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Tearle and Repatriation Commission [2009] AATA 5 (7 January 2009)

Last Updated: 7 January 2009

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 5

ADMINISTRATIVE APPEALS TRIBUNAL )

) No 2007/3672

VETERANS' APPEALS DIVISION
)

Re
GARY TEARLE

Applicant
And
REPATRIATION COMMISSION

Respondent

DECISION

Tribunal
Ms N Isenberg, Senior Member
Dr I S Alexander, Member

Date 7 January 2009

Place Sydney

Decision
The decision under review is affirmed.



.......................[Sgd]........................


Ms N Isenberg, Senior Member

CATCHWORDS

VETERANS’ ENTITLEMENTS – operational service – eligible defence service – claim that osteoarthrosis of both shoulders and rotator cuff syndrome were war or defence caused – consideration of Statement of Principles – rate of pension payable to veteran - the decision under review is affirmed


Veterans’ Entitlements Act 1986 ss 9, 13(1), 23, 24, part IV, ss 70, 196, 120(1), 120(3), 120(4) and 120A

Statement of Principles – Instrument No 31 and 32 of 2005 concerning osteoarthrosis

Statement of Principles – Instrument No 39 and 40 of 2006 concerning rotator cuff syndrome


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

Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108

Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331

Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271

Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433

Elliott v Repatriation Commission (2002) 73 ALD 377

Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364

Youngnickel v Repatriation Commission [2004] FCA 1691

Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581

Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331

Re Robertson and Repatriation Commission (1998) 50 ALD 668

Repatriation Commission v Cornelius [2002] FCA 750

Cavell v Repatriation Commission (1988) 9 AAR 534


REASONS FOR DECISION


7 January 2009
Ms N Isenberg, Senior Member
Dr I S Alexander, Member

BACKGROUND

  1. Mr Tearle served in the regular Royal Australian Navy between 10 January 1961 and 10 January 1981. His “operational service” as defined in the Veterans’ Entitlement Act 1986 (“the VE Act”) was as follows:
  2. Mr Tearle also rendered eligible defence service as defined in Part IV of the VE Act from 7 December 1972 to 10 January 1981.
  3. Mr Tearle contends that his claimed conditions of osteoarthrosis of both shoulders and his rotator cuff syndrome either arose out of or were materially contributed to by his eligible service. In general terms he contended that his shoulders were injured playing service sport.
  4. The following conditions have already been accepted as related to service:

a) Solar Skin Damage
b) Malignant Neoplasm of the Skin
c) Localised Osteoarthrosis affecting both knees
d) Bilateral sensorineural hearing loss
e) Pterygium in the left eye
f) Osteoarthrosis affecting both hips


  1. In addition, at the hearing, it was contended on his behalf that those accepted conditions are inadequately assessed at 90 per cent of the General Rate in that he is entitled to be paid pension at the (earnings-related) Intermediate Rate whether or not we accept his bilateral osteoarthrosis and rotator cuff syndrome as service related.

ISSUE BEFORE THE TRIBUNAL

  1. There was no dispute that Mr Tearle suffers from bilateral osteoarthrosis of the shoulder and rotator cuff syndrome.
  2. There was no dispute that 90 per cent is the appropriate General Rate in respect of Mr Tearle’s previously accepted conditions.
  3. Therefore the issues are:

LEGISLATIVE BACKGROUND

Operational Service

  1. Section 9 of the VE Act provides that an injury is taken to be war-caused if it resulted from an occurrence that happened while the veteran was rendering operational service or arose out of, or was attributable to, that service.
  2. Section 13(1) of the VE Act is to the effect that where a veteran has become incapacitated from a war-caused injury or disease, the Commonwealth is liable to pay a pension by way of compensation to the veteran.
  3. As the veteran had operational service, the determination of whether his claimed conditions are war-caused is to be made by applying ss 120(1) and 120(3) of the VE Act. Those subsections require us to find that the veteran’s condition was war-caused unless we are satisfied, beyond reasonable doubt, that there is no sufficient ground for making that finding.
  4. The Repatriation Medical Authority (“RMA”) was established under section 196A of the VE Act. If the RMA is of the view that there is sound medical-scientific evidence that indicates that a condition can be related to veterans’ service, the RMA must determine a Statement of Principles (“SoP”): section 196B. The SoP sets out the factors, one of which as a minimum must exist (and which must be related to the veteran’s service) before it can be said that a reasonable hypothesis has been raised connecting the condition with that service. The reference in section 196B(2) of the VE Act to a particular kind of injury, disease or death being “related to service” is expounded in section 196B(14). This provides relevantly, in effect, that a factor causing an injury is “related to service” rendered by a person if it resulted from an occurrence that happened while the person was rendering that service, or if it arose out of, or was attributable to, that service.

