CBH v Kelvin Baxter Transport Pty Ltd
[2023] NSWPICMP 484
•29 September 2023
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | CBH v Kelvin Baxter Transport Pty Ltd [2023] NSWPICMP 484 |
| APPELLANT: | CBH |
| RESPONDENT: | Kelvin Baxter Transport Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | John Wynyard |
| MEDICAL ASSESSOR: | Mark Burns |
| MEDICAL ASSESSOR: | Robin Fitzsimons |
| DATE OF DECISION: | 29 September 2023 |
| CATCHWORDS: | WORKERS COMPENSATION - Appeal from Medical Assessment Certificate (MAC) finding of 14% for injury to nervous system after claimant suffered brain damage following a coughing fit at work; whether Medical Assessor (MA) had not applied Chapter 5.4 of the Guides or misinterpreted them in failing to assess the emotional and behavioural impairments caused by the injury; whether MA assessment of Clinical Dementia Rating (CDR) was affected by error; claimant re-examined; Held – MAC revoked. |
BACKGROUND TO THE APPLICATION TO APPEAL
On 20 December 2022 the appellant, CBH, lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by
Dr John Hugh O’Neill, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 29 September 2022.The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
The assessment of permanent impairment is conducted in accordance with the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed
1 March 2021 (the Guidelines) and the American Medical Association Guides to the Evaluation of Permanent Impairment, 5th ed (AMA 5). “WPI” is reference to whole person impairment.
RELEVANT FACTUAL BACKGROUND
On 22 July 2022 the delegate of the President referred this matter to the Medical Assessor for an assessment of WPI caused by injury to the nervous system on a deemed date of
1 December 2017.CBH was employed as a long distance truck driver working six days per week prior to the onset of his subject condition. On or around 14 November 2017 he had a coughing attack after loading and unloading grain. He had early suffered a similar attack in 2016. The
14 November 2017 coughing attacks brought on severe headaches like nothing else he had ever experienced, he told Dr Michael Fearnside in 2020.[1][1] Appeal papers page 66 [1.3].
He underwent a CT brain scan on 2 December 2017 at Deniliquin Hospital and was transferred to Royal Melbourne Hospital. On 4 December 2017 bilateral burr holes were performed were performed to drain bilateral subdural haematomas.
The day after the surgery CBH felt that something was wrong and when being attended, he started involuntarily jerking for some 30 seconds and this it seemed was deemed to have been a generalised seizure.
He returned to Deniliquin Hospital on 14 December 2017 when he had a persisting headache and a CT brain scan did not show any new haemorrhage.
The brain scan on 13 April 2018 was normal apart from the presence of the bilateral burr holes.
He was first seen by Dr Ron Brooder, neurologist, on 19 April 2018. An EEG was normal and the Keppra he had been prescribed in Royal Melbourne was drawn.
CBH did not get on well with Dr Brooder, the Medical Assessor noted, and he was instead seen by Dr Steven King, neurologist.
He had a further MRI/MRA/MRV brain scan on 19 June 2018 after a medico-legal report from Dr Casikar of 15 February 2018.
Dr King reviewed CBH on 29 August 2018 and it was thought that CBH’s continuing headache was a chronic migraine.
On 20 April 2019 CBH saw Dr Roos, neurology fellow at the Royal Melbourne Hospital. A post-concussion headache was diagnosed.
CBH had been unable to work because of his persistent headache.
The Medical Assessor assessed 14% WPI.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant sought to be re-examined by a Medical Assessor who is a member of the Appeal Panel. For the reasons given below, a re-examination was required.
EVIDENCE
Documentary evidence
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
Further medical examination
Dr Robin Fitzsimons of the Appeal Panel conducted an examination of the worker on
5 July 2023 and reported to the Appeal Panel.
Medical Assessment Certificate
The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.
SUBMISSIONS
Both parties made written submissions which have been considered by the Appeal Panel.
FINDINGS AND REASONS
The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment, but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.
CBH appealed against the assessment.
The MAC
The Medical Assessor described CBH’s present symptoms:[2]
“Present symptoms: CBH said he had a persisting generalised headache. He said the only way he could get any relief was to sleep. He said he felt as though he just wanted to take off the top of his head and then everything would be alright. He said the headache could worsen over the course of the day without any obvious provocation although it was generally worse when he was active. He now had to mow his small lawn over three to four days because lawnmowing would aggravate the headache. The headache would be aggravated by driving for even short distances. It was not particularly worse with straining activities such as coughing.
