Olsen and Repatriation Commission [2000] AATA 909 (18 October 2000)

Last Updated: 27 October 2000

DECISION AND REASONS FOR DECISION [2000] AATA 909

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. N1998/1836

VETERANS' APPEALS DIVISION )

Re Geoffrey Lee OLSEN

Applicant

And REPATRIATION COMMISSION

Respondent

DECISION

Tribunal Mrs M T Lewis, Senior Member

Date 18 October 2000

Place Sydney

Decision The Tribunal - 1. Sets aside the decision of a delegate of the Repatriation Commission ("the Respondent") dated 13 October 1997, as varied by the Veterans' Review Board;

2. Amends the diagnosis of the claimed condition to read "plantar fasciitis with calcaneal spur right foot";

3. Substitutes for the decision so set aside and amended, the decision that the condition of plantar fasciitis with calcaneal spur right foot suffered by Geoffrey Lee Olsen ("the Applicant') is a defence caused condition pursuant to s70 of the Veterans' Entitlements Act 1986, with effect on and from 24 December 1996; 4. Remits the matter to the Respondent for assessment of the rate of pension payable to the Applicant in respect of all his accepted disabilities.

..................[Signed]............................

M T Lewis

Senior Member

CATCHWORDS

VETERANS' AFFAIRS - entitlement - eligible defence service - whether plantar fasciitis war-caused - correct diagnosis of claimed condition - Statement of Principles applied - whether suffered "trauma to the plantar aspect of the affected foot" - whether inability to obtain appropriate clinical management for plantar fasciitis

STATUTORY INTERPRETATION - preservation of accrued rights - Statement of Principles at time of primary decision revoked and replaced while review of decision pending - revoked Statement of Principles less favourable than current Statement of Principles - whether Tribunal obligated to apply earlier Statement of Principles - nature of protection afforded by s50 Acts Interpretation Act 1901 - whether accrued right of applicant required protection

Veterans' Entitlements Act 1986 (Cth) - ss 70, 120(4), 120B

Acts Interpretation Act 1901 (Cth) - ss 8, 50

Repatriation Commission v Keeley (2000) 98 FCR 108

Keeley v Repatriation Commission (1999) 56 ALD 455

Esber v Commonwealth (1992) 174 CLR 430

Re Zoarder and Secretary, Department of Social Security (1998) 26 AAR 342

Re Reading and Repatriation Commission [2000] AATA 841

Re Ryan and Repatriation Commission [2000] AATA 849

REASONS FOR DECISION

18 October 2000 Mrs M T Lewis, Senior Member

1. This is an application for review lodged by Geoffrey Lee Olsen ("the Applicant") in respect of a decision of a delegate of the Repatriation Commission ("the Respondent") dated 13 October 1997 which refused his claim for a condition diagnosed by the Respondent as plantar fasciitis right foot. The Applicant's claim was in respect of a disability that he described as "left and right sore heels". The Applicant sought review by the Veterans' Review Board ("the VRB") of the delegate's decision. On 13 October 1998 the VRB amended the diagnosis of the claimed condition to read "plantar fasciitis with calcaneal spur", and otherwise affirmed the decision under review. The Applicant lodged an application for review by this Tribunal on 17 December 1998.

2. The Applicant had eligible defence service in the RAAF from 24 September 1975 until 2 September 1994, and this matter falls for determination pursuant to s70(4) of the Veterans' Entitlements Act 1986 ("the Act"). That is, it is to be determined on the balance of probabilities. As the application was lodged after 1 June 1994 the Tribunal is required, pursuant to s120B of the Act, to determine this matter in accordance with the relevant Statement of Principles. The Statement of Principles to be applied depends on the correct diagnosis of the claimed condition and the application and interpretation of the case law. The Tribunal shall return to this issue later.

3. The Tribunal had before it the documents provided by the Respondent pursuant to s37 of the Administrative Appeals Tribunal Act 1975 (T1). The following documents were tendered as evidence by the Applicant -

* A copy of Department of Defence Outpatient Clinical Record for consultation dated 8 April 1994 obtained by the Applicant following a Freedom of Information application (exhibit A);

* Report of Dr W J Coyle, orthopaedic surgeon, dated 29 May 2000 (exhibit B).

