Bryant and Military Rehabilitation and Compensation Commission
[2007] AATA 1623
•2 August 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1623
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q200600570
VETERANS' APPEALS DIVISION ) Re CHRISTOPHER BRYANT Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr KS Levy, RFD Senior Member
Dr JB Morley, RFD MemberDate2 August 2007
PlaceBrisbane
Decision The Tribunal affirms the decision under review.
................[Sgd]..............................
Senior Member
CATCHWORDS
COMPENSATION – Royal Australian Navy – applicant sustained a neck injury while playing football in the Navy – applicant claims to suffer daily headaches – consideration of medical evidence – “minor interference with activities of daily living” considered – applicant has 0% whole person impairment – decision affirmed
Administrative Appeals Tribunal Act 1975 (Cth) s 37
Safety, Rehabilitation and Compensation Act1988 (Cth) ss 4, 6, 14, 16, 19, 24, 28Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147
McKenna v Repatriation Commission (1995) 39 ALD 254
Re O’Rourke and Comcare (AAT 12152, 26 August 1997)REASONS FOR DECISION
2 August 2007 Dr KS Levy, RFD Senior Member
Dr JB Morley, RFD MemberBackground
1. In 1993, Christopher Troy Bryant (the applicant) was employed by the Royal Australian Navy. Whilst on official duty, he was playing Rugby Union football when a scrum collapsed on him. As a result, he now suffers injury to his neck and has related headaches. This is the basis of his claim.
2. His original claim relating to this review was considered but rejected by letter dated 16 March 2006 by the Delegate of the Military Rehabilitation and Compensation Commission.
3. An application for re-consideration of that determination was made on 20 June 2006 on behalf of the applicant. The original determination was then affirmed by letter dated 24 July 2006. On 15 August 2006, the applicant sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).
Issue
4. The issue for determination by the Tribunal is whether the applicant’s claim for lump sum permanent impairment in respect of headaches should have been rejected.
Evidence
5. The parties tendered the following documents at the commencement of the hearing:
·Exhibit 1 Documents prepared in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (T1 - T23)
·Exhibit 2 Report by Dr Lethlean dated 3 November 2006
·Exhibit 3 Service medical records (folios 1- 412)
·Exhibit 4 Statement of Teresa Jorgensen dated 16 November 2006
6. Objection was taken to the admission of the documents in Exhibit 3 as the applicant had not had an opportunity to examine these records. The applicant did not accede to the Tribunal’s request for an adjournment to consider their implications. After hearing argument in relation to this issue, the Tribunal admitted the documents as they were the service and medical records of the applicant and would be regarded as potentially relevant to the consideration of this case.
Legislation
7. In determining the issue in this case, the Tribunal, in effect, must determine whether the respondent is liable to pay compensation to the applicant for impairment (s 14 of the Safety, Rehabilitation and Compensation Act1988 (the Act)) and in accordance with ss 16 and 19 of the Act. In addition, the following provisions of the Act are also relevant:
“4 Interpretation
(1) In this Act, unless the contrary intention appears:
…
impairment means the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
injury has the meaning given by section 5A.
permanent means likely to continue indefinitely.
6 Injury arising out of or in the course of employment
(1) Without limiting the circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment, an injury shall, for the purposes of this Act, be treated as having so arisen if it was sustained:
…
(b)while the employee was at the employee’s place of work, including during an ordinary recess, for the purposes of that employment; or
…
24 Compensation for injuries resulting in permanent impairment
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee’s condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3) Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a)the employee has a permanent impairment that is a hearing loss; and
(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
28 Approved Guide
(1) Comcare may, from time to time, prepare a written document, to be called the “Guide to the Assessment of the Degree of Permanent Impairment”, setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c)methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.
(2) Comcare may, from time to time, by instrument in writing, vary or revoke the approved Guide.
(3) A Guide prepared under subsection (1), and a variation or revocation under subsection (2) of such a Guide, must be approved by the Minister.”