Eligible Defence Service

  1. Part IV of the VE Act deals with pensions for members of the Defence Force. Section 70(1) of the VE Act provides that, inter alia, where a member is incapacitated from a defence-caused injury, the Commonwealth is liable to pay pension by way of compensation to the member in accordance with that Act. By s 70(5)(a) of the VE Act, an injury suffered by a member shall be taken to be defence-caused if the injury/disease arose out of, or was attributable to, the member’s defence service.
  2. Pursuant to s 120(4), the Tribunal, in determining whether a member is suffering from an “injury”, is to decide that matter “to its reasonable satisfaction”. Likewise, the Tribunal, in determining whether an “injury” suffered by a member is a “defence-caused injury” for the purposes of s 70 of the VE Act is, pursuant to s 120(4), to decide that matter “to its reasonable satisfaction”.
  3. Statements of Principles have also been issued by the RMA in respect of defence-caused conditions, and the Tribunal is required to decide matters to its reasonable satisfaction in accordance with those SoPs.
  4. The current SoPs in respect of the claimed conditions are:

EVIDENCE

  1. We had before us the documents lodged with the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975. The following documents were tendered at the hearing:

Exhibit A1 – Applicant’s Statement dated 23 October 2007

Exhibit A2 – Dr Giblin Medical Report dated 11 February 2008

Exhibit A3 – Daily Medical Record dated 8 December 1978

Exhibit R1 – Dr Millons Medical Report dated 11 December 2007

Exhibit R2 – Dr Chase Medical Report dated 14 March 2008

Exhibit R3 – Email from Mr Tallboys to Writeway Research plus annexures and response of 7 November 2008 including statement of Rear Admiral Bayliss.

Exhibit R4 – Dr Huynh Medical Report undated

Exhibit R5 – Auscript Transcript of Proceedings Veteran’s Review Board 11 May 2007

Exhibit R6 – Dr Walker Clinical Notes

Exhibit R7 – Dr Davidson Clinical Notes

  1. Mr Tearle gave evidence. Evidence was also given by Dr Giblin, Dr Chase and Rear Admiral Dr Bayliss, a former RAN medical Director-General.

CONSIDERATION: OPERATIONAL SERVICE

  1. Where a SoP exists, we must apply the test prescribed by s120A(3) of the VE Act, as explained in Repatriation Commission v Deledio [1998] FCA 391; (1998) 83 FCR 82 at 97 in the following way:
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.

Steps 1 and 2: is there a hypothesis and is there a SoP?

  1. The hypothesis is that Mr Tearle injured his shoulders during service sport, and this resulted in his suffering bilateral osteoarthrosis of the shoulders and rotator cuff syndrome, and that those conditions are therefore war-caused.
  2. It was not in dispute that the relevant SoP in relation to the veteran’s osteoarthrosis is Statement of Principles concerning osteoarthrosis No. 31 of 2005.
  3. The relevant SoP in relation to his rotator cuff syndrome is more problematic. There was no contention that Mr Tearle’s circumstances came within the current SoP, which came into effect on 17 August 2006. Instead the advocate for Mr Tearle relied on SoP No 83 of 1997, the SoP which was in effect at the date Mr Tearle’s claim was lodged (1 August 2006). The advocate relied on Repatriation Commission v Keeley [2000] FCA 532; (2000) 98 FCR 108 “Keeley” as authority for the proposition that the Mr Tearle had an accrued right to have his application determined on the basis of the SoP in effect at the date of his claim.
  4. In Keeley, there had been no SoP at the date of claim, but one had been put in place before the date of the decision under review. A later SoP, revoking the first, was in place before the application for review.
  5. In their joint judgment Lee and Cooper JJ said:
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. (emphasis added)

More directly Kiefel J said:

... the need for consistency of decisions of lay tribunals is equally met by applying the SoP existing at the time of the primary decision. (emphasis added)
  1. The view of the Full Federal Court in Repatriation Commission v Gorton [2001] FCA 1194; (2001) 110 FCR 321 also was to the effect that the Tribunal must apply the relevant Statement of Principles that is currently in force, unless the Statement of Principles in force when the claim was first determined is more beneficial.
  2. Therefore, in this matter, the applicable SoP at the date the claim was first determined on 15 September 2006 is Statement of Principles concerning rotator cuff syndrome No. 39 of 2006, that is, the current SoP.

