ROBERT KING and COMCARE
[2010] AATA 204
•24 March 2010
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2010] AATA 204
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2006/0274
GENERAL ADMINISTRATIVE DIVISION ) & 2008/4759 Re ROBERT KING Applicant
And
COMCARE
Respondent
DECISION
Tribunal M. D. Allen, Senior Member
Dr J. Campbell, MemberDate24 March 2010
PlaceSydney
Decision
1.In matter N2006/0274 the decision under review is AFFIRMED.
2.In matter 2008/4759 the decision under review is SET ASIDE and the Tribunal substitutes its decision, viz that the Applicant is entitled to benefits pursuant to Sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988.
3.The Respondent is to pay the Applicant’s costs in matter 2008/4759.
...................[sgd]......................
M. D. Allen, Presiding Member
CATCHWORDS
WORKERS COMPENSATION: Two applications before the Tribunal.
First Application sought review of a decision to reject urological condition as work-caused. Decision AFFIRMED. Question of whether Permanent Impairment correctly calculated a matter for Respondent in light of High Court decision in Canute v Comcare.
Second Application: Decision to cease payment pursuant to Sections 16 and 19 Safety Rehabilitation and Compensation Act 1988 SET ASIDE.
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988, Sections 14, 16, 19, 62.
CASES
Telstra Corporation Limited v Hannaford (2006) 151 FCR 253
Canute v Comcare (2006) 226 CLR 535.
Re Stafferi and Commonwealth of Australia (1986) 10 ALN; N36
REASONS FOR DECISION
24 March 2010 M. D. Allen, Senior Member
Dr J. Campbell, Member1. This matter concerned two applications for review lodged by the Applicant, viz:
N 2006/0274: seeking review of Reviewable Decision made 24 January 2006 that determined that the applicant had suffered a whole person permanent impairment calculated at 19% caused by the injuries described as “aggravation of lumbar sprain and aggravation of neck sprain”.
2008/4759: seeking review of a Reviewable Decision made 23 September 2008 affirming a prior determination of 24 July 2008 ceasing liability pursuant to sections 16 and 19 of the Safety Rehabilitation and Compensation Act 1988 (“SRC Act”) in respect of the injuries described as “aggravation of lumbar sprain, neck sprain”.
2. So far as matter N 2006/0274 was concerned, the Applicant’s case, as put in his Statement of Facts and Contentions in paragraph 24, was that he had a 30% whole person impairment in relation to his incontinence pursuant to Tables 10.1 and 10.2 of the Comcare Guide.
3. Although at the time of the Reviewable Decision of 24 January 2006 incontinence had not been accepted as a compensable injury pursuant to section 14 of the SRC Act on 25 May 2006 the Respondent accepted urinary incontinence as a compensable injury.
4. In these proceedings the Respondent submitted that on the authority of Telstra Corporation Limited v Hannaford (2006) 151 FCR 253 the correct decision was to reject any claim for urinary incontinence or any other urological condition, and thus affirm that part of the Reviewable Decision that rejected any claim for permanent impairment in respect of urological incapacity.
5. The Respondent further submitted that the Reviewable Decision of 24 January 2006 should be set aside as the calculation of whole person impairment had been made contrary to the method of calculation approved by the High Court in Canute v Comcare (2006) 226 CLR 535.
6. Broadly, the issues for this Tribunal can be said to be:
i.Whether the Reviewable Decision of 24 January 2006 should have calculated the Applicant’s degree of permanent impairment having regard to urinary incontinence as a work related injury; and
ii.Was the decision to cease liability for medical expenses and loss of income, said to have arisen from the Applicant’s alleged back and neck injuries, the correct decision.
7. As we understand the case for the Applicant, so far as relates to his urological condition he relies upon the reports and evidence of urologist Dr William Lynch.
8. In a report to the Respondent dated 31 January 2006 Dr Lynch opined that the Applicant’s symptoms were quite typical of a neurogenic bladder.
9. In a later report dated 13 October 2007 Dr Lynch repeated this opinion stating:
“Mr King has a variable number of urinary and faecal symptoms dating to the time of his injury and subsequent surgery – I am unable to be more specific about exact onset of the various symptoms. He has abnormal urodynamic and anorectal tests, which would be consistent with an incomplete neurological lesion. If these abnormalities were caused by the trauma, considering the time from the various injuries, one would expect them to be permanent.”
