Sim and Australian Postal Corporation

[2004] AATA 376

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2004] AATA 376

ADMINISTRATIVE APPEALS TRIBUNAL         N2002/723 & N2002/871

GENERAL ADMINISTRATIVE DIVISION

Re: PHILIP ROSS SIM

Applicant

And: AUSTRALIAN POSTAL CORPORATION

Respondent

DECISION

Tribunal:       P.J. Lindsay, Senior Member, Dr M.E.C. Thorpe, Member

Date:             14 April 2004

Place:            Sydney

Decision:The tribunal affirms the decisions under review.

(sgd) P. J. Lindsay, Senior Member

©        Commonwealth of Australia          (2004)

CATCHWORDS Compensation – injury sustained at work – back injury – liability for compensation ceased – whether injury resulted in impairment and loss of earning capacity – decisions under review affirmed.

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

REASONS FOR DECISION

P.J. Lindsay, Senior Member, Dr M.E.C Thorpe, Member

1.      Philip Ross Sim has applied to the Administrative Appeals Tribunal for review of decisions made by a delegate of the Australian Postal Corporation concerning compensation in respect of an incident that happened on 29 June 2001.  At the time of the incident Mr Sim was a postal delivery officer. 

2.      Initially, Australia Post denied liability for any injury sustained in the incident but later exercised its own motion reconsideration power to revoke the determination.  The new determination found liability for compensation for a back injury from 29 June 2001 to 27 July 2001, from which date all effects of the injury were considered to have ceased.  On 24 January 2002 Mr Sim lodged another claim in which he stated that the performance of his work duties had aggravated the lower back injury he sustained on 29 June 2001.  On 23 April 2002 Australia Post denied liability.  Mr Sim lodged a compensation claim for permanent impairment of his lumbar spine and left leg on 24 April 2002. By a reconsideration made on 28 May 2002, Australia Post denied liability to pay compensation in respect of all provisions of the Safety, Rehabilitation and Compensation Act 1988 (the Act).   The tribunal will review the decisions made on 23 April 2002 and 28 May 2002.

3. At the hearing, Mr D. Talintyre of counsel appeared for the applicant and Australia Post was represented Mr G. Johnson also of counsel. Mr Sim gave evidence. Dr K. Bleasel, neurosurgeon, and Dr P.Marnie, orthopaedic surgeon, were called by the applicant, and Dr N. McGill, rheumatologist, and Dr D. Maxwell, orthopaedic and spinal surgeon, were called by the respondent. The tribunal had before it two sets of documents lodged pursuant to s.37 of the Administrative Appeals Tribunal Act 1975 (Ta in relation to N2002/723 and Tb in N2002/871).

issues

4.      The tribunal must decide whether Mr Sim is entitled to payment of compensation:

·under s.19 of the Act in respect of incapacity for work as a result of a compensable injury.

·under ss.24 and 27 of the Act for a compensable injury that has resulted in a permanent impairment.

applicable legislation

5.      Relevant definitions from s.4 of the Act are set out below:

impairment means 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.

injury means:

(a) a disease suffered by an employee; or

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

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

6.      The Act  makes provision for liability as follows:

Section 14

Compensation for injuries

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

Section 24
Compensation for injuries resulting in permanent impairment

(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.

…

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

…

injury

7.      Mr Sim said that on leaving school at year 10, he secured an apprenticeship as a chef.  Subsequently he worked as a hotel manager and then served six months in the Royal Australian Navy. 

8.      He joined Australia Post on 1 April 1997, when he was 27. In answer to his counsel, Mr Sim said that he had fractured his coccyx in March 1988 requiring him to have eight weeks off work.  He said it did not cause him any ongoing problems.  Under cross examination and by reference to relevant clinical notes, Mr Sim agreed that in April 1989 he was still reporting “pain everyday” as a result of fracturing his coccyx.   Mr Sim explained that he decided not to disclose that incident to Australia Post at the time of completing his pre-employment medical questionnaire because he thought that if he did, he would not get the job. All the doctors apart from Dr Maxwell knew of the injury and attached no significance or contribution to the consequences of the 2001 injury. As reported by Dr McGill, the applicant has not had any further problems with his coccyx. Mr Johnson made a submission that this omission went to his credit.  

