Woolford and Comcare - [2002] AATA 308

DECISION AND REASONS FOR DECISION [2002] AATA 308

ADMINISTRATIVE APPEALS TRIBUNAL )

) No T2000/120

GENERAL ADMINISTRATIVE DIVISION       )
           Re      PETER RAYMOND WOOLFORD
  Applicant
           And    COMCARE
  Respondent

DECISION

Tribunal The Hon. C R Wright QC (Deputy President)

Date3 May 2002
PlaceHobart

Decision      The decision under review is affirmed.
   [The Hon C R Wright QC]
  Deputy President
CATCHWORDS
Compensation - permanent impairment - Comcare Guide as to assessment of psychiatric condition - sailor developing PTSD after naval collision in 1969 claiming permanent impairment occurring before 1 December 1988 had increased by 10% - unreliability of evidence - whether applicant entitled to lump sum compensation pursuant to Safety, Rehabilitation Act 1988 (C'th).
Safety, Rehabilitation and Compensation Act 1988 – ss.4(1), 24(1)(2) and (7), 28, 124(3)
Department of Defence v Robin West (1998) 156 ALR 651; (1998) 892 FCA

REASONS FOR DECISION

3 May 2002 The Hon. C R Wright QC (Deputy President)

The Decision under Review

This is an application to review a decision of the respondent's delegate made on 8 July 1999, and subsequently affirmed on 3 August 2000, whereby the applicant's claim for lump sum compensation in respect of post-traumatic stress disorder ("PTSD") allegedly resulting from a collision between HMAS Melbourne and USS Frank E Evans on 3 June 1969 was refused. At that time the applicant was serving as an aircraft armourer in the Royal Australian Navy. His claim for compensation was based upon entitlements which it was contended existed under the Safety, Rehabilitation and Compensation Act 1988 (Commonwealth) ("the 1988 Act").
The Review
The application for review was heard in Hobart on 18 and 19 March 2002. The applicant was represented by Mr Webster and the respondent was represented by Ms McMahon of counsel. Sworn evidence was taken from the applicant, Peter Raymond Woolford, Dr Mario Caesar Braganza, a consultant psychiatrist who treated the applicant and Dr Ian Sale also a consultant psychiatrist who examined the applicant on behalf of the respondent. A number of documentary exhibits (including the T documents) were tendered and taken into evidence. It is unnecessary to list all of those exhibits. Relevant material therefrom which is referred to in this decision will be identified.

The Issues

The applicant contended that, prior to 1 December 1988 (the commencement date of the 1988 Act) he had not suffered any impairment or injury, as defined in s4(1) of the 1988 Act, as a consequence of the traumatic events in which he had been involved on 3 June 1969. It was contended that since 1 December 1988 he had suffered impairment and that such impairment had become permanent during the 1990's.
Accordingly, it was contended that s124(3) of the 1988 Act did not adversely affect a claim to which he had otherwise become entitled under s24. (Comcare v Levett 1995) 60 FCR 14 @ 18 was cited as authority for this proposition). The authority of that decision was not questioned by the respondent.
Alternatively, it was contended that if the applicant was indeed permanently impaired by PTSD before 1 December 1988, then such impairment has worsened since that date to such extent that he has now sustained a fresh permanent impairment entitling him to lump sum compensation.
The provisions of the 1988 Act relied on by the applicant are set out hereunder. Section 4 provides:
"`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."

Section 24(1) and (2) provides:

"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.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a) the duration of the impairment;
(b) the likelihood of improvement in the employee's condition;
(c)whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and

(d) any other relevant matters."

Section 124(3) provides:

"A person is not entitled to compensation under section 24 or 25 in respect of a permanent impairment, or under section 17 in respect of the death of an employee, being an impairment or death that occurred before the commencing date, if:
(a)the person received compensation of a lump sum in respect of that impairment or death under the 1912 Act, the 1930 Act or the 1971 Act; or
(b) the person was not entitled to receive compensation of a lump sum in respect of that impairment or death:
(i)where the impairment or death occurred before the commencement of the 1930 Act—under the 1912 Act;
(ii)where the impairment or death occurred after the commencement of the 1930 Act but before the commencement of the 1971 Act—under the 1930 Act as in force when the impairment or death occurred; or
(iii)in any other case—under the 1971 Act as in force when the impairment or death occurred."