CBH said his memory had become much worse since the surgery. He said he could go to the supermarket and forget why he had made the trip. He said he might forget to buy particular items that had been required. Some two to three weeks ago he flew from Melbourne to Mackay to look after his grandchild for a few weeks so that his daughter could undertake some nursing studies. He posted some clothes home and he inadvertently included his car keys in that package so that he had a long time trying to work out what had happened to the keys.
He said he lived on a pension and his rent was automatically deducted. He said he used a pre-paid phone. He said a female friend would remind him of when his electricity bills were required.
He said he had few social contacts, the aforementioned female friend and her husband who lived 1½ blocks away. He thought he would see them roughly every three to four days. His eldest daughter lived in the town and he said he would see her once every two to four weeks.
Prior to the surgery he had at times enjoyed shooting or fishing but he no longer had any interest in those hobbies.
I asked him if he was depressed and he said that was not the case but he was certainly ‘pissed off’.
He said life held nothing for him now. He said he was previously a workaholic and now could not work. He said he just spent his time at home with intermittent sleeping because of the headache. He said he felt he was better away from people and ideally would like to be on an island where he could just do some fishing and sleeping without any social contact.”
[2] Appeal papers page 35
As to his findings on physical examination, the Medical Assessor said:[3]
“CBH had a somewhat odd character. He did not appear depressed but he was certainly angry about the situation he found himself in with respect to chronic unexplained headache.”
[3] Appeal paper page 36.
The Medical Assessor summarised CBH’s case:
“As a direct consequence of a prolonged spate of coughing related to work, CBH developed severe headache leading to the diagnosis of bilateral subdural haematomas which were detected radiologically on 2 December 2017…..
Regardless of mechanism, I believe there has been some impairment in the aftermath of the subdural haematomas.”
At [10c] of the MAC, the Medical Assessor considered the opinions of the other medical practitioners whose reports were before him. With regard to the opinion of Dr Ashkar the Medical Assessor said:[4]
[4] Appeal papers page 36 – 37.
“A neuropsychological assessment was undertaken by Dr Ashkar on 22 April 2022. Dr Ashkar felt there were “cognitive impairments in areas of his higher level / executive thinking involving inhibition and switching mental flexibilities (with) emotional/psychiatric disturbance and interpersonal dysfunction.
I was not convinced of a significant impairment in Mental Status but I thought there was an impairment in the area of Behaviour and Emotion and this would seem to have been supported by the neuropsychological assessments.
I assessed impairment using AMA 5, table 13.8, page 325. I thought there was at least a mild limitation of activities of daily living and daily social interpersonal functioning due to altered emotion and behaviour after the subdurals. I awarded the maximum allowable impairment of 14% WPI.
As stated, my assessment is supported by the neuropsychological assessments.
I note that Dr Mellick (neurologist) felt there was 28% whole person impairment at medicolegal assessment on 16 March 2021. He awarded 14% impairment for Mental Status and 15% for Emotion and Behaviour. It is my view that these impairments are overlapping and that his estimate of impairment was grossly exaggerated in terms of CBH’s day to day functioning.
My assessment of impairment differs from Drs Fearnside (assessment 24 March 2020) and Walker (assessment 1 June 2021) with both those doctors feeling there was no impairment.
• consistency of presentation
There were no inconsistencies. There was simply an odd behaviour.”
SUBMISSIONS
The appellant
CBH’s submissions were prepared by Mr Simon Hunt of counsel.
It was submitted that the errors made by the Medical Assessor consisted of:
“(a) the medical Assessor did not give sufficient weight to the limitations of the appellant’s activities of daily living in assessing the appropriate degree of assessment pursuant to table 13.8 of the Guides. Specifically, it was alleged that the Medical Assessor failed to give proper consideration and weight to CBH’s social withdrawal, abandonment of pre-injury social activities, difficulty in completing domestic tasks, and implementation of strategies to overcome memory loss, including reliance on a friend for reminders to pay bills;
(b) the Medical Assessor failed to “engage with and consider” the evidence. This included a failure to consider the history of CBH’s disabilities as set out in the various medical reports and statements. It was also alleged that the Medical Assessor had failed to give an adequate reasons in relation to the assessment.
(c) the Medical Assessor’s statement that he was “not convinced of a significant impairment” was an assessment based on incorrect criteria.”
CBH described the history of this matter and reviewed the various medical opinions and treatment regarding CBH, including the medico-legal evidence, in a most comprehensive manner.