9.      When reminded through some subpoenaed documents, Mr Sim recalled an injury in April 1991 to the area about his first lumbar vertebra.  There was no explanation why he did not tell the examining doctors of the incident. The evidence was that the injury was to the area about the junction of the lumbar and thoracic spine with totally different symptoms to the symptoms experienced in the 2001 injury. All parties including the tribunal were satisfied that the 1991 incident has no bearing or contribution to the 2001 injury.

10.     Mr Sim’s initial duties with Australia Post were as a postal delivery officer.  He sorted and delivered mail, at first carried out on foot and later by riding a motor bike.

11.     A householder on Mr Sim’s delivery run made complaints to Australia Post that the motor bike was leaving skid marks on the nature strip near their mailbox.  Mr Sim was directed by his manager to get off the bike and walk to the householder’s mailbox to deliver the mail. On Friday afternoon 29 June 2001 Mr Sim delivered mail to this household in the manner directed. He parked his bike but it fell over while he made the delivery.  In the incident report he stated that “I heard bike fall over when bent to pick it up felt pain in lower back like a burning sensation” (Ta4). He noted his symptoms as “very sore lower back”.  He unsuccessfully tried to complete his delivery run and then went home to lie down hoping the pain would pass. He consulted a doctor on the Sunday, and was given a prescription for muscle relaxants and a certificate for two days off work.  Australia Post asked him to see Dr M Tan on 2 July 2001. Dr Tan noted the symptoms as “low back pain (no radiation → legs)” (Ta5-16).

12.     Mr Sim claimed compensation on 3 July 2001 noting the affected part of his body as “lower back” (T6).  He returned to work approximately three weeks after the incident.  Australia Post had written to Mr Sim on 11 July 2001 (Ta8) to notify him that any low back pain he had suffered was not considered to be work-related.  Mr R Blumenthal, delivery manager and Mr Sim’s supervisor, wrote to the respondent’s compensation section on 6 July 2001 to say that he could not recommend approval of the claim until further investigations had been completed.  Mr Blumenthal referred to the directive for delivery to the household where the incident occurred and added that each time the householder had made complaints “… Mr Sim became agitated and made some ‘threats’ that if anything happened while parking the bike or delivering the mail that it would not be his fault.  On the day of the incident Mr Sim was very displeased that the occupant of [the household] had complained about him carding the mail.” (T7)

13.     On 12 July 2001 Mr Sim put his account of the incident and his injury to Australia Post in writing as follows (Ta9):

I parked the bike on the safest part of the steep driveway while walking down to the letterbox.  I heard the bike fall to the ground.  I delivered the mail as directed and proceeded to pick the bike up.  While in the process of picking the bike up the incline I felt a burning sensation followed by immense pain in my lower back.  I stayed at the scene for a few minutes to see if the pain would ease.  It didn’t so I returned to the delivery centre and informed the delivery manager and then I went home. I spent the Friday night and the Saturday resting hoping it would ease the pain but it had little affect [sic] so I proceeded to my Doctor on the Sunday, he told me I had a lower back strain and gave me anti-inflammatories.  On the Monday I called work to inform them I could not come into work and they sent me to there [sic] Doctor and he concurred with me doctor.  Since then I have received Physiotherapy and have been informed I need a CT Scan as I may have a ruptured disc but I can not afford this.

14.     In cross-examination, Mr Sim said that he objected to the directive from management that he park his motor bike on the footpath before delivering the mail on foot to this household.  He had informed management that if the bike fell over at this household, he would not pick it up without assistance. Although Mr Sim thought the directive was not correct policy, he said he did comply with it.

15.     Mr Sim had to return to work and perform full duties on 20 July 2001 since Australia Post had determined that there was no liability for compensation beyond that point. He explained that he had used all his sick leave and it was financially imperative for him, with a wife and two children, to continue to work full duties even though he was in pain. He was not consulting a doctor because he said he would not have been able to afford any medication that might be prescribed. He said the bouncing of the motor bike and the bending required to ride and deliver mail made worse the pain in his lower back.  He said he could not use his left leg to prop the motorbike while making a delivery because he would fall over if he put his weight on that leg. His supervisors were critical of his performance as he was taking about 2½ hours longer than usual to complete his shift. 

