Mihajlovic and Comcare [1999] AATA 339 (21 May 1999)

Last Updated: 28 May 1999

DECISION AND REASONS FOR DECISION [1999] AATA 339

ADMINISTRATIVE APPEALS TRIBUNAL )

) No. A98/154

GENERAL ADMINISTRATIVE DIVISION )

Re MIROSLAVA MIHAJLOVIC

Applicant

And COMCARE

Respondent

DECISION

Tribunal Senior Member J.A. Kiosoglous MBE Dr M.D. Miller (Member) Air Marshal I.B. Gration (Member)

Date 21 May 1999

Place Canberra

Decision Pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter to the respondent for assessment with the following directions: (a) that the applicant's degree of permanent impairment as amended from the initial determination to a degree of 29% on 23 December 1998 (Exhibit R5) is to be further amended to be a degree of 27%; (b) that the applicant has an increase in the degree of permanent impairment to her thoraco-lumbar spine of 10% for the purposes of s.25(4) of the Safety Rehabilitation and Compensation Act 1988 (the Act) and otherwise satisfies the requirements of ss.24 and 25 of the Act; (c) that the applicant has a degree of whole person impairment as assessed pursuant to s.24 of the Act in accordance with the Guide of 28%; (d) that the applicant is entitled to further compensation in an amount of 1% of the maximum amount pursuant to s.24 of the Act being the increase in the degree of compensable whole-person impairment -- the amount actually payable, as determined by Comcare in accordance with these directions, will be the difference, if any, between that to which the Applicant is entitled and that which has already been paid; and (e) that the amount payable pursuant to s.27 of the Act is to be recalculated using the degrees of impairment in (a) and (c) above. As the result of these directions, as the Tribunal has made a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision, in that the applicant has had an increase in her compensable degree of impairment, the Tribunal, pursuant to sub-s.67(8) of the Act, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties. The Tribunal strongly recommends that as the amount actually due to the applicant will be one percent less than the amount already received, Comcare exercise its discretion pursuant to s.114D of the Act, and waive the resultant debt owing to Comcare.

..............................................

J.A. KIOSOGLOUS

(Senior Member)

CATCHWORDS

COMPENSATION - permanent impairment - whether degree of permanent impairment has increased by more than 10% since received permanent impairment payment in 1992 - degree of loss relating to shoulder and lumbar spine injuries - interpretation of s.24(5) - whether to combine impairments arising from separate injuries using Table 14.1 of the authorised guide - interpretation of s.25(4) - whether increase of 10% needs to be to Whole Person Impairment or to one impairment

Safety Rehabilitation and Compensation Act 1988 ss.24, 25, 67, 114D

Brennan v Comcare (1994) 50 FCR 555

Thiele v Commonwealth (1990) 22 FCR 342

The Commission for Safety Rehabilitation Compensation of Commonwealth Employees v Ticsay (1992) 38 FCR 181

Whittaker v Comcare (FFC 98, No 1099, 7/9/98)

March v Stramare (1991) 171 CLR 506

Re Clarke and Comcare [1999] AATA 76

REASONS FOR DECISION

Senior Member J.A. Kiosoglous Dr M.D. Miller (Member) Air Marshal I.B. Gration (Member)

2. This is an application for review of a decision of an independent review officer of the respondent dated 4 May 1998 (T172) which affirmed a determination made by the delegate of the respondent dated 2 April 1998 (T170).

3. The Tribunal received into evidence the documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (T1-T174), together with eighteen exhibits, nine lodged by the applicant (Exhibits A1-A9) and nine lodged by the respondent (Exhibits R1-R9). In addition, the Tribunal heard evidence from the applicant, Mrs M. Mihajlovic, who also called Mrs S. Dregicevic, Mrs P.M. Field, Dr R.J. Kitchen, Dr P.J. Black and Ms P. Manson. The respondent called as witnesses Dr J. Hopkins and Dr C. Davidson. The applicant was represented by Mr Colin McKeown and the respondent was represented by Mr Damien O'Donovan, both of counsel.

4. The issues to be determined by the Tribunal in this case are whether the applicant has had any increase in her various impairments since 1992, those impairments being due to compensable back and shoulder conditions arising from an incident at work in 1991 and whether any such increase is sufficient to entitle the applicant to a further payment.

5. The facts which are not disputed, and the Tribunal finds to be the case, are as follows:

(a) The applicant, who was employed as a Parliamentary Catering Officer Class 2, suffered an injury on 7 June 1991 when she slipped at work on some wet parquetry injuring her back, right shoulder, right and left knees and left ankle.

(b) On 11 August 1991, the applicant was made redundant by the Joint House Department (T22).

(c) On 19 November 1991 the applicant submitted a claim for permanent impairment citing her injuries as "L4/L5 disc protrusion causing severe lumbar back pain and sciatica in right leg. Injury to right shoulder" (T20). On 25 November 1992 the claims manager informally assessed that the applicant was entitled to $50,893.17 compensation for permanent impairment based upon an assessment of 28% whole person impairment (T36). The applicant made periodic claims for periods she was unable to work in a private catering business between November 1992 and 23 December 1993. From 23 December 1993, the applicant ceased work permanently and has claimed compensation from that date until the present. The applicant's payments were suspended whilst her involvement in a restaurant in Queanbeyan was investigated, but were subsequently reinstated and backdated.

(d) On 21 March 1996 the applicant applied for additional compensation for permanent impairment (T124). This claim was suspended pending surgery. A second claim was submitted on 23 May 1997. In that claim, Dr Black, in response to the question "Please describe extent of impairment(s) listed above. (If possible express as a percentage of the whole person or of the affected part; function or system)" stated: "lumbar spine 20% impairment, shoulder 30% impairment" (T145).

