Searle and Repatriation Commission (Veterans' entitlements)
[2024] AATA 764
•17 April 2024
Searle and Repatriation Commission (Veterans' entitlements) [2024] AATA 764 (17 April 2024)
Division:GENERAL DIVISION
File Number(s): 2021/6788
Re:Gregory Searle
APPLICANT
AndRepatriation Commission
RESPONDENT
DECISION
Tribunal:Member McLean Williams
Date:17 April 2024
Place:Brisbane
The reviewable decision dated 18 August 2021 is affirmed.
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Member McLean Williams
Catchwords
VETERANS’ AFFAIRS – Defence-related claims – disability pension – whether the Applicant suffered an injury or disease – whether injury or disease caused or contributed to by defence service – where date of onset of clinical symptoms many years after service – whether clinical or other evidence consistent with requirement under relevant statement of principles – factors inconsistent with finding that injury or disease connected to relevant service – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Military Rehabilitation and Compensation Act 2004 (Cth)Veterans’ Entitlements Act 1986 (Cth)
Cases
Benjamin v Repatriation Commission (2001) 64 ALD 411
Boys v Repatriation Commission (Veterans’ Entitlements) [2022] FCA 257
Kowalski v Repatriation Commission [2010] FCA 409
Kowalski v Repatriation Commission [2011] FCAFC 43
Repatriation Commission v Cooke [1998] FCA 1717; (1998) 90 FCR 307
Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321
Repatriation Commission v Money [2009] FCAFC 11Secondary Materials
Repatriation Medical Authority, Statement of Principles concerning lumbar spondylosis (No. 63 of 2014)
Repatriation Medical Authority, Statement of Principles concerning osteoarthritis (Balance of Probabilities) (No. 62 of 2017)Repatriation Medical Authority, Statement of Principles concerning thoracolumbar spondylosis (Balance of Probabilities (No. 14 of 2023)
REASONS FOR DECISION
Member McLean Williams
16 April 2024
This is an Application for Review of a decision made by the Veterans’ Review Board (‘the VRB’) on 18 August 2021. By that decision, the VRB affirmed an earlier decision of the Repatriation Commission (‘the Respondent’) made on 23 June 2020, rejecting Mr Searle’s claims for ‘Lumbar Spondylosis’ and ‘Bilateral Osteoarthritis of the Hip’ pursuant to the Veterans’ Entitlements Act 1986 (Cth) (‘the VEA’).
Mr Gregory Searle (‘the Applicant’), aged 68 years, served as an infantryman and mortarman in the Australian Regular Army from 10 November 1976 until 9 November 1982. Mr Searle claims that his conditions of lumbar spondylosis and bilateral osteoarthritis of the hips are related to this defence service, by reason of the various requirements for lifting and the carrying of heavy loads during his time as both an infantryman, and as a mortarman, and/or that the condition of bilateral osteoarthritis of the hips arose in consequence of various military tasks that also required that he perform a lot of sustained squatting and/or kneeling.
Mr Searle also claims that these conditions became clinically apparent in the early 1990s.
The relevant Statement of Principles concerning lumbar spondylosis is Statement of Principles (‘SOP’) No. 63 of 2014. Within SOP No. 63 of 2014, the VRB identified that subparagraphs 6(i) and 6(m) were the potentially applicable factors. These provide:
(i) lifting loads of at least 20 kilograms while bearing weight through the lumbar spine:
(i) to a cumulative total of at least 150,000 kilograms in any ten-year period, before the clinical onset of lumbar spondylosis; and
(ii) the clinical onset of lumbar spondylosis occurs within the 25 years following that period;
(m) extreme forward flexion of the lumbar spine for a cumulative total of at least 1500 hours before the clinical onset of lumbar spondylosis
Clause 9 of SOP No. 63 of 2014 provides that “’extreme forward flexion of the lumbar spine’ means being in a posture involving greater than 90 degrees of trunk flexion.”
The SOP concerning osteoarthritis is No. 62 of 2017. The VRB identified that the relevant portions from within SOP No. 62 of 2017 were subparagraphs 9(14)(b)-(c), and 9(16). These provide:
14(b) Lifting loads of at least 20 kilograms while bearing weight through the affected joint:
(i) To a cumulative total of at least 150,000 kilograms in any ten year period before the clinical onset of osteoarthritis in that joint; and
(ii) the clinical onset of osteoarthritis in that joint occurs within the 25 years following that period;
Note: lifting loads is defined in the schedule one – Dictionary.
