Garofano and Australian Postal Corporation

[2003] AATA 1274

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2003] AATA 1274

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2003/859

GENERAL ADMINISTRATIVE  DIVISION		)
Re		FRANCESCO GAROFANO

Applicant

And AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal Dr J D Campbell, Member

Date15 December 2003

PlaceSydney

Decision

The Tribunal sets aside the decision under review and in substitution thereof determines that:

1. the Applicant is entitled to the payment of compensation on and from 7 May 2002 pursuant to section 14 of the Act; and

2. the Applicant is entitled to costs in this application, pursuant to the Tribunal's Practice Directions.

[Sgd]  Dr J D Campbell   
  Member

Administrative

Appeals
Tribunal

 

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No N2002/859

GENERAL ADMINISTRATIVE DIVISION		)
Re		FRANCESCO GAROFANO

Applicant

And

AUSTRALIAN POSTAL

CORPORATION

Respondent

ORDER TO AMEND WRITTEN DECISION [2003] AATA 1274

Tribunal  Dr J D Campbell, Member

Date 6 January 2004

Place Sydney

WHEREAS:

1.   The Tribunal released a written decision in this matter, which was dated 15 December 2003.

2.   It has come to the Tribunal’s attention that there was an error in the decision.

3. The Tribunal wishes to amend the written decision so as to rectify this error and wishing to do so with the least cost and inconvenience to the parties, applies the provision of section 43AA of the Administrative Appeals Tribunal Act1975.

NOW THE TRIBUNAL THEREFORE ORDERS that the decision should be read as follows:

1.   The matter number on the front page of the decision should read: N2002/859.

……………………

Dr J D Campbell   
Member

CATCHWORDS

WORKERS COMPENSATION - Pre existing degenerative disease of the lumbar spine - aggravation - nature and conditions of work - issue of continuance of aggravation - entitlement to payment of compensation

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988 (Cth) s. 4, 14, 16, 19, 24, 25 and 27

CASES

Australia Postal Corporation v Oudyn [2003] FCA 318

Commonwealth Banking Corporation v Percival (1988) 20 FCR 176

Asioty v Canberra Abbatoir Pty Ltd (1989) 167 CLR 533

REASONS FOR DECISION

15 December 2003   Dr J D Campbell, Member

1.      In this matter, the Applicant, Mr Francesco Garofano, seeks a review of the decision of the Australian Postal Corporation, the Respondent, dated 24 May 2002. In this decision the Respondent affirmed an earlier determination, dated 7 May 2002 that the Applicant was no longer entitled to payment of compensation in respect of aggravation of a pre-existing constitutional disease of the lumbar spine.

2.      The Applicant commenced employment with the Respondent as a postal delivery officer in November 1999. The Applicant noted an increase in low back symptomatology in the six months leading up to September 2000, at which time the Applicant experienced a deterioration in his low back symptomatology.  By October 2000 the Applicant was unable to continue to ride his motorbike at work as he was experiencing severe low back pain with radiation to the right lower limb. Radiological investigation assisted consultant medical opinion to conclude during October/November 2000 that the Applicant had a right sided disc lesion at the L5/S1 level with impingement on the right S1 nerve root.

3.      The Applicant was treated conservatively over time and returned to work in January 2001 on restricted duties. The Applicant continued doing these restricted duties until he was successful in his application for a job as a postal delivery co-ordinator at Regents Park in August 2002.

