Thompson and Military Rehabilitation and Compensation Commission

[2005] AATA 514

Administrative

Appeals

Tribunal

 

DECISION AND REASONS FOR DECISION [2005] AATA 514

ADMINISTRATIVE APPEALS TRIBUNAL      )

)           No W2003/365

VETERANS' APPEALS DIVISION		)
Re		DIANE MARGARET THOMPSON

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION

Respondent

DECISION

Tribunal

Associate  Professor S D Hotop, Deputy President

Dr P A Staer, Member

Date 2 June 2005

PlacePerth

Decision The Tribunal affirms the decision under review.

.          [sgd S D Hotop]

Deputy President

CATCHWORDS

COMPENSATION – Commonwealth employees – applicant served in Australian Regular Army from 1981-1993 – applicant underwent stapedectomy operation on right ear in 1988 following hearing loss caused by employment – applicant continued to suffer hearing loss and developed tinnitus – applicant claimed compensation – respondent accepted liability in 1990 for hearing loss – respondent also accepted liability in 1997 for tinnitus – respondent also accepted liability in 1998 for “episodes of labyrinthitis and vestibular neuronitis” – in 1999 respondent denied liability to pay permanent impairment compensation for labyrinthitis and vestibular neuronitis – in March 2003 respondent determined that applicant suffered whole person permanent impairment of 10% for vertigo and 5% for loss of hearing resulting in combined impairment of 15% in accordance with approved Guide – in August 2003 respondent made reviewable decision that applicant’s whole person impairment due to vertigo was 20% and that her combined impairment was 24% in accordance with approved Guide – applicant’s vertigo condition interferes with some activities of daily living – applicant’s vertigo condition does not interfere with all activities except household duties and self care – applicant’s whole person impairment due to vertigo is 20% in accordance with Table 7.2 in approved Guide – reviewable decision affirmed.

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 24, 28

Guide to the Assessment of the Degree of Permanent Impairment Table 7.2

REASONS FOR DECISION

2 June 2005 Associate  Professor S D Hotop, Deputy President
Dr P A Staer, Member         

Introduction

1.       Diane Margaret Thompson (“the applicant”) has applied to the Tribunal for review of a “reviewable decision”, dated 18 August 2003, of the Military Compensation and Rehabilitation Service (“MCRS”), the predecessor of the Military Rehabilitation and Compensation Commission (“the respondent”).

2. At the hearing the applicant was represented by Mr R C Hammal, a lay advocate, and the respondent was represented by Mr B Dube of counsel. The Tribunal had before it the documents lodged by the respondent in accordance with s 37 of the Administrative Appeals Tribunal Act 1975 (“T documents”, comprising T1 – T111) and the following exhibits:

·statement of the applicant filed on 2 July 2004 (A1);

·statutory declaration of Jenny O’Callaghan dated 9 June 2004 (A2);

·letter (and enclosures) from the applicant to the MCRS dated 4 November 2003 (A3);

·“Equal Employment Opportunity Questionnaire” form, Government of Western Australia (A4);

·statutory declaration of Sandra Lee Domenico dated 28 June 2004 (A5);

·statutory declaration of Ronald Dudley Thompson dated 29 June 2004 (A6);

·statutory declaration of Celine Harrison dated 23 June 2004 (A7);

·letter from Gibson & Gibson, Barristers and Solicitors, to Dr T C McManus dated 14 August 2001, and report of Dr T C McManus dated 22 August 2001 (A8);

·report of Dr T C McManus dated 5 May 2004, and Commonwealth Department of Veterans’ Affairs “Compensation Claim for Permanent Impairment” form completed by Dr McManus on 21 April 2004 (A9);

·report of Mr Ian C Mitchell dated 4 March 2004 (A10);

·Department of Defence “Annual Confidential Report – Soldier” form for the period 2 August 1993 – 1 August 1994, dated 28 November 1994 (R1);

·Department of Defence “Posting Management Information” – Soldier” form dated 20 August 1994 (R2);

·Department of Defence “Notification of Medical Assessment” dated 12 July 1999 (R3);

·letter (and enclosures) from the applicant to the Tribunal dated 14 April 2004 (R4);

·bundle of document supplied by Women’s and Children’s Health Service, Department of Health, Western Australia (R5);

·King Edward Memorial and Princess Margaret Hospitals “Pre-Employment Health Screening” form dated 14 August 2001 (R6);

·2 surveillance videotapes regarding the periods 1-2 July 2004 and 2, 4 September 2004 (R7);

·Department of Defence “Army Record of Service Report as at 30 June 2002” (R8); and

·report of Mr Ian C Mitchell dated 12 October 2004 (R9).

Oral evidence was given by the applicant and by Sandra Domenico, Ronald Thompson, Celine Harrison and Mr Ian Mitchell.

The Factual Background

3.       The relevant background facts, about which there is no dispute, are as follows.

4.       The applicant enlisted with the Australian Regular Army on 8 April 1981 as a signal person and she was voluntarily discharged on 29 January 1993 with the rank of Corporal.

5.       The applicant’s Department of Defence “Entry Medical Examination Record”, dated 20 February 1981, recorded that she had no abnormalities, and she was confirmed as “Class 1 – Fit for Enlistment”.  (T3)

6.       A “Medical Attendance and Treatment Report”, dated 12 February 1988, indicated that the applicant was complaining of hearing loss in her right ear.  (T4)

7.       On 18 May 1988 the applicant underwent a stapedectomy operation in respect of her right ear.  Subsequent “Medical Attendance and Treatment Reports” and “Patient Referral and Reports” during the period June – September 1988 indicated that the applicant was continuing to suffer from hearing loss in her right ear and from tinnitus.  (T8 – T15)

8.       A “Medical Board Examination Record”, dated 20 October 1988,  noted that the applicant was suffering from right-sided hearing loss.  (T18)

9.       On 9 November 1988 the applicant lodged a claim for compensation under the Compensation (Commonwealth Employees) Act 1971 in respect of hearing loss in the right ear sustained in the course of her employment with the Department of Defence (Army).  (T19)

10.     In a report to the Department of Defence, dated 18 May 1990, Dr L S Parker, an ear, nose and throat specialist, stated that the applicant had “a marked sensori-neural hearing loss of her right ear” which he described as permanent and which he attributed to a “failed right stapedectomy” operation carried out on 18 May 1988.  (T37)

11. On 30 October 1990 a delegate of the Commission for the Safety, Rehabilitation and Compensation of Commonwealth Employees made a determination accepting liability under the Commonwealth Employees’ Rehabilitation and Compensation Act 1988 to pay compensation to the applicant in respect of “7.1%  loss of hearing, due to the effects of a stapedectomy on 18 May 1988”.  (T43)

12.     The applicant subsequently requested a reconsideration of the delegate’s determination of 30 October 1990.

13.     On 28 September 1993 a delegate of Comcare decided to vary the determination of 30 October 1990 and accepted liability “in respect of 13% loss of hearing suffered … through noise exposure and a failed stapedectomy”.  (T62)

14.     On 23 April 1997 an officer of the MCRS made a determination that “liability be extended to include tinnitus”.  (T68)

15.     By letter dated 15 May 1997 the applicant requested a reconsideration of the delegate’s determination of 23 April 1997 and requested that liability be accepted for “the conditions of vestibular neuronitis and labyrinthitis”.  (T70)

16.     On 16 December 1998 an officer of the MCRS decided to vary the determination of 23 April 1997 by extending liability to include “episodes of labyrinthitis and vestibular neuronitis”.  (T75)

17.     On 18 February 1999 the applicant lodged a “Benefit Election Record” form in which she indicated that she wished to claim a lump sum for permanent impairment in respect of her accepted conditions of labyrinthitis and vestibular neuronitis.  (T76)

18.     On 29 March 1999 an officer of the MCRS made a determination denying liability under the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”) to pay to the applicant lump sum compensation for permanent impairment in respect of her conditions of labyrinthitis and vestibular neuronitis. (T77)

19.     Dr G Hunter, Consultant Otorhinolaryngologist, submitted a report dated 19 November 1999 to the MCRS in which he confirmed that he had reviewed the applicant on 7 and 28 July 1999.  Dr Hunter enclosed with his report a completed “Permanent Impairment Schedule of Questions” form in which he indicated that the applicant was suffering from vertigo, tinnitus and permanent otalgia and that these were permanent impairments, and he provided the following assessment of the degree of “whole person impairment” in respect of each condition in accordance with Table 7.2 in the Guide to the Assessment of the Degree of Permanent Impairment (“the approved Guide”):

·Vertigo – 40%

·Tinnitus – 5%

·Permanent Otalgia – 10%.