…
Evidence
· Mr Bryant
8. In his oral evidence the applicant said his headaches began following a neck injury in 1990 (Exhibit 3 folio 330) playing rugby during his RAN service. More significant difficulties arising from a football game also, date from 1993. In March 1995 he reported having "bitemporal headaches (for) 2-3 years" (ibid folios 317 and 318), which he thought was secondary to neck pain. He was referred later that month to physiotherapist Anne Dalton. She noted that he was frequently "self-manipulating" his neck; but on examining him, Ms Dalton concluded that his headaches were not coming from his cervical spine (Exhibit 1 folio 19 and Exhibit 3 folio 165).
9. Three months later he was seen by Neurologist Dr Roy Beran (Exhibit 3 folios 156-157), who noted that his headaches had begun "1½ - 2 years ago". Beginning in his occiput, his pain extended to behind his eyes (retroorbital). Previously these recurred daily, but he recently had had no headache for a month. He obtained relief by "cracking (his) neck". Dr Beran diagnosed tension headaches. Being free of them a month, he advised no preventive treatment (prophylaxis) but suggested his review in a month. There is no record of a neurologist's review assessment.
10. The applicant told the Tribunal that he played his last Rugby Union game in 1998; but also stated that he still played Rugby League “socially" until 2003. Playing football did not worsen his headaches.
11. He reported headaches in his Health Examination Questionnaires of 2 October 1998 (Exhibit 3 folio 117), 19 May 2000 (ibid folio 100) and 10 July 2001 (ibid folio 94). At his Annual Health Assessment of 6 June 2003 he marked that his present lifestyle "sometimes" was putting him "under too much stress", and that in the past two weeks he had had "a moderate amount of stress" (ibid folio 75). However at his Assessments of 20 February 2004 and 8 April 2005 he stated that his present lifestyle was "seldom" stressful, and that recently he had experienced "relatively little stress" (ibid folios 54 and 39). Before discharge, at his Five Yearly Comprehensive Preventive Health Examination in November 2005, he said that his headaches resulting from "neck injuries [are] currently being reviewed by MCRS" (ibid folio 9).
12. At the Tribunal hearing, the applicant said that, throughout his RAN career, he had continued his normal RAN duties as a Petty Officer then as a Chief Petty Officer, including seafaring, until December 2005. He was then transferred to working, from April to July 2006, as a Defence Force Interviewer. Since his discharge, for several months he had been working with a private recruiting company.
13. Almost all of his present work time is at a computer. This is compared to the substantial amount of face to face interviewing entailed in his previous naval services recruiting work. He would interview 3 to 5 potential recruits in a day; and five interviews, which would be a "heavy day", would worsen his headaches. In those circumstances, he then needed more time to write his reports. He also would have to take occasional days off work, resting at home in a darkened room.
14. He currently has constant headache. On a scale of 5 for maximum pain, he graded this usual headache at 1.5, increasing to 3.5 - 4. Such worsening was spontaneous, with no "trigger"; his present computer work did not aggravate it. His pain still extended from his neck and the back of his head into both temples, and to behind his eyes. The constant headache did not prevent him from working. It was "more bearable" when he used Panadol.
15. However, each couple of weeks, it would worsen for up to another week. He then found it necessary to "double check" his work. He had "cut back" as much as possible on pain relieving drugs, relying on hot wheat packs and self-massage. He did not take up the medication suggestions made by Neurologist Dr Lethlean in November 2006, because he learned that these included antidepressants, which he preferred not to use. Although Dr Lethlean, in his latest report of 3 November 2006 (Exhibit 2 page 2) referred to "a major change" in his condition, this had not been so.
16. His headache limited his physical activities, for example when it was worse he had to leave the mowing of the lawn to his daughter. He told the Tribunal he had had to stop cycling, with which he had persevered after his knee reconstruction surgery in 2004, because this worsened his headache. It affected his driving. On visiting his parents-in-law in Lismore each few weeks, level 1 headache did not limit his driving, but a grade 2 headache would make him change with his wife about halfway; and he did not drive at all with a grade 3 headache. He would take walks with headaches of grades 1 or 2, but this was not a usual pastime. His relationships with his children and his wife were affected, because his headache made him short tempered; he and his wife now have sexual relations infrequently.