4.      Throughout the period following his return to work in January 2001 the Applicant has been treated conservatively, with amelioration of symptomatology over that same period to the point that he is able to manage his low back symptoms by a regime of exercises, albeit experiencing low back stiffness and soreness from time to time, but with no radiation of pain to his right lower limb. Further throughout the period the Applicant has been working either on restricted duties or on administrative/clerical duties in his new position.

issues

5.      The relevant issues in this matter are:

(a) whether the Applicant had a pre-existing degenerative disease of the lumbar spine;

(b) whether the Applicant's lumbosacral disc prolapse at the L5/S1 with right sided sciatica was a consequence of an incident at work and/or the nature and conditions of his work or alternatively was the condition an aggravation of the pre-existing degenerative disease of the lumbar spine, with the aggravation arising from the nature and conditions of his work; 

(c) whether the Applicant's lumbosacral disc prolapse at the L5/S1level with right sided sciatica is continuing to cause incapacity, or whether any aggravation of the pre-existing lumbar spine degenerative disease has ceased;

(d) in the circumstances where it is concluded that the effects of the aggravation are continuing, whether the Applicant is entitled to be compensated in respect of any incapacity and/or impairment that has arisen as a consequence of the injury.

statutory framework

6. Section 4 of the Safety, Rehabilitation and Compensation Act 1988 (“the Act”) defines “injury” to include:

“(a)          a disease suffered by an employee; or

(b) an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of the employee's employment; or

(c) the aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of the employee's employment), being an aggravation that arose out of or in the course of that employment.”

7. Section 14 of the Act provides:

“(1)

Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.

(2)

Compensation is not payable in respect of an injury that is intentionally self-inflicted.

(3)

Compensation is not payable in respect of an injury that is caused by the serious and wilful misconduct of the employee but is not intentionally self-inflicted, unless the injury results in death, or serious and permanent impairment.”

8. For reasons set out below, the Tribunal concludes that the Applicant did suffer an injury, namely an aggravation of a pre-existing degenerative condition of the lumbosacral spine. Further the Tribunal concludes that such an injury arose from the nature and conditions of the Applicant's work, with the episode on 18 September 2000 precipitating more acute symptomatology which was evidence of a change in the underlying pathology, namely the onset of an acute disc lesion at the L5/S1 level. The Tribunal concludes that this aggravation has not ceased and continues to exist. In such circumstances the Tribunal determines that the Respondent is liable to pay compensation pursuant to section 14 of the Act. In relation to payment of compensation pursuant to sections 16 and 19 of the Act, clearly the Applicant would be entitled to such payments if there were medical expenses and periods when the Applicant's incapacity prevented him from working. In the absence of particular material the Tribunal concludes that this is a matter to be further worked through by the parties. The Tribunal further notes that the issue of permanent impairment was strictly not before the Tribunal, and even if it were properly before the Tribunal, neither party wished to address the necessary evidence, which would have permitted the Tribunal to conclude as to whether compensation was payable pursuant to sections 24, 25 and 27 of the Act.

background

9.      The Applicant, born 21 December 1970, commenced working with Australia Post as a Postal Delivery Officer grade 1 in November 1999. Prior to this the Applicant had worked as an electronics technician with POS Systems for a period of nine years, having earlier completed a two-year electronics course at TAFE. During his penultimate year with POS Systems, the Applicant experienced a temporary loss of feeling and acute pain in his neck, when he drove over a pothole. He was forced to pull over and rest for half an hour and experienced soreness in his neck and back for a few days. He did consult his local doctor (Dr Wong), but did not take any time from work.

10.     The Applicant stated that in April 2000 he commenced experiencing low back pain when sorting in the morning, which worsened during the day, although some relief was felt when riding the bike. Gradually the pain extended over the whole day, with relief from the pain occurring when resting at night or on the weekends. The pain in the lower back worsened in the period up to September 2000.

11.     On 18 September 2000, while sorting mail, the Applicant stated that about after half an hour he felt pain in his low back and when he bent over his back locked up. The pain was experienced in the midline, low back at a level a little above the belt line. The Applicant stated he spoke to his supervisor and then attended upon a chiropractor (Mr Waters). The Applicant stated that he received some relief from the treatment, and was able to return to work the next day. On that day he experienced similar problems and returned to Mr Waters for further treatments and during these treatments he experienced pain radiating down the right leg. He stated that he ceased chiropractic treatment and consulted his local doctor (Dr Makary), who referred him for a CT scan on 3 October 2000 and by Dr Johnston for physiotherapy, which involved traction and massage, which provided some relief.

