(a) Affirms the decision under review under s 24 of the DRCA.

(b) Sets aside the decision under review under s 27 of the DRCA and remits to the Respondent the calculation of non-economic loss under s 27 of the DRCA in accordance with these reasons and law.

(a) Affirms the decision under review under s 24 of the DRCA.

(b) Sets aside the decision under review under s 27 of the DRCA and remits to the Respondent the calculation of non-economic loss under s 27 of the DRCA in accordance with these reasons and law.

1. In matter number 2024/10429, the Tribunal affirms the decision under review.

................................[SGD]...........................

VETERANS' AFFAIRS - claim for increase in permanent impairment compensation - accepted conditions of 'olecranon bursitis left elbow', 'left elbow lateral epicondylitis' - 'insertional triceps tendinosis of the left elbow', social anxiety disorder' and 'agoraphobia' - medical evidence of degree of impairment - medical evidence of psychiatric conditions - calculation of non-economic loss - delegate changed non-economic loss score - whether delegate acted in accordance with s 27 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth) (DRCA) and Policy - decisions under review in respect to s 24 of the DRCA affirmed - decisions under review in respect to s 27 of the DRCA set aside and remitted to respondent for calculation.

Administrative Review Tribunal Act 2024 (Cth)

Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (Cth)

Comcare v Mooi [1996] FCA 508

Comcare v Power [2015] FCA 1502

Comcare v Wuth [2018] FCAFC 13

Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 38

Friend and Comcare [2021] FCA 837

Military Rehabilitation and Compensation Commission v May [2016] HCA 19

Prosegur Australia Pty Ltd v Higgerson [2024] FCA 203

Robson and Military Rehabilitation and Compensation Commission [2012] AATA 809

Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101

Rodriguez v Telstra Corporation Ltd [2002] FCA 30

The Estate of the Late Judith Hartikainen and Military Rehabilitation and Compensation Commission (Compensation) [2025] ARTA 86

Guide to the Assessment of the Degree of Permanent Impairment - Edition 2.1

Military Compensation SRCA Manuals and Resource Library, Permanent Impairment Handbook

1. Mr Grayson had 4 applications for review heard together. Three applications for review (2024/1426, 2024/5742 and 2024/5743) are in respect to Mr Grayson's degree of whole person impairment (WPI) for his left elbow (the Left Elbow Conditions). The fourth application for review (2024/10429) is in respect of Mr Grayson's degree of WPI for his psychological conditions (the Psychological Conditions).
2. The applications for review for the Left Elbow Conditions were made to the General Division of the Administrative Appeals Tribunal (the AAT)[1], and the application for review for the Psychological Conditions to the Tribunal, each of them seeking review of decisions by the Military Rehabilitation and Compensation Commission (the Commission) affirming:

(a) 2024/1426 - on 26 February 2024, the accepted condition of 'olecranon bursitis left elbow' at a WPI rating of 30% under ss 24 and 27 of the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (DRCA) (the First Reviewable Decision).[2]

(b) 2024/5742 - on 26 February 2024, the accepted condition of 'left elbow lateral epicondylitis' at a WPI rating of 30% under ss 24 and 27 of the DRCA (the Second Reviewable Decision).[3]

(c) 2024/5743 - on 26 February 2024, the accepted condition of 'insertional triceps tendinosis of the left elbow' at a WPI rating of 30% under ss 24 and 27 of the DRCA (the Third Reviewable Decision).[4]

(d) 2024/10429 - on 3 October 2024, the accepted conditions of 'social anxiety disorder' and 'agoraphobia' at a combined WPI rating of 25% under ss 24 and 27 of the DRCA (the Fourth Reviewable Decision).[5]

1. Mr Grayson was self-represented. Ms Sarah Wright, counsel, instructed by the Australian Government Solicitor, represented the Commission.
2. No evidence was led by any witness, the parties relied on the documents filed in the Tribunal to make their contentions.
3. The Tribunal admitted into evidence:

(a) Hearing bundle as exhibit R1.

(b) The briefing letter to Dr Seyed Alavi dated 8 November 2022 as exhibit R2.

(c) The letter of Dr Praveen Vijaysegaran dated 14 September 2022 as exhibit R3.

(d) The letter of Dr Praveen Vijaysegaran dated 6 October 2022 as exhibit R4.

1. The Commission framed the issues across all the applications for review before the Tribunal as:[6]

(a) What is the degree of WPI resulting from each of Mr Grayson's accepted conditions under the provisions of the Guide to the Assessment of the Degree of Permanent Impairment - Edition 2.1 (the Guide) (s 24(5) of the DRCA).

(b) Whether the impairment resulting from each of Mr Grayson's accepted conditions are in the degree of at least 10% WPI or where PI compensation has previously been paid at least 10% more WPI than the earlier rating.

(c) What compensation, if any, is payable to Mr Grayson under s 27 of the DRCA.

1. Additionally for the Psychological Conditions, the Commission said the issue is whether Mr Grayson suffers from two different conditions, and if so, what impairment and degree of WPI results.

(a) Mr Grayson was born in 1959 and is now aged 66 years old.

(b) Mr Grayson served in the Royal Australian Air Force (RAAF) for approximately 26 years in the period March 1976 to October 2002 in a technical trade.[7]

(c) In respect to claim 2024/5742 ('left elbow lateral epicondylitis'):

(i) On 28 July 2016, Dr Michael Thomas, orthopaedic surgeon, provided a medical report that relevantly provides: [8]

In summary, Peter Grayson is a 57 year old, right handed retired RAAF technician with multiple physical and psychological conditions. He has used a walking stick for many years due to a combination of lumbar spondylosis and right talar avascular necrosis. Due to walking stick usage in his left arm he has developed symptoms and signs primarily of insertional triceps tendonosis and secondarily of left lateral epicondylitis for the condition 'left elbow lateral epicondylitis'.

