Layt and Military Rehabilitation and Compensation Commission
[2008] AATA 500
•17 June 2008
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2008] AATA 500
ADMINISTRATIVE APPEALS TRIBUNAL )
) No 2007/1083
GENERAL ADMINSTRATIVE DIVISION ) Re MALCOLM LAYT Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Dr K S Levy RFD, Senior Member Date17 June 2008
PlaceBrisbane
Decision The Tribunal determines as follows:
i. The application under review is affirmed; and
ii. There will be no order as to costs.
................[Sgd]..............................
District Registrar
CATCHWORDS
COMPENSATION – Claims – Applicant injured whilst undertaking recruitment training with Australian Army – whether applicant suffered permanent impairment – delay in treatment after injury exacerbated condition – applicant has permanent impairment in his knee – decision under review affirmed.
PRACTICE AND PROCEDURE – Evidence – prior inconsistent statements – creditability not an issue with applicant – evidence determined to be of substantive probative value.
Evidence Act 1995 (Cth), ss 102, 103
Military Rehabilitation and Compensation Act 2004 (Cth), ss 67, 68, 69
Carbury v Measures (1904) 4 SR (NSW) 569
Ward v The Queen (1984) 15 A Crim R 275
Engebretson v Bartlett [2007] VSC 163
REASONS FOR DECISION
17 June 2008 Dr K S Levy RFD, Senior Member Introduction
1. Mr Malcolm James Layt, the applicant in this matter, was injured whilst undertaking recruit training in the Australian Army in February 2005. After having previous military service, Mr Layt re-enlisted in the Australian Regular Army on 31 January 2005. Early in the course, he was undertaking a run dodge jump (“RDJ”) course when he landed in a gravel pit and heard a loud cracking noise and this was accompanied by severe pain to his right knee. On 22 February 2005, he was discharged from the Army on medical grounds. He applied for lump sum compensation but this application was rejected on 16 May 2006. On application for review, the original decision was affirmed on 8 February 2007. That decision is now the subject of an appeal to this Tribunal.
Background
2. Mr Layt was 47 years of age when he re-enlisted in the Army. While he was older than most recruits, Mr Layt stated that he was extremely fit and that the recruiting office had made mention that he was fitter than most people who applied for enlistment.
3. He also had previous knowledge and experience in the Australian Army. He had served in the Australia Army Reserve from 1976 to 1977; in the Australian Regular Army from 1977 to 1981; and a further period of service in Army Reserve 1990 to 1993. His service history shows that he had served with 3 RAR overseas in his previous service with the Australian Regular Army, that he had reached the rank of Corporal and was a soldier with some experience.
4. Following the injury, he was provided with some physiotherapy in the short term and his condition was monitored. He was referred a relatively short time later to a specialist who recommended immediate surgical intervention for his right knee injury. That recommendation was not followed but the applicant was discharged from the Defence Force shortly afterwards. He then made a formal complaint through official sources and liability was subsequently accepted by the Australian Defence Force for his injury and arrangements negotiated about having the necessary treatment provided to him.
Legislation
5. This application is made under the Military Rehabilitation and Compensation Act 2004 (“the Act”). Section 67 specifies that the Commissioner may determine guidelines to assess the degree of impairment for the purposes of assessing entitlements to compensation. The Act also relevantly provides at s 68:
Entitlement to compensation for permanent impairment
(1) The Commonwealth is liable to pay compensation to a person if:
(a) the Commission has accepted liability for one or more service injuries or diseases (the compensable condition ) of the person; and
(b) the Commission is satisfied that:
(i) as a result of the compensable condition, the person has suffered an impairment; and
(ii) the impairment is likely to continue indefinitely; and
(iii) the person's compensable condition has stabilised; and
(c) a claim for compensation in respect of the person has been made under section 319.
Note 1: The impairment must constitute a minimum number of impairment points for compensation to be payable (see sections 69 and 70). However, the impairment points from more than one service injury or disease can be combined to make up that minimum number.
