Aquilina v TAC [2001] VCAT 1589

Medium Neutral Citation [2001] VCAT 1589

1. The decision of the respondent is varied by deleting "40" therefrom and substituting "52" therefor.

For the Applicant: Mr Keogh of counsel instructed by Maurice Blackburn

For the Respondent: Mr M Gorton instructed by TAC Law

1. This is an application to review a decision of the respondent made 24 March 1999, whereby the respondent found that the applicant had suffered a 40% whole person impairment pursuant to the 2nd Edition of the AMA Guides, as a result of a transport accident taking place at Tumut in the Snowy Mountains on 6 October 1996 ("the transport accident").

2. At the time of the transport accident, the applicant was an interstate truck driver hauling a load from Canberra to Adelaide. He apparently became lost in the Snowy Mountains and while negotiating a hilly, winding road, his vehicle left the road and tumbled over an embankment to a distance of approximately 100 metres. The applicant lay in that position without help for approximately 7 hours until he was found. He was not wearing a seat belt at the time of the transport accident. It should be noted that the applicant has no recollection of the transport accident whatsoever. His last recollection prior to the transport accident was rounding a bend prior to the truck going over the cliff. His next recollection was on 9 October 1996, of being in an aircraft being transported from the Wagga Wagga Hospital to the Alfred Hospital in Melbourne.

3. After the applicant was found, he was immediately taken to Tumut Hospital, where he remained a short time before being transferred to Wagga Wagga Hospital where he remained until 9 October. He was then transferred by air to the Alfred Hospital in Melbourne where he remained until 15 October, whence he was transferred to Bethesda Hospital where he remained for a number of months.

4. In a report from "Greater Murray Health Service Wagga Wagga" (Wagga Wagga Hospital) dated 12 February 1997, the applicant's injuries are described as follows :

"On examination, Mr Aquilina was restless and agitated but was haemodynamically stable. His pupils were equal and reactive and he was moving his limbs (except his right arm because of other injury). He had facial lacerations to the upper right eyelid, right lip and right ear and had a clinically fractured right zygoma. He had a degloving injury to his right shoulder and tenderness with bruising to the left lower ribs. He had abrasions and bruising over the right ileac spine and right loin area and multiple small lacerations to his lower limbs.

X-ray of the cervical spine, right shoulder, pelvis and shoulder showed no abnormality. CT scans were also performed. CT scan of the cervical spine showed no evidence of fractures from C6-T2. CT scan of the brain showed a small subcortical bleed into the right frontal lobe with a slight associated mass effect. Mildly displaced fractures of the right maxillary sinus with complete opacification of the maxillary sinus was also noted as was some opacification of the ethmoid air cells and a small amount of fluid in the sphenoid sinuses. CT scan of the abdomen showed a displaced fracture of the right 11th rib, contusion of the right lower lobe of the lung, possible contusion of the liver, contusion of the kidney and retroperitoneal haemorrhage".

5. The applicant now seeks assessment in relation to the following injuries :

(a) restriction of movement relating to the cervical spine;

(b) restriction of movement relating to the thoraco lumbar spine;

(c) clinically established disc derangement with residuals relating to T10/11 and T11/12 pursuant to Table 1.53 of the AMA Guides;

(e) impairment of trigeminal nerve pursuant to Table 2.2;

(f) complex integrated cerebral function pursuant to Chapter 2;

(g) facial integrity and depression of right cheek and facial scarring pursuant to Chapter 7;

(h) psychological impairment pursuant to Chapter 12;

(i) urinary symptoms and erectile dysfunction pursuant to Chapter 9;

(j) right shoulder scarring pursuant to Chapter 11.

6. The applicant was the youngest of 8 children being born in Malta on 11 September 1965 and is currently 35 years of age. When he was six months of age, he migrated to Australia where he attended school until the age of 14 years and 9 months.

7. After leaving school, the applicant participated in various types of employment before obtaining an articulated truck licence. For approximately three years prior to the transport accident, he was an owner/driver of his own truck.

8. The applicant commenced a relationship with his wife in 1981 and there are three children of that relationship aged between 11 years and 8 years.