I arranged for an MRI scan of his left elbow which was performed on 8 July 2016 by Exact Radiology. This confirmed that he has both insertional triceps tendonosis with a mild olecranon bursitis and a lateral epicondylitis of his left elbow which in my opinion are the sequelae of walking stick and crutch use as a result of previous orthopaedic conditions.

From what condition(s) does the employee suffer? Please specify the exact diagnosis using ICD10 or DSM- IV codes and having regard to the definitions above, would you please classify each condition as a 'stand-alone condition', a 'sequela', a 'secondary condition' or a 'symptom'.

Please describe the functional impact of each condition, ie: difficulty with lifting heavy weights, seated in an armoured tank, etc.

1 He cannot hold a walking stick or use his left arm for activities of daily living and he needs a sling five out of seven days a week for pain relief.

2 He has mild functional impairment with minimal tenderness on clinical testing.

(ii) On 2 August 2016, the Commission accepted liability under the DRCA for 'Insertional triceps tendinosis' and 'left elbow lateral epicondylitis' based on the specialist report by Dr Michael Thomas.[9]

(iii) On 9 July 2020, the Commission varied its acceptance of the condition of 'left elbow lateral epicondylitis' as a stand-alone condition from 'Insertional triceps tendinosis'.[10]

(iv) On 14 December 2021, Dr Vijaysegaran, an orthopaedic surgeon, provided a report that relevantly states:

Regarding a request for medical examination and a report regarding Permanent Impairment Compensation with regards to two conditions, being peripheral neuropathy in the upper limbs and insertional triceps tendonosis of the left elbow.

I reviewed Mr Grayson for assessment of both of these conditions on 14 December 2021.

The assessment for permanent impairment was quantified using Table 9.4 for both conditions. His general health is quite poor with multiple other medical co-morbidities, although they did not impact on the disability assessment for this impairment.

Other medical conditions that related to the impairment assessment were olecranon bursitis of the left elbow, left elbow lateral epicondylitis and right wrist carpal tunnel syndrome.

The contribution of these other conditions was included in the impairment assessment and has been answered through the tables provided in question 10 and question 9. These conditions are stable and no further treatment is required.

(v) Dr Vijaysegaran, in answering the question when more than one condition has contributed to any impairment, list all conditions contributing to the particular impairment and indicate the relative contribution opines: 'RoM' elbow' and 'Triceps tendinosis 50%, Olecranon bursitis 20% and lateral epicondylitis 30%'[11] and the degree of impairment for Table 9.4 as 30%.[12]

(vi) On 11 September 2023, Mr Grayson was offered permanent impairment compensation for his accepted condition of 'left elbow lateral epicondylitis' rated at 30% WPI under Table 9.4 of the Guide.[13]

(vii) On 12 September 2023, Mr Grayson accepted the offer.

(viii) On 27 September 2023, the Commission made the determination that Mr Grayson was entitled to permanent impairment compensation for his accepted condition of 'left elbow lateral epicondylitis' rated at 30% WPI under Table 9.4 of the Guide in the amount of $80,671.79 57 ($61,464.21 under s 24 of the DRCA and $19,207.58 under s 27 of the DRCA) (the Second Determination).[14]

(ix) On 29 September 2023, Mr Grayson asked for a reconsideration of the Second Determination.[15]

(x) On 26 February 2024, the Commission made the Second Reviewable Decision.

(xi) On 30 August 2024, Mr Grayson applied to the AAT for an extension of time to review the Second Reviewable Decision. The basis of Mr Grayson's review was that the calculation of non-economic loss (NEL) was not assessed in accordance with the DRCA.[16]

(d) In respect to claim 2024/5743 ('insertional triceps tendinosis of the left elbow'):

(i) On 28 July 2016, Dr Michael Thomas, orthopaedic surgeon, provided a medical assessment for the condition 'insertional triceps tendinosis of the left elbow'.[17]

(ii) On 9 July 2020, the Commission varied its acceptance of the condition of 'insertional triceps tendinosis of the left elbow' as a stand-alone condition.[18]

(iii) On 11 September 2023, Mr Grayson was offered permanent impairment compensation for his accepted condition rated at 30% WPI (less the 20% previously compensated) under Table 9.4 of the Guide in the amount of $37,822.52 ($22,086.14 under s 24 of the DRCA and $15,736.38 under s 27 of the DRCA).[19]

(iv) On 26 February 2024, the Commission made the determination that Mr Grayson was entitled to permanent impairment compensation for his accepted condition rated at 30% WPI under Table 9.4 of the Guide (the Third Determination).

(v) On 30 September 2023, Mr Grayson asked for a reconsideration of the Third Determination.

(vi) On 26 February 2024, the Commission made the Third Reviewable Decision.

(vii) On 30 August 2024, Mr Grayson applied to the AAT for an extension of time to review the Third Reviewable Decision. The basis of Mr Grayson's review was his contention that the medical evidence was consistent with a 40% WPI in accordance with Table 9.4 of the Guide.[20]

(e) In respect to claim 2024/1426 (olecranon bursitis left elbow):

(i) On 23 July 2020, the Commission accepted the condition of 'olecranon bursitis left elbow'.[21]

(ii) On 14 December 2021, Dr Praveen Vijaysegaran, orthopaedic surgeon, provided a permanent impairment assessment for the accepted condition 'olecranon bursitis left elbow' at 30% WPI.[22]

(iii) On 11 September 2023, Mr Grayson was offered permanent impairment compensation for his accepted condition 'olecranon bursitis left elbow' rated at 30% WPI under Table 9.4 of the Guide in the amount of $88,344.57 ($66,258.42 under s 24 of the DRCA and $22,086.15 under s 27 of the DRCA).[23]

(iv) On 12 September 2023, Mr Grayson accepted the offer.[24]

(v) On 27 September 2023, the Commission made the determination that Mr Grayson was entitled to permanent impairment compensation for his accepted condition of 'olecranon bursitis left elbow' rated at 30% WPI under Table 9.4 of the Guide (the First Determination).[25]

(vi) On 30 September 2023, Mr Grayson asked for a reconsideration of the First Determination.[26]

(vii) On 26 February 2024, the Commission made the First Reviewable Decision.

