Kulathayendran and Australian Postal Corporation [2002] AATA 116 (25 February 2002)

Last Updated: 25 February 2002

DECISIONS AND REASONS FOR DECISIONS [2002] AATA 116

ADMINISTRATIVE APPEALS TRIBUNAL) Nº V2000/199 Nº V2000/544

Nº V2000/1262

GENERAL ADMINISTRATIVE DIVISION) Nº V2001/380

Re: NADARAJAMUTHALI KULATHAYENDRAN

Applicant

And: AUSTRALIAN POSTAL CORPORATION

Respondent

DECISIONS

Tribunal: Mr B.H. Pascoe, Senior Member

Dr P. Fricker, Member

Date: 25 February 2002

Place: Melbourne

Decisions: The decisions under review in each of the four applications are affirmed.

(Sgd B.H. Pascoe)

Senior Member

COMPENSATION -- aggravation of underlying lumbar spine condition - whether effect of aggravation ceased - whether failure to undertake rehabilitation programme - whether reasonable excuse - whether psychological injury - whether harassment - whether work-related

Safety, Rehabilitation and Compensation Act 1988

Re Chowdhary and Comcare (AAT 13003, 22 June 1988)

REASONS FOR DECISIONS

Mr B.H. Pascoe, Senior Member

Dr P. Fricker, Member

1. These are applications to review five reviewable decisions of the respondent dated 22 December 1999, 5 January 2000, 5 May 2000, 18 September 2000 and 8 February 2001. The decisions related to claims for compensation made by the applicant for back injury and stress and depression as being work-related.

2. At the hearing the applicant, Mr Kulathayendran, was represented by Mr G. Wicks, of counsel, and the respondent by Mr M. Croyle, of counsel. Evidence was given by the applicant, Dr A. Asthana, a general practitioner, Mr P. Kudelka, an orthopaedic surgeon, Mr K. Brearley, a general surgeon, Dr D. Parekh, a consultant psychiatrist, Dr C. Thomas, a rehabilitation consultant, Professor S. Davis, a neurologist, Dr S. Tunaley, a general practitioner, Mr D. Billett, an orthopaedic surgeon, Mr K. Kanagaratnam, a shift manager with the respondent and Mr J Waters, facility manager with the respondent. In addition, the Tribunal had the documents provided by the respondent pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (T1-T116). The following additional documents were tendered on behalf of the applicant:

Exh A4 Report of Dr Sherry, a rehabilitation pain management specialist

Exh A6 Report of Dr Roczniok, a general practitioner

Exh A7 Report of Mr Kahn, an orthopaedic surgeon

Exh A10 Report of Dr Stark, a consultant neurologist

Exh A11 Report of Mr Bedi, a physiotherapist

The respondent tendered the following additional documents:

Exhs R1, R11, R12, R13 Reports of Dr Billett, an orthopaedic surgeon

Exh R2 Report of Dr Jenkins, a consultant psychiatrist

Exh R3 Various documents relating to return to work programmes

Exh R4 Notes of Mr Marwede, human resources manager with the respondent

Exh R5 Three video tapes of the applicant

Exh R6 Clinical notes of Dr Asthana

Exh R8 Clinical notes of Dr Roczniok

Exh R9 Rehabilitation Assessment by KTM Consultancy Services Pty Ltd

Exh R10 Rehabilitation Progress Report by KTM Consultancy Services Pty Ltd

3. This matter has a long history. Mr Kulathayendran submitted a claim for compensation for back pain on 23 May 1996 and liability was accepted for the period 17 May to 21 May 1996. A further claim for "disc injury and spine" was submitted on 28 June 1999 and liability for incapacity and medical expenses was accepted for various periods between 11 June and 12 October 1999 for "soft tissue injury lumbar spine". In October 1999 the respondent determined that it was not liable for incapacity payments from 29 August 1999 and that the applicant should commence a rehabilitation programme. Reviewable decisions of 22 December 1999 and 5 January 2000 confirmed determinations to suspend compensation payments for non-adherence to the rehabilitation programme and return to work programme. On 5 May 2000 the respondent affirmed a determination of 23 December 1999 that there was no liability to pay compensation for "temporary aggravation" pre-existing lumbar spine degeneration" from 23 December 1999. On 10 July 2000, Mr Kulathayendran lodged a claim for "severe mental stress and depression" arising from alleged harassment as a result of his incapacity from back problems. Denial of liability was affirmed in the decision of 18 September 2000. On 9 November 2000, Mr Kulathayendran submitted another claim for "prolapsed intervertebral disc" suffered in May 1996 and, by the decision of 8 February 2001, the respondent affirmed a decision denying liability beyond that previously paid.