16.     On 4 September 2001, however, Australia Post decided to reverse its earlier determination without giving any reasons.  Liability was accepted for the back injury but only for the period from 29 June 2001 to 27 July 2001. 

17.     Mr Sim continued working and his symptoms remained. He said he was directed by Australia Post to attend Dr Eshragi on 17 January 2002. The circumstances surrounding this request are unclear. Mr Sim said it was because Australia Post management considered his condition had deteriorated and they had a duty of care to ensure that his condition was checked.  He was reluctant to attend. He said, being cynical, he was worried that he would not be believed.  He was also worried about being put back on compensation and losing the opportunity for overtime, on which his family was financially dependent. 

18.     In the event, a workplace assessment on 22 January 2002 led to his being put on office and sorting duties, without overtime.  In accordance with the advice of Dr Eshragi and Dr Poulos, another G.P, it was recommended that Mr Sim not do bike work, repetitive bending or lift weights exceeding 5kgs. The assessment referred only to a back injury but included a remark about Mr Sim’s “uneven hobbling gait … Mr Sim reported that he experienced difficulty standing in one position, moving while twisting or turning his back.” (Ta25)

19.     Mr Sim lodged another claim for compensation on 17 January 2002 wherein he described the events contributing to his condition in these words ”While doing duties as PDO, I have continued to aggravate a previous lower disc back problem which was brought to the attention of the deliver [sic] manager when he directed me to go the FND” (Ta22). 

20.     For financial reasons, mainly to do with the need for overtime pay, Mr Sim decided to return to full duties as a delivery officer in around May 2002.  He said he was always in agony, but he kept at it to support his family.  In July 2002 he separated from his wife.  Shortly after, he said his employment was terminated.  The termination was made because of his remark to a work colleague that he would shoot his wife if she was having an affair.  Mr Sim said that a subsequent appeal was successful and he was reinstated.  Over objections by Mr D Talintyre, the applicant’s counsel, the tribunal allowed Mr G Johnson, counsel for the respondent, to ask questions concerning this termination and reinstatement as they went to the applicant’s credit. Again over Mr Talintyre’s objections, the tribunal accepted in evidence a letter from Australia Post to the applicant dated 28 August 2002 (exhibit R5).  The letter referred not to a termination and reinstatement but to Mr Sim’s alleged breach of Australia Post’s code of ethics.  It was claimed that he had made a threat of violence towards a fellow employee, and thus it was recommended that he be transferred to another delivery centre and receive counselling.  Mr Sim agreed in cross examination that his appeal to the Board of Reference resulted in his transfer to another facility and Australia Post’s withdrawing its warning counselling.

21.     Mr Sim transferred to the Blacktown delivery centre in around November 2002.  His duties as a postal delivery officer required him to ride a motor bike.  After a few months he was promoted to team leader, a position he still holds.  Mr Sim said this is more of a managerial role, at a higher pay scale than a postal delivery officer and he can work overtime.  Although the heavy work can be delegated, he must use a bike for delivery and supervising work. 

22.     He said that he still has a burning sensation in the middle of his lower back all day and his left leg can give way while walking.  He finds he cannot get comfortable in any sitting position.  He cannot afford any medication.  Since the accident on 29 June 2001 Mr Sim said he is unable to rock fish because he cannot climb over the rocks.  Other recreation is restricted.  He finds he cannot stay seated comfortably while riding his Harley Davidson motor bike for more than 25 minutes.  In cross examination he said his low back condition has remained the same since the incident on 29 June 2001, apart from improving a bit when he lost some weight.  The referral to Dr Eshragi was not prompted by a deterioration in his symptoms.  His condition has not required him to take many days sick leave.  He agreed that he was able to perform the duties of a postal delivery officer, even if he took a bit longer than others.  Mr Johnson put it to him that he was exaggerating his symptoms.  Mr Sim denied any exaggeration and said his back caused him great pain.