In answer to a question regarding the date at which the applicant’s conditions of vestibular neuronitis and labyrinthitis became permanent and static, Dr Hunter indicated that this occurred at the time of the “failed stapedectomy” (namely, 18 May 1988).  (T85)

20.     In a supplementary report dated 11 February 2000, Dr Hunter stated that he wished to correct the abovementioned opinion expressed by him regarding the date on which the applicant’s conditions of vestibular neuronitis and labyrinthitis became permanent and static.  He stated that the applicant had been suffering from tinnitus as from the date of the “failed stapedectomy” in 1988 but that her “balance upset” became permanent and disabling in 1990.  (T86)

21.     On 12 March 2003 an officer of the MCRS made a determination that the applicant had suffered a whole person permanent impairment of 10% due to vertigo, and a whole person permanent impairment of 5% due to loss of hearing, resulting in a combined whole person permanent impairment of 15% in accordance with the approved Guide.  (T99)

22.     By letter dated 19 March 2003 the applicant requested a reconsideration of the determination of 12 March 2003.  (T100)

23.     Dr T C McManus, Oto Rhino Laryngologist, provided a report dated 20 May 2003 to the MCRS in which he stated that he “agree(d) entirely” with Dr G Hunter’s report of 19 November 1999.  (T104)

24.     On 18 August 2003 an officer of the MCRS made a “reviewable decision” whereby he varied the determination of 12 March 2003 by finding that the applicant’s whole person impairment due to vertigo was 20%, and determining that the applicant was suffering from a combined whole person impairment of 24% in accordance with the approved Guide.  (T106)

25.     On 24 September 2003 the applicant lodged with the Tribunal an application for review of the reviewable decision dated 18 August 2003.  (T1)

The Applicant’s Evidence

26.     The applicant tendered in evidence a statement which had been filed on 2 July 2004, and she confirmed that the contents of that statement are true and correct.  The contents of that statement are as follows:

“The attacks of Vertigo that I experience vary in intensity from mild to acute.  On a day to day basis if I am having a good day I will feel slightly light headed and slightly off balance.  Throughout any given day I get random short episodes of Vertigo – feeling like I am falling to the right side which last for a second or so.  Often when I am walking I will start drifting off to the right.  The short episodes can happen several times per day.  I will also have a startle reaction when the attack happens.  There is no pattern to the frequency of attacks however they occur more frequently when I am tired.  I try to get on with my day to day activities in spite of the effects of this condition but I feel like I am in a daily battle against the Vertigo.  I have adapted my life considerably over the years in an attempt to reduce lifestyle factors such as stress, fatigue and movement which exasperate (sic) the Vertigo condition.

I also get more acute attacks which again come on with no warning.  The room will spin, I will fall over, have no balance and cannot walk.  I am totally debilitated during the attack.  My eyes will flicker from side to side and I cannot focus.  I feel I have no control over my eyes during these acute attacks.  These episodes of Vertigo to this extent are terrifying and I panic that they will not stop.  During the episode I will vomit or heave as though I need to vomit.  The attack is always followed by extreme nausea and I will have to lie down.  When these attacks first started I would rush to the Doctor fearing I was having a stroke or some other problem in my head.  Now I know that the symptoms I experience are related to my ear I can control the subsequent panic a little more.  … .

Self Care

I feel unsteady and off balance every day when I get out of bed and when I walk I will drift off to the right.  When I get up to go to the toilet at night I have to hold on to the end of the bed or the wall because I feel unsteady.  I have no sense of balance in the dark.  When I am washing my hair in the shower or bending over to pick something up I have to steady myself by holding the tap because I feel off balance.  If I lie down in the bath I feel off balance and nauseous as though I am seasick.  When I move my head from side to side when blow drying my hair I will feel unsteady.

I get attacks of Vertigo mild to acute as a result of my husband moving around in our bed or sitting on the end of the bed to put on his shoes.  About 18 months ago we purchased a king size bed with a stabilising mattress to try to reduce the impact of his movements on my ear condition.

I quite often feel so nauseated as a result of the vertigo that I cannot eat.  I get attacks of Vertigo if I drink strong coffee.

Recreation

I was previously very active in sporting activities.  I used to do aerobics, run and played hockey for 15 years and I loved swimming and dancing.  I rarely exercise now.  I occasionally walk with my husband and will often have an attack of Vertigo when I walk on an uneven or unstable surface such as sand or grass.  I stumble on occasions when I walk up or down an incline because I feel off balance.  I am also fearful of being out on my own in case of a major attack which leaves me totally debilitated.  I do not run anymore because I feel too unsteady on uneven surfaces.  I never swim now because it makes me feel seasick.  I cannot get into a pool if there are other people moving the water around because it makes me feel unsteady and off balance.  I cannot swim in the waves for the same reason.  I feel unsteady and off balance if I spin around when dancing.

Being outside in the wind will trigger Vertigo attacks and ear aches but always only in my right ear.  Likewise sitting in the car being buffeted by the wind will cause me to feel off balance and nauseated.  I try to cover my ear when I am out in the wind or the cold.  If I have been out in the weather for some time during the day I will often feel so nauseated that I will go to bed to sleep.

Work

I currently work part time as a Social Worker but physically and mentally struggle to maintain my employment because of this condition.  I feel run down and exhausted as a result of the physical and mental effort it takes to deal with the Vertigo.  I also have sleep problems because of the Vertigo and tinnitus which only adds to my tiredness.  I love my work – it helps at times to take my mind off this condition.  I get a variety of symptoms associated with the Vertigo condition when I am at work.  When I sit on a swivel chair, use the lifts, move my head from side to side following a conversation, bend to pick something up from the floor or when I turn my head quickly.  I feel off balance when I use the stairs to go from one floor to the other or when I walk down an uneven path from one building to another.  The major Vertigo attacks generally have no warning of the onset – it will just occur even when I am at work.  Sometimes the sensation of being unbalanced or spinning can be just a minor one where I feel a little unsteady other times it can result in my stumbling or falling.  This sensation is always followed by the feeling of nausea.  People at work regularly comment that I look pale and unwell when I am feeling unsteady and nauseated.  Some of my colleagues including my supervisors are aware of the condition.  I try to not let this condition interfere with my job ….

I have sort (sic) medication over the years from GP’s, Dr Hunter and Dr McManus in an attempt to control the Vertigo but have been informed that there is no such medication available – only anti-nausea medication.  I was informed during consultations with Dr Hunter and Dr McManus that there is a link between fatigue, stress and the Vertigo condition.  In early 2001 I left my full time employment to seek part time work in an effort to less the frequency of the Vertigo attacks.  This has caused me to lose income which I have not claimed from MCRS as incapacity payments.  I also try to take regular extended breaks from work.  I do not make a big deal about my condition at work as there is nothing any one can do to change the situation and I also would like to protect my employment.  I also hate the thought that I may be a liability to my department because of my medical issue and the time I need to take off to attend to the matters associated with this appeal.

It is extremely apparent to me that this condition will have a detrimental effect on my future career and employment prospects due to the fact that I can only manage working part time.  I resent this on a daily basis because I love my job.  I have been asked on numerous occasions to increase my work to full time but for some time I have been seeking a position where I can reduce my hours further to combat the stress and fatigue that it takes for me to manage this condition, my children and my work.