4. Mr Kulathayendran was born in Sri Lanka on 25 August 1954 and emigrated to Australia in 1988. He had completed a Bachelor of Science degree in Sri Lanka and obtained a post graduate degree in Information Technology at Swinburne University after arrival in Australia. At the time of the hearing he was in the process of completing a Masters Degree in Information Technology at Victoria University of Technology. He had been a schoolteacher in Sri Lanka. After working for six months at James Hardie Ltd and being unemployed for two years, he commenced work with Australian Postal Corporation in September 1993. He worked night shift primarily at the State Parcels Centre.

5. Mr Kulathayendran said that, on 15 May 1996 at about 1:00 a.m., he felt pain in his back when operating a forklift and lifting a heavy mailbag. He said that he worked until 3.00 a.m. but, after retiring, could not get out of bed. He visited the doctor and had some days off work. He thought that he would return to normal full-time work thereafter although suffering severe back pain. He said that, as he needed the money with two children and an epileptic wife, he had to keep working. He took some time of as sick leave and regularly took panadol or panadeine to relieve the pain. He saw doctors occasionally. He said that, on 11 June 1999, he experienced severe low back pain when consolidating parcels in a Unit Loading Device ("ULD"). He was unable to get out of bed the next day and rang his employer who arranged for a doctor to visit. Mr Kulathayendran said that he was off work until August with treatment by his general practitioner, Dr Asthana. In July 1999 he was referred to an orthopaedic surgeon, Mr Kahn and was sent for an MRI. Mr Khan, in turn, referred him to Dr Thomas and Dr Stark. He said that Mr Khan told him to limit his work to office work and not to drive a car. In a return to work agreement of 16 August 1999, he agreed to learn timekeeping, which he said he was happy to do. However, Mr Kulathayendran said that, when he arrived at work there was no chair and he was told to sit outside with nothing to do. He reported the problem but nothing happened and he sat in an area used for staff breaks with nothing to do for nearly a month. During this time, the respondent paid for a taxi to bring him to and from the workplace. After one month, the respondent stopped paying for taxis and he commenced travel by train. He said that this exacerbated his pain and, on 5 October 1999, he fell while on the train and was off work until December. He said that vibration of car travel caused leg problems and Dr Asthana had said not to drive if concerned.

6. Mr Kulathayendran said that he did not sign a return to work agreement, prepared on 22 October 1999 as it had been arranged by Dr Tunaley who was not his own general practitioner and he relied on Dr Asthana. For the same reason, he refused to sign a second return to work agreement prepared on 19 November 1999. Both agreements included restrictions on bending and lifting more than 5 kilograms, commencing on four hours per day, increasing by one hour per day each subsequent week until normal pre-injury hours were obtained and driving to and from work with a break in his trip if required. Mr Kulathayendran said that an earlier return to work agreement of 14 September 1999 was unclear as to his duties. He was required to sort boxes on the floor but the problems caused by bending made the work difficult for him. As a result of non-compliance with the October return to work agreement, compensation benefits were suspended by the respondent.

7. On 20 December 1999, Mr Kulathayendran signed another return to work agreement with similar provisions of the October and November agreements with duties specified as

. . .

- to complete sorting duties with a 5kg weight restriction

- Not to bend into ULD's

- to sort for 15 minutes then alternate with 5 minutes administrative duties at the line haul dock.

Mr Kulathayendran maintained that he was required to stand for longer than 15 minutes, was not provided with seated duties, was asked to do sorting duties only and, after two days, experienced severe pain. On 23 December 1999 a further return to work agreement was signed requiring him to do seated work for three hours performing ad hoc administrative duties. Mr Kulathayendran said that this involved data entry work for four weeks with a break every hour. However, he said that after the four weeks he was told there were no more seated jobs and to sit on the forklift. This was parked in the loading area near to the toilets with 20 to 30 people working around him. He said he did this for nearly one month performing no work. He said he was subject to comments and harassment by passing employees. He reported this to Mr Waters, the facility manager, but no action was taken.