23.     Examining doctors obtained varying histories. Dr P. Marnie, an orthopaedic surgeon, on 16 January 2002 (Ta23) took a history that Mr Sim has continual pain in his lower back and that the pain radiates down his left leg to the back of his thigh but he also has numbness in the left foot, mainly on the little toe side, this being associated with pins and needles. In his further report of 8 November 2002 (exhibit A3) Dr Marnie noted the pain goes down his left leg to the back of the thigh, with numbness in the left foot, particularly on the left little toe side, this being associated with pins and needles.

24.     Dr K. Bleasel, neurosurgeon, on 24 September 2003 obtained a history from Mr Sim of low back pain, left buttock pain and pain that descends to the knee and a sensation of pins and needles in the lateral toes of the left foot and that he has to walk with his left hand on his left buttock as it will not swing through (exhibit A6).

25.     Dr D. Maxwell, orthopaedic and spinal surgeon, on 7 February 2002 (Ta27) obtained a history of pain in the middle of his back and a tingling in the left leg, stopping above the knee. Occasionally Mr Sim feels tingling in the back of his right leg.

26.     Dr N. McGill, rheumatologist, on 6 August 2003 (exhibit R1) was given a history of pain in the low back and if the applicant turns quickly, he experiences tingling radiating into the left buttock and posterior thigh and occasionally radiating down to the toes.

27.     Dr J. O’Neill, neurologist, on 16 January 2004 (exhibit R3) took a history of constant low back pain radiating through the left buttock and down the back of the left thigh to the knee.

28.     We had considerable difficulty obtaining an accurate account of the problem with the left leg.  During the period he received compensation there is no record on the Australia Post file of any problem with the left leg. There is no reference to the leg in either the incident report Mr Sim completed on 29 June 2001 or in his Claim for Compensation – lower back 3 July 2001. Indeed in the application for aggravation of the lower back made on 17 January 2002 there is again no reference to the leg. Nor does the medical documentation and certificates record a problem with the left leg.  His GP’s medical practice, the Railway Street Medical Centre, makes no reference to the leg in 2001. The first medical documentation of a leg problem is a Workcover certificate by an attending doctor, Dr C. Poulos 15 March 2002 with a diagnosis of “soft tissue spinal injury with sciatica”.  Mr Sim’s letter to Australia Post referred only to pain in the lower back. These accounts, however, are at variance with the histories given to the doctors involved in the medico-legal aspect of the case. 

29.     Dr Marnie (Ta23) reported a history of Mr Sim’s feeling pain in the low back radiating into both legs as he was picking up the bike.  Dr McGill in his report of 6 August 2003 noted that Mr Sim experienced a pain in the low back shooting down the back of his left leg while righting the bike.  Dr O’Neill in his report of 16 January 2004 obtained a history from Mr Sim feeling a “stabbing” pain centrally in the low back and both legs “felt on fire” at the end of lifting the bike. Dr Maxwell in his report (Ta27) noted a history of Mr Sim feeling a sharp pain in his hips as he lifted the bike and that his back was very painful.  Dr Bleasel reported (exhibit A6) a history of a severe stab of pain in the back, the pain spreading down the applicant’s legs as he gave the final heave to lift the bike.

30.     We then had difficulty with the variation of findings on physical examination.  Dr Bleasel found no range of movement in the lumbar spine and marked spasm of the paravertebral muscles. Dr Bleasel found one inch wasting of both the left thigh and left calf and that these muscles were flabby.  Dr McGill measured a 2cm wasting of the left calf and was not confident it represented wasting. If it was true wasting it could equally be attributed to using that side less. In evidence Dr Maxwell was of the opinion that if you have a habitual limp, it can cause wasting of the left calf. The other specialists reported no wasting.

31.     Dr Marnie found restriction of lumbar movement and movement was painful. He also found localised tenderness on the left side at the L4/L5 and L5/S1 levels over the posterior intervertebral joints. Dr Marnie also elicited a positive femoral nerve stretch test and a positive sciatic nerve test on the left side but he was alone in this observation. Dr Marnie found blunting of sensation over the left foot in the distribution of the middle toe and lateral border of the left foot. Dr Bleasel found sensory loss in the S1 distribution. Dr McGill found no dermatomal subjective sensory loss in the left leg.