9. Subsequent to the transport accident, difficulties arose in the applicant's marriage, apparently as a result of the applicant's behaviour caused by the brain injury which he sustained in the transport accident. The relationship has now become so difficult that the applicant's estranged wife has obtained an intervention order against the applicant pertaining to herself and the children.

10. For some years prior to the transport accident, the applicant was a regular user of marijuana. It would also appear that the applicant used amphetamines in order to stay awake, in the belief that it was helping him in his occupation as a truck driver. In order to counteract the effect of the amphetamines when he had finished his truck driving, he used heroin to calm himself down. The applicant remains a user of recreation drugs.

11. The applicant has been assessed in relation to the brain damage which he suffered in the transport accident at the request of his own solicitor, by Mr Wallace, a neurosurgeon, and at the request of the respondent by Mr Klug also a neurosurgeon. Both Mr Wallace and Mr Klug examined the applicant twice. Mr Wallace examined him on 18 April 1998 and 25 November 2000 and on each occasion concluded that he suffered an impairment relating to his complex integrated cerebral functioning of 25% whole person, headaches of 10% and emotional disturbance of 20% whole person impairment. Mr Klug examined the applicant on 28 August 1998 and 27 October 2000 and on each occasions concluded that the applicant suffered an impairment of 20% relating to complex integrated cerebral function and emotional disturbance of 15%. The Guides require that the highest of these readings be taken into account and that the lesser readings be subsumed into those higher readings.

12. Both Mr Klug and Mr Wallace agreed that the other's assessment was well within range and there was not a lot of difference between the two of them.

13. Mr Wallace's assessment is given some support by a report prepared by Associate Professor Jennie Ponsford, clinical neuropsychologist, dated 20 December 2000. While it is noted that pursuant to the Guides, Professor Ponsford not being a medical practitioner is not permitted to make an assessment, such an assessment can give weight to that performed by a medical practitioner. At p.5 of her report, Professor Ponsford stated :

"I would estimate the percentage disability resulting from impairment of complex integrated cerebral function at 25%. He also has a psychiatric impairment, best rated by a qualified psychiatrist, and a physical impairment, best rated by the relevant specialists".

14. Further I note, that the applicant is suffering considerable difficulties in daily living. These were described by Miss Killoran, the applicant's treating psychologist, who is also a neuropsychologist. For example, Miss Killoran stated that when the applicant goes to the bank, he has difficulty and has on occasions caused disruption to the point where she has been telephoned by the bank manager with a request to help calm the applicant down. In her report of 1 October 1999, Miss Killoran summarizes the applicant's difficulties in the following terms :

"This unfortunate man has also suffered severe personality change involving aggression, lack of anger control and disinhibition, and inability to interact in a social capacity. On account of the above, as well as his cognitive and memory deficits, disinhibition and impulsivity, it would seem extremely unlikely that Godwin would be able to re-enter the workforce in any shape or form, therefore rendering him incapacitated for life".

15. In the applicant's statement, he refers to the day-to-day difficulties which he experiences. At paragraph 32 ff , he states as follows :

"Often I forget to eat or don't get hungry. I don't eat much. I have lost a couple of stone since the accident.

I forget to brush my teeth and do things like that. Sometimes I just can't be bothered, sometimes I forget. Sometimes I go for days without a shower. Other times when I have a shower I just keep washing myself over and over. When I'm washing or having a shower I will often hit my head on the tap. When I dress I often put my clothes on wrong.

I just can't organize things for myself. I remember when I was living in Hawthorn there was a bin in the corner. I would bash my head everyday trying to get it under the bench to put stuff in the bin. All I had to do was pull the bin out. I never did it. I don't know why.

The only time I eat anything decent is when the kids are there. They have to help me with cooking or I go to my family. I have nearly burnt the kitchen down a few times. My wife barred me from the kitchen because of fires. The kids are trained not to leave me alone cooking. I used to cook heaps of different stuff. Now I have to keep it very simple. Everything is basic. The kids keep an eye on me. I don't cook at all if the children are not there. I just have a bowl of cereal or stuff like that".