The following documents were tendered on behalf of the Respondent -

* Reports of Professor Philip Sambrook, rheumatologist, dated 3 June 1999 and 9 November 1999 (exhibit 1) and 7 February 2000 (exhibit 4);

* Report of Dr G Stubbs, orthopaedic surgeon, dated 17 November 1999 (exhibit 2);

* Report of Dr J G Bodel, orthopaedic surgeon, dated 24 August 2000 (exhibit 3);

* Clinical notes of Dr N Sood (exhibit 5).

4. The Applicant was unrepresented at the hearing. The Respondent was represented by a departmental advocate. The Applicant gave oral evidence at the hearing. Professor Sambrook and Dr Bodel gave oral evidence, called by the Respondent.

5. At issue initially is the correct diagnosis of the claimed condition, in particular whether the Applicant suffers from plantar faciitis and calcaneal spur and/or Achilles tendonitis, and whether the condition is suffered in one or both feet.

The diagnosis of the claimed condition

6. The Applicant's evidence was that he first experienced pain in both feet during his defence service in May 1979. He had been transferred to Amberley RAAF Base in January 1979, and as part of the physical training each day he ran around the perimeter of the airfield, being some 11 kilometres. The surface was hard - either concrete or bitumen. In May 1979 he developed throbbing pain in his heels, accompanied by swelling, redness and tenderness. He consulted a doctor and was advised to rest for a week. He then resumed his running training, as previously, for the remainder of his time at Amberley, until 1981.

7. The Applicant recalled a further episode of severe heel pain in 1983 in Melbourne when he later attended for physiotherapy, including ice treatment and ultrasound, which helped only minimally. He specifically recalled at that time having a very tight area just above the heel that he understood was the Achilles tendon.

8. He also recalled having sore heels for several years following 1983. It occurred every day, it was apparent when he got out of bed in the mornings, but after having a warm shower the pain would "go away". He said that he had "always had sore heels and I never considered it terribly important". He noted that he has had the pain ever since 1983 but said "it was never great enough to particularly worry me but it was there". After 1983 and for the next two years approximately he visited the "outpatients post" from time to time to put his feet under a heat lamp. He recalled that in 1983 he also bought a set of heel inserts for his service shoes and his runners, which he found helpful. He said that it was never suggested to him by a doctor while he was in the RAAF that he needed special footwear.

9. It was the Applicant's evidence that although his condition improved thereafter he continued to experience foot pain each day, the right being worse than the left. The Applicant noted that for the last three years before his discharge in September 1994 he was involved in sedentary work, but he was also required to parade and run to keep fit. He recalled regularly running an 8km circuit at lunch time, at least three days a week.

10. The Applicant said that when he left the RAAF he commenced work as a teacher, and found he was "on his feet all day" which caused a worsening of his heel condition. He did not seek further medical consultation or treatment until 1994, before his discharge from the RAAF, by which time he said his condition had worsened. He noted that subsequent to that consultation an X-ray showed a calcaneal spur on his right foot. It was at this stage that plantar fasciitis was first diagnosed.

11. The Tribunal notes from the service medical records (T1, p81) that the Applicant consulted a doctor on 21 May 1979 who recorded -

Running on hard ground à bruising of both feet & ankles

He was prescribed analgesic and heat cream at that consultation.

12. The next relevant entry was dated 12 April 1983 (T1, p91) in which it was stated -

R. Achilles pain last 6-8 wks

* due to hard ground

* worse last 2/52

* Played Sat - 2. Came off after 1^st half.

P.H. Watson-Jones repair R lat. Ankle l'gts. 1970.

O/E R TA - tender ++ 3-4 cm above heel. Tight calf R side ? related to surgery on ankle. (No Achilles pain on stretching).

