[2005] VCAT 820

(1) The decision of the respondent of 23rd January 2003 that the applicant has a Whole Person Impairment of 32 percent is set aside and in lieu thereof it is determined that he has a Whole Person Impairment of 51 percent.

Ms Bourke and Mr Jens of Counsel, instructed by Ryan Maloney & Anderson

Mr Moulds of Counsel, instructed by TAC Law Pty Ltd

1 This matter comes before me by way of an application by Michael Zagar ("Zagar") who is seeking a review of the decision of the Transport Accident Commission ("the TAC"), such decision being dated 23rd January 2003. That decision concerns the level of impairment suffered by Zagar as a result of a motor vehicle accident which occurred on 9th March 1997 ("the accident"). It is common ground that, given the date of the accident, any assessment of Zagar's Whole Person Impairment should be performed in accordance with the 2nd Edition of the AMA Guides to the Evaluation of Permanent Impairment ("the Guides"). Pursuant to the Guides the TAC assessed Zagar's Whole Person Impairment at 32 percent. Zagar is seeking a review of that decision on the basis that his impairment is greater than 32 percent, and an application seeking such review was issued out of this Tribunal on 30th January 2003. At the hearing it was made quite clear that this was what could be described as a "50 percent" case - in other words, whilst every percentage point of assessment has the potential to be of financial significance, the plaintiff is seeking to establish that he is entitled to ongoing benefits by reason of the operation of s.53(5)(b) of the Act.

2 This matter has had what could be described as a somewhat chequered run in that it commenced in Mildura and could not be concluded in Melbourne for some time due to a difficulty relating to the availability of evidence. Evidence was heard over several days. The matter, including written submissions, was ultimately concluded on, literally, the last working day of 2004. Unfortunately the Christmas vacation then intervened. In addition to having had a particularly busy start to this working year, I also returned to the County Court in order to conduct a circuit for a Judge who was unavailable. I apologise to the parties for the delay in delivering this judgment, such delay resulting from the circumstances which have, unfortunately, prevailed.

3 In this matter Ms Bourke and Mr Jens of counsel appeared on behalf of Zagar and Mr Moulds of counsel on behalf of the TAC. Zagar gave evidence, as did his brother, Josef Zagar, and his sister, Jane Zagar. The applicant also called evidence from Mr Damien Jensen, Neurosurgeon; Dr JEK Galbraith, Ophthalmologist; Mr Hugh Millar, Otolaryngologist; Mr Robert Carey, Orthopaedic Surgeon (who examined Zagar on behalf of the TAC); and Dr Lester Walton, Consultant Psychiatrist. The TAC elicited evidence from Mr Kenneth Brearley, Orthopaedic Surgeon (who had in fact examined Zagar at the request of his own solicitors); Dr Nicholas Ingram, Consultant Psychiatrist; and Professor Stephen Davis, Neurologist. Additional medical reports were also tendered.

4 I make the following findings of fact by way of background. Zagar was born on 27th September 1966 and is thus 38 years of age. He is a single man who lives with his parents on their small property. He lived independently and worked as a maintenance fitter prior to the accident. Shortly prior to the accident he had purchased a block at Dookie, near Shepparton, and was having a house built. He has not been in gainful employment since the accident and is now a disability pensioner. Whilst he had been involved in a previous motor vehicle accident, there is no relevant medical history.

5 The accident was a single vehicle accident, the vehicle in which he was travelling having struck a tree. In the accident Zagar suffered a multitude of injuries. He sustained a closed head injury with post traumatic amnesia; a fracture of the second cervical vertebra; facial fractures including a comminuted mandibular fracture and avulsed and fractured teeth; a fractured right ulna and radius; a fractured fibula; various fractured metatarsals; and facial scarring. Other impairments have since become manifest. The extent or existence of these is, in some instances, more contentious. They include a psychiatric or psychological injury; impairment of the digestive system; cognitive impairment; visual disturbance; and impairment of the trigeminal nerve.

6 In terms of progress following the accident, Zagar remained in hospital at Bendigo until 24th March 1997, when he was transferred to Bethesda, where he remained until 6th May 1997. He has had subsequent treatment for such matters as the removal of plates and screws. In July, 1997, at the Austin Medical Centre, he underwent the insertion of an odontoid screw. He had further admissions to the Austin Medical Centre in relation to management of his arm fractures and his jaw fracture. He has been examined by a large number of medical practitioners, and has been on a variety of medications. As stated, he is now in receipt of a disability pension.