Note 2: This subsection might also be affected by sections 73 (indefinite impairments) and 389 (choice to institute action for damages).
(2) The Commission must determine:
(a) the degree of impairment suffered by the person as a result of the compensable condition; and
(b) the date on which the person became entitled to compensation under this section by satisfying paragraph (1)(b) and sections 69 and 70 (if applicable). “
Section 69 goes on to provide:
No compensation for less than the threshold impairment points
The Commonwealth is liable to pay compensation to a person under section 68 only if:
(a) for an impairment resulting from a single service injury or disease consisting of:
(i) hearing loss; or
(ii) the loss, or the loss of the use, of a finger or toe; or
(iii) the loss of the sense of taste or smell;
the impairment suffered by the person constitutes at least 5 impairment points; and
(b) otherwise—the impairment suffered by the person from the compensable condition constitutes at least 10 impairment points.
Note: This section might be affected by section 70 (aggravations etc.).”
6. For the purposes of determining liability under the Act, criteria for assessing whether the statutory provisions are satisfied are contained in Guide to the Assessment of Rates of Veterans' Pensions (“GARP(M)”). Tables 3.2.1 and 3.2.2 are relevant for assessing the applicant’s eligibility for compensation. The criteria for assessment of the impairment in the applicant’s knee must be ascertained based on the following extracts of those Tables:
Table 3.2.1
LOSS OF MUSCULOSKELETAL FUNCTION: LOWER LIMB JOINTS
Impairment
Ratings
NIL
Hip
X-ray changes only with normal range of movement.
Knee
X-ray changes only with normal range of movement.
Ankle
X-ray changes only with normal range of movement.
Toes
Incomplete loss of range of movement of any toe.
TWO
Ankylosis of any toe other than hallux.
FIVE
Loss of about one-quarter normal range of movement.
Hallux:ankylosis in favourable position of either interphalangeal joint; or metatarsophalangeal joint.
TEN
Loss of about one-quarter normal range of movement.
Loss of about one-quarter normal range of movement.
Loss of about one-half normal range of movement.
Hallux:ankylosis in an unfavourable position of either interphalangeal joint and/or metatarsophalangeal joint.
Table 3.2.2
LOSS OF MUSCULOSKELETAL FUNCTION: LOWER LIMBS (BASED ON USE OF BOTH LOWER LIMBS TOGETHER)
Impairment
Ratings
NIL
· Criteria
· Walks in a manner normal for age on variety of different terrains and at varying speeds.
· Sciatic pain – occasional twinges but no effect on walking most of the time.
FIVE
· Walks with intermittent difficulty, such as locking or giving way, without falling. Caution needed on stops and uneven ground, or when running.
· Has intermittent pain from weight-bearing, ie, not all the time, or only after weight-bearing for some time.
· Sciatic pain occurring frequently: present some of the time when walking.
TEN
· Walks at normal pace on level ground, but has constant difficulty up and down steps and over uneven ground. Need for a walking stick may be manifested:
o Pain and/or slowness; or
o Constant pain from weight-bearing.
· Pain restricts walking to 500m or less, at a slow to moderate pace (4 km/h). Can walk further after resting.
· Sciatic pain daily – present most of the time during walking.
Issues
7. The issues for determination by the Tribunal are as follows:
i. Has the applicant suffered permanent impairment?
ii. What is the level of permanent impairment with respect to the accepted condition?
iii. Subject to the level of permanent impairment determined in ii, is the applicant entitled to compensation for permanent impairment pursuant to s 68 of the Act?
Evidence
8. Considerable documentary material was available to the Tribunal prior to the hearing. In addition, two statements were lodged with the Tribunal outside the 28 day period permitted under the Act. While counsel for the respondent objected to their admission, provision exists for the Tribunal to allow admission of additional material under s 356 of the Act. Upon hearing submissions of the applicant’s counsel, it was determined that the additional reports were specialists’ medical evidence. I accepted there were special circumstances for their admission and in the interest of ensuring the applicant was given a maximum opportunity of presenting his case, the late statements were admitted into evidence.