CBH then reviewed the MAC.
We were referred to Vegan which we have cited at the outset of these reasons.
We were also referred to Alchin v Daley.[5] CBH referred to the criteria in the Guides defining class 1 and class 2 of table 13.8 and submitted that the Medical Assessor’s reasoning in that regard was deficient when he said, “I thought there was at least a mild limitation of activities”.
[5] [2009] NSWCA 418.
It was submitted that the Medical Assessor did not engage with the evidence contained in
CBH’s statement nor the evidence contained in the treating and medico-legal material.It was alleged that the Medical Assessor failed to provide any reasoning or display any consideration as to why he considered that the appropriate classification was class 1 rather than class 2.
It was submitted that the Medical Assessor had failed to consider and engage with the material before him regarding CBH’s post injury restrictions and functioning, apart from saying “I thought there was at least a mild limitation of activities.”
The Medical Assessor had failed to explain his rationale therefore in his assessment.
CBH also submitted that the Medical Assessor failed to engage with the evidence and provide any reasons why an impairment did not arise under table 13.6 apart, from his statement that he was “not convinced of a significant impairment and mental status”.
We were then referred to the evidence set out in the history by the Medical Assessor and the findings regarding restrictions and functioning set out in the reports of the medico-legal experts.
This demonstrated a significant restriction in CBH’s functioning in his activities of daily living and of social and interpersonal functioning since his injury. It was submitted that the material that was before the Medical Assessor and also his own clinical examination should have resulted in an assessment of class 2 of table 13.8.
CBH then returned to the question of the assessment of his mental status, submitting that the Medical Assessor “declined to assess impairment”, on the basis that he was unconvinced of a significant impairment.
We were referred to the Clinical Dementia Rating (CDR) at table 13.5 of the Guides.
The Medical Assessor, it was submitted, did not assess CDR under table 13.5, nor did he undertake an assessment under table 13.6.
We were referred to chapter 5.4 of the Guides. In light of that definition, it was submitted that the Medical Assessor had applied incorrect criteria with regard to table 13.6. CBH noted that if such an impairment did arise, it could be combined with a table 13.8 assessment subject to the chapter 5.4 warning.
Respondent’s submissions
The respondent noted that CBH’s allegations were that the Medical Assessor had failed to engage with the material before him. The respondent noted that the Medical Assessor referred to the assessments of other medical practitioners before him but decided “as is the Medical Assessor’s right” to formulate is own opinion of the appellant’s clinical presentation.
It was submitted that the Medical Assessor considered the opinion of the other assessors and the respondent emphasised that the Medical Assessor was not obliged to accept or repeat verbatim the history recorded by other experts.
It was submitted that the MAC unambiguously demonstrated that the Medical Assessor had considered those opinions and identified where his opinion and assessment differed.
The allegation that the Medical Assessor failed to provide adequate reasons is accordingly without merit and “inconsistent with any reading of the MAC”.
We were referred to Marina Pitsonis v Registrar Workers Compensation Commission.[6]
[6] (2008) NSWCA 88 at [31].
We were kindly provided with a copy of table 13.8 of AMA5, and the respondent noted that the Medical Assessor had given the maximum available under class 1.
The respondent then set out 10 of the findings of the Medical Assessor which it said supported his assessment in the areas of ALDs and social and interpersonal functioning.
The respondent submitted that the Medical Assessor had used his clinical judgment and that there was no challenge to the history of particulars recorded by the Medical Assessor.
The respondent noted that the appellant’s submissions were concerned with the weight that the Medical Assessor ought to have given to the evidence, which CBH conceded had been before the Medical Assessor.
The appeal simply cavilled at the assessment, it was submitted.
The assessments reached by the Medical Assessor on all the evidence were open to him.
The respondent then considered the submissions regarding tables 13.5 and 13.6 of AMA5. It was submitted that the Medical Assessor had adequately explained his reasons for not using those tables, as he thought they were overlapping.
We were kindly provided with copies of chapter 5.4 and tables 13.5 and 13.6 of AMA5.
The respondent submitted that the Medical Assessor had addressed the opinions of the medico-legal specialists - particularly Dr Mellick - and explained why he considered
Dr Mellick’s opinion to be a “gross exaggeration of the impairment assessed”.The respondent submitted that the Medical Assessor had applied chapter 5.4 of the Guides to avoid double rating the same assessments and accordingly applied the correct criteria.