Step 3: does the hypothesis conform to the template in the SoP?

  1. This step entails determining whether the relevant hypothesis complies with one or more of the factors referred to in the relevant SoP. This step involves considering all of the material before us, but without making any findings of fact at this stage of the process. The history given by a veteran to a medical practitioner can constitute material before the Tribunal for this purpose: Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331.
  2. At this stage we must consider all of the material before us, whether or not that material supports the hypothesis: Bull v Repatriation Commission [2001] FCA 1832; (2001) 66 ALD 271, Hardman v Repatriation Commission [2004] FCA 1174; (2004) 82 ALD 433, and Elliott v Repatriation Commission (2002) 73 ALD 377. In the last of these cases Stone J, likened the decision-maker’s task to striking out a statement of claim as failing to disclose a course of action, where no consideration is given to whether the facts pleaded can be substantiated.
  3. A ‘reasonable hypothesis’ involves more than a mere possibility: Repatriation Commission v Bey [1997] FCA 1347; (1997) 79 FCR 364.
  4. The question for us at this stage is therefore: is there material pointing to each element of the factor? Each element of the hypothesis must be raised by the material: Youngnickel v Repatriation Commission [2004] FCA 1691. Whether a hypothesis is consistent with a factor in the Statement of Principles requires an examination of the totality of the material, and every essential element of the factor must be pointed to by that material.
  5. A hypothesis connecting a disease with war service will only be reasonable if the material that raises it includes all of the essential elements prescribed by the SoP: Repatriation Commission v Hill [2002] FCAFC 192; (2002) 69 ALD 581.
  6. The veteran’s hypothesis in relation to osteoarthrosis relied on factor 6(g) of the relevant Statement of Principles as follows:
having a trauma to the affected joint before the clinical onset of osteoarthrosis in that joint
“Trauma to the affected joint” is defined to mean:
a discrete joint injury that causes the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These 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 that joint has occurred and that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) surgery to that joint.

  1. Mr Tearle gave evidence of having been a keen sportsman prior to his service. On joining he was introduced to rugby, and played in the highly competitive inter-ship competitions. He was young and fit and played on the wing. Inter-ship games were even played while on ‘operational service in Singapore and Hong Kong’, and they would train on the flight deck.
  2. He had numerous injuries to his shoulder and legs over the years, and once had concussion. Initially he would treat his injury himself with ice in a plastic bag, because he had little faith in doctors. If the pain persisted the next day, he would ‘sign out’ a ray lamp from the sick berth. That occurred frequently, he said, as there was a major game weekly. Only once did he miss the next week’s game, but he never missed work. His superior, a lieutenant, would allow him to take a half day but there was no occasion when he had more than a day off.
  3. There was material before us that pointed to Mr Tearle having one or more discrete injuries to his shoulders during his operational service that caused the development, within twenty-four hours of the injury being sustained, of symptoms and signs of pain. There was only material by inference pointing to tenderness, altered mobility or range of movement of the joint. There was no material that those symptoms and signs lasted for a period of at least seven days following their onset. The self medication with ice or heat lamp was not material pointing to medical intervention.
  4. Therefore we have come to the view that every essential element of the hypothesis is not pointed to by the material before us. A reasonable hypothesis in respect of osteoarthrosis therefore has not been raised. It follows, by virtue of section 120(3) of the VE Act, we must find beyond reasonable doubt that there is no sufficient ground for determining Mr Tearle’s osteoarthrosis of both shoulders was war-caused.
  5. In relation to rotator cuff syndrome, the only relevant hypothesis, was one consistent with that in relation to osteoarthrosis: factor 6(a) of the relevant SoP
having an injury to the affected shoulder within the 30 days before the clinical onset of rotator cuff syndrome

