ALLAN LEIGH and MILITARY REHABILITATION AND COMPENSATION COMMISSION

[2009] AATA 453

Administrative Appeals Tribunal

DECISION AND REASONS FOR DECISION [2009] AATA 453

ADMINISTRATIVE APPEALS TRIBUNAL      )

)          No 2007/5390

VETERANS'       APPEALS      DIVISION		)
Re		ALLAN LEIGH

Applicant

And MILITARY REHABILITATION AND COMPENSATION COMMISSION  

Respondent

DECISION

Tribunal Mr Egon Fice, Member

Date23 June 2009

PlaceMelbourne

Decision The Tribunal affirms the decision under review.  

[sgd] Egon Fice

Member

Compensation – fractured skull – brain injury – neurological deficits – injury suffered in 1983 – application of 1971 Act – transitional provisions of 1988 Act – compensation not available under 1971 Act – neuropsychological assessment – establishment of pre-morbid mental functioning – new or further impairment – effect of stress and anxiety on cognitive functioning.

Compensation (Commonwealth Government Employees) Act 1971 ss 39, 39(4)

Safety, Rehabilitation and Compensation Act 1988 ss 4(1), 24, 25, 25(4) Part X, 124, 124(3)

Department of Defence v West (1988) 85 FCR 491

REASONS FOR DECISION

23 June 2009 Mr Egon Fice, Member      

1.      On 17 May 2005 Mr A Leigh lodged a compensation claim with the Military Compensation and Rehabilitation Service (MCRS) for permanent impairment in respect of a condition for which the Department of Veterans’ Affairs (DVA) had already accepted liability.  The condition was referred to as fractured skull with intracranial bleeding; bilateral frontal encephalomalacia.  Mr Leigh subsequently wrote to DVA indicating that his claim was in fact for neurological impairment.  Mr Leigh claimed that out of five neuropsychological tests recently conducted upon him, his performance on two of those tests was significantly reduced.  According to Mr Leigh, that resulted in a 40 per cent reduction in his mental capacity. 

2.      DVA treated Mr Leigh’s claim for permanent impairment as a claim for neurological impairment.  On 2 October 2007 it notified Mr Leigh that his claim had been disallowed because the permanency of his mental condition occurred during the currency of the Compensation (Commonwealth Government Employees) Act 1971 (1971 Act), which did not provide for a lump sum payment for neurological conditions. 

3.The issues before me in this matter are:

(a)whether Mr Leigh suffered an injury which resulted in permanent impairment, and if so, the degree of permanent impairment;

(b)if Mr Leigh suffered an injury that resulted in permanent impairment, when that impairment became permanent; and

(c)if Mr Leigh’s impairment was permanent as at 1 December 1988, whether there was a deterioration in his impairment which can be characterised as a further or new impairment after that date.

EVENTS PRECEDING the current CLAIM

4. This matter has an extensive history which needs to be recited in order to understand the claim before me on review. It is largely uncontroversial and has been obtained from the documents lodged by the respondent pursuant to s 37 of the Administrative Appeals Tribunal Act 1975.

5.      Mr Leigh, who was born on 25 January 1958, enlisted in the Australian Regular Army (the Army) on 4 March 1976.  He was a physical training (PT) instructor who actively participated in the sport of karate. 

6.      Mr Leigh sought and was granted approval to participate in karate activities outside ordinary working hours.  This was despite the fact that karate was precluded as an accredited sport.  However, the error was not Mr Leigh’s.  While involved in a free sparring exercise on 6 August 1983, Mr Leigh slipped and fell striking the back of his head on a concrete floor.  He fractured his skull and was rendered unconscious for three days.  CT scans showed an intracerebral haemorrhage involving the right frontal lobe and right parietal lobe (that is bleeding within the main portion of the brain) and an extradural haematoma at the vertex (on the outer side of the membrane covering the brain).  Mr Leigh was hospitalised for about four weeks.  While in hospital, he became agitated, showing signs of slight aggression and lack of insight into his condition.  Dr J Wingfield, a neurosurgeon, explained to Mr Leigh the severity of brain injury and emphasised that he should not partake of any physical activity for three to four months. 

7.      Mr Leigh was discharged from hospital on 29 August 1983 and he lodged his first claim for compensation on 31 August 1983 for fractured skull and bleeding in the brain.

8.      In his August 1984 PR 66 annual work appraisal report his appraiser noted that Mr Leigh tends to be slightly forgetful since injury.  In a medical report dated 3 November 1983, Major M Shields reported that Mr Leigh was having problems with his short‑term memory and that he had lost his sense of smell and some of his sense of taste.  This was confirmed by a medical board examination on 17 February 1984.  Mr Leigh then lodged his second claim for compensation on 15 March 1984 claiming, in addition to his first claim, partial loss of taste, personality changes, short‑term memory impairment and total loss of smell.

