Merry and Department of Veterans' Affairs [2002] AATA 409 (30 May 2002)

Last Updated: 13 June 2002

DECISION AND REASONS FOR DECISION [2002] AATA 409

ADMINISTRATIVE APPEALS TRIBUNAL )

) No N2001/548

GENERAL ADMINISTRATIVE DIVISION )

Re SHAYNE ALLEN MERRY

Applicant

And DEPARTMENT OF VETERANS' AFFAIRS

Respondent

DECISION

Tribunal Mr M J Sassella, Senior Member Dr J D Campbell, Member

Date 30 May 2002

Place Sydney

Decision The tribunal affirms the decision under review. The applicant is entitled to no costs associated with this application.

[SGD] M J SASSELLA

Senior Member

CATCHWORDS

WORKERS' COMPENSATION - military compensation and rehabilitation scheme - pre-existing shoulder injury - whether aggravated during employment on national service in army - period of service of 52 days - employee able to engage in heavy work before and after army employment - held no aggravation of pre-existing injury

Safety, Rehabilitation and Compensation Act 1988 ss 123A, 124(1), (1A), (2)(c), (8)(b)(iii), (9)(c).

Compensation (Commonwealth Government Employees) Act 1971 ss 5(1) ("injury"), 27(1), 37(1), 53, 54.

Casarotto v Australian Postal Corporation (1989) 86 ALR 399.

REASONS FOR DECISION

30 May 2002 Mr M J Sassella, Senior Member Dr J D Campbell, Member

HISTORY OF APPLICATION

1. On 20 August 1999 Mr Shayne Allen Merry ("the applicant") lodged with the Department of Veterans' Affairs ("the DVA") ("the respondent") a claim (T4) under the Military Compensation and Rehabilitation Scheme ("the MCRS") in respect of "injury to right shoulder, injury to right scapula and clavicle" which allegedly occurred "around October 1972". The injury was said not to have arisen from one specific incident. The injury was said to have been reported to the supervisor. Mr Merry had had a similar injury to his right shoulder prior to entry into service. He said that he had been cleared medically for national service. He said he had never claimed compensation before for such an injury or illness. The cause of the injury was described as "nature and conditions of employment. Carrying heavy artillery and heavy bags and participate [sic] in strenuous physical activities guns. Guns old with poor recoil absorption". He said that there were witnesses. T4 was signed on 8 April 1999.

2. On 16 November 1999 a delegate within the Department of Defence (the agency with the then responsibility for MCRS claims) wrote (T7) seeking further particulars. A follow-up letter was sent on 2 February 2000 (T8). On 9 February 2000 Mr Merry's solicitor wrote (T9) to say that he needed to obtain records from treating doctors "but due to the passage of time this may prove difficult".

3. On 1 August 2000 a delegate determined (T10) that there was no liability to pay Mr Merry compensation. The only evidence supplied by Mr Merry had been a report by general practitioner Dr P Jeffery dated 26 June 1999 (T5), written some 26 years after the injury occurred. The writer said, "I am unable to accept his statement that the injury occurred whilst Mr Merry was in the military without some form of evidence to support it". There had been no evidence supplied, said the delegate, that the injury occurred because of his firing of a faulty rifle during the two months he was in the military. Nor, it was said, was there documentation to show that "it was not sustained due to the labouring activities that was [sic] required during his employment prior to and after his employment in the military".

"Mr Merry's employment involved very physical work that involved the shoulder area as it included digging with a pick and shovel, using a jack hammer, pulling lawn levels, unloading 40kg bags etc."

4. On 29 August 2000 Mr Merry wrote (T11) seeking reconsideration. He wrote that he had applied for army medical documents, that statements in T10 "had shown some incorrect and out of sequence statements of events", and that:

"I was reviewed by the medical doctor for the army, at the first medical and then sent to a specialist at Macquarie Street Sydney before being drafted into the Arm [sic] Forces. These medical documents do not appear in your decision papers used for your assessment. They found me fit at the time to be drafted. I am now applying for these documents to be supplied to me."