12.     The Applicant also stated in cross examination that he returned to work on 20 September 2000, with the pain in his lower back gradually getting worse. At this time he believed that he was unable to squat, run or jump. The Applicant stated that his condition continued to worsen over the 21 and 22 September 2000, with the pain radiating to the right leg commencing some one to two weeks after commencing chiropractic treatment.

13.     On the 22 September 2000 the Applicant was examined by Dr Holloway for entry to the New South Wales Police Service. The documentation reveals that the Applicant did not disclose a history of back and/or neck injury, and the examining doctor reported that the Applicant was fit to safely participate in body contact activities, such as self-defence training, access to firearms and able to undertake activities associated with the two year program, including operational policing duties (Exhibit R5). In evidence, the Applicant confirmed that he had not informed Dr Holloway of his back condition, as he felt that such a condition would prevent his acceptance into the service.

14.     The Applicant completed an incident report on 24 October 2000 (T4) in which he described the incident as occurring when "riding motorcycle and sorting mail", the nature of the injury as "lower back pain, right leg pain, numbness right leg". The Applicant described how the incident happened in the following terms:

"…Over the past few months, I have been experiencing minor low back pain while sorting my mail and doing my delivery run. The pain became more intense on Monday 18 September. I notified my supervisor and went home to rest. There has been no improvement."

15.     On 25 October 2000 the Applicant completed a claim for compensation (T5) in which he detailed the events leading to his injury as:

"…Over the past few months I have been experiencing minor back pain while sorting mail and doing my delivery. The pain became more intense especially down right leg with numbness and pins and needles."

16.     The Applicant was referred by his employer to Dr Sarich on 30 October 2000, who considered the Applicant to be suffering from right-sided sciatica for which he prescribed Endone, and certified the Applicant unfit for work until 28 November 2000.  During this period the Applicant attended St Vincent's' Hospital because of pain, underwent an MRI scan at Royal Prince Alfred on 5 November 2000, with his symptoms slowly improving.

17.     On 4 December 2000 the Applicant returned to work on light duties, which involved sorting mail, while sitting or standing, but with no bending, but some reaching. Other duties included answering phones, organising pay, filing, and attending to customer queries. The Applicant stated that he coped with these duties and apart from absences from work in December 2000/January 2001, he continued in this role for 12 months. In this time he considered his back was getting better, he was doing more and the pain was less, with no sciatica.

18.     The Applicant stated that he continued coping well on such suitable duties until March 2002, when he was successful in his application for a job at Regents Park with the Respondent. His duties from that time involved data entry, answering telephone calls, customer complaints, uniform issues, pay issues and some other supervisory activities. The Applicant states that he experienced no problems with these duties on a day to day basis as such duties imposed no physical demands. Since commencing such activities the Applicant has noted that with correct posture and undertaking particular stretching exercises he is able to manage his low back pain, which is present every morning, with improvement occurring during the course of the day.

19.     The Applicant indicated that in September 2003 he was doing the same work with no restrictions at work and no issue with pain at work. He indicated that he does not now play as much sport and certainly no soccer or golf which he used to play, with the cessation of golf due to pain in his lower back. He has no problems with steps and walking, is not on any active treatment, but continues with stretching exercises and walking. The Applicant detailed that he was undertaking reception work at a club during 2001 and continuing doing two to three shifts a week as well as some bar work in the last twelve months for six or so hours two to three times a week.

20.     The Applicant's claim for compensation was initially declined by the Respondent on 8 November 2000 (T9), on the grounds of an absence of a particular incident or situation which resulted in any noticeable strain or trauma, and that his employment did not make a material contribution to the onset of the sciatica. The Respondent confirmed the earlier decision on 15 December 2000.

21.     The Applicant lodged a claim for permanent impairment in respect of his lower back position on 15 October 2001. The Respondent amended his determination of 15 December 2000 to include a denial of the claim for permanent impairment on 24 October 2001 (T24).