17. His mild sleep apnoea was diagnosed in September 2005 (Exhibit 3 folios 8 and 19). He was advised that he did not necessarily need treatment.
18. He said that he had been given no medical explanation for his headaches. Currently he was treated by a chiropractor, for neck and spinal alignments. He had not consulted a doctor for his headaches since before his discharge from the Navy.
·Ms Teresa Jorgensen
19. Ms Jorgensen is a Flight Lieutenant in the Royal Australian Air Force and was a supervisor of the applicant in his former role in the Defence Force. Ms Jorgensen provided a written statement (Exhibit 4). In cross-examination, she described that whilst she was the applicant’s supervisor in his role as a defence recruiter, she did not see him frequently and perhaps only saw him once per week. She was his supervisor for a relatively short period (May and June 2006), but recalled that he was an “excellent interviewer” for the Defence Force. He had 2 or 3 days sick leave in the period he worked for her. She was not aware that he had suffered from headaches and was not aware that it had any affect on his work from her personal knowledge.
·Dr Rowe
20. Dr Rowe, in giving his telephone evidence to the Tribunal, was questioned only about the applicant's headache. He had seen the applicant on 7 June 2005.
21. When taken to his report (Exhibit 1 folio 42) he confirmed his opinion that Mr Bryant’s headaches were related to his cervical spinal condition, related to his Navy service. He referred to x-rays performed in 1997, said by Rheumatologist Dr Gray, locum for Dr Baume, to show "degenerative disc disease between C5 and C6 [vertebrae]" (Exhibit 1 folio 21). Dr Rowe had seen these films, and agreed with this report (ibid folio 37). He agreed that his opinion on the applicant's headache was predicated on his cervical spinal condition. He had seen all three of Neurologist Dr Lethlean's reports (ibid folios 65-75 and 82-85, and Exhibit 2), but these contained no information to cause him to change his opinion.
22. He opined that the applicant's headache condition had been permanent since his neck injury in 1993; and that from Table 13.1 he considered the applicant to have a 10% whole person impairment (Exhibit 1 folio 42). He accepted that the applicant's headaches, of his grades of 3.5 - 5, impaired his working capabilities and impacted on his family life.
23. Although conceding Neurologists and Neurosurgeons were the specialists to whom patients with headaches were customarily referred, he claimed experience as an Occupational Physician was in assessing an individual's complaints and their effects on a person’s working capabilities.
·Dr Keith Lethlean
24. Dr Lethlean advised the Tribunal that he has been practising as a Neurologist since 1965. He had examined the applicant on 31 October 2005 and diagnosed him with muscle tension headache (Exhibit 1 folio 70).
25. Although noting Dr Rowe's opinion of the cervical spinal origin of the applicant's headache, he agreed with Occupational Physician Dr Harvey-Sutton, that it was not related to this (Exhibit 1 folio 28). He also agreed (ibid folio 70) with the previous "tension headache" diagnosis made on 7 July 1995 by Neurologist Dr Roy Beran (Exhibit 3 folio 156).
26. He confirmed his opinion in his first report, that, on the balance of probabilities, the applicant's headaches were service related (Exhibit 1 folio 71). In his second report of 3 February 2006 he had stated that this headache condition had become permanent after 1 December 1988 (ibid folio 83).
27. He stated that the injury relating to the headaches occurred in 1993 when Mr Bryant would take 10 – 12 Panadol tablets per day for those headaches. He noted this had little effect. Mr Bryant stated that the head and neck symptoms would “wax and wane”. The frequency of severe headaches was said to be once a week and Dr Lethlean said that the more severe headaches might equate to a rating of about 6 - 7 on a 1 – 10 analogue scale. He described the history given by the applicant as being able to drive, do the gardening and mow the lawn but where necessary, Mr Bryant would take the time to have medication and rest.