“An injury to the affected shoulder” is defined to mean:

an injury to the shoulder region that causes the development, within the 24 hours of the injury being sustained, of pain, tenderness, and altered mobility or range of movement of the shoulder joint. These symptoms and signs must last for a continuous period of at least seven days following their onset; save for where medical intervention for the injury to that shoulder has occurred and that medical intervention involves either:
(a) immobilisation of the shoulder by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that shoulder; or
(c) surgery to that shoulder
  1. There was no dispute that the clinical onset of Mr Tearle’s rotator cuff syndrome was well after his operational service. That being the case, there was no material before us that points to the clinical onset within 30 days of the end of Mr Tearle’s operational service, the latest possible date to come within the time constraints of the factor.
  2. Therefore we have come to the view that every essential element of the hypothesis is not pointed to by the material before us. A reasonable hypothesis therefore has not been raised. It follows, by virtue of section 120(3) of the VE Act, we must find beyond reasonable doubt that there is no sufficient ground for determining Mr Tearle’s rotator cuff syndrome was war-caused.

CONSIDERATION: ELIGIBLE DEFENCE SERVICE


  1. In respect of Mr Tearle’s defence service subsection 120(4) of the Act applies. Therefore, we are required to decide all relevant matters to our reasonable satisfaction. This means that we are to decide whether, on the balance of probabilities, his osteoarthrosis and rotator cuff syndrome were defence-caused.
  2. The relevant SoP for osteoarthrosis is Statement of Principles concerning osteoarthrosis No. 32 of 2005, which contains the following factor, upon which Mr Tearle relied:
6(f) having a trauma to the affected joint within the twenty-five years before the clinical onset of osteoarthrosis in that joint

“Trauma to the affected joint” is defined to mean:


a discrete joint injury that causes the development, within twenty-four hours of the injury being sustained,
of symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. These symptoms and signs must last for a period of at least ten days following their onset; save for where medical intervention for the trauma to that joint has occurred and that medical intervention involves either:
(a) immobilisation of the joint or limb by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that joint; or
(c) surgery to that joint.

  1. Mr Tearle’s evidence was that up until about 1976 he played rugby on the wing, and then slowed down and played in the forwards and 2nd row up until 1979. He said that while serving at HMAS Albatross, when in the forwards, if he injured one or other of his shoulders, he would go off the field and the sick berth attendant (SBA) on the sidelines would give him an injection to alleviate the pain. He did not know what the injection was. He would go back onto the field in about 10 minutes, but if the injury was too severe he was kept off the field for the remainder of the game. No record was made of any injection.
  2. He said that ‘about 20 times over the years’ he had been injected on the sidelines in the manner described.
  3. He noted that once he had been unable to sleep properly for 3-4 days and went to the sick berth. He produced a daily medical record dated 8 December 1978 that he had attended with ‘R shoulder strain’, which noted that his shoulder was painful after sleeping on it and that he was tender behind the scapula. It was recorded that he was referred for physiotherapy.
  4. Mr Tearle’s evidence, coupled with the daily medical report, leads us to the view that he may have suffered a discrete joint injury that causes the development, within twenty-four hours of the injury being sustained, symptoms and signs of pain, and tenderness, and either altered mobility or range of movement of the joint. However, there was no evidence that these symptoms and signs lasted for a period of at least 10 days following their onset.
  5. It was argued on Mr Tearle’s behalf that the injections received on the sidelines were of corticosteroids or local anaesthetics. As such, it was submitted, it was not necessary that the symptoms and signs last for 10 days.
  6. Mr Tearle declined to identify the SBA who had injected him. Dr Bayliss gave evidence that SBAs had some medical training and would work under the supervision of doctors. At HMAS Albatross there was at least four regular medical officers plus reservists. He thought it would be ‘exceptionally uncommon’ for a SBA to administer cortisone and only in circumstances where, for example, an orthopaedic surgeon had ordered regular injections, or if there was no medical officer, such as on a patrol boat. Similarly it would be unusual for a SBA to administer a local anaesthetic. It would only occur if the SBA had advanced training and in circumstances, for example, where a wound was to be urgently sutured under local anaesthetic. It would be exceptionally unlikely that a SBA would administer a local anaesthetic on the sidelines of an ordinary service football match. If he did so, it would be ‘outside normal protocols’. In any event, if it had been performed, he would expect a record. At HMAS Albatross, in particular, it would be unusual because there were plenty of doctors and a major on-site hospital. Injections need to be undertaken in sterile environment, unless it is a life-saving situation.
  7. The Applicant relied on the medical report of Dr Giblin dated 11 February 2008 where the doctor diagnosed Mr Tearle as suffering from ‘chronic progressive soft tissue injury’ to both of his shoulders and reports that the onset of this condition was in his early years in the Navy and subsequently aggravated by repetitive trauma from his participation in sporting activities and further aggravated by excessive repetitive steroid injections. Dr Giblin considered that the recurrent soft tissue injuries led to the radiological arthritis.
  8. We had before us a number of Mr Tearle’s annual medical records from HMAS Albatross, from about 1974. None mentions a shoulder problem. At his discharge medical in 1980, there was no mention of a shoulder problem. A further medical examination, as a reservist, in 1992 also recorded no shoulder problem. His General Practitioner’s records do not note painful left supraspinatus tendonitis until 1989, despite Mr Tearle’s regular consultations with the doctor from 1984. Osteoarthrosis of both shoulders was ultimately not diagnosed until 2007, that is, some 26 years after the completion of Mr Tearle’s eligible defence service, and 28 years after he ceased playing Navy rugby.
  9. There is no definition of the term “clinical onset” in the SoPs or in the VE Act. The meaning of “clinical onset” was considered by the Full Court of the Federal Court in Lees v Repatriation Commission [2002] FCAFC 398; (2002) 125 FCR 331. The Court referred to the analysis of the Tribunal in Re Robertson and Repatriation Commission (1998) 50 ALD 668 (“Robertson”) where the Tribunal concluded at 670 that:
...there is a clinical onset of a disease, either when a person becomes aware of some feature or symptom which enables a doctor to say the disease was present at that time, or when a finding is made on investigation which is indicative to a doctor of the disease being present at that time.