22.     The Respondent issued a reconsideration of own motion on 12 December 2001 (T28) in which he revoked the decision of 24 October 2001 and determined that the Respondent was liable to pay compensation to the Applicant in respect of "aggravation of pre-existing constitutional degenerative disease of the lumbosacral spine, particularly disc prolapse at the L5/S1 level” sustained on 18 September 2000; pursuant to sections 14, 16 and 19 of the Act, but not entitled to compensation pursuant to sections 24, 25 and 27 of the Act.

23.     On 7 May 2002 the Respondent determined that on and from 7 May 2002 the Applicant was no longer entitled to payment of compensation in respect of his aggravation of pre-existing constitutional disease of his lumbar spine (T43). On 24 May 2002 the Respondent affirmed the decision of 7 May 2002 and it is this decision which is before the Tribunal. 

consideration and findings

24.     The Tribunal observes that the issue of the Applicant's reliability as a creditable relator of fact was placed in question by the Applicant's admission that he had failed to inform Dr Holloway of problems with his back when being examined by him on 22 September 2000 for entry into the New South Wales Police Service. The Tribunal observes that this was some four days after the onset of more acute symptomatology requiring chiropractic attention. The Tribunal also notes that the Applicant did not disclose such information as he believed such a disclosure may well have been an impediment to his acceptance into the service. The Tribunal, in acknowledging the Applicant's reasons for his non-disclosure, concludes that such non-disclosure of requested and required information serves no useful purpose, for the Applicant's back condition would have become apparent to all early in his police career. While an inference can be drawn that the Applicant is prepared to furnish false information in his quest for a particular outcome, the Tribunal is of a view that such non-disclosure is both irresponsible and stupid, as well as dishonest. 

25.     The Tribunal's attention was also drawn to the lack of congruence between what the Applicant stated as to the nature of the injury on 18 September 2000 in both the incident report and the claim for compensation of 24 October 2000 and his later description of his "back locking up". Such descriptions were made to Drs Bentivoglio, O'Neill, McGill and to the Tribunal, with the Respondent contending that this was further evidence of the Applicant changing his story to ensure an outcome which placed his application for compensation in the most positive light.

26.     While the Tribunal accepts that the non-disclosure episode by the Applicant was a dishonest activity, the Tribunal noting the Applicant's frank admission about his misdemeanour on that occasion is satisfied that no general inference as to the Applicant's reliability as a witness should be drawn from a single and particular episode. Similarly the Tribunal, while noting the change in terminology used by the Applicant over time to describe the nature of his injury on 18 September 2000, is satisfied that the Applicant was describing circumstances in which he was temporarily unable to straighten to the upright position in the incident of 18 September 2000. The Tribunal does not draw any adverse inference from such a description.

27.     On a more positive note the Tribunal considers that the Applicant's narration of the circumstances of his medical history since September 2000 have been remarkably consistent. Furthermore his clinical complaints of pain and his resulting incapacities have been consistent with radiological and clinical findings at examination. The Tribunal further notes that most of the doctors who have examined the Applicant in this matter have considered the Applicant to be genuine and not embellishing his symptomatology (Drs Downes, Bentivoglio, O'Neill, McGill), while the remainder do not expressly use such language (Drs Johnston, Hudson).

28.     For these reasons the Tribunal concludes that the Applicant has detailed a consistent clinical history of events and symptoms over time and that issue as to his reliability as a historian does not remain in question.

a. pre-existing condition

29.     The Applicant detailed a circumstance some two years prior to the incident of 18 September 2000, which caused him neck and low back pain. A cervical X-ray was undertaken, which apparently revealed no abnormality and the effects of the incident (driving over a pothole) were short term and did not result in any loss of time from work. The Applicant also detailed a clinical history of low back pain being present for some six months prior to the incident on 18 September 2000. Further the Tribunal notes the CT scan of the lumbar spine of 3 October 2000 and the report of Dr Korber, Consultant Radiologist, in which he notes bony changes to the right of the mid line are long standing, and the apophyseal joints demonstrate osteoarthritis. Similarly the Tribunal observes Dr Korber's report of the MRI scan of the lumbar spine dated 5 November 2000 and his concluding comment that (Exhibit R3):

"…I have no doubt that the L5/S1 disc was abnormal in some way prior to the accident date of 18.09.00".