10. In evidence, Dr Lynch was less positive. Cross examined he said:
“Now, I, as I said from the start, I can make no direct causative relationships between any of the findings. I can offer explanations for the findings and the inconsistency in the findings that may be there, but I’ve never really been in the position to be able to make a definitive lesion site with this gentleman’s case.”
11. Further cross examined, Dr Lynch conceded that while he had raised in his opinions the possibility of nerve damage at the cauda equina level neurologists would be better placed to form definitive opinions on that issue.
12. Urologist, Dr Katelaris was firmly opposed to Dr Lynch’s opinion. In his report of 26 June 2006 her stated:
“I do not feel that Mr King’s presentation is consistent with neurogenic bladder dysfunction. It would be most unusual to have an isolated disturbance of bladder function in the presence of essentially normal sexual and bowel functions. The nervous innervation of the three pelvic organs is such that low back injury would not isolate one function and spare the other two. Furthermore, the symptomatology is not consistent with neurogenic dysfunction. It is more consistent with a degree of benign prostatic bladder neck obstruction. There is absolutely no indication on physical examination that Mr King has sustained a neurogenic injury to his pelvic organs. The physical examination was quite normal.”
Later he agreed there were inconsistencies in the Applicant’s presentation.
13. In evidence, Dr Katelaris expanded upon his opinions stating that the Applicant’s compliant bladder filling profile excluded a conus or cauda equina lesion.
14. Professor Fearnside is a neurological surgeon who examined the Applicant on behalf of the Applicant’s solicitors. Dr Mellick is a consultant neurologist who examined the Applicant on behalf of the Respondent. Both agreed that the Applicant did not have a cauda equina syndrome. This was also the opinion of neurosurgeon, Dr Kwok, who in a report dated 7 November 2003 to the Applicant’s then General Practitioner (“GP”) stated:
“I must say I have reservations as to whether the urinary symptoms are related to cauda equina compression and my personal opinion is that it is not.”
15. Given the evidence of Professor Fearnside and Dr Mellick, together with the report of Dr Kwok, we find that the opinion of Dr Lynch is not tenable and that we accept the opinion of Dr Katelaris that the Applicant’s urological problems do not result from any neurogenic deficit caused or contributed to by the various motor vehicle accidents experienced by the Applicant.
16. The above finding is enough for us to say that the decision under review, viz the Reviewable Decision of 24 January 2006 is AFFIRMED. We were however invited by the Respondent to consider the correctness of the whole of that decision.
17. There is no doubt that once a decision is before the Administrative Appeals Tribunal (“AAT”) for review, the AAT has the power to review the whole of that decision and cannot be limited by the parties to a review of only part of the impugned decision, see Re Stafferi v Commonwealth of Australia (1986) 10 ALN; N36.
18. So far as reviewing calculations of compensation for permanent impairment are concerned we note that the Applicant’s degree of permanent impairment was calculated by the Respondent according to the method it submitted to the High Court in Canute supra was the correct interpretation of the Comcare Guide to the Assessment of Permanent Impairment. We are not aware of what policy decisions the Respondent has made with regard to determination of the degrees of permanent impairment made prior to the decision of the High Court. The Decision under Review will therefore be affirmed and it is a matter for the Respondent whether the decision is to be reconsidered of it own motion or not.
19. As we understand the Respondent’s submissions regarding the Applicant’s back and neck injuries, its case is that the contemporaneous medical documents cast doubt on the Applicant’s history as given to examining medical practitioners and thus we cannot be satisfied that his current back and neck problems, and hence his inability to undertake the full duties of his employment are causally related to his employment. Furthermore the Applicant is capable of full-time work albeit with some restrictions.
20. There is no doubt that the histories the Applicant has given various medical practitioners has varied. That this will occur over time was accepted by Dr Mellick who said that one has to allow the variability of human memory.
21. Dr Mellick also made the very pertinent point regarding the taking of evidence or a history, viz:
“This is a scary place and some doctors are scary and some aren’t… and evidence given in the Commission (sic) I don’t think necessarily is more reliable than a history taken by an experienced doctor in a comfortable medical suite.”
22. Discrepancies were further pointed to by Professor Fearnside who said:
“I tend to share Dr Mellick’s apprehensions. Mr King told me that the accident in 2002 was more serious and he aggravated his low back – wasn’t sure about his neck. No worsening of leg pain… The left sided sciatica he told me commenced and became more prominent after 1999 but going back to 2002, and all I can say is that he put weight on it when he saw me and if he gave a different version of events to the tribunal then there is discordance in the evidence provided.”
