Wendt and Repatriation Commission - [2001] AATA 817

DECISION AND REASONS FOR DECISION [2001] AATA 817

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2000/1222

VETERANS' APPEALS DIVISION          )
           Re      ROSS WENDT
  Applicant
           And    REPATRIATION COMMISSION
  Respondent

DECISION

Tribunal Ms N Bell, Member

Date27 September 2001
PlaceSydney

Decision      The Tribunal sets aside the decision under review and in substitution decides: a) the Applicant's disabilities of cervical spondylosis and osteoarthrosis of the hips are war caused; and b) the Applicant qualifies for payment of disability pension at 90 per cent of the general rate of pension, with effect from the first pension payday on or after 28 October 1998.
  .............................................
  [Sgd] Ms N Bell
  Member
CATCHWORDS
VETERANS' AFFAIRS – disability pension – cervical spondylosis –osteoarthrosis – whether conditions are war-caused – whether material before the Tribunal points to a hypothesis connecting the Applicant's conditions with the circumstances of his operational service – reasonable hypothesis – relevant statement of principles – consistency between hypothesis and statement of principles – whether the Tribunal is satisfied beyond reasonable doubt that there is no sufficient ground for determining that the Applicant's conditions are war-caused – correct rate of disability pension

Veterans' Entitlements Act 1986 – ss 9, 120,120A 120B
Statements of Principles Instrument No 31 of 1999 (concerning Cervical Spondylosis)
Statement of Principles Instrument No 20 of 1999 (concerning Osteoarthrosis)
Harris v Repatriation Commission (2000) 62 ALD 174
Repatriation Commission v Deledio (1998) 83 FCR 82
Byrnes v Repatriation Commission (1993) 177 CLR 564
Repatriation Commission v Stares (1996) 66 FCR 594
Repatriation Commission v Smith (1987) 15 FCR 327

REASONS FOR DECISION

Ms N Bell

This is an application by Mr Ross Wendt ("the Applicant") for review of the decision of the Repatriation Commission ("the Respondent") dated 5 June 1999 (T2) which refused the claimed conditions of cervical spondylosis, lumbar spondylosis and localised osteoarthrosis affecting both hips, but increased the Applicant's disability pension to 40 per cent of the general rate with effect from 28 January 1999. This decision was subject to further review by the Veterans' Review Board ("VRB") and in a decision dated 22 June 2000 (T18) the VRB affirmed the Respondent's decision in relation to cervical spondylosis and localised osteoarthrosis of both hips, but set aside the Respondent's decision in relation to lumbar spondylosis, increasing the Applicant's disability pension to 50 per cent of the general rate with effect from 28 October 1998.
At the hearing the Applicant was represented by Mr Jones, and the Respondent was represented by Mr Modder. The Applicant gave oral evidence at the hearing.
The following documents were taken into evidence:
Exhibit No     Description    Date
T1–T31 pp 1-231 T-documents pursuant to section 37 of the Administrative Appeals Tribunal Act 1975
A1      Statement of John King     20 August 2001
A2      Statement of David Maxwell         27 July 2001
A3      Statement of Terrence Butler       24 July 2001
A4      Statement of Mark Russell 13 September 2000
A5      Statement of Brian Bailey   7 August 2001
A6      Statement of David Shirvill 21 August 200
A7      Statement of Ian Irving       28 July 2000
A8      Report of Dr K Hume         27 November 2000
A9      Report of Dr K Hume         10 May 2001
A10     Report of Dr M Baz 5 March 2001
A11     Applicant's Statements of Facts and Contentions        27 March 2001
A12     Bundle of photocopied photographs
R1      Report of Dr M Burns         22 January 2001
R2      Report of Dr W Lennon     19 January 2001
R3      Supplementary report of Dr W Lennon    11 May 2001
R4      Medical Records from St Vincent's Clinic
R5      Respondent's Statements of Facts and Contentions    21 August 2001

Issues

The issues to be considered by the Tribunal in this application are:
a)   whether the Applicant's condition of cervical spondylosis is a war caused disease or injury; and
b)   whether the Applicant's condition of osteoarthrosis of both hips is a war-caused disease or injury; and
c)   the assessment of the correct rate of disability pension to be paid to the Applicant.
The parties are in agreement that, if the above conditions are found by the Tribunal to be war-caused, then the correct rate of assessment for disability pension will be 90 per cent of the general rate from 28 October 1998. However, Mr Jones for the Applicant encouraged the Tribunal to consider, on the evidence before it, whether the Applicant has resting joint pain in his hips, his impairment rating, and consequently, that his rate of pension should be changed accordingly.
Legislation
The relevant legislation in this application is the Veterans' Entitlements Act 1986 ("the Act") and in particular sections 9, 120 and 120A. The Statements of Principles ("SoPs") relevant to this application are:
a) SoP Instrument No 31 of 1999 concerning cervical spondylosis; and
b) SoPs Instrument Nos 20 and 42 of 1999 concerning osteoarthrosis.
Section 9(1) of the Act provides:
"9 War-caused injuries or diseases
(1)       Subject to this section, 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;
(c)       the injury suffered, or disease contracted, by the veteran resulted from an accident that occurred while the veteran was travelling, while rendering eligible war service but otherwise than in the course of duty, on a journey to a place for the purpose of performing duty or away from a place of duty upon having ceased to perform duty;
(d)       the injury suffered, or disease contracted, by the veteran is to be deemed by subsection (2) to be a war-caused injury or a war-caused disease;
(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."
Sections 120 and 120A are set out later in this statement of reasons.
Background
The Applicant was born on 17 June 1945. He joined the Royal Australian Navy in July 1961, aged 16 years. He retired after 39 years of service in June 2000. The Applicant's service history (T5, p34-35) shows that he was engaged in engineering training until July 1966, when he began a Fitter and Turner Adult apprenticeship. From September 1968 until December 1976 he was engaged in engineering maintenance. In 1976 he began officer training and after receiving his Commission was an Engineering Officer, Officer In Charge of Darwin Naval Base and Manager of Contracted Ship and Submarine Repair.
It is not in dispute that the Applicant had the following periods of operational service:

Far East Strategic Reserve from 15 April 1963 to 8 May 1963;
Far East Strategic Reserve from 10 May 1963 to 25 May 1963; and
Vietnam from 14 September 1970 and later April 1971.

