Sharrett and Repatriation Commission (Veterans' Entitlements)

[2019] AATA 5169

Sharrett and Repatriation Commission (Veterans' Entitlements) [2019] AATA 5169 (3 December 2019)

Division:VETERANS' APPEALS DIVISION

File Number:           2018/2634

Re:Clayton Sharrett

APPLICANT

AndRepatriation Commission

RESPONDENT

DECISION

Tribunal:Senior Member Katter

Date:3 December 2019

Place:Brisbane

The decision under review is affirmed.

....................................[SGD]....................................

Senior Member Katter

CATCHWORDS

VETERANS’ AFFAIRS – disability pension – claim for defence-caused condition – lumbar spondylosis - claim pursuant to the Veterans’ Entitlements Act 1986 (Cth) – decision under review affirmed

LEGISLATION

Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth)

Military Rehabilitation and Compensation Act 2004 (Cth)

Veterans’ Entitlements Act 1986 (Cth)

CASES

Kaluza v Repatriation Commission [2014] FCA 1137

Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82

SECONDARY MATERIALS

Statement of Principles concerning Lumbar Spondylosis No. 62 of 2014

Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014

REASONS FOR DECISION

Senior Member Katter

3 December 2019

1. This is an application to review the decision of the Respondent dated 3 May 2017[1], that the Applicant’s lumbar spondylosis is not related to service under the Veterans’ Entitlements Act 1986 (Cth) (“the Act”).

   [1]Exhibit 2, T Documents, T5, page 3, Repatriation Commission Decision with Reasons.

   FACTUAL BACKGROUND

2. The Applicant served in the Australian Army from 5 April 1988[2] to 4 February 2012[3]. The Applicant served in East Timor from 27 October 2003 to 28 January 2004[4].

   [2]Exhibit 2, T Documents, T5, page 5, Repatriation Commissions Decision with Reasons.

   [3]           Transcript, page 3, lines 20-21.

   [4]Exhibit 2, T Documents, T5, page 5, Repatriation Commissions Decision with Reasons.

3. The Applicant has had disabilities accepted under the Act[5]: osteoarthritis of the left knee (16 May 2011); osteoarthritis of the right knee (16 May 2011); allergic rhinitis (16 May 2011); right inguinal hernia (repaired) (16 May 2011); tinea of the skin (16 May 2011) and tinnitus (16 May 2011).

   [5]Exhibit 2, T Documents.

4. In a claim form dated 31 January 2017[6], the Applicant stated as to “Details of the new disabilities you are now claiming as war or defence caused” a disability of “lower back problems”, with signs and symptoms “pain – restricted range of movement”[7]. In that claim form dated 31 January 2017[8], as to the question, “How do you believe your service caused, contributed to or aggravated this disability?”, the Applicant stated: “Lifting & carrying loads in excess of 35kgs during service”[9]. In the medical diagnosis, filled in by a medical practitioner, on the claim form, it was stated[10]:

   [6]Exhibit 2, T Documents, T6, page 16, Formal Claim.

   [7]Exhibit 2, T Documents, T6, page 9, Formal Claim.

   [8]Exhibit 2, T Documents, T6, page 16, Formal Claim.

   [9]Exhibit 2, T Documents, T6, page 9, Formal Claim.

   [10]Exhibit 2, T Documents, T6, page 9, Formal Claim.

   “Diagnosis

   Lumbar Spondylotic change and L5/S1 L4 L5 disc bulge.

   Basis for diagnosis

   clinical history of back pain/stiffness

   Restricted flexion of spine at 70 degrees

   C7 lumbar spine

   Spondylotic changes L2 L3 L5, S1

   Disc bulging on L4 L5 L5 S1

   When did the veteran first consult you for this condition?

   01/02/2017.”

5. On 6 February 2017 the Applicant had the disabilities of lumbar spondylosis and sensorineural hearing loss accepted under the Military Rehabilitation and Compensation Act 2004 (Cth)[11]. The disabilities not accepted under the Act were[12]: perforated ear drum (21 May 2012), bilateral sensorineural hearing loss (20 April 2017) and lumbar spondylosis (12 March 2018).

   [11]Exhibit 2, T Documents.

   [12]Exhibit 2, T Documents.

6. On 3 May 2017 it was decided by the Respondent that lumbar spondylosis is not related to service[13]. The reasons for decision stated relevantly[14]:

   “[The Applicant] has contended that his lumbar spondylosis was caused by lifting and carrying loads in excess of 35 kilograms during service.