7 Before turning to the various assessments of impairment which are to be made, I shall record my impressions and findings in relation to Zagar. I find him to be a witness of truth. He certainly gave the clear impression of having mental slowness, and it was equally clear to me that he was having some difficulty in presenting his evidence in a clear and orderly manner. This impression coincides with the views formed by some medical practitioners. I note that, for example, Dr Walton found that "Mr. Zagar did appear to be attempting to be co-operative but at times he was rather vague and perplexed. He did seem to have difficulty adequately expressing himself, of which he is aware". Dr Walton went on to report that Zagar struggled to maintain adequate concentration. Dr Ingram found Zagar to be preoccupied with the fact that he did not seem to be able to think clearly, and on several occasions there was repetition of the same phrases. Mr Jensen noted an appearance of frustration in Zagar's attempting to communicate his difficulties with concentration. Dr John King, Neurologist, whose report was tendered, stated that Zagar's mental state was quite abnormal. All of these views coincide with my impression of Zagar. I am of the opinion that he was honest, and was doing his best, but quite patently struggled with the process of giving evidence.

8 Against that background, I will now turn to the individual areas of impairment.

9 There is agreement in relation to three heads of impairment. The following Whole Person Impairments have been agreed:-

(a) Pursuant to Chapter 7 of the Guides, impairment of the jaw and chewing - 5 percent.

(b) Pursuant to Chapter 8 of the Guides, digestive problems - 5 percent.

(c) Pursuant to Chapter 7 of the Guides, facial disfigurement - 5 percent.

10 I will now turn to the heads of impairment concerning which there is a dispute.

11 (i) Impairment of the Cervical Spine Pursuant to Chapter 1 of the Guides

12 (a) Restriction of Movement

13 The somewhat unusual situation which prevailed in relation to this assessment is that Mr Carey, who examined Zagar on behalf of the TAC, ultimately arrived at a Whole Person Impairment Assessment of 13 percent, whereas Mr Brearley, who examined Zagar on behalf of his own solicitors, ultimately arrived at a figure of 10 percent. In cross-examination, Mr Brearley agreed that Zagar suffered from a significant injury to the cervical spine, and that variations in the range of movement, and the resulting assessment, could vary from day to day. That strikes me as a fair concession to make. Whilst both were impressive witnesses, given the severity of the injury suffered, the concessions made by Mr Brearley, and the impression made by each witness in the witness box, I prefer the assessment of Mr Carey, and accordingly find that the Whole Person Impairment of the Cervical Spine relating to restriction of movement is 13 percent.

15 There was considerable dispute as to whether any allowance should be made in relation to this injury. Mr Carey allowed 5 percent and Mr Jensen allowed either 3 or 5 percent, whilst stating that, technically, if one combined a complex dislocation with a fracture, impairment could be 8 percent. Mr Brearley expressed the view that the Guides allow no impairment for a fractured odontoid process.

16 The view of Mr Brearley was to some extent adopted by Messrs Carey and Jensen. Their opinion could perhaps be summarised as being that it would be an absurdity if a serious and quite dangerous injury of this kind was not covered within Chapter 1 of the Guides. In particular, reference was made to page 47. It is there stated that fractures of posterior elements are rated at 3 percent impairment, and a reduced dislocation or subluxation of one vertebra is rated at 5 percent impairment. Mr Jensen has provided a supplementary report dated 8th December 2004 in which he explains that the Guides do not consider this particular situation, and their interpretation can be made in any one of three ways. These produce impairment readings of 3 percent, 5 percent, or 8 percent. If one added the possibility that a fracture of the odontoid process is not included at all, that would be a fourth possible interpretation. Mr Moulds pointed out that, in the matter of Bayliss v Transport Accident Commission [2003] VCAT 710, Senior Members Megay and Steele, having considered various medical opinions, arrived at the conclusion that they were not satisfied that the fracture of the odontoid process could properly be characterised as "a posterior element fracture". However, the Senior Members also stated that it is not necessary that every known fracture of the spinal process should be itemised and particularised by the Guides in order for an impairment to follow.

17 Mr Jensen has expressed the view that Zagar has a fracture of the dens, and whether this is considered an anterior or posterior element is a matter of opinion and semantics. Ms Bourke, on behalf of Zagar, pointed out that it was stated by the Court of Appeal in Lake v Transport Accident Commission [1998] 1 VR 616 at page 625 as follows:-

"It is important, I think, not to become too legalistic about the guides themselves".