14(c) carrying loads of at least 20 kilograms while bearing weight through the affected joint:
(i) to a cumulative total of at least 3800 hours within any ten year period before the clinical onset of osteoarthritis in that joint; and
(ii) where the clinical onset of osteoarthritis in that joint occurs within the 25 years following that period;
16 for osteoarthritis of the hip or knee joint only:
(a) kneeling or squatting for a cumulative period of at least one hour per day, on more days than not, for a continuous period of at least two years before the clinical onset of osteoarthritis in that joint; and
(b) the clinical onset of osteoarthritis in that joint occurs within the 25 years following that period.
The VRB found that the date of clinical onset for Mr Searle’s conditions of lumbar spondylosis and bilateral osteoarthritis of the hip was 11 July 2019, on the basis of radiology reports from that date that had been prepared by Dr Haroon Cheema and Dr Arash Dehdari (radiologists).
Although Mr Searle contends that the date of clinical onset for his conditions was the late 1990s, and relies upon a report from his general practitioner Dr Kieran McCarthy dated 7 January 2021 as support for that contention, the VRB noted that there were no contemporaneous medical records before it to ground a date of clinical onset being prior to 11 July 2019; or any evidence of signs and symptoms to support a diagnosis of the clinical onset for either condition in the 1990s. Accordingly, the VRB found that the date of clinical onset for each condition was 11 July 2019, which was more than 36 years after Mr Searle’s relevant defence service (which had been completed in November 1982). In that light, the VRB could not be satisfied that there was any connection between Mr Searle’s defence service and either of the claimed conditions.
In relation to subparagraph 6(m) of SOP No. 62 of 2017 and Mr Searle’s lumbar spondylosis condition, Mr Searle had contended that it was not necessary to establish clinical onset within 25 years of eligible defence service, yet the VRB noted that there was no evidence that any of the service tasks performed by Mr Searle during his period of defence service required for Mr Searle to adopt ‘extreme forward flexion of the lumbar spine’, as required by subparagraph 6(m).
Mr Searle commenced this application for review before the Tribunal by his filing an Application for Review of Decision on 15 September 2021.
The issue for consideration before the Tribunal is whether Mr Searle is entitled to compensation under the VEA for lumbar spondylosis, and/or bilateral hip osteoarthritis. As part of that, it becomes necessary for the Tribunal to:
(a)determine whether the material before the Tribunal raises a connection between the claimed medical conditions and Mr Searle’s eligible defence service; and
(b)determine whether there is in force a SOP that upholds the contention that either (or both) of the claimed conditions is, on the balance of probabilities, caused by Mr Searle’s defence service.[1]
[1] The claimed condition of bilateral hip osteoarthritis needs to be considered in light of SOP No. 14 of 2023 (thoracolumbar spondylosis). If SOP No. 14 of 2023 is found to be inapplicable, it becomes necessary for the Tribunal to consider whether there are any accrued rights for Mr Searle under SOP No 63 of 2014 (lumbar spondylosis) that updholds the contention.
Key Facts
Mr Searle is now 68 years of age.
Mr Searle enlisted in the Australian Army on 10 November 1976, and was subsequently discharged from the Army on 9 November 1982, thus making for a defence service period of just under six years.
On 29 November 2019 - and by then aged 64 years - Mr Searle lodged a claim for permanent disability pension in respect of ‘lumbar spine’ and ‘hip condition’, specifying that these were caused during his army service because of “lifting and carrying loads in excess of 20kgs during service.”
By a determination dated 23 June 2020, the Respondent rejected Mr Searle’s claims, on the basis that the date for clinical onset for these conditions was 11 July 2019. Unsatisfied with that determination, Mr Searle sought a review before the VRB, yet on 18 August 2021 the VRB affirmed the determination made on 23 June 2020 that Mr Searle’s claimed conditions were not related to his defence service. As part of its deliberation, the VRB considered SOP No. 63 of 2014 in respect of lumbar spondylosis and No. 62 of 2017 in respect of osteoarthritis (‘VRB decision’).