28. In his second report Dr Lethlean assessed the applicant with 0% whole person impairment from his headaches (Exhibit 1 folio 83), basing this on the history that the applicant had given to him of his headaches. However, he had reviewed this in his third report, after reading the applicant's statement of 14 June 2006 (ibid folios 93-95). In the applicant’s statement, his headaches were causing greater restriction than he had described to Dr Lethlean in October 2005 (Exhibit 2 page 2 paragraph 4.1.1). However, as stated in paragraph 4.3 on page 3 of that report, although possibly assessing the applicant's Table 13.1 Impairment at 10%, or higher, Dr Lethlean would not determine this without reassessing Mr Bryant.
29. When cross-examined on this, Dr Lethlean accepted that the applicant's statement that his headaches of grades 3 - 3.5 "on an average of once a week" (Exhibit 1, folio 93), was more frequent than 12 times a year. Also he accepted that this amounted to "some interference" in the applicant’s work activities and activities of daily living. However Dr Lethlean had taken this headache frequency into account in his first report (ibid folio 67).
30. Dr Lethlean then alluded to the treatments or medications that he had suggested for the applicant (Exhibit 2 page 3 paragraph 4.4), but not yet tried, viz the medications amitriptyline, sodium valproate, and possibly Topamax, together with relaxation, exercises and cognitive behavioural therapy, and even Botox injections into his scalp muscles. He stated that such treatments "would require referral from his general practitioner to a neurologist". He also agreed to a question from the Tribunal, that referral to a Pain Clinic might be beneficial.
31. Overall, Dr Lethlean said that the applicant’s condition may now be different to when he examined him. However, he formed the impression that psychological factors were the principal ones interfering with the applicant’s wide range of activities. He stated in evidence that it could be that the applicant might now be classified as having a 10% whole person impairment, or even higher but said a revision of his opinion should not be made without a clinical re-assessment. If a clinical re-assessment was to be undertaken, he suggested that such a re-assessment would also require an additional assessment by a psychiatrist given the range of difficulties the applicant had in terms of concentration, social interaction and sexual function.
32. He also noted that the applicant has suffered from sleep apnoea. In Dr Lethlean’s view, “[s]leep apnoea in itself can cause (or increase) headaches, concentration and tiredness difficulties. It is possible that this is relevant to his current and continuing difficulties.”
·Other Medical Evidence
Dr Ann Heller
33. We noted a report by Dr Ann Heller (Exhibit 1 Folio 20) dated 20 May 1995. That report was provided as a result of a CT scan of the applicant’s head but it was concluded that there was no cause for the headaches apparent from those X-rays.
Dr Doug Gray
34. Dr Gray, as locum Rheumatologist for Dr Robert Baume, provided a report dated 4 April 1997 of his examination of the applicant. He opined (Exhibit 1 folio 22) that the applicant's rugby neck injury may have damaged the upper cervical facet joints, to cause his occipital headaches. He noted that x-rays of the applicant's cervical spine showed early C5/6 intervertebral disc degenerative disease, but with no other abnormality.He gave no opinion on permanency or percentage impairment.
Dr Philippa Harvey-Sutton
35. Dr Harvey-Sutton examined the applicant on 3 July 1998. In her opinion the applicant had a service related neck injury; but she regarded his occipital headaches as unrelated to his cervical spinal injury (Exhibit 1 folio 28). She was not asked to provide opinions on the permanency or percentage impairment of the applicant from his headaches under Table 13.1.
Consideration
36. We have considered all of the oral and documentary evidence in arriving at a decision in this matter.
Assessment of medical evidence
1. The cause and relationship to service of the applicant's headaches
37. There are conflicting medical opinions on the cause of the applicant's headaches, either that they are derived from his service related rugby neck injury, or that they are due to tension headaches.