16. None of these matters in the applicant's evidence were contested by the respondent. Thus, taking all these matters into account, I favour the assessment made by Mr Wallace and find that the applicant has an impairment of 25% relating to complex integrated cerebral function.

17. It has been conceded by Mr Gorton, who appeared for the respondent, that Mr Stubbings in a report made an assessment on 12 April 1998 in relation to the trigeminal nerve pursuant to Chapter 2 Table 2 of 3% of the whole person is a correct assessment. Therefore, I find that the applicant has a 3% whole person impairment relating to an impairment to his trigeminal nerve.

18. It should be noted, that Mr O'Brien made an assessment in relation to Chapter 2 Tables 4 and 9, relating to the applicant's sensory distribution of the median radial and ulnar nerve of the upper right limb, to which he found a 16% whole person impairment. However, Mr Keogh, who appeared for the applicant, conceded after the neurosurgeons failed to find any such impairment, that the applicant was not entitled to the Chapter 2 impairment as found by Mr O'Brien.

19. It is conceded by Mr Keogh on behalf of the respondent that if the applicant is entitled to an assessment pursuant to Chapter 12 of the AMA Guides, it arises from the physical injury which the applicant suffered to his brain. Mr Gorton submitted that with a head injury, the usual situation is that the applicant complains of post-traumatic stress disorder which are the primary results of the traumatic event. He stated this is not a case of post-traumatic stress disorder. He stated that the evidence from the psychiatrist and Miss Killoran is that the applicant had a secondary reaction to a physical injury (brain injury) and because of the provisions of s.46B of the Transport Accident Act that is secondary to a physical injury and he is not entitled to any impairment.

20. Section 46B of the Transport Accident Act 1986 reads as follows :

"1. In determining a degree of impairment of a person, regard must not be had to any physical or psychological injury, impairment or symptom arising as a consequence of, or secondary to a physical injury".

21. Mr Gorton then referred to the Oxford Dictionary definition of "secondary" which he stated meant "below or after primary". And as to the word "consequence" he stated means "an affect of action or condition". Mr Gorton then stated that all the applicant's psychological problems flow from the brain injury and thus his emotional disturbance, irritability and aggression arise from the consequences of or secondary to the brain injury. He thus submitted that the applicant's psychological problems were caught by the provisions of s.46B and should not be counted.

22. Mr Gorton also stated that I should accept the view of Dr Cronin, psychiatrist, who examined the applicant on behalf of the respondent, that there was a complete overlap between the matters referred to in Chapter 2 and the psychiatric assessment of Chapter 12 and that therefore I should not make any assessment of the applicant pursuant to Chapter 12.

23. The submissions made by Mr Gorton in relation to the application of s.46B appear to be similar to submissions that were made before Deputy President Macnamara in State Trustees as Guardian for Collin Dickinson v Transport Accident Commission (unreported 5 November 2000). At paragraph 10 of his decision in that case, the Deputy President dealt with similar submissions so made when he stated :

"Mr Lewis who appeared on behalf of the respondent Transport Accident Commission said that Section 46B required me to exclude from consideration any emotional disturbances which Mr Dickinson might suffer as a result of organic brain injury. Those disturbances he said were psychiatric or psychological injury `arising as a consequence of, or secondary to, a physical injury'. Mr Gorton who appeared on behalf of the applicant submitted however, that in the case of organic brain injury, the emotional disturbance were the injury. They were not a secondary consequence thereof in the same way as the pain of a back injury is part of that back injury and not a secondary consequence of it. In my view it would be wrong to exclude the symptoms of organic brain injury from assessment. A consideration of the parliamentary debates which took place upon the passing of the Accident Compensation (Further Amendment) Act 1996 which inserted Section 46B into the Transport Accident Act 1996 shows that the anomaly sought to be removed was a perceived compounding or double counting with respect to psychiatric injury. A back injury for instance was counted once by reference to the pain and restriction of motion of which it created and the second time as a psychological injury where it was found to create clinical depression as a result of persistent pain. If impairment as a result of organic brain injury is assessed under Chapter 2 there is no double counting. The impairment is assessed once and once only and the symptoms such as emotional disturbance are the measure of the underlying impairment, in the same way as pain and restrictions of motion are frequently the measure of orthopaedic injury. An alternative view is that organic brain injury and its symptoms are to be regarded as neurological impairment or injury, rather than psychiatric or psychological and to be outside the ambit of Section 46B for that reason. It must be conceded that a psychiatrist asked to offer an opinion as to whether a prisoner was `insane' in accordance with the M'Naghten Rules, would be expected to assess not only any psychotic disease from which the prisoner suffered but also the behavioural consequences of any organic brain injury. Nevertheless in my view, the context in which Section 46B was enacted demonstrates that the words `psychiatric or psychological' should be given a narrow view for the purposes of the section".

