Gary Tearle and Repatriation Commission
[2014] AATA 491
•17 July 2014
[2014] AATA 491
Division GENERAL ADMINISTRATIVE DIVISION File Number(s)
2012/5397
Re
Gary Tearle
APPLICANT
And
Repatriation Commission
RESPONDENT
DECISION
Tribunal Senior Member A K Britton
Date 17 July 2014 Place Sydney The Decision under review is affirmed.
......................[SGD]..................................................
Senior Member A K Britton
CATCHWORDS
VETERANS’ AFFAIRS — Entitlement to pension —Shoulder osteoarthritis and/or hand osteoarthritis — Whether disease was war-caused —Deledio test — Pension at the intermediate rate — Whether there is material that points to a hypothesis — Beneficial legislation — Decision affirmed
LEGISLATION
Veterans’ Entitlement Act 1986 (Cth) – ss 13(1); 120; 120A; 196B(14)
CASES
Collins v Administrative Appeals Tribunal (2007) 163 FCR 35
Kowalski v Repatriation Commission [2011] FCAFC 43
Repatriation Commission v Deledio (1998) 83 FCR 82
Repatriation Commission v Knight (2012) 202 FCR 451
SECONDARY MATERIALS
Statement of Principles concerning osteoarthritis No. 13 of 2010 (as amended by No. 35 of 2011)
REASONS FOR DECISION
Mr Garry Tearle served in the Royal Australian Navy between 1961 and 1981. That service included 12 discrete periods of “operational service” totalling 202 days. Mr Tearle seeks review of decisions made by the Veterans’ Review Board that (i) the osteoarthritis in his shoulder and hands was not “war-caused” and (ii) he did not meet the criteria for a pension at the intermediate rate under the Veterans’ Entitlement Act 1986 (Cth) (the Act).
Two principal issues fall to be determined:
Whether Mr Tearle’s shoulder osteoarthritis and/or hand osteoarthritis was war-caused, and
If so, whether Mr Tearle satisfies the statutory criteria for a pension at the intermediate rate (s 23 of the Act).
In these reasons I will refer to Mr Tearle’s shoulder and hand osteoarthritis, collectively as “osteoarthritis”.
Statutory framework
Where a veteran is incapacitated by a “war-caused disease”, the Commonwealth is, subject to the Act, liable to pay a pension by way of compensation to the veteran (s 13(1) of the Act).
The question of whether Mr Tearle’s osteoarthritis was “war-caused” must be assessed by applying the standard of proof set out in ss 120 and 120A of the Act. Section 120 provides:
(1)Where a claim under Part II for a pension in respect of the incapacity from … disease of a veteran … relates to the operational service rendered by the veteran, the Commission shall determine that … that the disease was a war-caused disease … unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
...
(3)In applying subsection (1) or (2) in respect of the incapacity of a person from … disease… related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
…
(b)that the disease was a war-caused disease or a defence-caused disease; or
…if the Commission, after consideration of the whole of the material before it, is of the opinion that the material before it does not raise a reasonable hypothesis connecting the … disease … with the circumstances of the particular service rendered by the person.
Section 120A is headed “Reasonableness of hypothesis to be assessed by reference to Statement of Principles” and relevantly provides:
(3)For the purposes of subsection 120(3), a hypothesis connecting … a disease contracted by a person … with the circumstances of any particular service rendered by the person is reasonable only if there is in force:
(a)a Statement of Principles determined under subsection 196B(2) or (11);
...
that upholds the hypothesis.
…
Those provisions must be read with s 196B which states:
…
Determination of Statement of Principles
(2)If the Authority is of the view that there is sound medical-scientific evidence that indicates that a particular kind of injury, disease or death can be related to:
(a)operational service rendered by veterans;
…
the Authority must determine a Statement of Principles in respect of that kind of injury, disease or death setting out:
(d)the factors that must as a minimum exist; and
(e)which of those factors must be related to service rendered by a person;
before it can be said that a reasonable hypothesis has been raised connecting an injury, disease or death of that kind with the circumstances of that service.
…
(14)A factor causing, or contributing to, an injury, disease or death is related to service rendered by a person if:
…
(b)it arose out of, or was attributable to, that service; or
…
(d)it was contributed to in a material degree by, or was aggravated by, that service; or
…
In applying these provisions the four-step approach set out in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 98 as revised by Collins v Administrative Appeals Tribunal [2007] FCAFC 111; (2007) 163 FCR 35 at [35] must be followed. Usefully summarised by Lindren J in Collins v Administrative Appeals Tribunal (at [5]), the approach set out in Deledio requires the decision-maker to ask:
Does all the material before the Tribunal point to a hypothesis of war causation (the hypothesis raised)? If not, the application must fail.
If it does, what was the relevant SoP [Statement of Principles] in force?