   I have determined lumbar spondylosis using Statement of Principles, Instrument numbers 62 and 63 of 2014, which set out the factors known to contribute to this condition.

   ·     Clinical onset of lumbar spondylosis

   CT report of the lumbar spine, dated 06/02/2017, was submitted to a contracted Departmental Medical Officer for a medical opinion. Defence Central Medical Records indicate that there was no trauma to the spine, nor any records of having suffered back pain during [the Applicant’s] service. Medical opinion stated that the clinical onset of lumbar spondylosis was 06/02/2017.

   Reason for refusal

   Sections 9A and 70A of the Veterans’ Entitlements Act 1986 (VEA) provide that disabilities having their onset after 30 June 2004 and which are causally related to service after 30 June 2004 can only be compensated under the Military Rehabilitation & Compensation Act 2004 (MRCA).

   In this case, the evidence is that the onset of the veteran’s claimed condition of lumbar spondylosis was after 30 June 2004 and that it is causally related to MRCA service because of material contribution of lifting heavy weights. I am therefore prevented from accepting the condition as related to service under the VEA. The claim for lumbar spondylosis is therefore refused.”

   [13]Exhibit 2, T Documents, T5, page 3, Repatriation Commissions Decision with Reasons.

   [14]Exhibit 2, T Documents, T5, page 6, Repatriation Commissions Decision with Reasons.

7. The Applicant requested on 19 September 2017 a review of the decision dated 3 May 2017, refusing the claim/application for lumbar spondylosis, stating the grounds for appeal as follows[15]:

   “The delegate’s decision by rejecting the claim was that she puts the date of clinical onset as the date of radiology reports (that is not the clinical onset of a disease)[.] The claim was successful under MRCA however the Applicant believes clinical onset was prior to 1 July 2004.”

   [15]Exhibit 2, T Documents, T3, page 1, VRB Request for Review.

8. The Veterans’ Review Board decided on 12 March 2018 to affirm the decision dated 3 May 2017, that lumbar spondylosis was not related to service[16]. The Board stated that there are no contemporaneous medical or imaging reports from around 1992 to support the assertion that it was around 1992 that the Applicant started experiencing back pain, with the first imaging evidence being the CT Report from 2017[17].

   [16]Exhibit 2, T Documents, T2, page B2, Decision of the VRB and Notification of VRB Decision.

   [17]Exhibit 2, T Documents, T2, page B5, paragraph 20, Decision of the VRB and Notification of VRB Decision.

9. The Application to this Tribunal dated 7 May 2018 stated as to the reasons for application[18]: “We believe that the condition should come under VEA service. We also believe the clinical onset was prior to 1 July 2004.”

   [18]Exhibit 2, T Documents, T1, page A4, Application to the AAT.

   EVIDENCE

10. The Applicant gave oral evidence at the Hearing[19].

    [19]Transcript, 4 June 2019, P-8 and P-21.

11. The Applicant referred in oral evidence to back pain during his service. The Applicant referred to pain ‘every time [h]e ran on bitumen’ at Kapooka, after joining the Army[20]. The Applicant stated that his back “sort of started” aching at the bottom of the hill at Canungra in 1989, when he was 19, doing “battle in training”, with a pack on and carrying a Bren gun[21]. The Applicant stated[22]:

    “I did go to the RAP that night and say … I’m in a bit of pain and the medic said  … here’s a couple of Panadol but there’s not much we can do for your back out here. If it continues to hurt, then, obviously, come to the RAP when we get back to base and we’ll sort it out. So, I just took the Panadol for a couple of days and continued on but when I got back to base, my back started to get better. Obviously, I’d finished doing that and after a lot of discussions with other soldiers, they sort of said if your back’s gone, that’s the end of your career, that’s it, so don’t report your back because you’ll go and, still to this day, pretty much once you get a sore back, it’s - so I started to manage it throughout my career because in that same unit we used to lift Mack truck sides, and they weighed a fair bit. I don’t know offhand but they were very heavy and when you had to lift them, you had to lift them up to the tray of the truck because they were four-wheel drive trucks and the trays are quite high and you have to - you have to like clean and jerk to get them up to that height and then put them in recesses and move them forward. Very - to do that all the time, your back starts to ache. Obviously I did that a lot in those first few years in 5 Transport Squadron. I then moved to a domestic unit where things settled down and I was able to rest my back because it was - we drove buses and cars, and things like that, where lifting wasn’t really that much. My back would still hurt when we run on concrete, because we had to do a 5 kilometre BFA, … your lower back would ache from the jarring on concrete because I was a heav[y] person as well. So, we’d run that 5 kilometres but the next posting. when I went to Townsville, that was reduced from a 5 kilometre run down to a 2.4 kilometre run. So, that eased my back a lot and it was a lot better after that and I managed it as it went. So, if I got a sore back I would just manage it for a week or two and let it go. If I needed to go to the RAP, I’d just go to the RAP and just say it was a sore leg or a sore knee because that was easier than going and saying that you had a sore back because if you had a sore back, it was a problem that you - you were looking at a lot more time off and - and worried about your career. Obviously my pension system that I got through the military, you had to do 20 years to get the pension, so there was no way I was going to give that up to get a lifelong pension, so I did everything I could and stuck up with every bit of pain I could, either by using alcohol or whatever but - also in East Timor, when I was over there, the - the - East Timor was closing down. If you remember it closed down for a couple of years and then started up again. As it was - as we were sort of closing the country down, as in the Defence Force being there, we were withdrawing everything. So, we were doing a lot of loading, a lot of lifting of those Mack sides because we were changing trucks constantly for troop lifting, so that involved pulling the truck apart, the back of it, and then loading with generators and chains and dogs, also fuel, all sorts of stuff and there was a hell of a lot of lifting and carrying in that and we obviously worked seven days a week most weeks and - and 12 hours a day. There was no stopping and when I came back to Australia, that’s when I started to get promoted and - and go through the stream to get to sergeant on a discharge.”

    [20]Transcript, 4 June 2019, P-8, lines 32-37.

    [21]Transcript, 4 June 2019, P-9, lines 23-41.

    [22]Transcript, 4 June 2019, P-9, line 47 and P-10, lines 1-46.

12. The Applicant further stated that when he was at the 3rd Battalion Royal Australian Regiment in 2009 and 2010 he was required to do pack marching[23].

    [23]Transcript, 4 June 2019, P-13, lines 31-36 and 46-47.

    DR RADOVANOVIC

13. Dr John Radovanovic, orthopaedic surgeon, provided a report dated 5 September 2018[24].

    [24]Exhibit 12, Medical Report of Dr John Radovanovic dated 5 September 2018.

14. The Doctor stated that at the time that the Applicant joined the Army in 1988 his weight was approximately 78 kilograms[25]. The Doctor stated that “after a few years”, the Applicant increased his weight to 122 kilograms, but continued with basic training and daily physical exercise which involved carrying packs that may have weighed up to 35 kilograms[26]. The Doctor stated that the Applicant[27]: “ … has developed back pain over the last few years after leaving the Army in 2012”. The Doctor stated that the Applicant does experience symptoms consistent with lumbar spondylosis and nerve root irritation, which satisfies the diagnostic criteria of lumbar spondylosis[28]. Further, the doctor stated that:

    “It also indicates that due to his work history throughout the Army of load-carrying and load-bearing activities that this has been a significant contributing over the years and a reasonable assumption can be made that it commenced on 1 May 1988. Albeit, he does not appear to have advised any doctor, whilst in the Army, of any back pain. It would be reasonable to draw the conclusion that following a significant period of load carrying and bearing over many years and the exercise that her performed, in particular with his increased weight, has contributed significantly to the development of lumbar spondylosis. Thus the contributing of his risk factors include basic training, pack carrying, work as a truck driver loading and unloading trucks, carrying loads and also repeated tyre changing as well as excess weight. The relative contribution of all these leads to 100% contribution of development of these symptoms. I would say that his excess weight, in isolation, would have contributed approximately 25%, and the rest equally up to remaining 75%. The condition is permanent, as seen in the MRI and will progress over time. Considering he is also only 48 years old, his has significant degenerative change in his lumbar spine, consistent with lumbar spondylosis in excess of what I would expect a normal 48 year old to have.”

    [25]Exhibit 12, Medical Report of Dr John Radovanovic dated 5 September 2018.

    [26]Exhibit 12, Medical Report of Dr John Radovanovic dated 5 September 2018, page 3.

    [27]Exhibit 12, Medical Report of Dr John Radovanovic dated 5 September 2018, page 3.

    [28]Exhibit 12, Medical Report of Dr John Radovanovic dated 5 September 2018, page 5.

15. In a supplementary report dated 21 March 2018 Dr Radovanovic further stated as to “onset”[29]:

    “In my report I do state that [the Applicant] developed symptoms the last few years after leaving the army in 2012. Upon reflection in my report this has been stated to indicate that he experiences consistent pain in his back after leaving the army in 2012.