No crepitus

* Feet 3

Ä R Achilles tendonitis

? Rest 2 - 6 wks

Brufen

Ice regularly

Stretch

Physio - 3

Modify boots

13. The Applicant has attended Dr Sood, general medical practitioner, since 2 December 1994. Dr Sood's clinical notes (exhibit 5) show only two consultations in respect of painful heels, which state -

30.1.97 Pain both heels every morning feel stiff x 1 yr.

2.4.97 painful heels - thinks related to work at Airforce. Wants to apply for Disability pension to Veterans. Adv X-Ray to exclude spur. ?? plantar fasciitis.

An X-ray of both heels taken on 13 June 1997 by Canberra Imaging was reported as follows -

A right plantar calcaneal spur is present otherwise no other focal bony lesion or abnormality is detected.

14. The hearing was adjourned for some months to clarify the diagnosis of the Applicant's condition as it was not clear at that stage whether he suffered from Achilles tendonitis or plantar fasciitis. Evidence on this was then provided by Professor Sambrook and Dr Bodel.

15. On the basis of the Applicant's evidence that after the episode of "bruising of both feet and ankles" in May 1979 he resumed normal activities, and on the medical evidence, the Tribunal finds that the diagnosis of the condition suffered at that time (1979) is inconclusive and in any event the condition resolved.

16. Both Professor Sambrook and Dr Bodel noted that Achilles tendonitis is a condition quite separate from plantar fasciitis and can be distinguished from it on the clinical signs of the location of tenderness. Additionally, Dr Bodel considered that at the age of 32 years, which was the Applicant's age in 1983, he was unlikely to be suffering from plantar fasciitis, which is a condition more likely to be associated with degenerative changes in the feet, with an onset normally between the ages of 40 and 70 years.

17. Dr Coyle provided a report based on the history he had taken from the Applicant that he had suffered from severe pain and tenderness under his right heel for about twenty years and slightly less severely and for a somewhat shorter period under his left heel. The Tribunal notes that this history is somewhat different in detail from that given to the Tribunal and the existing contemporaneous documents. Dr Coyle noted that the Applicant had the symptoms every day, which were at their worst in the morning on rising, and after strenuous activity such as running and jumping. Dr Coyle found marked localised tenderness to deep palpation of the posterior tubercles of both calcanei (heel bones). He noted X-rays of 11 November 1994 and 13 June 1997 showing bony spurs arising from the posterior tubercles of the calcanei consistent with a clinical diagnosis of plantar fasciitis.

18. Both Dr Bodel and Professor Sambrook were of the view that the condition suffered by the Applicant in 1983 was Achilles tendonitis. Dr Coyle appears not to have been asked to address that. The diagnosis of Achilles is consistent with the diagnosis recorded in the service medical record dated 12 April 1983. An entry in those documents on 12 March 1981 noted pain in the left foot, with tenderness over the Achilles tendon insertion. On 12 April 1983 Dr Peter Fuller noted a history of right tendon Achilles pain for six to eight weeks, with tenderness above the heel in that region. It was at that time that the Applicant was referred for physiotherapy treatment.

19. That evidence was available ultimately to Professor Sambrook and Dr Bodel who both agreed that the Applicant's condition of Achilles tendonitis resolved, that he no longer suffers from it and that his current condition is plantar fasciitis. The Tribunal does not find the report from Dr Coyle very helpful on the issue of differential diagnosis. Accordingly, doing the best it can with the evidence available, the Tribunal is reasonably satisfied that the Applicant suffers from plantar fasciitis with calcaneal spur.

20. The next question to consider is whether the Applicant suffers from that condition in both feet. There is no X-ray evidence of left calcaneal spur, although the Tribunal notes the evidence of Dr Bodel that one does not need to have a calcaneal spur in order to have plantar fasciitis. Apart from the evidence of Dr Coyle, there is no clinical evidence of tenderness of the left heel at the time of any of the specialist medical examinations made by Dr Bodel or Professor Sambrook, although Dr Sood diagnosed bilateral plantar fasciitis. It is not clear however, whether she found specific evidence of tenderness under the left heel. The Applicant's evidence is that the right foot is more painful than the left. Dr Bodel considers that the Applicant suffers from a mild form of the condition in his right foot.