I feel I have been forced by this review process to have my supervisor Celine Harrison intimately involved in my private medical affairs.  I believe this will have a detrimental effect on my employment prospects in the future as I will need her to provide me with a reference for a future employer.  She has known about my condition since I first started work in this department … .

Household duties

For 7 years I employed home help and carried the expense of this because I had difficulty carrying out duties such as mopping, sweeping, wiping down showers and hanging out laundry etc. without feeling nauseated from Vertigo after.  Basically anything task (sic) which involves repetitive movement including household duties causes me to feel off balance and feel like I am going to fall.  I then begin to feel nauseous.  Turning around in the kitchen when cooking has precipitated Vertigo attacks which has been very dangerous.  I have at times had to hold the bench or wall to prevent myself from falling.

My husband was often away for long periods of time with work and now works long hours and is not able to assist in the regular upkeep of our house so I was responsible for the majority of the household duties.  In May 2003 I submitted a claim for household services in relation to this vertigo condition with MCRS Perth which they accepted.  For the last 14 months I have received assistance from MCRS with household services in the form of a cleaner 3 hours per week.

…

Travel

I get Vertigo attacks on every mode of transport.  I get chronically air and seasick every time I use these modes of transport.  I have developed a morbid fear of flying as a result.  When travelling on a train I will get Vertigo if there is lots of movement.  If the journey is smooth it is not so bad.  I have to sit facing front of the train and be able to see out the window.

I always get Vertigo attacks when travelling in the car if it is on a bumpy or winding road or the car is stopping and starting.  The Vertigo attacks are less when I am driving the car but they do occur on occasions and this causes me to fear for my life.  I have at times got out of the car and called my husband to come and pick me up.  When I looking (sic) from side to side at an intersection or if I stop the car in a car park or at lights and the car next to me is still moving it will cause a vertigo episode.  I only drive locally and no longer drive long distances.  I do not drive if I am feeling particularly unsteady or off balance.”

(Exhibit A1)

27.     In her oral evidence-in-chief the applicant elaborated on her vertigo symptoms, and their impact on her life, as follows:

“… I suffer light headiness (sic) and dizziness.  I suffer from vertigo, the room spins.  There is varying different intensities of that it can be actually, totally lying on the floor vomiting and having no control over my body whatsoever.  I also have little what I call them – I call them like short bursts where I will just sort of lose balance a little bit, or there is a little sort of feeling of a slight spinning, but the room won’t go, the whole thing.  Or, in little bursts in my ear that just sort of – like you’re going to fall across to the right.  I also have trouble focussing my eyes, that if I am moving – if I was moving backwards and forwards like looking at people, from there to there, I will actually feel off balance and have trouble focussing my eyes.  I regularly have the feeling of being off balance and not being able to stand properly.  I have difficulty walking at times, I will bump into things and that can be just quite spontaneous.  I will be walking along and end up hitting the wall, there is no symptoms prior to that it will just happen.  I will just go off and bump into something.  I have difficulty keeping my balance at night-time, I can’t walk in the dark.  To walk at night-time I have to feel along the wall, or along the edge of the bed to get back because I can’t keep my balance.  I have difficulty sometimes driving my car, if there is traffic going backwards and forwards at an intersection and I am looking to and from, I will sometimes get a vertigo attack.  They have been that significant that I’ve called my husband to come and pick me up in the car.  I get chronic travel sickness.  I get sick on planes, trains, cars you name it, the works, sometimes to the point where I actually can’t even walk.  I’ve got constant tinnitus which is there all the time, which is there all the time.  I have trouble sleeping because of that.  I get vertigo attacks at night-time when I am lying in bed, just spontaneously I will wake up and the room’s spinning and I also have ear pain, which varies in intensity from sharp stabbing pains where I have to leave work, or whatever I am doing, and take Panadeine Forte, to just an occasional little short pain in my ear.

So, apart from all these symptoms, what – is there any other problem arise (sic) out of your vertigo? --- I get extreme – I’ve got extreme anxiety because of the uncertain nature of this vertigo.  It just happens, it can happen anywhere at any time.  It can be to the point where I am totally debilitated so, if I’m on my own I’m quite frightened about that.  I used to be really easy going and happy go lucky and saw a bright future, but now I’m anxious about everything.  I’m concerned that, eventually I will end up totally debilitated and need to have someone care for me and I also get depressed.  I have mood swings that go up and down, because a lot of the time, although it’s not many times I’m not visibly sick but I feel terrible, I feel light headed, I feel nauseous and I feel like it’s just a struggle.  A struggle every day to continue on.

…

How does your vertigo affect your employment? – Well, I can’t work full time.  I struggle – I struggle to – to work full time because I’ve found that some of the triggers that make my vertigo condition worse are being tired, being stressed, and this has just been through a trial and error – a trial and error situation.  I have tried to – to – to work full time and have found that the condition just gets work (sic) so – and it greatly affects the rest of my life and I’ve tried to make changes to actually reduce the severity.  So I have, on and off, reduced the hours of my work and I currently now only work – work part time.  I believe it affects my employment because I retrained – after I left the Army I was no longer able to do my job as – as an op sig and I – I had to be retrained and that was not an option for me, at the time.  So, I left and actually – actually completed further studies but I now realise that I’m not going to be – have a – able to have a career in that – that new field either because I can’t maintain full time employment because of this condition.  At work I – I work in a – I work in a hospital as a social worker and it’s fairly – it’s fairly sedentary type work.  I – so, I’m not – I’m not, you know, walking around a lot.  I see people sitting down but I get vertigo attacks at work.  I had a quite significant one some two weeks ago, a major – a major, spinning vertigo attack where I was not able to walk because I was actually trapped in a lift and was not able to get out and the movement of the lift actually brought on a vertigo attack.  I feel – I feel nauseous a lot of the time.  I feel that I’m not able to probably put in as much into my job as I would like, so I feel that it actually – it inhibits my chances for advancement in – in this new area.  I also feel that if I was to seek alternative employment, I’m currently working for Women’s and Children’s Health, that now the fact that my – my supervisors have always known that – that I’ve had this medical issue but I’ve – it’s in my nature to just, you know, get on with things and – and not make a huge issue of it and they were quite accommodating about that.  Since this has actually been brought more to their attention, particularly in relation to me seeking compensation, I feel there’s been a – a shift in their attitude towards me, they’re quite condescending and I feel that that is going to – going to affect my ability to gain employment elsewhere because I will need them to provide me with – to provide me with referrals (sic), or whatever, to seek employment if I was going to go elsewhere.  So it’s seen as – it’s – at the moment this vertigo issue’s seen by my employers to be an issue.  I’ve also had to take days off work because of it.  I quite regularly feel that unwell because I’m feeling dizzy and nauseous and sick.  The vertigo is – is worse if I get like a cold or sinusitis or – or feeling run down or tired, I mean, even to the point of getting quite personal each – each month at that time of the month, I – I get – I get quite dizzy and have – and get quite nauseous, so that affects my employment.  I’ve regularly taken days off work and have to stay home and – because I’m feeling sick.

…

Ms Thompson, with your vertigo, how does it affect your family life?  The age of your children, to start off with first? --- I have two children, I have a 12 year old and a 14 year old.  This has been going on since they were – they were very young.  For the first – when I first started having symptoms they were babies and then I spent many years going backwards and forwards to doctors trying to find out what was wrong with me.  I feel like I’m – I’m anxious all the time, I feel sick a lot of the time and lie down on the lounge or in bed.  It restricts me from doing things.  Sometimes it – like they want me to do, like going to the – I can’t go to the beach and swim with them a lot because the waves make me feel dizzy.  I feel I’m – I used to be very independent and outgoing.  I feel I’m much more dependent on my husband now.  I feel like I have tried to force my children to be more independent because I feel sometimes I can’t look after them as well as I would have liked because I feel horrible and sick a lot of the time.  I feel – I feel that the fact that I’m – I’m so unwell places a burden on my – on my family and the uncertain nature of – you know, I don’t know when I’m gong to feel well or when I’m not going to feel well.  So we can be planning something and then I’m not able to go because I feel sick or I’ll be in bed.  They actually organised a birthday party for me, for my – my 40^th birthday but instead of enjoying it I felt the whole night feeling like I was going to be sick because I’d had vertigo all day.  So it has had a huge – I feel it has had a huge impact on my – on my family life.