  1. That analysis was specifically endorsed by Branson J in Repatriation Commission v Cornelius [2002] FCA 750 (“Cornelius”).
  2. The accepted definition of clinical onset referred to in Robertson and Cornelius relies on the classification by a doctor of symptoms upon presentation by the patient.
  3. There was no medical evidence suggesting that the condition was diagnosed at any time within 25 years of Mr Tearle’s eligible defence service.
  4. We therefore find that the clinical onset of osteoarthrosis was not until a date outside the 25 years required by factor (f) of the relevant SoP.
  5. The relevant SoP for rotator cuff syndrome, for the reasons discussed above, is Statement of Principles concerning rotator cuff syndrome No. 40 of 2006, which contains the following factor:
6(a) having an injury to the affected shoulder within the 30 days before the clinical onset of rotator cuff syndrome

“An injury to the affected shoulder” is defined to mean:


an injury to the shoulder region that causes the development, within the 24 hours of the injury being sustained, of pain, tenderness, and altered mobility or range of movement of the shoulder joint. These symptoms and signs must last for a continuous period of at least ten days following their onset; save for where medical intervention for the injury to that shoulder has occurred and that medical intervention involves either:
(a) immobilisation of the shoulder by splinting, or similar external agent; or
(b) injection of corticosteroids or local anaesthetics into that shoulder; or
(c) surgery to that shoulder

  1. The earliest reference to problems with Mr Tearle’s shoulders is in 1978: ‘left shoulder strain’. While rotator cuff syndrome as such was not diagnosed until 2007, Mr Tearle’s general practitioner diagnosed supraspinatus tendonitis in respect of the left shoulder in 1989. In 1997 the doctor made a provisional diagnosis of ‘rotator cuff’. As the definition of rotator cuff syndrome in the SoP includes supraspinatus tendonitis, the clinical onset, as discussed above, would not have been until 1989 at the earliest.
  2. As to the right shoulder, the earliest note in the general practitioner’s records is in 1992, noting pain, but stopping short of making a diagnosis. The clinical onset is therefore 2007.
  3. The Applicant referred to Dr David Millons, report of 11 December 2007 in which the doctor expressed the view that his general impression was that Mr Tearle had been carrying chronic rotator cuff lesions in both shoulders for ‘a long time’ and that it is not uncommon for football players to get shoulder problems. He said:
Those problems are usually treated conservatively with ice and heat and massage. It may be the case that his sporting activities was (sic) ‘the beginning of some problems within the rotator cuffs’.