(viii) On 8 March 2024, Mr Grayson applied for review of the First Reviewable Decision to the AAT. The basis of Mr Grayson's review was his contention that the medical evidence was consistent with a 40% WPI in accordance with Table 9.4 of the Guide.[27]

(f) In respect to claim 2024/10429:

(i) On 20 June 2016, the Commission accepted the condition of 'agoraphobia'.[28]

(ii) On 29 June 2022, the Commission determined that the applicant was not entitled to additional compensation for permanent impairment resulting from the accepted condition under ss 24 and 27 of the DRCA. The delegate determined that the accepted condition was not considered to be stable, and the level of impairment was unable to be assessed at an additional 10% WPI.[29]

(iii) On 18 July 2022, Mr Grayson requested a reconsideration of the determination dated 29 June 2022.

(iv) On 23 September 2022, the review officer affirmed the determination dated 29 June 2022.[30]

(i) On 4 September 2023, the Commission accepted the condition of 'social anxiety disorder.[31]

(ii) On 29 April 2024, delegate determined that the applicant was entitled to additional compensation for permanent impairment under ss 24 and 27 of the DRCA and found a degree of permanent impairment of 25% (the Fourth Determination).[32]

(iii) On 7 May 2024, Mr Grayson asked for a reconsideration of the Fourth Determination.[33]

(iv) On 3 October 2024, the Commission made the Fourth Reviewable Decision.

(v) On 25 October 2024, Mr Grayson applied for review of the Fourth Reviewable Decision to the Tribunal.

1. Contentious facts are in respect to the interpretation of the medical evidence and their application to the Guide. These contested facts will be dealt with below as part of the consideration of the evidence and contentions.

1. Relevantly to the current issues for determination, s 25(4) of the DRCA provides where the Commission has made a final assessment of the degree of permanent impairment of the employee, no further amounts of compensation shall be payable to the employee in respect of a subsequent increase in the degree of impairment unless the increase is 10% or more.
2. Put simply, once compensation is paid for an injury, any increase in the entitlement to permanent impairment compensation has a threshold of a further 10% of impairment.
3. To determine the degree of impairment, s 24(5) of the DRCA requires the accepted conditions to be considered by reference to the Guide.
4. The decision of the High Court in Canute v Comcare [2006] HCA 47; (2006) 226 CLR 535 stands for the proposition that

the starting point for an assessment of the impairment caused by an injury is that each injury must be treated as a separate injury compensable under ss 24 and 27 of the DRCA, and this means that where there are distinct injuries a claimant may be entitled to a separate set of entitlements for each accepted injury, including for NEL.[34]

1. In Mr Grayson's application for review in matter number 2024/5742, he contends that the medical evidence supports a 40% WPI for his 'Insertional triceps tendinosis of the left elbow' because the 'Permanent Impairment Assessment Report' (the PI Assessment Report) for the conditions of 'Insertional triceps tendinosis of the left elbow', 'olecranon bursitis left elbow' and 'left elbow lateral epicondylitis' of Dr Vijaysegaran at Q2b, Q3b and Q4b respectively by circling 'YES' on the form beside the questions posed 'd. Inability to use limb for self-care'[35] when correctly applied to the description in table 9.4 of the Guide provide for 40% WPI.
2. As the Tribunal understands Mr Grayson's contention it is that because Dr Vijaysegaran circled 'YES' to the question that the each of the Left Elbow Conditions resulted in an inability to use the limb for self-care, then it follows the description in table 9.4 of the Guide that describes 40% WPI as 'Cannot use limb for self care' is satisfied.
3. This contention is made on the basis that the PI Assessment Report does not make reference to table 9.4 of the Guide or make any express determination as to WPI, and on its face provides a greater degree of impairment than provided by Dr Vijaysegaran previously[36].
4. The Tribunal has applied the contention in respect to the degree of impairment being 40% WPI to each of the Left Elbow Conditions on the basis of Mr Grayson's submissions at the hearing, and the evidence, rather than limited to the grounds in matter number 2024/5742.
5. This apparent discrepancy in the evidence of Dr Vijaysegaran as to Mr Grayson's degree of WPI, in circumstances where Dr Vijaysegaran was not called by the Commission (or Mr Grayson) to give evidence was addressed by the Tribunal to the Commission. As was the absence of relevant documents before the Tribunal, including two 'Supplementary Reports' of Dr Vijaysegaran dated 14 September 2022 and 16 October 2022, as well as the briefing letter to a Dr Seyed Alavi, neurosurgeon, whose report was contained in the Hearing Book and relied upon by the Commission.
6. The Commission was given an adjournment to consider the Tribunal's concerns and on resumption sought leave to file additional documents (Exhibits R2, R3 and R4), and as they were clearly relevant to these proceedings, and had been previously provided to Mr Grayson in another claim he had with the Commission (his cervical spondylosis claim), leave was granted.
7. The disparity between what Dr Vijaysegaran circled in the PI Assessment Report and the Commission's contention of WPI is resolved by the report of Dr Vijaysegaran, dated 6 October 2022, subsequent to the PI Assessment Report, where he has manually filled in the WPI for each of the Left Elbow Conditions as 30% (the Supplementary Report).[37]
8. The Supplementary Report was briefed[38] to Dr Seyed Alavi, a neurosurgeon, who on 29 November 2022, provided a report that relevantly provides:[39]

12. Please provide your assessment of the degree of permanent impairment under Table 9.4 arising from Mr Grayson's other upper limb conditions only of insertional triceps tendinosis - left elbow; and peripheral neuropathy (upper limbs-hands only) alone. If you are of the opinion that Mr Grayson suffers an impairment in each upper limb, please provide an assessment for each upper limb. Please also provide an explanation for your assessment.