On 15 September 2021, Mr Searle lodged an application with the Tribunal for review of the VRB’s decision.
On 27 February 2023 the Repatriation Medical Authority published a new SOP, No. 13 of 2023 in respect of thoracolumbar spondylosis, replacing SOP No. 63 of 2014, with effect from 27 March 2023.
Applicable SOPs
As noted, the relevant SOP currently in force in respect of Mr Searle’s claimed lumbar spondylosis condition is different from that which was initially considered by the Respondent, and then again considered on initial review before the VRB. In these circumstances, the Tribunal must proceed in a manner consistent with that highlighted by Heerey J (with whom Emmett J also agreed) in Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321, where his honour had said:
43. If, however, the current SoP does not uphold the hypothesis, the claimant may then contend, pursuant to Keeley, that he or she has an accrued right under the earlier SoP. If that contention is accepted then again the hypothesis has to be disproved beyond reasonable doubt under s 120(1).
44. The claim for a pension under s 13 is in respect of death which was war caused or incapacity from a war-caused injury or disease. The claim is not in respect of death or incapacity based on any particular SoP or on any particular characterisation of a medical condition or cause of death. Keeley and the present case concern SoPs which are sequential in point of time or, so to speak, in a vertical relationship to each other. However there may well be in respect of any particular claim, horizontally applicable SoPs. In respect of the one death or disease or injury a claimant is entitled to advance more than one hypothesis based on more than one SoP. As already discussed, SoPs operate as delegated legislation to determine conclusively in relation to a particular disease what factors can constitute a reasonable hypothesis. If at the time of claim a claimant could raise one hypothesis consistent with the factors in that SoP, the capacity to rely on that hypothesis is a right which a later revoking SoP does not affect because an intention to do so does not appear: AI Act s 50.
Thus, the applicable SOP to Mr Searle’s lumbar spondylosis is No. 63 of 2014.
Diagnosis and Date of Clinical Onset
When determining whether an Applicant suffers from a disease, section 120(4) of the VEA applies and the decision is to be made upon ‘reasonable satisfaction’: Repatriation Commission v Cooke [1998] FCA 1717; (1998) 90 FCR 307; Benjamin v Repatriation Commission (2001) 64 ALD 411.
Mr Searle’s Lower Back Condition
From the totality of the medical evidence that is available before the Tribunal, the reporting history in relation to Mr Searle’s lower back is comprised by the following:
(a)In his initial army entry medical health questionnaire (19 October 1976) Mr Searle answered ‘no’ when asked if he had ever experienced any back injury, and his spine was assessed to be ‘normal’. No changes were reported during follow-up army medical assessments conducted on 28 May 1981 and 18 October 1982.
(b)In his ‘army discharge’ medical assessment, Mr Searle again answered ‘no’ when asked if he had ever experienced any back injury.
(c)On 22 July 2010 Mr Searle underwent a CT scan at the Royal Brisbane and Women’s Hospital (‘RBWH’) after being involved in a motorcycle accident. The CT scan result noted the presence of early degenerative changes throughout Mr Searle’s lumbar spine, and also noted a compression fracture through the L1 vertebral body. Relevantly, Mr Searle had reported pain in the lumbar spine when admitted to the RBWH at that time.
(d)On 24 June 2019, Mr Searle had been certified as unfit for work from 24 June 2019 until 1 July 2019 by a Dr Alanna Sandell (general practitioner), in consequence of a ‘lower back/musculoskeletal injury’ caused by a workplace incident in which Mr Searle had reversed a forklift, thus causing it to fall backwards, into a loading dock bay.
(e)On 10 July 2019 Mr Searle attended an appointment with Dr Kieran McCarthy (general practitioner) reporting what was recorded by Dr McCarthy as ‘chronic hip and back pain’, which Mr Searle described as ‘mild’.
(f)On 11 July 2019, Dr Harron Cheema, (radiologist) conducted a CT of Mr Searle’s lumbar spine, which revealed there to be moderate multilevel degenerative change, with no evidence of any nerve root compression.
(g)On each of 22 September 2019 and 7 January 2020 Mr Searle attended Dr McCarthy with the reasons for the visit on each recorded as ‘lumbar spondylosis’.