9.      On 7 August 1984 a delegate of the Commissioner for Employees’ Compensation (the Commissioner) determined that the Commonwealth accepted liability to pay Mr Leigh compensation under the 1971 Act for fractured skull with intracranial bleeding.  The delegate made no decision regarding Mr Leigh’s claimed loss of sense of taste and smell.  On 28 November 1985 Mr Leigh was issued with a certificate under s 42 of the 1971 Act stating that he was suffering from partial loss of sense of smell and taste.  On 12 February 1986 a delegate of the Commissioner determined that Mr Leigh’s claim for loss of sense of taste and smell should be disallowed as those conditions were not total and permanent.  That decision was revoked on 3 September 1986 and instead the delegate of the Commissioner determined that Mr Leigh had suffered a partial loss of the sense of taste and a total and permanent loss of the sense of smell.  Mr Leigh was paid a lump sum for the permanent loss of smell.

10.     It appears that Mr Leigh suffered substantial stress in mid-1987 and he expressed concern about his ability to control his aggression since his accident.  He applied for a discharge from the Army.  He was having substantial problems sleeping and felt run down and exhausted.  Mr Leigh was discharged from the Army on 29 April 1988 on his request.  After his discharge, he opened a fitness centre which he operated between 1988 and 1991 at Campbelltown in Sydney.

11.     In 1991 Mr Leigh was convicted of placing a prohibited weapon, said to be a petrol bomb, in his daughter’s bag following an access visit.  It appears that at this time his marriage had broken down and his relationship with his wife was extremely poor.  He was incarcerated at Parramatta Gaol and while there, in 1991, he sustained a further head injury as a result of an assault by another prisoner.  According to a medical report by Dr T Clark, a consultant forensic psychiatrist, Mr Leigh was admitted to hospital in what appeared to be a confused, almost psychotic state.  In a report dated 11 November 1991, Dr Clark expressed the opinion that Mr Leigh showed no present signs of any severe cognitive deficit nor was he delusional.  He said that Mr Leigh had certain characteristics of an obsessive compulsive disorder.  He also said that Mr Leigh was preoccupied with the details of his criminal case to the extent that he had made copious notes.

12.     Mr Leigh claimed that he ran his own appeal against his criminal conviction and that he was successful.  Other than Mr Leigh’s statement about this, there is no other evidence before me regarding the appeal.  I accept what he said about the appeal.

13.     Following the assault in prison, Mr Leigh had a CT scan of the brain at Prince Henry Hospital on 28 November 1991.  This was reported as revealing porencephaly involving the left frontal lobe with associated dilatation of the anterior horn or the lateral ventricle.  Apparently, those changes to Mr Leigh’s brain had not been previously noted. 

14.     After release from gaol Mr Leigh became involved in ongoing custody disputes with his former wife who had moved to the USA with the children.  He was later charged for being in possession of a pepper spray (an illegal weapon), which he said he obtained in the USA when visiting a fellow karate practitioner.  He attempted to take the pepper spray into court but was stopped by security guards at the entrance.  He was also charged for placing a listening device in his in-laws’ house.  He received a twelve month good behaviour bond for that offence. 

15.     In 1999 Mr Leigh decided to re-enlist in the Army.  He lodged an application for entry on 28 September 1999.  On that application form, he did not indicate, as he was required to do, any criminal, civil and traffic offences.  However, when completing a Consent to Obtain Personal Information form, Mr Leigh said that he had been convicted of providing false testimony to the Family Court, for which he received a one year bond; and that he had two New South Wales (NSW) convictions which were quashed on appeal in 1993. 

16.     In his enlistment medical examination Mr Leigh said that he had never had, nor was he at that time suffering from depression, anxiety, or any suspected or diagnosed psychological or psychiatric illnesses.  He also said that he had never suffered concussion, a head injury, loss of consciousness or loss of memory.  The examining medical officer, Dr I Rossiter, referred Mr Leigh to a neurologist for assessment regarding his fitness to re-enlist in the Army.  Dr P Bladin, a consultant neurologist, examined Mr Leigh and provided a report dated 2 December 1999.  Dr Bladin’s opinion was that Mr Leigh was fit to re-enlist but that he should be the subject of considerable surveillance regarding his behaviour.  He said that he was unaware of the results of any tests done after Mr Leigh’s head injury while he was in hospital in Liverpool in NSW.  He said that final enlistment approval should not be given until those reports had been made available for study. 

17.     In a letter dated 30 December 1999 Dr Bladin, after inspecting Mr Leigh’s MRI film, reported that he had very extensive bifrontal brain damage and that there were some patches of brain damage further back in each hemisphere.  He recommended that Dr M O’Shea, a neuropsychologist, conduct testing of Mr Leigh.

18.     Dr O’Shea completed her assessment and provided a report on 16 February 2000.  She formed the impression that, despite the apparent severity of Mr Leigh’s head injury, there was little evidence either clinically or on formal examination to suggest the presence of persistent neuropsychological disturbance.  She was of the view that any significant cognitive and/or behavioural disturbance would have arisen from his head injury in the early period following his injury.  She accepted Mr Leigh’s statement that he left the Army of his own accord in 1988 and no problems of a neuropsychological nature had been drawn to his attention.  This is despite the fact that some of his reports indicated memory problems.  Following Dr O’Shea’s report, Dr Bladin remained concerned and reported that Mr Leigh’s behaviour should be monitored very carefully and if there was any trouble, a re-appraisal of his fitness should be undertaken.  Mr Leigh’s re-enlistment finally took place on 14 November 2000.

