JOHN EARL TYRELL and ASCIANO SERVICES PTY LTD

[2012] AATA 230

[2012] AATA 230

Division	GENERAL ADMINISTRATIVE DIVISION
File Numbers	2010/3455; 2011/1511
Re	JOHN EARL TYRELL
APPLICANT
And	ASCIANO SERVICES PTY LTD
RESPONDENT

DECISION

Tribunal	Ms G Ettinger, Senior Member Dr Saw Hooi Toh, Member
Date	20 April 2012
Place	Sydney

The Tribunal sets aside the decision under review in regard to application 2010/3455 and in substitution finds that Mr Tyrell is eligible for compensation pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988.

By consent of the parties the Tribunal affirms the application in Matter 2011/1511.

...........[sgd].............................................................

Ms G Ettinger, Senior Member

CATCHWORDS

COMPENSATION – train driver – right knee injury 2009 – liability accepted – arthroscopy finds severe osteoarthritis – Respondent considers present pain due to osteoarthritis, and not as a result of the 2009 injury - decision under review in matter 2011/1511 affirmed by consent of the parties – in matter 2010/3445 the decision under review is set aside, and in substitution, the Tribunal finds that the Applicant is entitled to compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988.

LEGISLATION

Safety, Rehabilitation and Compensation Act 1988, ss 16, 19, 29 and 39

REASONS FOR DECISION

Ms G Ettinger, Senior Member
Dr Saw Hooi Toh, Member

20 April 2012

SUMMARY

1. Mr John Earl Tyrrell who is now aged 59, commenced employment in the rail industry in 1969. He stated that he took a redundancy from the State Rail Authority (NSW) in approximately 1990, and then worked primarily as a storeman at TAFE until he was employed as a train driver by Asciano Services Pty Ltd (Asciano), also known as Pacific National, in 2000.

2. He said that certain types of trains which he drove, including coal trains, rarely pulled up to a platform when they stopped, and train drivers had to be fit enough to climb up and down vertical ladders, and in cases of breakdowns, walk through tunnels carrying equipment over uneven ground. On 16 June 2009 Mr Tyrrell climbed down a vertical ladder from the train he had been driving, caught his foot and injured his right knee. His knee, although later shown to have severe osteoarthritis, had been asymptomatic until then.

3. On 7 October 2009 liability was accepted for aggravation of degenerative changes which has resulted in a tear of the medial meniscus of the right knee (the injury), by his employer. Mr Tyrell had an arthroscopy of the right knee on 16 November 2009.

4. Asciano also held, relying on the opinion of Professor Kleinman, an orthopaedic surgeon, that on 16 July 2010 there was no present liability to pay compensation for medical treatment of incapacity pursuant to sections 16, 19, 29 and 39 of the Act. The employer decided that any pain in his right knee which Mr Tyrrell continued to suffer following the surgery, and on 16 July 2010, was as a result of the long standing serious osteoarthritis he suffers, and no longer due to the injury of 16 June 2009.

5. Then, in October 2011, Asciano decided on the basis of the opinion of Dr Dowda, a senior occupational physician, that Mr Tyrell was unable to carry out the duties of a train driver, and his employment was terminated.

6. The Tribunal heard evidence from Mr Tyrrell, whom it finds to be a witness of truth, and from various medical practitioners. We were satisfied that Mr Tyrrell continues to suffer from the effects of the injury of 16 June 2009, and that he is accordingly eligible for compensation pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (the Act). The application of section 29 (household services and attendant care services) and section 39 (in respect of alterations) are discussed below.

   The parties agreed that the decision of the Respondent in matter 2011/1511, which dealt with the nature and conditions of Mr Tyrrell’s work, should be affirmed. The Tribunal gives effect to that agreement.

7. Our reasons follow.

   ISSUES BEFORE THE TRIBUNAL

8. The issues before the Tribunal are:

   ·Whether the Applicant continues to suffer from the effects of aggravation of pre-existing osteoarthritis of the right knee as a result of the injury sustained on 16 June 2009; and

   ·Whether as at 16 July 2010, the Applicant is entitled to compensation pursuant to sections 16, 19, 29, and 39 of the Act, and which is reasonably required as a result of the incident of 16 June 2009.