It is not in dispute that the Applicant had eligible defence service from 7 December 1972.
relevant evidence
the applicant
The Applicant's evidence was that he was born on 17 June 1945, left school when he was 16 and worked variously as a shop assistant, apprentice carpenter, TV and tender installer and wheel aligner, over a period of two years. He joined the Royal Australian Navy in July 1961 as a junior recruit and was posted to HMAS Leeuwin in Western Australia for 12 months. The Applicant decided to pursue Engineering and went to HMAS Cerberus for 12 months and then had a period at sea.
The Applicant then detailed his various postings and the completion of his trade qualifications. These are detailed in the Applicant's service records at (T5, pp34-35.) The bulk of the Applicant's duties during this period involved general ship duties and maintaining machinery. He described an average day, (he had obtained all of his major certificates and was then fully qualified), as one in which he would work four hourly shifts watch keeping, engaging in general maintenance of machinery, performing general ship duties.
The Applicant said that he went to Vietnam in September 1970 on HMAS Perth whose role was to provide support to US forces and supply ships. By this time the Applicant's rank was mechanician and Chief Petty Officer and his duties were watch keeping, maintaining machinery, manning damage control bases and general ship's duties. The system of four hourly shifts continued. During this period the Applicant fell from a nearly vertical ladder that he had accessed through a double hatch. He said that when he got through the hatch and down the ladder about a third of the way, he slipped and fell. The ladder was approximately 16 feet high.
The Applicant said that he was in pain and stunned and others came to his attention. He felt severe pain in his lower back, shoulder, and neck area. The pain got worse in the next few hours and medical staff told him to go and rest and relieved him from watch duties for three weeks. He was given painkillers. The Applicant said the whole area, lower back, shoulder and neck area was very painful for the next two weeks and that when the ship reached Subic Bay he was sent ashore to a US hospital base where he was given x-rays of his upper and lower spine. He was prescribed painkillers and treated with physiotherapy for six or seven days. He recalls this incident taking place in October or November 1970.
The Applicant considered that he may have hurt his neck by bouncing off the side of the ladder when he fell, or by wrenching his neck by the movement of his fall. He said that his neck was sore for about three weeks and that he continued to get spasms in his neck over the years.
The Applicant then detailed his service at various postings where he continued to undertake maintenance duties involving heavy manual work. He gave evidence of the continued requirement that he maintain physical fitness and the need, in order to comply with this requirement, for him to train for at least 45 minutes each day. This involved running, completing circuits and weight bearing exercises.
In January 1977 the Applicant was commissioned and spent 12 months in the United Kingdom doing advanced engineering training. This comprised some theoretical or classroom work, together with practical modelling and learning British firefighting and damage control modules. During this time he spent weeks fighting fires, working on gas turbines and learning associated diagnostic skills. This period was split between time in the classroom and time in the workshops.
The Applicant told the Tribunal that in 1978 and 1979 he went back to Australia and was posted to the HMAS Stalwart as the Junior Commissioned Engineer. His duties included maintaining auxiliary diesels and he was in charge of the Fleet Maintenance Unit. He stated that he was still involved in the hands on aspects of the work and that it was still very physical. The Applicant described the difference in this respect in the type of manual work required of an officer, as opposed to that required of a sailor, as being less "dirty" stripping down work, and that as an officer he undertook more reconstruction of machinery to ensure that it met specifications. He maintained that he worked hand-in-hand with sailors. The Applicant said that he continued watch keeping and maintenance duties and, in addition, undertook rounds of the ship twice a day, which involved opening and closing heavy hatches. He said that he also consolidated firefighting and damage control activity.
The Applicant noted that when the seas were rough, all activity was more difficult because of the stress placed on one side of the body, making it harder to move around and to open and close hatches.
The Applicant was then posted back to HMAS Perth, which was undergoing major refitting. He said that he was involved in manual work every day or at least most days. He then returned to Nirimba as the Training and Development Officer, responsible for developing the modules for training and maintenance activities. The Applicant said that his secondary duties involved guidance of apprentices in the construction of a range of projects and in field exercises. He continued to pursue the physical fitness regime required of him by the Navy.
Following that, the Applicant was posted to Fleet Headquarters and as part of Fleet Staff he was required to conduct training in disaster relief. He was then posted to HMAS Jervis Bay and following that, to Darwin Naval Base.
The Applicant said that he continues to suffer from the pain in his hips. The left side is the worst and while he takes medication, including Celebrex and Panadeine Forte, the pain is constant and often prevents him from sleeping.
In cross-examination, the Applicant agreed that, following his fall from the ladder, the main pain he felt was to his lower back but that he felt pain in his upper back as well. He agreed that he was not treated with a brace for his neck and was not given any corticosteroid injections and has had no surgery to his neck.
He stated, in cross examination, that as an officer he was still required to perform a great deal of manual or physical work himself, as it was necessary for such work to be performed in very tight spaces and there was no scope for supervision of this work alongside a sailor. He estimated that the percentage of his work as an officer that constituted physical work, was approximately 20 per cent on an average daily basis. He confirmed that he conducted his rounds of the ship twice per day and he did this alone. The Applicant also continued his physical fitness regime.
john king
Mr King's statement concerned the type of conditions that would have been experienced by the Applicant during his service in the Royal Australian Navy, in the period 1970 to 1977, during sea and shore postings. Mr King (CPO Coxswain RAN Retired) described moving around on continuously moving decks which placed large amounts stress on the legs and hips as the ship rolled heavily. He stated that it was necessary, under these conditions, to take all of the body weight on one side to remain on one's feet and that this applied not only to transit along passageways in those conditions but also through heavy doors and hatches and up and down very steep, and sometimes vertical, ladders. Mr King described decks and ladderways as often being very slippery, as a result of water and oils, and that consequently many falls occurred. He said that slip falls in such conditions were commonplace and often went unreported, unless some injury resulted and pain was experienced. Mr King said that in those days personnel were discouraged from reporting minor incidents and injuries.
Mr King said that at sea, all personnel, and in particular the Engineering Department, were involved in activities that involved continuous heavy physical activity. Mr King outlined the following general and engineering activities that, in his view, the Applicant would have been required to participate in:
·     lifting and passing, in a twisting motion, many hundreds of shells and powder cases that weighed in excess of 35kg each;
·     lifting and passing stores including boxes of frozen meat of 40kg and above, bags of potatoes, and onions and frozen stores in heavy packages 40kg and above;
·     the transfer through the ship of toolboxes weighing 30 to 50kg, oxygen and acetylene bottles weighing 50 to 60kg each, heavy machinery spares and components weighing 60kg or more and other heavy items;and
·     the stripping down and reassembly of heavy main propulsion and auxiliary machinery.
Mr King stated that the Applicant would have conducted all of these activities in awkward and stooped positions which would have involved continuous flexion and twisting of his legs, hips and other body parts. Mr King then described the activities involved in the regular rounds of machinery compartments at various locations around the ship that would have been required of the Applicant. He also described the required bending, stripping, passage up and down steep ladderways and the opening and shutting of heavy doors and hatches. According to Mr King, daily damage control exercises would also have been conducted, involving movement through the ship, heavy firefighting, pumping and associated damage control equipment, as well as exercises involving the removal of personnel casualties weighing up to 100kg.
Mr King stated that when ashore during those periods, the Applicant would have been involved in similar maintenance activities as his postings were to the Fleet Maintenance Units who were required to fill in for sea going sailors who were on leave. Consequently, the Applicant's conditions would have been identical to those at sea for an engineering sailor. In addition, according to Mr King, the Applicant would have been regularly involved in heavy damage control; and casualty evacuation exercises and would also regularly participate in heavy demanding activities such as the movement of large objects and equipment in disaster relief exercises, firefighting actions and the movement of 20m by 12m fuel hoses.
david maxwell
Mr Maxwell stated that he had served with the Applicant on various ships and establishments. He stated that throughout 1977 he and the Applicant were on courses in the United Kingdom, following their commissioning, and undertook a number of training activities that involved the lifting and use of heavy equipment. This equipment included portable fire and flood pumps, and associated lengths of charged fire hoses, portable air compressors, large breathing air bottles and the like. He stated that the Applicant was required, as part of firefighting, damage control and casualty evacuation exercises, to lift and move heavy equipment often in stooped and twisted positions that required repetitive flexion. Mr Maxwell stated that most of the equipment was well in excess of 50kg and was normally dealt with single-handedly. He also stated that some heavier work was carried out in pairs, but no other personnel or mechanical assistance was provided even when the items lifted weighed well in excess of 140kg. He stated that engineers' work was arduous, heavy and physically demanding, often in difficult conditions such as extremes of heat, poor ventilation and little room in which to work.
terence butler
Mr Butler also gave evidence in relation to the numerous damage control and firefighting exercises, on board ship and ashore, undertaken by the Applicant throughout the period February 1978 to August 1979, whilst he served on HMAS Stalwart with him. He also referred to the opening and closing of heavy steel hatches with no mechanical assistance, whilst at sea. He noted that these activities, involving lifting and twisting, were often conducted in heavy seas and confined spaces, placing very heavy strain on all parts of the body. He also referred to the maintenance and repair work undertaken by the Applicant on heavy mechanical equipment, including the main engines, diesel generators, compressors, large heated exchanges and pumps. In addition, he referred to exercises aiding the civil community during disaster, which involved manhandling of heavy equipment ashore, building temporary bridges and erecting telegraph and lighting poles. He described this as hard manual labour and heavy physical strain. He also referred to ship boarding parties, which involved manhandling of heavy equipment between ships. Mr Butler also stated that he had, whilst serving in HMAS Stalwart for a second time, witnessed the Applicant actively participate in the emptying of furnace fuel oil from a major oil storage tank in Port Moresby, during 1985. This involved entry into the tank and scooping the remaining three feet of furnace fuel out, using buckets and great physical effort.
mark russell