It is also appropriate to note at this point that s28 of the 1988 Act provides for Comcare to prepare and issue a "Guide to the Assessment of the Degree of Permanent Impairment" setting out methods of assessment of permanent impairment and non-economic loss. This document binds all determining authorities including the Tribunal. This document ("the Guide") will be referred to in more detail later in this decision.
In response to the applicant's contentions, the respondent raised several issues and competing contentions. First it was claimed that the applicant did not in fact suffer from PTSD at any relevant time. This contention was based upon Dr Ian Sale's report of 9 March 2001 (Exhibit R6), but as Dr Sale modified the opinion expressed in that report during the hearing as the result of further information as to the applicant's history being made available to him, this issue was virtually abandoned. This left the respondent with two principal contentions which were as follows:-
1. The applicant is not entitled to lump sum permanent impairment payment in respect of PTSD because –
(a)Any impairment resulting from the collision in June 1969 became permanent prior to the commencement of the 1988 Act; and
(b)No lump sum compensation was payable in respect of PTSD under the previous legislation (the 1930 and 1971 Acts) which were superseded by the 1988 Act.
(c)Consequently s124(3) of the 1988 Act precludes payment of a sum for compensation in respect of such permanent impairment.
2.Alternatively, if the applicant suffers a permanent impairment arising from PTSD which became permanent after the commencement of the 1988 Act, s24(7) thereof precludes payment of lump sum compensation because the degree of impairment is less than 10%.
At this point it is appropriate to draw attention to s24(7) which provides that compensation is not payable where the degree of permanent impairment is less than 10%.
"Impairment" in respect of non-economic loss is explained in the Guide under "Principles of Assessment" as follows:
"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 concept of "permanency" is also explained in the Guide in the following terms:
"Permanent
Permanent means "likely to continue indefinitely". In determining whether an impairment is permanent regard shall be had to:

the duration of the impairment
the likelihood of improvement in the employee's condition
whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
any other relevant matters.
An impairment will generally be regarded as permanent when the recovery process has been completed, ie when the full and final effects of convalescence, the natural healing process and active (as opposed to palliative) medical treatment has been achieved."

Under the heading "Psychiatric Conditions: Table 5.1" the Guide says:
"Psychiatric Conditions Table 5.1
NOTE: Includes psychoses, neuroses, personality disorders and other diagnosable conditions. The assessment should be made on optimum medication at a stage where the condition is reasonably stable.
% DESCRIPTION OF LEVEL OF IMPAIRMENT
0Reactions to stressors of daily living WITHOUT loss of personal or social efficiency AND capable of performing activities of daily living without supervision or assistance.
5Despite the presence of ONE of the following is capable of performing activities of daily living without supervision or assistance.

reactions to stressors of daily living with minor loss of personal or social efficiency
lack of conscience directed behaviour without harm to community or self
minor distortions of thinking
10Despite the presence of MORE THAN ONE of the following is capable of performing activities of daily living without supervision or assistance.
reactions to stressors of daily living with minor loss of personal or social efficiency
lack of conscience directed behaviour without harm to community or self
minor distortions of thinking."