18 I note that, at page 626, Phillips JA continued as follows:-

"It must be remembered that the guides are only guides, though they are to be applied as required by the regulations. The task of assessment is far from being an exercise in an exact science and plainly it is to be assisted by medical opinion - in this instance from experts in neurology. Their efforts will not be helped if the guides become overlaid with a lawyer's precise interpretation, derived from one or two cases that are regarded by the lawyers as testing and which are probably governed, to a greater or lesser degree, by their own particular facts. In too short a time the guides would become a legal "minefield", and be of much less help to doctors and lawyers alike, although for different reasons ... each case will turn on its own facts."

19 This was also the type of approach adopted by the Senior Members in Bayliss and referred to above.

20 It is also interesting to note the observations of Dr Peter Lowthian, the Director of the Cabrini Clinical Education and Research Institute, the Deputy Convener of Medical Panels, and an expert in the use and application of the AMA Guides. In a paper entitled "Successfully Interpreting the AMA Impairment Guidelines (4th Edition)" - and there is absolutely nothing to suggest that Dr Lowthian's observations in relation to the 4th Edition are not equally applicable to the 2nd Edition, to which he also refers - Dr Lowthian made the following observations. I should add that this paper was delivered at a conference entitled "Personal Injury Victoria 2005" conducted in Melbourne by Lexis Nexis.

"The 4th Edition of the American Medical Association Guides to the Evaluation of Permanent Impairment is only that - Guides. It should be remembered that the Guides is a medical document and was not prepared as a legal document. It provides methods for the assessment of most medical impairing conditions, but it is not totally inclusive and there are a number of areas which are open to interpretation."

22 The wording and approach of that observation are reminiscent of the wording employed by Phillips JA in Lake.

23 Dr Lowthian made the following further observations which have some relevance to the present situation:-

"There are some conditions ... which are not specifically referred to in the Guides. It is reasonable in such cases after careful assessment to provide an impairment based on similar impairing conditions, which must of course be accompanied by a clearly expressed rationale.

For example, how would you assess a person who has sustained fractures of the back part of a number of ribs which have not healed and which cause pain and limitations with movement? There is no mention of fractured ribs in the Guides, but the impairment which results is very similar to that which would arise from a thoracic spine injury without nerve damage. Thus it would be reasonable, and defensible, to allocate an impairment (5 percent Whole Person) equivalent to a DRE II Thoracolumbar Impairment.

How would you assess a person with Post-Q Fever Fatigue? The condition is not mentioned in the Guides, but fatigue due to anaemia is described in Section 7.1 of Chapter 7 (The Haemopoietic System). It may provide a methodology for assessment."

24 I am in no way suggesting that the remarks of Dr Lowthian carry the same weight as the observations of the Court of Appeal. However, they are useful and reflect an approach adopted by a medical expert which is similar to that adopted by the Court of Appeal.

25 Applying the above to the present case, it seems to me that the approach adopted by both Mr Jensen and Mr Carey is a reasonable one. Both Mr Jensen and Mr Carey - and for that matter, Mr Brearley - regard the condition as a very serious one. Both Mr Jensen and Mr Carey regard it as a condition which should be assessed pursuant to the Guides. The view of Mr Carey is that a 5 percent Whole Person Impairment should be allowed. It is a view which he has expressed more than once in his reports, and which he maintained in the witness box. He has regarded the injury as serious, a view in which he is not alone. In addition to the other witnesses referred to above, I note that Professor Davis, who also examined on behalf of the TAC, described the injury as a "... most serious fracture". Mr Carey has maintained that 5 percent is the correct assessment, even though a fracture of the odontoid process is not specifically mentioned in the Guides, because of the seriousness of the injury, the non-union of the fracture, and the potential for dislocation or subluxation.

26 As stated, Mr Jensen has offered a variety of assessments because of the absence of any specific reference to the injury in question. Whilst he put the maximum assessment as being 8 percent, and originally had assessed impairment at 3 percent, he expressed the alternative view that a 5 percent assessment would be available.

27 Obviously, as stated in Lake, each case must be viewed on, and will turn on, its own facts.

28 Bearing in mind the approach to be adopted as set out above, and in the absence of a specific reference to this particular, and particularly serious, injury, on the facts of this case I accept the assessment made by Mr Carey. This coincides with the alternative assessment made by Mr Jensen. There is some accord between specialists examining on behalf of each party in this regard, and, in addition, it is a view which seems to me to make sense.

