Millen and Military Rehabilitation and Compensation Commission

[2005] AATA 555

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 555

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No D2004/15

VETERANS' APPEALS DIVISION		)
Re		DARREN MILLEN

Applicant

And MILITARY REHABILITATION
AND COMPENSATION
COMMISSION

Respondent

DECISION

Tribunal Mr RG Kenny, Member

Date10 June 2005  

PlaceBrisbane

Decision The Tribunal affirms the decision under review.

.....................[Sgd]....................

RG Kenny
  Member

CATCHWORDS

WORKERS’ COMPENSATION – claim for permanent impairment – right ankle fracture and associated degeneration conditions – relevance of foreshadowed decision to revoke liability - application of the Guide to the Assessment of the Degree of Permanent Impairment – whole person impairment rating under Table 9.2 and Table 9.5 – threshold requirement of 10% for payment of compensation for permanent impairment not satisfied – decision under review affirmed

Safety, Rehabilitation and Compensation Act 1988 ss 4, 14, 24, 27, 28

Lees v Comcare (1999) 56 ALD 84
Re Carson and Telstra Corporation (2001) 33 AAR 351
Australian Postal Corporation v Oudyn [2003] FCA 318; 73 ALD 659
Comcare and Moon (2003) 75 ALD 160
Watkins and Comcare [2002] AATA 613; 69 ALD 498

REASONS FOR DECISION

10 June 2005   Mr RG Kenny, Member      

Background

1.      Darren Millen (the applicant) was born on 11 June 1967.  He served in the Australian Army from August 1990 until September 2000.  On 14 July 2000, he lodged a claim for compensation for a right ankle condition which he described as having occurred during his basic training in 1990.  On 18 September 2000, a delegate of the Military Compensation and Rehabilitation Service (the respondent) accepted liability for “right ankle, fracture without displacement of the tip of the medial malleolus” with liability for compensation terminating on 12 September 2000.  Mr Millen sought review of that decision and, on 9 September 2003, the respondent revoked its initial decision on the basis that he continued to suffer from the injury and liability was accepted for his “right ankle fracture and associated degeneration conditions”.  Those decisions were made in accordance with the terms of the Safety, Rehabilitation and Compensation Act 1988 (the Act).

2.      On 18 November 2003, a claim was lodged on Mr Millen’s behalf for permanent impairment under the Act.  On 30 January 2004, this claim was rejected by the respondent on the basis that, even though his impairment was permanent, he did not have a whole person impairment at the level of 10% or more.  A reviewable decision, affirming that determination, was made by the respondent on 21 May 2004 and, on 30 June 2004, Mr Millen sought review of that decision by the Administrative Appeals Tribunal (the Tribunal).

Hearing

3.      At the hearing, Mr Millen was represented by Ms B Carter-Nicoll of counsel and the respondent was represented by Miss E Ford of counsel.

4. Material prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) was taken into evidence as exhibit 1 (the “T” Documents – T1 to T25) as well as the following:

§  exhibit 2:            a statement, dated 9 October 2004, by the applicant;

§exhibit 3:           a medical report, dated 27 January 2005, by specialist occupational physician, Dr James Rowe;

§exhibits 4 & 5:   medical reports, dated 21 October 2004 and 4 November 2004, respectively, by orthopaedic surgeon, Dr Terence Saxby; and

§exhibit 6:           a facsimile letter, dated 13 May 2005, from the applicant’s solicitors to the respondent’s solicitors.

Issues and Legislation

5. Section 14 of the Act provides that Comcare is liable to pay compensation in respect of an injury suffered by an employee if the injury results in incapacity for work or impairment. The term “injury” is defined in subsection 4(1) of the Act to include a disease and, in turn, that term is defined to include any ailment or aggravation of any such ailment contributed to in a material degree by the person’s employment. The respondent has accepted that it is liable to pay compensation to Mr Millen from December 1990 and has made compensation payments to him in the past.

6. The matter at issue in this case is whether the respondent is liable to pay compensation for permanent impairment under section 24 of the Act. The term “impairment” is defined in subsection 4(1) of the Act as meaning “the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.”  The term “permanent” is defined as meaning “likely to continue indefinitely” and this must be read with subsection 24(2) of the Act which is set out below.