24. I agree with what was stated by the Deputy President in Dickinson's case and am of the view that the same considerations apply here.

25. Further in Jonasson v Transport Accident Commission (unreported 24 December 1997) dealt with the interaction of Chapters 2 and 12 of the Guides by reference to San Diego v TAC (2 February 1996) and by p.61 Column 1 of the Guides themselves. Deputy President Macnamara there stated :

"The interaction of Chapters 2 and 12 in the assessment of psychiatric and neurological impairment in the same subject was considered by Mr Galvin, Deputy President, in San Diego v Transport Accident Commission (2 February 1996). He stated some six principles which in his view should guide a decision maker in these matters.

`1. Chapter 2 provides for the evaluation of permanent impairment resulting from dysfunction of the brain, spinal cord and cranial and peripheral nerves. There are a number of different kinds of deficits which may be relevant. One of these is '`motional disturbances''(p.63). This category relates to psychiatric disorder whereas the others are of a physical nature.

2. Assessment of the physical neurological impairment is properly done by a medical practitioner with appropriate neurological expertise. Assessment of the emotional disturbance element is properly done by a psychiatrist. Under Chapter 2 therefore where there is emotional disturbance, there is need for more than one medical expert to be involved.

3. Chapter 12 is concerned with psychiatric impairment and requires assessment by a psychiatrist.

4. Under Chapter 2, in order to arrive at the degree of whole person impairment, the largest impairment value for the various categories is to be taken as the whole person impairment (pp.61 and 62 The Guides).

5. If in a particular case emotional disturbance is one of the categories to which an impairment value is given under Chapter 2 and if it is a degree of impairment less than that given to any other category, then since the higher or highest figure prevails, the amount allocated to emotional disturbances has no impact upon any value for psychiatric impairment assessed under Chapter 12 provided that the assessment under Chapter 12 has not been with the deliberate exclusion of the emotional disturbance assessed under Chapter 2.

6. If on the other hand, the amount allocated under Chapter 2 for emotional disturbance happens to be the higher or the highest of the values assessed for categories under that chapter and thereby becomes the whole person impairment figure and if there has also been an assessment of psychiatric impairment under Chapter 12 which includes the same emotional disturbance, unless the difference between the amount allocated under Chapter 2 and the second highest amount allocated under Chapter 2 is deducted from the psychiatric impairment figure, there will have been an over-estimate of impairment and consequential `double dipping'.

The Guides themselves state at page 61 column 1 :

`Evaluation of CNS [that is central nervous system] impairment is difficult because of the complex relationships between the brain and the mind. It is impossible to avoid consideration of associated mental, emotional and personality processes. When appropriate, Chapter 12 should be used in conjunction with this Chapter'."

26. In this particular proceeding, both Mr Wallace and Mr Klug agree that the applicant has suffered a considerable emotional disturbance although lesser in impairment value than his impaired complex integrated cerebral function. If I were to accede to Mr Gorton's submission, a considerable amount of the applicant's impairment would not be counted. The aim of s.46B is to prevent double counting not to stop different impairments being counted. To do so would be unjust to the applicant. This view would appear to be supported by the case of Barnett v Transport Accident Commission (Mandie J 25 May 1999). At paragraphs 20 and 21 of that decision his Honour stated :