Mr Russell is the Platform Systems Manager for ADI Ltd at Garden Island. His evidence was that the Applicant served as the Deputy Marine Engineering Officer of HMAS Perth from 7 August 1979 to 16 February 1981. He stated that Marine Engineering Officers were involved in continuous heavy physical activity whilst serving on board and that such duties would include damage control and firefighting exercises, which required the movement of heavy portable pumps, some of which weighed over 120kg. These exercises also required the carriage and movement of five main charged fire hoses through constrained areas and the lifting of "injured" personnel out of confined and constrained spaces. He said that "heavy exercises" required lifting and movement of heavy items of material and equipment. Mr Russell also referred to the manipulation of heavy hatches and the need for an engineering officer to move through the ship with a great deal of bending, twisting, stooping, climbing and crawling under many difficult to access, or confined, spaces and compartments all while the ship may be undergoing violent manoeuvres or be in heavy seas, which accentuates the activity of moving through the ship. Mr Russell's evidence was that the status of "officer" did not mean that the Applicant would not have frequently assisted the maintenance staff with their work.
brian bailey
Mr Bailey stated that from approximately mid 1981, for a period of 18 months, he was employed as Base Engineer Officer of HMAS Nirimba. His duties included general overseeing of all maintenance and construction undertaken within that depot. He stated (Exhibit A5):
" 3 Construction and maintenance tasks that fell into the latter category were usually of a nature to improve depot facilities and to enhance the skill of hand of the trainee apprentices. Supervision of the apprentices became the prime responsibility of the officers with a trade background because of the inherent skills required. Furthermore those essentials were exacerbated by the fact that apprentices were the sole source of labour and whilst they were young and extremely fit they were on average 16 years old and not strong. Also they were very immature and in a lot of cases because of their age quite stupid. Consequently supervision was a very hands on matter, not only to ensure the safety aspects were adhered to but to ensure motivation and completion, a very high level of physical input by the supervisor was a mandatory necessity. Also, that supervisory role was in addition to an Officer's primary function and duties within the depot.
4.LEUT. SDEN (ME) WENDT was a constant and ongoing supervisor in this area and the major projects that he personally supervised during my tenure as Base Engineer are listed below with a brief description. There were other major projects (eg. accompanying apprentices on expedition and field training, construction of an archery complex, construction of stables for riding club) associated with this officer but they happened before my time or were outside my area of responsibility and it would not be appropriate for me to comment on those, as I do not have any first-hand knowledge of that. Those that I do have knowledge of are:
…"
Mr Bailey then went on to list the construction of a parade ground grandstand, a sportsman's complex, a wardroom swimming pool, and a steam club. Mr Bailey stated that these activities would have involved the Applicant in continuous and repetitive flexion of his body, working in stooped and awkward positions, together with frequent lifting of heavy objects well in excess of 35kg on most days throughout the whole time of his posting to HMAS Nirimba.
David Shirvill
Mr Shirvill's evidence was that he served with the Applicant at Fleet Headquarters, Garden Island, during the period from April 1983 to January 1984. Mr Shirvill said that the damage control and firefighting exercises involved in the Applicant's work there included the moving of firefighting and salvage equipment through ship passageways, up and down rear ladders, and into and out of compartments with restricted access. Mr Shirvill also stated that access through the ship was obtained by opening and closing manually operated hatches, which were gas and watertight. Opening and closing these hatches involved the bending and twisting of the body, due to the extremely limited spaces in which the hatches were situated. Mr Shirvill said that this body action was aggravated by the rolling and pitching motion of the ship when at sea and that this added to the weight and strain experienced. He said that the Applicant also undertook disaster relief exercises at both Jervis Bay and Garden Island. These exercises required moving, setting up, dismantling and demonstrating emergency relief equipment, in harsh conditions. He said that this equipment was often bulky, heavy and awkward to move and required the body to be placed in various positions and postures with great stress on the joints and the spine.
ian irving
Mr Irving's evidence was that he served on board HMAS Jervis Bay with the Applicant during the period to January 1985 to 31 June 1986 and observed the work undertaken by the Applicant. According to Mr Irving, the Applicant as the engineer on the ship, was required, as part of his duties, to lift a large number of very heavy steel hatches every day to gain access to many compartments. Mr Irving estimated that those hatches would have weighed in excess of 35kg and were required to be opened from a bent or twisted position. Mr Irving also stated that the Applicant assisted tradesman with the movement of heavy machinery on many occasions, which also involved awkward lifting without mechanical aids. According to Mr Irving, the Applicant also often assisted with the movement of 205 litre drums of oil, or other heavy machinery spares, from low down in the ship holds up to a number of decks and then down into the required machinery space.
dr g hutchinson
On a form headed Medical Report -Trauma to the Cervical Spine, Cervical Spondylosis (T9, p108) , Dr Hutchinson states, in answer to the question of how the trauma to the cervical spine occurred
"occurred whilst at sea in rough conditions - a number of falls. Saw medico on board at time for analgesia."
In answer to the question of the symptoms arising from the trauma, Dr Hutchinson ticked a box which signified "symptoms, within 24 hours, of pain, tenderness and altered mobility or range of movement". In answer to the question of how long these symptoms lasted, Dr Hutchinson stated (T9, p108):
"pain, decreased mobility almost immediately after injury".
Dr Hutchinson also made the following comment (T9, p109):"
"treatment in 1969 occurred whilst at sea in South Vietnam in 1969. Simple analgesia was only treatment".
dr b wakefield
At T5, p45, is a medical certificate by Dr Bruce Wakefield (HMAS Kuttabul) dated 27 November 1997. That certificate confirmed a clinical diagnosis of osteo - degenerative arthritis involving the left hip, cervical and lower lumbar spine. The certificate states:
"It is possible that his arthritis has been made worse from years of working in confined spaces requiring awkward postures - whilst serving in the Navy."
dr kenneth hume
Dr Hume, in his report dated 27 November 2000 (Exhibit A8), reports the Applicant's account to him of falling off a ship's ladder in November 1970 or early 1971. The Applicant reported that he thought the fall occurred during the monsoon season when the ship on which he served was in waters off Vietnam. The Applicant told Dr Hume that the weather was rough and he hurt his back and his neck and was in pain for a few weeks. He reported that he saw an American doctor in Subic Bay and was advised to rest. The Applicant told Dr Hume that he had experienced episodes of numbness in his right arm. He has also suffered pain in his left leg and has been told that this is sciatic pain.