“Section 24

(2)       For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a)       the duration of the impairment;

(b)       the likelihood of improvement in the employee’s condition;

(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d)       any other relevant matters.”

7.      For Mr Millen to succeed, there must be the loss of use, damage or malfunction of his ankle which amounts to at least 10% whole person impairment under tables in the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) where that is likely to continue indefinitely, having regard to the factors in subsection 24(2) of the Act.

8. The decision under review accepted that the respondent was liable to pay compensation under section 14 of the Act. Miss Ford submitted that the respondent had incorrectly accepted right ankle fracture with associated degeneration as being related to Mr Millen’s employment. She submitted that the incident in which Mr Millen alleged that he fractured his ankle was not responsible for that injury and that it pre-existed his Army service. She submitted that Mr Millen’s service may have been responsible for some deterioration of that underlying condition and she indicated that the respondent would be making a determination in which it would revoke liability for the condition as it is presently described. She submitted that the Tribunal should not make a decision on permanent impairment until such time as the respondent had made that determination and then base its decision on what the respondent determines the relevant condition to be.

9.      Ms Carter-Nicoll referred to the reviewable decision of 9 September 2003 in which liability was accepted for Mr Millen’s right ankle fracture and associated degeneration conditions.  She submitted that this was not under review and that any decision by the Tribunal should be based upon the acceptance of the condition as it is presently described.  In short, she submitted that the issue of the acceptance of liability for the underlying condition was not before the Tribunal.

10. The respondent’s determination on 9 September 2003 accepted liability under section 14 of the Act to pay compensation for right ankle fracture and associated degeneration conditions. It was based upon a series of findings: that an appropriate notice of injury had been given; that a claim for compensation had been made as required; that Mr Millen was an "employee" at the relevant time; that he suffered an injury; and that the injury resulted in incapacity for work or impairment: see Lees v Comcare (1999) 56 ALD 84 at 92.

11. Not infrequently, the respondent will make a determination to bring liability to an end because a condition no longer attracts payments for medical expenses or for incapacity. Less frequently, the respondent will make a determination which revokes an earlier determination under section 14 of the Act. In Re Carson and Telstra Corporation (2001) 33 AAR 351, the Tribunal observed that a revocation decision under section 14 of the Act would be rare as it would involve revisiting the five matters listed above in Lees v Comcare: see also Australian Postal Corporation v Oudyn [2003] FCA 318 at para [32]. In this matter, the respondent has not made a determination either to cease liability or to revoke its determination concerning lability. However, subsequent to the hearing and at a point where the Tribunal was about to hand down its decision, the respondent provided to the registry a copy of a letter, dated 3 June 2005, and addressed to Mr Millen. Therein, the Director, Military Compensation and Rehabilitation advised Mr Millen that the respondent’s intention was to revoke the initial decision in which it accepted liability for “right ankle fracture and associated degeneration conditions” and to substitute a decision whereby it accepted liability for “sprains and strains right ankle”. Mr Millen was given a period of 28 days to provide further information about his initial claim. The Director advised that, after the period of 28 days, he would proceed with his reconsideration of the initial decision.

12.     Despite that statement of intention on 3 June 2005, the decision that is before the Tribunal remains that relating to permanent impairment in respect of “right ankle fracture and associated degeneration conditions” for which liability was initially accepted.  In this hearing, it is not open to the respondent to challenge the original acceptance of liability: see Comcare and Moon (2003) 75 ALD 160. What the respondent may do in the future can not constitute the basis of a decision on this matter which is before the Tribunal.

13. I accept the correctness of the submission of Ms Carter-Nicoll in this matter and, accordingly, proceed on the basis that liability exists for the condition as described in the decision under review and the issue then becomes whether or not the respondent is liable to pay compensation for permanent impairment. In that regard, section 24 of the Act, insofar as relevant, reads:

“(1)Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.

(2)For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:

(a)       the duration of the impairment;

(b)       the likelihood of improvement in the employee’s condition;

(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d)       any other relevant matters.

(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.

(4)The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).

(5)Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.

(6)       The degree of permanent impairment shall be expressed as a percentage.