23. We have quoted the above passages to demonstrate that whereas we have acted upon the evidence given by the Applicant in this Tribunal, and subject to cross examination, inconsistencies in histories taken by medical practitioners does not necessarily evidence a feigning or exaggeration of symptoms by an Applicant.
24. The Applicant stated to us that he commenced work for the entity now known as Comcar as a driver in 1984. The job required sitting behind the wheel of a motor vehicle for most of the day, plus loading passenger luggage.
25. During the course of his duties with Comcar, up to the year 2006, he was involved in six rear-end collisions.
26. The first of these collisions was in 1987. Subsequent to this incident he developed neck pain but he did not think that he had time off work. He had treatment for his injuries at Concord Hospital.
27. There are no records extant regarding the Applicant’s 1987 motor vehicle accident but we do not regard the lack of records, after this period of time and the various changes to administrative arrangements regarding Commonwealth motor vehicles and their drivers, as being material.
28. The Applicant said he received physiotherapy at Concord Hospital although the records produced by Concord Hospital do not disclose this, and also modifications were made to the driver’s seat of the vehicle he was driving. Although he did not require any time off work the pain in his neck never went away completely.
29. Cross examined regarding a motor vehicle accident in 1989 the Applicant said that he did not remember this motor vehicle accident specifically.
30. During the 1990’s the Applicant was able to keep working without time off up until 1999. His neck was always a problem and he had difficulties sleeping. He also had low back pain and had to be careful lifting. His low back pain started after the 1987 motor vehicle accident but was not troublesome until the mid 1990s.
31. A further rear-end collision occurred in December 1999. The Applicant thinks he had a week or so off work following that motor vehicle accident.
32. From 1999 to the end of 2001 he was able to manage his duties but had made a request to his employer not to be required to undertake long trips. During this period he was having remedial massage and chiropractic treatment.
33. The applicant first noticed incontinence problems around Christmas 1999. He finally sought treatment for this condition in 2002. In 2000 he was prescribed an anti depressant, as he found he was having suicidal thoughts and bursting into tears for no reason.
34. A further rear-end collision occurred on 12 March 2002. This motor vehicle accident was described by the Applicant as having a significant impact.
35. Immediately after this motor vehicle accident the Applicant felt stiff in the neck and back. He saw his GP the next day who certified him unfit for work. Once the stiffness from the motor vehicle accident subsided he noticed that his neck and back pain had increased.
36. In addition to his back and neck pain becoming worse, the Applicant started to get a numbness in his left leg, being down the back and side of the thigh extending to the knee. He also noticed that with long periods of sitting he had numbness in his left arm.
37. A further exacerbation of symptoms occurred when he was required to load 40 to 60 heavy bags belonging to a visiting Chinese delegation. He became very stiff and the next day attended his GP who certified his absence from work for one month.
38. During this period off work, the Applicant noticed his stiffness decreased but his pain increased. He was stiff in the neck but had muscular pain under the scapula. Before returning to work he was examined by a Commonwealth Medical Officer (“CMO”) who stated that he was unfit to drive. He again saw a CMO at Health Services Australia on 21 May 2002 and since then has never returned to driving work at Comcar.
39. On 14 May 2004 the Applicant underwent a lower lumbar spinal fusion at St George Private Hospital. After that procedure his back pain reduced significantly but did not completely abate, and his sciatica diminished. He found that after the back surgery his urinary incontinence symptoms ceased for a period of months but later returned.
40. Subsequent to Respondent ceasing benefits pursuant to its decision of 24 July 2008 the Applicant returned to work on 13 October 2008. He is now on reduced duties and still classed as unfit for driving duties. Back and neck pain continues and he takes Panadeine Forte to cope.
41. Cross examined the Applicant stated that in 1987 he had been examined by occupational therapist Mr David Tasker. Mr Tasker’s report refers to headaches, neck shoulder and upper arm pain and discomfort caused by the drivers seat of the motor vehicle the Applicant was using. Mr Tasker stated:
“The existing Fairlane seat does not provide adequate lumbar support. The inadequate lumbar support combined with the lateral support which is too high, forces Mr King into postures which contribute to an exacerbation of his cervico-thorasic spinal problems.”
