself a short break, financed by his payment in lieu, at the end of each voyage.
The respondent argued (ex R1) that each contract was a discrete contract to serve on a ship. So far as the transition from the Iron King to the Alagna was concerned, the respondent said that Mr Drew was paid off in Newcastle and that was the end of the contract. He then made a decision to accept a new contract on the ALAGNA and travelled from Newcastle to Brisbane at his own expense to join the ship. The respondent contended that there was a break between the eighth voyage (on the Iron King) and the ninth voyage (on the Alagna).
The respondent extended that argument back through earlier voyages, referring to the breaks in continuity between each. The concept of "immediately before" could apply only to periods spent on the Alagna because that ship did serve outside Australian waters.
The respondent reduced the applicant's argument to absurdity by suggesting that, taken to its extreme, it would mean that there was deemed to have been no break even between the first and second voyages where the break was 2½ years. It would mean that any period of service outside Australian waters would render all service as an Australian mariner as operational service.
The applicant cited two authorities relating to Commonwealth employee superannuation to the tribunal. These cases deal with the access of a public servant to his or her superannuation funds when he or she ceases employment with the Public Service. There can be a break in his or her employment so that, as in Re Wood and Commissioner for Superannuation (1989) 9 AAR 528, an employee who was employed by the Department of Defence obtained employment with the ACT Electricity Authority ("ACTEA"). He resigned from Defence five days before being offered the position and 10 days before commencing work with ACTEA. He sought his superannuation contributions from his period at Defence and was given them. However, a decision was then made under s 3(3) of the Superannuation Act 1976 that Mr Wood had not ceased to be an eligible employee because, although he had ceased to be an eligible employee working in Defence, he had again become an eligible employee "immediately after so ceasing" when he joined ACTEA.
In the Wood case (above) Mr Wood was outside the superannuation scheme for only 10 days. The tribunal held that the 10-day break did not prevent Mr Wood from immediately becoming an eligible employee again. The tribunal said (page 533) that it had not regarded some specified number of days or weeks as enough to prevent to operation of s 3(3). "Such would be a 'legalistic' concept in the pejorative sense of the word". Rather the tribunal proceeded "upon a consideration of the quality of the events which occurred, looked at as a whole".
The full Federal Court of Australia decision, Commissioner for Superannuation v Bayley (1979) 41 FLR 385 concentrated on a different issue, namely whether an employee had ceased to be an eligible employee when the statutory authority he worked for was wound up and he was offered employment as of the following day in the Department of Transport, employment he did not take up. Their Honours say little about the issue before the tribunal in this application. Their interest was more in the status of the offer of fresh employment.
The tribunal considers that the Wood case (above) provides useful guidance, although it related to a different Act of Parliament. The tribunal looked at the purpose of the legislation and the substance of the employee's intentions in breaking his employment with Defence and moving to ACTEA. The tribunal considered that Mr Wood had at no stage abandoned his intention to move to ACTEA and resume superannuation coverage. It noted that he was not actually an eligible employee for only one working week.
The tribunal noted also the entry in Butterworths Australian Legal Dictionary (1997) at page 568 where the learned editors stated the following regarding "Immediately":
"Without delay; at once. As soon as reasonably possible in the circumstances, taking into account the nature of the act to be done: Measures v McFadyen (1910) 11 CLR 723. It is a matter of degree; the word is stronger than the expression 'within a reasonable time' and implies prompt, vigorous action without any delay: Dorsman v Nichol (1978) 20 ALR 213. Also known as 'forthwith'."

The tribunal has decided that, in the context of s 6B(1)(b) of the Act, a period of employment of an Australian mariner could end immediately before another commenced even when there was actually a break between engagements. The tribunal takes the above authorities, albeit from other areas of the law, to suggest that the context may permit such a break in order to allow the statute to operate properly. The context will also determine how long such a break might be at its most extreme. The tribunal noted the following factors:

The provision in question was part of legislation intended to benefit Australian mariners who had previously been treated less generously than members of the Defence Force in an Act entitled the Seamen's War Pensions and Allowances Act 1940. It was therefore beneficial legislation that should attract an expansive interpretation where it is ambiguous. The operation of s 6A(1), in relation to defence force personnel normally had the effect that the whole of a person's World War 2 service was converted to operational. Section 6B(1) applies only to the period from 1941 to 1945. If its application has the effect of converting all of a mariner's employment in that period to operational service that would not be inconsistent with the treatment accorded defence force personnel.