    Whilst is was not clear in the documentation, [the Applicant] indicated that as a result of carrying heavy packs of up to 35kg whilst in the army from 1988 and after weighing 122kg the additional weight of the pack and the exercise resulted in intermittent back pain which really was the commencement of his lumbar spondylosis. Thus we can state that from about 1990 onward he was developing intermittent back pain which was the commencement of his lumbar spondylosis and this is reflected in my report in the latter half of the “Symptoms Onset, Subsequent Events and Treatment” paragraph that he had pain whilst changing tyres that were very heavy.”

    [29]Exhibit 4, Supplementary Report of Dr John Radovanovic dated 21 March 2019, page 2.

    THE ACT

16. Section 9 of the Act relevantly states:

    “War-caused injuries or diseases

    (1) Subject to this section and section 9A, for the purposes of this Act, an injury suffered by a veteran shall be taken to be a war-caused injury, or a disease contracted by a veteran shall be taken to be a war-caused disease, if:

    (a)the injury suffered, or disease contracted, by the veteran resulted from an occurrence that happened while the veteran was rendering operational service;

    (b)the injury suffered, or disease contracted, by the veteran arose out of, or was attributable to, any eligible war service rendered by the veteran;

    …

    (e)the injury suffered, or disease contracted, by the veteran:

    (i)     was suffered or contracted while the veteran was rendering eligible war service, but did not arise out of that service; or

    (ii)     was suffered or contracted before the commencement of the period, or last period, of eligible war service rendered by the veteran, but not while the veteran was rendering eligible war service;

    and, in the opinion of the Commission, the injury or disease was contributed to in a material degree by, or was aggravated by, any eligible war service rendered by the veteran, being service rendered after the veteran suffered that injury or contracted that disease;

    but not otherwise.”

17. Section 9A of the Act relevantly states:

    “Most war-caused injuries, diseases and deaths no longer covered by this Act

    (1) A veteran’s injury [or] disease … is taken not to be war-caused if:

    (a)the injury is sustained, the disease is contracted … on or after the MRCA commencement date; and

    (b)the injury, disease or death either:

    (i)     relates to service rendered by the person on or after that date; or

    (ii)     relates to service rendered by the person before, and on or after, that date.

    Note: After the MRCA commencement date, compensation is provided under the MRCA (instead of this Act) for such injuries, diseases and deaths. … ”

18. The relevant commencement date of the Military Rehabilitation and Compensation Act 2004 (Cth) was 1 July 2004[30].

    [30]Military Rehabilitation and Compensation Act 2004 (Cth) s 2(1).

19. Section 70A of the Act relevantly states:

    “Most defence-caused injuries, diseases and deaths of members of the Defence Force no longer covered by this Act

    (1) An injury, disease or death of a member of the Forces, or any other member or former member of the Defence Force, is taken not to be defence-caused if:

    (a)the injury is sustained, the disease is contracted, or the death occurs, on or after the MRCA commencement date; and

    (b)the injury, disease or death either:

    (i)      relates to service rendered by the member on or after that date; or

    (ii)      relates to service rendered by the member before, and on or after, that date.

    Note 1: After the MRCA commencement date, compensation is provided under the MRCA (instead of this Act) for such injuries, diseases and deaths. … ”

20. Section 5D(1) of the Act defines the following:

    “disease means:

    (a)any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); or

    (b)the recurrence of such an ailment, disorder, defect or morbid condition;

    but does not include:

    (c)the aggravation of such an ailment, disorder, defect or morbid condition; or

    (d)a temporary departure from:

    (i)     the normal physiological state; or

    (ii)    the accepted ranges of physiological or biochemical measures;

    that results from normal physiological stress (for example, the effect of exercise on blood pressure) or the temporary effect of extraneous agents (for example, alcohol on blood cholesterol levels).

    …

    injury means any physical or mental injury (including the recurrence of a physical or mental injury) but does not include:

    (a)a disease; or

    (b)the aggravation of a physical or mental injury. … ”

21. The matter is to be decided to “reasonable satisfaction”: sub-s 120(4) of the Act.

22. Section 120B of the Act states:

    Statement of Principles

    (1) This section applies to any of the following claims made on or after 1 June 1994:

    …

    (b)a claim under Part IV that relates to the defence service (other than hazardous service and British nuclear test defence service) rendered by a member of the Forces.

    Note 1: Subsection 120(4) is relevant to these claims.