This is out of my area of speciality. I am not able to comment on those conditions, but I believe the main reason for his upper limb impairment is his cervical spondylosis as the main condition and the second most important condition is peripheral neuropathy.

1. It is unfortunate that these documents were not brought to the attention of Mr Grayson and the Tribunal prior to the hearing. If provided, it may well have spared Mr Grayson the personal stress of running his applications for review for the Left Elbow Conditions. The failure to provide them in the present matters does not reflect well on the Commission as a model litigant.
2. The Tribunal is not reasonably satisfied that Mr Grayson's Left Elbow Conditions result in a WPI of 40%, because:

(a) The best evidence of Mr Grayson's permanent impairment is that contained in the Supplementary Report of Dr Vijaysegaran that clarifies his PI Assessment Report and concludes that the Left Elbow Conditions are each 30% WPI.

(b) Dr Alavi states that the Left Elbow Conditions are not within his area of expertise for an opinion on WPI and is unable to comment on those conditions.

(c) Dr Vijaysegaran was not required by Mr Grayson to be available for cross-examination at the hearing, and accepting that as a self-represented applicant Mr Grayson did not understand the forensic decision he made, his contention at its highest that the answers in the PI Assessment Report as to Mr Grayson's use of his limb for self-care should be accepted is contrary to the enunciation of a 30% WPI for each of the Left Elbow Conditions in the Supplementary Report.

(d) The Tribunal is reasonably satisfied, based on all the medical evidence before the Tribunal, that Mr Grayson has a 30% WPI for each of his Left Elbow Conditions.

(e) Mr Grayson's Left Elbow Conditions have each been compensated as stand-alone conditions at 30% WPI.

1. Mr Grayson has two accepted psychological conditions, 'social anxiety disorder' and 'agoraphobia'.
2. Mr Grayson contends that the Commission has incorrectly assessed the two psychological disorders together as one combined assessment contrary to law. Mr Grayson contends: [40]

1. Note that where the impairments arising from two or more injuries can be assessed under the same impairment table in the Guide, the impairment resulting from each injury must still be assessed separately and in isolation.

2. For the purpose of assessing each injury in isolation, DAs must assess the impairment suffered by the employee due to their injury against the functional capacities of a hypothetical normal healthy person, rather than the actual capacity of the employee just prior to the injury in question.

3. The impairment to the employee resulting from each injury must be considered a separate claim for PI under the SRC Act. Liability to pay compensation will therefore only arise if each injury is able to meet the appropriate PI threshold. If PI arising from an injury meets or exceeds the threshold, it is also eligible to attract a separate payment for non‑economic loss.

4. The High Court in Canute clarified that if an employee suffers two or more compensable injuries that result in multiple impairments (which can be assessed using the Guide), the DA must award a separate PI rating for the degree of impairment arising from each of those compensable injuries. This means that impairments resulting from different compensable injuries cannot be combined using the Combined Values Table in the Guide.

5. The Guide to the Assessment of the Degree of Permanent Impairment is an Approved Guide under section 28 of the SRCA. The Guide was developed using a Whole Person Impairment (WPI) concept drawn from the American Medical Association's Guide, and expresses the extent to which impairment affects the functional capacity of a normal healthy person.

6. The High Court decision in Fellowes reinforced the judgment in Canute, and added that here two injuries result in separate impairments to separate body parts, they must be assessed separately, even if they are assessable under the same Table in the Guide.

7. The Full Federal Court decision in Robson reinforced that the SRCA requires an injury-based approach, and that separate injuries and their associated impairments must be assessed separately and in isolation, even if they relate to the same body part, system or function, or there is a causal relationship between the two injuries.

8. In example 5, the PI assessor has correctly sought to assess each injury in isolation. The employee's total PI in this example, for both his injuries, is 90% WPI (40% + 50%) because the impairment arising from each injury has been considered a separate claim for PI. The Robson decision makes it clear that it is not appropriate to discount compensation in situations like the example described (where the impairment is assessed under a functional table). That is, the amount the employee had already been paid for their first injury (PTSD) cannot be deducted from the amount determined for their second injury (PPD) which would result in the employee receiving 50% WPI in total for both injuries (that is, 40% for the PTSD and then a further 10% on top for the overall increase in WPI due to the PPD).

That DVA apply the DRCA legislated principles with regards to two separate injuries as it is written in several pieces of legislation under Commonwealth Law, that: -.

The Full Federal Court decision in Robson reinforced that the SRCA requires an injury-based approach, and that separate injuries and their associated impairments must be assessed separately and in isolation, even if they relate to the same body part, system or function, or there is a causal relationship between the two injuries.

That, Social Anxiety Disorder & Agoraphobia are TWO separate injuries under the DRCA 3.4.2

The High Court decision in Canute was the first case to cast significant doubt on whether the 'whole person' approach taken by the Guide was supported by the wording in the SRCA. The judgment made in this case decided that under subsection 24(5) of the SRCA, there should be a separate assessment of the degree of PI for each separate injury suffered by an employee that results in a permanent impairment. This includes sequela injuries (injuries which arise from, occur subsequent to, or are caused by the initial injury or associated treatment) that satisfy the definition of injury in section 5A of the SRCA. See Chapter 5 for information regarding calculation of WPI amounts.

Social Anxiety Disorder & Agoraphobia MUST be assessed separately, NOT combined.