The Applicant told Dr Hume about heavy lifting in difficult conditions that he was required to do in the Navy. He told Dr Hume that he had many falls at sea, having been in the Navy for 39 years and having spent approximately one-third of his Naval service at sea. Dr Hume stated (Exhibit A8):
"I have no doubt that Mr Wendt has experienced numerous falls in the course of his normal duties.
I have no doubt that he has done a lot of lifting in very awkward conditions and has placed repeated strains on his back, his hands, his injured the right knee and his hips.
I have no doubt that his service with the Royal Australian Navy has been responsible for his widespread arthritic problems.
It is possible that he has some underlying condition which has made him more liable to the development of widespread arthritis. However this cannot be proved.
The medical assessor in conditions such as this is in an impossible position. The Statement of Principles does not accept opinions of specialists. The specialist is expected to make definite statements about things he cannot possibly prove. Most specialists in these circumstances see the claimants on one occasion. Many of the incidents to which the claimant refers took place many years before and for the most part are at supported by little documentary evidence. After all many incidents have occurred when serving members were in a war zone and documentation was limited or non-existent.
I cannot prove and Mr Wendt cannot prove that he did do great deal of lifting in difficult circumstances over a period of years. In fact I do not understand how any doctor having seen a claimant once can make a dogmatic statement about the repeated trauma that might have occurred as a result of lifting strains.
I cannot find any way of proving that Mr Wendt's problems can be related to some factors noted in the Statement of Principles.
I have no doubt that he did suffer repeated lifting strains and falls in the course of his duties. I cannot prove it."
In his report dated 10 May 2001 (Exhibit A9), Dr Hume stated again that he has no doubt that the Applicant suffered repeated incidents of minor trauma to the neck during his long service in the Royal Australian Navy.
dr martha baz
In her report of 5 March 2001, (Exhibit A10) Dr Martha Baz stated:
"In my opinion Mr Wendt's work fitness has been significantly compromised by the combination of musculoskeletal disabilities. While the right knee osteoarthritis on its own, and other accepted disabilities, will not preclude him from full-time office administrative and clerical tasks, I consider that the lumbar spondylosis and osteoarthritis of both hips, particularly the left hip, when combined with his currently accepted disabilities effectively precludes him from full-time work.
I consider Mr Wendt is restricted to work of less than 20 hours weekly as a consequence of the restricted postures, chronic pain and limited ability to travel, all related to the combination of his accepted and claimed disabilities.
I do not consider this combination of disabilities restricts him to work of less than eight hours weekly.
In my opinion, on the basis of the information available and the history Mr Wendt has given on this occasion, he would be able to undertake work in the Naval Reserve if it were not for this combination of disabilities".
Dr Baz concluded that the combination of the Applicant's accepted and claimed disabilities would attract an impairment rating of 53, which, with a lifestyle rating of 4, would support payment at 90 percent of the general rate of pension.
dr j m ellis
In his report dated 28 February 2000 (T17) Dr Ellis recorded a history of the Applicant having fallen from a ladder in 1970, injuring his back and neck, and a history of his work as a mechanical engineer and fitter and turner from 1962 to 1976, during which time he was required to move and lift heavy equipment when conducting maintenance activities. Dr Ellis stated ( T17, p152):
"I believe his history of an active man as a junior engineer and finally as a commissioned officer in 39 years of service with 16 years of sea going service exposed him to trauma such as the fall he suffered in Vietnam waters while on HMAS Perth and for which he was x-rayed at Subic Bay. The low back pain persisted apparently for at least two weeks on that occasion…
I believe that his cervical spondylosis and intervertebral disc lesions at C5-6 and C6-7 and his lumbar spine damage with well marked facet joint osteoarthritis at L4-5 and L5-S1 and an L3-4 intervertebral disc lesion are probably materially related to his service as an engineer in the Royal Australian Navy.
The osteoarthritis which is clinically and radiologically present in his left hip and clinically clearly present in his right hip are probably at least partly and materially due to his service as an engineer with the Royal Australian Navy which has required heavy lifting and much wear and tear over the years lifting and bending."
dr william lennon
In his report dated 19 January 2001 (Exhibit R2), Dr Lennon recited a history in similar terms to the one given by the Applicant to other examining doctors and gave the following opinion:
"There is little doubt that the patient suffers from diffuse degenerative cervical spondylosis, a condition of constitutional origin, age related degenerative in nature and certainly not specifically due to the attributable injuries. The only apparent suggested injury to the neck was that following a fall down a ladder onto his tail bone with associated back injury. He suggested at the time that he had a "whiplash type injury" apparently all recovered and settled within a period of two weeks. He did not significantly complain of neck discomfort until possibly in 1995 and to Dr Malcolm Pell in 1997, 26 years later, and certainly doubtful that it could be related to the specific ladder fall or the stated above falls which were apparently not documented while serving at sea …
He also apparently had no definite specific traumatic injury to either hip. He attributes the occurrence of same to various non specific non-documented activity while at sea involving various falls and in rough seas. He said, however, that he noted the hips "played up" while on the HMAS Torrens between March 1992 and June 1992. He said he saw a doctor on board and a doctor in Perth, Dr Robert Hill, (there were no reports in the documents supplied concerning same). He said he did not notice significant symptoms in the hip until 1995 and particularly over the last two years."
dr mark burns
In his report dated 22 January 2001, Dr Burns stated:
"With respect to employment, I do not believe that his accepted disabilities would preclude him from working at least 20 hours per week. His main problem at the current time appears to be the osteo arthritis of his hips, which is a non -accepted disability.
If his non accepted disabilities were included, then I believe he would still not be incapacitated totally for work. He has spent 12 of the last 14 years in mostly office-based work. He has been doing mostly maintenance planning which is an administration and organisational task. Certainly some walking around was required but he was using his brain more than his brawn. Additionally, I believe that Mr Wendt himself believes he has some retained work capacity as he has applied for Naval Reserve work."
Dr Burns concluded that a combination of the Applicant's accepted and claimed disabilities would yield an impairment rating of 55, which, together with a lifestyle rating of 4, would support payment of pension at 90 per cent of the general rate.
submissions
Mr Jones, for the Applicant, submitted that the Applicant's cervical spine condition arises out of his operational service, and, in particular, the incident in which the Applicant fell from a ladder. He contended that this hypothesis complies with the template provided in the relevant SoP, that is, No 31 of 1999, in that its definition of "trauma to the cervical spine" is satisfied, given that there was a discrete injury which produced acute symptoms and signs which persisted for two to three weeks. In addition, there was no medical intervention of the kind described in the SoP.