    …

    (3) In applying subsection 120(4) to determine a claim, the Commission is to be reasonably satisfied that an injury suffered by a person, a disease contracted by a person or the death of a person was … defence-caused only if:

    (a)the material before the Commission raises a connection between the injury, disease or death of the person and some particular service rendered by the person; and

    (b)there is in force:

    (i)     a Statement of Principles determined under subsection 196B(3) or (12); or

    (ii)    a determination of the Commission under subsection 180A(3);

    that upholds the contention that the injury, disease or death of the person is, on the balance of probabilities, connected with that service.

    … ”

    CLINICAL ONSET

1. In Kaluza v Repatriation Commission [2014] FCA 1137 at [68] per Foster J, the following was stated:

   “In Kaluza v Repatriation Commission (2011) 280 ALR 621 at 624 [15], the Full Court explained the approach which the Tribunal was required to take … . The Full Court said:

   … As he contends those conditions are war-caused based on operational service, the issues to be addressed by the Tribunal were as follows … :

   1The first question for the Tribunal was to identify the collection of relevant symptoms which the Tribunal was satisfied constituted the disease which the veteran contracted and which was comprehended by the claim. (Repatriation Commission v Budworth (2001) 116 FCR 200 (at [19]) (special leave refused [2002] HCATrans 303)).

   2If the Tribunal was satisfied that the symptoms constituted an injury or disease, as defined in s 5D of the … Act, then the question of whether those symptoms were war-caused was to be resolved in accordance with s 120(1) of the … Act as qualified by s 120(3) and s 120A (Budworth (at [19])).

   3In applying ss 120(1), 120(3) and 120A of the … Act, the Tribunal was to consider all the material and determine whether:

   (i)    it pointed to some fact or facts (the raised facts) which supported an hypothesis connecting the disease with the circumstances of operational service; and

   (ii)   that hypothesis can be regarded as reasonable, if the ‘raised facts’ are true. (Bushell v Repatriation Commission (1992) 175 CLR 408 (at 414)).

   4If the ‘raised facts’ pointed to one or more hypotheses of a connection, then the decision-maker must decide whether a Statement of Principles (SoP) was in force in respect of the ‘kind of disease’ from which the veteran suffers (Repatriation Commission v Deledio (1998) 83 FCR 82 step two (at 97F) and Benjamin v Repatriation Commission (2001) 70 ALD 622 (at [55]) (special leave refused [2002] HCATrans 302)).

   5If an SoP is in force in respect of the kind of disease from which the veteran suffers, then the hypothesis is reasonable only if it is ‘upheld’ by the SoP in the sense of being ‘consistent with the ‘template’ to be found in the SoP’ (Deledio step three (at 97G)).

   6If an hypothesis is upheld by an SoP, or is not unreasonable under s 120(3), then the decision-maker must weigh the evidence under s 120(1) to decide whether the hypothesis is disproved beyond reasonable doubt (Deledio step four (at 97G) and Byrnes v Repatriation Commission (1993) 177 CLR 564 (at 571)). The claim succeeds if it is not so disproved.”

2. It is not in contention that the Applicant has lumbar spondylosis[31] (first question). The lumbar spondylosis constitutes a disease as defined in section 5D of the Act (second question). In considering all the material, including the evidence of Dr Radovanovic[32] and the oral evidence of the Applicant[33], as referred to above, it is determined that that material points to facts (the “raised facts”) which support the hypothesis connecting the disease with the circumstances of operational service (third question (i)). There is no evidence in contradiction to the evidence of Dr Radovanovic[34] and the oral evidence of the Applicant[35], as referred to above and the hypothesis can be regarded as reasonable (third question (ii)). The “raised facts” point to a hypothesis of a connection and it is decided that a Statement of Principles[36] was in force in respect of the kind of disease from which the Applicant suffers (fourth question).

   [31]Exhibit 19, Applicant’s Statement of Facts and Contentions filed 11 June 2019, paragraph 6.25; Exhibit 18, Respondent’s Facts and Contentions, paragraph 6.22.

   [32]Exhibit 12, Medical Report of Dr John Radovanovic dated 5 September 2018, page 5; Exhibit 4, Supplementary Report of Dr John Radovanovic dated 21 March 2019, page 2.

   [33]Transcript, 4 June 2019, P-9, line 47 and P-10, lines 1-46.

   [34]Exhibit 12, Medical Report of Dr John Radovanovic dated 5 September 2018, page 5; Exhibit 4, Supplementary Report of Dr John Radovanovic dated 21 March 2019, page 2.