Is the hypothesis raised consistent with the “template” found in the SoP, that is to say, contain the minimum factors which, according to the SoP, must exist and be related to the person’s service? If the hypothesis raised does not contain those minimum factors, it does not fit within the template and is deemed not to be “reasonable”, and the claim will fail. If it does, the hypothesis raised cannot be said to be contrary to proved or known scientific facts or otherwise fanciful.
Is the Tribunal satisfied beyond reasonable doubt that the hypothesis raised is not established? If it is not so satisfied, the claim must succeed, whereas if it is so satisfied, the claim must fail. It is only at this fourth stage that the Tribunal is required to find facts from the material before it.
Statement of principles
Mr Tearle relies on the Statement of Principles concerning osteoarthritis No. 13 of 2010 (as amended by No. 35 of 2011) (the SoP). At least one of the factors set out in clause 6 of the SoP must exist before it can be said that a reasonable hypothesis has been raised connecting osteoarthritis with the circumstances of his operational service. Mr Tearle contends that he satisfies cl 6(k)(i):
(k)for osteoarthritis of a joint of the upper limb only,
(i) performing any combination of repetitive activities or forceful activities for an average of at least 30 hours per week, for a continuous period of at least ten years before the clinical onset of osteoarthritis in that joint; …
The SoP defines “repetitive activities” to mean:
(a)bending or twisting of the affected joint; or
(b)carrying out the same or similar movements that involve the affected joint,
at least 50 times per hour
and “forceful activities” to mean:
(a)tasks requiring the generation of force by the hand equivalent to lifting or carrying loads of more than three kilograms; or
(b)holding or carrying an object in the hand greater than one kilogram in excess of 10 times per hour;
Proper construction of the SoP
Mr Tearle contends that the phrase “a continuous period of at least ten years” in cl. 6(k)(i), should be construed to mean “a continuous period of ten years exclusive of leave”. He reasons to do otherwise would impose the requirement to perform nominated activities for an average of 30 hours per week to periods of annual leave. This he contends would be unfair. Applying that analysis, he contends that the requirement to perform nominated activities for an average of 30 hours per week should be applied to a period of at least 480 weeks [48 weeks x 10 years], not 520 weeks.
No authority was cited in support of this argument.
Neither the SoP nor the Act contain a definition of the word “year”. There is nothing to suggest from its context, or the purpose for which the Act or the SoP were enacted, that that word should be given a meaning other than its ordinary English meaning, namely a period of 52 weeks. I doubt that the interpretation Mr Tearle urges me to adopt is correct. However this issue was not the subject of considered submissions and because it has no bearing on my ultimate decision, in these reasons I will adopt the interpretation advanced on behalf of Mr Tearle.
Does all the material before the Tribunal point to a hypothesis of war causation?
As explained by the Full Federal Court in Repatriation Commission v Knight [2012] FCAFC 83; (2012) 202 FCR 451, (at [8]), two discrete issues must be considered when considering whether the material points to a reasonable hypothesis, namely:
(i) whether the material before the Tribunal points to the factor relied upon; and
(ii) whether the material also points to that factor being related to the member’s service (s 196B(14)).
The hypothesis advanced by Mr Tearle is that his osteoarthritis was connected to the circumstances of his operational service. That hypothesis rests on the following assumptions:
That Mr Tearle performed a combination of repetitive and/or forceful activities, as defined by the SoP, for least 30 hours per week, continuously throughout the period 1963 to 1973 (the relevant period)
That period predated the onset of his osteoarthritis
202 days, or about 10 per cent of the relevant period, constituted operational service
During the periods of operational service, Mr Tearle performed a combination of repetitive and/or forceful activities, as defined by the SoP, for least 30 hours per week
On that basis Mr Tearle contends that a reasonable hypothesis has been raised that his operational service was “related to”, in that it “contributed to, in a material degree”, cl 6(k)(i) of the SoP.
It is agreed there is material that points to the onset of Mr Tearle’s osteoarthritis post-dating the relevant period.
The material before the Tribunal relating to cl 6(k)(i) of the SoP consists of a statement prepared by Mr Tearle dated 24 January 2013 (the statement) and his oral evidence given in these proceedings. The statement contains a description of activities Mr Tearle contends satisfy the definitions of “forceful activity” and/or “repetitive activity” as used by the SoP (the nominated activities). These include:
Gripping hand rails while climbing ladders between decks
Climbing in an out of, and making, a top bunk
Various tasks involved in firefighting and other work related duties
Rugby training
In addition Mr Tearle set out in the statement, his estimate of the amount of time he spent on each nominated activity.
Findings and conclusions
It was submitted for Mr Tearle that the statement together with his oral evidence constitutes material which points to cl. 6(k)(i), namely:
Spending an average of 30 hours on nominated activities on nominated activities for a continuous period of 480 weeks throughout the period 1963 to 1973
The Commission contends that Mr Tearle has “wildly overestimated” the amount of time spent on nominated activities and that it is simply fanciful as claimed that he spent five and half hours each day preparing his bunk and gripping hand rails while climbing ladders to travel to and from the cafeteria, the bathroom, the laundry and work, during his periods of service on the HMAS Melbourne in 1963 and 1964.