   RELEVANT LEGISLATION

9. The relevant legislation is the Safety, Rehabilitation and Compensation Act 1988 (the Act), in particular section 16 (medical expenses), section 19 (incapacity for work as result of an injury­), section 29 (household services and attendant care services) and section 39 (in respect of alterations).

   BACKGROUND AND MR TYRRELL’S EVIDENCE

10. Mr Tyrrell is 59 years old. His evidence that he suffered an injury to his right knee, and was hospitalised in connection with an allergy to penicillin when he was nine years old, is not in dispute. Mr Tyrrell’s evidence was that he cannot recall having any ongoing treatment or review in relation to his right knee, and that it remained asymptomatic until the accident of 16 June 2009. The Respondent accepted Mr Tyrrell on that point, and the Tribunal did so as well.

11. Mr Tyrrell provided the history of his employment, commencing in 1969 with the NSW Government Railways (later the State Rail Authority). He stated that he took a redundancy in approximately 1990, then worked as a storeman at TAFE until 2000 before commencing as a train driver with Asciano in that year. 

12. He said that he was fit, played hockey till 1996, and gave up squash in 1999 because shift work meant he could no longer play.

13. Mr Tyrrell described how his knee gives way. He said that the trains he drove often did not stop at a platform so he had to climb up and down steps from the locomotive, walk out of the tunnel for up to two kilometres, and be involved in shunting, uncoupling, and checking the brakes, which involved squatting, kneeling and bending. He said that he found that difficult, and had problems walking on uneven surfaces.

14. The history of the accident on 16 June 2009, which Mr Tyrrell has given to various doctors, has been inconsistent. He says in his statement, which was Exhibit A2, that when descending the stairs whilst getting out of a locomotive, his left foot missed the last step, and his right foot became caught on the second last step. He says that this caused a sharp twisting sensation of his knee, and ultimately he was stuck on the ladder with his right foot caught in the step. He said that a co-worker had to assist him to free his foot. He said that he felt immediate pain in his right knee, and provided notice of injury to his supervisor. In his compensation claim dated 5 August 2009, Mr Tyrrell also reported that he had missed the last step getting off the relevant locomotive.

15. Another version of the events of 16 June 2009 is reported in an interview given by the employer’s Shift Supervisor where he states in relation to the accident: From what John (the Applicant) told me, he was getting down off a Locomotive ladder when he put weight on his knee it twisted in the ballast. He concluded with: I see John Tyrrell as an upstanding bloke who has good values. We noted that although the Supervisor offered on several occasions at the time to have Mr Tyrrell attend at a doctor, Mr Tyrrell refused.

16. We were satisfied that notwithstanding slightly differing versions of the events of 16 June 2009, both the Respondent and the Tribunal accept Mr Tyrrell as a witness of truth.

17. We are also satisfied from Mr Tyrrell’s evidence that his knee was asymptomatic before the accident of 16 June 2009.

18. Mr Tyrrell underwent arthroscopy of the right knee by Dr Osborne on 18 November 2009.

19. Liability for aggravation of degenerative changes which has resulted in a tear of the medial meniscus of the right knee sustained on 16 June 2009 was accepted pursuant to section 14 of the Act on 7 October 2009. The Respondent later decided on the basis of Professor Kleinman’s report, that on 16 July 2010, it was not liable to pay compensation for medical treatment or incapacity pursuant to sections 16, 19, 29 and 39 of the Act.

20. Mr Tyrrell said that his employment was terminated as a result of a report by Dr Dowda dated 28 September 2011. He said that he regretted not being able to work as he felt that he had five years to go. On the basis of Dr Dowda’s opinion that Mr Tyrell was unable to carry out the duties of a train driver, his employment was terminated in mid-October 2011. He has since exhausted his entitlements to annual, long-service and sick leave and has been on a disability support pension since 2012.

    WHETHER ON 16 JULY 2010 THE APPLICANT CONTINUES TO SUFFER FROM THE EFFECTS OF THE ACCIDENT OF 16 JUNE 2009

21. We have already noted above that Mr Tyrrell’s accounts of the accident on 16 June 2009 were somewhat divergent. However there was no allegation that he was not a witness of truth, and the Tribunal has already stated that it accepted him to be a witness of truth.