21. It is only Dr Coyle who has provided clinical evidence of "marked localised tenderness to deep palpation of the posterior tubercles of both calcanei..." (Tribunal's emphasis). It is not clear to the Tribunal why Dr Coyle needed to examine by "deep palpation" and the question remains whether, if sufficient pressure is applied to the heel, tenderness will be produced regardless of underlying pathology. As Dr Coyle's evidence is against the weight of the medical evidence both in respect of the degree of tenderness and the existence of tenderness on the left side, the Tribunal prefers the medical evidence of Professor Sambrook and Dr Bodel and is satisfied on the balance of probabilities that the Applicant suffers from right sided plantar fasciitis with calcaneal spur, but no left sided condition can be established to the requisite standard of proof.

22. Turning to the question of the clinical onset of the condition, the Applicant's evidence was that when he was medically examined on 8 April 1994 prior to his discharge from the RAAF he complained of having sore heels, and that it was noted that he had "very low heel support in running shoes" (exhibit A). He said in evidence that he had sore heels each morning on rising, which subsided after a hot shower. He also said that he was at all times required to wear the standard issue of shoes. He noted that he was required to attend the Defence Service medical officer for any medical treatment required during his service. He noted that no treatment was provided, apart from that already noted in 1979 and 1983, when he complained about having a sore heel. As he understood he merely suffered from bruising of the heel at those times, and that while his symptoms continued he could manage them, he did not specifically seek treatment. Nor was plantar fasciitis diagnosed until after his discharge from the RAAF.

23. Dr Bodel noted the Applicant's mention of pain in his right heel at the time of the examination in April 1994, and said that if an X-ray had been taken at that time it would probably have shown the heel spur on the right side, but such a finding on its own would not have made the diagnosis of plantar fasciitis. The clinical notes do not indicate whether there was localised tenderness or swelling at that time.

24. Dr Bodel noted a history that the Applicant was diagnosed as having plantar fasciitis and calcaneal spur which was confirmed following X-rays taken on 11 November 1994 showing a small heel spur on the right. Dr Bodel also noted that further X-rays on 13 June 1997 showed a larger heel spur on the right. He said that the best he could do with the evidence available was to estimate that the clinical onset of the Applicant's condition was in 1994, just prior to his leaving the RAAF. The Tribunal considers that this is the best evidence available and decides on the balance of probabilities that the clinical onset of the Applicant's condition of plantar fasciitis with calcaneal spur was no later than early 1994.

25. In making that finding, the Tribunal has considered Dr Bodel's evidence that the condition usually occurs in servicemen as a result of repeated minor trauma after prolonged periods of marching in hard footwear and that it does not usually arise from any "specific definite event". Furthermore, the Applicant's evidence, which the Tribunal accepts on this point, was that for the few years before his discharge he was running regularly at lunch time at least three days a week over a distance of 8 km each day. Dr Bodel considered that such an activity could have caused plantar fasciitis. The Tribunal notes that Dr Coyle (exhibit B) opined that this condition is very often an overuse phenomenon, especially in the absence of an anatomical abnormality. Because the Applicant is not obese Dr Coyle considered that the Applicant's active duties while in the RAAF, especially walking and marching on hard surfaces, was a major causal factor in the development of the condition. That opinion is consistent with the opinion of Dr Bodel, which the Tribunal accepts.

The Statement of Principles to be applied

26. It was submitted for the Respondent at the commencement of the hearing that the Statement of Principles in respect of plantar fasciitis was Instrument No. 38 of 1996, and that that was the only Statement of Principles for that condition that had been made by the Repatriation Medical Authority. However after the hearing was adjourned for some months at the instigation of the Tribunal to clarify the diagnosis of the claimed condition, Instrument No. 38 of 1996 was revoked and Instrument No. 4 of 2000 was determined. It was submitted for the Respondent at the resumed hearing, relying on the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108, that as the primary determination was made using Instrument No. 38 of 1996, the Applicant must rely on his accrued rights to have the matter determined using that Instrument.