In relation to the Applicant's osteoarthrosis of the hips, Mr Jones contended that this condition arose out of the Applicant's eligible service, in that, as a feature of that service, he was required to undertake continuous heavy physical activity for at least ten years before the onset of the condition. He submitted that this is in line with the relevant SoP, that is No 42 of 1998. Mr Jones drew particular attention to the Applicant's continued physical activity after he became a Commissioned Officer and to the requirement, throughout his service, that he maintain a level of physical fitness and the daily exercise required to maintain that level of fitness.
In relation to assessment, Mr Jones submitted that the Applicant, if successful in his claim that his conditions of cervical spondylosis and osteoarthrosis of the hips are war-caused, would be entitled to payment at the rate of 90 per cent of the general rate of pension, effective from 28 October 1998. In addition, Mr Jones submitted that the Applicant's evidence supports the conclusion that he has resting joint pain, in relation to his hips, and that this attracts 15 points under table 3.4.1 of the Guide to the Assessment of Rates of Veterans' Pensions ("the GARP") in place of the current five points assessed for the Applicant's resting joint pain in relation to his knee. On this basis, Mr Jones submitted that the Applicant would be entitled to 100 per cent of the general rate of pension, but only from the date of the hearing, that is, 22 August 2001.
Mr Modder, for the Respondent, submitted that, while it is conceded by the Respondent that the Applicant suffered a soft tissue injury to his neck, he did not have any of the forms of treatment mentioned in the SoP and so the hypothesis raised by the Applicant does not conform with the template in SoP 31. Mr Modder referred the Tribunal to the decision of the Full Federal Court in Harris v Repatriation Commission (2000) 62 ALD 174.
In relation to the Applicant's claimed condition of osteoarthrosis, Mr Modder submitted that while he meets the criteria in the relevant SoP, that is, No 42 of 1998, prior to his Commission in 1977, he failed to do so after that time as he was, on his own evidence, only required to perform heavy physical work "when necessary" or, at the most, for 20 per cent of the time. He referred to the statements provided by individuals in support of the Applicant's case and noted that none of those statements actually say that the Applicant engaged in heavy physical activity on most days.
Mr Modder made no submission in relation to assessment.
In reply, Mr Jones sought to distinguish the facts of this case from those in Harris [supra] and pointed out that the wording of the definition of "trauma to the cervical spine" in SoP o 31 of 1999 does not require recourse to the types of treatment listed in that definition if, in fact, the symptoms persisted for seven days.
Consideration
cervical spondylosis
Turning first to the issue of the Applicant's cervical spondylosis, It is convenient to set out the provisions of sections 120 and 120A of the Act:
"120 Standard of proof
(1)       Where a claim under Part II for a pension in respect of the incapacity from injury or disease of a veteran, or of the death of a veteran, relates to the operational service rendered by the veteran, the Commission shall determine that the injury was a war-caused injury, that the disease was a war-caused disease or that the death of the veteran was war-caused, as the case may be, unless it is satisfied, beyond reasonable doubt, that there is no sufficient ground for making that determination.
Note:    This subsection is affected by section 120A.
…
(3)       In applying subsection (1) or (2) in respect of the incapacity of a person from injury or disease, or in respect of the death of a person, related to service rendered by the person, the Commission shall be satisfied, beyond reasonable doubt, that there is no sufficient ground for determining:
          (a)       that the injury was a war-caused injury or a defence-caused injury;
          (b)       that the disease was a war-caused disease or a defence-caused disease; or
          (c)       that the death was war-caused or defence-caused;
as the case may be, 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 injury, disease or death with the circumstances of the particular service rendered by the person.
Note:    This subsection is affected by section 120A.
(4))     Except in making a determination to which subsection (1) or (2) applies, the Commission shall, in making any determination or decision in respect of a matter arising under this Act or the regulations, including the assessment or re-assessment of the rate of a pension granted under Part II or Part IV, decide the matter to its reasonable satisfaction.
Note:    This subsection is affected by section 120B.
(5)       Nothing in the provisions of this section, or in any other provision of this Act, shall entitle the Commission to presume that:
          (a)       an injury suffered by a person is a war-caused injury or a defence-caused injury;
          (b)       a disease contracted by a person is a war-caused disease or a defence-caused disease;
          (c)       the death of a person is war-caused or defence-caused; or
          (d)       a claimant or Applicant is entitled to be granted a pension, allowance or other benefit under this Act.
(6)       Nothing in the provisions of this section, or in any other provision of this Act, shall be taken to impose on:
          (a)       a claimant or Applicant for a pension or increased pension, or for an allowance or other benefit, under this Act; or
          (b)       the Commonwealth, the Department or any other person in relation to such a claim or application;
any onus of proving any matter that is, or might be, relevant to the determination of the claim or application…
120A Reasonableness of hypothesis to be assessed by reference to Statement of Principles
(1)       This section applies to any of the following claims made on or after 1 June 1994:
          (a)       a claim under Part II that relates to the operational service rendered by a veteran;
…
(2)       If the Repatriation Medical Authority has given notice under section 196G that it intends to carry out an investigation in respect of a particular kind of injury, disease or death, the Commission is not to determine a claim in respect of the incapacity of a person from an injury or disease of that kind, or in respect of a death of that kind, unless or until the Authority:
          (a)       has determined a Statement of Principles under subsection 196B(2) in respect of that kind of injury, disease or death; or
          (b)       has declared that it does not propose to make such a Statement of Principles.
(3)       For the purposes of subsection 120(3), a hypothesis connecting an injury suffered by a person, a disease contracted by a person or the death of 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); or
          (b)       a determination of the Commission under subsection 180A(2);
that upholds the hypothesis.
Note:    See subsection (4) about the application of this subsection.
(4)       Subsection (3) does not apply in relation to a claim in respect of the incapacity from injury or disease, or the death, of a person if the Authority has neither determined a Statement of Principles under subsection 196B(2), nor declared that it does not propose to make such a Statement of Principles, in respect of:
          (a)       the kind of injury suffered by the person; or
          (b)       the kind of disease contracted by the person; or
          (c)       the kind of death met by the person;
as the case may be".