(e) On 2 April 1998 the claims manager of the respondent determined that, as there had been no increase in the degree of permanent impairment of the employee, no entitlement existed for an additional permanent impairment lump sum payment (T170). On 6 April 1998 the applicant sought reconsideration of this determination (T171). On 4 May 1998 the Independent Review Officer of the respondent affirmed the decision of 2 April 1998 (T172). The applicant appealed to the Administrative Appeals Tribunal for review on 12 May 1998 (T1).

applicant's evidence

6. The applicant gave evidence that her ability to perform day to day activities has been much reduced since 1992. The evidence has been summarised as follows:

(a) Work Duties: In 1992, the applicant was able to undertake a number of work duties, although this involved her putting up with some pain. These included (inter alia) working as a cashier, clearing plates, cooking on Saturday at lunch times and some waitressing. The applicant stated that at the beginning of 1993 she was able to carry up to three plates at a time and also could carry a wine bottle; however, her condition worsened such that sometime during 1993, when she was carrying two Crown Lager beer bottles on a tray, she was unable to hold the tray, dropping the beers. The applicant stated that today she was unable to do any of that work, or do any work in the hospitality field. She stated that she would be unable to work in the private sector of the hospitality industry. She stated that the Manor restaurant she opened in 1993 had been the "dream of her life" but that she had been forced to give this up because of her back and shoulder problems.

(b) Outside Activities: The applicant stated that in 1992 she could walk up to fifty metres before pain; however, she was forced to get a handicapped sticker for her car in 1993, and limit her walking to include only walking from her car to the shops and inside the shops. On the first day of the hearing (4 February 1999) she stated that she had been in considerable pain by the time she had walked half way from the AMP building to Canberra House, which she considered a short distance. The distance from the AMP building to Canberra House is about 300 metres. The applicant stated she was very religious and in 1992 was able to attend church approximately once or twice per month, as well as for feast days, funerals, christenings and weddings, but was now unable to attend church except on very rare occasions, since the church did not have seats and she was required to stand for at least 45 minutes for the service. She stated that she was unable to stand for this length of time and therefore was only able to go to church on rare occasions. In 1998, she only attended church for Christmas, Easter and a wedding. On these occasions she was unable to last the length of the mass, and subsequently "spent half of the mass in the car". She stated that she used to have an active social life but does not go out now.

(c) Home Duties: The applicant stated that she was "fanatical" in the cleaning of her house and was very houseproud, but was unable to clean her house to the same extent that she could in 1992. She stated that she had difficulty in hanging out the washing, resulting in her placing it on racks inside, so that she did not have to take it outside. She still vacuums the house, but stated that it takes a very long time. She is unable to effectively clean the house, and relies upon her daughter and son to do the majority of the cleaning, including washing dishes. She stated that she cannot iron clothes and tries to wear clothes that will not need ironing. She cannot cook as much as she used to, and relies on her daughter to assist in cooking two to three nights per week. She stated that she used to make cakes for her grandchildren that would take several hours, but which would now take one to two days to complete. She stated that she relies on either outside help or her son to take care of the garden.

(d) The applicant stated that she had lost a great deal of weight and ate a great deal less since 1992 because of the stress caused by the constant pain and her inability to work. She has also lost confidence, in particular relating to her appearance.

(e) Medication: The applicant stated that over the time from 1992 onwards she has taken a variety of medication some of which adversely affected her because of a stomach problem. The applicant stated that she now took Capadex and Panadol, and that in 1997-1998 she was in such pain that oral MesaMorphine was prescribed. She stated that the amount of medication she required had substantially increased since 1992.

(f) The applicant had an injury resulting from a fall at work in 1987, liability for which was accepted by the respondent in 1991 (T10).

mrs s. dragicevic's evidence

7. The daughter of the applicant, Mrs Dragicevic, gave evidence which corroborated the applicant's evidence that the applicant has lost weight and confidence since 1992, no longer goes out, and requires help with the ironing, cleaning, washing and cooking to a far greater extent than in 1992. Mrs Dragicevic stated that she cooks three times per week for the applicant and also washes any pots and larger items for the applicant. She stated that the applicant cannot help with her children (the applicant's grandchildren) as much as she used to do in 1992. She stated that the applicant could lift and play with the children in 1992 but was unable to do so now. She stated that the applicant had helped a lot more with the granddaughter when the latter was a baby seven years ago than she was able to do so now with the grandson (now aged two and a half).

8. Mrs Dragicevic could not remember the applicant's 1987 fall.

mrs p.m. field's evidence

9. Mrs Field has known the applicant since the mid-1980s, since they both worked at Parliament House. Mrs Field saw the incident in June 1991 (the second injury). Mrs Field stated that the applicant is not "half the woman she was in 1992", has lost weight and confidence, looks unwell and has deteriorated. She stated that the quality of the applicant's cleaning has diminished, and that the applicant is frustrated at not being able to work. She stated that the applicant does not go out socially any more and refuses invitations from Mrs Field because of the pain of her conditions and her loss of confidence.

medical evidence

10. The Tribunal notes that the applicant has been generally consistent in the history she has given to all the doctors that have been consulted in relation to these proceedings.

dr p.j. black

11. Dr Black has been the applicant's treating general practitioner since at least the date of the first accident in 1987. Dr Black outlined the medication history of the applicant, and stated that the applicant had problems at times with medications because of her stomach condition. In 1992, the applicant was taking Panadol, but was now required to take Capadex, Naprosyn and occasionally had to resort to stronger analgesics including oral Morphine in 1998. He stated that the applicant is in considerably more pain now than in 1992. The applicant also takes Temazepam to help her sleep. The applicant was first prescribed MScontin in May of 1997, a stronger medication, and Dr Black stated that the applicant may have had an adverse reaction to it, but did not recall whether or not she had brought any back.

12. The Tribunal accepts that the statement in Dr Black's report dated 11 November 1991 (T19) where he refers to the applicant's inability to lift even the "smallest weights" should be considered as implying that the applicant could lift small weights such as a baby or wine bottle, but only if the applicant would accept the pain associated with the lifting.

13. The Tribunal finds that it must treat Dr Black's conclusions in respect of the degree of impairment with caution because of his use of misleading terminology in both his reports and oral presentation to the Tribunal. Dr Black equated "loss of range of movement" with "degree of impairment", and the Tribunal considers his application of loss of movement to assessing degree of impairment to be imprecise and therefore needing to be treated with caution.

dr r.j. kitchin

14. Dr Kitchin, an Orthopaedic Surgeon, saw the applicant on 3 March 1989 (T5). He saw the applicant again on 12 October 1992 (T31) on referral from Dr Rajasingham, an Australian Government Health Services (AGHS) Medical Officer, for the purpose of review and report. The applicant was examined by Dr Kitchin on 22 June 1998 in relation to the matter before the Tribunal (Exhibit A5).