reviewable decision

5. On 28 March 2001 the Manager Reconsiderations in the Military Compensation and Rehabilitation Service within DVA affirmed the decision in T10. She pointed out that the claim was correctly considered under the Act in force in 1972, the Compensation (Commonwealth Government Employees) Act 1971 ("the 1971 Act"). She noted that Mr Merry was discharged from the army on 17 November 1972 and that he had lodged his claim on 20 August 1999. Referring to the notification requirements in ss 53 and 54 of the 1971 Act, the decision-maker found no evidence of any reporting of the alleged injury within the mandated time of a six months maximum. There had been no explanation provided for the delay in claiming. Therefore, the clauses in ss 53 and 54 permitting exemption from the time limits in some situations had no application. There was also no evidence on file to indicate that Mr Merry's right shoulder injury to the scapula and clavicle arose out of or in the course of his employment with the army. Additionally,

"After a lapse of over 26 years since your discharge, it is my view that the Commonwealth has been prejudiced by your failure to lodge a claim within the time prescribed, for if it had been, the claim could have been fully investigated at the time, and appropriate tests could have been carried out."

"...

"A medical report from Dr Peter Jeffery dated 26 June 1999 states that you developed right shoulder symptoms in 1972, related to repeated injuries from use of your rifle while in the National Service. You reported that your shoulder condition improved, then gradually worsened over the past few years.

"Dr Jeffery concluded you suffered arthritis of the acromioclavicular joint, bursitis of the sub-acromial bursa and multiple tendon injuries as a result of repeated trauma whilst in the Army.

"In my view, Dr Jeffery's report and subsequent conclusions cannot be accepted. There is clearly an absence of medical evidence to support the history Dr Jeffery relied upon. Further, you did not consult Dr Jeffery until 26 years after your alleged shoulder injury occurred.

"You have provided details of your work history. You reported undertaking labouring duties on a regular basis both before and after your service in the military. Such duties included digging, pulling and unloading bags of 40kg.

"Dr Jeffery has not explained why he considers your shoulder condition is attributable to your employment with the Military. Further, he has not stated why your condition is not related to labouring duties undertaken before and after your discharge from the Army.

"..."

6. On 27 April 2001 Mr Merry wrote to the Administrative Appeals Tribunal ("the tribunal") (T13) in a manner suggesting he was applying for a review of the decision in T12).

"I am writing to you to ask for extension of time to allow me the time to obtain medical records, from the military records section, I have asked for complete records of my army service and the circumstances leading to my intake to the Army. They were as follows: that I went for the first medical in 1972, then deferred and sent to a medical specialist who declared me medically fit to do army service in 1972, after a time in service. Using the SLR rifle which every time I shoot it, my shoulder was damaged because of the low gas setting required to operate the rifle and the imposed of heavy physical work outs. I was referred by a army doctor to Dr Nichols in Wagga Wagga who found that the service had injured my shoulder and that discharge was then carried out by the army medically unfit for service. I have also make phone contact with the doctor that the army referred me to in 1972. I have written to Doctor Nichols of Wagga Wagga, this will take some time for these communications to be returned to me. I feel that when this information is forth coming my claim would become clear to all.

"I have included a photo copy of the decision by Susan Baynes the manager reconsideration's of Military Compensation and Rehabilitation Service Department of veterans Affairs, you will see she writes that the decision is based that I did not submit a claim within six months of the injury. When I was discharged from the service we were made to sign a document to say we would not claim compensation this I was only informed in 1999 was not binding on me this paperwork should be available to Susan Baynes, if not why not. The decision is based on information she does not have at this time, why does officer with resources of the government department ask me to supply paperwork that is with the power to obtain from her co workers of the government. All am asking for is the correct information to make the right decision."

RELEVANT LEGISLATION

7. The following provisions of the Safety, Rehabilitation and Compensation Act 1988 ("the Act") are relevant: ss 123A, 124(1), (1A), (2)(c), (8)(b)(iii), (9)(c).

SAFETY, REHABILITATION AND COMPENSATION ACT 1988

Injuries suffered before the commencing day

123A. A reference in this Part to an injury suffered before the commencing day is a reference to an injury within the meaning of whichever of the 1912 Act, the 1930 Act or the 1971 Act was in force when the injury was suffered, as that Act was then in force.

Application of Act to pre-existing injuries

124. (1) Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A) Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

(2) A person is not entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was not payable in respect of that injury, loss or damage:

...

(c) in any other case-under the 1971 Act as in force when the injury, loss or damage was suffered.

...

(8) A person is not entitled to compensation under subsection 16 (1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, if:

...