(h)On 31 March 2020, Dr Kieran McCarthy noted that Mr Searle’s lumbar spondylosis condition was permanent and stable ‘as of 2019’ (T10/32), and Dr McCarthy opined that although the condition had not been diagnosed until 2019 Mr Searle had suffered from back pain “for years” (T11/42).
(i)On 7 January 2021, Dr McCarthy reported that “the clinical onset of his condition was the late 1990s, as this is when his back and knee pain became significantly worse”.
Mr Searle’s Hip Condition
From Mr Searle’s service medical records and from the summonsed civilian medical records, the available history of his hip condition can be summarised as follows:
(a)In his ‘army entry’ medical health questionnaire (19 October 1976) Mr Searle answered ‘no’ when asked if he had ever experienced any joint injury. No changes were noted during further army medical assessments conducted on 28 May 1981, and on 18 October 1982.
(b)Mr Searle answered ‘no’ during his ‘army discharge’ medical assessment when asked if he had ever experienced any joint injury.
(c)A CT scan conducted on 22 July 2010 at the RBWH following a motorcycle accident found “linear fractures are present through bilateral superior and inferior pubic rami with a displaced fragment from the inferior aspect of the left rami fractures. Osteophytic fragmentation is noted associated with both acetabular margins”.
(d)On 10 July 2019 Mr Searle attended an appointment with Dr Kieran McCarthy who reported ‘chronic hip and back pain’, which was reported in an overall sense as being ‘mild’.
(e)On 11 July 2019 an x-ray conducted of Mr Searle’s pelvis and both hips found ‘mild degenerative changes in both hip joints’.
(f)On 31 March 2020, Dr Kieran McCarthy noted that Mr Searle’s osteoarthritis right hip and osteoarthritis left hip were permanent and stable conditions, as of 2019. Dr McCarthy also opined that while the condition had not been diagnosed until 2019, Mr Searle had suffered pain in his hip “for years” (T11/42).
(g)On 7 January 2021, Dr McCarthy reported that the clinical onset of his condition was the late 1990s, “as this is when his back and the pain became significantly worse”.
At the request of the Respondent, a medico-legal report was provided by Dr Simon Journeaux, orthopaedic surgeon, on 19 October 2022. Dr Journeaux was of the opinion that Mr Searle was suffering from bilateral hip osteoarthritis, as well as from lumbar spondylosis.
Subsequently, Dr Journeaux provided supplementary medical reports dated 8 March 2023 and 5 April 2023.
On the basis of the opinion provided by Dr Journeaux it is now accepted by the Respondent as uncontentious that Mr Searle suffers from ‘bilateral hip osteoarthritis’ and ‘lumbar spondylosis’. Therefore, the Tribunal proceeds on the basis that Mr Searle suffers from each of these conditions. Yet the germane question remains whether either (or both) of these conditions are ‘connected with’ Mr Searles defence service.
Meaning of ‘clinical onset’ under SOP No. 14 of 2023
SOP No. 14 of 2023 provides a definition for clinical onset, which is defined to mean:
the point backwards in time from the first date of medical imaging confirming thoracolumbar spondylosis, to the date at which the symptoms of thoracolumbar spondylosis were persistently present as assessed by a registered medical practitioner.
Thoracolumbar spondylosis is defined in paragraph 7(2) of SOP No. 14 of 2023 as:
(a) clinical manifestations of local pain and stiffness, or symptoms and signs of thoracolumbar cord or thoracolumbar nerve root compression; and
(b) imaging evidence of degenerative change, including disc space narrowing or osteophytes. Note: imaging evidence of degenerative change is defined in the Schedule One Dictionary. It will usually be the case that the date of the imaging evidence of degenerative changes after the date of clinical onset.
On the available evidence, the first date for medical imaging confirming Mr Searle as having lumbar spondylosis is not until 22 July 2010. In his report dated 22 October 2022, Dr Journeaux opined that it was likely that the degenerative changes in Mr Searle’s spine would have pre-dated the medical imaging conducted on 22 July 2010. However, Dr Journeaux further opined that the degenerative change would have still been asymptomatic, as at 22 July 2010. This hypothesis is consistent with the available medical evidence, given that there is no evidence of any reporting by Mr Searle of any symptoms in his lumbar spine, made to any medical practitioner prior to 22 July 2010. The Tribunal accepts the opinion of Dr Journeaux that it is likely that Mr Searle’s lumbar spondylosis was still asymptomatic as at 22 July 2010.