(7)       Subject to section 25, if:

(a)the employee has a permanent impairment other than a hearing loss; and

(b)Comcare determines that the degree of permanent impairment is less than 10%;

an amount of compensation is not payable to the employee under this section.

…..

(9)       For the purposes of this section, the maximum amount is $80,000.”

14. The “approved Guide” referred to in that provision is the Guide to the Assessment of the Degree of Permanent Impairment for which provision is made in section 28 of the Act.

History of Mr Millen’s Condition

15.     In his initial claim, and in his evidence, Mr Millen said that he hurt his ankle whilst undertaking a physical training exercise at Kapooka during his basic training in December 2000.  He heard a cracking sound and was unable to walk on his foot.  He was carried away by fellow soldiers to a first-aid post where his boot was cut from his foot.  He said that he was advised that it was a bad sprain, was given pain killers, had his foot bandaged and was given an ice pack.  He said he was relieved of training duties for one or two days and was given restrictions in respect of running or pack work but he was still required to march and attend all other classes in his course. 

16.     Mr Millen’s first posting after Kapooka was at the School of Armour and, early in 1991, he again experienced a problem with his ankle when it rolled on him during a walking exercise.  He said that x-rays were taken at the Puckapunyal Field Hospital and he was given restricted duties for a week. He also completed an injury form.  He said that, thereafter, he continued to experience pain in his ankle although he managed to satisfy all the physical training requirements of the Army.  He said that he had no previous injuries to his ankle prior to joining the Army. 

17.     Mr Millen is currently employed as a storeman in which he deals with high technology equipment such as computers.  He works in Darwin and is responsible for delivering and collecting computers and other equipment from remote stations.  He said that, if it is necessary, he will negotiate stairs but will use an elevator if possible.  He said that he has had several falls on stairs because of his ankle.

18.     Mr Millen said that he has a constantly present sensation of his ankle joint being pressed between a person’s hands.  He described the following limitations that his ankle condition has imposed upon him.  He experiences difficulty with activities such as pushing a shopping trolley or mowing lawns or carrying out domestic duties such as ironing, hanging washed clothes, washing dishes, and sweeping or vacuuming his premises.  Prolonged standing or walking even on flat ground results in stiffness of his ankle joint and pain when walking.  He is at his greatest risk when he is walking on uneven ground.  He was an outdoor person but one who has now limits his activities such as beach walking, fishing, shooting and creek fishing.  He suffers pain much of the time and lives with it on a daily basis.  He is limited in the extent to which he is able to interact with his own children and he has had to reduce his responsibilities within the community of which he is part.  He has difficulty in driving for more than an hour because of pain in his foot.  He has three children aged, 2, 4 and 8 years, respectively, who were highly active and this made it very difficult for him to keep up with them and he feels restricted in the extent that he can enjoy their company.

19.     In cross-examination, Mr Millen initially said that he played no sport when he was at school.  When pressed, he said it was hard for him to recall what he did during his school years but agreed that he had played AFL football, although not in the school team.  He said that he had been interested in rifle shooting and spent his weekends pursuing that interest rather than playing football.  He said that, in the afternoons after school, he would not play any sport and that the first time he played touch football was in the army.  He said that he became involved in outdoor sports after he had been influenced by his army experiences.  He said he did not do any bush walking before he joined the army.

20.     It was put to Mr Millen that he had injured his foot, and may have fractured his foot, before he joined the Army.  He denied this and also the suggestion that what he did in the army was the aggravation of an earlier injury.  Mr Millen agreed that the injury that he first had at Kapooka and the subsequent injury at the School of Armour had improved quickly and resolved with physiotherapy and medication in the form of anti-inflammatory tablets.  He agreed that he was passed fit for parachuting in 1991 and that he was not suffering problems with his foot in 1994.  He also agreed that he was described as having a normal lower limb in medical examinations in 1997.  He said he had a further fall in May of 2000 but that this had resolved.  He disagreed that he had told two of his examining doctors, Dr Rowe and Dr Blight, that he had injured his foot whilst playing football and said that, if they reported to the contrary, they must have misunderstood what he had told them. 