38. In March 1995 physiotherapist Ms Dalton found that his headaches were not derived from his cervical spine (Exhibit 1 folio 19 and Exhibit 3 folio 165). Rheumatologist Dr Gray in 1997 and Occupational Physician Dr Rowe in 2005 referred to the applicant's cervical spinal x-rays, as cited by Dr Gray (Exhibit 1 folio 22), showed early degenerative disease of the intervertebral disc between the fifth and sixth cervical vertebrae. However Dr Gray did not relate the applicant's headaches to these changes, but to possible facet joint damage to his upper cervical (first, second or third) vertebrae, apparently not demonstrable on these x-rays. Dr Harvey-Sutton opined that his headaches were not from his cervical spinal injury.
39. Neurologists Dr Beran (Exhibit 3 folio 157) and Dr Lethlean (Exhibit 1 folio 70) both diagnosed tension headaches.
40. The Tribunal finds that the evidence for a cervical spinal cause for the applicant's headaches is inconclusive. On balance it favours the diagnosis of tension headaches made by both Neurologists.
41. However, further to this, the Tribunal finds that the diagnosis of the nature of the headache is incidental. Both Dr Rowe (Exhibit 1 folio 42) and Dr Lethlean (ibid folio 71), the only doctors asked if the applicant's headaches are due to his Navy service, have determined that they are.
2. Whether the applicant's headache condition is permanent
42. Both Dr Rowe (Exhibit 1 folio 42) and Dr Lethlean (ibid folio 83) have concluded that the applicant's headache condition is permanent. The other medical witnesses have provided no opinion.
3. The applicant's whole person impairment from his headache condition
43. Again there is conflicting medical opinion on this. Dr Rowe has assessed that the applicant suffers 10% whole person impairment from his headache condition, whereas Dr Lethlean assessed this at 0%.
44. Based on the reports by the various medical specialists together with the oral evidence provided, results in our placing greater weight on the evidence of Dr Lethlean in preference to the evidence of Dr Rowe. While both these specialists have provided more recent reports, Dr Rowe conceded that his opinion is based essentially on the applicant’s statements. However, of greater importance and weight was the fact that Dr Lethlean, while agreeing with Mr King-Scott (Counsel for the applicant) that it is possible to regard the factual evidence as affecting the activities of daily living of the applicant, he did not resile from his opinion that the applicant has a 0% whole person impairment and did so on the basis of the principle that such an assessment should only be altered following a re-assessment. A re-assessment had not occurred between the date of his latest report on 3 November 2006 where he observed some significant differences in the symptoms described by the applicant in his statement of 14 June 2006, in comparison to his examination of the applicant some 8 months earlier on 31 October 2005.
45. In addition, his reasoning was quite analytical. He emphasised if a clinical re-assessment was to occur, that a psychiatric assessment should also be included, as he formed the view that Mr Bryant’s symptoms were multi-factorial. He further stated that sleep apnoea could also account for the present level of impairment and if that was found to be so, then it would not be compensable under Table 13.1. If sleep apnoea was a major cause of the applicant’s headaches, then, not only would it be non-compensable under Table 13.1, but it would explain the condition as being not stabilised and that there may be potential for a reduction in the level of headaches by further medical treatment. We therefore regarded Dr Lethlean’s report as providing greater cogency or weight of evidence. In respect of the application of the evidence to the requirements as set out in Table 13.1 of the Guide to Assessment of the Degree of Permanent Impairment, “impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person. The measure of ‘activities of daily living’ is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care”.
46. In Table 13.1 the relevant criteria for the degree of whole person impairment are as follows:
· 0% whole person impairment – attacks may be of any frequency BUT do not interfere with activities of daily living OR are readily reversed by appropriate medication or treatment.
· 10% whole person impairment – attacks occur 12 or more times a year AND cause minor interference with activities of daily living OR attacks occur less frequently AND cause interference with all activities of daily living other than self care.