   [35]Transcript, 4 June 2019, P-9, line 47 and P-10, lines 1-46.

   [36]Statement of Principles concerning Lumbar Spondylosis No. 62 of 2014; Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014.

3. As there is a Statement of Principles[37] in force in respect of the kind of disease from which the Applicant suffers, lumbar spondylosis, then the hypothesis is reasonable only if it is “upheld” by the Statement of Principles[38], in the sense of being consistent with the “template” to be found in the Statement of Principles (fifth question).

   [37]Statement of Principles concerning Lumbar Spondylosis No. 62 of 2014; Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014.

   [38]Statement of Principles concerning Lumbar Spondylosis No. 62 of 2014; Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014.

4. Lumbar spondylosis is defined at clause 3 of the Statement of Principles concerning Lumbar Spondylosis No. 62 of 2014 and the Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014 to mean:

   “ … For the purposes of this Statement of Principles, ‘lumbar spondylosis’ means a degenerative joint disorder affecting the lumbar vertebrae or intervertebral discs with:

   (i)clinical manifestations of local pain and stiffness, or symptoms and signs of lumbar cord, cauda equina or lumbosacral nerve root compression; and

   (ii)imaging evidence of degenerative change, including disc space narrowing or osteophytes.

   Other commonly associated features include facet joint arthritis, bone hypertrophy and spinal stenosis. This definition excludes diffuse idiopathic skeletal hyperostosis, Scheuermann’s kyphosis and bulging of an intervertebral disc in the absence of other signs of disc degeneration. Lumbar spondylosis includes spondylosis at the lumbosacral junction.”

5. The hypothesis as to the clinical onset of lumbar spondylosis prior to 1 July 2004 is not upheld therefore[39], in that there is no imaging evidence prior to 6 February 2017[40] of degenerative change, including disc narrowing or osteophytes, in accordance with clause 3 of the Statement of Principles[41]. The hypothesis as to lumbar spondylosis is not upheld by the Statement of Principles prior to 1 July 2004, in that the hypothesis is not consistent with the template to be found in clause 3 of the Statement of Principles. The factors in clause 6 of the Statement of Principles that must exist before it can be said that, on the balance of probabilities, there is lumbar spondylosis connected with the circumstances of a person’s relevant service prior to 1 July 2004, are only applicable further to the definition in clause 3 of lumbar spondylosis.

   [39]Kaluza v Repatriation Commission [2014] FCA 1137 at [68].

   [40]Exhibit 18, Respondent’s Facts and Contentions, paragraph 6.22.

   [41]Statement of Principles concerning Lumbar Spondylosis No. 62 of 2014; Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014 and Amendment Statement of Principles concerning Lumbar Spondylosis No. 68 of 2018.

6. Section 7 of the Military Rehabilitation and Compensation (Consequential and Transitional Provisions) Act 2004 (Cth) states that if a disease arises on or after 1 July 2004 and is related to service rendered on or after that date, sections 9A(1) and 70A(1) of the Act state that the disease cannot be accepted under the Act, even if it also related to service rendered before 1 July 2004, with that disease being claimed under the Military Rehabilitation and Compensation Act 2004 (Cth). As referred to above, on 6 February 2017 the Applicant had the disability of lumbar spondylosis accepted under the Military Rehabilitation and Compensation Act 2004 (Cth)[42].

   [42]Exhibit 2, T Documents.

7. As the hypothesis that the clinical onset of lumbar spondylosis was prior to 1 July 2004 “fails to fit” within the template of the Statement of Principles[43], the hypothesis is deemed not to be “reasonable” and the application therefore fails as to the disability being accepted under the Act[44].

   [43]Statement of Principles concerning Lumbar Spondylosis No. 62 of 2014; Statement of Principles concerning Lumbar Spondylosis No. 63 of 2014 and Amendment Statement of Principles concerning Lumbar Spondylosis No. 68 of 2018.

   [44]Repatriation Commission v Deledio[1998] FCA 391; (1998) 83 FCR 82 at 83-85, as quoted in Kaluza v Repatriation Commission [2014] FCA 1137 at [69].

   DECISION

8. The decision under review is affirmed.

I certify that the preceding 30 (thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Katter

.....................................[SGD]...................................

Associate

Dated: 3 December 2019

Date of Hearing:	4 June 2019
Date final submissions received:	28 June 2019
Advocate for the Applicant:	Mr Ken Cullen
Advocate for the Respondent:	Mr Bruce Williams