(b) an amount was not payable in respect of that cost or expenditure:

...

(iii) in any other case-under the 1971 Act as in force when the liability arose or the expenditure was incurred.

(9) The amount of the compensation (if any) that is, by virtue of this section, payable under subsection 16 (1) or (6) or section 18 in respect of any cost, the liability to pay which arose before the commencing day, or of any expenditure incurred before that day, shall be the same as the amount that would have been payable in respect of that cost or expenditure, if this Act had not been enacted, under:

...

(c) in any other case-the 1971 Act as in force when the liability arose or the expenditure was incurred.

...

8. The following provisions of the Compensation (Commonwealth Government Employees) Act 1971 are relevant: ss 5(1) ("injury"), 27(1), 37(1), 53, 54.

COMPENSATION (COMMONWEALTH GOVERNMENT EMPLOYEES) ACT 1971

Interpretation.

5. (1) In this Act, unless the contrary intention appears-

...

''injury'' means any physical or mental injury and includes the aggravation, acceleration or recurrence of any physical or mental injury but, subject to section 29 of this Act, does not include a disease or the aggravation, acceleration or recurrence of a disease;

...

Compensation for personal injuries.

27. (1) If personal injury arising out of or in the course of the employment of an employee by the Commonwealth is caused to the employee, the Commonwealth is, subject to this Act, liable to pay compensation in respect of that injury in accordance with this Act.

...

Compensation payable in respect of medical expenses, &c.

37. (1) Where an injury is caused to an employee, the Commonwealth is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury, being treatment that it was reasonable in the circumstances for the employee to obtain, compensation of such amount as is appropriate to that medical treatment having regard to the charges customarily made for similar medical treatment in the place where that treatment is obtained.

...

Notice to Commonwealth of injury, disease or loss of or damage to property.

53. (1) This Act does not apply in relation to an injury caused to an employee unless notice in writing of the injury was served, as prescribed, on the Commonwealth-

(a) as soon as practicable after the occurrence of the injury;

(b) if the employee was not, immediately after the injury, aware that he had sustained an injury-as soon as practicable after he became so aware; or

...

(4) Where-

(a) a notice purporting to be a notice referred to in a preceding sub-section of this section has been served on the Commonwealth;

(b) the notice, as regards the time of service or otherwise, failed to comply with the requirements of that sub-section; and

(c) the Commonwealth would not, by reason of the failure, be prejudiced if the notice were treated as a sufficient notice, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake or from any other reasonable cause,

the notice shall be deemed to have been served in accordance with that sub-section.

Time for making claims for compensation.

54. (1) Compensation in relation to an employee is not payable under this Act to a person unless a claim in writing for the compensation was served, as prescribed, on the Commissioner by or on behalf of the person within the prescribed period.

(2) If the claimant is the employee, the prescribed period for the purposes of the last preceding sub-section is-

(a) in the case of a claim in relation to an injury to the claimant-

(i) the period of six months commencing on the day of the injury; or

...

(6) Where-

(a) a claim purporting to be a claim referred to in sub-section (1) of this section has been served on the Commissioner;

(b) the claim, as regards the time or manner of service, failed to comply with the requirements of that sub-section; and

(c) the Commonwealth would not, by reason of the failure, be prejudiced if the claim were treated as a sufficient claim, or the failure resulted from the death, or absence from Australia, of a person, from ignorance, from a mistake

or from any other reasonable cause,

the claim shall be deemed to have been served in accordance with that sub-section.

BACKGROUND

9. Mr Merry was born on 8 November 1951 (ex R2). He attended Westfield High School until late in 1966 (T9/18). He obtained the High School Certificate (ex R2). He appears to have gained Intermediate Certificate in 1969 from West Fairfield High School (ex R2).

10. He then worked for a time in 1967 as an apprentice typesetter which involved lifting heavy lead bars and carrying packages to the post office (T9/18).

11. He then became an apprentice greenkeeper for two years at St John's Park Bowling Club. He mowed greens, applied chemicals, did top dressing, trimmed edges and hedges and mixed fertilisers. He could be required to lift 40kg bags, move soil in wheelbarrows and pull lawn levels. He became head greenkeeper (T9/18).

12. In 1969-70 he did similar work for Western Suburbs Leagues Club Bowling Club (T9/18).

13. From 1970-72 he worked for a firm of plumbers. He did pick and shovel work, mixed concrete, laid pipes and used a jack hammer for rock excavation (T9/18). He was called up for national service from this job late in 1972.

