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On 27 June 2007, Mr McLennan claimed a lump sum for permanent impairment under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth). The MRCC denied liability on 30 June 2008 because it considered the impairment to be below 10%. Mr McLennan argued for a 20% impairment rating under Table 8.1 of the Comcare Guide, 2nd edition. The MRCC considered that 5% was the appropriate rating.

The Tribunal identified the issue as “what, if any, is the degree of permanent impairment” resulting from the irritable bowel syndrome. It heard the matter on 19 April 2010 and, on 18 May 2010, affirmed the decision under review. The reasons say the applicant was self-represented and that the respondent was represented by the Australian Government Solicitor.

A corrigendum dated 20 May 2010 is also included in the supplied material. It directed the Registrar to replace the version of Table 8.1 reproduced at pages two and three of the decision with Table 8.1 of Part 2 of the Comcare Guide, 2nd edition. That correction matters when reading the decision: the reasons identify Part 2 as the appropriate table, while the corrigendum clarifies the table that was to appear in the published decision.

Why the court decided this way

The Tribunal treated the relevant impairment threshold as 10% or more, provided the whole person impairment was stabilised. It said that medical experts had used Table 8.1 of Part 2 of the Guide, which it described as the accepted appropriate table. The supplied reasons reproduce a version of a table headed “Upper Digestive Tract”, while the corrigendum supplies the corrected Part 2 table covering disorders including the colon, rectum and anus.

The Tribunal's decisive reasoning concerned the relationship between objective signs and the incontinence criteria. It stated that there were “no objective signs of irritable bowel syndrome”. On that basis, it considered that a rating above 10% would require it to be satisfied that Mr McLennan had partial faecal incontinence requiring continual treatment.

The Tribunal did not reject the incontinence merely because there was no objective evidence. It noted that Dr McIntyre had provided a plausible explanation for why objective evidence was absent, and accepted Mr McLennan's account that he experienced incontinence about twice a week. This distinction is important: the Tribunal accepted the reported symptom, but then assessed its severity and treatment requirements.

The evidence about treatment did not satisfy the Tribunal that continual treatment was required. Mr McLennan took no treatment for the incontinence and did not use an incontinence pad. The Tribunal also distinguished the medication he did take: Somac was used to abate abdominal cramps, not faecal incontinence. It concluded that he could not be described as requiring continual treatment for incontinence occurring approximately twice a week.

The Tribunal's final assessment was that the “weight of medical evidence” pointed to mild incontinence and 5% whole person impairment under Table 8.1. The 5% rating fell below the 10% threshold described in the reasons. The Tribunal therefore affirmed the MRCC decision. The result depended on the Tribunal's application of the table to the medical and treatment evidence in this particular record, rather than on a general finding that reported incontinence cannot be accepted without objective signs.

The supplied text does not reproduce a complete, consistently numbered set of paragraphs. For that reason, this analysis identifies passages by their section and wording rather than assigning inferred paragraph numbers.

Before and after state of the law

The decision records an existing statutory and guide-based framework rather than setting out a broad change in the law. The reasons refer to sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), and state that stabilised whole person impairment of at least 10% was required for eligibility for lump sum payment. They also identify Table 8.1 of Part 2 of the Comcare Guide, 2nd edition, as the appropriate assessment table for the condition.

Before the Tribunal determined the application, the MRCC had accepted liability for the irritable bowel syndrome but had concluded that the impairment did not reach 10%. The dispute was therefore about the degree of impairment, not whether liability for the condition had been accepted. Mr McLennan's position was 20%, while the MRCC's position was 5%.

After the Tribunal's decision, the decision under review remained in place. The Tribunal did not announce a new statutory test or purport to amend the Guide. It applied the cited threshold and table to the evidence before it and assessed this applicant's impairment at 5%. The corrigendum corrected the table reproduced in the decision; the supplied text does not state that the correction changed the Tribunal's substantive findings.

The decision should therefore be read narrowly. The source shows how this Tribunal assessed the accepted condition in this application, including the distinction it drew between mild incontinence and incontinence requiring continual treatment. It does not establish, from the supplied material alone, how other cases with different medical evidence or treatment needs should be assessed. Nor does the supplied text set out a wider discussion of the statutory provisions beyond the threshold statement and the identified sections.

Key passages with plain-English translation

“The issue before us is what, if any, is the degree of permanent impairment of Mr McLennan resulting from irritable bowel syndrome.”
In plain English, the Tribunal was deciding the impairment percentage for the accepted bowel condition. It was not reconsidering the MRCC's acceptance of liability for that condition. The source does not preserve a reliable paragraph number for this passage.