19.     Almost immediately after re-enlistment, Mr Leigh ran into considerable difficulties regarding his process of enlistment.  Although he had completed his recruit training course, he was informed that an investigation was taking place regarding disclosure of his prior convictions and the possibility of being prosecuted for failure to disclose information upon enlistment.  He feared that his discharge was imminent.  In fact, it appears that there was some concern about Mr Leigh’s security clearance, due to his criminal record, because he had applied to re-allocate to RASigs (Royal Australian Corps of Signals). 

20.     Mr Leigh finally commenced the combat signaller course on 28 May 2001.  There were delays in him completing that course and he pursued a redress of grievance procedure.  He sought financial compensation for the fact that there was a delay in him receiving his trade pay.  His complaint was essentially about the fact that criminal convictions were taken into account when they should not have been because the convictions were quashed on appeal.  As a result, although Mr Leigh was allowed to complete the first module of the combat signaller course, he was withdrawn from the course after four weeks.  Mr Leigh subsequently made a number of other applications for transfer to different corps, with some success; although on 10 March 2003 he was advised by the delegate of the Chief of Army that his redress of grievance had not been upheld. 

21.     In the course of prosecuting his redress of grievance, Mr Leigh began to have problems coping with the stress.  In September 2002 he reported to Dr N McLaren, a consultant psychiatrist, that he was feeling very anxious and agitated.  On 22 April 2003 he was admitted to Robinson Barracks Medical Centre in a distressed state.  On 16 May 2003 Dr McLaren recorded that Mr Leigh was showing signs of significant mental disorder, namely an adjustment disorder with depression and paranoid ideas.  Dr McLaren also said that because of Mr Leigh’s pervasive mistrust and hostility toward the command structure, he could not be seen as fit for military service and that an early discharge was in his interest.  On 8 July 2003 Mr Leigh lodged a claim for compensation for post traumatic stress disorder/frontal lobe syndrome.

22.     Following numerous medical examinations, Mr Leigh was finally discharged from the Army on 15 September 2003.

23.     On 30 September 2003 the MCRS accepted liability for major depressive episode.  Mr Leigh lodged a permanent impairment claim for adjustment disorder with depression and paranoid ideas on 18 May 2004.  His claim was accepted on 27 July 2004 and he was compensated at the rate of 25 per cent of the whole person permanent impairment due to his psychiatric condition.

24.     On 16 October 2003 a delegate of the MCRS made a determination to extend liability for Mr Leigh’s 1983 injury to bilateral frontal encephalomalacia. 

25.     On 17 October 2003 Mr Leigh lodged a permanent impairment claim for diffused brain damage affecting memory, judgement and affective control.

26.     On 1 April 2004 a delegate of the MCRS determined that the Commonwealth was not liable for Mr Leigh’s claimed bilateral front encephalomalacia condition.  This was because that condition came about as a result of his 1983 injury and the 1971 Act did not provide for compensation for that condition.

27.     On 17 May 2005 Mr Leigh made another claim to the MCRS for permanent impairment for fractured skull with intracranial bleeding; bilateral frontal encephalomalacia; personality disorder; anxiety and depression.  On 6 January 2006 a delegate of the MCRS determined that Mr Leigh had already been compensated at the rate of 25 per cent whole person impairment for major depressive episode on 27 July 2004.  The delegate noted that all psychological conditions are assessed under Table 5.1 of the Guide to the Assessment of the Degree of Permanent Impairment (the Guide) as a whole.  Therefore, for further payment, there needed to be a minimum increase of 10 per cent of whole person impairment.  Upon review of that decision, the Military Rehabilitation and Compensation Commission (MRCC) determined that there was no evidence of an increase of 10 per cent or more in Mr Leigh’s psychiatric impairment under Table 5.1 of the Guide.  Mr Leigh then lodged an application for review with the Tribunal on 22 March 2006.  He withdrew that application on 31 October 2006.

28.     On 10 January 2006 the delegate of the MCRS determined that the decision on Mr Leigh’s permanent impairment claim for fractured skull with intracranial bleeding and bilateral frontal encephalomalacia should be deferred until 10 July 2006 because the impairment had not yet stabilised.

29.     Mr Leigh lodged his current application with the MCRS on 9 January 2007 claiming permanent impairment for neurological impairment.  He claimed he was entitled to a 40 per cent impairment because two out of five of the areas tested for IQ had reduced significantly.  On 1 June 2007 the MCRS determined that Mr Leigh’s claimed condition of neurological impairment arose in 1983 and therefore it was not covered under the 1971 Act.  His claim was therefore disallowed.  Following a review of that decision, the MRCC decided on 2 October 2007 that Mr Leigh’s claim for neurological impairment must be disallowed because the condition became permanent while the 1971 Act was in force.

INJURIES SUFFERED IN 1983

30.     After his accident during the sparring exercise, CT scans revealed that Mr Leigh had suffered an intracerebral haemorrhage involving the right frontal lobe and the right parietal lobe, which is situated immediately behind the frontal lobe.  There was also an extradural haematoma at the vertex.  On 16 August 1983 Dr A Gale reported that there had been a total resolution of the haematoma in the right frontal lobe with only an irregular area of oedema and a little scaring remaining.  There had also been a complete resolution of the right parietal haematoma towards the vertex and there was no evidence of extradural collection. 

