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 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…
Keep reading for free
Create a free CaseChat account to read Searle and Repatriation Commission (Veterans' entitlements) and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2024] AATA 764
- Decision Date
CaseChat Overview and Summary
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
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.