Although Mr Searle told Dr McCarthy that he had been experiencing pain in his lumbar spine ‘since the 1990s’, there is no other evidence of any kind to corroborate this, and it is to be noted that Dr McCarthy’s brief report in 2021 relies exclusively on Mr Searle’s self-reporting (in 2021) of his having pain in the lumbar spine ‘since the 1990s’. There are no clinical records of any symptoms of pain prior to 22 July 2010, which on the available evidence is the first date for the reporting of any symptoms of pain the lumbar spine, arising when Mr Searle attended the RBWH following a motorcycle accident. Further, it is to be noted that Dr McCarthy was not called to give any oral evidence before the Tribunal in relation to his giving of this opinion, in order that the basis for it might be tested. In these circumstances the Tribunal does not feel persuaded by the opinion expressed by Dr McCarthy in his 7 January 2021 report.
The earliest date on which symptoms of thoracolumbar spinal pain was persistently present was 10 July 2019, that being the date on which Mr Searle attended an appointment with Dr McCarthy, complaining of pain in his lumbar spine. Thereafter, Mr Searle similarly reported symptoms of pain during consultations with Dr McCarthy on each of 22 September 2019, and on 7 January 2020.
SOP No. 63 of 2014 and SOP No. 62 of 2017
Lumbar spondylosis is defined in paragraph 3(b) of SOP No. 63 of 2014 as a degenerative joint disorder affecting the lumbar vertebra or intervertebral discs with:
(a)clinical manifestations of local pain and stiffness, or symptoms and signs of cervical cord or cervical nerve root compression; and
(b)imaging evidence of degenerative change, including disc space narrowing or osteophytes.
Osteoarthritis carries a similar definition at paragraph 7(2) of SOP No. 62 of 2017, which is defined as a degenerative joint disorder with:
(a)clinical manifestations of pain, impaired function and stiffness; and
(b)osteophytes or loss of articular cartilage; and
(c)excludes acute articular cartilage tear and osteochondritis dissecans. Note 1: other commonly associated features are sclerosis of the underlying bone, inflammation of the synovium and, for osteoarthritis in the knee, degenerative tears of the menisci and, for osteoarthritis in the hip or shoulder, degenerative tears of the labrum. Note 2: the osteophytes or loss of articular cartilage may be assessed by radiological, other imaging or arthroscopic investigations.
Neither of these definitions include a provision similar to SOP No. 14 of 2023 that medical imaging is expected to post-date the clinical date of onset. In Boys v Repatriation Commission (Veterans’ Entitlements) [2022] FCA 257 (‘Boys’) the Federal Court held that the date of clinical onset is when there is imaging evidence of degenerative change (at [33] – 42)). The Tribunal is required to follow Boys.
Ultimately, the date of clinical onset for Mr Searle’s lumbar spondylosis and bilateral osteoarthritis is the date at which the features identified in clause 3(b) of SOP No. 63 of 2014 (above) are present, which is 11 July 2019, being the date on which Mr Searle had both the clinical manifestations and imaging evidence that was corroborative of his claimed conditions. This is also consistent with the most recent opinion provided by Dr Journeaux in his report dated 8 March 2023, wherein Dr Journeaux opined the clinical date of onset for Mr Searles’ conditions, in light of the Federal Court decision in Boys, was 11 July 2019.
By reason that Mr Searle has undertaken eligible defence service, any connection between that defence service and his condition is to be considered pursuant to s.120(4) and s.120B(1) of the VEA, that is to the Tribunal’s ‘reasonable satisfaction’. Pursuant to s.120B(3) of the VEA, when applying s.120(4) to determine a claim, the Tribunal is to be reasonably satisfied that an injury or disease was defence-caused only if:
(a)the material before the Tribunal raises a connection between the injury or disease and some particular defence service rendered by the person; and
(b)there is in force:
(i)a SOP determined under ss.196B(3) or (12); or
(ii)a determination of the Commission, made under s.180A(3);
that upholds the contention that the injury or disease is, on the balance of probabilities, connected with that service.