9. However, a question of costs was raised in the preliminary stages of the hearing as the doctor who had prepared the late statements was not available on the hearing day. The hearing of his evidence was then delayed for over three months. Counsel for the applicant made submissions that any costs involved with the delayed hearing should not be borne by the applicant, at least if he is successful.
10. Submissions were made about costs at the end of the hearing. That matter is dealt with as part of the determination of this matter.
Lay evidence
11. The applicant was the only witness other than expert medical witnesses. His statement and oral evidence was to the affect that, following the delay in providing adequate treatment to him, his knee is now sufficiently impaired that he has a permanent impairment. He was able to continue to work but there has not been agreement on the degree of impairment. The liability for the injury has been accepted by the Commonwealth. The degree of impairment, and therefore whether he satisfies the statutory requirements for compensation, remain unresolved.
12. The applicant’s claim is that his lifestyle and mobility have been seriously affected. He can continue to work; although where he did work, he worked very long days and as a night-fill manager in a grocery store where he was often lifting heavy boxes throughout the day. By the end of his work day, he maintained that his knee was swollen and he had pain regularly. He also suffered from sleeplessness, sweating and lack of enjoyment with his children and with sport.
13. In cross-examination he denied that he had been cycling and running since the injury. He also denied that he had told Dr Anthony Wilson that he only had “occasional” pain in his knee.
14. He was also questioned about a WorkCover claim which he had previously made and whether he attributed his difficulties to workplace relations. It was put to him that he had exaggerated stories in the workplace about his previous military experience to those with whom he worked and that his evidence was not reliable. The applicant admitted that some statements he had made in the past were “not right at the time” but he denied there was any lack of veracity in relation to his present claim.
Medical evidence
15. The applicant was first referred for an opinion by Dr Van Der Rijt in the environs of Kapooka on 3 March 2005. Dr Van Der Rijt recommended that the applicant get immediate surgery for his knee problem. However, following significant delay, he sought the intervention of a Member of Parliament and the Army Ombudsman to accelerate action in getting medical treatment. He was subsequently seen in his hometown of Toowoomba by Dr Wilson on 12 April 2005; he was again seen by Dr Wilson and surgery performed on 2 June 2005; and there was a further consultation with Dr Wilson on 23 March 2006. Dr Wilson provided another report in October 2007.
16. Mr Layt was also examined by Dr Brian Purssey on 6 December 2005 and this was the subject of a report by him. Dr Purssey also gave oral evidence by telephone at the hearing. In addition, Dr Edward Barui saw Mr Layt on 20 March 2007 and provided subsequent reports on 20 October 2007 and 18 January 2008. Dr Barui gave oral evidence by telephone on the final day of the hearing on 8 May 2008.
Dr purssey
17. Dr Purssey gave detailed evidence to complement his report. Dr Purssey’s report of 6 December 2005 described the post-operative situation as reported to him by the applicant where he had physiotherapy over a number of months. He indicated that the applicant’s condition at that time was that he had numbness after he had been at work and on his feet lifting boxes in the grocery store for eight to ten hours. He had pain after not moving his knee for periods of time such as driving or sitting. He also had cramps in his hamstring muscles which he had not had prior to the surgery.
18. His work situation required him to be on his feet for 12 to 14 hours per day six days per week. He had to lift cartons up to 20 kilograms in weight. His statement indicated he was happy to do that work and felt that he was capable of continuing with it.
19. In relation to his daily living, he described to Dr Purssey that he could garden and mow the lawn. But that he could no longer undertake some of his hobbies of bushwalking with his daughter and he had problems with slopes (particularly going down slopes) and stairs.