27. Moreover, the Respondent conceded after all the evidence was heard, that on the evidence the Applicant would succeed if Instrument No. 4 of 2000 was used to determine his claim. Although the Applicant was of the view that his matter should succeed under either Statement of Principles, understandably he did not wish to rely on the earlier instrument if it did not provide him with the opportunity to succeed.

28. Instrument No. 38 of 1996 provides, insofar as is relevant in this matter -

Factors that must be related to service

4. Subject to clause 6, the factors set out in at least one of the paragraphs 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, plantar fasciitis or death from plantar fasciitis is connected with the circumstances of a person's relevant service are:

(a) ...

(b) suffering trauma to the plantar aspect of the affected foot within the year immediately before the clinical onset of plantar fasciitis; or

(c) ....

(d) suffering trauma to the plantar aspect of the affected foot within the year immediately before the clinical worsening of plantar fasciitis; or

(e) inability to obtain appropriate clinical management for plantar fasciitis.

6. .....

7. For the purposes of this Statement of Principles:

....

"trauma to the plantar aspect of the foot" means an injury to the sole of the foot caused by an extraneous physical or mechanical force that causes the development, within 24 hours of the injury being sustained, of acute symptoms and signs of pain, swelling, tenderness, and altered mobility in that foot where such acute symptoms and signs last for a period of at least one week immediately after the injury occurs, unless medical intervention has occurred. Where medical intervention for the injury has occurred (eg. splinting, anti-inflammatory therapy, surgery), and there is evidence relating to the extent of intervention and treatment, such evidence may be considered.

29. In Instrument No. 4 of 2000, factors 5(b), (g) and (m) repeat the abovementioned factors in the earlier Instrument. In addition factor 5(c) was inserted, which is relevant in this case, viz. -

(c) running on average at least 20 km/week in the six months immediately before the clinical onset of plantar fasciitis;

It should also be noted that, significantly, the definition of "trauma to the plantar aspect of the foot" is not included in the new Instrument.

30. Before dealing with the legal issue of which Statement of Principles to apply, the Tribunal will consider the evidence using the 1996 Statement of Principles as a "template".

31. On the evidence available to Dr Bodel he considered that clause 7 (the definition of "trauma to the plantar aspect of the foot") of the 1996 Statement of Principles was not satisfied. Similarly, Professor Sambrook did not consider that the Applicant met the abovementioned definition.

32. Dr Bodel considered that, from the documentation, it appeared that the Applicant was unable to obtain appropriate clinical management for plantar fasciitis at the time of its clinical onset or afterwards and while he was still in the RAAF, as the diagnosis was not made during the time of his service. He also said that a clinical assessment of the Applicant's heel at the time would have enabled the diagnosis to be made.

33. On the issue of appropriate clinical management, the Tribunal finds that the Applicant did not consult a medical officer in the defence service about his heel pain since 1983 when he was diagnosed as having Achilles tendonitis and was appropriately treated for that condition. Moreover, on the medical evidence, the Tribunal finds that condition resolved. His medical examination in April 1994 was, on his evidence, a pre-discharge medical examination. The Tribunal accepts the Applicant's evidence that he mentioned to the doctor at the time that he had sore heels.

34. The Tribunal also finds that there was apparently no medical examination of the heel, and certainly there was no further investigation by X-ray examination and no diagnosis was made at that time. While it is clear that it was open to the doctor at that time to examine, investigate and diagnose the condition, and the Tribunal finds on the evidence of Dr Bodel that it was probably diagnosable at that time, there is no evidence before the Tribunal to the effect that if the condition had been diagnosed, clinical management would have changed the course of the condition.

35. There must be some onus on the Applicant to complain about the disability and seek treatment for it. Attending a pre-discharge medical examination does not amount to seeking a medical consultation for the purpose of complaining about the disability and seeking treatment. While the evidence raises some issues about appropriate clinical management, it does not enable the Tribunal to find, on the balance of probabilities, that the Applicant was unable to obtain appropriate clinical management. Therefore, the Tribunal finds that factor 5(e) in the Statement of Principles is not met.