15. Dr Kitchin prepared a report dated 23 June 1998 (Exhibit A5) in which he stated (inter alia):

COMMENT:

In relation to the lumbar spine, this patient suffers ongoing lumbar disc degenerative disease at L4/5 and L5/S1 and has clinical evidence of right sided sciatica. The MRI investigations of recent years demonstrate degenerative changes without evidence of nerve root compromise. The clinical evidence of sciatica is that of pain in the distribution of the sciatic nerve and also of restriction in straight leg elevation to a significant degree. I found no clear evidence of any voluntary restriction in spinal movements. The right sided sciatica is a consequence of the L4/5 and L5/S1 degenerative disc disease. Using Comcare 9.6 Table, requirement in this table is (i) assessment for back condition and for the spine and (ii) a scale for assessment of neurological consequences. In my assessment of her thoraco lumbar spine impairment, she has a loss of more than half the range of normal movement and therefore the percentage impairment is 20% for the thoraco lumbar spine. The added contribution of impairment of right lower limb, according to Table 9.5, is 10%.

...

PHYSICAL EXAMINATION:

Right shoulder: there were anterior and posterior arthroscopic portal scars. The area of tenderness was anterior and over the head of the humerus. The range of movement was as follows. Flexion was to 45° (expected 90°), extension was to 15° (expected 40°), abduction was to 70° (expected 150°), adduction was to 30° (expected 30°), external rotation was to 40° (expected 40°), internal rotation was to 25° (expected 30°).

COMMENT:

In my view, the permanent impairment of her right shoulder by Comcare Table 9.1 is 20%."

16. In terms of prognosis, Dr Kitchin concluded that there would be no improvement in the future. During cross-examination, Dr Kitchin agreed that the figures obtained in the physical examination of the right shoulder did not represent a loss of more than half normal range of movement (Exhibit A5). He concluded that the L4/5 protrusion was new, and that the L5/S1 component was part of the degenerative process and could contribute to restriction.

dr c. davidson

17. Dr Davidson, a Medico-legal Consultant, saw the applicant on 4 March 1998 for the purposes of assessment in relation to the matter before the Tribunal (T168). Dr Davidson used instruments to measure the angles of movement in the back. Dr Davidson concluded that the measurements obtained did not represent the true range of movement because of voluntary restriction. She found no leg impairment because there was no evidence on the radiology scans of neural compromise, and the symptoms described in relation to the leg were inconsistent with any diagnosis of leg impairment.

18. Counsel for the applicant raised the propriety of Dr Davidson's evidence on the basis that she has acted as a consultant to Comcare, including that she had been involved in the drafting of the Comcare "Guide to the assessment of the degree of permanent impairment" (the Guide), provided claim advice on the applicant's claim in 1997 based on the papers only (T146), and given legal advice as an officer of the Health Department. The Tribunal finds that Dr Davidson is a responsible person and was satisfied with her rebuttal to the applicant's counsel that (inter alia) the claim advice was in the nature of an opinion only, and her assertion that the opinion she gave in her report dated 18 March 1998 (T168) was objective, having been made without reference to the earlier opinion but, rather, having been based on the assessment conducted 4 March 1998 and radiological evidence evaluated on that date. It finds also that Dr Davidson's involvement in the provision of advice to Comcare and in drafting the Guide have not impaired her ability to give an objective medical assessment in relation to the matter before the Tribunal.

dr j. hopkins

19. Dr Hopkins, a Consultant Orthopaedic Surgeon, saw the applicant for assessment in relation to the present matter on 16 September 1998. He prepared a report dated 23 September 1998 (Exhibit R3) following this clinical assessment. Dr Hopkins stated in that report (inter alia),

SUMMARY AND ASSESSMENT:

"... as I understand it her original injury of 1988 to her lumbar spine was said to have been associated with a CT scan around that time, or at least 1988 or 1989, which was said to demonstrate a posterolateral disc protrusion at L4/5.

As I understand it, Ms Mihajlovic received simple conservative treatment following this but she experienced intermittent pain from that time onwards. It appears to have been possibly aggravated by a fall on a wet floor in June 1991. However, it is also quite clear that she was experiencing ongoing symptoms from her lumbar spine prior to the second fall of 1991. ...

As far as her current complaints of pain related to her lumbar spine are concerned, these do not appear to be greatly different from the complaints she has had over a prolonged period of time, or at least this is my understanding from reference to your enclosures.

...

Currently to formal examination she demonstrates an apparent loss of more than half the range of normal lumbar movement. However I consider there is significant overlay and I do not accept that the demonstrated range of movement is the actual range of movement which she is capable of undertaking. This is from observation of the ability of her back to move when dressing and redressing.

...

To clinical observation she had absolutely no abnormal neurology in her lower limbs whatsoever. There was an inappropriate straight leg raise test when supine which was clearly inappropriate in that when sitting with her legs over the side of the couch she had a negative flip test and normal straight leg raising could be achieved. ...

As a consequence of this I do not consider Ms Mihajlovic has any assessable permanent impairment of function related to her lower limbs from Table 9.5, nor any impairment under Table 9.2.

...

When seen by me Ms Mihajlovic appeared to be capable of abducting her shoulder, with some encouragement, to at least 170°, lacking only about 10° of the final part of movement. The same applied to forward flexion range. There was some limited reduction in external and internal rotation and extension and on that basis under Table 9.1 she could not attract any greater impairment value than 5%. Under Table 9.4 there is no assessable impairment of her right upper limb."

20. In support of this report Dr Hopkins stated in oral evidence that there was no lower limb impairment, and that an assessment of 10% impairment in relation to the back was fair and reasonable. He stated that the protrusion at L5/S1 may have been aggravated by work, and that the protrusion at L4/5 causes pain to the applicant. He does not accept that the loss of movement is less than half normal range in relation to the shoulder, and agrees that the applicant had pain, but not producing impairment. In cross examination, Dr Hopkins was questioned about his "informal" examination of the applicant, which he used as a basis for determining that the measurements obtained during formal assessment were not accurate. Dr Hopkins accepted that the applicant may have been embarrassed when dressing, and may have done so more quickly to avoid embarrassment and endure the pain this would have caused, but stated that his informal observations included the applicant getting on and off the couch as well as the dressing movements.

ms p. manson

21. The Tribunal considers that the evidence of Ms Manson, to whom the applicant was referred by Dr Black for massage therapy, did not contribute anything to the matter before the Tribunal. Ms Manson recited the history of treatment provided to the applicant, but was not in a position, given her lack of expertise, to provide an assessment of the applicant's degree of impairment.