No mention is made in the report of any sequela from a motor vehicle accident earlier in the year.
42. The Applicant conceded that in 1988 he had seen an orthopaedic surgeon, Dr Roarty. A medical practitioner employed by the Commonwealth Department of Health noted on 30 March 1988:
“Neck and shoulder pains. S/B Dr Roarty (Orthopaedic Specialist) he believes the pains are of postural origin and agrees with report produced by Mr Tasker that modifications to the seat of the vehicle be made…”
43. On 8 November 1990, the Applicant completed a Notice of Accident form stating that he had neck and back strain, the cause being “car seat in poor or broken condition”.
44. A report by occupational therapist, Julie Arnheim, dated 30 November 1990 refers to a “rear end car incident two to three months prior to this.”
45. On 3 September 1991 the Applicant wrote to his employer again complaining of the design of the seat in the vehicle he was driving. On 14 October 1991, his then GP, Dr Voutos, wrote a report stating inter alia:
“Mr Robert King has consulted me last year and this year for ongoing neck/back pain due to inadequate support from the car seat which triggers off the pain.”
No reference is made to pain arising from any motor vehicle accident
46. During the period 1993 to 1997 the Applicant was able to perform his duties without restrictions. His next motor vehicle accident, which again was a rear-end collision, was in early 1999.
47. The Applicant’s then GP, Dr Moore, wrote to the Respondent on 7 September 1995 stating inter alia:
“Mr King has sustained a soft tissue injury to his thoraco-cervical paraspinal muscles, left trapezius and left supraspinatus muscles. Historically this stems from a motor vehicle accident he had in 1987 and has been aggravated to some extent by his work as a Commonwealth driver.”
48. Subsequent to Dr Moore’s letter, the Applicant was examined by orthopaedic surgeon Dr Wilding. In his report of 14 May 1997, Dr Wilding stated:
“He had no problems with his back or neck prior to a motor vehicle accident in 1987. …He was hit in the rear by another vehicle. …He had no soreness in his neck or back immediately but over the next three to four weeks he developed soreness in his neck and back.”
49. In a later report dated 25 July 2000, Dr Moore recorded the Applicant’s history as:
“Mr King’s first presentation with neck and back pain was on 8 November 1990. …He presented with pain in the neck and stated that he had had his car seat modified in an attempt to reduce his symptoms. He also stated that the problem had been in existence for approximately 4 years....
Mr King next attendance regarding work related shoulder pain was on 20 December 1990. On this visit he stated that he had pain in the left shoulder in the scapular region which he felt was secondary to driving....
Mr King was next seen regarding back pain on 14 October 1991. At this consultation Mr King stated that he had ongoing problems since 1985 and that he felt his pain was posture in origin and related to improper seating in the vehicles that he was driving in the course of his employment…
Mr King’s next attendance related to neck and back pain was on 15 December 1994. Mr King stated that in September 1987 he had been involved in a motor vehicle accident where the car he had been driving had been hit from the rear… Since then Mr King had notice ongoing neck and back problems and stated that he had required special seats fitted to the Commonwealth car that he was driving and ongoing physiotherapy and remedial massage…
Mr King was next seen regarding back pain on 9 May 1998. Mr King complained of pain in the right lower back which he said had been present on and off for a few years and he denied any history of injury.”
Unfortunately the history taken by Dr Moore contains its own internal contradictions. For example if the Applicant claimed ongoing neck and back pains since the 1987 motor vehicle accident, why on 9 May 1998 did he deny any history of injury.
50. The Applicant was examined by occupational physician, Dr Crocker on 25 October 2005 at the request of his employer. This consultation followed the motor vehicle accident of 12 March 2002. Dr Crocker took a brief history of prior motor vehicle accidents stating:
“With respect to relevant past medical history, Mr King reported that he has been involved in multiple previous motor vehicle accidents arising in 1987, 1991, 1992, and 1999. He stated that these had all been work related rear-end motor vehicle accidents…
He reported that he has suffered neck and low back related symptoms with similar treatment as outlined above having been instituted.”
51. Dr Crocker suggested further investigation regarding any diagnosis of the Applicant’s complaints, including his urological symptoms, but opined:
“Concerning work suitability, despite Mr King’s multiple complaints, there is only mild limitation with respect to range of motion to the various regions. Functional limitation overall is present but not evident to a significant degree. In view of the multiple regions complained of over an extended period, however, I consider that Mr King is probably unfit to continue as a Comcar driver. The more prolonged static seated postures and potential for having to handle multiple heavy luggage would potentially further negatively impact upon his condition.”