"It is stated in Ch 12 of the Guides (p.215) that the chapter applies to persons whose mental and behavioural disorders resulted from `physical impairment of other organ systems' as well as to persons whose mental and behavioural disorders `do not involve organ dysfunction'. It is even more clearly stated under Principle 1 on the same page, that `[i]n a mental disorder, the impairment may be a demonstrable loss of an important function that is caused by an organic brain disorder_, a functional thinking disorder, or an affective disorder'. In my opinion, the Tribunal would therefore have been in error, as a matter of law, if and insofar as it treated Ch 12 as applying only to `psychiatric factors' and as not applying to any part of an impairment which was caused by organic brain damage._

However, I do not think on a fair reading that the Tribunal made this error, alternatively if it did, I do not think that the error vitiated the fundamental reasoning which led to the conclusion of the Tribunal on this aspect. As I read the Tribunal's reasons, the Tribunal considered that the mental and behavioural impairment of the appellant, under Ch 12, of 20% overlapped with the impairment under Ch 2 constituted by emotional disturbances to the extent of one-half, that is to say, the half caused by organic brain damage. Accordingly, applying Chapters 2 and 12 in conjunction (as per the relevant passage on p.61), it was appropriate to allow 10% under Ch 12 and to treat the other 10% as dealt with under and absorbed within the Ch 2 assessment. I find no legal error in this approach as a basis for the Tribunal's decision".

27. Thus the question now is what is the proper psychiatric assessment pursuant to Chapter 12 (after allowance for overlap between Chapters 2 and 12) that should be given to the applicant. Mr Cronin, consultant psychiatrist who examined the applicant on two occasions at the request of the respondent, found on the first occasion that the applicant had a 40% whole person psychiatric impairment but that 20% of that was secondary or unrelated and that 20% was organic and thus he found that there was no overlap between Chapters 2 and 12. On the second occasion that Dr Cronin examined the applicant, being 4 December 2000, he found that the applicant had a 25% whole person psychiatric impairment with 20% being organic and 5% being secondary and there being no overlap between Chapters 2 and 12.

28. Dr Epstein who examined the applicant at the request of his own solicitors on 12 October 1999 found the applicant to have a 40% whole person psychiatric impairment with a 15% overlap relating to cognitive dysfunction and 10% relating to secondary impairment pursuant to s.46B and thus he assessed the applicant as having a 15% whole person impairment relating to primary psychiatric problems resulting from his brain injury. Dr Glaser who examined the applicant twice found on the second occasion, that the applicant had a 50% overall psychiatric impairment with 10% being unrelated to the transport accident, 10% being secondary to the physical injuries which the applicant suffered, 15% being overlapped with Chapter 2 and 15% relating to primary psychiatric problems.

29. I also note the comments of Mr Klug in his letter of 17 December 1998 where he states as follows :

"I note that Dr Cronin was of the opinion that there was a 40% collective impairment. He further states that of the collective impairment 25% has arisen as a direct result of the head injury and that such overlaps with neurological impairment. He considers that the remaining 15% is a combination of pre-existing factors and factors secondary to physical injury and its consequences.

You have specifically asked me to comment as to whether or not Dr Cronin's assessment would require me to alter the impairment assessment I related to an emotional disturbance.

As always, it is difficult to try and separate these two components. As I indicated in my report I thought there was an emotional disturbance which would warrant a 15% impairment. I attributed this emotional disturbance to the direct effects of organic brain injury. I still feel this is appropriate and under these circumstances, it would be relevant for Dr Cronin to reduce his collective impairment by an appropriate value".

30. Doing the best I can with the all the evidence that has been put before me, I accept that the applicant has an overall psychiatric impairment of 40%. However, taking into account the factors such as the applicant's prior use of drugs and his matrimonial problems, it would appear that the applicant has a 10% impairment which is completely unrelated to the transport accident. Further, bearing in mind the applicant's musculo skeletal injuries, I am of the view that there is a secondary impairment relating to the effect of pain resulting from those injuries of approximately 10%. Of the remaining 20%, in my view, 10% relates to matters that have already been taken into account by reason of the assessment made pursuant to Chapter 2, thus leaving 10% which is assessable pursuant to Chapter 12 as a result of psychological factors arising from brain injuries which he received in the transport accident, which have not been previously taken into account in the Chapter 2 assessment. Thus I find that the applicant is entitled to a 10% impairment assessment for psychological factors pursuant to Chapter 12 of the Guides.