31.     While the physical changes were able to be observed, the psychological consequences of the damage to Mr Leigh’s brain only became apparent after the passage of time.  A report by the resident medical officer at the Liverpool Hospital dated 12 August 1983 records that Mr Leigh had suffered personality changes but that he remained rational.  The resident medical officer also noted that Mr Leigh was not aware of his personality changes and thought that it was his wife who had changed.  On 3 November 1983 Major Shields recorded that Mr Leigh had lost his sense of smell and some of his sense of taste, and that he was having some short-term memory problems.  He also noted that Mr Leigh had become very aggressive.  In fact, in a report made in August 1983, Major Shields recorded that Mr Leigh had marked personality changes and that his wife felt he was more aggressive.  When she explained this to him he became angry and physically violent.

32.     In a letter dated 8 June 1984 following his claim for compensation, Mr Leigh wrote that he suffered from the following symptoms:

a.    Short term memory not as good as it was;

b.    Taste somewhat weaker than it was;

c.     Smell not working at all, and

d.    Some personality changes.

33.     On 7 May 1984 Lieutenant Colonel AP Luscombe reported that Mr Leigh had suffered some loss of short-term memory, some minor personality changes, as well as partial loss of the sense of taste and almost complete loss of the sense of smell. 

34.     In a case summary prepared for the issue of a certificate under s 42 of the 1971 Act, it was noted that his sense of taste was unusually impaired, his sense of smell had not returned, and his memory may have improved but that may have been due to the increased use of lists and notes etc.  By 1986 Mr Leigh considered that although his short-term memory had been poor, it was improving.

35.     In his PR 66 Annual Report Number 318843 the appraiser recorded that Mr Leigh tended to be slightly forgetful since his injury.  Being dissatisfied with that report, Mr Leigh made submissions regarding his assessment and regarding his reliability.  He wrote the following:

…

Here the mark is in the middle section to a marked degree with the comment I tend to be forgetfull [sic].  I challenge this on the grounds I am always early, write down all things I have to do so I don’t forget and have never been a disciplinary problem or admin problem. 

In his examination-in-chief at the hearing of this matter, Mr Leigh agreed that he continued to suffer from short-term memory problems and that he kept a diary.  In an interview conducted by Mr J Drury, a clinical neuropsychologist, in September 2003, Mr Leigh was asked about his memory.  Mr Drury recorded in his report that Mr Leigh told him that since the 1983 accident his memory had been cactus.  Apparently, he told Mr Drury that after about two years he began taking regular notes and keeping a diary as he found that this was sufficient to support his memory.  Mr Leigh said that he felt that his underlying memory remained limited and he noticed word-finding difficulties.  He said he could concentrate adequately most of the time but that fatigue limited his capacity. 

36.     In addition to the above, Mr Leigh’s medical reports since 1983 record poor judgement, impulsiveness, loss of motivation and lack of insight, socially inappropriate behaviour, difficulty with complex new learning, a slowing of psychomotor skills, tremor of arms and head and mood changes.

IMPAIRMENT RESULTING FROM 1983 INJURY

37.     Mr Leigh’s claim in this application is for compensation in respect of a permanent neurological impairment.  His claim is brought under the successor to the 1971 Act, the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act).

38.     The term impairment is defined in s 4(1) of the SRC Act as:

the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.

39. Section 24 of the SRC Act provides that where an injury to an employee results in a permanent impairment, Comcare (in this case MRCC) is liable to pay compensation to the employee in respect of the injury. However, the problem in this case is that Mr Leigh’s injury occurred in 1983, prior to the commencement of the SRC Act on 1 December 1988. On that date the 1971 Act was repealed.

40. The transitional provisions contained in Part X of the SRC Act explain how injuries suffered before the commencing day are to be treated. In particular, s 124 of the SRC Act provides:

(1)Subject to this Part, this Act applies in relation to an injury, loss or damage suffered by an employee, whether before or after the commencing day.

(1A)Subject to this Part, a person is entitled to compensation under this Act in respect of an injury, loss or damage suffered before the commencing day if compensation was, or would have been, payable to the person in respect of that injury, loss or damage under the 1912 Act, the 1930 Act or the 1971 Act.

41. The problem for Mr Leigh is that he would only be entitled to compensation under the SRC Act where that entitlement also existed under the 1971 Act. In fact, s 124(3) makes it clear that a person is not entitled to compensation under ss 24 or 25 of the SRC Act in respect of a permanent impairment if the person was not entitled to receive compensation of a lump sum in respect of that impairment under the 1971 Act, which was in force when the impairment occurred.