The evidence indicated that it was unrealistic in the early 1940s to expect an Australian mariner to move seamlessly from one ship to another given the employment practices. Therefore, some period of grace was more likely than not intended to apply.
In Mr Drew's case, as noted earlier, he usually broke for about two weeks between voyages and this was roughly equivalent to the period of time covered by his payment in lieu of weekends during voyages. The tribunal has therefore decided that it will accept that employment on one voyage immediately followed previous employment on another voyage where the break between voyages was no more than approximately a fortnight.

That acceptance means that Mr Drew's employment prior to that on the Alagna extending back to the seventh voyage, which commenced on 10 August 1944, ended immediately before a period of employment outside Australia. It also means that Mr Drew's employment on the Munmorah, following his employment on the Alagna, started immediately after a period of employment outside Australia.
This has the effect of excluding the fall on the Mildura from the period of operational service. To have included the Mildura voyage, the fourth voyage, would have involved accepting breaks between voyages of up to 40 days as not breaking the nexus. The tribunal regarded this 40-day lay-off, and another of 24 days between the sixth and seventh voyages, as too long, in the absence of any specific explanation for these unusually lengthy periods.
The tribunal therefore finds that the first fall occurred during eligible war service, not being operational service. It finds that the second and third falls occurred during operational service.
was mr drew's osteoarthrosis war-caused?
The full Federal Court has held that, in an operational service case such as this, there are four steps to be considered in assessing whether an applicant will succeed in his claim that a disability was war-caused. The authority is Repatriation Commission v Deledio (1998) 49 ALD 193, 206.
The first step is to consider whether the material before the tribunal points to a hypothesis connecting the injury or disease with the circumstances of the particular service rendered by the applicant. In the present case, regarding the second and third falls, the hypothesis was that, each time, Mr Drew suffered a fall on his right side in a way that meant he had sustained a trauma to the right hip.
The second step is to ascertain whether there is a relevant SoP in force. As ascertained already, the SoP is 81/2001.
The third step is to form an opinion as to whether the hypothesis raised is reasonable. If the hypothesis is consistent with the template in the SoP it will be reasonable. The hypothesis raised must contain at least one of the factors in the SoP which the SoP says must exist, and that factor must be related to the applicant's service.
Considering the hypothesis advanced for Mr Drew, the tribunal is reasonably satisfied that Mr Drew suffers from osteoarthrosis of the right hip. The respondent has accepted this (T2/4, ex R1). Dr Ghabrial (ex A3) has also diagnosed osteoarthritis, which is effectively the same as osteoarthrosis, as present. The factor in the SoP relied on for the applicant was factor 5(j), "suffering a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint". Clause 4 of the SoP limits this to only a trauma related to Mr Drew's operational service. Thus, the first fall cannot be taken into account in this SoP.
A "trauma to the affected joint", as described in the hypothesis and other material, must be of the type, and have the consequences, described in the definition in clause 8 of the SoP:
"'trauma to the affected joint' means a discrete joint injury that causes the development, within 24 hours of the injury being sustained, of or range of movement of the joint. These symptoms and signs must last for a period of at least seven days following their onset; save for where medical intervention for the trauma to that joint has occurred, where that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, sling or similar external agents; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) aspiration of that joint; or
(d) surgery to that joint;"
The second fall, that on the Alagna, satisfied the following criteria, based on Mr Drew's description of what occurred:
(a)There was a discrete joint injury when he slid down the ladder.
(b)Within 24 hours there were symptoms and signs of pain and tenderness. There was apparently altered mobility in the joint because of the reported limp.
(c)In a statutory declaration (T18/89) dated 20 October 1999 Mr Drew said that his hip and knee/side troubled him for a couple of weeks and he got help from the other men in doing his duties. This would seem to satisfy the need for the symptoms and signs to have persisted for at least seven days following their onset.