  1. The clinical onset of rotator cuff syndrome affecting each shoulder is therefore well outside the latest possible date to fit within the “template” of the factor contained in the relevant SoP, namely 30 days after the cessation of service sport. On Mr Tearle’s evidence he ceased football in 1979 and his eligible defence service ended in 1981.

CONCLUSION AS TO OSTEOARTHROSIS AND ROTATOR CUFF SYNDROME

  1. In all of the circumstances, we are satisfied, beyond reasonable doubt, that there is no sufficient ground for determining that the veteran’s bilateral osteoarthrosis and rotator cuff syndrome are related to Mr Tearle’s operational service. Further we are satisfied on the balance of probabilities that the conditions were also not related to his eligible defence service.

ASSESSMENT

  1. The Applicant contended that if he were successful in his claim to have osteoarthrosis affecting both shoulders and rotator cuff syndrome of both shoulders accepted as service related, his disability pension should be assessed at the Intermediate Rate.
  2. We note however, that independently of his claim in respect of his shoulders, Mr Tearle contended that his accepted conditions are inadequately assessed at 90 per cent of the General Rate, and that he is entitled to be paid pension at the (earnings-related) Intermediate Rate.
  3. The Respondent conceded that as the degree of incapacity in this case, irrespective of whether Mr Tearle’s shoulder conditions were accepted conditions, was at least 70 per cent, an earnings-related rate of pension could be considered. The criteria for the payment of the Intermediate Rate are set out in section 23 of the VE Act.
  4. The essential difference between entitlement under section 23 of the VE Act to the Intermediate Rate of pension and to the Special Rate of pension under section 24 of the VE Act is the work capability of the veteran. In the case of Intermediate Rate, this is not more than 20 hours per week, and for Special Rate not more than 8 hours per week. All of the other criteria for entitlement to an earnings-related pension under both sections of the VE Act are essentially the same.
  5. Section 23 contains several criteria each of which is very specific. All of the criteria must be complied with before a veteran can qualify for the Intermediate Rate. Generally speaking, if any one of the criteria is not met, the veteran will not be eligible for payment of pension at that rate. The Tribunal has no discretion in this regard.
  6. In this case, we are satisfied that the veteran’s degree of disability is at least 70 per cent. One of the other essential criteria is that the veteran must be prevented by his service related conditions alone from continuing to undertake the remunerative work he was undertaking: section 23(1)(c).
  7. Mr Tearle gave evidence that he has been a teacher for about 20 years since leaving the Navy. In 2007 he declined further temporary teaching employment because he felt he could not give his best when his shoulder, hips and knees ache constantly. He then only worked 1 or 2 days a week (i.e. 6-12 hours per week) depending on the state of his shoulders, knees and hips. He has not worked at all this year. His shoulders made it difficult to write on the blackboard. He was also a swimming instructor but was unable to continue that after last year because he could not do land drills, such as for backstroke.
  8. Consideration of "alone" in section 23(1)(c) requires a practical decision as to whether the veteran's reduction in remunerative work is attributable to his service-related incapacities, and not to something else as well (per Cavell v Repatriation Commission (1988) 9 AAR 534 in respect of the parallel provisions of section 24(1)(c)).
  9. While there was evidence that Mr Tearle’s hips and knees make the necessary standing associated with being a teacher difficult, it was clear that his shoulders impact upon his work capacity. Even Dr Chase, upon whom the Applicant relied considered that his reduced capacity to work was due to combination of his lower limb osteoarthritis and the osteoarthritis of the shoulders.
  10. We therefore find that as Mr Tearle cannot meet all the criteria in section 23, he is not entitled to pension at the Intermediate Rate. Further, as there was no submission that his accepted disabilities had otherwise been inadequately assessed, his pension remains at 90% of the General Rate.

DECISION

  1. For the above reasons, we affirm the decision under review.

I certify that the 71 preceding paragraphs are a true copy of the reasons for the decision herein of Ms N Isenberg, Senior Member and Dr I S Alexander, Member.


Signed: [Sgd] Associate Tim Ngui


Date of Hearing 10 November 2008

Date of Decision 7 January 2009

Solicitor for the Applicant Rhiannon Wheeler, KCI Lawyers

Appearance for the Applicant Adam Halstead, Bradfield Mills

Solicitors

Solicitor for the Respondent Ben Tallboys, Chamberlains Law Firm

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