42.     There did not appear to be any significant dispute about the fact that Mr Leigh had suffered significant impairments as a result of the brain injury he sustained in 1983.  There is ample evidence in the reports prepared by various medical practitioners and psychologists recording those impairments.  Some of the impairments have been regarded as temporary and others as permanent.  The most significant of these reports was prepared by Mr Drury on 12 September 2003.  Mr Drury conducted extensive neurological testing, including tests to establish Mr Leigh’s premorbid abilities.  On the tests conducted by Mr Drury, Mr Leigh produced a verbal IQ of 121, which placed him in the superior range of the population.  His performance IQ was in the average range and his full scale IQ in the high average range.  Mr Drury therefore estimated Mr Leigh’s pre-injury level of intellectual functioning to be of superior optimum ability.  Despite that, Mr Drury found that a number of aspects of his mental functioning were lower than expected.  These included:

ØFluctuating attention and concentration, affecting measures involving verbal fluency capacity, auditory immediate recall and working memory.

ØLow average attention to visual detail.

ØAverage spatial reasoning ability.

ØLow average psychomotor processing speed.

ØLow average visuo-spatial recent-memory.

ØLow average spatial new learning ability.

ØInefficient self-monitoring skills and mild impulsivity.

43.     Mr Leigh was examined by Professor B Chambers, consultant neurologist, on 13 April 2007.  In his report dated 20 April 2007, Professor Chambers said:

He clearly had significant memory problems and, on two or three occasions during the consultation, he pulled out his PDA [personal digital assistant] to check details.  He was quite adept at doing this.

Professor Chambers was of the opinion that Mr Leigh’s memory loss was permanent.

44.     Upon applying for re-enlistment in 1999, Mr Leigh was examined by Dr Bladin, consultant neurologist, who suggested that Dr O’Shea, a clinical neuropsychologist, assess him.  Dr O’Shea examined Mr Leigh on 14 February 2000 and conducted a number of tests.  Dr O’Shea found:

(a)the immediate memory (as measured by a digit repetition task) was intact;

(b)working memory capacity was mildly reduced relative to his immediate memory performance, although it remained in the normal range;

(c)his ability to accurately perform both simple and complex mental computations fell in the “above average” range;

(d)his adaptive problem solving ability was sound;

(e)mental flexibility and agility were satisfactory;

(f)word retrieval skills were commensurate with premorbid expectations;

(g)recent memory function was intact;

(h)complex new learning fell within the average range although his performance in this area was somewhat effortful; and

(i)his speed of psychomotor function, as measured on sensitive tasks, was diminished on expectation.

45.     Dr O’Shea’s overall impression was that there was little evidence to suggest the presence of significant persistent neuropsychological disturbance.  The only findings of note to emerge were some diminution in complex verbal learning together with a moderate degree of psychomotor slowing.

46.     Mr EP Milliken, a psychologist, conducted a neuropsychological assessment of Mr Leigh over some six days in June 2003.  In his report dated 15 July 2003, Mr Milliken reported that the tests indicated:

(a)temporal lobe test performances (memory and learning) were patchy;

(b)for uncomplicated, immediate short-term memory tasks his capacity was well above the community average;

(c)for short-term (30 minutes to 1 hour) non-verbal material his memory was above the community average;

(d)for short-term verbal material the indications were that he suffered mild to moderate impairment;

(e)for non-verbal learning not involving problem-solving he was shown to suffer mild to moderate impairment;

(f)frontal lobe test performance indicated impairment by way of slowing of processes in respect of verbal reasoning and comprehension

(g)general thought processes and reasoning were significantly slowed; and

(h)his perceptual control and speed was somewhat but not seriously below that of the community average.

Mr Milliken concluded that the test results indicated Mr Leigh’s reasoning capacity had been preserved, although his judgement, consideration of others, his thinking speed and his memory in important aspects all disclosed significant impairment.  He also noted that the greatest deficit was that until June 2003, Mr Leigh had no awareness of his deficits or of their behavioural sequelae.

47. On the basis of the neuropsychological testing to which I have referred above, I find that Mr Leigh does suffer from neurological deficit impairment and that his condition is permanent. That, however, does not mean that Mr Leigh has established an entitlement to compensation under s 24 of the SRC Act. Because of the provisions set out in s 124(3) of the SRC Act, if Mr Leigh’s permanent impairment occurred in 1983, or, prior to the SRC Act coming into effect on 1 December 1988, he would only be entitled to receive compensation if he was entitled to receive that compensation under the 1971 Act.

48. The problem for Mr Leigh is that s 39 of the 1971 Act sets out the compensation payable in respect of certain losses. For the purposes of s 39 of the 1971 Act, loss is taken to mean a permanent loss. The losses set out in the table under s 39(4) of the 1971 Act make no reference at all to losses of neurological function. In fact, they only refer to physical impairments and not psychological impairments. For that reason, it is clear that Mr Leigh cannot take advantage of s 24 of the SRC Act and receive compensation for the neurological deficit he suffered as a consequence of the head injury he sustained in 1983 if that deficit became permanent before the commencement of the SRC Act. The only way that Mr Leigh can be compensated under s 24 of the SRC Act is if the neurological impairment which he suffers became permanent after the commencement of the SRC Act in December 1988.

WHEN DID THE IMPAIRMENT BECOME PERMANENT?

49.     The evidence does not disclose any neuropsychological testing conducted on Mr Leigh in the period shortly after recovery from his head injury.  As Dr O’Shea said in her report of 16 February 2000, if any significant cognitive and/or behavioural disturbance had arisen from his head injury it should have been evident in the early period following his injury.