31. The applicant has been assessed in relation to his musculo skeletal problems by three orthopaedic surgeons. Mr O'Brien on 6 June 2000 and Mr Pryor on 1 October 1998, both at the request of his own solicitor, and Mr Jones on 8 September 1998 and 15 November 2000 at the request of the respondent.

32. Mr O'Brien was unavailable for cross-examination but his report was tendered into evidence. In his report Mr O'Brien stated that the applicant had a 3% whole person impairment relating to his cervical spine. However, on closer reading of the report, it appears that the findings that Mr O'Brien made as to movements of the cervical spine suggest that he may have made a miscalculation in his final figure. On page 2 of his report Mr O'Brien stated :

"Examination of the cervical spine revealed some 40o of flexion and 45o of extension. Lateral flexion was 30o bilaterally, with 60o of rotation to the right and 70o to the left".

These are figures which fall in between the ranges given in Tables 47 and 48 of the Guides. It would appear that Mr O'Brien has failed to round those figures to the nearest whole number in order to give a reading. In my opinion, this is the way the Tribunal has always dealt with these Guides. Under these circumstances, Mr O'Brien should have found that the applicant had a 5% impairment relating to the cervical spine.

33. Unfortunately, Mr Pryor appears to have used parts of readings in coming to a 3% whole person impairment relating to the cervical spine. That is, when dealing with loss of left and right rotation he allowed .5% for each relating to Table 49. In my view, having found .5% on each movement, he should have rounded that figure to a whole figure being 1. Under those circumstances, I find that he should have found that the applicant had a 4% whole person impairment relating to his cervical spine.

34. Mr Jones found that the applicant had a 2% whole person impairment relating to his cervical spine.

35. What I am required to do in relation to restriction of movement is to ascertain what the applicant's movements would be on a normal day. Not what his movements are on a particularly good day or on a particularly bad day. Attempting to apply this test, it would appear to me that the movements as found by Mr Jones were ascertained on a particularly good day, while the movements as found by Mr O'Brien were ascertained on a particularly bad day. Further, I take into account that Mr Pryor was not required to attend for cross-examination. Taking all those matters into account, I find that the applicant has a 4% whole person impairment relating to his cervical spine.

36. The applicant has been assessed in relation to his thoraco lumbar spine by Mr O'Brien at 2%, Mr Pryor at 2% and Mr Jones on 15 November 2000 at 1%. It should be noted that in his first examination Mr Jones assessed the applicant at 13% whole person impairment. I note that the 13% whole person impairment as found by Mr Jones was in 1998 and it appears to be out of line with the findings of all other examiners including the latest examination by Mr Jones, I conclude that such a finding must have been on a particularly bad day and does not represent the normal movement of the applicant's thoraco lumbar spine. In my view, a 2% whole person impairment relating to the applicant's thoraco lumbar spine as found by Mr O'Brien on the second examination and Mr Pryor, is more likely to represent the restriction of movement which the applicant would suffer in relation to that part of his body on a normal day and I so find.

37. In relation to the applicant's right shoulder, Mr O'Brien found a restriction of movement of 4% of the whole person while Mr Jones in his first examination found a 7% restriction of movement of the whole person and in his second examination found a 10% restriction. I note that Mr Pryor did not appear to make any findings in relation to the right shoulder as he was of the view that the applicant had a full range of movement. In his report, Mr Pryor stated on the issue of specific injuries to the limbs, "he has scarring of the right shoulder and some mild discomfort in the right shoulder joint, but otherwise full movement and function of the arms". Thus I take it that Mr Pryor found that the applicant had no restriction of movement of the right shoulder. Again, trying to find the applicant's restriction of movement on a normal day, I have taken the view that Mr O'Brien has, in all probability, made the correct assessment in relation to the range of movement on a normal day and thus I find the applicant has a 4% whole person impairment relating to his right shoulder.