“We agree that there are no objective signs of irritable bowel syndrome.”
The Tribunal accepted that the medical evidence did not show objective signs of the condition for the assessment it was undertaking. But it did not treat that point as automatically disproving Mr McLennan's reported incontinence. It separately considered the explanation given by Dr McIntyre and accepted the reported episodes.

“We accept therefore that Mr McLennan has faecal incontinence, as he described, about twice a week.”
This records an express factual acceptance. The Tribunal accepted the symptom despite the absence of objective evidence because it considered the explanation for that absence plausible. Its reasoning distinguishes the existence of the symptom from the separate question of how the impairment criteria applied.

“Mr McLennan cannot be said to require continual treatment for his incontinence, which by his own account occurs approximately twice a week.”
The Tribunal relied on the absence of treatment for the incontinence. It noted that Mr McLennan did not use an incontinence pad, and that Somac was taken for abdominal cramps, not for incontinence. The treatment purpose of the medication therefore mattered to the Tribunal's assessment.

“We find that the weight of medical evidence points to Mr McLennan having mild incontinence and that he is suffering from 5% whole person impairment when assessed by Table 8.1 of the Guide.”
This is the Tribunal's central assessment finding. It linked the accepted evidence of incontinence to a 5% rating and characterised the incontinence as mild. That rating did not meet the 10% threshold stated in the reasons.

“The Tribunal affirms the decision under review.”
The decision of the MRCC was left in place. The supplied decision does not include a separate order granting compensation.

What fact patterns trigger this precedent

The decision is most directly relevant to a fact pattern involving an impairment claim assessed under Table 8.1 of Part 2 of the Comcare Guide, where the dispute concerns the degree of impairment and a 10% threshold. It is particularly relevant to the reasoning the Tribunal used where there are no objective signs of the condition but the applicant reports faecal incontinence.

The case also illustrates a distinction between accepting that a symptom exists and deciding how that symptom fits the impairment table. Here, the Tribunal accepted the reported incontinence, but assessed it as mild after considering its frequency and the absence of treatment directed to it. The evidence that the incontinence occurred about twice a week, that no pad was used, and that the medication taken was for abdominal cramps formed part of the Tribunal's reasoning.

The decision may be relevant to a comparison where treatment is central to a table criterion. The Tribunal did not treat taking any medication as equivalent to continual treatment for incontinence: it considered what the medication was used to treat. The distinction was specific to the evidence described in the reasons.

The decision is less directly informative where the table criteria or medical evidence differ, where objective signs are present, where treatment is required or used for incontinence, or where the relevant impairment is for another condition. The supplied decision does not determine how those different circumstances should be resolved. It should not be read as holding that all intermittent incontinence must receive a 5% rating.

How later courts have treated it

The supplied judgment does not identify any later court or tribunal decisions that considered, followed, distinguished, or otherwise treated McLennan. It therefore does not provide a basis for describing the decision's subsequent history or its influence on later decisions.

The decision's catchwords list Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, and Re Florit and Comcare [2004] AATA 378; (2004) 81 ALD 774. In the supplied reasons, however, neither authority is discussed in the Tribunal's analysis. Their appearance in the catchwords is not enough, on this source alone, to identify a particular proposition from either case as part of the Tribunal's reasoning.

The corrigendum is the only later document included alongside the reasons. It is dated 20 May 2010 and corrects the reproduced table. It does not report later judicial consideration of the reasoning or its acceptance in other matters.

Still-open questions

The supplied material leaves several matters unanswered. First, it does not reproduce the full text of every paragraph in a consistently numbered format, so reliable paragraph citations cannot be supplied for the passages discussed above. Second, although it identifies sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (Cth), it does not set out their text or explain in detail how each provision operated in the application.

Third, the reasons state that a rating above 10% required partial faecal incontinence requiring continual treatment in the circumstances of this case. The supplied extract does not explain how the Tribunal reconciled that statement with every category in the corrected Table 8.1. The corrigendum clarifies which table should have been reproduced, but the source does not provide an additional explanation of the table's interpretation.

Fourth, the decision does not explore what level or type of treatment would count as “continual treatment” in another case, or how frequency, severity, or treatment directed to the symptom might affect an assessment on different evidence. It also does not decide how objective signs should be evaluated in cases where the clinical record differs from this one.

Finally, the source does not provide later treatment of the case. Any assessment of its continuing significance would require legal sources beyond the judgment and corrigendum supplied here.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.