22. It is not in dispute that on 16 June 2009 Mr Tyrrell suffered an accident when alighting from a train which he had been driving. His supervisor offered to have him attend at a doctor which Mr Tyrrell declined. We are satisfied that his first attendance at a medical practitioner was some five weeks later, on 30 July 2009 (Exhibit R4), when Dr Samy recorded that Mr Tyrrell twisted the knee 6 weeks ago, and, on referral for x-ray, wrote right knee – tender medial aspect of right knee. Liability for the injury was accepted by the employer on 7 October 2009.

23. Mr Tyrrell was referred to Dr Osborne, an orthopaedic surgeon, who diagnosed a right meniscal tear. Dr Osborne carried out an arthroscopy on 16 November 2009. In a report dated 18 February 2010, he stated that: He’s struggling a bit after his arthroscopy.

24. Following the operation, Mr Tyrrell had a sore calf, for which Dr Osborne referred him for an ultrasound, and on 30 November 2009, indicated that it would be approximately three months before the knee would be as good as it’s going to be and in that time he will need to avoid repetitive squatting or kneeling at work. Dr Osborne also stated that he had explained the option of a future knee replacement to Mr Tyrrell.

25. Dr Osborne wrote to Mr Tyrrell’s employer on 18 February 2010, stating that he had fairly wide spread grade 4 chondral damage throughout his knee with a medial meniscal tear and we were hopeful that his knee would be better from having had it cleaned up but at this point it is clear that John’s (sic) still has significant pain coming from his knee.

26. Mr Tyrrell told us that Dr Osborne certified him as fit for work in February 2010, but that in March he had to have his annual check-up in order to be re-certified for fitness to drive trains. Mr Tyrrell said that he really wanted to continue driving, stating that his general practitioner was satisfied in July 2010, that he could. However, Dr Dowda did not agree. 

27. Dr Dowda, a senior occupational physician, assessed Mr Tyrrell on several occasions. His report of 28 September 2011 was before the Tribunal as Exhibit A3. He commented that Mr Tyrrell had not attended work since March 2010. Dr Dowda mentioned in his report that he had last seen Mr Tyrrell in November 2010 when the Applicant had reported his knee being sore, easily exacerbated by physical activity, and that it gave way approximately once a week. Dr Dowda stated that Mr Tyrrell continues to have a permanent impairment involving the right knee due to degenerative joint disease. He said that he agreed with Professor Kleinman that Mr Tyrrell continues to have osteoarthritis which is progressing, that his right knee is deteriorating, and that it will continue to do so. He noted that even with a total knee replacement, Mr Tyrrell would be limited in what he could do.

28. Dr Dowda reported that he considered the duties of a train driver, the ancillary duties (as described by Mr Tyrrell above), and overall safety and fitness concerns, which led him to the conclusion that Mr Tyrrell could not perform the full range of duties without restrictions. He agreed with Professor Kleinman that the Applicant could perform the cabin related tasks of train driving without limitation. We are mindful however that that is not all that is required of a train driver, and that the ancillary duties such as walking on uneven ground through a tunnel, climbing up and down ladders, bending to inspect brakes and other related duties were those which gave Mr Tyrrell the most trouble.

29. The Tribunal had three reports of Professor Kleinman before it. In his first report dated 3 September 2009 (T32), Professor Kleinman opined that Mr Tyrrell’s employment contributed to a significant degree to the injury of 16 June 2009. This was not disputed by any of the other doctors, nor that he required an arthroscopic procedure to his right knee. In September 2009, Professor Kleinman opined that the aggravation to previous underlying degenerative changes in Mr Tyrrell’s knee caused by the accident of 16 June 2009, would cease following surgical treatment of the right knee.

30. Professor Kleinman’s examination of the Applicant, and report of 13 May 2010 (T78), took place following the arthroscopic surgery to Mr Tyrrell’s right knee. He stated that he believed the aggravation that Mr Tyrrell sustained on 16 June 2009 had now ceased, having had a partial medial meniscectomy performed on his right knee and his current symptoms are related to the degenerative changes in his right knee. Professor Kleinman considered that treatment such as physiotherapy and a gym program to maintain fitness were reasonable and necessary.

31. Like the other doctors, Professor Kleinman predicted Mr Tyrrell would eventually require a total right knee replacement. However, he attributed that to the progression of the degenerative processes in Mr Tyrrell’s right knee, and not to the effects of the accident of 16 June 2009.