discussion and findings

22. The Tribunal considers it useful to summarise the medical assessments made in respect of the range of loss of movement as measured most recently. The Tribunal has assessed the loss of movement by calculating the difference between the applicant's measurements obtained by the Doctors and the measurements expected of a normal person without any impairment:

Dr Aberdeen (5 March 1994; T52)

LUMBAR SPINE: 55% loss of movement

RIGHT SHOULDER : 27% loss of movement

Dr Woods (26 October 1997; T153)

RIGHT SHOULDER: 30% loss of movement

Dr Davidson (18 March 1998; T168)

LUMBAR SPINE: 84% loss of movement

RIGHT SHOULDER: 42% loss of movement

Dr Kitchin (23 June 1998; Exhibit A5)

LUMBAR SPINE: 70% loss of movement

RIGHT SHOULDER: 41% loss of movement

Dr Hopkins (23 September 1998; Exhibit R3):

LUMBAR SPINE: 66% loss of movement

RIGHT SHOULDER: 11% loss of movement

23. In relation to the loss of movement in the lumbar spine, the Tribunal notes that the medical evidence before it suggests a loss of movement of more than half the normal range. The Tribunal notes that some reservations were expressed about the accuracy of the measurements obtained, particularly in relation to Dr Davidson's findings of 84% loss of movement. Dr Davidson stated that this measurement was dependent upon the level of pain expressed by the applicant during examination, and cannot be relied upon as an accurate measure of the degree of loss of movement. The Tribunal considers that it must treat that finding of 84% loss of movement with some scepticism, as restriction to that degree would mean an almost total restriction of movement in the applicant's lumbar spine, which is clearly not the case. The Tribunal is satisfied on the basis of the medical evidence before it, that the loss of range of movement in the applicant's lumbar spine is more than half and so finds. The Tribunal finds therefore that the current percentage impairment factor in relation to the Thoraco-Lumbar spine injury assessed by Table 9.6 of the Comcare Guide is 20%.

24. Mr McKeown, on behalf of the applicant, submitted to the Tribunal that the measurements obtained by Dr Hopkins should not be regarded as accurate, given, in Mr McKeown's submission, that Dr Hopkins forced the applicant to perform the movements required during the examination. The Tribunal is satisfied, however, that Dr Hopkins made it quite clear in his response to Mr McKeown that he did not in any way force the movements performed by the applicant during his examination of her, and the Tribunal accepts Dr Hopkins' assessment to be objective and available to the Tribunal as evidence which it can take into account in coming to its decision. Mr McKeown also raised the possibility that the applicant was on medication when examined by Dr Hopkins, and that this medication could have affected the validity of his measurements. The Tribunal notes that Dr Hopkins did not ask the applicant whether or not she was on medication at the time of the examination, but, in the absence of any positive evidence that medication would have affected Dr Hopkins' assessment, the Tribunal discounts the possibility of medication invalidating the range of movements obtained. The Tribunal also notes that Dr Hopkins found that the applicant was in no distress at all during his examination.

25. In relation to the applicant's right shoulder injury, the Tribunal notes that the medical evidence before it suggests a loss of range of movement of less than half. The Tribunal notes that the only assessments made where the results obtained in relation to the right shoulder were fifty percent or greater, were in Dr Kitchin's assessment of 19 October 1992, in which 50% loss of movement was recorded (abduction to 90°, normal expected range 180° (T31)), and the Commonwealth Medical Officer's assessment of 26 June 1991 (T13). The Tribunal considers the measurements obtained by the Commonwealth Medical Officer at that assessment to be of questionable value in the current proceedings, given a subsequent finding based on an examination on 24 August 1992, found the range of loss of movement in the right shoulder to be approximately 25% (abduction to 80°, flexion and extension not decreased to any measurable degree) (T27).

26. Taking all of the evidence before it into account, the Tribunal is satisfied, in relation to the right shoulder injury, that the applicant currently has a loss of less than half normal range of movement and so finds. The Tribunal finds, therefore, that the current percentage impairment factor in relation to the right shoulder injury assessed by Table 9.1 of the Guide is 10%.

consideration of the law

27. Matters were raised before the Tribunal in respect of the interpretation of s.24(5) and s.25(4) of the Safety Rehabilitation and Compensation Act 1988 (the Act).

28. In respect of s.24(5), the Tribunal was asked to consider whether, in determining whole person impairment, impairments arising out of separate injuries should be added arithmetically, or combined using Table 14.1 of the Guide. The Tribunal notes the submissions of Mr O'Donovan on behalf of the respondent, which outlined the process by which the respondent arrived at its calculation of 29% permanent impairment, which was communicated to the applicant in a letter dated 23 December 1998 (Exhibit R5).

29. Mr O'Donovan submitted that Comcare followed a two step process in this case, as follows.

(a) For the back injury, there were two impairments (lumbar spondylosis and sciatica) each assessed as 10% degree of permanent impairment (T27). Because these impairments arose from a single injury, they were combined using Table 14.1 of the Guide, yielding a value of 19%. For the shoulder and arm injury, there was one impairment assessed at 10% per Table 9.4 of the Guide.

(b) Because two separate injuries resulted from the one incident, the impairment values for each injury were added arithmetically (19 + 10 = 29%) to give a final degree of whole person impairment of the employee.

30. Mr O'Donovan submitted that this approach was required by s24 of the Act, and referred the Tribunal in particular to the reference in s24(5) to the phrase "an injury". He submitted that the use of the singular in this section is significant, and means that reference must be made to the Guide for each separate injury, and a degree of impairment calculated in respect of each separate injury. He further submitted that there is no authority in the Act or the Guide to combine impairments that do not relate to the same injury. He also submitted that the Guide was subordinate legislation, and that the provisions in the Act must prevail over the Guide.

31. Mr McKeown, on behalf of the applicant gave confused oral submissions, initially suggesting to the Tribunal that the original determination of degree of permanent impairment should have been 27%, by combining all three impairments using Table 14.1 of the Guide. He later seemed to contradict this approach by agreeing with the respondent that, if the current degree of impairment percentages were as the applicant argued, 20% for the spine, and 20% for the shoulder, then they should be added arithmetically to obtain a figure of 40%. In further written submissions, Mr McKeown submitted that all impairments should be combined using the Table 14.1, stating at page 4 of his submissions (inter alia):

"One simply looks at the impairment to the whole bodily system at the time of that assessment and one uses the Combined Values Table to achieve that whole person impairment assuming there is more than one impairment."