50.     Mr Drury, in his report of 12 September 2003, said that it was well recognised that frontal lobe pathology had the potential to limit cognitive and behavioural functioning.  He was of the view that Mr Leigh’s deficits were predominately the result of his 1983 injury but he did not discount the possibility of a mild exacerbation resulting from his 1991 injury, sustained while he was in prison.  It was only after this incident that left frontal lobe pathology was identified.  Mr Drury’s opinion was that the word-finding difficulty reported by Mr Leigh was consistent with left frontal lobe pathology.

51.     In his oral evidence Mr Drury said that it was possible to expect to see an improvement in neurological function for up to about two years after an injury.  After that period of time, according to Mr Drury, neurological functioning should remain stable.  He said:

… - once the couple of years is up, the condition won’t really improve and won’t get any worse.

In his written report, Mr Drury said that following his head injury in 1983, Mr Leigh was left with permanent brain damage, particularly relating to frontal lobe functioning.  He said that within two years of that injury his organic condition would have stabilised and the condition would have recovered as much as it was going to.  No further organic recovery would have been anticipated.  Therefore, any residual organic damage, revealed on subsequent radiological findings, would remain with him with no prospect of recovery. 

52.     Professor Chambers was of the view that the head injury Mr Leigh sustained in 1991 probably did not contribute significantly to the effects of his original head injury.  Professor Chambers also said that although there did not appear to be any significant sequelae from the head injury, with the benefit of hindsight, it seemed that Mr Leigh did experience problems consistent with frontal lobe injury.  He referred to Mr Leigh’s short-term memory impairment, loss of sense of smell, reduced sense of taste and a tremor when he was tired or under stress.  He was of the opinion that Mr Leigh sustained significant neuropsychological sequelae as a consequence of his brain injury but that these escaped recognition at that time. 

53.     In his report dated 15 July 2003, Mr Milliken said that Mr Leigh’s brain damage was not reparable.  He needed to acquire skills and to adopt behavioural devices to compensate for deficits in thought waves and in behaviour. 

54.     The evidence before me all sits on one side of the scale.  There can be no doubt at all that the head injury sustained by Mr Leigh in 1983 resulted in permanent brain damage which has given rise to Mr Leigh’s cognitive impairment as well as his behavioural problems.  Mr Leigh’s evidence and the reports prepared by various assessors during his first term of army service make it clear that he was relying on notes and a diary to support a short-term memory deficit.  The evidence also strongly indicates that as the injury was permanent, so too were the deficits which flow from that injury.  Although Mr Leigh submitted that there were no case studies in evidence to support the evidence given by the various medical practitioners regarding any possible recovery of neurological functioning after the two year period following injury, given the expertise of those practioners and the confidence with which they claimed that no further recovery would take place after two years, I am satisfied that their evidence should be accepted.  In fact, Mr Leigh’s evidence itself confirms that the neurological problems continue to this day in much the same form as shortly after his accident.  Accordingly, I find that Mr Leigh’s claimed neurological deficits and hence his impairment became permanent by no later than August 1985.

FURTHER OR NEW IMPAIRMENT IN 2003

55.     As I understood Mr Leigh’s submissions, he claimed that the stressful events which occurred between 2000 and 2003 following his re-enlistment in the Army caused his neurological deficit.  This can be described in two ways:

(a)      that Mr Leigh suffered an additional impairment following the events immediately prior to 2003; or

(b)      that the events leading up to his departure from the Army in 2003 resulted in an increase in his level of impairment in excess of 10 per cent.

56.     The Full Court of the Federal Court (O’Connor and Merkel JJ, Heerey J dissenting) in Department of Defence v West (1988) 85 FCR 491 was required to deal with a similar situation. In that case, Mr West suffered a serious back injury in 1968 while working for the Department of Defence. Although his condition appeared to resolve, by 1988 there was a significant deterioration in his back condition with increased pain and lost movement. As of that date, the parties agreed that the applicant suffered a 10 per cent permanent impairment of his lumbar spine. It appears Mr West suffered further deterioration and the parties agreed that as at December 1996 and continuing, Mr West suffered a 20 per cent permanent impairment in relation to his lumbar spine. The question before the Court was whether the transitional provisions in the SRC Act (s 124) had the effect of disentitling Mr West from receiving lump sum compensation for the permanent impairment to his back, given that the impairment arose out of his 1968 injury and that under the 1971 Act, he was not entitled to a lump sum payment for his back injury.

57. Merkel J, with whom O’Connor J agreed, explained that an entitlement to compensation under s 24 of the SRC Act arises where the injury results in a permanent impairment of any part of the employee’s body or bodily system or function. He noted, however, that when it comes to assessing the amount of compensation, the section is concerned with the degree of permanent impairment of the employee resulting from the injury. In particular, his Honour pointed out that s 25(4) of the SRC Act provides that where Comcare has made a final assessment of the degree of permanent impairment of an employee, no further amounts of compensation are payable to the employee in respect of a subsequent increase in the degree of impairment, unless the increase is 10 per cent or more. After examining the authorities which have dealt with s 124 of the SRC Act, Merkel J summarised them as follows:

·the gradual worsening of a permanent impairment in accordance with its natural progress does not constitute a series of new impairments each giving rise to a separate liability to pay compensation:… and

·the observation in Blackman [v Australian Telecommunications Corporation (1990) 12 AAR 11] … that a permanent impairment which worsens significantly or is such that the variation between it and the earlier permanent impairment is substantial does not result in a new permanent impairment is to be approached with "some caution":…

58.     Merkel J then stated that the case before the court required resolution of the question left unresolved in the current state of the authorities, that being whether a deterioration in a permanent impairment which existed as at 1 December 1988 was capable of constituting a new permanent impairment.