30.     The Tribunal also notes the opinions of Dr Downes, Consultant Orthopaedic Surgeon, Dr McGill, Consultant Rheumatologist, Dr O'Neill, Consultant Neurologist, Professor Sambrook, Consultant Rheumatologist and Dr Johnston, Consultant Neurologist in his report of 6 May 2002 that the Applicant may have had degenerative disc disease at the L5/S1 level prior to the incident of 18 September 2000.

31.     It is for these reasons the Tribunal concludes that on balance the Applicant had a pre-existing degenerative disease of the L5/S1 disc prior to the incident of 18 September 2000.

the issue of aggravation

32.     The Tribunal notes the particular history given by the Applicant in which following the incident of 18 September 2000, the Applicant continued to work despite continuing and evolving symptomatology, chiropractic and physiotherapy treatment, albeit with some restrictions on lifting and bending imposed by his local doctor, Dr Makary on 26 October 2000 (T6, p22). On 30 October 2000 the Applicant was considered to be unfit for work when examined by Dr Sarich, the Applicant having been referred to the doctor by the Respondent for assessment. On 30 November 2000 the Applicant was considered able to return to work from 4 December 2000 by Dr Makary with restrictions on lifting, bending, twisting and not walking on uneven ground imposed. The Tribunal is also mindful of the increasing analgesic and anti inflammatory medication prescribed for the Applicant during this period and his continuance with physiotherapy.

33.     The Tribunal has already referred to the report of consultant radiologist, Dr Korber dated 24 January 2003 (Exhibit R3) and his opinion that on CT examination of the lumbar spine of 3 October 2000 there is a right sided posterolateral bony sclerosis with end plate changes that suggests that an abnormality such as a disc protrusion has been present at L5/S1 level for some time.

34.     The Tribunal also notes the report of Dr Brew, Consultant Radiologist dated 8 November 2000 of the MRI examination of the lumbar spine performed on 5 November 2000, where he states that (T7,p33):

"…the dominant pathology is at L5/S1, where there is marked disc space narrowing and a large right sided focal disc protrusion which impinges upon the right S1 nerve root as it leaves the thecal sac."

A comparison between that MRI examination and one done on 16 January 2003 is reported on by Dr Masters, Consultant Radiologist, with the latter examination showing (Exhibit R3):

"…significant involution but not complete resolution of the central and right sided disc protrusion at the L5/S1 level. On today's study there is a shallow central and right sided disc protrusion which produces mild compression of the right ventral aspect of the thecal sac and right lateral recess stenosis. The disc material contacts but does not significantly displace the right S1 nerve root as it exists the dural sac. There is no foraminal nerve root compressive lesion.."

35.     In reviewing the three examinations, Dr Korber expresses the view that the L5/S1 degenerate disc would have preceeded the injury of 18 September 2000, and that by the time of the second MRI the disc herniation has reduced remarkably in size, which was consistent with the patients clinical improvement. Dr Korber also canvassed the possibility that the disc herniation seen on 5 November 2000 had extended between the times of the CT examination of 3 October 2000 and the MRI examination of 5 November 2000, and that it is not possible to determine which scenario is correct.