In Repatriation Commission v Deledio (1998) 83 FCR 82, the Full Federal Court summarised the steps that are to be taken by the Tribunal in applying the above provisions, in relation to a condition contended to arise out of operational service, and deciding whether a disease or injury is war-caused:
"1.The Tribunal must consider all the material which is before it and determine whether that material points to a hypothesis connecting the injury, disease or death with the circumstances of the particular service rendered by the person. No question of fact finding arises at this stage. If no such hypothesis arises, the application must fail.
2.If the material does raise such a hypothesis, the Tribunal must then ascertain whether there is in force an SoP determined by the Authority under s 196B(2) or (11). If no such SoP is in force, the hypothesis will be taken not to be reasonable and, in consequence, the application must fail.
3.If an SoP is in force, the Tribunal must then form the opinion whether the hypothesis raised is a reasonable one. It will do so if the hypothesis fits, that is to say, is consistent with the "template" to be found in the SoP. The hypothesis raised before it must thus contain one or more of the factors which the Authority has determined to be the minimum which must exist, and be related to the person's service (as required by ss 196B(2)(d) and (e)). If the hypothesis does contain these factors, it could neither be said to be contrary to proved or known scientific facts, nor otherwise fanciful. If the hypothesis fails to fit within the template, it will be deemed not to be "reasonable" and the claim will fail.
4.The Tribunal must then proceed to consider under s 120(1) whether it is satisfied beyond reasonable doubt that the death was not war-caused, or in the case of a claim for incapacity, that the incapacity did not arise from a war-caused injury. If not so satisfied, the claim must succeed. If the Tribunal is so satisfied, the claim must fail. It is only at this stage of the process that the Tribunal will be required to find facts from the material before it. In so doing, no question of onus of proof or the application of any presumption will be involved".