38. After Mr Pryor examined the applicant, he apparently became suspicious that the applicant may have injured the discs in his thoracic spine in the transport accident. As a result, he ordered an MRI examination, noting that the applicant was tender at T10-11. The MRI examination was performed on 8 June 1999 and in a report of 21 June 1999, Mr Pryor notes the findings in the following terms :

"The principal findings are that there is evidence of early disc derangement in the lower thoracic spine. There is no major discal protrusion, but there is a small broad based central disc bulge at T10-11 level, thus at the bottom of the dorsal spine, but without evidence of compression of the spinal cord or nerve roots.

At T11-12 there is a tiny focal left-sided disc protrusion indenting the thecal sac, but not indenting the cord. ...

Given the history, it would be my opinion that it is very likely that the injuries he sustained in his accident would have been an appreciable causative factor".

39. As a result of such findings, Mr Pryor assessed the applicant as having a 5% impairment pursuant to Table 1.53B3. That is, "an operated or non-operated, clinically established disc derangement with residuals". Mr Jones, who examined the MRI report, stated that in his view the disc derangement referred to in the report was age rather than accident-related. He stated that it was most unlikely that the thoracic spine discs would be injured in a traumatic event such as the transport accident and even more unlikely that they would be injured at two levels. He therefore concluded that the lesions noted in the MRI report were not accident-related.

40. However, it is noted that the applicant broke his 11th right rib in the transport accident which is very closely related to the area of the 11th thoracic vertebra and thus directly related to T10/11 and T11/12. Further, it is noted, that the vehicle tumbled some 100 metres over a cliff with the applicant not seat belted at the time. In my view, this would create a huge impact on the applicant's body, and bearing in mind that the applicant had broken his rib in the immediate area of the disc, on the balance of probabilities I find that the applicant injured his T10/11 and T11/12 discs in the transport accident. Further, it is clear that the applicant has tenderness over the area of those discs and has restriction of movement of the spine around that area which in my view are sufficient to find the residuals as required by Table 53. Thus having made those findings, a 5% allowance must be made in relation to Table 53 in relation to the clinically established disc derangement at T10/11 or T11/12.

41. The applicant's face was examined by Mr Stubbings on 12 April 1998 and Mr Webb on 13 June 2000 at the request of the applicant's solicitors and by Mr Millar on 17 August 1998 and 9 October 2000 at the request of the respondent. All the examiners were ear, nose and throat surgeons. Mr Stubbings, Mr Webb and Mr Millar on his last examination found that the applicant had a 2% impairment relating to facial integrity (scarring), the scarring being on the applicant's eyelid and lip.

42. Mr Stubbings and Mr Webb and Mr Millar on the first occasion allowed 5% in relation to a depression in the right cheek of the applicant as a result of a fracture of his zygoma. However, on the second examination performed by Mr Millar, he said that the depression was no longer visible and, as a result, he made no allowance whatsoever. However, Mr Millar did agree that if the depression did exist, the only way that it could be cured in terms of the bony damage was by operation which had not been performed. However, Mr Millar said if the same was not visible, it should not be allowed. Mr Webb in his evidence said that he was able to detect the depression of the zygoma by running his finger over the applicant's cheek bone.

43. Mr Millar also said that in his view the scarring and the depressed cheek bone if it was to be assessed should be assessed together as they both fell within the descriptors of the face at pp.158 and 159 of the Guides.

44. A Class 2 impairment as described in p.159 of the Guides states as follows :

"A patient belongs in class 2 where there is a loss of supporting structure of part of the face, with or without cutaneous disorder. Depressed cheek, nasal or frontal bones constitute a class 2 impairment".

It will be noted, that the descriptor of Class 2 impairment mentions nothing about visible signs. It refers to "loss of supporting structure of part of the face ... depressed cheek".

45. In this particular case, clearly a depression in the zygoma fits within that description. It does not matter whether the same is visible to the eye. If the depression exists then it is assessable. 5% is the minimum prescribed by Class 2.

"A patient belongs in Class 1 where the facial abnormality is limited to a disorder of the cutaneous structures such as visible scars and abnormal pigmentation".

47. In this case, the scarring complained of is not over the same area as the depressed cheek bone but over the eyelid and lips, therefore in my view that should also either have a separate or additional assessment.