Does it restrict you doing your household tasks? --- Yes, it has for a long time.  Any sort of repetitive movement causes me to get vertigo and a lot of this stuff has just been like a trial and error thing which I’ve found out over the – over the time.  I mean, most of the time I thought that I was going nuts, there was something – there was something wrong with me.  I couldn’t work out why all the time I kept on feeling sick and nauseous.  So it has restricted for me (sic).  For many years I have actually employed a cleaner to help me out at – in my house, to be able to get those things done so I didn’t rely on my husband who – who works long hours now but previously was in the Army and was away a lot.  I rely on my – my children to do things for me as well.

So you have domestic people coming in to do your domestic tasks so---? --- Yes, three hours a week, I don’t do any housework at all other than – and I have an ironing lady who comes and does – gets my ironing.

…

So your activity with your children and your family is very much restricted now? --- Yes, it’s sort of very much restricted to – well, I’ve got – I’ve got two boys and they’re both – they’re both bits of petrol heads and – and like their dad and they want to go and do things like sand duning in the sand dunes and things like that in Lancelin, I mean I can’t do that.  I mean, I will attend things with them but I usually have to sit out or whenever they’re doing things like that.  So it is – it’s greatly reduced, I’d like to be able to do a lot more with them than what I do.  I do attend their – they both play sports.  I do attend their sports and we’ll – we’ll sit on the sideline watching them.  There’s issues with that as well.  If – if it’s windy and being buffeted around by the wind, I actually – I actually get vertigo when that happens and it happened this past weekend.  One of the boys was playing baseball and it’s – it was very windy outside, so that sets off my vertigo and I’ll feel nauseous and sick.  Or even if I move to the car, to sit in the car, the buffeting of the wind on the car will actually make me feel nauseous and sick, like the – like a sensation of sea sickness.  So, it does, it does restrict my – things to do with my family.

Do you have self-care for yourself too, anybody – no? --- No.  No, only – my husband – my husband does, as far as self-care.  Like he brings me buckets when I’m throwing up, so – which has happened just recently, I had a major attack some weeks ago and was vomiting all night, so he assists like that.  He – if we’re – if we’re out and he will assist me if I’m – if I’m dizzy or have an attack but as far as like if you’re talking about personal care, no, I carry out my own personal care.

…”

(Transcript, pp 22-23, 26-27, 30-31)

28.     In cross-examination the applicant confirmed that she has a degree in social work from the University of the Northern Territory, having studied for that degree on a full-time basis from 1996 to 1999.  After moving from Darwin to Perth in December 1999 she was employed at Sir Charles Gairdner Hospital as a social worker on a full-time basis from April 2000 to February 2001.  She said that, because she was finding it increasingly difficult to manage her life and was “feeling unwell all the time” and “feeling stressed”, she sought part-time employment at King Edward Memorial Hospital and commenced employment there as a social worker in March 2001.  She said that she stayed there until September 2004 when she transferred to Princess Margaret Hospital where she presently works as a social worker.

29.     The applicant confirmed that working full-time at Sir Charles Gairdner Hospital had made her vertigo worse.  She was referred to a “Pre-Employment Health Screening” form (Exhibit R6) completed by her in connection with her application for employment at King Edward Memorial Hospital.  In that form, in response to the question, “Have you ever suffered from a health condition which could be aggravated by the type of work for which you are applying?”, the applicant had ticked the “No” box.  When it was put to her that that was an untruthful response, she denied that and explained that she believed that it was the full-time hours of work that aggravated her vertigo, not the job of a social worker as such.

30.     It was also put to the applicant that she had responded untruthfully in that form by ticking the “No” box in response to the question, “Do you have a disability which may require modifications to the job, and/or affect your work performance …?”  She was also referred to earlier evidence which she gave in cross-examination regarding her vertigo interfering with her work as a  social worker when she said that there were times when she would not see patients because she felt unwell.  She explained that, in those circumstances, she “would see them later on”.  She added that she could, and regularly did, “manipulate” her work days and rearrange her work duties, depending on how she was feeling.

31.     In the abovementioned form, the applicant confirmed that she had previously made a claim for workers’ compensation and that that claim was still current.  In response to a request in the form for details of that claim, the applicant stated:

“Hearing loss, tinnitus and ass(ociated) condition of ear …”

She acknowledged that she did not refer to vertigo.  When it was put to her that she omitted to mention vertigo because she did not want her prospective employer to know about it, she responded that she “didn’t think of in that way” and that she “didn’t set out to be deceptive”.  She added that her employment supervisor, Ms Harrison, was aware of her condition.

32.     The applicant was next referred to a letter to the Tribunal from her, dated 14 April 2004 (Exhibit R4), in which she stated:

“… I am currently employed on a part time basis as an Obstetric Social Worker at King Edward Memorial Hospital.  I currently work 53 hours per fortnight.  I have worked at King Edward on a part time basis since 6/03/01 …”.

When it was put to her that the last abovequoted sentence was not correct, she acknowledged that she had “worked periods of full-time employment” and added that she had “gone backwards and forwards” between part-time work and full-time work during that period.  The applicant was referred to her employment records at King Edward Memorial Hospital (Exhibit R5) which include:

·a “fixed term contact of employment” for the period from 6 March 2001 to 1 May 2001 at 60 hours per fortnight;

·a “fixed term contract of employment” for the period from 23 April 2001 to 29 June 2001 at 76 hours per fortnight;

·a “permanent contract of employment” commencing on 2 July 2001 at 76 hours per fortnight.

She acknowledged that she became a permanent full-time employee on 2 July 2001, and that the abovequoted sentence in her letter to the Tribunal dated 14 April 2004 “wasn’t entirely correct”.

33.     The applicant agreed that she continued to work full-time hours until the end of 2001 and that she then took annual leave after which she reduced her working hours to 60 hours per fortnight from February 2002 to June 2003, and further reduced her working hours to 53 hours per fortnight from June 2003.  She acknowledged that, since February 2002, she has,  from time to time,  worked up to full-time hours and been in receipt of “higher duties allowance” and “on-call allowance”.

34.     The applicant was referred to her sick leave records which indicate that she has taken the following periods of sick leave – 7 days in 2001, 7 days in 2002, 3 days in 2003 and 4 days in 2004 – and she agreed that she had not exceeded her sick leave entitlements since 2001.  She was also referred to a statutory declaration of Ms Harrison dated 23 June 2000 (Exhibit A7 – see paragraph 40 below) in which it is stated that she has taken “large blocks of leave”.  She confirmed that those “blocks of leave” had been annual leave taken during school holidays, and she agreed that she had not taken “large blocks of leave” because of her medical condition.

35.     As regards driving, the applicant said that she drives to and from work, which takes between 15 and 30 minutes each way.  She said that she usually drives only to local destinations and rarely drives distances which take longer than 30 minutes.  She confirmed that she has no medical restrictions on her driver’s licence and that there is no restriction on her driving a motor vehicle.  She also confirmed that she had never had to stop driving,  and call her husband to come and pick her up,  since the time she commenced working at King Edward Memorial Hospital in March 2001.

The Lay Evidence

Sandra Domenico

36.     A statutory declaration of Ms Domenico, dated 28 June 2004, was tendered in evidence (Exhibit A5).  The contents of that statutory declaration are as follows:

“I have known Diane Thompson since April 1990.  We met when we were both living in Brisbane.