The Tribunal undertook each of these steps in turn.

does the material before the tribunal point to a hypothesis connecting the Applicant's cervical spondylosis with the circumstances of his operational service?

The hypothesis put forward to the Tribunal by the Applicant in submissions, and in evidence is that he fell from a ladder in October or November 1977 on board ship in Vietnam waters, injuring his cervical spine and suffering severe pain which lasted for two to three weeks, requiring treatment with painkillers, rest and physiotherapy.
which statement of principles is relevant to the hypothesis?
It is agreed between the Applicant and the Respondent that the relevant SoP is No 31 of 1999 concerning cervical spondylosis. No other SoP appears to be relevant to the hypothesis raised by the Applicant.
Is there consistency between the hypothesis and the statement of principles?
The relevant factor in SoP No 31 of 1999 is agreed between the parties to be factor 5(h) which provides:
"suffering a trauma to the cervical spine before the clinical onset of cervical spondylosis..".
The term "trauma to the cervical spine" is defined in factor 8 of No 31 of SoP No 31 of 1999 as meaning:
"… a discrete injury to the cervical spine that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain and tenderness, and either altered mobility or range of movement of the cervical spine. These acute symptoms and signs must last for a period of at least seven days following their onset save for where medical intervention for the trauma to the cervical spine has
occurred, where that medical intervention involves either:
a)   immobilisation of the cervical spine by splinting, or similar external agent; or
b)   injection of corticosteroids or local anaesthetics into the cervical spine; or
c)   surgery to the cervical spine."
It is necessary then, for there to be a "match" between the Applicant's hypothesis and the template provided for by the SoP, that the material before the Tribunal contains one or more of the factors which the SoP requires must exist and be related to the person's service.
The material put to the Tribunal by the Applicant includes his evidence to the effect that he injured his cervical spine, along with his lumbar spine, when he fell from an almost vertical 16-foot ladder. The Applicant's evidence was that he fell from the top third of the ladder and either struck his cervical spine on the ladder as he fell or that in falling he wrenched his body in such a way as to injure his cervical spine. In the Tribunal's view, these contentions conform with "a discrete injury to the cervical spine".
The Applicant's evidence was also that he was in severe pain immediately after the fall, that the pain got worse in the next few hours, that medical staff told him to go and rest and then relieved him from watch duties for three weeks. He was given painkillers and said the whole area was very painful for the next two weeks. When the ship reached Subic Bay he was sent ashore to a US hospital base, where he was given x-rays of his upper and lower spine. The Applicant was prescribed painkillers and treated with physiotherapy for six or seven days. This evidence is also substantially in accord with the accounts given by him to Drs Hutchinson, Wakefield, Hume, Baz, and Lennon, and is endorsed as "possible" by Dr Wakefield and as "without doubt" by Dr Hume. Dr Ellis concluded that the Applicant's cervical spondylosis is "probably materially related to his service as an engineer in the Royal Australian Navy".
Mr Modder, in his submissions, referred the Tribunal to the decision in Harris [supra] in which the Full Federal Court held that, in relation to a similarly worded SoP, the words "acute symptoms and signs" refer not only to "pain and tenderness" but also to "altered mobility or range of movement". In his evidence, the Applicant made no reference to the mobility or range of movement of his cervical spine after his fall from the ladder. However, the Tribunal notes, again, that his evidence was that he was in severe pain immediately after the fall; that the pain got worse in the next few hours; that medical staff told him to rest and relieved him from watch duties for three weeks; and the area was "very painful" for the next two weeks. The Tribunal considers that pain of such severity and duration, requiring the measures which were taken by the Applicant would, as a matter of practicality and logic, involve a concomitant and similar degree of alteration of mobility or range of movement. In reaching this view, the Tribunal had regard to the decision of the High Court in Byrnes v Repatriation Commission (1993) 177 CLR 564 and of the Federal Court in Repatriation Commission v Stares (1996) 66 FCR 594.
Contrary to Mr Modder's submission, in accordance with the terms of the SoP, it is not necessary to consider the treatment received by the Applicant for his injury, unless the symptoms and signs described above did not last for at least seven days.
The Tribunal therefore concludes that the material before it conforms with the definition of "trauma to the cervical spine" and with factor 5(h) of SoP No 31 of 1999, and it follows that the third step in Deledio is satisfied.
is the tribunal satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the Applicant's cervical spondylosis is war-caused?
The evidence in support of the Applicant's contentions is outlined above. The evidence of Dr Lennon, however, while apparently accepting the history given by the Applicant, is that it is doubtful that the Applicant's neck discomfort could be related to the ladder fall in 1970. He stated that (Exhibit R2):
"There is little doubt that the patient suffers from diffuse degenerative cervical spondylosis, a condition of constitutional origin, age related degenerative in nature and certainly not specifically due to the attributable injuries."
The basis on which Dr Lennon reaches this view is not clear. He does mention that the Applicant "did not significantly complain of neck discomfort until possibly 1995, and to Dr Malcolm Pell in 1997, 26 years later" and that "the stated above falls were apparently not documented while serving at sea". The Tribunal considers that neither the opinion of Dr Lennon nor the matters on which it appears possibly to be based, serve to establish beyond reasonable doubt that the Applicant's cervical spondylosis did not arise out of his fall from the ladder in 1970. In reaching this view, the Tribunal is mindful of the evidence of the Applicant, his consistent accounts to the various medical practitioners, whose reports were admitted into evidence, and the opinions expressed by Drs Wakefield, Hume and Ellis.
Implicit in Mr Modder's concession of "soft tissue injury" was the suggestion that the Applicant's injury was less than severe. However, there is no evidence to support such an injury as opposed to the injury complained of by the Applicant.
On this basis and in the absence of any matter establishing, beyond reasonable doubt, that there is no sufficient ground for determining that the Applicant's cervical spondylosis is a war caused injury, the Tribunal concludes that the Applicant's condition of cervical spondylosis is war caused.
osteoarthrosis of the hips
Turning now to the claimed condition of osteoarthrosis of the hips, the Applicant has contended that this condition arose out of his eligible service, in that, as a condition of that service, he was required to undertake continuous heavy physical activity for at least ten years before the onset of the condition.
The standard of proof required in cases in which the veteran has eligible, as opposed to operational, service is prescribed by section 120(4), (as affected by section 120B) of the Act. The Tribunal must determine, to its reasonable satisfaction, the question of whether the veteran's injury or disease was war-caused, applying the civil standard of proof of the balance of probabilities: Repatriation Commission v Smith (1987) 15 FCR 327.
Where there is a SoP made under section 196B(3) of the Act, the Tribunal must first determine whether, to its reasonable satisfaction, the material before it raises a connection between the veteran's injury or disease and his service. Second, the Tribunal is required to decide whether the applicable SoP upholds the contention that the veteran's injury or disease is, on the balance of probabilities, connected with the veteran's service: section 120B(3)(b).
The relevant SoP in respect of the Applicant's osteoarthrosis is agreed between the Applicant and the Respondent to be No 42 of 1998. No other SoP appears to be relevant to the Applicant's contention. SoP No 42 of 1998 provides, relevantly:
"Basis for determining the factors
3. On the sound medical-scientific evidence available, the Repatriation
Medical Authority is of the view that it is more probable than not that
osteoarthrosis and death from osteoarthrosis can be related to relevant
service rendered by veterans or members of the Forces.
Factors that must be related to service
4. Subject to clause 6, at least one of the factors set out in clause 5 must be
related to any relevant service rendered by the person.
Factors
5. The factors that must exist before it can be said that, on the balance of
probabilities, osteoarthrosis or death from osteoarthrosis is connected
with the circumstances of a person's relevant service are:
…
(j) for osteoarthrosis of a weight bearing joint of the lower limb,
being occupationally required to undertake continuous heavy
physical activity for at least 10 years, before the clinical onset of
osteoarthrosis in that joint, and where such continuous heavy
physical activity has ceased, the clinical onset of osteoarthrosis has
occurred within the 25 years immediately following such activity;
or …"
The words "being occupationally required to undertake continuous heavy physical activity" are defined in clause 8 of SoP No 42 of 1998 as meaning:
"working in a job requiring continuous and repetitive flexion, extension or twisting of the affected joint, frequent carrying of loads of at least 35kg, lifting of maximal loads in a twisted or bent position, or exposure to, or engagement in, any combination of these activities on most days".
There is no dispute that the date of clinical onset of the Applicant's condition of osteoarthrosis was approximately 1995. It is also not in dispute that the Applicant had eligible service from 7 December 1972. The Tribunal also notes that Mr Modder, for the Respondent, agreed that the Applicant meets the above criteria of "continuous heavy physical activity … before the clinical onset of osteoarthrosis" from 1972 to 1977 when he was commissioned. However, the Respondent contends that following his commission, the Applicant was no longer engaged in continuous heavy physical activity. It follows that the Tribunal's inquiry in respect of the Applicant's osteoarthrosis, is centered on the nature of the physical activity he was occupationally required to undertake in the five years following his commission.
The Applicant's evidence was that he was required, as a commissioned officer, to undertake continuous heavy physical activity in the following form:

practical modelling, firefighting and damage control training, working on gas turbines and associated diagnostic skills while undertaking advanced engineering training in the United Kingdom in 1977;
reconstruction of heavy machinery, firefighting and damage control activity, maintaining auxiliary diesels, general maintenance duties and "rounds" twice a day, which involved opening and closing heavy hatches. This took place in 1978 and 1979 when he was posted to HMAS Stalwart as Junior Commissioned Engineer;
manual work most days from August 1979 to February 1981 on HMAS Perth, which was undergoing major refitting; and
manual work in relation to maintenance activities and in relation to construction projects and field exercises at HMAS Nirimba, where he was a Training and Development Officer. At HMAS Kuttabul, fleet Headquarters, he continued to be involved in damage control and firefighting exercises