Before the conclusion of the Tribunal hearing it had been agreed by the parties that, if injury to the applicant had indeed resulted in impairment to the applicant that impairment was "permanent" prior to 1 December 1988 (the commencement date of the 1988 Act).
On the basis of this agreement (correctly made in my opinion having regard to the evidence and the statutory criteria) Ms McMahon submitted that, there being no lump sum compensation available to the applicant in respect of PTSD under either the 1930 Act (the Commonwealth Employees' Compensation Act 1930) which was in force at the date of the injury in June 1960 (i.e. the collision at sea) or the 1971 Act (Compensation (Commonwealth Government Employees' ) Act 1971) the only avenue by which the applicant could establish entitlement to payment under the 1988 Act would be by establishing an increase of not less than 10% in his "whole person" impairment between 1 December 1988 and the present time. Ms McMahon referred to Department of Defence as Delegate of Comcare v Robin West (1998) 892 FCA (31 July 1998) as authority for this contention which Mr Webster did not contest. Her contention is plainly supported by the decision and, as she submitted, this effectively narrows the factual issues for resolution.
The Applicant's Medical History
It should be said at the outset of a review of the applicant's evidence that his testimony suffered from a number of deficiencies which impinge upon its reliability and, in some instances, upon the applicant's credit. The applicant has been a heavy drinker for a very long time and, on 12 May 1997 he suffered a stroke which, I find, was the substantial cause of his ceasing paid employment soon thereafter. Since the stroke, although his physical condition has improved he says (and I accept him on this) that his memory of past events has been badly affected in some areas. Whether this memory deficit is a direct result of the stroke alone or the effect of the stroke combined with his chronic over indulgence in alcohol need not be determined. I am also satisfied that, as Ms McMahon submitted, there were a large number of internal inconsistencies in the applicant's evidence, especially as to the onset of his symptoms of PTSD. In my opinion, the most likely explanation for these inconsistencies is the applicant's becoming aware of the significance of 1 December 1988 in relation to the validity of his claim, some time after the lodgment of his application for lump sum compensation.
There were also inconsistencies between the applicant's oral evidence and documents which he had prepared or acknowledged in the past, and these inconsistencies in large measure appear to me to only be explicable on the same basis. In my opinion, they were not the products of mere inaccuracy or faulty memory on the applicant's part. When it is appreciated that the applicant was the sole viva voce witness as to the deterioration in his health since 1969, it is not easy to make positive findings upon some contested factual issues.
In a one page proof of evidence prepared by the applicant's solicitors on his instructions (which was not formally tendered as an Exhibit, but was referred to at the hearing without objection and was acknowledged as correct by the applicant.)   He said:
"I served in the Royal Australian Navy from 9 March 1964 to 9 March 1973.
I was serving on HMAS Melbourne on 3 June 1969 when at 2.00am it collided with the American Ship the Frank E Evans.   At the time I was lying in my bunk when there was a big crack, the sound of scraping metal and a bag when out ship landed on the water.
One hundred and forty crew were put in the mess deck.   Although the ship was made watertight we could hear water coming into the ship beneath.   There was considerable fear among the crew.
After it was clear that there was no obvious danger on board our ship. I was required to inspect the eight decks below the waterline.   I found this frightening because if there was water behind any of the doors we had to open it would have come out in a gush and could have been life threatening.
This incident was the most traumatic I have experienced in my life.   For the remainder of my navy service I continued to discharge my duties but I did not feel safe often being reminded of the incident.
After discharge in 1973 I sought medical treatment for my nerves.   I saw a doctor whose name I cannot recall, in Newcastle and I was prescribed tranquillisers.   I took them for a time and then returned to Tasmania where I had been born and bred.   I had a number of jobs including driving for the MTT, as a sales representative for wines, a car salesman in a number of car yards and a vacuum cleaner salesman.   My last employment, which ceased in 1998, was as a car salesman.   UP to then I had coped with life at work and socially.   Some of my jobs allowed me to work hours that suited me and this helped limit any pressure I felt.
That after 1973 I did not consult a doctor until I saw Dr Rod Beechey in Hobart in April 1994.   I saw him because I was suffering from stress, having nightmares about the incident with the Frank E Evans and felt tense, anxious and depressed.   Dr Beechey prescribed anti-depressant medication for me and I have been taking that kind of medication ever since.