29 Accordingly, in relation to the fracture of the odontoid process, I assess Zagar's level of Whole Person Impairment at 5 percent. This is despite the fact that such fracture is not specifically referred to in the Guides.

30 The Guides require the use of the Combined Values Chart in relation to two or more conditions of the spinal region. The use of the Chart produces a Whole Person Impairment of Zagar's Cervical Spine of 17 percent.

31

(ii) Disturbance of Complex Integrated Cerebral Functions Pursuant to Chapter 2

32 Considerable argument was advanced concerning this assessment, which basically involves the Table attached to paragraph 3 on page 63 of the Guides. Professor Davis, on behalf of the TAC, ultimately assessed this impairment at a level of 10 percent. Mr Jensen assessed it at 20 percent. Thus Professor Davis' assessment placed Zagar in Category 1 of the Table which reads as follows:-

"There is a degree of impairment of complex integrated cerebral functions, but there is ability to carry out most activities of daily living as well as before onset."

33 The assessment of Mr Jensen places Zagar in Category 2. It reads:-

"There is a degree of impairment of complex integrated cerebral functions, such that daily activities need some supervision and/or direction."

34 15 percent is the maximum impairment assessment for Category 1. 20 percent is the minimum impairment assessment for Category 2.

35 Again, the decision in Lake received considerable attention.

36 Professor Davis has expressed the opinion that certainly, in his view, there is significant organic brain injury, including frontal lobe injuries. In his report of 8th November 2004, he also referred to a neuropsychological report from Ms Sue Sloan which indicated neuropsychological abnormalities consistent with a diagnosis of severe traumatic brain injury. Mr Jensen expressed the view that Zagar sustained a very severe concussive head injury and that the complaints which he makes concerning his impairment and functioning are entirely consistent with "... head injury, probably injury to the frontal lobes, but most likely as diffuse axonal injury affecting much of the brain". Mr Jensen regarded Zagar as unemployable and had grave reservations about his capacity to safely drive a motor vehicle. He expressed the view that Zagar's daily activities needed some supervision and direction and made the 20 percent impairment assessment to which I have referred. It is a view to which Mr Jensen adheres.

37 Thus, the key difference between the opinions of Professor Davis and Mr Jensen, as exhibited in their reports, in their evidence, and as illustrated by the cross-examination to which they were subject, is really whether Zagar's daily activities need some supervision and/or direction. If they do not, an assessment of his impairment cannot be made pursuant to paragraph 2 and the maximum impairment which he can achieve is 15 percent.

38 Considerable evidence was given by Zagar, by his brother, and by his sister. The picture which emerged is as follows. Zagar, who was previously independent and was constructing his own house, is now living with his parents. Basically all he does is eat, sleep and "hang around" his parents' house. He has difficulty with concentration and quickly forgets instructions. An attempt was made by his brother, Josef, to teach him how to drive a tractor and prune every second row of vines on the property managed by Josef. He had great difficulty in understanding the system, and continually had to be told where to drive. As stated by Josef Zagar in his statement which he adopted in evidence, "He does not appear to be with it. He is unable to do the smallest tasks when asked. He cannot retain instructions ..."

39 It would seem that also, and at times impulsively, he commences things which he cannot finish. He has attempted a welding course which he did not complete. He has attempted computer training, and could not finish the course. He purchased some photographic equipment which, in essence, he was unable to use effectively. He is not very coherent - something which I noticed when he was in the witness box. As his sister put it, "the penny doesn't drop".

40 However, whether or not he should be so doing, he does do some driving on his car. He can do some maintenance of the car. He has been out a little socially, while this does not seem to have been a success. He does do some of his own shopping, although this tires him. In this regard, when purchasing food and the like, he seems to buy the same items every time that he goes shopping. He does have his own spot in the larder, and keeps it stocked, although, as stated, he simply seems to buy the same basic items each time he goes shopping. He is reliant upon his elderly parents for such things as the payment of bills and the purchase of toiletries.

41 The meaning of "activities of daily living" as used both in the Table and in the Glossary contained in the Guides was considered at some length in Lake. As was said in Lake, each case must be determined on its own facts. As stated by Phillips JA at page 622, when considering the activities of daily living as set out in the Glossary, what is relevant to capability in respect of "activities of daily living" is the capacity to perform the task concerned and nothing more than that.