21.     It was put to Mr Millen that, in the medical examinations undertaken by Dr Talbot and Dr Saxby, he did not indicate the level of difficulty that he did subsequently with Dr Rowe and that he was exaggerating symptoms in the later medical examination. It was suggested that, at that time of the earlier examinations, he had not used the handrails to assist him on stairs.  He denied these suggestions  Mr Millen said that the examination by Dr Saxby had taken no more than five minutes.  He recalled that, on his way to his meeting with Dr Saxby, he had walked up a hill with many steps and was quite exhausted by the time he got to top and his ankle was aching.  He said he got to the interview on time at 9 am and that he was out of the rooms by 9.05 am.  He also said that, during his examination by Dr Saxby, he stumbled and fell in his office.  He said that Dr Saxby had asked him to negotiate only a very small flight of stairs and that he had used the handrail at the time.

Medical Evidence

22.     Oral evidence was given by three medical practitioners in this matter.  These were orthopaedic surgeons, Dr John Talbot and Dr Terence Saxby, and occupational physician, Dr James Rowe. There was also a medical report, dated 2 December 2002, completed by Dr Suzette Blight.

23.     Dr Talbot examined Mr Millen on 26 June 2003 and prepared a report dated 10 July 2003.  He noted that Mr Millen described his ankle as being “a tolerable nuisance” and as being repeatedly painful with inversion movements and as rolling easily when walking on uneven ground.  Dr Talbot said that, during the examination, Mr Millen displayed “pain behaviour with exaggeration of symptoms”.  He said that he confirmed this by the application of tests designed to assess the extent of exaggeration.  These included the “vertical pressure test” and the “simulated rotation test”.  He said that each of these was strongly positive which pointed to a non-organic component in Mr Millen’s presentation.  He said that the facial and verbal expressions demonstrated by Mr Millen during his examination were out of proportion to any radiological evidence of difficulty although he agreed that this was in respect of his back, which he was also examining, rather than his ankle. 

24.     Dr Talbot wrote that he carefully observed and accompanied Mr Millen while he “rapidly ascended and descended two steep flights of concrete stairs” and he said that he was also taken for a “brisk five minute walk”.  Dr Talbot said that this caused no obvious difficulty in Mr Millen’s movements.  He described a loss of range of movement of less than half of normal and allocated 5% in whole person impairment under Table 9.2 of the Guide and 0% under Table 9.5 of the Guide.  In cross-examination, he said that he had followed guidelines provided to him whereby pain was not included as a measure of difficulty.

25.     Dr Saxby examined Mr Millen on 8 October 2004.  He described no obvious wasting in his right leg although he noted some tenderness over the right ankle.  Dr Saxby said that he had not seen Mr Millen walking on sloping ground but that he had seen him negotiate stairs and flat surfaces without difficulty. 

26.     Dr Saxby said that he would never be involved in the examination of a patient that would only take five minutes and he said that he would, as a minimum, spend fifteen to twenty minutes in even a straightforward consultation.  He also said that there was no recollection of Mr Millen stumbling during the examination and he said that, if this had occurred, it would have been included in his clinical notes.  He said that there was no such inclusion.  Dr Saxby said that Mr Millen negotiated stairs without difficulty and without use of the handrail.  He said that, if the handrail had been used by Mr Millen, he would have specifically recorded it in his notes. There was no such reference.  Dr Saxby said that Mr Millen’s injured foot tended to splay outwards to the right and he said that, if anything, this would be a stabilising influence on his capacity to descend stairs because it would place a greater area of his foot on each step.  He described a range of movement loss of less than half of normal which equated with 5% whole person impairment under Table 9.2 of the Guide.  He allocated a 0% rating under Table 9.5 of the Guide.  Dr Saxby also said that he had utilised information provided by the respondent concerning the methodology of measuring difficulty and that he had excluded pain from his calculations. 

