Searle and Repatriation Commission (Veterans' entitlements) - [2024] AATA 764

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.
...................................[SGD].....................................
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 11
Secondary 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] AATA 764
Decision Date: 17 April 2024

CaseChat Overview and Summary

The Administrative Appeals Tribunal (AAT) considered the entitlement of Mr Searle to a disability pension under the *Veterans' Entitlements Act 1986* (VEA) for lumbar spondylosis and bilateral hip osteoarthritis. The dispute arose after the Repatriation Commission rejected Mr Searle's claim, a decision affirmed by the Veterans' Review Board (VRB). Mr Searle sought a review of the VRB's decision before the AAT.

The AAT was required to determine whether the material before it raised a connection between Mr Searle's claimed medical conditions and his eligible defence service. This involved assessing whether a Statement of Principles (SOP) in force at the relevant time upheld the contention that either or both conditions were caused by his defence service on the balance of probabilities. The Tribunal also had to consider the applicability of different SOPs that had been in force sequentially and the potential for accrued rights under earlier SOPs.

The Tribunal's reasoning focused on the requirements of the applicable SOPs for lumbar spondylosis and bilateral hip osteoarthritis. For bilateral hip osteoarthritis, the relevant SOP required specific heavy lifting or prolonged squatting/kneeling for at least two years before the clinical onset of the condition, with the onset occurring within 25 years of the service. The Tribunal found that Mr Searle's clinical onset of hip osteoarthritis occurred more than 25 years after his defence service, thus failing to meet this criterion. Similarly, the Tribunal considered the requirements for lumbar spondylosis, noting the change in SOPs and the principles established in *Repatriation Commission v Gorton*, which allow for reliance on accrued rights under earlier SOPs if current SOPs do not uphold the hypothesis. However, the decision text indicates that the specific findings regarding the lumbar spondylosis SOP were not detailed in the provided extract, but the overall outcome suggests it also did not support the claim.

The reviewable decision of the VRB, dated 18 August 2021, was affirmed by the AAT.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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