36. The Tribunal finds, on the evidence of the Applicant and the medical opinion of Dr Bodel, that the Applicant does not meet the definition of "trauma to the plantar aspect of the foot" in the 1996 Statement of Principles. Therefore, factors 5(b) and/or 5(d) are not met.

37. In conclusion, on the evidence before the Tribunal none of the factors set out in the 1996 Statement of Principles exist, and therefore the Applicant's claim cannot succeed on the application of the 1996 Statement of Principles. On the other hand, the Tribunal notes the concession for the Respondent that the Applicant meets the requirements of the 2000 Statement of Principles. With respect, the Tribunal considers that on the evidence this is a concession that was properly made. Hence, whether the Applicant fails or succeeds in his application depends on the Tribunal's decision about which Statement of Principles has to be applied in this case.

38. It was submitted for the Respondent that, applying the decision of the Full Federal Court in Repatriation Commission v Keeley (2000) 98 FCR 108, the Tribunal must apply the Statement of Principles that was relevant at the time the primary decision was made, that is, the 1996 Statement of Principles.

39. The Tribunal notes that the majority (Lee and Cooper JJ) in Keeley (supra) said (at 123) -

Unless a contrary intention is clearly disclosed, it is to be presumed that accrued rights are determined under the law as it stood when the right accrued. With regard to beneficial legislation such as the Act, it may be assumed that a construction of substantive provisions least likely to work or cause unfairness in result is to be preferred. It may be concluded that Parliament intended that the review of a decision on a claim made pursuant to a Statement more beneficial to a claimant than the terms of a Statement that replaced the former Statement after the decision had been made, is to be conducted as if the former Statement had not been revoked. Unless the Act provided otherwise, a proceeding initiated under the Act to review a decision made by the Commission was to be carried out by determining if the respondent's claim to a pension had been wrongly refused, the decision of the Commission to be replaced by the decision that should have been made by the Commission had it properly applied the law as it stood: see Esber at 440-441 per Mason CJ, Deane, Toohey, Gaudron JJ.

40. It is also noted by the Tribunal that the decision of the primary judge, Heerey J in Keeley v Repatriation Commission (1999) 56 ALD 455 considered that s50 of the Acts Interpretation Act 1901 (Cth) ("the AIA") caused one to ask whether the repeal of the first Statement of Principles by the second affected any "right" or "privilege" "acquired by" or "accrued" to the applicant under the first Statement of Principles: see minority judgment of Kiefel J in Keeley (Full Federal Court). In the decision of the High Court in Esber v Commonwealth of Australia (1992) 174 CLR 430, it was held that the appellant had a substantive right to have the primary decision reviewed and in the absence of a contrary intention the right was protected by s8 of the AIA.

41. The decision of the Full Court in Keeley is about the preservation of the appellant's right where a new Statement of Principles was less favourable than the one applicable at the time the primary decision was made. In the matter now before the Tribunal there is no issue about preserving the Applicant's rights as they existed at the time of the primary decision. The Respondent appears to be asserting that the Applicant has an obligation to have his matter determined under the 1996 Statement of Principles.

42. In coming to its decision, the Tribunal relies on the decision of Mathews J sitting as President of the Tribunal in Re Zoarder and Secretary, Department of Social Security (1998) 26 AAR 342, when she said (at 350) -

The "rights" which s 8(c)[of the AIA] is designed to preserve are rights, albeit conditional or inchoate ones, which would otherwise be lost upon the repeal of the legislation in question. In other words, the section applies where the change in the law would otherwise deprive a claimant of rights already accrued. It operates to prevent a claimant being unfairly disadvantaged by changes in the law between the making of a claim and the time of its determination: Re Reilly and Secretary, Department of Social Security (1987) 12 ALD 407 at 414;7 AAR 130 at 134. Accordingly, it will normally (if not invariably) only apply to preserve rights where the change in the law is disadvantageous to the person asserting the right. It is difficult to conceive of a situation where the law has moved from a restrictive to a less restrictive regime where the applicant could be said to have an accrued right which will require preservation under s 8(c). This is precisely what has happened here. There was in my view no right of the applicants which needed protection under s 8(c).