32. In his report of 4 August 2011 (Exhibit R3), Professor Kleinman restated the history of the incident of 16 June 2009 as given to him by Mr Tyrrell, and reported that Mr Tyrrell suffers from degenerative change in the right knee. In reply to the question:

    Taking the enclosed documents into consideration, are you able to assess (on the balance of probabilities) whether Mr Tyrrell’s condition was caused, contributed to, or aggravated by, his duties in his employment with Asciano?

    Professor Kleinman replied:

    On the balance of probabilities Mr Tyrrell’s condition was aggravated by the injury sustained while under the employment of Asciano but he had pre-existing extensive degenerative change in the medial compartment of the right knee.

33. Professor Kleinman also opined that Mr Tyrrell required surgery to excise the tear of the medial meniscus (which he underwent), that he would periodically require the use of anti-inflammatory medication, analgesia and physiotherapy for the treatment of pain in his knee, and that he would eventually require a total right knee replacement. Professor Kleinman also noted that the degenerative changes in Mr Tyrrell’s right knee would continue to progress, with resulting symptoms.

34. We are not satisfied that Professor Kleinman appreciated the full extent of the duties of a train driver. He held the view that Mr Tyrrell could perform the duties of a train driver in the cabin, and that was not in dispute. However, due to the difficulties Mr Tyrrell found with walking on uneven surfaces, climbing, squatting and bending, he could not safely perform what Dr Dowda described as the ancillary duties of a train driver.

35. Dr Bodel, an orthopaedic surgeon, examined Mr Tyrrell and produced a report dated 4 July 2011 (Exhibit A1). He stated that: Mr Tyrrell has been disappointed with the outcome of the surgery. He states that there has been no real change in his knee pain and is now left with swelling which he did not have before. Dr Bodel also reviewed the other medical reports and a study Dr McGill provided as part of his report. Dr Bodel concluded that Mr Tyrrell: suffered a tear of the posterior horn of the medial meniscus and an aggravation of previously asymptomatic degenerative change in the region of the right knee as a consequence of the accident that occurred on 16 June 2009.

36. He also stated that Mr Tyrrell’s present incapacity and associated disability is as a result of the injury that occurred at work and the continuing aggravation of the underlying previously asymptomatic degenerative change which is present in this circumstance. Dr Bodel told the Tribunal that he did not agree with Professor Kleinman’s opinion, that having had a partial medial meniscectomy performed on his right knee, the aggravation Mr Tyrrell sustained on 16 June 2009 had now ceased, and that his current symptoms were related to the degenerative changes in his right knee. Dr Bodel said that Professor Kleinman did not give any reasons for coming to the conclusions he did. He also stated that Mr Tyrrell’s right knee, which had been asymptomatic before 16 June 2009, never again became asymptomatic, either before or after the surgery.

37. Dr McGill, a rheumatologist, gave evidence before the Tribunal. His report dated 7 March 2011 was at T18 and Exhibit R2. When asked about various mechanisms which may have caused the meniscus tear Mr Tyrrell experienced in 2009, Dr McGill opined that it was most likely to be have been caused by a twisting motion, but that it could also have been with the leg flexed. His view was that the accident of 16 June 2009 was minor; particularly taking into account that Mr Tyrrell did not consult a doctor until some six weeks following the injury. He opined that: in the setting of advanced osteoarthritis, degenerative tears of the medical meniscus are very common and thus I cannot be sure whether the incident caused the tear. Nevertheless, I think it appropriate that the surgery occurred as a work related treatment.

38. Dr McGill also opined that Mr Tyrrell’s symptoms before and after the arthroscopy were similar, and were there as a result of the osteoarthritis in his knee. He opined that at July 2010, some 13 months following the surgery, Mr Tyrrell did not require medical treatment. He said that the swelling some weeks following arthroscopy which Mr Tyrrell reported, was to be expected, but that he would continue to suffer pain in his knee due to the osteoarthritis. He said that there had been no attempt to treat the osteoarthritis at the time of the arthroscopy, and that the surgery would not cure the osteoarthritis. Dr McGill also opined that the rate of progress of the osteoarthritic changes in Mr Tyrrell’s knee would not have been influenced by the accident or the tear. He opined that the symptoms Mr Tyrrell experienced in 2009 were those related to his severe grade 4 osteoarthritis of his right knee.

39. In commenting on Mr Tyrrell’s reports of pain following the arthroscopy, Dr McGill opined that three weeks would be considered normal in a healthy knee, but that with osteoarthritis such as Mr Tyrrell’s, the pain could be enduring as he had reported.