After the conclusion of the hearing I calculated the total number of hours Mr Tearle claims to have spent on nominated activities based on the estimates contained in his statement. Set out in the table below, those calculations reveal that Mr Tearle’s estimates fall well short of satisfying cl 6(k)(i). On his estimate, Mr Tearle spent a total of 10,170 hours on nominated activities, or an average of just over 26 hours per week over a period of 389 weeks.
Year
No. of weeks
Total hrs
Hrs per week
1963
HMAS Melbourne
32
2088
65.25
1964
SMAH Albatross
51
1126
22.08
1964/65
HMAS Melbourne
66
3166
47.97
1966
HMAS Albatross
133
2646
19.89
1968
HMAS Albatross 723 Squadron
78
880
11.28
1970
HMAS Albatross
29
264
9.10
TOTAL
389
10, 170
26 (average)
Requirement under SoP
480
14,400
30 (average)
The parties were provided with these figures and invited to provide written submissions.
It was submitted for Mr Tearle given the passage of time it would be unrealistic to expect him to be able to recall the amount of time he spent on nominated activities between 1963 and 1973. It was argued that the statement should be treated as “indicative of his naval employment involving a great deal of repetitive and forceful activities”. Further it was submitted that the statement indicates that Mr Tearle was doing the sort of work that would likely involve a “majority of time” being spent on nominated activities.
It was asserted that in undertaking the task of deciding whether the advanced hypothesis fits the template in the SoP, the Tribunal is not required to calculate each estimated hour, but rather to decide whether the factor is met. Given the beneficial nature of the Act, it was argued any doubt should be resolved in favour of Mr Tearle.
In determining whether a reasonable hypothesis has been raised connecting Mr Tearle’s osteoarthritis with operational service, I must consider the whole of the material and form an opinion about whether there is material that “points to” the factor relied upon. As the Full Court pointed out in Knight at [6], this stage does not involve fact finding but an examination of the available material “to see if … [the advanced] hypothesis might reasonably be drawn from that material”. I am not required as the Commission appears to suggest, to assess whether the claims made by Mr Tearle are fanciful or the estimates he gave are “grossly inflated”. Put another way, I am not required to determine the truth or otherwise of Mr Tearle’s claim, but simply to decide whether they, “point to” him have performed nominated activities for an average of 30 hours per week over a continuous period of 480 weeks.
As noted the only material relevant to this issue is Mr Tearle’s statement and his oral testimony. As the calculations set out above reveal the estimates set out in the statement, do not “point to” Mr Tearle performing nominated activities for an average of 30 hours per week over 480 weeks. Nor does Mr Tearle’s oral evidence. His evidence was to the effect that he was “very confident” of the estimates set out in his statement and indeed he might have underestimated the amount of time he spent on nominated activities during periods of operational service.
There can be no argument that given their beneficial nature, the Act and the SoP must be generously construed. However if Mr Tearle is suggesting that because of that, it is open to me to waive or modify, the requirement imposed by the combined operation of the Act and the SoP that there be material that raises a reasonable hypothesis connecting his osteoarthritis with the circumstances of his operational service, specifically that there be material that “points to” cl 6(k)(i) of the SoP, I am unable to agree. As the Full Court of the Federal Court commented in Kowalski v Repatriation Commission [2011] FCAFC 43 (at [36]):
If, though, the language of a statute is unambiguous, that a beneficial purpose can be discerned in it does not provide a warrant for the extending of a benefit to an individual whose case falls outside its terms, whatever sympathy one might have for that individual’s plight ….
In my opinion the totality of the material does not “point to” Mr Tearle performing nominated activities for an average of 30 hours per week over 480 weeks. Given this conclusion it is not necessary to proceed to consider whether the material points to cl 6(k)(i) being related to Mr Tearle’s operational service.
The material before me does not point to the hypothesis advanced by Mr Tearle. It follows that I cannot be satisfied that his osteoarthritis was “war-caused” and the decision under review must be affirmed.
Does Mr Tearle satisfy the criteria for the intermediate rate pension?
It was conceded for Mr Tearle that unless the Tribunal found that his osteoarthritis was war-caused he would not satisfy the criteria for a pension assessed at the “intermediate rate”. Having examined the evidence I am satisfied that concession was properly made. The decision made by the Veterans’ Review Board in respect to Mr Tearle’s pension entitlement must therefore be affirmed.
I certify that the preceding 31 (thirty -one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A K Britton ................[SGD]........................................................
Associate
Dated 17 July 2014
Date(s) of hearing 15 May 2014 Date final submissions received 2 July 2014 Counsel for the Applicant Claire Mudge Solicitors for the Applicant Legal Aid Commission of New South Wales Advocate for the Respondent Tim O'Reilly
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