1. Mr Grayson cited the 'Jurisdictional Policy Advice NO. 2014/05' issued by Comcare to support his interpretation of the DRCA in respect to assessing the degree of permanent impairment when two or more injuries affect the same body part, system or function (the Policy Guidance).[41]
2. Mr Grayson specifically referred to 'Example 5' in the Policy Guidance where 2 separate psychiatric conditions are separately assessed in isolation and then added together to provide the permanent impairment rating. In that example the condition of Post Traumatic Stress Disorder had an assessment of 40% WPI and a subsequent condition of Paranoid Personality Disorder had an assessment of 50%, with a combined assessment of 90%.[42]
3. The medical evidence of Mr Grayson's psychological conditions, and their acceptance by the Commission, is not contentious and can be summarised as follows:

(a) On 5 May 2016, Dr Catherine Curzon, a psychiatrist, in a report opined that Mr Grayson had the psychiatric 'stand-alone' conditions of 'persistent depressive disorder, panic disorder, agoraphobia, generalised anxiety disorder and erectile disorder'. The 'agoraphobia' may be viewed as a sequalae to the 'panic disorder'.[43]

(b) On 20 June 2016, the Commission accepted liability under the DRCA for Mr Grayson's 'agoraphobia'.[44]

(c) On 8 November 2017, Dr Eric De Leacy, a psychiatrist, in a report opined that Mr Grayson had the psychiatric 'stand-alone' conditions of 'major depressive disorder, generalised anxiety disorder, panic disorder and agoraphobia'.[45]

(d) On 12 June 2018, Dr Ashwani Garg, a psychiatrist, in a report opined that Mr Grayson had the psychiatric conditions of 'agoraphobia with panic attacks and recurrent depressive disorder, currently in full remission'.[46]

(e) On 18 June 2018, the Commission determined that Mr Grayson's permanent impairment from his accepted condition of 'agoraphobia' was 15% WPI.[47]

(f) On 6 June 2023, Dr Varghese, a psychiatrist, in report opined that Mr Grayson had a diagnosis of:[48]

- Persistent Depressive Disorder (PDD) as described in items (v) to (viii) of the conclusions, currently presenting with Dysthymia in that any recent dip into MDD is in remission. In addition there is secondary anxiety and also panic attacks. (DSM 5 code is 300.4. PDD is not an ICD-10 category. Dysthymia is coded F34.1 in ICD- 10 10.)

- Social Anxiety Disorder. (DSM 5 code is 309.21. ICD-10 code is F93.0.)

(g) Dr Varghese opines that he does not make a diagnosis of 'agoraphobia' and Mr Grayson's 'agoraphobic-like behaviour represents Social Anxiety Disorder'[49] with a '20% impairment but it could be 25%'[50].

(h) On 4 September 2023 the Commission accepted liability for the diagnosis of 'social anxiety disorder'[51] and on 29 April 2024, determined that the degree of permanent impairment for the combined conditions of 'social anxiety disorder' and 'agoraphobia' was 25% WPI.[52]

1. The Commission contends that the medical evidence establishes that Mr Grayson's accepted conditions of 'social anxiety disorder' and 'agoraphobia' are 'just differing titles for the same condition'[53] and there is no contradictory medical evidence to the diagnosis of 'social anxiety disorder'[54].
2. The Commission then distinguishes the present circumstances from those in Robson v Military Rehabilitation & Compensation Commission [2013] FCAFC 101, on the basis that:[55]

where two separate clinical conditions that impacted the same body part overlapped but were not coextensive clinically. Here, there is one condition with the same set of symptoms but which has been diagnosed with different names. Applying Canute there is only one injury which gives rise to an entitlement to permanent impairment compensation.

1. The Tribunal is not reasonably satisfied that Mr Grayson is entitled to any additional compensation for his Psychiatric Conditions because:

(a) The best evidence of Mr Grayson's psychiatric conditions is that contained in the report of Dr Varghese that provides a diagnosis of 'social anxiety disorder' that incorporates his symptoms of 'agoraphobia'.

(b) Mr Grayson has, because of the finding above, one compensable psychiatric condition, namely 'social anxiety disorder' with a permanent impairment assessment of 25% WPI.

(c) The reasoning in Robson (as applied in the example in the Policy Guidance) is distinguished from Mr Grayson's circumstances as there are not two conditions that co-exist clinically.[56]

(d) The Tribunal is reasonably satisfied, based on all the medical evidence before the Tribunal, that Mr Grayson has a 25% WPI for his Psychiatric Conditions.

1. Regardless of the outcomes of the Tribunal's determination of the assessment of WPI for the Left Elbow Conditions, Mr Grayson contends that the Commission's calculation of non-economic loss (NEL) under s 27 of the DRCA is incorrect.
2. As the Tribunal understands Mr Grayson's contention he says that the Commission 'offset the NEL scores against other injuries contrary to the DRCA''[57] and relies on 'DRCA 5.7.1 Compensation for Non-Economic Loss'[58] (the PI Handbook) for the contention that:[59]

A veteran who is entitled to PI compensation under section 24 is also entitled to NEL compensation under section 27 in respect of the injury.

Each injury must be assessed separately under section 27 and delegates must determine the NEL that a veteran suffers as a result of the specific injury being assessed.

NEL assessments are made in accordance with the PI Guide taking into account the 'Principles of Assessment' in the PI Guide.

NEL scores in relation to one injury cannot be 'offset' against the NEL scores determined for a separate injury.

1. The Commission contends:[60]
   • There is no medical evidence before the Tribunal in relation to the applicant's NEL arising from the accepted left elbow conditions.
   • While the applicant has himself self-reported NEL scores, the applicant's assertion and/or his lay opinion as to the application of the Guide (in respect of both WPI and NEL) is not probative evidence: Rodriguez v Telstra Corporation Ltd [2002] FCA 30 at [21]- [26]; Prosegur Australia Pty Ltd v Higgerson [2024] FCA 203 at [77].
   • The respondent contends that NEL scores are a matter which require expert evidence, and the Tribunal is not in a position where it can draw its own inferences: Rodriguez at [26].
   • The respondent is not required to obtain a medical opinion as to NEL scores, and the respondent is not required to make the case the applicant wishes to make: The Estate of the Late Judith Hartikainen and Military Rehabilitation and Compensation Commission (Compensation) [2025] ARTA 86 at [55]-[58], [74]-[75].
   • In circumstances where the applicant has not provided any probative evidence in relation to his NEL scores, the decision under review should be affirmed.
2. Section 4(1) of the DRCA defines NEL as 'in relation to an employee who has suffered an injury resulting in a permanent impairment, means loss or damage of a non‑economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware'.
3. Section 27 of the DRCA relevantly provides:

(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, the Commonwealth is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non‑economic loss suffered by the employee as a result of that injury or impairment.