14. After national service in 1973-74 he worked doing green duties for Northmead Bowling Club. He said that he was unable to carry out some duties and the greenkeeper would see to these for him (T9/18).

15. In early 1975 he went to Forbes Golf Club where he again did greenkeeping duties (T9/18).

16. Early in 1976 he moved to the Grain Elevator Board in Narrandera where he saw to the filling of silos with wheat and the loading of rail trucks. He worked with an older brother who covered him for heavy jobs (T9/19).

17. Late in 1977 the applicant ran his own bobcat hire business for a short while (T9/19).

18. From early in 1978 Mr Merry worked for the Forestry Commission of NSW in Forbes doing plant nursery work (T9/19).

19. From late in 1979 or from 1980 he worked for Parkes Shire Council as supervisor of parks and reserves. He supervised staff and did some mowing, etc (T9/19).

20. From late 1983 or 1984 he worked for Wyong Shire Council doing office work and supervising staff (T9/19).

21. From late 1998 he engaged in training (T9/19). He has since earned a horticulture qualification and teaches part-time at a TAFE college.

22. He enlisted in the army on 27 September 1972 (ex R2). He was discharged as medically unfit on 17 November 1972 (ex R2). No medical records from Mr Merry's army period have been located despite searches (ex R3, R4).

23. He engages in fishing. He played golf until his shoulder was injured (T5).

HEARING, DOCUMENTS AND APPEARANCES

24. The tribunal convened a hearing in this matter in Sydney on 28 May 2002. Mr Merry represented himself. Mr N Polin of counsel represented the respondent.

25. The tribunal had before it a number of documents which were received into evidence and numbered as follows:

* Exhibit TD1 - Section 37 Statement and associated documents (exhibits T1- T13) provided by the respondent.

* Exhibit R1 - Respondent's statement of facts and contentions, 23 November 2001.

* Exhibit R2 - Applicant's service file.

* Exhibit R3 - Letter dated 17 December 2001 from the Department of Defence to the respondent.

* Exhibit R4 - Department of Defence minute dated 27 September 2001.

FINDINGS ON MATERIAL QUESTIONS OF FACT WITH REFERENCE TO THE EVIDENCE AND OTHER MATERIAL IN SUPPORT OF THOSE FINDINGS

26. A report by Dr P H Jeffery, a general practitioner, dated 26 June 1999 (T5) recorded that Mr Merry fractured his right clavicle in approximately 1965 when he was a student. He was said to have made a complete recovery from this. Dr Jeffery then wrote that in 1972, while doing national service, he started developing right shoulder symptoms which he related to repeat injuries from the rifle he was using. It was an automatic recoil rifle, but its function was faulty and it was constantly hitting him in the right shoulder. Dr Jeffery said, "This obviously happened many hundreds of times". He was referred to an orthopaedic surgeon in Wagga. Soon after that he was discharged from the army on medical grounds. Dr Jeffery recorded that following his discharge Mr Merry had terrible problems with the shoulder, with recurring pain and disability. His shoulder then improved for a number of years, however in the past few years it has become consistently worse, with increased pain, disability, inability to sleep on it and the loss of many normal functions. An x-ray of the right shoulder on 8 March 1999 showed some arthritis of the acromioclavicular joint. On 13 April 1999 an ultrasound of the right shoulder showed a tear of the supraspinatus tendon, some swelling of the sub-acromial bursa and some eroding of the attachments of the sub-scapularis and infraspinatus tendons.

27. Dr Jeffery diagnosed, as a result of repeated trauma to his right shoulder whilst in the army, arthritis of the acromioclavicular joint and bursitis of the sub-acromial bursa and multiple tendon injuries. It was his opinion that the injuries were as stated and not due to any external cause or other contributing factors. He felt it quite likely that Mr Merry would require surgical decompression of the shoulder joint.

28. Mr Merry told the tribunal the following. Despite the suggestion that he had failed to notify his injury to the army, he had notified the injury. That was why he was referred to the Wagga orthopaedic surgeon, Dr Alan Nicholls. That referral led to his discharge as medically unfit. Mr Merry had attempted to obtain records from Dr Nicholls but he had destroyed them some time ago.