32. The Tribunal notes the relevant provision of s.24(5) of the Act,

"(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide."

33. The Tribunal also notes the relevant provisions of the Guide:

"Combined Impairments

It is important to realise that impairment is system or function based and that a single injury or disease may give rise to multiple loss of function. When more than one table applies to a single injury separate scores should be allocated to each functional impairment. Where two or more injuries give rise to the same impairment, a single rating only should be given.

Double Assessment

The possibility of double assessment for a single loss of function must be guarded against. For example it would be inappropriate to assess a lower limb amputation by reference to both the amputation table (9.3) and the lower extremity (9.2).

Where an employee suffers from more than one impairment the values are not added but are combined using the combination values table. The purpose of this table is to give the total effect of all impairments, according to a formula, as a percentage value of the employee's whole bodily system or function (see Table 14)."

34. The Tribunal has also considered the reference, in the Preface at page vi of the Guide to the Guide to the Assessment of Rates of Veteran's Pensions, Department of Veteran's Affairs (GARP), and to the Guide to the Evaluation of Permanent Impairment, American Medical Association, Chicago 1984 (the AMA Guide). The Tribunal considers for comparative purposes, the principle in the GARP at page 6:

"Whole Person Impairment

Medical Impairment is expressed in impairment points, out of a maximum rating of 100. On this scale, zero points corresponds to no or negligible impairment from accepted conditions, and 100 points corresponds to death. Effectively, impairment points are percentages of the impairment of the whole person."

and the statement in Chapter 18 of GARP (p.231) that the combining formula in that chapter,

"... embodies a principle of combining ratings. The principle derives from the concept of whole person impairment (see page 6)."

35. The Tribunal also notes for comparative purposes the provisions of the AMA Guide, fourth edition, June 1993, where it states at Chapter 1 page 1:

"Impairment is defined in the Guides as an alteration of an individual's health status. Impairment, according to the Guides, is assessed by medical means and is a medical issue. An impairment is a deviation from normal in a body part or organ system and its functioning."

and further at Chapter 2, page 8 (inter alia):

"If the physician believes that the patient has two significant, unrelated conditions and that the extent of each should be estimated, this may be done. The whole person impairment estimates for two separate conditions then would be combined into an overall impairment estimate using the Combined Values Chart." (Tribunal emphasis)

Hence, the Tribunal notes that this approach is also consistent with the overall theme of the assessment of the whole person impairment.

36. The Tribunal once again feels compelled to express its dismay at the inadequacy of the Guide and notes similar expressions of dismay in many previous Tribunal decisions, and the apparent lack of attention paid by Comcare to these expressions. The Tribunal notes for comparative purposes that the provisions of the AMA Guide referred to above make the process of determining permanent impairment much clearer and easier to do, and avoid the constant need for litigation in respect of the ambiguities of the Guide. The Tribunal considers that the comment at Chapter 2, page 7, of the AMA Guide can be applied to the current Australian situation:

"Compare this approach with some impairment evaluations wherein physicians examine and report on patients without a standard protocol. In such instances, it is impossible to compare reports, because there is no assurance that the physicians have examined the same body part or systems in the same way...

Without standardisation of evaluations and reporting procedures, an individual reading these reports would have difficulty deciding which report to believe. This outcome is neither reasonable nor fair, and it tends to give rise to unavoidable confrontation" (Tribunal emphasis)

37. The Tribunal notes the words of Justice Burchett in Brennan v Comcare (1994) 50 FCR 555 (p.561):

"It would be impossible, in construing beneficial legislation, to reject the literal effect in favour of restricting the availability of the benefits. Even if ambiguous, the Act should be construed generously, and certainly its literal meaning should not be confined without very clear warrant."

The Tribunal feels that it must, with respect, distinguish the scenario of ambiguity raised in Brennan from the present. The Tribunal concurs entirely with the sentiment expressed in Brennan in respect of how to apply beneficial legislation, and indeed applies this approach in relation to s.25(4) of the Act, discussion of which follows below. With respect to the interpretation of s.24(5) of the Act, however, the Tribunal finds that, beyond the concern to construe beneficial legislation generously, it must first construe the legislation in a manner which ensures that consistent results can be reached which accord with common sense and with the legislative purpose of the Act. These must be the primary concerns of the Tribunal in legislative interpretation.

38. The Tribunal applies the approach taken in Thiele v Commonwealth (1990) 22 FCR 342, which was adopted in The Commission for Safety Rehabilitation Compensation of Commonwealth Employees v Ticsay (1992) 38 FCR 181, and again applied in Whittaker v Comcare (FFC 98, No. 1099, 7/9/98). That approach is that the legislative intent and purpose is to be the overriding consideration in determining the operation of the Act and the Guide. Thus in Whittaker, the Guide was held to be relevant,

"... only in so far as it contains the criteria by reference to which Comcare must assess the degree of that employee's permanent impairment. The Guide which has this limited role, should not be allowed to limit the general legislative purpose."

The Tribunal considers, therefore, that the overriding legislative intent in this instance is the determination of the degree of permanent impairment of an individual that arises from work injuries, and that this consideration must take precedence over the literal interpretation of the phrase an injury. The Tribunal is being asked to consider the extent of the applicant's impairment due to her work related injuries, and therefore it is common sense in terms of the Act to assess her degree of whole person impairment arising from the work injuries as being the total combination of these impairments. This necessitates, therefore, the use of Table 14.1 of the Guide in order to combine these impairments as an overall degree of whole person impairment.

39. The Tribunal considers that its overriding approach with respect to legislative interpretation must be "common sense", and the Tribunal notes the High Court decision in March v Stramare (1991) 171 CLR 506, where the court directed that causation with respect to the Act was to be determined by a common sense approach, and that this approach has been followed by the Tribunal in previous matters. The Tribunal considers that in the interpretation of the Act in this case, it must also follow common sense. Common sense indicates to the Tribunal that in interpreting s.24(5) of the Act, the literal interpretation of the words an injury is not appropriate.