43. The Tribunal was referred by the Respondent to the decision Re Reading and Repatriation Commission [2000] AATA 841, in which the Tribunal constituted by Deputy President Forgie and Capt. Keane disagreed with the abovementioned passage of Matthews J Re Zoarder and decided that the Statement of Principles in place at the time of the primary decision must be applied. The Tribunal said -

The only difference between the situation in this case and that in Keeley is that the outcome is more beneficial to the claimant for the person. The other factors taken into account in Keeley remain the same. That is to say, the scheme of the Act and the need for consistency of decision making remain the same. There has been a change in the claimants' substantive right although, on this occasion, the change has been to lower the bar to the remedy.

The Tribunal Re Reading was concerned that the only way to maintain consistency of decision making is to apply the decision of the Full Federal Court in Keeley equally "whether the change to the later SoP is beneficial to claimants or not". That position was also followed by the Tribunal Re Ryan and Repatriation Commission [2000] AATA 849 (Deputy President Forrest, Mr Argent and Dr Fricker).

44. The Respondent submitted that the abovementioned decisions of the Tribunal were correct, and also urged the Tribunal to follow them for the sake of consistency.

45. The Tribunal is always concerned about the consistency of its decision making, and also notes the importance for the Respondent in having a consistent approach to its own decision making. However, when the Tribunal is faced with conflicting decisions, that is Re Zoarder on the one hand and Re Reading and Re Ryan on the other, the basis for inconsistency has been set already. With respect, I disagree with the reasoning on the issue of accrued rights provided by the learned Deputy Presidents in Reading and Ryan.

46. On the basis of the view already expressed in relation to the application of s8 of the AIA by Mathews J, and in this case s50 of the AIA, the Tribunal finds the Applicant is not obliged to rely on his so called accrued rights, because those sections of the AIA only apply to preserve a right where the change in the Statement of Principles would be disadvantageous to him. In this case there is no right of the Applicant that needs protection. Moreover, there is no legislative basis in the Act requiring the Tribunal to apply the Statement of Principles applicable at the time of the primary decision. In coming to this decision the Tribunal has also taken into account the comments by the majority in Keeley to the effect that the Act is beneficial legislation and that Parliament intended, that in conducting the review preference should be given to a construction of substantive provisions least likely to cause unfairness in results.

47. Therefore, as the Applicant meets the provisions of Instrument No. 4 of 2000, the Tribunal is reasonably satisfied that his condition of plantar fasciitis and calcaneal spur right foot is a defence caused condition. As all applications for review were in time, the date of effect of the Tribunal's decision is 24 December 1996, being a date not earlier than three months before the Applicant lodged his claim.

Assessment

48. Although Dr Bodel and Professor Sambrook each provided an opinion in respect of assessment, it became apparent at the resumed hearing of this matter that neither doctor had provided a medical impairment rating in respect of the Applicant's accepted disability of mal tracking patella. Additionally, while Professor Sambrook provided a lifestyle assessment in respect of the knee condition and plantar fasciitis, Dr Bodel provided a lifestyle assessment only in respect of plantar fasciitis. It was the Applicant's evidence that his knee condition had not altered from the previous review of the assessment of that condition in 1994. However there was no evidence before the Tribunal in respect of that assessment. Therefore the Tribunal advised the parties that the matter would need to be remitted to the Respondent for assessment of the rate of pension payable to the Applicant.

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Mrs M T Lewis, Senior Member

Signed: ....................A.Kanetkar..................................................

Associate

Date/s of Hearing 22 November 1999, 9 October 2000

Date of Decision 18 October 2000

Counsel for the Applicant N/A

Solicitor for the Applicant unrepresented

Counsel for the Respondent N/A

Solicitor for the Respondent S.Breuer, Dept. of Veterans' Affairs