20. Dr Purssey’s examination of the applicant showed that no illness behaviour when he presented for examination. There was also no swelling, effusion, and the ligaments were intact. The movements in his knee was decreased by five degrees in flexion and extension. He could squat to about half the normal position. Dr Purssey also noted an obvious wasting of the right quadriceps and said there was a two centimetre difference between the right and left leg.
21. Dr Purssey observed the applicant going up and down 24 steps and then going around a 100 metre track. He noticed difficulty in walking down stairs and he tended to walk one step at a time.
22. In cross-examination, Dr Purssey was asked to comment on the physiotherapist’s report which records Mr Layt undertaking rehabilitation exercises and doing two sets each of 10 times jogging for 100 metres and then walking back for 100 metres. In cross-examination, Mr Dube put to Dr Purssey that if Mr Layt was in fact cycling and rock climbing some nine months later, then he agreed that the applicant would not meet the criteria of 10 points on the GARP(M) scale, as Dr Purssey had reported.
Dr wilson
23. The applicant was referred to Dr Wilson in April 2005. Dr Wilson first saw Mr Layt on 12 April 2005 and at that time assessed that he was not a strong candidate for surgery. He said there were other factors which would require attention, particularly so that the stiffness in his knee was rehabilitated for six weeks before any reconstruction surgery could take place.
24. On 2 June 2005, Dr Wilson did undertake an ACL reconstruction and this is regarded as being successful surgery. Dr Wilson saw the applicant again on 15 June 2005 and wrote a report indicating that the surgery had been a success and that the applicant could return to work to do office work after two weeks; he could do heavy work after two months; and should have no restrictions after six months.
25. Dr Wilson again saw Mr Layt nine months later on 23 March 2006. At that time, he determined that the right knee was stable following surgery but that the applicant did have a small level of impairment as a result of either the injury or surgery. He thought that, after that period of time, other options including rehabilitation were unlikely to bring any greater degree of improvement in Mr Layt’s symptomatology. He reported that Mr Layt had indicated that he had “occasional pain” if he worked a long day of 12 to 14 hours. (Mr Layt denied this description and insists that he said to Dr Wilson that he had a lot of pain.) Dr Wilson also reported that at that time he had swelling in the knee, but that the applicant also acted as a foster parent on a regular basis and that some demands on his knee were imposed by this duty with children. He reported also at that time that socially he was enjoying swimming and bike riding and that his knee did not prevent carrying out these activities. On examination at that time, he recorded a 10% loss of flexion and that there was a mild degree of wasting of the quadriceps and the calf.
26. Dr Wilson was asked to report again which he did on 2 July 2007. At that time, he reported as he had indicated from his first report, he referred to the interplay of neural factors. In providing oral evidence, Dr Wilson did not say that these were psychological factors but could also be other factors where other nerves near the site of the surgery could be having some influence on the applicant’s perceptions. He reported under Table 3.2.1, there was then less than 20% loss of motion and therefore a 0% impairment would result. Under Table 3.2.2 at that time, there was also less than 20 degrees loss of motion and therefore a 5% impairment would result in applying the factors in that Table. He also noted that when he examined the applicant in March 2006 (15 months earlier) that he had recorded a range of motion between 3 degrees and 130 degrees.
27. Dr Wilson reported again on 22 October 2007. At that time, he concluded that Mr Layt had a permanent impairment and had a loss of movement of 5% under Table 3.2.1 and also 5% under 3.2.2. He said significant improvement in the applicant’s condition was then unlikely but that he may be suitable for office work, cleaning or light manual labour. He reiterated that he had been of the opinion that the level of disability had been greater than the actual orthopaedic impairment and therefore “there has been a mismatch in the symptomatology and pathology”.
Dr barui
28. Dr Barui examined the applicant on 13 March 2007. He reported no fault in the ACL reconstruction but said due to delay in the initial treatment, that Mr Layt has not been able to rehabilitate and get the full range of motion and especially extension in the knee. As a result, he said that the applicant has a degree of arthrofibrosis which still remains. He stated that the applicant has been “unable to rehabilitate properly, in spite of good surgery and physiotherapy”.