(2) The amount of compensation is an amount assessed by the MRCC under the formula:

A is the percentage finally determined by the MRCC under section 24 to be the degree of permanent impairment of the employee; and

B is the percentage determined by the MRCC under the approved Guide to be the degree of non‑economic loss suffered by the employee.

1. The reference to the approved guide in s 27(2) of the DRCA is in the present circumstances the Guide as referred to above, that relevantly provides:

Non-economic loss is assessed in accordance with Part 1, Division 2 (see page 221) of this guide, and deals with the effects of the impairment on the employee's life. Under subsection 4(1) of the SRC Act, for an employee who has suffered an injury resulting in a permanent impairment, it means:

'loss or damage of a non-economic kind suffered by the employee (including pain and suffering, a loss of expectation of life or a loss of the amenities or enjoyment of life) as a result of that injury or impairment and of which the employee is aware'.

Non-economic loss may be characterised as the 'lifestyle effects' of an impairment. 'Lifestyle effects' are a measure of an individual's mobility and enjoyment of, and participation in, social relationships, and recreation and leisure activities. The employee must be aware of the losses suffered. While employees may have equal ratings of whole person impairment it would not be unusual for them to receive different ratings for non-economic loss because of their different lifestyle.

When assessing NEL compensation in relation to a specific injury or impairment, the delegate must assign a score against NEL tables B1 - B4 in the DRCA PI Guide.

NEL scores will usually be determined on basis of the information provided by the claimant in their NEL questionnaire and any relevant medical evidence before the delegate. The delegate should request further information from the claimant if they require clarification or further information about the specific losses suffered.

Often, the descriptions in the tables in the DRCA PI Guide will not precisely reflect the client's circumstances. In these circumstances, delegates will need to exercise their discretion when weighing up the evidence and determining an appropriate score.

• there may be a variance in how each client reports the effects of their injury or impairment on their lifestyle and the loss they have suffered; and
• delegates have the ability to exercise discretion when determining the appropriate scores.

A delegate should ensure that they have sufficient evidence to satisfy themselves that the NEL suffered by the claimant was a result of the relevant injury.

It is important that the NEL scores in relation to one injury are not 'offset' against the scores determined for a separate injury. If the delegate determines that the lifestyle effect was the result of a separate injury, including another service-related injury then consideration of the injury to which the current claim relates should focus on the lifestyle effects of this particular injury beyond that of the pre-existing condition. It is important to remember that if the delegate intends to use a lower score than the self-assessed score that the delegate should give the veteran the opportunity to provide more detail on the impact of the injury.

What should be considered when assessing the NEL scores

NEL scores are to be determined on the basis of the evidence available at the date of assessment. These scores form a part of the compensation payment that recognises the specific subjective NEL suffered by the veteran as a result of the injury or impairment.

NEL scores should not be based on speculation as to future NEL that has not yet manifested. Only lifestyle effects that are identified as being permanent should be taken into account when assigning a score for NEL.

Generally it would be reasonable for a delegate to accept the NEL scores as self-assessed by the veteran unless there is evidence that contradicts a certain finding. If the assessing doctor has provided responses on the NEL questionnaire, this may justify a certain score or provide clarification of any discrepancy in the scores on the questionnaire that will allow the delegate to consider if a score is appropriate.

It is important that the scores given by the delegate are based on the evidence provided to them and are not simply based on the delegate's own opinions as to the effect of the injury. Justification of the NEL score

A delegate's findings must be based on the evidence before them, including any medical evidence and the claimant's NEL questionnaire. The delegate must carefully consider and weigh up this evidence before making a determination as to the appropriate NEL score in each of the tables.

If the veteran has not provided sufficient information to justify their self-assessed NEL score, the delegate must provide them with an opportunity to provide further information before making a determination, especially if the delegate intends to give an NEL score that is lower than the claimant's self-assessed score.

A delegate must be able to justify the NEL score they have given against each of the tables. If the delegate decides to adjust a veteran's self-assessed NEL score on the basis there is clear evidence that the impact on the lifestyle did not result from the injury (e.g. if it is found to have resulted from another injury) they will need to document the evidence and provide clear reasons for their finding.

1. In the reviewable decisions for the Left Elbow Conditions (the Left Elbow Reviewable Decisions), the Commission dealt with NEL as follows:

(a) the accepted condition of 'olecranon bursitis left elbow':[61]

Your selected score of '3' was adjusted by the delegate to '0' for the following reasons:

I have adjusted this to a score of 0 as you have been compensated for Mobility under your claim for Left Lateral Epicondylitis where a score of 3 was awarded. Further compensation under this section is not payable where the same loss has already been compensated.

Your selected score of '4' was adjusted by the delegate to '2' for the following reasons:

I have adjusted this to a score of 2 as I do not consider there is evidence to support limitation outside of the family. This has then been offset against a score of 2 that was awarded for your claim for Peripheral Neuropathy. Further compensation under this section is not payable where the same loss has already been compensated.

Your selected score of '4' was adjusted by the delegate to '3' for the following reasons:

I do not consider there is evidence to support a requirement for assistance to participate in activities solely due to this condition. This has then been offset against a score of 3 that was awarded for your claim for Peripheral Neuropathy. Further compensation under this section is not payable where the same loss has already been compensated.

Your selected score of '3' was adjusted by the delegate to '0' for the following reasons:

Your answers in the questionnaire do not meet the criteria for this section.

As you know, following the decisions in Canute, Fellowes & Robson, injuries are assessed separately, leading to an increased number of discrete NEL payments and veterans that have already received NEL compensation are not compensated twice for the same effects on their lifestyle (ie. for the same non-economic loss).