32.     When Dr McGill asked Mr Sim to demonstrate back movement, Mr Sim performed a few bobbing motions with his back but essentially demonstrated no back movement in any direction. Dr O’Neill found marked restriction of back movement and global loss of pinprick in the left foot to just above the left ankle and absent vibration sense in the left great toe.  There was a giving way when power in the left foot was tested, but notably in the absence of pain and Dr O’Neill said there was non anatomical sensory impairment of the left foot. Dr Maxwell considered power, reflexes and sensation in the left leg to be normal. He found significant restriction of back movement. All specialists found the knee and ankle jerks to be present and normal. Dr Maxwell disagreed with Dr Marnie’s interpretation of the femoral nerve test as relevant to L4/L5 whereas it is relevant to L1, L2 and L3 and not L4 and L5.

33.     The radiology available to the specialists included a CT scan of the spine on 17 July 2001 that was reported as showing mild disc bulging at L5/S1 and a subsequent CT scan 15 March 2002 that was reported as normal.  Dr Marnie had requested an MRI of the lumbo-sacral spine, particularly to exclude disc lesions of the L4/5 and L5/S1 levels. This was performed on 20 September 2002, and was reported as normal.

34.     Dr Marnie was of the opinion that Mr Sim had a probable L5/S1 and perhaps L4/L5 disc lesion on the left side and that the MRI failed to show any change in architecture of his discs but false negatives can occur and that with his persistent symptoms, consideration should be given to discography, particularly the L5/S1 disc.

35.     Dr Bleasel held to the view that Mr Sim had a S1 lesion and that you could have nipping of a nerve root without an actual disc rupture and that can lead to damage to the nerve and persistent sciatic pain.

36.     Dr O’Neill considered Mr Sim may have sustained a muscular low back strain at the time of the incident and he would have expected this to settle within a few days or weeks. He could find no physical explanation for the continuing pain complaint. Dr O’Neill considered there was clearly a non-organic component to the examination when compared to relatively normal movements dressing and undressing.

37.     Dr McGill considered Mr Sim demonstrated a pattern of behaviour that was internally inconsistent and could not be explained by organic disease.  Dr McGill reported that the applicant’s responses to testing were “ … profound weakness involving the left lower limb when examined supine.  It was possible to overcome great toe dorsi flexion, ankle dorsi flexion and ankle plantar flexion using one finger with minimal force.   … The profound weakness of left leg power which he demonstrated supine was inconsistent with his ability to walk.”  (exhibit R1)

38.      Dr Maxwell considered it possible Mr Sim sprained his back in the course of his work and that the effects of the strain have now settled.  On examination he found no hard evidence of nerve root irritation.

39.     Considering the varying histories, examinations and diagnoses we reviewed the interpretation of the radiology in detail. We abided by Dr Bleasel’s and Dr McGill’s opinion that discography had no role. Dr Bleasel said there were no radiological findings that completely explain his present degree of disability. Dr McGill in evidence stated the MRI was a very sensitive test for disc abnormalities. He said that it was extremely unlikely that someone could have some sort of disc lesion and have an entirely normal MRI. He also said that we can be very confident that Mr Sim does not have anything causing compression because the MRI is a very good way of looking at the lumbar nerves. Dr McGill took into account that Mr Sim has an entirely normal MRI and bone scan, and concluded that he does not have a mechanical problem in the back.

40.     In response to Dr Marnie’s opinion that false negatives can occur with MRI and that consideration should be given to discography, Dr McGill said MRI shows the internal consistency of the disc and the hydration of the disc.  Dr McGill said MRI is a much more sensitive tool for looking at discs than CT scanning. In his view, if an MRI shows a normal disc but a CT scan showed a mildly bulging disc, the clinician can be “absolutely confident” that the CT was not looking at an abnormal disc. Dr McGill observed that discography has largely ceased to be done by the vast majority of spinal surgeons because of MRI.

41.     Dr Maxwell in evidence considered the MRI is particularly good at showing the nerve roots as they pass out through the foramina which are not well seen on CT scan. Mr Sim’s MRI confirmed his clinical impression that there was no nerve root irritation.  Dr Maxwell gave no credence to Dr Bleasel’s opinion that, while Mr Sim suffered a disc lesion on 29 June 2001 that subsequently receded, he was nevertheless left with nerve root irritation.  Dr Maxwell explained that by doing sequential MRI studies on people who have had definite disc protrusions associated with radiculopathy, it takes two years for 90 per cent of them to resorb and that as they resorb the critical signs improve according to the MRI scan.