29. A further report was provided on 12 April 2007. Again he mentions that the ACL graphs had been done well and said it is “in an excellent position, solid and functioning well”. In describing the applicant’s permanent disability he said that “his ACL has been done flawlessly and I am sure that his problems are coming from the fact that he had such a long delay in the treatment”. Dr Barui also said the only thing that may improve the applicant’s position is if he could increase his muscle power.
30. Dr Barui made a further report on 18 January 2008. He reiterated there that a normal range of movement would be zero degrees to 130 degrees but said on presentation, Mr Layt displayed a range of motion of 10 degrees to 90 degrees only and that this would constitute more than a quarter loss of the range of motion.
31. During cross-examination, Dr Barui was told by the respondent’s counsel that the applicant had a 4% loss of extension prior to surgery but the physiotherapist’s report on 1 June 2005 (the day before surgery) showed that the flexion was complete. Dr Barui stated that he did not previously know those facts. He also indicated that his report was based on his clinical notes which he wrote seven months after examining Mr Layt. He stated that in that seven month period, he would have seen about 70 patients each week over that time. Also, some of the contents of his report of 20 October 2007 were generated from his memory and not necessarily from his clinical notes. He was advised by counsel for the respondent that Dr Wilson had recorded in March 2006, that the applicant’s range of movement was 7 degrees to 147 degrees. Dr Barui agreed with counsel that Dr Wilson’s record was very different to his own and that if those figures were correct then he conceded that the applicant probably would not have lost a quarter of the range of movement as Mr Layt claimed in March 2007.
Consideration
32. I have considered all the relevant law and the evidence in reaching a determination in this matter.
33. The variability in medical evidence has in part revealed very different observations of the applicant. In other respects, the measurements are not so significantly different but the conclusions drawn by each of the specialists is based upon different considerations. For example, “myoneural” factors have been suggested by Dr Wilson, the surgeon who undertook the knee reconstruction, and his reports have raised this issue from his very first report and prior to surgery. He has reiterated this on a number of occasions in his reports.
34. While there was this variability within the medical evidence, and particularly as to the ultimate level of Mr Layt’s disability, all of the expert medical evidence seems to point to the delay in treatment after the injury as being one of the major factors which has exacerbated the applicant’s present condition. Dr Purssey and Dr Barui, in particular, have been strong advocates of that as being one of the main causes.
35. In assessing the evidence, I make the following findings of fact:
i. The applicant’s treatment in the Army after the injury and until discharge was delayed and contributed to his present condition.
ii. The applicant’s evidence in relation to the degree of functioning was not completely reliable.
iii. The applicant has a permanent impairment in his knee.
36. Dr Purssey gave evidence that, in orthopaedic cases such as this, it is important to consider both an active and passive examination of all factors involved. I have considered Ms Scott-Mackenzie’s submission that Dr Wilson was dismissive of the muscle wastage of the applicant. I agree he did not refer to it as frequently as others. He certainly emphasised the structural issues and the efficacy of his surgery in relation to the applicant’s knee. Dr Wilson was also the surgeon and one might be cautious that perhaps his opinion is a little defensive and perhaps less objective. However, Dr Purssey confirmed that the surgical work performed by Dr Wilson on Mr Layt was very good work. So also was the opinion of Dr Barui who referred to the surgery as “solid and functioning well” and also referred to it as having been done “flawlessly”.