59.     Merkel J said, at 512-513:

It is both more accurate and consistent with the ordinary meaning of the relevant words to say that there was initially a slight loss of use of the limb but the subsequent total loss of use of the limb was, both qualitatively and quantitatively, a different impairment. I agree with Burchett J in Brennan at 558 where his Honour said that a worker who has suffered a slight loss of use of the right leg before the commencing day but afterwards lost its use entirely is entitled to treat the further loss of the use of the leg "as a further impairment occurring after the commencing date"

A loss of the entitlement conferred under s24 and s25 by reason of s124(3) only occurs when the permanent impairment the subject of the claim is the permanent impairment that the employee suffered as at 1 December 1988. On my reasoning, and that of Burchett J in Brennan, where a change in a permanent impairment occurring after the commencement date is such that, quantitatively and qualitatively, it is properly to be characterised as a further or new impairment occurring after the commencing date it is compensable by a lump sum payment under s24 and s25.

…

However, in reaching my conclusion, I do not disagree with the conclusion in Blackman that gradual worsening does not result in a series of separate or further impairments. Inevitably, questions of fact and degree are involved in making a qualitative assessment as to whether, in a particular case, the permanent impairment existing as at 1 December 1988 has deteriorated to an extent that it is properly to be characterised as a further or different impairment to that which existed at the commencement date. When that question is answered in the affirmative an entitlement to lump sum compensation arises under s24 and s25 which is not precluded by s124(3).

60.     In support of his argument, Mr Leigh relied on the report prepared by Dr O’Shea in February 2000.  As a result of the neuropsychological evaluation which she conducted, Dr O’Shea said that despite the severity of the head injury suffered by Mr Leigh, there was little evidence either clinically or on formal examination to suggest the presence of significant persistent neuropsychological disturbance.  She said she was unable to elicit convincing features of frontal lobe compromise and the only findings of any note to emerge from her examination were diminution in complex verbal learning together with a moderate degree of psychomotor slowing.  In her opinion, those findings did not appear to be accompanied by a significant functional deficit. 

61.     Mr Leigh contrasted the findings of Dr O’Shea with the test results produced by Mr Milliken in June 2003 and Mr Drury in September 2003.  That testing, according to Mr Leigh, disclosed either a significant deterioration in his existing impairment or a new impairment which occurred as a result of the events which took place after his re-enlistment in 2000.  However, in my view, there are some significant problems with the report by Dr O’Shea. 

62.     In the history taken from Mr Leigh, Dr O’Shea said he told her that his memory was mildly reduced from its pre‑trauma capacity, although he continued to feel that it remained better than average.  He denied being troubled by any daily forgetfulness.  He apparently said he was not particularly reliant on notes or other mnemonic aids.  He particularly denied any word retrieval difficulties and said that he always had a very rich vocabulary and that continued to be the case. 

63.     However, Mr Leigh’s evidence was that he did in fact suffer short-term memory problems.  This was recorded in his army medical documents as early as November 1983.  When asked in examination‑in‑chief whether he recognised that he was suffering from short-term memory problems, Mr Leigh said yes and that he kept a diary.  In fact, he said that he still kept a diary.  Also, when first examined by Mr Drury in September 2003, Mr Leigh told Mr Drury that his memory has been cactus.  He also told Mr Drury that after about two years he began taking regular notes and keeping a diary as he found that this was sufficient to support his memory.  At that time, he said he still felt that his underlying memory remained limited.  He also noted word-finding difficulties. 

64.     Given that objective history of memory problems, the accuracy of what Mr Leigh told Dr O’Shea regarding his memory must be seriously doubted.  I expect that is readily explained by the fact that Mr Leigh was acutely aware that the purpose of Dr O’Shea’s testing was to determine his suitability for re-enlistment.  Understandably, Mr Leigh did not wish to disclose any matters which might impede his re-enlistment.  Also, although Mr Leigh submitted that Dr O’Shea did not note any neurological deficit, that submission is not correct.  Dr O’Shea found his working memory capacity was mildly reduced and that complex new learning, although within the average range, was somewhat effortful.  She also noted that his speed of psychomotor function was diminished on expectation.

65.     In contrast to Dr O’Shea’s findings, Mr Drury noted that despite Mr Leigh’s competent performances on several measures, some aspects of his results were lower than expected.  According to Mr Drury, this was because he conducted a number of tests to establish Mr Leigh’s pre-injury level of intellectual functioning.  Therefore, his performance tests were measured against Mr Leigh’s estimated premorbid optimum ability, which Mr Drury found to be at a superior level. 