29. Mr Merry told the tribunal that he had not claimed compensation earlier because he (and others) were told in the discharge cell to sign a document stating that they were not claiming compensation. It was only in about 1997 that he had become aware that he was not restrained by that document.

30. Mr Merry explained that he had been called up as national servicemen. His service had been deferred because he had suffered a football injury at the age of 14. This had involved a broken collar bone. He had been taken to Fairfield Hospital. He was out of play for six or eight weeks. The hospital had immobilised his shoulder but did not apply plaster. It had recommended to him an exercise program. He had returned to play football after the injury and before joining the army. He was eventually admitted to the army. His case before the tribunal was that the football injury was aggravated by his service.

31. Mr Merry agreed that he had had only 52 days in the army. Several weeks of this time was spent involved in medical investigations. He told the tribunal that he complained that he could not lift his right hand and arm above shoulder-height. He also had constant shoulder pain. He went to the RAP at Kapooka where he reported shoulder pain and the dislocation of his shoulder every time he fired a rifle. He made this complaint in about the final three weeks of his service. Mr Merry was unable to do physical training without trouble. There was some suggestion that he was "bludging". He was referred to the medical officer. As a result, during physical training he was able to do everything except star jumps and rope climbing. He continued his other duties. He was sent to the discharge cell.

32. After discharge it took some six months for his condition to settle down. However, he would still have problems if he rolled over in bed and while doing some other actions.

33. Mr Merry discussed his post-service work. He agreed that he had had little time off that work over the years for sickness.

34. In cross-examination he told Mr Polin that his post-army work had been reasonably heavy. At times allowances have been made for him by his brother and other friends when heavy work was required. He said that when he ran his own company, the bobcat company, his main problem had been driving a truck which required the turning of the heavy steering wheel. This had irritated his shoulder.

35. Mr Merry told Mr Polin that he had seen Dr Jeffery at the suggestion of solicitors because of a neck problem. During the consultation the issue of his shoulder had come up and also his left hand. Mr Merry had suffered a work injury in the form of facet joint damage affecting his neck when working for Wyong Council. He saw Dr Jeffery because he was seeking compensation for medical expenses in relation to the neck. This case was settled and Mr Merry's employment was terminated. He had also injured his left hand when working for the Grain Elevator Board. He successfully claimed compensation for incapacity and medical expenses.

36. The tribunal decided to proceed to consider the merits of Mr Merry's claim before covering the issue of notice of injury as required in ss 53 and 54 of the 1971 Act. The latter set of issues would not arise if Mr Merry's claim was unsuccessful on the merits. The tribunal noted that, in order to succeed in obtaining compensation, he had to satisfy two Acts. He would be compensated under s 124 of the Act, but only if he would have qualified for compensation under the 1971 Act, given that the injury contended for occurred in 1972.

37. The definition of "injury" in the 1971 Act (s 5(1)) includes an "aggravation, acceleration or recurrence of any physical ... injury". The prime issue of substance for the tribunal was, therefore, whether Mr Merry's army service had caused him an injury in the sense of an aggravation of his earlier football injury.

38. The tribunal noted that Mr Merry bore an implied onus to satisfy the tribunal of this fact. On the question of whether a party before the tribunal such as Mr Merry bears an onus of proof, Hill J in the Federal Court summarised the position in Casarotto v Australian Postal Corporation (1989) 86 ALR 399, 412-413:

"In McDonald v. Director General of Social Security (1984) 1 FCR 354 Woodward J. in the context of social security legislation counselled against using the expression 'onus of proof' where an application comes to the Administrative Appeals Tribunal for review. Of course, where a statutory provision such as s.190(b) of the Income Tax Assessment Act 1936 deals with the matter specifically there is no difficulty. The Administrative Appeals Tribunal is bound by s.43 of the Administrative Appeals Tribunal Act 1975 to carry out the review by placing itself in the shoes of the administrator, although it considers the matter having regard to the material before it rather than the material that was originally before the administrator. Since the tribunal is obliged to inform itself on any matter in such manner as it thinks appropriate (s.33(1)(c)) and is not bound as such by the rules of evidence, it is obvious that there may be difficulties if principles such as onus of proof applicable in proceedings before courts are strictly adopted.