52. Dr Diwan of the St George Hospital Department of Orthopaedic Surgery wrote a report to the Applicant’s GP dated 8 October 2003. In that report no mention is made of any neck pain but after reviewing an x-ray and MRI of the lumbar spine, Dr Diwan diagnosed a spondylolisthesis grade 2 L4-5 with severe lateral foraminal stenosis. A spinal fusion was recommended.
53. Prior to consulting Dr Diwan the Applicant had been examined by Dr Gilksman of Health Services Australia. In his report of 13 May 2002 Dr Gilksman took a history of the Applicant being injured in a motor vehicle accident in 1987 which was followed by the gradual onset of problems. According to Dr Gilksman’s history the Applicant self treated for the first six months, then when symptoms did not resolve he attended a GP. Dr Gilksman records that the Applicant was referred to an ergonomist who recommended seating modifications to the vehicle he was driving which proved to be of some symptomatic benefit. Since that time the Applicant had suffered “at least four more serious motor vehicle accidents”.
54. In his report, Dr Gilksman opined that though clinical examination of the Applicant was largely normal, there were clinical and historical aspects to suggest the possibility of degenerative change affecting the cervical and lumbar spine.
55. As referred to previously, the Applicant was examined by Professor Fearnside and Dr Mellick. Both medical practitioners, based on the histories given to them, were largely in agreement as to the diagnosis of the Applicant’s current disabilities and their cause.
56. In the opinion of Professor Fearnside, the Applicant suffered from a spondylolisthesis L4 on L5 and a pars interarticularis defect at L4 which is a developmental condition. Dr Mellick agreed with Professor Fearnside.
57. Professor Fearnside took a history of several motor vehicle accidents going back to 1987 and opined that the motor vehicle accidents had aggravated his spondylolisthesis causing it to become symptomatic. Dr Mellick opined that the Applicant had had back pain for 15 years which really did not interfere with the Applicant’s functioning, but as a result of the 2002 motor vehicle accident something new happened, viz an increase in chronic pain syndrome due to a lesion at the L5 S1 level.
58. So far as the Applicant’s neck is concerned, Professor Fearnside stated that age related degeneration in the Applicant’s spine had been rendered symptomatic by the motor vehicle accident in 2002.
59. Dr Mellick did not agree with Professor Fearnside on this point. On examination he had found that the range of movement in the Applicant’s neck was normal and unrestricted. This is not consistent with significant degenerative disease exacerbated by motor vehicle accidents years before. In Dr Mellick’s opinion the Applicant’s neck pain arose because of a chronic pain syndrome.
60. The evidence of Professor Fearnside and Dr Mellick was given conjointly. The effect of their evidence can be said to be that the Applicant has, as stated previously, a spondylolisthesis at L4/L5 and a spondylolysis at L4. These are all congenital conditions but have been aggravated and made symptomatic by various motor vehicle accidents and pain has continued. These opinions were based on the histories obtained by them.
61. Other evidence adduced from Professor Fearnside and Dr Mellick concerned the observed range of movement in the Applicant’s neck and back at the time they examined him. It was common ground that both observed different ranges of movement at examination, however, both specialists accepted that the more acceptable term to describe the loss of range of movement in the Applicant’s lumbar spine was “minor restrictions of movement”.
62. So far as an inability to work is concerned, both Professor Fearnside and Dr Mellick thought he could do some driving work, restricted by when he started to feel sore in the driver’s seat. He would also be restricted in what he could lift, for example, Dr Mellick said that he could not regularly lift 15 kilograms. Specifically Dr Mellick opined that the Applicant could not lift suitcases weighing 22 kilograms.
63. Dr Harvey-Sutton is an occupational physician. She examined the Applicant on 10 February 2004, 20 June 2005 and 29 August 2008. In her evidence to the Tribunal Dr Harvey-Sutton said that her opinion was that the Applicant had chronic mechanical neck pain with probable damage to the ligaments, to the discs and to the facet joints as a result of his motor vehicle accidents.
64. Questioned regarding the Applicant’s ability to work, Dr Harvey-Sutton stated that he could do some work as a Comcar driver, but with restrictions on how much he could lift. He could possibly do 20 to 25 hours a week driving, but ultimately it would be a question of trial and error.