66.     Mr Drury said that, on testing, Mr Leigh disclosed a poor verbal fluency to the point of being in the low average range.  By way of contrast, Dr O’Shea found on a similar test, that Mr Leigh produced a result commensurate with premorbid expectations.  Mr Drury explained that, unfortunately, Dr O’Shea’s report didn’t explain what her premorbid expectations of Mr Leigh were.  This, according to Mr Drury, probably accounted for the difference in the test results.  He explained that from reading her report, Mr Drury estimated that she conducted about eight tests, whereas he conducted about 18 tests.  He said that to form an IQ you have to do about nine tests and that Dr O’Shea didn’t measure any IQ scores.  He explained that there was a 24 point difference between Mr Leigh’s verbal IQ and his non-verbal IQ, a significant difference.  When asked whether, if Dr O’Shea had performed the same range of tests as he did, her findings would have been the same or very similar, Mr Drury said he didn’t think there would be any significant difference.

67.     It is quite clear from the evidence that Mr Leigh suffered significant stress and anxiety as a result of the events which took place after his re-enlistment in 2000.  Mr Drury was asked whether the kind of stress that Mr Leigh obviously suffered during that period could result in a deterioration in his cognitive ability.  Mr Drury said that in general, psychological issues of a chronic or less acute nature probably don’t have a marked effect on cognitive functioning.  In cross-examination, Mr Leigh put to Mr Drury that there must be another explanation for why the results found by Dr O’Shea differed markedly to his results in 2003.  He suggested to Mr Drury that it was the result of stresses and traumas of his re-enlistment.  Mr Drury said:

… No, I can’t see that I would make that connection.  I don’t know what the explanation for it is, but I can’t imagine it would be just on the basis of that.

Mr Drury also repeated that psychological issues can have some effect on cognitive functioning but only to a mild extent and not to the marked difference observed by his testing.  He said:

So in terms of your behaviour during the assessment, it was relatively unremarkable, and on that basis I would say that even though there may well have been some underlying stresses that you had, they were probably not likely to show up markedly on the test results.  And as I’ve also said, the fact that you performed very well on a number of those tests, so highlights that as well.

68.     On re-examination, Mr Drury was again directed to what Dr O’Shea said when she asked Mr Leigh about memory difficulties and the need to use memory aids.  Mr Drury said that, based on the information Mr Leigh gave Dr O’Shea, it was not surprising that she did not delve into the areas in which he found Mr Leigh to have deficits. 

69. In my opinion, the difference in the test results obtained by Mr Drury and Mr Milliken on the one hand, and Dr O’Shea on the other, can be explained by the inaccurate history of mental functioning given by Mr Leigh to Dr O’Shea and the fact that she did not test for IQ in order to establish an estimated premorbid level of functioning. Had she been made aware of the neurological deficits which Mr Leigh had been experiencing since the accident in 1983, I have little doubt that Dr O’Shea would have probed more deeply into those areas. Because I accept Mr Drury’s explanation for the difference in test results, I necessarily find that there was no quantitative or qualitative change in Mr Leigh’s cognitive functioning between 2000 and 2003. Therefore, his current condition cannot properly be characterised as a further or new impairment occurring after the commencement date of the SRC Act.

70.     Mr Leigh also submitted that the stresses he encountered as a result of his re‑enlistment process were, in themselves, the cause of the neurological deficits disclosed by both Mr Drury and Mr Milliken.  However, as Mr Drury said under cross-examination, that would not have resulted in a marked difference in the test results.  As there was no evidence which contradicted Mr Drury’s opinion on this point, I find that the stress and anxiety suffered by Mr Leigh between 2000 and 2003 did not cause the neurological deficits recorded by Mr Drury and Mr Milliken.

CONCLUSION

71. Although I have found that Mr Leigh suffered neurological impairment as a result of the brain injury sustained in 1983, I am satisfied, on the evidence before me, that his impairment became permanent not later than 1985. That means Mr Leigh’s claim falls under the 1971 Act. The 1971 Act does not provide for compensation for any form of mental injury. Therefore, having regard to the provisions set out in s 124 of the SRC Act under which his claim is brought, Mr Leigh cannot be compensated for his neurological impairment.

72. I have also examined the evidence carefully to determine whether Mr Leigh’s neurological impairment can be regarded as a further or new impairment which arose after the commencement of the SRC Act. Unfortunately for Mr Leigh, I am not able to find that the events following his re-enlistment in 2000 caused Mr Leigh to suffer further impairment or that they caused a new impairment. Therefore, I find that the decision made by the MRCC on 2 October 2007 to disallow Mr Leigh’s compensation claim for neurological impairment was correct. I affirm that decision.

I certify that the seventy-two [72] preceding paragraphs are a true copy of the reasons for the decision herein of

Mr Egon Fice, Member

[sgd]: Leah Berardi
  Clerk

Dates of Hearing  24 September 2008, 30 & 31 March 2009

Date of Decision  23 June 2009
Self-Represented Applicant        Mr Allan Leigh
Counsel for the Respondent        Ms Ann McMahon
Solicitor for the Respondent        Ms Helen St Jack, Sparke Helmore Lawyers