27.     Dr Rowe examined Mr Millen on 27 January 2005 and prepared a report on that date.  He described a normal range of movement of Mr Millen’s right foot and ankle and an absence of swelling.  He described dorsi-flexion, plantar flexion, eversion and inversion as being within the full range although he noted that stressing inversion was uncomfortable for him about the inner aspect of the right ankle.  Dr Rowe described him as splaying his foot when he walked up and down stairs and as negotiating them one step at a time and holding the rails.  He considered that Mr Millen had difficulty in walking up and down the stairs.  In cross-examination, Dr Rowe said that he had not attempted any test to demonstrate the veracity of Mr Millen in his presentation of symptoms.  He also agreed that there was no objective evidence to indicate why he would have the difficulties that he demonstrated.  He said that, on the stretching of the ankle, Mr Millen complained of pain but he agreed that all of the indicia that had been displayed were subjective in nature.  Dr Rowe allocated whole person impairment ratings of 0% under Table 9.2 and 10% under Table 9.5.

28.     Mr Millen was also seen by a rehabilitation physician, Dr Suzette Blight, on 22 November 2002.  She prepared a report on that date in which she allocated ratings of 10% whole person impairment under Table 9.2 of the Guide and 10% whole person impairment under Table 9.5 of the Guide. 

Submissions

29.     Ms Carter-Nicoll advised the Tribunal that she did not want to rely on the medical report of Dr Blight.  She advised that a letter to this effect had been written by Mr Millen’s solicitor to the respondent on 13 May 2005 (exhibit 6).

30.     Ms Carter-Nicoll submitted that the evidence of Mr Millen should be accepted and that the medical evidence supported his complaint of continuing difficulty in carrying out daily tasks at work and at home, as causing limitations to aspects of his daily living and as causing a reduction in his recreational pursuits such as bush-walking and activities with his children.  She was critical of the briefing material that had been provided to Dr Talbot and Dr Saxby which, in essence, required them not to take pain into consideration when assessing the difficulty experienced by Mr Millen in carrying out tasks.  She submitted that, if Dr Talbot and Dr Saxby had not excluded pain, their descriptions would have included difficulties in negotiating the steps and the walks which they observed.  She submitted that the evidence of Dr Rowe should be relied upon and this was sufficient for a rating of 10% under Table 9.5 of the Guide.

31.     Ms Ford submitted that Mr Millen was an unreliable witness who exaggerated his symptoms in his evidence and in his presentation to medical practitioners. She submitted that, when this was taken into account, he did not experience symptoms which would warrant a 10% impairment under the tables in the Guide.

Consideration

32.     The Tables of potential relevance in this matter are Table 9.2 and Table 9.5 which read:

“TABLE 9.2
Lower Extremity

(Percentage Whole Person Impairment)

Assessment is in accordance with the range of joint movement. X-rays should not be taken solely for assessment purposes.

%        DESCRIPTION OF LEVEL OF IMPAIRMENT

0        X-ray changes but no loss of function of hip, knee or ankle

or

Ankylosis or lesser changes in any toes except the first hallux

5        Loss of less than half normal range of movement of ankle

10       Any ONE of the following:

loss of less than half normal range of movement of hip or knee

loss of half normal range of movement of ankle

ankylosis of first hallux

15       Loss of more than half normal range of movement of ankle

20       Any one of the following:

loss of half normal range of movement of hip or knee

ankylosis of ankle

30       Loss of more than half normal range of movement of hip or knee

40       Ankylosis of hip or knee

TABLE 9.5
Limb Function - Lower Limb

(Percentage Whole Person Impairment)

%        DESCRIPTION OF LEVEL OF IMPAIRMENT

10Can rise to standing position and walk but has difficulty with grades and steps

20Can rise to standing position and walk but has difficulty with grades, steps and distances

30Can rise to standing position and walk with difficulty but is limited to level surfaces

50Can rise to standing position and maintain it with difficulty but cannot walk

65       Cannot stand or walk".

33.     I accept the submission of Ms Carter-Nicoll that the experiencing of pain can constitute difficulty for the purposes of applying Table 9.5 of the Guide.  In Watkins and Comcare [2002] AATA 613, I put the matter in the following way:

90.      Applying that interpretation to Table 9.5 of the Guide, the applicant will have difficulty if he finds it troublesome or not easy to negotiate grades, steps and/or distances. The limitation need not be significant or substantial but it must be more than slight or minimal.