The delegate also has the discretion to amend and determine the each score as relevant to the circumstances. Taking into consideration my assessments relating to the level of impairment as determined by the delegate on 11 September 2023 for which I disagree with the level of impairment for this condition (as detailed above), I have decided not to amend the scores as allocated by the delegate in this case.

(b) the accepted condition of 'left elbow lateral epicondylitis':[62]

Your selected score of '3' was adjusted by the delegate to '0' for the following reasons:

I have adjusted this to a score of 0 as you have been compensated for Mobility under your claim for Left Lateral Epicondylitis where a score of 3 was awarded. Further compensation under this section is not payable where the same loss has already been compensated.

Your selected score of '3' was adjusted by the delegate to '2' for the following reasons:

I have adjusted this to a score of 2 as I do not consider there is evidence to support limitation outside of the family. This has then been offset against a score of 2 that was awarded for your claim for Peripheral Neuropathy. Further compensation under this section is not payable where the same loss has already been compensated.

Your selected score of '4' was adjusted by the delegate to '0' for the following reasons:

I have adjusted this to a score of 0 as you have been compensated for Recreation and Leisure under your claim for Peripheral Neuropathy where a score of 4 was awarded. Further compensation under this section is not payable where the same loss has already been compensated.

Your selected score of '3' was adjusted by the delegate to '0' for the following reasons:

I did not consider the criteria was met for a score on this section. It is noted that you were compensated for Other Loss under your claim for Peripheral Neuropathy where a score of 1 was awarded. Further compensation under this section is not payable where the same loss has already been compensated.

As you know, following the decisions in Canute, Fellowes & Robson, injuries are assessed separately, leading to an increased number of discrete NEL payments and veterans that have

already received NEL compensation are not compensated twice for the same effects on their

The delegate also has the discretion to amend and determine the each score as relevant to the circumstances. Taking into consideration my assessments relating to the level of impairment as determined by the delegate on 11 September 2023 for which I disagree with the level of impairment for this condition (as detailed above), I have decided not to amend the scores as allocated by the delegate in this case.

(c) the accepted condition of 'insertional triceps tendinosis of the left elbow':[63]

Your selected score of '3' was adjusted by the delegate to '0' for the following reasons:

I have adjusted this to a score of 0 as you have been compensated for Mobility under your claim for Left Lateral Epicondylitis where a score of 3 was awarded. Further compensation under this section is not payable where the same loss has already been compensated.

Your selected score of '4' was adjusted by the delegate to '2' for the following reasons:

I have adjusted this to a score of 2 as I do not consider there is evidence to support limitation outside of the family. This has then been offset against a score of 2 that was awarded for your claim for Peripheral Neuropathy. Further compensation under this section is not payable where the same loss has already been compensated.

Your selected score of '4' was adjusted by the delegate to '0' for the following reasons:

You have been compensated for Recreation and Leisure under your claim for Peripheral Neuropathy where a score of 4 was awarded. Further compensation under this section is not payable where the same loss has already been compensated.

Your selected score of '3' was adjusted by the delegate to '0' for the following reasons:

I did not consider the criteria was met for a score on this section. It is noted that you were compensated for Other Loss under your claim for Peripheral Neuropathy where a score of 1 was awarded. Further compensation under this section is not payable where the same loss has already been compensated.

As you know, following the decisions in Canute, Fellowes & Robson, injuries are assessed separately, leading to an increased number of discrete NEL payments and veterans that have already received NEL compensation are not compensated twice for the same effects on their lifestyle (ie. for the same non-economic loss).

The delegate also has the discretion to amend and determine the each score as relevant to the circumstances. Taking into consideration my assessments relating to the level of impairment as determined by the delegate on 11 September 2023 for which I disagree on the level of impairment for this condition (as detailed above), I have decided not to amend the scores as allocated by the delegate in this case.

1. As the Tribunal understands Mr Grayson's contention, on the basis of the treatment of NEL in the Left Elbow Reviewable Decisions, the Commission impermissibly 'offset' NEL scores for each of them against each other or another injury (see the reference to Peripheral Neuropathy).
2. The Tribunal accepts that the wording in the Left Elbow Reviewable Decisions in part (see bolded sections of the reviewable decisions) does on its face suggest that the Commission did 'offset' NEL against other injuries. The Commission has in each case where it has described a reduction in the NEL score by reference to 'offset' followed with the sentence 'further compensation under this section is not payable where the same loss has been already compensated'.
3. The source of the statutory power of the Commission for the reduction of NEL by 'offset' or 'where the same loss has already been compensated' is not stated.
4. The High Court in Canute did not consider s 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRCA) that is in identical terms to s 27 of the DRCA, but its reasoning in respect to ss 24 and 25 of the SRCA is applicable to construing s 27 of the DRCA where the plurality states at [36]:

His Honour referred to s 25(5) as an expression of that very construction, albeit with greater particularity (making special provision with respect to one kind of permanent impairment). In referring to increases in the degree of impairment, s 25(4) does not include a separate "injury" resulting in a separate permanent impairment which must be individually assessed. Since the adjustment disorder had nothing to do with the impairments previously assessed by Comcare resulting from the back injury, s 25(4) was inapplicable. If this construction is open, why should the Court regard ss 24 and 25(4) as repugnant in the circumstances of this case, as Comcare would have it? The approach of Gyles J is not only plausible, but preferable. It gives effect to the terms of s 24, and produces a separate assessment in respect of each injury.

1. The High Court in Fellowes v Military Rehabilitation and Compensation Commission [2009] HCA 39 confirmed the reasoning in Canute and at [24]-[26] the plurality stated:

The references in the Guide to "whole person impairment" identify the "methods by which the degree of permanent impairment [resulting from an injury is] expressed as a percentage". The percentages stated in the Guide describe "the extent of each impairment as a percentage value of the functional capacity of a normal healthy person". The references to "whole person impairment" that are found in the Guide do not direct attention to the effect of an injury or disease on a particular individual. On the contrary, the effect to be assessed is by reference to the functional capacities of a normal healthy person.