I ceased work in or about April 1998 as a car salesman as I was no longer able to cope with dealing with potential buyers.   I had frequent days off work and my nervous condition prevent me from discharging my duties.   I was experiencing considerable anxiety, sleeping badly, drinking too much alcohol, irritable and short tempered with people and had short and medium term memory loss."
This statement was amplified by the applicant's oral evidence-in-chief and cross-examination.
The applicant said that he did not find the actual collision between the two ships frightening but was frightened when he had to go below to check for water intrusion in the lower decks of the HMAS Melbourne, but he agreed that the event and its aftermath had been "very traumatic". He became distrustful of the HMAS Melbourne which he and other members of the crew regarded as a "jinx" ship. He stayed on board until 1970, then did a leading hand's course at Nowra and returned to service on board the HMAS Melbourne until late 1972. He was finally discharged in 1973. He said that finding himself back in civilian life he became stressed by the change in his lifestyle and consulted a doctor who prescribed Serepax or similar tablets. He did not attribute this problem to the events of 3 June 1969.
The Medical Evidence
When the applicant consulted Dr Braganza in November 1996 (see Dr Braganza's report of 25 February 1998, Exhibit T7) he told him that he started developing "mental trouble" soon after the collision in 1969, that he started drinking heavily and that during the remainder of his time on the HMAS Melbourne he didn't feel safe. He told Dr Braganza that he feared a similar incident might occur again. He commenced having a "startle" reaction to noise and felt guilty for being unable to save lives. He became hypervigilant, was unable to concentrate and had sleeping problems. He also told the doctor that 10 to 15 years later he started having nightmares of the traumatic event. He felt continually "stressed out" and had intrusive thoughts of the event. He was anxious and tense when he saw war scenes or boats sinking in a movie. He became easily angered and intolerant of his wife and as a consequence they divorced. (He has since married twice, leaving his last wife some years ago and now lives in a de facto relationship). Upon his discharge from the Navy in 1973, he said, he was a "nervous wreck".
Dr Braganza, in the report just referred to concluded as follows:
"His current symptoms are:
1.        Sleep difficulties with nightmares and sweating.
2.        Lack of concentration and poor memory.
3.        Tiredness.
4.        Irritability.
5.        Panic feelings and easily "stressed out".
6.        Startle reaction.
7.He has to make an effort not to think about the collision, but "it always comes back."
8.Every time he sees a war ship, for example, he remembers the collision and he feels tense, anxious and depressed as a result.
9.He cannot watch war movies especially when they involve the navy.
He is currently undergoing treatment for his psychiatric condition, namely Post Traumatic Stress Disorder with anxiety and depression.
It is my opinion that Mr Woolford's psychiatric condition is related to being on board HMAS Melbourne when it collided with an American navy ship on 3.6.69."
In cross-examination Dr Braganza agreed that the 9 symptom listed in the above quotation from his report were the criteria which he used to assess that the applicant suffered from PTSD and he also agreed that the symptoms described by the applicant in giving his history which I have summarised above are some of the symptoms of post-traumatic stress disorder. He then continued:
"Sorry? --- they are some symptoms of post-traumatic stress disorder.
They are nearly all of them, aren't they? --- Yes.
The only thing that is missing is, in that history, are the nightmares and the flashbacks; is that correct? --- Yes.
Yes? --- That's right.
And you state that that happened – he got those 10 to 15 years after the collision and that, to me, is 1979 to 1984; is that correct? --- That's right, yes.
So by then he had all of the symptoms set out in DSM4 for a diagnosis of post-traumatic stress disorder; is that correct? --- That's right, yes.
And the condition was permanent at that time; is that correct? --- One would say that it is permanent but not in fact.
Well, it was likely to continue indefinitely from then, wasn't it, once it was established, he had a number of those symptoms for a long period of time? He had had them from 1969, according to your history? --- Yes, but that ---
And then in 1979 he developed the flashbacks and the nightmare? --- That's correct.
Is that correct? --- Yes.
And he has still got those symptoms now? --- He has more events.
You didn't see him in 1979, did you? --- No.
You first saw him ---? --- That's right, but I did mention somewhere that his symptoms are waxing and waning.
But you can't tell us what his symptoms were other than what he has told you immediately after that time? --- That's right.
Yes, and you have recorded some quite significant symptoms at that time? --- That's right, yes.
That he has told you about? --- That's right.
And those symptoms, I am suggesting to you, have been present ever since the collision; is that correct? --- Those symptoms have been there from the collision, except the nightmares.
And the ---? --- That's right.
Yes, and the nightmares, on your history are 1979 to 1984 when they developed; that is correct, isn't it? --- The symptoms came only after 10 or 15 years, as I said in my letter."