65. Dr Anthony Smith, orthopaedic surgeon examined the Applicant at the request of the Respondent. His opinion can be summarised by saying that the Applicant has a degenerative condition and that there may have been incidents in the course of his work that have led to symptomatic increases at periods of time, either sitting for lengthy periods of time or driving but they have not led to any lasting effect.
66. So far as the Applicant’s neck is concerned it was Dr Smith’s opinion that the Applicant had nothing wrong with his neck clinically. As to his back, if the fusion has been successful he would not put any restrictions on him.
67. As pointed out in the evidence of Professor Fearnside and Dr Mellick, not only is the history given by the patient relevant, but so also are contemporaneous medical records.
68. From the records available, it seems that initially the Applicant did complain of neck and back pain but blamed the seat in his motor vehicle for these symptoms.
69. The first record of a motor vehicle accident causing any pain is in June 1989 when reference is made to pain in the right ear following a motor vehicle accident on 18 May 1989. A Notice of Accident signed by the Applicant and dated 8 November 1990 refers to back and neck strain again allegedly caused by a faulty car seat.
70. It is not until the report of occupational therapist Ms Arnheim dated 30 November 1990 that reference is made to a rear end collision as a cause of neck and back pain.
71. Reports implicating a motor vehicle accident in 1987 in neck and back pain were not obtained until the reports of Dr Moore on 7 September 1995 and Dr Wilding on 14 May 1997. The only conclusion we can draw from the delay in implicating any motor vehicle accidents in 1987, 1989, 1990, 1991 and 1992 in back and neck pain was that the Applicant was not initially so disabled by back and neck symptoms that he drew any correlation between his motor vehicle accidents and his symptoms. Rather, especially in 1987 and early 1990s, more emphasis has been placed on pain caused by faulty car seats.
72. Although the Applicant has at times not sought to implicate his motor vehicle accidents in the onset of symptoms that is not to say that these motor vehicle accidents may not have played some part in his current condition, particularly as there were complaints of pain, albeit not at the time referred to motor vehicle accidents.
73. There is no doubt that the Applicant was involved in two significant motor vehicle accidents: one on 6 December 1999; and a second on 12 March 2002. Both of these motor vehicle accidents caused increased symptoms of back and neck pain. Also after his return to work after the 2002 motor vehicle accident the Applicant was involved in lifting 40 to 60 heavy bags belonging to a Chinese delegation, which caused immediate symptoms of stiffness, and later more back pain.
74. We acknowledge that the Applicant has been an inconsistent historian, but in stating that we take into account the qualifications on history taking by Dr Mellick referred to above. In addition, the events canvassed extend over a lengthy period of time. Specifically we do not find that the Applicant has sought to dissemble.
75. To our mind the opinions by Professor Fearnside and Dr Mellick are to be preferred given the known events in this matter. As both medical practitioners stated to the Tribunal, the Applicant has a chronic pain syndrome arising particularly from the last motor vehicle accident in 2002.
76. So far as the Applicant’s ability to work is concerned, again we prefer the evidence of Professor Fearnside and Dr Mellick, which to our minds is not at odds with the opinions of the occupational physicians Dr Harvey-Sutton and Dr Crocker, viz that the Applicant is suitable for some driving duties but not the full duties required of a Comcar driver, particularly regularly lifting luggage. He would, on Dr Mellick’s evidence, be suitable as a courier driver delivering light parcels.
77. The above findings are sufficient to determine that the decision under review will be SET ASIDE and the Tribunal substitutes its decision viz that the Applicant is entitled to benefits pursuant to sections 16 and 19 of the SRC Act.
78. During the hearing of this matter evidence was adduced as to the loss of range of movement in the Applicant’s cervical and lumbar spine. It is not necessary for the decision under review for this Tribunal to make any finding on that matter.
79.The Respondent is to pay the Applicant’s costs in matter No. 2008/4759.
I certify that the 79 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr J Campbell, Member
Signed: ....................[sgd]........................................
K. Lynch, AssociateDate/s of Hearing 21 July 2008; 11-12 February 2009;
11-12 August 2009; and 2&25 February 2010
Date of Decision 24 March 2010
Counsel for the Applicant Mr R de Meyrick
Solicitor for the Applicant Mark O’Callaghan & Associates
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Australian Government Solicitors
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