42.     Based on the medical evidence we are unable to conclude that Mr Sim has any underlying pathology to account for his back and leg symptoms. The pathology as proposed by Dr Marnie of a disc protrusion, based principally on one equivocal CT scan followed by a normal CT scan and normal MRI, cannot be sustained in light of the evidence by Dr McGill and Dr Maxwell. Dr Bleasel’s opinion that the applicant has nerve root irritation at probably S1 could not be substantiated on MRI but Dr Bleasel remained of this opinion based on the leg wasting and the sensory loss (in particular with the distribution of tingling) in the S1 distribution. Dr McGill and Dr Maxwell held the contrary view that the wasting could be explained by poor use.  Dr Bleasel said the leg was flabby. Similarly Dr Bleasel was alone in finding signs of S1 nerve root irritation. He conceded his opinion was dependent on accurate reporting of symptoms.  Dr McGill, Dr Maxwell and Dr O’Neill found no anatomical sensory impairment in the leg.

43.     We have examined the medical evidence and findings on physical examination very carefully and as recorded, they are noted for their inconsistencies. As for the left leg, we do not accept Mr Sim’s evidence that he felt symptoms at the time of the incident on 29 June 2001.  Elsewhere in these reasons we have noted that during 2001 Mr Sim did not discuss leg pain or other symptoms with his doctor.  Also Dr Tan specifically recorded that he did not have pain radiating into his legs.  Had the back condition been his overwhelming concern initially, it would be reasonable to expect some reference to it after the initial period had passed. But Mr Sim made no mention of any leg pain in his three page letter to Australia Post written about a fortnight after the incident. Mr Sim had a vested interest in his opposition to the directive that he park his motorbike before delivery being vindicated.  We are satisfied that later on, he decided to embellish the history and has exaggerated his symptoms. Moreover we find that there is no underlying pathology to account for his leg symptoms. There is no consistent clinical picture and we are persuaded by the opinions of Dr McGill, Dr Maxwell and Dr O’Neill that there are no signs of nerve root irritation in the left leg.  Accordingly, we conclude that Mr Sim has not suffered an injury to his left leg that arose out of or in the course of employment by the respondent.

44.     Similarly we are unable to be satisfied that there is any pathology to explain the back symptoms. Mr Sim demonstrates gross restriction of back movements on examination for which there is no reasonable explanation. Likewise there is no explanation for his extraordinary gait. Dr McGill and Dr O’Neill consider there to be no organic basis for his back symptoms. As with the leg we again are faced with normal radiology. It is therefore not possible to attribute the back symptoms to a S1 nerve root irritation as postulated by Dr Bleasel or a probable L5/S1 and perhaps L4/5 disc lesion with nerve root irritation on the left side as postulated by Dr Marnie. We are abundantly aware that physical findings and radiological findings may not correlate with back conditions, but faced with normal radiology we have to be satisfied there is a consistent clinical picture.  We prefer the evidence of Dr McGill and Dr O’Neill. We do not accept Mr Sim’s evidence and find that he has exaggerated his symptoms.  On balance we are satisfied that from 27 July 2001, Mr Sim has not suffered from an injury to his back that arose out of or in the course of employment.  Australia Post’s liability to pay compensation in respect of the back injury sustained on 29 June 2001 has been discharged.

45.     As Mr Sim does not suffer from a compensable injury resulting in impairment, the issue of compensation for permanent impairment does not arise.

decision

46.     The tribunal affirms the decisions made on 23 April 2002 and 28 May 2002. There is no entitlement to costs.

I certify that the 46 preceding paragraphs are a true copy of the reasons for the decision herein of P.J. Lindsay, Senior Member and Dr M.E.C. Thorpe, Member

Signed:         .....................................................................................
  Associate

Hearing  5 & 6 February 2004

Decision  14 April 2004
Applicant’s counsel                   D Talintyre
Respondent’s counsel              G Johnson