37. The difficulty in this case is one of the differentiating which is the more acceptable medical conclusion, that of Dr Wilson, who has done very good surgery but believes the applicant does not meet the criteria or 10 points on Table 3.2.1 or 3.2.2; or the opinion of Dr Purssey and Dr Barui who both believe he should be regarded as meeting the criteria of 10 points on at least one of those Tables. Dr Purssey, however, conceded that if the applicant was cycling or rock climbing nine months after the surgery then he would not believe that Mr Layt would be entitled to 10 points on those Tables. Equally in relation to Dr Barui, his opinion was based in part from his recollection and made seven months after he had actually seen Mr Layt. In addition, the history he had taken (and Dr Purssey emphasised that history taking is very important in clinical medicine) that Dr Barui was not aware of the condition of the knee being almost at full flexion just before the surgery. There was evidence that the applicant had been cycling until last year according to his oral evidence, and then ceased that activity because of the demands of working very long hours.
38. Mr Dube submitted that there were issues of credit which the Tribunal must consider in relation to Mr Layt’s evidence. Ms Scott-Mackenzie on the other hand submitted that those submissions were irrelevant. She argued that credit had not been raised in the hearing and that Mr Layt was completely honest and frank in his evidence. She also submitted that Mr Layt may be a bit of a storyteller when he has a drink with his mates and that, in any event, the evidence which Mr Dube relied upon was untested as she was not able to cross-examine these witnesses.
39. I found the evidence to demonstrate more than that Mr Layt might have been a storyteller. Certainly, there was no suggestion of this in the context of him drinking with his mates. An inability to cross-examine these witnesses could have been rectified if the applicant sought to have those witnesses available for cross-examination, and there was adequate time in the three month adjournment to make such arrangements.
40. However, I agree with Ms Scott-Mackenzie, at least in a technical way, that credit is not in issue with Mr Layt. Credit relates to his character overall, but certainly his credibility was raised on particular issues of fact. The evidence put by Mr Dube in cross-examination relates to previous inconsistent statements by Mr Layt. Where there is such a prior inconsistent statement then it must be “material”[1]. Where a previous statement is not admitted, counsel cross-examining may proceed to prove the inconsistency and may even be admissible as hearsay[2].
[1] Carbury v Measures (1904) 4 SR (NSW) 569; Ward v The Queen (1984) 15 A Crim R 275 at 280.
[2] Engebretson v Bartlett [2007] VSC 163.
41. Section 102 of the Commonwealth Evidence Act 1995 provides that “evidence that is relevant only to a witness’ credibility is not admissible”. But this is qualified in s103(1) which provides that this rule “does not apply to cross-examination of a witness, if the evidence is of substantial probative value”.
42. It seems to me that there is material put in evidence which raised an issue of the applicant’s credibility and needed to be tested. The discrepancies in the medical evidence based on the presentation to two different doctors by the same person needs to be resolved. Mr Dube raised with Mr Layt whether he had been cycling or rock climbing after his operation. This was denied.
43. It was also suggested that his interpersonal interactions at work were troublesome and he had engaged in story telling about military experiences and particularly, it was suggested that he claimed that he was in the SAS. This he also denied in examination and in cross-examination. But a statement by his former employer suggests that this might not be true (Exhibit 10).
44. Mr Layt was also questioned about a claim he submitted to WorkCover in 2006. It was suggested his claims to WorkCover attributing his disability to his work situation are similar to the present claims attributing his condition to his injury in the Army.
45. A report by a psychologist in respect of the applicant to WorkCover in August 2006 (Exhibit 11) was presented to the Tribunal. It was intended to show that his clinical profile within a personality test was contradicted by another test of his psychopathology. While the clinical results are not relevant for present purposes, the test conclusions show that his presentation was likely to have been distorted by him, at least in one test.