I can remember a shopping trip with Diane in the Valley in Brisbane in 1991 and Diane had a funny turn.  She became dizzy like she was going to faint.  At the time we thought it was related to her pregnancy.

Since Diane came to Perth about 4 years (sic) I have had very close contact with her and her family.  I have witnessed and been in her presence when she has been unwell.  She looks tired and pale.  I am fully aware that she has had surgery on her ear and has complications as a result.  She has spoken to me on many occasions about her condition and the strain that it places on her family life and her well being.

I have spoken to her via the phone on occasions when she has been in bed unwell with nausea and dizziness.  On one occasion we had made plans to go out and she was unable to do so because she was unwell.

I know Diane very well and can read when she is not feeling well.  I can tell by looking at her that there is something wrong however she tries to conceal her feelings but if I question her she will state that she is having one of those days.”

37.     Ms Domenico elaborated on the contents of her statutory declaration in her oral evidence but it is not necessary to set out her evidence in detail here.

Ronald Thompson

38.     A statutory declaration of Mr Thompson, dated 29 June 2004, was tendered in evidence (Exhibit A6).  The contents of that statutory declaration are as follows:

“Diane Margaret Thompson my wife for the past 16 years constantly suffers from vertigo attacks.  This has been an issue in our daily life for over ten years.  Diane has had to change her life style to attempt to control this disability.

Over this period I have observed that Diane suffers from the following effects from this condition:

·she loses her balance frequently – sometimes just a little other times she requires assistance to stand;

·she states she feels unwell, dizzy and tired several times a week;

·she no longer has the ability to work for long periods as she gets tired and becomes ill;

·she often looks very pale and has to go and lie down;

·she often has bad mood swings from the frustration of not being able to control her illness; and

·she has to avoid sudden or repetitive movement as this will make her feel dizzy.

This condition has completely interrupted Diane’s life and has also had a negative effect on life as a family.  Diane is unable to participate in many activities that involve physical moment (sic) such as running, sports, 4 wheel driving, amusement rides and swimming.  She has now become afraid of flying as this also affects her ear and she feels ill for a few days after the flight.  There has been a noticeable change in the way Diane manages her day to day life.  She now needs assistance with the housework because she was unable to keep on top of this because she was getting  vertigo attacks from the movement.  She is no longer able to manage full time work because she gets tired and stressed and the condition becomes worse.  Prior to getting these attacks Diane was able to manage full time work and the household duties without any assistance.”

39.     Mr Thompson verified, and elaborated upon, the contents of his statutory declaration in his oral evidence.  It is not necessary to set out his evidence in detail here.

Celine Harrison

40.     A statutory declaration of Ms Harrison, dated 23 June 2004, was tendered in evidence (Exhibit A7).  The contents of that statutory declaration are as follows:

“1.Ms Diane Thompson’s employer is Women and Children’s Health Services, King Edward Memorial Hospital, Social Work Department.  I am Ms Thompson’s direct line manager.  My position is Section Head, Social Work Department, King Edward Memorial Hospital.

2.Ms Thompson’s position is that of Social Worker.

3.Has been in this employment since 06/03/01.

4.The key responsibilities in the position that Ms Thompson holds is to provide social work services to her allocated area – which is in Obstetrics.

5.Ms Thompson holds a substantive full-time position which is 76 hours per fortnight.  However her contract is for 53 hours 12 minutes per fortnight.  The reduction in hours was negotiated at her request because of health and family reasons.  The other substantive positions in this department are filled on a full-time basis.

6.Ms Thompson works 53 hours and 12 minutes per fortnight.

7.Overtime is not part of the structure of this department.

8.There are flexible arrangements with respect to Ms Thompson’s working hours so that stress levels do not compromise the quality of her work.

9.The major amendment that has been made has been to her working hours.  These hours only enable her to provide direct clinical services and she is unable to participate in extra professional development or undertake other initiatives.  This limitation for an otherwise competent and skilled social worker may restrict her future promotional opportunities.  As well as compromising her own opportunities to be creative with her professional work and increase her job satisfaction Ms Thompson’s reduced working hours has of necessity reduced the possibilities for program development in her complex area of work.

10.Ms Thompson has had time off work, though this has lessened since the change in her working hours from full-time to part-time.  She has also taken large blocks of leave.  As the leave requested by Ms Thompson exceeds her entitlements for annual leave, this has been granted as unpaid leave.

11.Ms Thompson has advised me of the symptoms that she suffers.  These are headaches, dizziness, excessive tiredness.  Ms Thompson has been reluctant to allow her physical condition to compromise her professional standing within this hospital.  As her supervisor I became concerned about the number and frequency of sick days and an occasional outward appearance of not being well and under stress.  It was only when I pressed her that she revealed to me that she felt occasionally debilitated by the symptoms described above.  Ms Thompson is a fiercely independent and private individual.  She is passionate about her area of work and has a great contribution to make professionally.  In order to maintain a balance between her health, family and work needs she has had to re-adjust her expectations about any expansion of her role or future career advancement.”

41.     In cross-examination Ms Harrison said that her department at King Edward Memorial Hospital is “fairly small” and that she would see the applicant, who occupied an office next to hers, on a daily basis when she was on-duty.

42.     Ms Harrison agreed that the work performed by the applicant in the chemical dependency obstetric clinic was stressful and she went on to describe it as “a very complex area of work” in that “it calls upon a number of skills and it requires finely-tuned judgments and the ability to form relationships”.

43.     Ms Harrison acknowledged that the applicant had had a total of 3 days’ sick leave in 2003 and she agreed that that is not excessive.  As regards the applicant’s symptoms, Ms Harrison agreed that she had never seen her fall over at work, nor could she recall ever seeing the applicant vomit at work or ever being told by the applicant that, because of her vertigo, she may feel that she is going to fall over or she may vomit or feel that she is going to vomit and need to lie down.

Jenny O’Callaghan

44.     A statutory declaration of Ms O’Callaghan, dated 9 June 2004, was tendered in evidence (Exhibit A2).  Ms O’ Callaghan did not give oral evidence.  The contents of her statutory declaration are as follows:

“I have known Diane Thompson since I commenced work as a Senior Social Worker at King Edward Memorial Hospital in July 2002.

Not long after I started work at King Edward I observed that Diane appeared unwell.  When I asked her what was the matter she said she was OK but was just not feeling great.  Some days later I again observed that Diane again appeared unwell – she was very pale and a little shaky.  I asked her if she was feeling OK.   She stated that she had some medical problems which made her feel unwell at times.  Diane continued to look unwell that day and when I questioned her again she said that the problems were related to an ear operation she had years ago and that she frequently felt unwell.  She stated that there was nothing she could do but tried to cope the best she could by just getting on with her work.   She stated that she worked part time because of her health problems.

Diane rarely complains about her health issues but it is frequently apparent to me that she is unwell.  When I clarify how she is feeling she will state she is unwell due to her ear problem.”

The Additional Medical Evidence

Mr Ian Mitchell

45.     Mr Mitchell confirmed that he is an ear, nose and throat surgeon and has been practising as such since 1979.  He also confirmed that, at the request of the respondent’s solicitors, he had reviewed the applicant on 16 February 2004 and had prepared a report dated 4 March 2004.  The relevant contents of that report, which was tendered in evidence by the applicant (Exhibit A10), are as follows:

“…

Background to the claim involved

Ms Thompson enlisted with the army in April 1981.

In May 1988 she underwent a right stapedectomy operation.  In the ensuing months of that year she experienced an increase in the hearing loss of her right ear and constant tinnitus.  Subsequently it was concluded that the stapedectomy operation in the right ear had failed.

In October 1990 MCRS accepted liability in respect of Ms Thompson’s hearing loss in her right ear attributed to the effects of the stapedectomy operation.  MCRS determined that Ms Thompson’s hearing loss was 7.1%.