It seems to me that these views and those expressed in his report, Exhibit 7, are not consistent with a report which he submitted to the Department of Defence dated 14 April 1999 (Exhibit T16) which I infer was well after both the applicant and Dr Braganza himself had become aware of the significance of 1 December 1988 in the establishment of the applicant's claim.
The second paragraph of T16 is as follows:
""My opinion is Mr Woolford's primary diagnosis is Post Traumatic Stress Disorder.
Post Traumatic Stress Disorder is rarely found alone.   A recent review of this literature (Grenn at al. 1992) indicated that in patient samples of Vietnam war veterans that have been studied from this perspective, over three quarters of patients with PTSD also met criteria for at least one other diagnosis (e.g. Keane and Wolfe 1990).   The most common diagnosis in these samples are major depression and substance abuse.
In my opinion over the years Mr Woolford tried to suppress these symptoms of PTSD by trying to work and distract himself and by indulging in alcohol.   Unfortunately however the latter has now developed into alcohol abuse symptomatic of PTSD.
From my recollection around the time when I first saw Mr Woolford he was still working although as a casual worker.    However as time went by he could not hold any job due to deterioration of his psychiatric condition.
When I first saw him his level of impairment was 5%.   I could rate his impairment at 10% in early to mid 1999."
Dr Braganza was asked in cross-examination whether or not his treatment of the applicant had resulted in any improvement in his condition. He said "No". He also said that prescribed medication didn't assist the applicant at all and that "In fact his condition got worse as the time went by". He was shown a letter which he had written to Dr Rod Beechey on 23/9/1988 (Part of Exhibit R3) in which he said "This is to inform you that Peter" (the applicant) " has improved a great deal regarding his depression, anxiety and insomnia are concerned [sic]. He is now sleeping about 10 - 12 hours and he is not vomiting in the evenings."
I found his attempt to reconcile this letter with the oral evidence given by him, unconvincing, and generally, I found his evidence as to the onset and development of the applicant's PTSD, unreliable.
I am also of the opinion that his evidence as to the percentages of permanent impairment which he ascribes to the applicant's PTSD is unpersuasive. I agree with the respondent's submission that he failed to specify how he reached the assessments of 5% and 10% respectively mentioned in Exhibit A1. He did not support either of those assessments by reference to any specific material or the provisions of Table 5.1 in the Guide, and it seems to me, based both on my own assessment of the evidence and Dr Ian Sale's views, that there has been no foundation provided from which it could be concluded that 2 (or more) of the 3 potential prerequisites specified by the dot points relating to the 10% impairment level in the Guide were manifested by the applicant.
The success of the applicant's claim depends upon my acceptance of Dr Braganza's opinion as expressed during the course of his oral evidence. In summary that opinion appeared to be as follows:
The applicant had PTSD symptoms from the time he was involved in the collision at sea in June 1969.
All symptoms relied upon by the doctor for his diagnosis were in existence by 1984. (15 years after the collision).
However in the late 1980's the applicant was "working very well" and "he could hold a job and I don't think there was a distortion in his behaviour and thinking" so his impairment then was "almost zero".
When he first saw Dr Braganza (20 November 1996) the applicant's level of impairment was 5%.
By early to mid 1999 the level of impairment had increased to 10%.
I have already commented adversely upon Dr Braganza's methodology and reliability, but I feel at least one further criticism is warranted. Dr Braganza conceded that when he gave a worker's compensation medical certificate to the effect that the applicant was incapacitated for work indefinitely from 18 December 1997 due to PTSD, he was unaware that the applicant had suffered a stroke. As already mentioned, the applicant's stroke occurred in May 1997. Two of his treating doctors, Dr Rod Beechey on 2 December 1997 in a report to Mr R M Webster and in a report dated (obviously erroneously) 15 January 1997 (It should have been 15 January 1998) to Swann Insurance (Aust) Pty Ltd and Dr Ian Readett in a report dated 18 October 1999, had each reported that the applicant had been totally and permanently disabled from working as a car salesman (his occupation when the stroke occurred) due to the effects of the stroke. Neither Dr Beechey nor Dr Readett suggested that PTSD was a contributing factor to that disability in these reports. The reports referred to are to be found in Exhibit R3.