"It may be that what was said by Woodward J. in McDonald should be confined to the context of social security legislation. Thus in Minister for Health v. Thomson (1985) 60 ALR 701 at 712 Beaumont J, referring to proceedings before the Medical Services Committee established under the Health Insurance Act 1973 (Cth) said:

'Generally speaking, concepts of onus of proof used in adversary proceedings are inapplicable in administrative proceedings in the social security area: see McDonald v. Director-General of Social Security (1984) 1 FCR 354. However, where, as here, a breach of discipline, or something analogous, is alleged, the onus of proving such a breach lies upon the accuser. The general position is explained by Professor Enid Campbell in Principles of Evidence and Administrative Tribunals, published in Campbell and Waller (ed) "Well and Truly Tried", Monash Studies in Law (1982) p 53:

"There may be legal burdens of proof to be discharged in administrative proceedings just as much as there are legal burdens of proof in purely judicial proceedings. Sometimes the incidence of the burden of proof is spelled out by legislation, but more often than not it is simply implied in the nature of the proceedings. If, for example, entitlement to grant of a licence or benefit depends on proof that certain qualifications have been met, the burden of proving the relevant facts going to qualifications must fall upon the applicant. Similarly, where the issue to be decided is whether circumstances have arisen which would justify cancellation or suspension of a licence, or a finding that a breach of discipline had occurred, the onus of proving that these circumstances have arisen would devolve on the accuser. This would be so, notwithstanding that the accuser was also, of necessity, the person or body having authority to adjudicate."

"Nevertheless, as a practical matter, an applicant for review in the tribunal in a case such as the present is asserting a claim for a right to compensation (cf. Vulic v.Capital Territory Health Commission (1982) 5 ALD 35 at 38 per Morling J.) and ultimately the tribunal, in considering the claim, can only act on the evidence before it; to do otherwise would be to commit an error of law. Thus in a practical sense, if not in a strict legal sense, it will be the responsibility of an applicant for review to ensure that there is laid before the tribunal all material which it will be necessary for the tribunal to have before it to enable it to come to a decision. Where, as here, material necessary to an applicant's case is not laid before the tribunal (and the reason for it not being put before the tribunal was that to do so would have been inconsistent with the applicant's case that there had been no recovery and that compensation should continue indefinitely) the applicant will not be able to complain if the tribunal, doing the best it can with the evidence before it, reaches a conclusion which is adverse to the applicant."

39. The tribunal, on the evidence available to it, was not satisfied on the balance of probabilities that Mr Merry's pre-existing injury had been aggravated by his army service. Its reasons were as follows:

(a) Mr Merry's period of service was very short.

(b) Mr Merry had engaged in physically heavy remunerated work both before and after his army service.

(c) Dr Jeffery had taken a history suggesting that Mr Merry had experienced rifle recoil affecting his right shoulder hundreds of times during his army service. This clearly affected his opinion. At the hearing Mr Merry said he doubted that he told this to Dr Jeffery. The tribunal, from its knowledge of army training practices gained from considering veterans' cases, and resulting from the experience of its medical members, doubts that any such frequency of firing could possibly have occurred in the available time.

40. The tribunal was impressed by Mr Merry's presentation and demeanour before it. He clearly tried to be as honest and forthright as possible. He did not noticeably embellish in his evidence. The tribunal explained its attitude on the basis of the then available evidence and flagged that it thought that Mr Merry's case was not strong. Mr Merry thought he might be able to produce corroborative evidence from one or two others. The tribunal invited him to bring this forward and was prepared to accept evidence from additional witnesses by telephone if necessary on the next day. However, Mr Merry declined this offer. He said that he could understand the tribunal's assessment of the evidence and was prepared to rely on the material already presented.

CONCLUSION

41. The tribunal has decided that the decision under review is a sound decision on the evidence available both to it and to the respondent's decision-makers. On that basis, Mr Merry does not qualify for compensation under the 1971 Act or the Act in respect of his shoulder injury.

DECISION

42. The tribunal affirms the decision under review. The applicant is entitled to no costs associated with this application.

I certify that the 42 preceding paragraphs are a true copy of the reasons for the decision herein of Mr M J Sassella, Senior Member and Dr J D Campbell, Member

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

Associate

Date of Hearing 28 May 2002

Date of Decision 30 May 2002

Representative for the Applicant Self

Counsel for the Respondent Mr N Polin

Solicitor for the Respondent Blake Dawson Waldron Lawyers