91.      The factor(s) responsible for giving rise to the particular difficulty will need to be considered. In Re Mooney and Australian Postal Corporation (AAT 9969, 27 January 1995) at paragraph 34, the Tribunal found that “experiencing pain amounts to difficulty in that it makes the function of walking harder to perform”. The Tribunal accepts the submission of Mr Perry that pain may be taken into account as the source of difficulty in performing an activity: see also Re Curtis and Australian Postal Corporation (AAT 10098, 30 March 1995) at paragraph 55 and Re Whelan and Department of Defence (1996) 47 ALD 383 at 401. The Tribunal is also satisfied that weakness in a joint may be taken into account as the source of such a difficulty.”

92.      While pain and weakness may each be taken into account as a source of difficulty in performing an activity, that is not to say that the mere presence of pain or of weakness, without more, means that there is difficulty experienced. The Tribunal notes the reference in the relevant Principles of Assessment to objective criteria (see paragraph 6 above) and is satisfied that, before there can be a finding that there is difficulty in performing a task because of pain, weakness or some other factor, there must be some objective manifestation of that pain or weakness which reveals the difficulty. To find otherwise would be to equate pain or weakness with difficulty and to allocate impairment ratings for those matters which more properly fall for consideration as lifestyle effects for assessment under non-economic loss.

34.     I accept Ms Ford’s submission that caution should be exercised when evaluating the credit of Mr Millen because I had concerns about some aspects of his evidence.  His answers to questions by Ms Ford about his sporting activities prior to his joining the Army were provided in an unconvincing manner.  He sought to minimise the extent that he was involved in any physical activity.  When pressed, however, he agreed that he had played AFL football at some level.  I have also noted the evidence of Dr Talbot and his reference to Mr MiIlen’s exaggeration in his descriptions of pain.  Whilst that was in relation to his back, I am satisfied that it demonstrates a willingness and capacity by Mr Millen to exaggerate his symptoms.  Mr Millen said that the visitation with Dr Saxby lasted less than 5 minutes, starting at 9am and finishing by 9.05am. He also said that he stumbled during Dr Saxby’s examination.  Dr Saxby denied that he would ever spend such a short period of time in an examination and said that his notes would have recorded any stumble that occurred.  I reject Mr Millen’s evidence on both of those matters.

35.     The observations made by Dr Rowe describe objective signs of limitations on the capacity of Mr Millen with stairs in that he negotiated them one step at a time and by holding the rails.  That is in stark contrast to the evidence of Dr Talbot and Dr Saxby.  They noted no such limitation.  Dr Talbot noted that he rapidly ascended and descended two steep flights of concrete stairs and undertook a brisk five minute walk without signs of difficulty.  Dr Saxby’s evidence was consistent with that of Dr Talbot.  I am satisfied that the difference in the presentation of symptoms to Dr Rowe was due to a degree of exaggeration of those symptoms by him at that time.  Accordingly, I accept as correct, the evidence of Dr Talbot and Dr Saxby.  Even though Mr Millen may have been experiencing pain during those examinations, this was not manifested in a manner to demonstrate that he was experiencing difficulty.  I am satisfied that Mr Millen does not have difficulty on steps.

36.     While Dr Rowe allocated whole person impairment ratings of 0% under Table 9.2 and 10% under Table 9.5, Dr Talbot and Dr Saxby each allocated a whole person impairment rating of 5% and 0%, respectively, under those Tables.  I am satisfied that the ratings of Dr Talbot and Dr Saxby are the appropriate ratings under those Tables.  On that evidence, I am satisfied that the level of any permanent impairment in Mr Millen’s right ankle attracts no more than 5% under Table 9.2 of the Guide and 0% under Table 9.5 thereof.  That is insufficient to meet the threshold requirement of 10% for payment of compensation for permanent impairment and, therefore, Mr Millen’s claim is unsuccessful.

Decision

37.     The Tribunal affirms the decision under review.

I certify that the 37 preceding paragraphs are a true copy of the reasons for the decision herein of Mr RG Kenny, Member

Signed:               Denise Burton

Administrative Assistant

Date/s of Hearing  20 May 2005
Date of Decision  10 June 2005
Counsel for the Applicant         Ms B Carter-Nicoll
Solicitor for the Applicant          D'Arcys Solicitors
Counsel for the Respondent     Miss E Ford
Solicitor for the Respondent     Dibbs Barker Gosling