The statement in the Guide, that "[w]here two or more injuries give rise to the same impairment a single rating only should be given", must be understood as directing attention to an impairment as that term is defined in the SRC Act. That is, the reference to the "same impairment" must be understood in terms of the particular identified effect on particular bodily parts, systems or functions. Contrary to the respondent's submission, this statement in the Guide is not to be understood as requiring a single rating to be given whenever each of two injuries is assessed as yielding the same degree of impairment of two separate parts of the body.

The text of the Guide is therefore to be construed as providing that the whole person impairment to which it directs attention requires comparison with the "functional [capacities] of a normal healthy person" rather than the capacities of the particular applicant as they existed immediately before the injury in question. The reference to two injuries causing the "same impairment" requires attention to the particular identified effect on bodily parts, systems or functions that is said to have resulted from the two injuries. It is, therefore, not necessary to consider, in this case, the application of the principle, stated (26) in Canute, that if there were some conflict between what is required by the SRC Act and what is provided by the Guide, it is the Act that must be given priority.

1. The Tribunal construes the construction of s 27(1) of the DRCA in Mr Grayson's circumstances where each of the Left Elbow Conditions are compensable under s 24 of the DRCA (and have been), the calculation of NEL for each of them must be determined separately and not by reference to any other compensable injury. This construction of s 27 of the DRCA is the most consistent one with the reasoning in Canute and Fellowes.[64]
2. The Tribunal accepts that it cannot draw its own inferences to form a conclusion that requires expert evidence where none is before the Tribunal.[65] But that also applies to the decision-maker in determining the NEL for each of the Left Elbow Conditions. The PI Handbook provides policy guidance to the delegate of the Commission in the same terms at 5.7.2:

Generally it would be reasonable for a delegate to accept the NEL scores as self-assessed by the veteran unless there is evidence that contradicts a certain finding. If the assessing doctor has provided responses on the NEL questionnaire, this may justify a certain score or provide clarification of any discrepancy in the scores on the questionnaire that will allow the delegate to consider if a score is appropriate.

It is important that the scores given by the delegate are based on the evidence provided to them and are not simply based on the delegate's own opinions as to the effect of the injury.

A delegate's findings must be based on the evidence before them, including any medical evidence and the claimant's NEL questionnaire. The delegate must carefully consider and weigh up this evidence before making a determination as to the appropriate NEL score in each of the tables.

A delegate must be able to justify the NEL score they have given against each of the tables. If the delegate decides to adjust a veteran's self-assessed NEL score on the basis there is clear evidence that the impact on the lifestyle did not result from the injury (e.g. if it is found to have resulted from another injury) they will need to document the evidence and provide clear reasons for their finding.

1. In the Left Elbow Reviewable Decisions there is no medical evidence to assist the delegate in changing the scores for individual components of NEL.[66]
2. It follows that the calculation of NEL, in circumstances where the Commission has changed the NEL scores provided by Mr Grayson, but in doing so not relied on any expert evidence to make those changes, has done so impermissibly under s 27 of the DRCA, the Guide and the PI Handbook.
3. Given the state of the evidence before the Tribunal it is not practical to substitute a decision as to the correct calculation of the NEL for each of the Left Elbow Conditions.
4. The Tribunal is not reasonably satisfied the Left Elbow Reviewable Decisions under s 27 of the DRCA are correct at law because:

(a) The Tribunal determined that Mr Grayson has a 30% WPI for each of his Left Elbow Conditions pursuant to ss 24 and 27 of the DRCA.

(b) The proper construction of s 27 of the DRCA requires the Commission to assess each of the Left Elbow Conditions by reference to the functional capacities of a normal healthy person.[67]

(c) The Commission erred in its calculation of the NEL for each of the Left Elbow Conditions by making adjustments to Mr Grayson's NEL scoring by reference to other considerations, without any medical evidence to provide the basis for that calculation.

(d) In doing so, the Commission acted contrary to s 27 of the DRCA, the Guide and the PI Handbook.

(a) There is no increase in Mr Grayson's degree of WPI for the Left Elbow Conditions, the requirement of s 25(4) of the DRCA are not met. The applications for review for the Left Elbow Conditions under s 24 of the DRCA must be affirmed.

(b) The calculation of NEL for each of the Left Elbow Conditions was done contrary to s 27 of the DRCA. The application for review of the Left Elbow Conditions under s 27 of the DRCA must be set aside and the Tribunal's decision is to remit them to the Commission for calculation in accordance with these reasons and law.

(c) Mr Grayson has one compensable psychiatric condition with a degree of permanent impairment of 25% WPI, he is not entitled to further compensation under ss 24 and 27 of the DRCA, the application for review for the Psychiatric Conditions must be affirmed.

[1] On 14 October 2024, the Administrative Appeals Tribunal became the Administrative Review Tribunal (the Tribunal). Under the transitional provisions in the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (the Transitional Act), proceedings in the AAT that were not finalised before 14 October 2024 are to be continued and finalised by the Tribunal. Anything done in relation to the proceeding before 14 October 2024 is taken to have been done by the Tribunal.

[6] Respondent's Statement of Facts, Issues and Contentions, dated 25 July 2025 (Respondent's SFIC).

[22] Exhibit R1, p 24; Table 9.4 of Part 2 of the Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1 (the Guide).

[42] Citing Robson v Military Rehabilitation and Compensation Commission [2013] FCAFC 101.

[58] Military Compensation SRCA Manuals and Resource Library, Permanent Impairment Handbook

[60] Respondent's SFIC at [83]-[87].

[64] See also Friend and Comcare [2021] FCA 837 at [55].

[65] Comcare v Wuth [2018] FCAFC 13 at [98]; Rodriguez v Telstra Corporation Ltd [2002] FCA 30 at [21]- [26].

[66] Contrast with Mr Grayson's determination in respect to Cervical Spondylosis at Exhibit R4.