Section 120B(3)(a) of the VEA requires a finding of fact to be made by the Tribunal[2] on the balance of probabilities, however this is a two-step process. It necessarily requires that the applicable SOP upholds the contention that the injury or disease is, on the balance of probabilities, connected with that defence service:
Section 120B(3) imposes a significant limitation upon the circumstances in which the Commission may find that a disease is defence-caused. It prescribes a two-step process. Firstly, the Commission must, on the material before it, identify any connection between the disease and a veteran’s service. Secondly, it must consider whether the relevant statement of principles “upholds the contention” that the disease is, on the balance of probabilities, connected with such service.[3]
[2] See: Kowalski v Repatriation Commission [2010] FCA 409 at [83]-[95]; Kowalski v Repatriation Commission [2011] FCAFC 43 at [43].
[3] Repatriation Commission v Money [2009] FCAFC 11 at [86], per Dowsett J.
Mr Searle now contends that his lumbar spondylosis and bilateral hip osteoarthritis were caused by the loads that he was required to lift and carry during the course of his army service, and during his subsequent civilian employment as a storeman:
as an infantry soldier we were constantly lifting weights in excess of 20 kg throughout our service. Between 1982 – 1986 I was employed as a storman [sic] in civilian work. I was required to load and unload stores onto pallets – load and unload stock for transport vehicles (T9/31).
In his report dated 22 October 2022, Dr Journeaux opined that Mr Searle’s army service was only ‘a minor contributing component’ to his conditions. On that basis the Tribunal is prepared to find that a factual contention is raised between Mr Searle’s army service and his claimed conditions. Yet, in light of Repatriation Commission v Money (supra) the Tribunal is still required to proceed to the next step and must determine whether there is in force a SOP that upholds that contention.
From within the applicable SOP for lumbar spondylosis the potentially relevant factors are those contained in paragraphs 6(g), 6(i) and 6(j), which each require the lifting of loads in excess of 20 kilograms - to a specified cumulative total weight over a ten-year period - before the clinical onset of lumbar spondylosis and for the clinical onset to occur within the 25 years following that ‘epoch of lifting’.
Ultimately, there is insufficient evidence before the Tribunal for it to be satisfied that the clinical onset of Mr Searle’s condition of lumbar spondylosis did occur within 25 years of any lifting as specified in the SOP. Here, it is to be noted that Mr Searle completed his army service in November 1982. Thirty-five years then transpired before the clinical onset of his condition, which on the available evidence was not until 2019. Even if the Tribunal were prepared take into account the four years of Mr Searle’s post-army civilian employment as a storeman, such that the ‘lifting epoch’ did not end until as late as 1986, there would still need to have been clinical evidence for the onset of lumbar spondylosis by ‘no later than’ 2011, yet there is not any evidence of clinical onset until 2019, such that the applicable SOP does not uphold the initial contention in the manner now required in the two-step process identified by Dowsett J in Repatriation Commission v Money.
Meanwhile, the relevant SOP for ‘bilateral osteoarthritis of the hip’ is SOP No. 62 of 2017. Potentially relevant factors from within that particular SOP are set out in paragraphs 9(14)(b), 9(14)(c), and 16. These similarly require lifting of at least 20 kilograms - up to a specified cumulative total within any 10 year period and/or squatting or kneeling ‘for an hour or more per day on most days’ for two or more years before the clinical onset of osteoarthritis, in circumstances in which the clinical onset similarly occurs within 25 years following the epoch of either lifting, and/or kneeling or squatting. Once again, Mr Searle is unable to bring himself within this 25-year requirement, by reason that the clinical onset for his bilateral hip osteoarthritis condition was, on the available evidence, more than 25 years after Mr Searle’s army service.
DECISION
In accordance with section 43(1) of the Administrative Appeals Tribunal Act 1975 (Cth) the reviewable decision dated 18 August 2021 is affirmed.
43. I certify that the preceding 42 (forty-two) paragraphs are a true copy of the reasons for the decision herein of Member McLean Williams
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Associate
Dated: 17 April 2024
Date of hearing:
20 September 2023
Applicant
By Telephone
Advocate for the Applicant
Mr Ken Cullen
Gaythorne RSL
Solicitors for the Respondent
Mr Chris West
Sparke Helmore Lawyers
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