8. On 7 March 2000 another return to work agreement provided for four hours per day increasing by one hour each two weeks on administrative duties. Mr Kulathayendran said that this involved checking missorts. He said that he did not increase his hours as instructed by Dr Asthana and, again, spent part of his time sitting on a forklift doing no work. Another agreement of 18 April 2000 provided for duties on a QUIP scale which weighs parcels and prints labels. His job was to press the "print" button while seated. He said he could not sit for long hours and suffered mentally because of comments from other staff about being the only one with a sitting job. He complained of the harassment to no avail. He was told that there was no other job available. Mr Kulathayendran said that he could not sleep, lost weight and could not concentrate on his studies. He ceased work in June 2000 and said that his back improved after so ceasing.

9. Mr Kulathayendran returned to work with the respondent in April 2001. He works for 30 minutes standing and sorting and 30 minutes seated at the QUIP seat. he said that the sorting involves twisting and bending which causes him problems but the QUIP scale produces no problems. He maintained that, prior to returning to work, he could walk for 1 hour but now can only manage 15 minutes at a time. He said that he was still having difficulty mentally. He has applied for other positions with the respondent, particularly in information technology without success. He said that the back and leg pain was not as severe currently as it was in June 1999.

10. Mr Kulathayendran said that there was no problem in arranging study and attendance at the university prior to June 1999. For his Masters degree, he prepares his work at home but uses the Victorian University of Technology computers and has discussions with his thesis supervisor. The thesis of some 100 pages was to be presented on 8 October 2001. He accepted that had regularly sought work in information technology both before and after 1999. He maintained that, prior to 1999, he had enjoyed his job at the parcels centres with good money and working environment. He said that he found a job in Melbourne Central but was told by the Human Resources Manager that it would involve too much heavy lifting.

11. Dr Asthana has been the treating general practitioner for Mr Kulathayendran since September 1997. His clinical notes recorded complaints of back pain since 2 February 1998 and of depression since August 1999. Dr Asthana thought that Australia Post were pushing Mr Kulathayendran too hard to return to normal duties. He was not involved in any of the return to work programmes, nor made any personal check of the arrangements or duties proposed. Dr Asthana defended the paucity of notes showing any significant physical examination of Mr Kulathayendran and said that he relied on the history given by the patient and accepted when told that the pain was too much to perform work duties. It was noted that many entries in the doctor's notes indicate that many medical certificates for time off work were given with very limited information. For example, an entry in May 1998 stated "Did not go to work on Tuesday - felt unwell - cert 1/7" and on 23 February 1999 "Pain L-spine - 3 days" and in March 1999 "Had headache yesterday - could not go to work - Cert 1/7". The notes appear to show that Dr Asthana readily provided certificates on the basis of what his patient told him with little or no objective examination.

12. Mr Kudelka examined Mr Kulathayendran on 7 March 2000 and provided a report dated 9 March 2000. He said that the X-rays and MRI of the lumbar spine showed multilevel intervertebral disc degeneration with canal stenosis at L1/2, L2/3 and L4/5. Mr Kulathayendran had made no complaint to him of leg problems but it would be likely that the leg would be affected by the canal stenosis causing intermittent claudication and tiredness. Mr Kudelka was of the opinion that the condition was a work aggravation of pre-existing constitutional degenerative changes in the lumbar spine. He did not agree that the effect of the aggravation was temporary although accepted that symptoms would vary from time to time. He believed that Mr Kulathayendran could work in a job, which was not physically demanding and did not involve bending or heavy lifting.

13. Mr Brearley examined Mr Kulathayendran on 14 March 2000 and provided a report dated the same day. His report concluded that there was multi-level intervertebral disc degeneration with canal stenosis at L1/2, L2/3 and L4/5 with no actual focal disc protrusion seen. Mr Brearley considered that injuries at work either injured a disc or aggravated a pre-existing degenerative condition and the effect had not ceased but was ongoing. Although he could not detect any significant issue involving the leg, he thought it possible that there was some nerve root irritation which was not able to be detected radiologically. He accepted that the history given by Mr Kulathayendran was an essential part of his diagnosis. He did not believe that it was likely that there could be a return to pre-injury work but would need lighter duties, with very limited standing and a gradual increase in hours.