46. This evidence was of substantive probative value. But how does this inform the consideration of the impairment rating? Dr Purssey and Dr Barui say the applicant has lost a quarter of the range of movement and therefore 10 points on the relevant scales is appropriate. Dr Wilson says 5 points only would be the appropriate result. I have taken account of all of the evidence and the overlap in the claims by the applicant in the present case as well as in the WorkCover claim. I find that the applicant’s credibility has been diminished as a result. I note also the consistency in Dr Wilson’s report of factors other than the knee reconstruction and, in that sense, I am prepared to accept that Dr Wilson has included active and passive factors as suggested by Dr Purssey. I am also of the opinion that Dr Barui in particular has based his assessment on less clinical history and less total information than Dr Wilson and the fact that his report has been prepared some time later, and from memory, is less reliable. I do not suggest that Dr Barui’s evidence is not of value and indeed, he tended to be the doctor who provided a succinct and objective view of the aetiology of the problem in the sense that there was initial delay in treatment. Nevertheless, for all of those factors, I prefer the evidence of Dr Wilson as having greater efficacy than that of Dr Purssey and Dr Barui in assessment of the level of impairment.
47. Accepting Dr Purssey and Dr Wilson’s measurements as being not significantly different in terms of loss of range of movement, how should this be assessed? Dr Purssey’s assessment is acceptable to Dr Wilson although it is a higher assessment. I accept that Dr Wilson’s assessments have been more frequent and over a longer period and that his evidence was more informative of the level of impairment. Indeed, he described the normal range as covering 150 degrees and therefore a quarter loss of movement to justify a 10 point rating would require a loss of 40 degrees. As Mr Layt only had a 20 degree loss of movement on either Dr Wilson’s measurements or Dr Purssey’s, then a 10 point rating cannot be justified under Table 3.2.1. While Dr Wilson suggests that a 20 degree loss of movement is therefore half of the 10 point scale, he would justify a 5 point rating. The Table however makes no such provision for an injury to the knee for 5 points. Reading that Table as it is presented, if a 10 point rating is not justifiable, then the applicant can only justify zero points.
48. In relation to Table 3.2.2, given the discrepancy in presentation and my preference to Dr Wilson’s evidence, then I am satisfied that Mr Layt can only attain a 5 point rating under that Table.
49. Step 7 of the GARP(M) requirements specify that one must take the higher of the two ratings and not aggregate them or round them up. Therefore, the higher of the ratings is the total of the final impairment rating for the lower limbs. In this case, therefore, a 5 point rating is the total justification based on that analysis.
Issue (iii) Is the applicant entitled to compensation for permanent impairment pursuant to s68 of the Act for his accepted condition?
50. Given the finding of question ii, the applicant’s claim must be resolved with reference to s 69(b) of the Act. As the assessment of the injuries elicited by the evidence attracts less than 10 impairment points, the Commonwealth is not liable to pay compensation under s 68.
51. Consequently, the application cannot succeed.
Costs
52. The power to award costs is in s 357 of the Act. Mr Dube submitted that costs should not be awarded if I find for the applicant. Alternatively, he asks that I reserve the question of costs, subject to submissions by counsel. Ms Scott-Mackenzie submits that as she was prepared to let the statement stay on the record and for me to accord appropriate weight to it, and as it was at the request of the respondent that the further day of hearing was required, then any order as to costs should not be made, except in favour of the applicant should he be successful.
53. It is apparent that Dr Barui’s evidence had to be delayed. It was because of Dr Barui being unavailable, not because of any fault of counsel or the parties. But after his evidence was received, the basis of his reports were clarified and the evidence provided by Dr Barui contributed in no small way to proportioning weight to various parts of the evidence.
54. As I have not found in the favour of the applicant, I make no order as to costs in relation to the second day of the hearing of this matter.
Conclusion
55. The Tribunal determines as follows:
i. The application under review is affirmed; and
ii. There will be no order as to costs.
I certify that the 55 preceding paragraphs are a true copy of the reasons for the decision herein of Dr K S Levy RFD, Senior Member
Signed: .............................................................................
Elizabeth Young, Research AssociateDate/s of Hearing 6 February 2008 and 8 May 2008
Date of Decision 17 June 2008
Counsel for the Applicant Ms S. Scott-Mackenzie
Solicitor for the Applicant Slater & Gordon Lawyers
Counsel for the Respondent Mr B. Dube
Solicitor for the Respondent Sparke Helmore Lawyers
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