40. The Tribunal must consider the intention behind the inclusion of the Combined Values Chart at Table 14.1 of the Guide. The intention of this table of the Guide is similar to that expressed in the GARP, namely, to combine impairments so as to determine the overall percentage of whole person impairment. It also has the effect of ensuring that a percentage total of more than 100% is impossible, and this is its purpose.

41. The Tribunal considers that the interpretation of s.24(5) of the Act as proposed by the respondent runs contrary to common sense for two reasons.

42. Firstly, the Tribunal considers that, were it necessary to assess degree of impairment under the provisions of the Guide in respect of each separate injury, it is conceivable that a percentage greater than 100% could be obtained once all the impairments were added. It could be possible, for example, for a severely injured person to have three or four separate injuries, each resulting in multiple impairments. If Comcare were to add the impairments from separate injuries arithmetically in this scenario, it is possible to get a figure higher than 100% degree of permanent impairment, or indeed, a percentage which did not reflect the true level of impairment of the applicant. The Tribunal considers that this would be contrary to common sense.

43. Secondly, the Tribunal considers the intention of the legislation. The Tribunal believes that the overall intention of both the Act and the Guide in relation to permanent impairment is the assessment of the degree of whole person impairment. Despite the lack of an express reference to how to combine impairments arising from multiple injuries, and the inclusion of the phrase "an injury" in s.24(5), the Tribunal is satisfied that the implication in the Act and the Guide, is that an overall assessment needs to be made as to the ultimate effect of the claimant's total number of impairments arising from work related injuries upon their whole person capacity. The Tribunal is satisfied on this basis, that in keeping with the spirit of the Act and Guide in assessing degree of whole person impairment, and to avoid the possible situation of a percentage greater than 100% impairment, a literal interpretation of s.24(5) is not in keeping with a common sense approach to legislative interpretation and so finds.

44. This means that in the present application, the correct method of assessment of the initial degree of permanent impairment is to use Table 14.1 to combine all three impairments arising out of the two injuries (10% + 10% = 19% + 10% = 27%) to reach a total of 27% degree of permanent impairment. Consistent with the wording of the Act, this 27% is made up of 19% for the back and 8% for the shoulder.

45. In the present matter, therefore, the Tribunal, for the reasons outlined above, is satisfied that the correct approach in complying with s.24(5) of the Act, when there is more than one impairment, is to combine the initial impairments arising from both injuries using the Guide Table 14.1, resulting in a total whole person impairment of 27% and so finds.

Subsection 25(4)

46. Subsection 25(4) provides as follows:

"Where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10% or more."

47. In respect of s.25(4), the Tribunal has had immense difficulty in interpreting the legislation and its subordinate Guide, which both remain ambiguous and imprecise. The Tribunal has determined, therefore, that there are two possible paths of reasoning which may be followed in interpreting s.25(4), which will nevertheless arrive at the same conclusion in respect of the present application. The Tribunal therefore sets out these two possible paths.

path 1

48. In respect of s.25(4) of the Act, the Tribunal needs to consider whether or not the 10% increase needs to be in relation to either a single impairment or the overall whole person impairment. The Tribunal has found in this case, that the current percentage whole person impairment in relation to the Thoraco-Lumbar spine injury is 20%, which is a 10% increase over the initial assessment of 10%, satisfying the criteria of s.25(4) of the Act if the first approach is taken. If the second approach is taken, as the overall whole person impairment only increases by one percent (27% to 28%), no further compensation would be payable as a result of the increase.

49. The Tribunal considers that Senior Member Burton has undertaken an exhaustive review of this question in Re Clarke and Comcare [1999] AATA 76. The Tribunal in the present matter adopts the approach of Senior Member Burton, and notes in particular her comment at her paragraph 30:

"30 I conclude, therefore, that the words of the phrase "an increase in the degree of impairment" in subsection 25(4) were chosen deliberately to ensure its construction in according with its literal meaning with reference to the definition of "impairment" under section 4. In doing so, I have regard to the words of Justice Burchett in Brennan (p.561):

It would be impossible, in construing beneficial legislation, to reject the literal effect in favour of restricting the availability of the benefits. Even if ambiguous, the Act should be construed generously, and certainly its literal meaning should not be confined without very clear warrant.

Further, where two or more constructions are open, the construction most favourable to an applicant must apply (Wilson v Wilson's Tile Works Pty Limited (1960) 104 CLR 328 at 335)"

and at paragraph 35:

"35. I have no difficulty construing the phrase "increase in the degree of impairment" in subsection 25(4) to mean the increase in the degree of impairment of a body function compared with the previous degree of loss of that function. This construction allows for the payment of the same amount of compensation for the same degree of impairment irrespective of the timing of the employee's claim. ..."

50. Mr O'Donovan, on behalf of the respondent, sought to distinguish that case in his submissions, stating that it runs contrary to Brennan and that if the phrase "increase in the degree of impairment" is read to mean "increase in the degree of any one impairment" then new impairments in respect of which no assessment of degree of impairment has been made are excluded from the operation of the provision because there can be no increase in the degree of impairment where no degree of impairment has firstly been assessed.

51. The respondent submitted that to adopt the approach taken by the Tribunal in Re Clarke, would result in inequity for applicants with multiple impairments and multiple increases in those impairments of less than 10% each. The respondent submitted the example that if an applicant had three impairments arising from an injury and each increased by 5%, the applicant would not be entitled to further payments even though the total degree of impairment had increased by 10% or more.

52. The Tribunal considers this submission of the respondent to be an incorrect interpretation of what the Tribunal was saying in Re Clarke. Senior Member Burton considered that the legislation must be interpreted in a way beneficial to an applicant. This means that where a 10% increase is found to apply to one impairment, which when combined with other impairments does not result in an increase of 10% in whole person impairment, then the employee will still be found to have satisfied s.24(5). The Tribunal agrees with the view expressed by the Tribunal in Re Clarke, and considers that in the scenario posed by Mr O'Donovan, where an applicant had three increases of five percent each to three impairments from an injury, the application of the construction of the section most favourable to the applicant would result in the Tribunal finding an increase of 10% or more.

53. The Tribunal considers that, as the section is ambiguous and open to the two interpretations of either a 10% increase to degree of impairment in respect of a single injury or 10% increase to whole person impairment (i.e after the application of Table 14.1), it must utilise whichever interpretation is most favourable to the applicant.