48. Looking at the way that the Guides anticipate the assessment of the abnormalities on p.159, in my view, the scarring and the depressed cheek bone should both be assessed but they should be assessed together. Thus I agree with Mr Millar in this respect. Thus, in my view, an appropriate assessment in relation to the face being the scarring and the depressed cheek bone is 7% whole person impairment.

49. The applicant gave evidence that since the transport accident, there has been urgency in him needing to pass urine and he needs to do it many times per day. He also gave evidence that on occasions he has wet his bed.

50. Mr Moss, a urologist, thus assessed the applicant as having a 5% whole person impairment pursuant to class 1 noted on p.182 of the Guides (Chapter 9). Class 1 impairment is stated in the Guides to be as follows :

"A patient belongs in class 1 when the patient has symptoms and signs of bladder disorder requiring intermittent treatment with normal function between episodes of malfunction".

51. There was no evidence of any damage to the bladder. The evidence was that the malfunctions in the urgency and bed wetting arose from brain problems. Mr Gorton thus argued that, as there was no damage to the bladder, the applicant was not entitled to any assessment. He supported this argument by referring to the examples in the Guides which all referred to physical bladder damage. In my view, the fact that the brain is causing the problem does not in any way detract from the same being a bladder disorder and under the circumstances I do not accept that part of the argument put by Mr Gorton.

52. However, Mr Gorton also stated that in order to be assessed pursuant to Class 1 the disorder "required intermittent treatment". In this case, he stated that there was no evidence that intermittent treatment had taken place or that intermittent treatment or treatment at all was required for the applicant's problems. Mr Moss stated that while there had been no treatment it was possible that if some treatment was tried, it may help the applicant in this regard. In my view, a requirement of intermittent treatment is an essential for an assessment in this regard and the fact that some treatment may help, falls far short of being a requirement for treatment. In this case, there is no evidence of required treatment. Under those circumstances, I do not believe it is appropriate to make any assessment for bladder dysfunction.

53. Mr Moss also assessed the applicant as having an 8% whole person impairment relating to erectile dysfunction. The applicant gave evidence that prior to the transport accident, he had a high libido but subsequent to that time his sexual desire was almost non-existent and that he had difficulty obtaining an erection and on occasions when he did obtain an erection, he had difficulty maintaining the same.

54. Again, Mr Gorton suggested that in order to be assessed under this category, it was necessary that there be some physical problem with the penis rather than the brain and he referred to the examples in the Guides to support this argument. A Class 1 impairment is described at p.184 of the Guides as follows :

"A patient belongs in class 1 when sexual function is possible, but there are varying degrees of difficulties of erection, ejaculation and/or sensation".

55. It is noted that nothing in the descriptor of Class 1 requires that there be any injury to the penis. While the examples stated may relate to injury to the penis, they are only examples. What the Guides are concerned with in relation to this matter is the actual functioning. In this particular instance, the applicant's malfunctioning fits directly within the descriptor and therefore, in my view, he is entitled to an assessment in relation to this matter. As the only assessment that has been made is by Mr Moss of 8%, then that should be accepted.

56. The applicant suffered a degloving injury to his right shoulder in the transport accident and as a result has scars from a graft that was performed on his right shoulder. This has been assessed as a 3% whole person impairment by Mr Fry. This assessment was not contradicted by the respondent and Mr Fry was not required to be cross-examined. Thus, I find that the applicant has a 3% whole person impairment relating to scarring of the right shoulder.

57. Thus in conclusion, I find that the applicant is entitled to a 25% assessment in relation to a loss of complex integrated cerebral function, 10% in relation to psychiatric impairment that is directly related to the transport accident and does not overlap the impairment pursuant to Chapter 1, 8% whole person impairment relating to his sexual dysfunction, 7% impairment relating to his face, 5% impairment relating to an assessment pursuant to Table 1.53, 4% relating to the applicant's loss of motion of cervical spine and a further 4% relating to the applicant's loss of movement of his right shoulder, 3% for scarring of the right shoulder and 2% relating to loss of movement of the thoraco lumbar spine. Combining all these figures the applicant is entitled to a whole person impairment of 52% and I will make orders accordingly.