In September 1993 MCRS varied the determination dated 30 October 1990 and assessed Ms Thompson as suffering from 13% loss of hearing as a result of noise exposure and a failed stapedectomy.

In April 1997 MCRS extended liability in respect of Ms Thompson’s right hearing loss to include tinnitus.

In December 1998 MCRS varied the determination of April 1997 and extended liability in respect of Ms Thompson’s right hearing loss condition to include ‘episodes of labyrinthitis and vestibular neuronitis’.

In February 1999 Ms Thompson completed a benefit election record indicating that she wished to claim for a lump sum permanent impairment in respect of her accepted labyrinthitis and vestibular neuronitis conditions.

In March 1999 MCRS denied liability in respect of permanent impairment compensation in respect of Ms Thompson’s ‘labyrinthitis and vestibular neuronitis’ condition.  However, in March 2003 MCRS determined that Ms Thompson was entitled to 24% whole person impairment pursuant to Table 14.1 of the Comcare Guide on the basis of vertigo and otalgia, hearing loss and tinnitus.

On 16 October 2003 Ms Thompson sought review of the Reviewable Decision.

My opinion

You asked for my opinion regarding the following matters.  I have reviewed the documents you sent me.

Ms Thomson’s Vertigo Condition

a)Does Ms Thompson have any permanent impairment in respect of her vertigo condition as assessed in accordance with the Guide?

My assessment is that Ms Thompson has a permanent impairment in respect of her vertigo condition.

b)If so, please assess the degree of the permanent impairment arising out of the employment related condition, expressed on a whole person basis.  Please state which Table from the Guide you used for your assessment and the pathology/clinical findings upon which you based your opinion.

I calculate Ms Thompson’s degree of impairment due to vertigo as 40%.  I used Table 7.2 of the Comcare Guide ‘vertigo which interferes with all activities except household duties and self care’.  The basis of my assessment is the patient’s symptoms following the failed stapedectomy operation performed on her right ear in May 1998 (sic).

c)Do you consider that any or all of Ms Thompson’s permanent impairment is as a result of any non-employment factors?  If so, please describe the nature of those factors.

I consider Ms Thompson’s hearing loss is due to employment factors.  I do not feel that there are any non-employment factors related to her hearing loss.

d)Do you consider that any impairment could be reduced by further medical or rehabilitative treatment?  If so, what treatment?

My opinion is that it is unlikely that further medical or rehabilitative treatment will reduce Ms Thompson’s impairment.  I feel that it is unlikely that further surgery to her right ear is likely provide (sic) an improvement in her hearing.  Given that Ms Thompson has a profound right hearing loss it is unlikely that a hearing aid in that ear is likely to be beneficial.

...”

[Mr Mitchell’s report then set out his opinion regarding the applicant’s conditions of otalgia, hearing loss and tinnitus but, as those matters are not presently in dispute and no findings are required to be made by the Tribunal in relation to those conditions, that part of the report has been omitted.]

46.     Mr Mitchell also prepared, at the request of the respondent’s solicitors, an additional report dated 12 October 2004 after viewing two surveillance videotapes supplied to him by the respondent’s solicitors.  The relevant contents of that report are as follows:

“…

Regarding your questions:

1.As you are aware, Ms Thompson lodged a claim on 8 November 1988, for her ‘partial hearing loss in right ear, possibly OES otosclerosis’ attributable to the effects of stapedectomy on 18 May 1988.  Ms Thompson subsequently claimed that she developed vertigo in 1990.

1.1In your opinion, does Ms Thompson indeed suffer from ‘vertigo’?

According to McCabe (Volume I Otolaryngology Paparella and Shumrick Eds) vertigo is ‘a sense of specific alteration of orientation which involves motion of the subject or his environment’.

Ms Thompson complains of a feeling of falling.  Additionally she complains of a sense of ‘lightheadedness’ all the time.  I feel that her sense of falling qualifies as a symptom worthy of the description ‘vertigo’.

1.2If so, please detail:

(a)The aetiology and causes of vertigo.

Vertigo is a symptom of a disorder of the vestibular system.  The vestibular system is an important part of the body’s ability to orientate itself in space.  The vestibular system consists of vestibular organs which are part of each inner ear and central connections with vestibular nuclei (balance centres in the brain) and their nerve connections with the eyes, eye centres of the brain, part of the brain called the cerebellum and its connections with receptors in the muscles and joints of the body.

There are many disorders which can damage the vestibular organs and cause vertigo.  The include infections, trauma, drugs and blood supply.  However, the relevant cause in Ms Thompson’s case, is iatrogenic injury (injury due to a surgical cause ie right stapedectomy).

A stapedectomy operation frequently causes temporary vertigo.  The literature talks about two causes of prolonged vertigo.  First of these is a perilymph fistula which is a leak of inner ear fluid following the stapedectomy operation.  The second cause is positional vertigo which implies the possibility of dislodged particles irritating part of the vestibular apparatus.

I have been unable to find any literature which specifically talks about long term causes of vertigo following a failed stapedectomy in which a ‘dead ear’ was the result.  One could surmise the possibility that the injury which destroyed the hearing in the operated ear could also directly and permanently damage the vestibular end organ on the right side.  The result of this could be permanent vertigo.

(b)The objective evidence that demonstrates that Ms Thompson suffers from vertigo.

I have no objective evidence that Ms Thompson suffers from vertigo.

(c)The evidence on which you based your opinion.

The evidence on which I based my opinion was my audiogram of the 2 March 2004 which revealed a profound right deafness.  The conclusion is that this deafness is due to the effects of the failed stapedectomy operation on the right ear in 1988.  I used this evidence together with Ms Thompson’s description of her balance symptoms in reaching my conclusion about her vertigo.

(d)Reasons why there would be a 24 month delay between the onset of Ms Thompson’s claimed vertigo and stapedectomy on 18 May 1988.

Ms Thompson’s explanation of a 24 month delay in the onset of her symptoms of vertigo relates to the lack of recognition that her feelings of imbalance were due to surgical complications.  Symptoms of imbalance were ascribed to factors such as ‘stress’.  It was only after learning more about the complications of her operation that she realized that the feelings of imbalance that she was feeling may have been to (sic) iatrogenically caused vertigo.

1.3If not, please detail:

This question does not apply.

2.On the assumption that you find that Ms Thompson suffers from vertigo, in your opinion:

2.1Does Ms Thompson suffer from a permanent vertigo impairment?

I believe that Ms Thompson suffers from permanent vertigo.

2.2Can Ms Thompson’s condition be assessed under Table 7.2 of the Comcare Guide:

Yes.

…”

[Mr Mitchell’s report then set out his responses to questions based on the contents of the abovementioned surveillance videotapes and reiterated that, after viewing those videotapes, he remained of the opinion that the applicant’s vertigo condition “interferes with all activities except household duties and selfcare”.]

47.     In his oral evidence-in-chief Mr Mitchell described the applicant’s vertigo symptoms, as reported by her,  as follows:

“She complained of a feeling of light headedness all the time.  She had a feeling of falling which could be momentary.  Occasionally she – from time to time she had what she described as huge episodes which I took as being severe feelings of rotation.  And she described these severe attacks as one per month.  But when her symptoms were severe, then she had had up to three to four attacks per week.  And the symptoms were worsened by walking on uneven ground or if she drank alcohol.”

(Transcript, p230)

48.     Mr Mitchell confirmed that he calculated the applicant’s degree of impairment due to vertigo as 40% under Table 7.2 in the approved Guide and he said that that assessment was based on the applicant’s “description of her condition”.  He described this as a “subjective assessment” and added that he did not believe that vertigo could be measured objectively.  Asked whether he believed that the information given to him by the applicant was “genuine and correct”, he responded:

“I always believe my patients.”