54. This proposition can be considered from two possible scenarios. The first is the scenario where an existing impairment has worsened; and the second is where a new impairment has arisen. In the first scenario, the process is clear following Re Clarke. If there has been an increase of 10% to that impairment but not to the whole person impairment, the 10% increase must be considered against the previous level of impairment and not the whole person impairment, thereby satisfying s.25(4).

55. In the second scenario, again, two constructions of s.25(4) are possible; either the assessment of the increase to the whole person impairment invoking Table 14.1, or the increase to the degree of impairment in the new impairment, which, given no previous impairment is 0%. Where a new impairment has become apparent from the same injury, it makes sense, and is equitable to the applicant to assess it on the basis that its previous value would have been 0% (ie because it was not there). Following the above outlined course of action, the most favourable construction must be applied. If a new impairment of 10% has appeared, the most favourable construction is to regard it as being a 10% increase to its previous impairment value of 0%.

56. Another possible scenario would be if a new impairment of 5% has appeared, and two existing impairments have increased by 5% each. The most favourable course of action in that case would be therefore, to combine these impairments and assess them as against the previous level of whole person impairment, thereby satisfying s.25(4), which would otherwise not be satisfied if these impairments were only compared against their individual previous levels.

57. In the present matter therefore, as the applicant has had a 10% increase in degree of impairment to her Thoraco-Lumbar spine impairment, but not to her whole person impairment, it must adopt the interpretation of the section most favourable to the applicant, and find that as she has had a 10% increase to one impairment, she satisfies the requirements of s.25(4) of the Act.

58. Mr McKeown raised in written submissions that if a new impairment of 10% has appeared, then this satisfies s.25(4); and indeed, following the course of action above, this can be the case, if the most appropriate course of action is to consider the new impairment as against its previous degree of 0% impairment. Mr McKeown submitted that, in the present matter, if Comcare were seen to be assessing the applicant under a different impairment table to that under which she was initially assessed in the initial determination, then this would constitute a new impairment. The Tribunal notes that, in the CMO medical report (T27), reference is made to Table 9.4 in respect of the right shoulder injury. In later medical assessments, the shoulder is assessed under Table 9.1 (Dr Hopkins (Exhibit R3), Dr Davidson (T168), Dr Kitchin (Exhibit A5)). The Tribunal considers, however, that the fact that a different table is used to determine the cause of the impairment, does not, in and of itself, create a new impairment; but rather, only serves to posit a different cause of the same impairment. The Tribunal notes the introduction to Table 9.1, which is intended as an introduction to all of the Musculo-Skeletal System Tables and states (inter alia):

"These Tables can be used to assess the impairment of overall limb function from any cause."

The Tribunal considers, therefore, that the intent of these Tables is the assessment of the overall limb function and subsequent impairment to that limb. In the applicant's case, the Tribunal notes that the CMO's report (T27) considered that the impairment as assessed under Table 9.4 arose from the pain originating in the shoulder and arm. The subsequent assessments under Table 9.1 are concerned with the underlying problem resulting in that shoulder pain. Because both the CMO report and the subsequent reports are concerned with impairment which originates in the applicant's right shoulder, it cannot be considered that the assessments under Table 9.1 are for a new impairment, but rather represent a different way of assessing the same impairment. Any assessment with respect to s.25(4) would therefore need to consider the new level of assessed impairment against the original, with an impairment factor of 10% (if that was the appropriate test), in order to determine whether or not there has been a 10% increase in the degree of impairment.

59. The Tribunal considers that the idea of a "new" impairment is not meant to extend to cover the same impairment which has simply been assessed under a different table, but is intended to cover the scenario where, for example, for someone with the applicant's injuries, an impairment has subsequently arisen in a hand, wrist or leg, or in respect of the same limb if the impairment can be construed as being separate to the previously assessed one, which is not the case here.

60. In any event, in the present application the applicant satisfies s.25(4) due to the increase of 10% in her Thoraco-Lumbar impairment factor. The Tribunal is satisfied that the applicant has had an increase in the degree of impairment of her Thoraco-Lumbar Spine of 10%, and that this increase satisfies the threshold test of s.25(4) of the Act, and so finds.

path 2

61. The second path to which the Tribunal has had consideration is one which interprets the meaning and wording of s.25(4) in a different light. The first path, as outlined above, is dependent upon the assumption that s.25(4) must apply to all subsequent assessments. This approach means that if a claimant has been assessed and a payment made under s.24, and he or she later returns to Comcare because of a change in circumstances, then s.25(4) applies to that subsequent assessment. Given the difficulty in interpretation, and ambiguity of the legislation, the Tribunal considers this a big assumption to make, and finds itself asking the question that if indeed the legislators' intention was for s.25(4) to apply to all subsequent assessments made pursuant to s.24 of the Act, why should the sub-section appear in s.25 and not in s.24 of the Act?

62. The Tribunal considers that it is an equally valid interpretation of the section to consider that, as the sub-section appears in the context of the rest of s.25, the intention behind its inclusion there is that it is only intended to apply to situations where an interim/final assessment process has occurred under s.25 of the Act and that it is not intended to apply to subsequent assessments made under s.24 of the Act in cases where there has just been an assessment made pursuant to s.24 of the Act without the invocation of the s.25 interim/final assessment process.

63. Neither s.24 nor s.25 of the Act make it clear what is to be done regarding subsequent assessments, and the Tribunal considers that the language of the sections is important. Sub-section 25(4) uses the phrase "Where Comcare has made a final assessment of the degree of impairment of an employee" (Tribunal emphasis). The Tribunal considers that it remains open to interpretation as to what the phrase "final assessment" is intended to refer. The only other place in sections 24 and 25 of the Act that the word "final" appears is in s.25(3), which refers to "final determination". Thus, it is a reasonable interpretation of s.25(4) to consider that it is not intended to apply to all subsequent assessments made under either s.24 or s.25 but, rather, only where the interim/final determination sequence has been followed under s.25 of the Act.

64. Following this interpretation, where a payment has been made pursuant to s.24 of the Act and there has been no interim/final determination sequence under s.25 of the Act, and where the claimant then returns to Comcare for a subsequent assessment due to a change of circumstances, s.25(4) would not apply. What this means for such a claimant is that the considerations as to whether there has been a 10% increase in degree of impairment become irrelevant. All that would be necessary in such a case is to assess a claimant under s.24 of the Act using the Guide, and thereby obtain a degree of whole person impairment. This figure of whole person impairment could then be compared to the initial assessment under s.24 of the Act, and any further payment would be the difference between the two figures.