36.     In reviewing the various clinician opinions the Tribunal considers the following  diversity of views namely:

·     the injury of 18 September 2000 caused damage to the L5/S1 disc and caused an impairment which continues to exist (Dr Bentivoglio);

·     the nature of the Applicant's work made a substantial contribution to the disc prolapse, there already being with some probability of a pre-existing degenerative change in the lumbosacral disc prior to the Applicant commencing work with Australia Post (Dr O'Neill);

·     aggravation of symptoms of lumbar disc disease by certain work  activities, with the underlying pathology that led to the episode of right sided sciatica remaining unaltered (Dr McGill);

·     the disc condition was the natural progression of pre-existing degeneration with the prolapse occurring between the time of the apparently normal CT scan and the abnormal MRI scan, with the riding of the motor bike being one factor contributing to the relationship between work and the condition in that it caused the sciatic pain to be more intense (Dr Downes);

·     conditions of employment with the Respondent has been the cause of the Applicant's disc herniation and he has suffered a permanent impairment (Dr Johnston);

·     disc degeneration present prior to the episode of 18 September 2000, with clearly no prolapse at that stage, with the history of the Applicant's stepping down quite low accounting for the onset of the disc prolapse and disc degeneration (Professor Sambrook). 

37.     The Tribunal, having previously considered and concluded that the Applicant had detailed a genuine clinical history in so far as it relates to this matter concludes that on the balance of probabilities the Applicant suffered an aggravation of a pre-existing disc degeneration of the L5/S1 disc. His aggravation was in the nature of a disc herniation at the L5/S1 level, which is clearly in evidence in the MRI scan of 5 November 2000. The Tribunal notes that CT scan of 3 October 2000 shows at best some evidence of a chronic disc protrusion. The Tribunal, when considering the Applicant's clinical history during the initiating period, is able to follow the onset of the Applicant's increasing symptomatology from the incident on 18 September 2000 to the MRI scan on 5 November 2000. It is clear from the Applicant's clinical history that the right sided sciatica evolved during the early period of chiropractic treatment and while continuing to undertake duties at work during late September, early October 2000. 

38.     The Tribunal is satisfied on the balance of probabilities that there was a change in the underlying pathology, and in this regard accepts the opinions of Drs Sambrook, O'Neill, Johnston and Bentivoglio. Further the Tribunal is satisfied that on balance this is more likely to be consistent with what is demonstrated on the available radiology. The Tribunal also observes that Dr McGill believes the Applicant suffered a temporary aggravation of pre-existing disc pathology and Dr Downes' opinion that the Applicant's disc prolapse was an event in the evolution of the pre-existing disc degeneration. The Tribunal does not on balance accept these two opinions, for each scenario appears in part to downplay the significance of the Applicant's clinical history over time, the evolution of the Applicant's evolving symptomology after the incident of 18 September 2000, the nature and conditions of his work in relation to a pre-existing disc degenerative process, the radiological evidence that is available and the continuance of symptomology, although minimal at this time.

39.     In so finding, the Tribunal clearly is of the view that the incident of 18 September 2000 was not causative of the condition. Further the Tribunal, in noting the opinions of all the consultants in this matter, concludes that the nature and condition of the Applicant's work was a significant factor in both the aggravating incident and the evolution to the condition as evidenced by the right sided sciatica, with the incident on 18 September 2000 being an initiating event in the aggravation process, in so far as it relates to the specifics of this matter.

is the aggravation continuing

40.     The Tribunal concludes that for the following reasons the aggravation is ongoing:

(a) the Applicant's clinical symptomatology at both the date of cessation 7 May 2002 and thereafter, although progressively showing signs of improvement remains present albeit with minimal symptomatology, provided the Applicant does continue with his stretching and other exercises; does not indulge in particular sporting activities such as golf and/or soccer and remains careful with lifting, bending and twisting activities and is not required to work in areas requiring such activities;

(b) the MRI examination of 16 January 2003, which shows significant involution but not complete resolution of the central and right sided disc protrusion at the L5/S1 level;

(c) the opinion of Professor Sambrook that it is likely that the Applicant will continue to be troubled by intermittent low grade symptoms in his back and right leg in his report of 12 September 2002 (Exhibit A2);

(d) the opinion by Dr Johnston in his report of 6 May 2002 (T42) in which he expresses a view that the Applicant's low back condition is an impairment, whereby it would be unwise for the Respondent to consider increasing his restricted range of activities at work. This report confirms an earlier opinion expressed by Dr Johnston in his report of 6 November 2001 that the Applicant has suffered a permanent impairment as a result of the work injury.