14. Dr Parekh saw Mr Kulathayendran initially on 27 April 2000 on referral from Dr Asthana and had seen him some seven times since. He diagnosed moderately severe depression and reactive anxiety state which was secondary to his work situation and back pain. Dr Parekh believed that the psychiatric problem was likely to continue as long as Mr Kulathayendran was placed in a situation which could aggravate his orthopaedic problems and where his complaint of harassment was not adequately addressed. He accepted that Mr Kulathayendran suffered from paranoia and it was possible that he misinterpreted the intentions of some people and had problems with people noticing him when not working as others did. Dr Parekh said that Mr Kulathayendran felt that he wanted to return to Sri Lanka as things were not working for him here, he could not obtain the type of job which he wanted and feared that people ". . . will run him down". However, he felt it likely that his family would not agree to return. Dr Parekh believed that the paranoia commenced from remarks made to Mr Kulathayendran and not prior.

15. Dr Thomas saw Mr Kulathayendran on 23 September 1999 and 10 November 1999 and provided a report dated 6 June 2001. He considered that the MRI of the lumbar spine showed ". . . quite an impressive multi-level disc degeneration with spinal canal stenosis". He believed

. . . that the advanced degree of degeneration would make it possible for this man to have sustained an injury to his L3 or L4 nerve root on the right hand side, as they exited through the exit foramina.

and that

. . .

The incidents at work were enough to herald the onset of his back and right leg pain and therefore work was and remains a significant contributing factor to his current condition.

In his oral evidence, Dr Thomas said that it was likely that Mr Kulathayendran's psychological problems complicated his recovery but did not overlay a genuine physical back problem.

16. Professor Davis saw Mr Kulathayendran in August 1999 and August 2000 on referral from Dr Asthana. He provided a report dated 28 May 2001 in which he expressed the opinion that ". . . work-related strains have exacerbated or accelerated pre-existing degenerative changes". Professor Davis considered the problem as primarily low back pain with a possible component of upper lumbar nerve root pain in the right thigh although, without any objective signs of nerve root compression, the pain was likely to be mild. He considered that Mr Kulathayendran had capacity to work provided that there were appropriate rest breaks and limits on lifting and bending. He believed that light work would not worsen the condition. Professor Davis said that, in his experience, low back pain syndrome generally carries some psychological component.

17. Dr Tunaley practises in an industrial clinic and acts regularly for the respondent in treating or assessing employees. He saw Mr Kulathayendran on several occasions between 18 June 1999 and July 2001. He did not treat Mr Kulathayendran but saw him for assessment and return to work programmes. He said that he had tried to speak with Dr Asthana on several occasions but received no reply to messages left. He believed that, after 21 October 1999, Mr Kulathayendran was fit for restricted duties. Dr Tunaley believed that it was best, generally, for a worker in the applicant's position to continue to work with appropriate modifications to his duties and that such modifications should involve the treating general practitioner. He was of the view that Mr Kulathayendran aggravated a pre-existing degenerative condition but any continuing pain beyond late 1999 was due to that underlying condition and not the aggravation.

18. Mr Billett examined Mr Kulathayendran on 5 August 1999 and reported to the respondent on the same day. Mr Billett re-examined Mr Kulathayendran and provided a report on 3 August 2000. He was of the opinion that there were constitutional, age related degenerative changes in the lumbar spine, which had been made symptomatic by work-related incidents in 1996 and 1999. However, he believed that the effects of the aggravation had ceased and any current symptoms were attributable to the underlying constitutional degenerative changes. He was of the opinion that Mr Kulathayendran was capable of returning to work on a graduated basis with restrictions on lifting more than 10-12 kilograms, control of repetitive bending and the ability to sit or stand as the need arises. In his report Mr Billett said:

. . .

There were dichotomies during the assessment. Quite surprisingly, while complaining of pain Mr Kulathayendran was laughing, which I found to be a rather odd presentation. Mr Kulathayendran deferred flexion and, yet, he was seated in the chair quite comfortably for over an hour without any visible discomfort. The straight leg raising reached 80º and he sat up from the supine to the erect position without any discomfort noted, with his knees fully extended.

These activities would indicate that Mr Kulathayendran is capable of full flexion and I would thus have to conclude that he was voluntarily restricting flexion.

and:

. . . The general impression I gained was that Mr Kulathayendran was trying to portray himself as being severely incapacitated.