42 Whilst Zagar seems to me to have a degree of impairment of complex integrated cerebral functions of quite a substantial degree, the evidence does not seem to me to establish that he needs some supervision and/or direction in the carrying out of his daily activities. I have arrived at that conclusion whilst appreciating that the verb used in Category 2 is "need" and not, for example, "have". In arriving at that conclusion, I am also conscious of the definition, if it could be so described, of "activities of daily living" as set out in the Glossary. Having examined that list, I am unable to find, on the evidence that, in most instances, Zagar is in need of supervision and/or direction. He can take care of himself in relation to matters such as personal hygiene and eating. There is no evidence that he needs supervision and/or direction in relation to such things as normal living postures, ambulation, or non-specialised hand activities. He is able to drive, although certainly there are some reservations as to whether he should. Whilst at times he is not particularly coherent, it is another thing to say that he needs supervision and/or direction in relation to communication. In summary, on balance, and bearing in mind what was said in Lake - a case which, although not identical, has some marked similarities to the present case - I find that Zagar does not fall within Category 2 of the Table on page 63 of the Guides.

43 However, I am satisfied that his impairment should be assessed as being at the very top of Category 1. He seems to me to fall into what could be described as a grey area between Category 1 and Category 2. As stated, the impression given in the witness box is one of a person with quite marked cerebral impairment. I doubt if he can carry out most activities of daily living as well as he could before the accident, but that is not to say that he needs supervision and/or direction in relation to those activities. I accept the evidence given by his brother and sister. I accept, for example, the views of Mr Jensen that Zagar has significant abnormalities consistent with head injury which render him unemployable. In other words, this was a head injury with consequences of sufficient severity to terminate Zagar's working life. That is some indication of the degree of impairment of complex integrated cerebral functions. However, as also pointed out by Mr Jensen, Zagar is able to cope with everyday activities although, in Mr Jensen's opinion, he would not fare so well if he were not living at home. Mr Jensen, whilst giving an impairment assessment of 20 percent, also seems to be placing Zagar in what I have described as the "grey area".

44 In my view, Zagar's impairment should be assessed as being the maximum permissible pursuant to Category 1. That is 15 percent. I might add that, whilst doubtless there are reasons for it, it is a mystery to me as to why Category 1 should not go up to 19 percent if Category 2 starts at 20 percent. However, be that as it may, it would seem that, pursuant to the Guides, the most that can be given for Category 1 is 15 percent and that is the impairment assessment which I make.

45 A further assessment to be made pursuant to Chapter 2 of the Guides is that relating to sensory loss involving the right median nerve. In this regard, Professor Davis, who examined Zagar on behalf of the TAC, assessed the level of impairment at 5 percent. Whilst Mr Carey placed the Whole Person Impairment assessment at 2 percent, he also stated that he could not disagree with Professor Davis' assessment at 5 percent given the clinical findings of Professor Davis. Professor Davis carried out a careful examination of Zagar. He then took the appropriate steps in relation to the use of the Guides in arriving at a Whole Person Impairment. I accept his assessment, and accordingly allow 5 percent in relation to the neurological impairment of Zagar's right arm.

46 If this is then combined with the 15 percent in respect of cognitive impairment, the total Whole Person Impairment in this regard is 19 percent.

47 (iii) Mental and Behavioural Disorder Pursuant to Chapter 12

48 In relation to this area of impairment, there are clashing opinions offered by Dr Walton, who assessed overall impairment at 18 percent of which 8 percent is non-secondary, and Dr Ingram, who made an overall assessment of 10 percent with no non-secondary component.

49 Of these two assessments, I prefer that of Dr Walton. He has clearly eliminated from his considerations any organically-based neuropsychiatric impairment, so that any overlap with a Chapter 2 assessment of neurological impairment has been avoided. I note that, at page 61 of the Guides, the use of Chapter 12 in conjunction with Chapter 2 is envisaged. He has also excluded from his considerations secondary impairment for the purposes of s.46B(1) of the Act.

50 These matters are notoriously difficult to assess, but I was impressed with Dr Walton's evidence and the manner in which it was given, and it seems to me that he has excluded from consideration those matters which should be so excluded and has arrived at the correct conclusion. I note that, whilst Professor Davis is not trained in psychiatry, he expressed the view that Zagar had significant psychiatric problems which he thought were likely to be covered by a primary psychiatric impairment. Whilst I found his oral evidence a little difficult to follow, it seemed to me that Dr Ingram also made some concession concerning the existence of an allowance of some 5 percent for a non-secondary psychiatric injury.