The tribunal therefore finds that the hypothesis regarding the incident on the Alagna, on the material before the tribunal, is consistent with the requirements in the SoP. The Federal Court has held that, even if the hypothesis as raised is consistent with the SoP, if it nevertheless is fanciful, impossible, incredible, too remote or too tenuous, it can be found to be not a reasonable hypothesis. The tribunal sees no basis for regarding the hypothesis here as fanciful, impossible, too remote or too tenuous.
As the tribunal has found that step three of Deledio (above) has been satisfied, that means that the hypothesis raised by the applicant is a "reasonable" hypothesis in the terms of s 120(3) of the Act.
Moving on to consider step four of Deledio (above), the tribunal must decide whether it is satisfied beyond reasonable doubt that the applicant's incapacity did not arise from a war-caused injury.
Mr Modder referred to a number of indicators that might suggest that the osteoarthrosis was not war-caused. One was that, when seeking a pension in 1994 (T4), Mr Drew had referred only to the accident that occurred in 1977. He did not refer to these war-time incidents. This may reflect on his credibility in relation to those earlier alleged incidents, which were not corroborated by contemporary documentary evidence.
Mr Modder suggested that Mr Drew's ability to continue working, albeit without doing the overtime duties, was inconsistent with an injury of the degree expected in the SoP definition of a trauma to the affected joint.
Mr Modder noted that Mr Drew's osteoarthrosis had required no treatment between 1945 and 1974. This was a very lengthy period, although he conceded that Mr Drew may have utilised some painkillers.
Mr Drew explained in ex A4 that he had referred to the more recent fall in his pension claim form because he had not realised the importance of the earlier falls.
Despite Mr Modder's submissions on Mr Drew's ability to continue working, the tribunal does not regard this capacity in Mr Drew as sufficient to establish beyond reasonable doubt that the disease was not war-caused. The SoP does not on its terms require a person to have been excused from work for any period of time. Thus, the RMA must consider that such is not necessary in order for the disease to be war-caused. Additionally, as found above in paragraph 35, Mr Drew's hypothesis satisfied the serial requirements in the SoP.
Mr Modder's submissions relating to Mr Drew's treatment history were relevant but not necessarily decisive. There is no requirement in the SoP for the osteoarthrosis to manifest itself within any particular period following the trauma.
The tribunal therefore finds that it is not satisfied beyond a reasonable doubt that Mr Drew's osteoarthrosis of the right hip was not a war-caused disease.
CONCLUSION
It is unnecessary, in view of these findings, for the tribunal to analyse the third fall, which also occurred in operational service, or the first fall, which did not occur during operational service. That is because Mr Drew has succeeded in his application on the basis of the second fall alone.
Mr Drew's osteoarthrosis of the right hip has therefore been a war-caused disease since 25 August 1994. That is three months before the date of claim on 25 November 1994 (T4; s 20(1) of the Act). However, as Mr Drew was paid until approximately 2 July 1998 in respect of accepted disabilities including this disease, he is eligible for payment at a rate to be assessed. The respondent, submitted (ex R4) that the appropriate rate would be 90% of the general rate, allowing a rating of 30 points for the osteoarthrosis under the Guide to the Assessment of Rates of Veterans' Pensions (5th ed) ("GARP"). The tribunal has accepted this assessment as fair.
DECISION
The tribunal sets aside the decision under review and substitutes its own decision that Mr Drew's disease of osteoarthrosis of the right hip ("the disputed disease") is a war-caused disease, with effect from 25 August 1994 and that Mr Drew qualifies for payment of Disability Pension at 90% of the general rate with effect from the first pension payday following the last pension payday on which the disputed disease was an accepted disability.
I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member
Signed:         .....................................................................................
  Associate
Date of Hearing  6 March 2002
Date of Decision  23 September 2002
Advocate for the applicant       Ms J Buss, NSW Legal Aid Commission
Solicitor for the applicant         NSW Legal Aid Commission
Advocate for the respondent    Mr S Modder, DVA Advocacy Service
Solicitor for the respondent     Mr J Marsh, DVA