In three subsequent letters in answer to questions from the respondent, Mr Billett said that he disagreed with Dr Asthana that Mr Kulathayendran was unfit for all work duties, considered him capable of standing, walking and driving his car and that the return to work programme of 19 November 1999 was appropriate. In his oral evidence, Mr Billett was firm in his view that, in a condition such as that of Mr Kulathayendran, the effect of an aggravation ceases after a period and, failing further aggravation, the person returns to his pre-aggravation position. Any subsequent pain is a result of that underlying degenerative condition.

19. Mr Kanagaratnam has been with the respondent for 22 years. He was the direct supervisor of Mr Kulathayendran. He denied any knowledge of harassment and denied making insulting comments. The only direct complaint of discrimination he was aware of was when Mr Kulathayendran believed that he had been racially discriminated against by being made to wait when he took a pair of safety shoes provided by the respondent to the factory for replacement as they did not fit. Mr Kanagaratnam said that he was aware of a rehabilitation programme for Mr Kulathayendran but was not aware of any criticism that appropriate duties were not provided. He was not aware of any complaints of back pain between 1996 and 1999.

20. Mr Waters has been the facility manager at State Parcels Centre since September 1998. He remembered Mr Kulathayendran from soon after commencing his position as, being interested in info technology, he recalled Mr Kulathayendran raised the question of possibilities of work in that area. He said that, from January 2000, there were allegations of discrimination and harassment. He sought details but Mr Kulathayendran would not supply names other than of two staff members who had apologised. Mr Waters requested a full investigation into discrimination or harassment at the Centre but no specific case was found involving Mr Kulathayendran. Mr Waters was aware of the attempts to resolve a return to work programme and said that Mr Kulathayendran was vehement in not wanting a seated job at the QUIP scales or in sorting but made a number of requests for administration or information technology positions. He did not display any interest in positions outside the State Parcels Centre. Mr Waters believed that Mr Kulathayendran had shown a clear unwillingness to participate in a return to work programme. He said that, in August 1999, Mr Kulathayendran initially refused to sign a return to work agreement as pain would not allow him to perform the required duties but, after five-minute discussion with a union representative, he came back and agreed with the programme. Mr Waters denied ever obstructing assistance to Mr Kulathayendran and believed he had facilitated every attempt to get him back to work without success.

21. The respondent tendered three videotapes taken between 16 June 2000 and 4 August 2001. These showed Mr Kulathayendran entering a shopping centre by car, examining books in a book store, driving from the shopping centre, filling his car with petrol, standing, walking and driving. Apart from indicating an apparent ability to walk, bend, squat while looking at lower book shelves and drive his car, the videotapes were not seen as providing any conclusive evidence of a degree of incapacity.

22. It was submitted for the applicant that there were three issues involved. These were whether the work-related injury to the back had ceased to cause incapacity, whether the applicant had refused or failed, without reasonable excuse, to undertake a rehabilitation and return to work programme and whether the applicant suffered from a work-related psychological injury. In relation to the first issue, it was said that Mr Kulathayendran had a clearly demonstrated disc injury, and whether or not he would have suffered back pain from an underlying constitutional condition, the aggravation occurred at work causing a permanent change and ongoing incapacity. In relation to the second issue, it was submitted that Mr Kulathayendran had relied on the advice of his general practitioner which was reasonable and, at the time that he was requested to return to work, he had total incapacity certificates from that general practitioner. The psychological injury was said to both have a discrete existence as a result of workplace harassment and be a sequelae to his physical injury. Mr Wicks was critical of the respondent in not supplying a report of Mr Billett dated 14 September 2000 (exh R13). This report emerged during the hearing with a handwritten note stapled to it stating "not to be served". The respondent had been unable to explain the reason for the report not being served but submitted that it simply affirmed Mr Billett's views in his reports of 5 August 1999 and 3 August 2000.

23. For the respondent, it was submitted that any physical incapacity of the applicant beyond the period for which liability had been accepted was the result of underlying constitutional problems and any work-related injury had caused a temporary aggravation, the effect of which had ceased. It was said that Mr Kulathayendran had made no real effort to participate in the many return to work programmes and that Dr Asthana, as his general practitioner, had simply provided certificates based on the statements of his patient rather than providing advice. It was submitted that there was no support for the allegations of harassment or any psychological work-related injury.