That Dr Braganza should have been unaware of the stroke or its physical sequelae (referred to in the Beechey and Readett reports) plainly undermines any reliance which may otherwise have been placed upon the view expressed in Exhibit A1 that the applicant "could not hold any job due to deterioration of his psychiatric condition". This in turn undermines his impairment assessment of 10% in early to mid 1999.
In his evidence, the applicant said that the stroke caused numbness of the eye and the left side of his face. There was also numbness in the hand. These symptoms still persist. Originally the hand was paralysed for about 6 to 12 months and the applicant is still unable to pick up heavy objects.
The applicant himself denied that any of his PTSD symptoms had caused him to have employment difficulties. He had been a bus driver at one time and was a car salesmen at the time of the stroke. After leaving the Navy he said "I just had to find a job I was suited. I'd spent nine years of my youth (in the Navy). I was untrained and I was not suited to any type of work until I finally found something I could do". He said he found that being a car salesman was "very rewarding, money wise and everything else". He said his selling career had been "very successful". He said "I made a lot of money out of it and had a lot of good times".
I have read the reports of Professor G W Boyd contained in Exhibit R3, but I am fully persuaded by the evidence given at the hearing and referred to in these reasons that the applicant's incapacity for work resulted from the stroke and not PTSD.
I am aware of course that incapacity for work and permanent impairment are different concepts but the factors to be considered in each assessment frequently overlap.
In my opinion the evidence suggests that the applicant's PTSD was well under control before he had the stroke and at that time he could not be said to be permanently impaired due to PTSD to a greater extent than 5% I am unpersuaded that his impairment due to PTSD is any greater now. It could be argued that his alcohol abuse is no longer a component of PTSD but is a separate condition, as suggested by Dr Sale and Dr Jensen (Exhibit R5). There is, however, no need to go down this road. The applicant likes drinking and claims it causes no adverse effect upon his activities of daily living. It is impossible to regard it as a discrete component of his present level of permanent impairment in my opinion.
In his separate disability claim for tinnitus, also based on naval service, the applicant attributed many symptoms now claimed as symptoms of PTSD to the tinnitus. Again I think there is no need to disentangle those symptoms which may be attributed to either or both sources. The simple fact is that the evidence adduced in support of the applicant's case fails to persuade me on the balance of probabilities that his permanent impairment attributable to PTSD has ever reached 10% assessed in accordance with the 1988 Act. I find that the applicant has a permanent impairment attributable to the events of 3 June 1969 and, in accordance with counsel's agreement mentioned above, I find the impairment became permanent prior to 1 December 1988. I find that at the time of becoming permanent such impairment was 5% and I find, further, that such permanent impairment has not increased above 5% since that time.
In reaching these conclusions I have been aided by the opinions expressed by Dr Sale in his oral evidence, which I accept. I find his explanation for reassessing the opinions originally expressed in his written reports (Exhibits R6 and R7) to be fully convincing. Plainly Dr Sale was initially misled by what the applicant told him as to the onset of nightmares and, in other respects, had an incomplete history of the applicant. It was suggested by the respondent that there had been a conscious attempt by the applicant to mislead Dr Sale. I am not able to make a specific finding as to this, but it must be acknowledged that a deliberate untruth on this issue may well have advanced the applicant's case significantly had it been accepted as true.
On the basis of my findings, the applicant has not shown an increase of 10% or more in his level of permanent impairment since 1 December 1988, and as a consequence he has not established an entitlement to lump sum compensation under the 1988 Act.    The decision under review is therefore affirmed.
I certify that the 38 preceding paragraphs are a true copy of the reasons for the decision herein of The Hon. C R Wright QC (Deputy President)
Signed: K L Miller (Personal Assistant)
Date/s of Hearing  18 and 19 March 2002
Date of Decision  3 May 2002
Counsel for the Applicant        Mr R M Webster
Solicitor for the Applicant
Counsel for the Respondent    Ms A McMahon
Solicitor for the Respondent    Australian Government Solicitor