65. Section 24(7) of the Act is the only threshold test which remains relevant under this interpretation of the sections, and this test will always have been met for all assessments after the first. This approach is consistent with the idea of assessing whole person impairment, as it does not involve the need for distinctions to be drawn between increases to whole person impairment, on the one hand, or a single impairment, on the other, unlike the first path outlined. It is also a very equitable approach for claimants, as it means that after a determination has been made under s.24, they can be compensated accordingly if their condition or circumstances worsen. This is also consistent with the beneficial nature of the legislation.

66. What this also means is that claimants who have elected to settle earlier than those who have received an interim payment pending final assessment will not be penalised in then seeking further payment, if their condition or circumstances worsen.

67. The Tribunal has also considered that one of the intentions of s.25(4) may have been to prevent the administrative workload and expense that might result if claimants assessed under s.24 returned for subsequent assessment for minor increases of one or two percent in their whole person impairment. The Tribunal considers that in this regard, however, the provision of the Guide must be considered. The Guide's smallest increment is five percent. For a claimant to receive any additional monies on a subsequent assessment, they need to demonstrate either a worsening of at least five percent to an existing impairment, or the development of a new five percent impairment. Where this can be done, the Tribunal considers that such worsening, or new impairments cannot be considered insignificant, as for a claimant who has already reached the ten percent threshold of s.24(7), an increase or new impairment of five percent as assessed under the Guide, will represent a real and significant alteration to their overall health and wellbeing. If it can indeed be substantiated, it is something to which equity would demand, further compensation be given. It may well be the case that on occasions such as the present application, where one impairment (such as the sciatica here) has disappeared, the increase to whole person impairment may only be one or two percent. In that case, however, the disappearance of one impairment must be assessed as against the worsening or appearance of significant new impairments, such as the significant worsening of the back impairment in the present application. It is again equitable in such a scenario, that compensation be given in respect of that worsening or new impairment which will have impacted the claimant's health and wellbeing.

68. Following this approach, the applicant's initial whole person impairment of 27% needs to be compared with the degree of impairment obtained on the subsequent assessment. Any further compensation payable will be the difference between the two.

69. The next step to be taken is for an assessment of the further compensation payable to be made pursuant to s.24. A determination of her degree of permanent impairment made under the Guide in accordance with s.24 of the Act requires her new degree of Thoraco-Lumbar spine impairment (20%) to be combined with her degree of right shoulder impairment (10%), bearing in mind that the sciatica is no longer measurable. This results in a degree of whole person impairment of 28%. As the correct initial determination was 27%, the applicant is therefore entitled to further compensation for the increase of 1% in her degree of whole person impairment.

conclusion

70. The Tribunal is satisfied that the first path represents sound legal reasoning and adopts it for the purposes of the present matter. As the applicant has had an increase of 10% in degree of impairment of her Thoraco-Lumbar spine injury, the applicant satisfies s.25(4) of the Act, and the Tribunal so finds.

71. This means that it is unnecessary to consider the correctness of the second path, but the Tribunal considers that it raises some interesting and important issues which may need to be addressed sometime in the future. The Tribunal notes in passing that the end result of either path is that the applicant has satisfied the requirements of the Act and is entitled to further compensation.

72. In making this finding, the Tribunal is mindful of the fact that, in practical terms, the applicant has actually had a reduction in the amount of compensation she receives, given that Comcare has in fact paid her for 29% impairment, and that a debt owed to Comcare by the applicant representing one percent of compensation therefore arises. Given that the payment for 29% impairment resulted from Comcare's incorrect method of assessment, the Tribunal considers that it would be unreasonable for Comcare to penalise the applicant for its mistake in interpreting the Act. The Tribunal would therefore urge Comcare to exercise its discretion under s.114D of the Act and waive this resultant debt. The Tribunal considers that this would be in keeping with the spirit of equity and fairness, and with the nature of the application of beneficial legislation in circumstances where the applicant has real and genuine suffering as a result of her injuries.

decision

73. For the reasons above and pursuant to s.43 of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision under review and remits the matter to the respondent for assessment with the following directions:

(a) that the applicant's degree of permanent impairment as amended from the initial determination to a degree of 29% on 23 December 1998 (Exhibit R5) is to be further amended to be a degree of 27%;

(b) that the applicant has an increase in the degree of permanent impairment to her thoraco-lumbar spine of 10% for the purposes of s.25(4) of the Safety Rehabilitation and Compensation Act 1988 (the Act) and otherwise satisfies the requirements of ss.24 and 25 of the Act;

(c) that the applicant has a degree of whole person impairment as assessed pursuant to s.24 of the Act in accordance with the Guide of 28%;

(d) that the applicant is entitled to further compensation in an amount of 1% of the maximum amount pursuant to s.24 of the Act being the increase in the degree of compensable whole-person impairment -- the amount actually payable, as determined by Comcare in accordance with these directions, will be the difference, if any, between that to which the Applicant is entitled and that which has already been paid;

(e) that the amount payable pursuant to s.27 of the Act is to be recalculated using the degrees of impairment in (a) and (c) above.

74. As the result of these directions, as the Tribunal has made a decision in substitution for the reviewable decision that is more favourable to the claimant than the reviewable decision, in that the applicant has had an increase in her compensable degree of impairment, the Tribunal, pursuant to sub-s.67(8) of the Safety, Rehabilitation and Compensation Act 1988, orders that the respondent pay the applicant's costs. In the absence of agreement between the parties, costs are to be taxed by a District Registrar or Deputy District Registrar and liberty to apply is reserved to both parties.

75. The Tribunal strongly recommends that as the amount actually due to the applicant will be one percent less than the amount already received, Comcare exercise its discretion pursuant to s.114D of the Act, and waive the resultant debt owing to Comcare.

I certify that the 115 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member J.A. Kiosoglous MBE, Dr M.D. Miller, Member, Air Marshal I.B. Gration, Member

Signed: .....................................................................................

Associate

Date/s of Hearing 4 & 5/2/1999

Date of Decision

Counsel for the Applicant Mr C. McKeown

Solicitor for Applicant Gary Robb & Associates

Counsel for the Respondent Mr D. O'Donovan

Solicitor for the Respondent Australian Government Solicitor