24. All of the medical evidence was that Mr Kulathayendran had significant lumbar disc degeneration and that work-related incidents had aggravated that pre-existing condition. Where it differed was whether the effect of that aggravation had ceased and any ongoing back problems were related to the pre-existing condition. Mr Billett and Dr Tunaley were of the view that it had whereas Mr Kudelka and Mr Brearley were of the view that the effect of the aggravation had not ceased. However there was consistency in the view, even Dr Asthana with some reluctance agreed, that Mr Kulathayendran was capable of working full time with appropriate restrictions on bending and lifting. It was noted by the Tribunal that, notwithstanding his protestation about his ability to remain seated for any prolonged period, Mr Kulathayendran sat with no apparent discomfort for many hours in the witness box during his prolonged examination and cross-examination. While the videotapes were inconclusive they supported the impression that he was capable of doing much more without apparent difficulty than he was prepared to admit. The respondent noted that he had been able to complete a thesis for his Masters degree, which would have involved considerable time before a computer and keyboard. Mr Billett felt that Mr Kulathayendran was exaggerating his symptoms and this was a clear impression given to the Tribunal. In his report to the respondent dated 21 October 1999, Dr Tunaley stated that Mr Kulathayendran "displayed many functional features", noted inconsistencies in the examination and "demonstrated an over-exaggeration to very gentle palpation". Drs Brearley and Davis accepted that their opinions were based on the history given to them by Mr Kalathayendran of unremitting pain since May 1996. However there is no evidence of complaints of pain in the years between 1996 and 1999 and, if this history was incorrect, it was accepted that the effect of the 1996 aggravation may well have ceased in that period.

25. The question for the Tribunal to determine in this case is not so much of whether the applicant suffered an injury or aggravation but whether the result is an incapacity for work. Many attempts were made to have him return to work on a graduated basis with restricted duties. We are satisfied on the evidence that Mr Kulathayendran was capable of carrying out such duties and that he refused and failed, without reasonable excuse, to undertake a rehabilitation programme provided for him. We do not accept that his refusal was based on advice from his general practitioner but rather his general practitioner supported, without adequate reasons, the conscious decision not to comply with the programme. The evidence clearly indicated that he was capable of performing the restricted duties but it seems likely that Mr Kulathayendran was using his back problems as a lever towards obtaining work in Information Technology, a skill for which he had completed tertiary education and qualifications.

26. In relation to his claim for "mental stress and depression", we are not satisfied that this was an injury arising out of, or in the course of, his employment or materially contributed to by his employment. We are not satisfied that his claims of harassment were substantiated by the evidence sufficiently to have produced a psychological injury. Dr Parekh considered that he suffered from paranoia and it was clear that his concern on failure to obtain a position utilising his information technology skills, his wish to return to Sri Lanka and his deliberate refusal to undertake an appropriate return to work programme were more relevant to his mental stress and depression. To the extent that there was workplace harassment we find that this was minor, of short duration and any contribution to his psychological condition was temporary and has ceased.

27. As a consequence of our findings, the reviewable decision of 18 September 2000 denying liability for "severe mental stress and depression" should be affirmed. Further, the decisions of 22 December 1999 and 5 January 2000 suspending compensation for non-adherence to the rehabilitation and return to work programmes should be affirmed. The circumstances here are similar to those in Re Chowdhary and Comcare (AAT 13003, 22 June 1988).

28. The question of whether the reviewable decisions of 5 May 2000 and 8 February 2001 should be affirmed depends on whether it can be said that the effect of aggravations of 23 May 1996 and 11 June 1999 had ceased by 23 December 1999. As indicated earlier, medical opinions conflict on whether any ongoing back and leg problems are the result of the underlying degenerative condition or the aggravations. On balance and preferring the opinion of Mr Billett and Dr Tunaley together with our view that Mr Kulathayendran was exaggerating his symptoms for the purpose of obtaining a different and preferred position, we find that the effect of the aggravation had ceased to limit his ability to undertake suitable employment which was made available to him. Any ongoing problems were caused by a mixture of Mr Kulathayendran personal motives and his underlying constitutional degenerative condition.

29. It follows that these decisions should be affirmed also.

I certify that the 29 preceding paragraphs are a true copy of the reasons for the decision herein of Mr. B.H. Pascoe, Senior Member and Dr. P. Fricker, Member

Signed: Grace Carney

Personal Assistant

Date/s of Hearing 7 June 2001 and 22, 23 and 24 August 2001

Date of Decision 25 February 2002

Counsel for the Applicant Mr. G. Wicks

Solicitor for the Applicant John Dellios & Associates

Counsel for the Respondent Mr. M. Croyle

Solicitor for the Respondent Australian Government Solicitor