41.     In so stating the Tribunal is mindful, that there must be a continuing condition and this continues to cause an incapacity. Such issues were considered in both Commonwealth Banking Corporation v Percival (1988) 20 FCR 176 and Asioty v Canberra Abbatoir Pty Ltd (1989) 167 CLR 533, where Toohey J stated:

"…It was the Applicant's employment with the Respondent that caused for the first time an aggravation, which was incapacitating and which is still incapacitating because it prevents the appellant from returning to work, at any rate work of a certain kind."

42.     It is clear from the evidence before the Tribunal that the Applicant never returned to his previous employment with Australia Post, other than with an ability to undertake duties of a lesser physical nature. Such an aptitude and an ability to work continues in his current position, and it is evident to the Tribunal that any attempt to initiate the physical nature of the Applicant's employment duties will cause a recurrance and/or an exacerbation of his low back and right leg symptomatology. 

43.     The Tribunal is also mindful of the decision in Australia Postal Corporation v Oudyn [2003] FCA 318 where Cooper J, in considering the issue of a determination seeking to cease liability to pay compensation pursuant to section 14 of the Act, stated:

…"The Act does not contemplate the making of such a determination once liability under S14 of the Act has properly arisen and a determination made to accept a claim made in accordance with S54 of the Act."

entitlement to compensation

44. For the reasons outlined, namely that the Applicant's condition is continuing and that this continues to cause an incapacity, the Tribunal finds that the Applicant is entitled to compensation pursuant to section 14 of the Act.

45. In relation to the particular heads of compensation, namely sections 16, 19, 24 and 27, while the Applicant may enjoy entitlements pursuant to such sections, there is no evidence before the Tribunal which is permissive of a particular determination. Accordingly while the Applicant may well be entitled to compensation pursuant to sections 16 and 19 of the Act, such a request for compensation must be addressed to the Respondent in the first instant, and for the Respondent to make an appropriate determination.

46. In relation to compensation pursuant to sections 24 and 27, the Tribunal is of a view that the consideration of such is not properly before the Tribunal, as the reconsideration decision of 12 December 2001 specifically excludes payment of compensation pursuant to sections 24, 25 and 27 of the Act at this time; while the Respondent's determination of 7 May 2002 and the reconsideration affirmation on 24 May 2002 ceased liability, this, in effect only ceased liability in relation to sections 14, 16 and 19 of the Act. Thus it would appear to the Tribunal that the only matters properly before the Tribunal relate to compensation pursuant to sections 14, 16 and 19 of the Act, with compensation payable pursuant to sections 24, 25 and 27 of the Act, lapsing for want of an appropriate process, following the reconsideration by the Respondent on 12 December 2001.

47.     No doubt issues surrounding the permanent impairment claim can be appropriately procedurally managed, and with this in mind the Tribunal would make the further comment that on the material before the Tribunal any current claim for compensation for permanent impairment would express some difficulty in relation to assessment of the permanent impairment reaching the ten per cent threshold.

determination

48.     The Tribunal sets aside the decision under review and in substitution thereof determines that:   

(a) the Applicant is entitled to the payment of compensation on and from 7 May 2002 pursuant to section 14 of the Act; and

(b) the Applicant is entitled to costs in this application, pursuant to the Tribunal's Practice Directions.      

I certify that the 48 preceding paragraphs are a true copy of the reasons for the decision herein of Dr J D Campbell, Member

Signed:         Neil Glaser   
  Associate

Date of Hearing  19 September 2003
Date of Decision  15 December 2003
Counsel for the Applicant         Leo Grey

Solicitor for the Applicant          Larissa Figurka
Counsel for the Respondent     Rhonda Henderson

Solicitor for the Respondent     Tony Mannah