51 In summary, Dr Walton's evidence was the more impressive and seems to me to be more accurate. I prefer it, and thus Zagar's Whole Person Impairment pursuant to Chapter 12 is assessed at 8 percent.

52 (iv) Impairment of the Visual System Pursuant to Chapter 6

53 The only evidence given in this regard by any specialist was that of Dr Galbraith. Whilst Mr Moulds made some attack upon this assessment on the basis of inconsistency between Zagar's history of events and symptoms and the findings of Dr Galbraith on clinical assessment, his opinion is one which I am prepared to accept. As was pointed out by Ms Bourke, it is apparent that Zagar, whilst an inpatient, was reviewed by Dr Hudson, an Ophthalmologist, because of difficulty focussing and this was felt to be related to his head injury.

54 As stated, I accept that Zagar has difficulties with concentration and is not particularly coherent. His performance as an historian has its shortcomings. However, Dr Galbraith carried out an objective test of Zagar's vision, found an impairment, and assessed this as a Whole Person Impairment of 5 percent. Dr Galbraith, an expert in the field, expressed the view that this assessment of the impairment was open to him pursuant to the Guides and referred specifically to page 141. I accept his opinion in all regards.

55 In summary, Zagar's Whole Person Impairment in relation to his vision is assessed at 5 percent.

56 (v) The Trigeminal Nerve - Assessment Pursuant to Chapter 7

57 The principal assessment given in this regard was that of Mr Hugh Millar, a most impressively qualified Otolaryngologist. Apart from his medical qualifications, he is a lecturer in AMA Guides Impairment Assessment Courses.

58 The argument advanced by Mr Moulds on behalf of the TAC is that the impairment which Zagar has is a numbness in part of the nerve. Mr Millar described this part of the nerve as a branch of a branch of a branch. The argument of Mr Moulds was that, for Zagar to be entitled to an assessment for the trigeminal nerve, the whole nerve must be affected by sensory loss, and Mr Moulds pointed to the words "complete unilateral sensory loss" in Table 2 on page 68 of the Guides. These words appear under the heading "Trigeminal" and carry with them a 3 percent to 10 percent impairment. Mr Moulds also referred to various decisions of this Tribunal, including that of Deputy President Galvin in Fitton v Transport Accident Commission (delivered 23rd September 1999). In that case, Deputy President Galvin stated that, if not all of the nerve is affected, no impairment assessment was appropriate.

59 Mr Millar was having none of this. Relying upon his vast experience and the fact that he does lecture in relation to these assessments, Mr Millar, almost tersely, stated that the type of assessment which he had made was indeed available. He stated that it was a question of judgment as to how to allocate the impairment assessment. In the present case it was only part of the mental nerve that was affected, and he had allocated 1 percent accordingly. I note that Professor Jack Gerschman, a witness expert in the area of oro-facial pain, has also arrived at an assessment of 1 percent.

60 I have already expressed my views, relying on statements made in Lake and, for example, the views of Dr Lowthian, regarding the approach to be taken in relation to the use of the Guides. In my opinion the approach adopted by someone so eminently qualified as Mr Millar makes perfect sense and I adopt it. There is no argument but that Zagar has some impairment of a cranial nerve, namely the trigeminal nerve. The minimum amount available pursuant to Table 2 on page 68 of the Guides in respect of Complete Unilateral Sensory Loss is 3 percent. As it is a partial loss, Mr Millar has allowed 1 percent. Indeed, one might wonder why there is a range for a complete sensory loss. It could be argued that, if there is a complete loss, there should only be one figure and the existence of a range militates against the argument that the situation is, in essence, "all or nothing". In any event, as stated, the Guides are just that and the clearly stated view of Mr Millar as to how they should operate in a situation such as this is one which I accept.

61 Accordingly, I assess Zagar's Whole Person Impairment in relation to the trigeminal nerve as being 1 percent.

62

Thus, the following impairment values have been obtained:-

Cognitive and right median nerve impairment - 19 percent

Trigeminal nerve (whether assessed pursuant to Chapter 2 or Chapter 7) - 1 percent

63 Applying the Combined Values Chart in order of decreasing magnitude of impairment values, the end result is a Whole Person Impairment of 51 percent.

64 Zagar succeeds in this application. The decision of the TAC of 23 January 2003 that Zagar has a Whole Person Impairment of 32 percent is set aside, and in lieu thereof it is determined that he has a Whole Person Impairment of 51 percent.

65 I shall now hear any argument as to costs.