40. Dr McGill commented on Dr Dowda’s acceptance of Mr Tyrrell’s report that his knee gave way, opining that any pain would cause that reaction. He also agreed with the other doctors that eventually when the symptoms were severe enough, a knee replacement would be needed.

41. Dr Bentivoglio, an orthopaedic surgeon, examined Mr Tyrrell and provided a report dated 12 November 2010 which was not tendered, mainly because he formulated his report on the effect of the nature and conditions of Mr Tyrrell’s work, which was the subject of claim 2011/1511, which the parties agreed, should be affirmed. As it was not before the Tribunal, we did not take Dr Bentivoglio’s report into account in coming to a decision.

42. The evidence before us from Mr Tyrrell, and his doctors, is that Mr Tyrrell continued to suffer pain in his right knee following the arthroscopy, and that he suffered pain which could occur daily. His evidence was that when the pain was so severe he could not put up with it, he took medication. He also said that he could not identify anything in particular which brought the pain on.

1. For the sake of completeness, we note as part of Exhibit R4, a letter of Health Services Australia Pty Ltd dated 17 March 2010 mentioning other conditions Mr Tyrrell suffers, including sleep apnoea, type II diabetes, depression, morbid obesity, hypertension, dyslipidaemia, chronic low back pain, and possible silent infarct. Several reports of tests undertaken in regard to those conditions were also appended. There were no claims made that these conditions contributed to Mr Tyrrell’s retirement, and we are satisfied that the safety concerns identified by Dr Dowda, which led to the decision to retire Mr Tyrrell, related solely to the problems with his right knee.

   SUBMISSIONS AND CONCLUSIONS

2. In coming to a conclusion, we note that Mr Tyrrell says he continues to suffer from the effects of the aggravation of 16 June 2009, and that he requires compensation under ss 16, 19, 29 and 39 of the Act.

3. The Applicant’s submissions were that:

   ·The Applicant was asymptomatic until the injury of 16 June 2009;

   ·Mr Tyrrell has experienced ongoing symptoms, swelling and pain since the surgery;

   ·But for the injury of 16 June 2009, Mr Tyrrell would still be working as a train driver – the fact he receives Disability Support Pension indicates that he cannot work;

   ·The Applicant did not accept that the rate of progression of his osteoarthritis would have been the same without the injury of 16 June 2009; and

   ·Dr Bodel’s evidence should be preferred over that of Dr McGill.

4. The Respondent on the other hand, submitted that:

   ·The words of section 16 (in relation to the injury) and section 19 (incapacity as a result of) had to be applied. Mr Richards submitted that there were no medical reports before the Tribunal indicating the Applicant has expended or requires funding for physiotherapy and/or medication;

   ·13 months post-surgery, any pain or incapacity Mr Tyrrell suffered was as a result of his severe osteoarthritis, and not the injury of 16 June 2009;

   ·While Mr Tyrrell’s reporting of the accident of 16 June 2009 was inconsistent, the Respondent was not pressing for recognition in regard to the inconsistency in the reports of how the accident occurred. The Respondent submitted however, as it was entitled, that the report of the Shift Supervisor at T24 was likely to be the most accurate, and submitted that the accident had not been as severe as was made out in some of the reports.

   ·The Health and Safety Solutions Pty Ltd report at T27, dated 19 August 2009, recorded Mr Tyrrell had reported twisting his right knee whilst descending from a train, and that he felt a twinge. This was consistent with the report of the Shift Supervisor mentioned above, and confirmed the incident was not of great significance;

   ·Mr Tyrrell did not attend at a doctor until 30 July 2009 (following the accident of 16 June 2009), and, at the time, could not recall the exact date, indicating that the incident was not of great import;

   ·Professor Kleinman’s report of 3 September 2009 was only months after the incident, and was to be preferred to Dr Bodel’s which was in July 2011;

   ·Dr Bentivoglio, in reply to the question: Your opinion as to whether you believe our client’s employment injury (including surgery) has been a material contributing factor to his injury and ongoing symptoms, replied as follows: I believe Mr Tyrrell’s initial injury together with the nature and condition of his employment that has caused the degenerative changes present in his knee region is the major contributing factor to his current knee symptoms;

   ·The arthroscopy repaired the meniscus tear, and any osteoarthritic changes and pain following July 2010 are not related to the accident on 16 June 2009, but rather are a function of his constitutional condition;

   ·Mr Tyrrell did not argue incapacity when cleared for work by Dr Osborne in February 2010 – his general practitioner also cleared him for work and he was keen to return;

   ·Dr Dowda’s opinion came six months later, and took into account safety concerns – Mr Tyrrell disagreed with him;

   ·The reports of Drs McGill, Kleinman, Osborne and Bentivoglio do not support the Applicant’s case – only Dr Bodel does.