(Transcript, p229)

49.     Mr Mitchell said that the applicant would be able to work despite the abovementioned vertigo symptoms.  He confirmed that he believed that the applicant’s vertigo condition interfered with all her activities on a day-to-day basis.  Asked whether he “still firmly believe(d)” that the applicant’s degree of impairment under Table 7.2 in the approved Guide is 40%, he responded:

“Well, I believe that she suffers vertigo which interferes with her life.”

(Transcript, p231)

50.     In cross-examination Mr Mitchell was asked to explain his understanding of the meaning of the word “interfere” in applying Table 7.2 in the approved Guide.  He responded:

“Interfere to me means being an imposition on one.  It is semantics, isn’t it?  Is that a fair definition of interfere? … An impairment to one’s well being.”

(Transcript, p238)

51.     Mr Mitchell was then referred to Table 7.2 in the approved Guide, and his cross-examination continued as follows:

“In making your assessment of 40 per cent, did you have regard to what is necessary for the assessment of 10 per cent? --- I said that – well, I elected to award 40 per cent as her level of impairment because she has a feeling of light headedness all the time.

You are aware, are you, that she continues to drive her motor vehicle? --- Yes.

Yes. And that she drives to and from work.  She works currently 4 days a week and she would drive to and from work every day? --- Yes.

And that she also uses her vehicle locally to do things such as drop her children off at school or go to the local shops.  Are you aware of that or ---? --- Well, I am aware she drives the car.

…

Well, for the moment can you assume from what I have just put to you that she drives to work every day.  She uses her motor vehicle around locally as required.  She has in the last 4 years never had an occasion where she has had to stop driving the motor vehicle and ring her husband to come and pick her up.  Having regard to the criteria for 10 per cent, given that she is, firstly, able to drive a motor vehicle regularly and, secondly, has no medical restrictions on driving a motor vehicle, would you agree that that then raises a significant question as to whether or not, given that she has vertigo which doesn’t interfere with an activity involving personal or public safety, that at least you should have considered at 10 per cent rating? --- Yes.

And would you agree with me , at least in terms of how this table is structured,  that if the starting point for a rating is you have got to have a person with vertigo who has a condition which is significant enough to restrict them from activities of personal or public safety, that any higher rating must also include that assessment? --- Yes.

…

So, Doctor, if that is the case, would you agree with me that your assessment of 40 per cent is probably excessive, bearing in mind the structure of the table that I have just put to you? --- Yes.

And more properly, at least in terms of the way the table is structured, would be an assessment of 10 per cent? --- Yes.”

(Transcript, pp238-239)

52.     In re-examination Mr Mitchell explained that the reason he “picked 40 per cent” in Table 7.2 in the approved Guide is that the applicant “said that she felt light headed all the time”.  He also said that the applicant had told him that her other symptoms interfered with her activities.  He reiterated that he believed that the applicant’s vertigo “interferes with her life”.

53.     Mr Mitchell was referred by the Tribunal to the phrase “activities of daily living” as described in the approved Guide, and, in response to questions, he confirmed that:

·when he saw the applicant he had no problems communicating with her;

·the applicant did not tell him that she had any trouble feeding herself;

·the applicant did not tell him that she had any trouble with bladder and bowel control.

Mr Mitchell agreed that there are “activities of daily living” that the applicant’s vertigo is not interfering with, and that her vertigo does not interfere with all her activities.

Dr Terence McManus

54.     Dr McManus, an Oto Rhino Laryngologist, had been scheduled to give oral evidence on behalf of the applicant but ultimately he was unavailable to do so at any time during the listed hearing dates.  The Tribunal nevertheless granted the applicant leave to tender two reports of Dr McManus.

55.     A report of Dr McManus dated 22 August 2001 (Exhibit A8), which was prepared at the request of the applicant’s (then) solicitors, states:

“1.Mrs Thompson first attended on 14 April 2000 and has been reviewed on 30^th June 2000, 17 May 2001 and 21 August 2001.

2.Ms Thompson reported that she underwent a right stapedectomy operation in Melbourne in 1988, the operation was apparently unsuccessful and she had been left with residual noises in her ears and recurring vertigo.

3.Clinical examination showed both tympanic membranes to be normal, audiometry showed a significant right conductive hearing loss with essentially normal hearing in the left ear.

4.She currently experiences recurring bouts of vertigo with tinnitus and attendant anxiety attacks.

5.Vestibular damage resulting from an unsuccessful stapedectomy.

6.The history (sic) is consistent with the history obtained.  The injury was not caused by her work but resulted from the surgery performed during her service in the Army.

7.Ms Thompson reports great difficulty in carrying out normal work duties because of the recurring nature of her vertigo.

8.I have not recommended treatment at this time.

9.In my opinion it is unlikely Ms Thompson will ever return to her full capacity for work in view of the damage that has resulted from her unsuccessful surgery.

10.It is possible that revision surgery to her right ear may improve the vertigo although I believe the changes (sic) of this are not high.

11.You have asked for a percentage assessment of hearing impairment according to the Comcare guide.  I do not have this guide and I would be grateful if you would forward a copy so that I can calculate the required assessment.”

56.     A report of Dr McManus dated 5 May 2004 (Exhibit A9) states as follows:

“Further to numerous reports issued previously regarding this patient I write to advise that I have assessed Ms Thompson again and enclose the compensation for permanent impairment (sic).

As stated previously, Ms Thompson has sustained significant permanent disability resulting from her unsuccessful stapedectomy surgery in 1988.  Her symptoms interfere with all her daily activities but do not incapacitate her.”

In the enclosed form, which was completed by Dr McManus and dated 21 April 2004, the diagnosis of the applicant’s current condition was stated to be “permanent vertigo”, and the extent of her impairment was described as “permanent interference with all aspects of daily living.”

The Issue

57.     The only matter which is in dispute between the parties, and which the Tribunal is required to determine, is the appropriate assessment of the degree of the applicant’s “whole person impairment” by reason of her vertigo condition.  It is common ground that that assessment is to be made in accordance with Table 7.2 in the approved Guide.

The Relevant Provisions of the Approved Guide

58. The approved Guide has been prepared by Comcare pursuant to s28(1) of the SRC Act. Pursuant to s24(5) of that Act the Tribunal is obliged to determine the degree of the applicant’s permanent impairment resulting from the relevant injury under the provisions of the approved Guide. The relevant provisions of the approved Guide are as follows:

“PRINCIPLES OF ASSESSMENT

Impairment and Non-Economic Loss

Impairment means ‘the loss, loss of use, damage or malfunction, of any part of the body, bodily system or function or part of such system or function’.  It relates to the health status of an individual and includes anatomical loss, anatomical abnormality, physiological abnormality and psychological abnormality.  Throughout this guide emphasis is given to loss of function as a basis of assessment of impairment and as far as possible objective criteria have been used.

Impairment is measured against its effect on personal efficiency in the ‘activities of daily living’ in comparison with a normal healthy person.  The measure of ‘activities of daily living’ is a measure of primary biological and psychosocial function such as standing, moving, feeding and self care.

Non-economic loss, which is assessed in accordance with Part B of the Guide, is a subjective concept of the effects of the impairment on the employee’s life.  It includes pain and suffering, loss of amenities of life, loss of expectation of life and any other real inconveniences caused by the impairment.

Whilst ‘activities of daily living’ are used to assess impairment they should not be confused with ‘lifestyle effects’ which are used to assess non-economic loss. ‘Lifestyle effects’ are a measure of an individual’s mobility and enjoyment of, and participation in, recreation, leisure activities and social relationships.  It is emphasised that the employee must be aware of the losses suffered.  While employees may have equal ratings of impairment it would not be unusual for them to receive different ratings for non-economic loss because of their different lifestyles.

…

The Impairment Tables

Part A of the Guide is based on the concept of ‘whole person impairment’ which is drawn from the American Medical Association’s Guides.

Evaluation of a whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and activities of daily living.

As with the American Medical Association’s Guides, Part A of this guide is structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person.  Thus a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this guide.