47. In relation to the above conditions, it is essentially a contest as to whether or not the applicant satisfies the 10% whole person impairment criteria. If he does not, then the 0% whole person impairment criteria is more appropriate. In relation to the 10% criteria, the applicant has described to Dr Rowe and in his other evidence, that he has attacks which occur 12 times or more per year. Of importance is whether they cause “minor interference with activities of daily living” or are readily reversed by medication. In relation to the evidence provided to Dr Lethlean, the frequency of headaches seems to have reduced from 1994 to October 2005 when the applicant was examined by Dr Lethlean. But the activities described do not require any particular functions of daily living to be satisfied although “due weight must be given to the psychosocial aspect of the function i.e. the ability to stand may be impaired because one cannot stand straight, or stand still or stand around or even stand by without some supervision or direction”: Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees v Emery (1993) 32 ALD 147 at 151).
48. That principle must be read in the context that all the attacks must be considered in making the assessment of frequency, not merely those of relevant severity (McKenna v Repatriation Commission (1995) 39 ALD 254). Of direct relevance is the case of Re O’Rourke and Comcare (AAT 12152, 26 August 1997) which was a case involving an assessment of severe headaches on the activities of daily living as required by Table 13.1. The decision in that case noted that the 10% level of impairment requires “minor interferences with activities of daily living”. Activities of daily living refers to primary biological and psychosocial functions. “Minor interference” it was said must be greater than “no” interference but less than “most” interference. The Tribunal there held that a global view or assessment is more appropriate; that on some occasions, one activity of daily living may be so affected in both biological and psychosocial terms as to constitute a minor interference with activities of daily living, whereas in another case there could be multiple activities of daily living which are affected at such a low level but which could still be described as constituting a “minor interference” with activities of daily living. It was said however, “[i]t is highly unlikely, when taking a global approach to this assessment, that a small infraction of one [activity of daily living] could properly be described as “minor interference with activities of daily living”.
49. In assessing the evidence presented against these criteria and their interpretations as outlined above, we have also kept in mind the underlying principles which inform Table 13.1. In O’Rourke’s case it was found that the frequency of headaches suffered by the applicant there was approximately 25 per year (greater than the standard in the criteria of 12 or more) and that the duration of the headaches involved several hours and the severity at the upper level. However, the Tribunal there found that the level of impairment under Table 13.1 was 0% as the attacks did not interfere with activities of daily living as defined in the glossary of the Guide. In the present case, the applicant has to rest or stretch and sometimes even double checks his work. These responses to stimuli could be regarded as being on the one hand, part of the ordinary incidence of life which results from tiredness, stress in the workplace or other influencing factors. There is the possibility however, that those activities of daily living may be experiencing a “minor interference” as defined. However, we have concluded on the balance of probabilities that the likelihood of the latter conclusion is far outweighed by the factors raised by Dr Lethlean that sleep apnoea, for example, could equally account for the symptoms described. On that basis, the headaches reported could not then be attributable to service life and therefore be compensable under Table 13.1. That is not to detract from the acceptance of liability for the original injury or even that headaches may be related to the original injury. However, the doubt raised by Dr Lethlean that some psychological factors may be involved lends credence to the requirement for clinical re-assessment including psychiatric assessment. The time lapse between Dr Lethlean’s original and more recent reports, his observation of apparent inconsistencies as specified in his latest report should not be viewed lightly and his suggestion of a clinical re-assessment would accord with the best evidence rule in order to make the correct or preferable decision.
50. Having considered all of the evidence, we are satisfied that the applicant does not suffer a 10% whole person impairment which can be attributable to service life, in terms of s 24 of the Act. An amount of compensation is therefore not payable under that provision.
Decision
51.The Tribunal affirms the decision under review.
I certify that the 51 preceding paragraphs are a true copy of the reasons for the decision herein of Dr KS Levy, RFD Senior Member and Dr JB Morley, RFD Member
Signed: .....................................................................................
Legal Research OfficerDate/s of Hearing 30 May 2007
Date of Decision 2 August 2007
Counsel for the Applicant Mr R King-Scott
Solicitor for the Applicant Ms B Fielding, D'Arcys Military Division of Slater and Gordon
Counsel for the Respondent Mr C Clark
Solicitor for the Respondent Ms A Shaw, DLA Phillips Fox
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