5. The Members of the Tribunal have considered the evidence and the submissions. We conclude that:

   ·Mr Tyrrell is a witness of truth and the fact that there is certain divergence in the history given as to how the accident occurred on 16 June 2009 does not concern us greatly;

   ·It is undisputed Mr Tyrrell suffers severe degenerative osteoarthritis of the right knee which was asymptomatic prior to the accident of 16 June 2009;

   ·We are satisfied with the medical opinions which provide that the tear of the meniscus of the Applicant’s right knee was as a result of the accident of 16 June 2009, noting that even Dr McGill reluctantly conceded this;

   ·The Applicant has undergone arthroscopy of the right knee for the meniscus tear (16 November 2009), and has continued to suffer pain;

   ·Accordingly, we are satisfied from the opinion of Dr Bodel, which we prefer over that of the other doctors, that the pain continues in relation to the injury of 16 June 2009, and that the incapacity he suffers is as a result of that injury, rather than just from the progressive nature of the osteoarthritis of Mr Tyrrell’s right knee;

   ·We accept the opinion of all the doctors involved in this matter that Mr Tyrrell will eventually require a complete right knee replacement;

   ·We are satisfied that the other conditions Mr Tyrrell suffers, mentioned above, did not contribute to his retirement, which was due to safety concerns arising out of his right knee condition;

   ·We noted from Professor Kleinman’s report of 4 August 2011 (Exhibit  R4), that when asked by the Respondent’s lawyers as follows:

   Taking the enclosed documents into consideration, are you able to assess (on the balance of probabilities) whether Mr Tyrrell’s condition was caused, contributed to, or aggravated by, his duties in his employment with Asciano?

   Professor Kleinman replied:

   On the balance of probabilities Mr Tyrrell’s condition was aggravated by the injury sustained while under the employment of Asciano but he had pre-existing extensive degenerative change in the medial compartment of the right knee.

   ·We are further satisfied Professor Kleinman, in holding that Mr Tyrrell can operate a train from the driver’s cabin, did not fully comprehend the additional duties and responsibilities a driver has.

6. As we have found that Mr Tyrrell presently, and from 16 July 2010, continues to suffer the effects of the aggravation of 16 June 2009, and that he was retired from his job as a result of his injury on 16 June 2009, we are satisfied that he is entitled to compensation pursuant to sections 16 and 19 of the Act. Mr Tyrrell mentioned taking analgesic medication at the hearing, and Professor Kleinman considered that a gym program and physiotherapy to maintain fitness was reasonable and necessary. That, and any future knee replacement, if arising in relation to the injury of 16 June 2009, would be covered by the application of section 16 of the Act. We have already noted above that Mr Tyrrell was retired as a result of his compensable injury of 16 June 2009. Section 19 of the Act deals with monetary compensation for injuries resulting in incapacity, and as Mr Tyrrell can no longer drive trains, he is accordingly eligible for section 19 payments.

7. We did not have evidence before us regarding any requirements for assistance pursuant to sections 29 and 39 of the Act. However, should that arise, Mr Tyrrell would have to make an application for such assistance.

   DECISION

8. By consent of the parties the Tribunal affirms the application in Matter 2011/1511.

9. The Tribunal sets aside the decision under review in application 2010/3445 and in substitution finds that Mr Tyrrell is eligible for compensation pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988.

I certify that the preceding 51 (fifty one) paragraphs are a true copy of the reasons for the decision herein of Ms G Ettinger, Senior Member and Dr Saw Hooi Toh, Member.

................[sgd]........................................................

Associate

Dated 20 April 2012

Date(s) of hearing	14 and 16 February 2012
Counsel for the Applicant	J Mrsic
Solicitors for the Applicant	S Dougall, White Barnes Solicitors
Counsel for the Respondent	D Richards
Solicitors for the Respondent	B Ablong, HBA Legal