Gradations of Impairment

Each table contains impairment values at gradations of 5% or multiples of five percent.  Where it is not clear which of two impairment values is more appropriate, Comcare has the discretion to determine which value properly reflects the degree of impairment.

There is no discretion to choose an impairment value not specified in the Guide.  For example, where 10% and 20% are specified values there is no discretion to determine impairment as 15%.

…

GLOSSARY

Activities of Daily Living         Activities of daily living are activities which an individual needs to perform to function in a non-specific environment ie: to live.  The measure of activities of daily living is a measure of primary biological and psychosocial function.  They are:

Ability to receive and respond to incoming stimuli

Standing

Moving

Feeding (includes eating but not the preparation of food)

Control of bladder and bowel

Self care (bathing, dressing etc)

Sexual function

…

Whole Person Impairment     means the medical effects of an injury or a disease and is drawn from the American Medical Association Guides where it is there referred to as ‘whole man’ impairment.  Evaluation of whole person impairment is a medical appraisal of the nature and extent of the effect of an injury or disease on a person’s functional capacity and on the activities of daily living.  The Guides are structured by assembling detailed descriptions of impairments into groups according to body system and expressing the extent of each impairment as a percentage value of the functional capacity of a normal healthy person.  Thus, a percentage value can be assigned to an employee’s impairment by reference to the relevant description in this Guide.”

Table 7.2 in the approved Guide is as follows:

“TABLE 7.2

Miscellaneous Ear, Nose and Throat Disorders

(Percentage Whole Person Impairment)

%        DESCRIPTION OF LEVEL OF IMPAIRMENT

0ONE OR MORE of the following:

·intermittent otorrhoea

·intermittent otalgia and tinnitus

·post nasal discharge, rhinorrhoea and sneezing

·vertigo which does not interfere with any activities

·other conditions which are controlled by medication or for which no medication is required.

5ANY ONE of the following:

·permanent otorrhoea

·complete loss of olfaction or taste

·permanent tinnitus

10ANY ONE of the following:

·permanent otalgia

·vertigo which interferes only with activities involving personal or public safety (for example, driving a car, operating machinery)

20Vertigo which interferes with activities of daily living

25Permanent tracheostomy or stoma

40Vertigo which interferes with all activities except household duties and self care

60Vertigo which interferes with all activities to the extent that only self care can be managed but all other activity is impossible

80Vertigo such that the sufferer is confined to home and requires assistance with all activities including self care”.

Consideration and Findings

59.     The word “interfere” is relevantly defined in the Macquarie Dictionary (Revised Third Edition) as follows:

“1. to clash; come into collision; be in opposition: the claims of two nations may interfere. 2. to come into opposition, as one thing with another, especially with the effect of hampering action or procedure: these interruptions interfere with the work. …”

In The New Shorter Oxford English Dictionary the word “interfere” is relevantly defined as follows:

“Of a thing: come into conflict or collision (with).”

It is appropriate that the phrase “interferes with” in Table 7.2 in the approved Guide be given its ordinary meaning in accordance with these definitions.

60.     Having regard to the applicant’s evidence, the Tribunal is prepared to accept that her vertigo condition may,  from time to time,  interfere to varying degrees with some “activities of daily living”, within the meaning of the approved Guide, such as standing and moving.  The Tribunal is, however, not satisfied that the applicant’s vertigo condition interferes with other “activities of daily living” such as the ability to receive and respond to incoming stimuli, feeding, control of bladder and bowel, and self care.  Nor is the Tribunal satisfied that the applicant’s vertigo condition interferes with the activity of driving a car.

61.     As regards the applicant’s work activities, the applicant’s employment history in Perth since 2000 – involving a substantial period of ongoing full-time employment and other periods of part-time employment involving substantial working hours of at least 53 hours per fortnight, with not excessive periods of sick leave and no periods of unpaid leave taken by reason of her vertigo condition – is such that the Tribunal is not satisfied that her vertigo condition interferes with her work activities.

62.     As regards the medical evidence, of the 3 medical practitioners (namely, Dr Hunter, Dr McManus and Mr Mitchell) who have expressed the opinion that the degree of the applicant’s whole person impairment by reason of her vertigo condition is 40% in accordance with Table 7.2 in the approved Guide, only Mr Mitchell gave oral evidence and, accordingly, only his opinion was tested in cross-examination.

63.     Mr Mitchell, in cross-examination, gave his understanding of the word “interfere”, for the purpose of assessment under Table 7.2, as “being an imposition on one” and “impairment to one’s well being”.  He said that he chose the 40% rating in Table 7.2 because the applicant told him that she felt lightheaded all the time.  He acknowledged, however, that that assessment was excessive and, having regard in particular to the applicant’s activity of driving a car on a daily basis to and from work, school and the shops/markets, he agreed that a more appropriate assessment of the applicant’s whole person impairment in accordance with Table 7.2 would be 10%.  In re-examination, however, Mr Mitchell reiterated that he believed that the applicant’s vertigo condition interfered with her life.

64.     As regards the opinions of Dr Hunter and Dr McManus, those opinions were asserted very briefly in reports without any elaboration or discussion of the various gradations of impairment in Table 7.2 in the approved Guide, and, as previously noted, their opinions, and the basis for them, were not able to be tested in cross-examination. In these circumstances, the Tribunal does not attach great weight to the opinions expressed by Dr Hunter and Dr McManus regarding the degree of the applicant’s whole person impairment under Table 7.2 in the approved Guide.

65.     As regards the Tribunal’s assessment of the degree of the applicant’s whole person impairment by reason of her vertigo condition, in accordance with Table 7.2 in the approved Guide, the Tribunal, as previously indicated, is, on the whole of the evidence before it, prepared to accept that her vertigo condition may,  from time to time, interfere to varying degrees with some “activities of daily living” such that a whole person impairment assessment of 20% under Table 7.2 may be appropriate.  The Tribunal, however, has reservations about the appropriateness of such an assessment having regard to the evidence before it in relation to, in particular, the applicant’s employment history and performance, and her driving of her motor vehicle, and it regards that assessment as the maximum that could reasonably be made in the applicant’s case.  The Tribunal is firmly of the opinion that a whole person impairment assessment of 40% under Table 7.2 is not appropriate in the applicant’s case because, on the whole of the evidence before the Tribunal,  there are some activities (in addition to household duties and self care) with which her vertigo condition, in the Tribunal’s opinion, does not interfere, including (as previously found) some activities of daily living (such as the ability to receive and respond to incoming stimuli, feeding,  and control of bladder and bowel), work duties, and driving a motor vehicle.  That being the case, a whole person impairment assessment of 40% under Table 7.2 is inappropriate because, in order to qualify for such assessment, vertigo must “interfere with all activities except household duties and self care” (emphasis added).

66.     Notwithstanding the reservations expressed in the preceding paragraph, however, the Tribunal is prepared to accept that a whole person impairment assessment of 20% under Table 7.2 in the approved Guide is appropriate in the applicant’s case, and so finds.

Conclusion

67.     Accordingly, the determination of the Tribunal is that the degree of the applicant’s whole person impairment by reason of her vertigo condition is, in accordance with Table 7.2 in the approved Guide, 20%.  That accords with the determination made in the reviewable decision in this matter.  There being no other matters in dispute between the parties, it follows that that reviewable decision should be affirmed.

Decision

68.     For the above reasons the Tribunal affirms the reviewable decision dated 18 August 2003.

I certify that the 68 preceding paragraphs are a true copy of the reasons for the decision herein of Associate Professor  S D Hotop, Deputy President and Dr P A Staer, Member

Signed:
  [sgd J Rainey]
  Associate

Dates of Hearing  24-26 November 2004
Date of Decision  2 June 2005
Advocate for the Applicant       Mr R C Hammal
Solicitor for the Applicant             -
Counsel for the Respondent     Mr B Dube
Solicitor for the Respondent     Sparke Helmore