The Applicant said that he maintained a physical fitness regime, as he was required to do, of approximately 45 minutes exercise per day, throughout his eligible service. He estimated the amount of physical work undertaken by him, as an officer, as being approximately 20 percent of his work on an average daily basis. The Tribunal took this figure to not include his physical fitness regime.
The evidence of Messrs King, Maxwell, Butler, Russell, Bailey, Shirvill and Irving covers the period from 1970 to 1986. Each of the statements attests to a high degree of physical activity (including variously flexion, twisting, extension, carrying and lifting from bent positions) on the part of either the Applicant or of a person in his position or posting. Given the concession made by the Respondent in submissions, that the Applicant appears to have been required to undertake continuous heavy physical activity in the period 1972 to 1977, the statements of Messrs Maxwell, Butler, Russell and Bailey, covering the period from January 1977 to the end of 1982, are most pertinent to the issue to be considered.
Mr Maxwell described the frequency of this activity as "continuous". Mr Butler described it as "regular". Mr Russell described various strenuous physical activity undertaken as "frequent", "routine" or "continuous". Mr Bailey described the activity as having taken place on "most days" throughout the period he attested to.
The Tribunal notes that no evidence has been presented by the Respondent to rebut, or attempt to rebut, the evidence of the Applicant or of his fellows. However, the Applicant stated in cross examination, that during the period following his commission, he would have been engaged in heavy physical activity on an average daily basis for about 20 per cent of his time. In addition, he gave evidence of daily strenuous exercise of at least 45 minutes, as part of a required physical fitness regime.
The Tribunal accepts the Applicant's evidence, supported by the evidence of Messrs Maxwell, Butler, Russell and Bailey, of the heavy physical activity, of the kind contemplated by the SoP, undertaken by him on most days throughout the relevant period. While the Tribunal notes that, following the Applicant's Commission, there was a decline in the total amount of his time spent in heavy physical activity, it accepts that, in the relevant period, it remained a requirement of his work. The Tribunal also accepts that, with his physical fitness regime, he was required to spend a substantial proportion of his working life undertaking heavy physical activity. Further, the Tribunal accepts, on the basis of the Applicant's evidence, and that of Messrs Maxwell, Butler, Russell and Bailey, that this activity was undertaken on most days in the relevant period, in that it involved continuous, regular, routine or frequent repetitive flexion, extension or twisting at the hips, carrying of loads of at least 35kg and lifting of such loads in a twisted or bent position.
On this basis, the Tribunal is reasonably satisfied that the Applicant was occupationally required to undertake continuous heavy physical activity for at least ten years during the period of his eligible service. This conforms with factor 5(j) of SoP No 42 of 1998. It follows that the Applicant's osteoarthrosis of both hips is war- caused.
assessment
The Applicant and the Respondent are in agreement that, if the Applicant's cervical spondylosis and his osteoarthrosis are found by the Tribunal to be war caused, then he is entitled to payment of disability pension at the rate of 90 percent of the general rate of pension from 28 October 1998, that is, three months prior to the date of his claim. The evidence of both Drs Baz and Burns supports this conclusion and the percentage rate calculation is in accordance with the method of assessment set out in the GARP.
In addition, however, Mr Jones, for the Applicant submitted that it is available to the Tribunal to find, on the basis of the Applicant's evidence, that he has resting joint pain in his hips. It is also open to the Tribunal, in Mr Jones' submission, to apply this finding to the assessment of the Applicant's rate of pension, with effect from the date of the hearing. Mr Jones referred the Tribunal to table 3.4.1 of the GARP. The range of impairment ratings provided for by that table includes:
FIVE   Pain in any joint, or combination of joints, that is often present at rest but which improves after several hours rest or responds to medication or to therapeutic measures. Pain in the back that limits comfortable sitting to less than 10 minutes at a time.
TEN    Severe pain in any joint, or combination of joints, that is often present at rest but which does not respond adequately to medication or to therapeutic measures.
FIFTEEN      Severe pain in any joint, or combination of joints, that is always present at rest but which does not respond adequately to medication or to therapeutic measures and which regularly interferes with sleep.

The Applicant gave evidence of constant pain in his hips not substantially relieved by Celebrex and Panadeine Forte and often preventing him from sleeping. In the absence of any evidence to the contrary from the Respondent, the Tribunal accepts the Applicant's description of the resting joint pain in his hips. The Tribunal notes that both Dr Baz and Dr Burns, in their reports, assessed the Applicant's resting joint pain at the level of 5 under table 3.4.1. It is not clear whether Dr Baz did so by reference to the pain in the Applicant's knee or his hips, and Dr Burns appears to have done so only in relation to the Applicant's knee pain.

Adopting the method of calculation set out in the GARP, the substitution of 15 points for resting joint pain in the hips for the 5 points suggested (possibly in relation to the knee) by Drs Baz and Burns, yields an impairment rating of 55 (rounded) on the basis of other items assessed by Dr Burns and 65 (rounded) on the basis of other items assessed by Dr Baz. Both doctors assessed the Applicant's lifestyle rating, taking into account claimed disabilities, at 4. Using Table 23.1 of the GARP, to calculate the degree of incapacity resulting from the combinations of impairment ratings reached using the conclusions of Dr Baz and Dr Burns and substituting a higher allocation of points in each case in respect of resting joint pain, and the lifestyle rating of 4 adopted by each doctor, Dr Baz's revised assessment would result in a 100 percent degree of incapacity and Dr Burns' assessment would result in a 90 percent degree of incapacity.

In order to arrive at a decision as to whether the Applicant, with resting joint pain attracting 15 points under table 3.4.1, should be paid pension at 100 percent of the general rate, the Tribunal would have to assess all of the Applicant's other disabilities as well, given the divergence in assessment results between Dr Baz and Dr Burns, in respect of the range of disabilities, including the claimed conditions and the disabilities already accepted. For example, Dr Baz assesses the Applicant's combined impairment rating, exclusive of cervical spondylosis and osteoarthritis of the hips, as 37, and then assesses cervical spondylosis as 5 under Table 3.3.1 and osteoarthritis in the hips as 30, under Table 3.2.2. Dr Burns assesses the Applicant's combined impairment rating, exclusive of cervical spondylosis and osteoarthritis of the hips, as 34, and then assesses cervical spondylosis as 10 under Tables 3.3.1 and 3.6.1 and osteoarthritis in the hips as 20 under Table 3.2.1.

The Applicant did not give evidence on the matters pertinent to the assessment of his full range of disabilities. While the reports and opinions of Drs Baz and Burns both support, albeit by the use of different tables, an assessment of a 90 per cent rate of impairment, the Tribunal considers there is insufficient information available to it, to go beyond those assessments.
determination
The Tribunal sets aside the decision under review and in substitution decides:

a) the Applicant's disabilities of cervical spondylosis and osteoarthrosis of the hips are war caused; and

b) the Applicant qualifies for payment of disability pension at 90 per cent of the general rate of pension, with effect from the first pension payday on or after 28 October 1998.

I certify that the 91 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Bell
Signed:         .....................................................................................
  Associate
Date/s of Hearing  22 August 2001
Date of Decision  27 September 2001
Solicitor for the Applicant         Mr P Jones
Solicitor for the Respondent    Mr S Modder