Decision
Chapter 5.4 of the Guides provides:
“The approach to assessment of permanent neurological impairment
5.4 AMA5 Chapter 13 disallows combination of cerebral impairments. However, for the purposes of the Guidelines, cerebral impairments should be evaluated and combined as follows:
· Consciousness and awareness
· Mental status, cognition and highest integrative function
· Asphasia and communication disorders
· Emotional and behavioural problems
The Assessor should take care to be as specific as possible and not to double – rate the same impairment particularly in mental status and behavioural categories.
These impairments are to be combined using the Combined Values Chart AMA5, pp 604-06). These impairments should then be combined with other neurological impairments indicated in AMA5 Table 13-1 (p 308).
Tables 13-5 and 13-6 of AMA5 provide:
Table 13-5 Clinical Dementia Rating (CDR)
Impairment Level and CDR Score
None
0
Questionable
0.5
Mild
1.0
Memory (M)
No memory loss or slight inconsistent forgetfulness
Consistent slight forgetfulness; partial recollection of events; “benign” forgetfulness
Moderate memory loss: more marked for recent events; defect interferes with everyday activities
Orientation (O)
Fully oriented
Fully oriented but with slight difficulty with time relationships
Moderate difficulty with time relationships; oriented for place at examination; may have geographic disorientation elsewhere
Judgment and problem solving
(JPS)
Solves everyday problems and handles business and financial affairs well; judgment good in relation to past performance
Slight impairment in solving problems, similarities, and differences
Moderate difficulty in handling problems, similarities and differences; social judgment usually maintained
Community affairs (CA)
Independent function as usual in job, shopping, volunteer, and social groups
Slight impairment in these activities
Unable to function independently at these activities though may still be engaged in some; appears normal to casual inspection
Home and hobbies(HH)
Life at home, hobbies and intellectual interests well maintained
Life at home, hobbies and intellectual interests slightly impaired
Mild but definite impairment of functions at home; more difficult chores abandoned, more complicated hobbies and interests abandoned
Personal care
Fully capable of self-care
Fully capable of self-care
Needs prompting
Table 13-6 Criteria for Rating Impairment Related to Mental Stress
Class 1
1% - 14% impairment of the whole person
Class 2
15% - 29% Impairment of the Whole Person
Class 3
30% - 49% Impairment of the Whole Person
Class 4
50% - 70% Impairment of the Whole Person
Paroxysmal disorder with preimpairment exists, but is able to perform activities of daily living
CDR = 0.5
Impairment requires direction of some activities of daily living
CDR = 1.0
Impairment requires assistance and supervision for most activities of daily living
CDR – 2.0
Unable to care for self and be safe I any situation without supervision.
CDR = 3.0
Table 13.8 of AMA5 provides:
Table 13-8 Criteria for Rating Impairment Due to Emotional or Behavioural Disorders
Class 1
0% - 14% impairment of the whole person
Class 2
15% - 29% Impairment of the Whole Person
Class 3
30% - 69% Impairment of the Whole Person
Class 4
70% - 90% Impairment of the Whole Person
Mild limitation on activities of daily living and daily social and interpersonal functioning
Moderate limitation of some activities of daily living and some daily social and interpersonal functioning
Severe limitation in performing most activities of daily living, impeding useful action in most daily social and interpersonal functioning
Severe limitation of all daily activities, requiring total dependence on another person
It can be seen that the authors of the Guides at Chapter 5.4 were alive to the possibility that in assessing this type of injury there could be what is described as double rating of the same impairment.
We note that the guideline particularly mentioned the mental status and behaviour categories in this regard.
The respondent referred to the list of limitations recorded by the Medical Assessor. It was thus apparent that the Medical Assessor was fully aware of CBH’s limitations, the respondent submitted. However, it was not suggested by the appellant that the medical assessor was unaware of any significant factual matters. The issue was as to whether the Medical Assessor had properly applied the required criteria to the evidence that he had considered.
We note that CBH’s behavioural change following the subject event was of some significance. CBH’s statement of 26 March 2018 was taken a few months after the surgery on 4 December 2017 by the insurer’s investigator, and is accordingly of limited assistance. CBH said in his statement:[7]
“[65]…. I have a constant headache, at times if I touch my head, I can feel dizzy.
[66] I am just tired all of the [time], I will get up for a short period of time and then conduct some small amount of activities before I feel tired again and need to sleep.”
[7] Appeal papers page 713.
Histories taken by attending doctors however recorded behavioural change.
Dr Michael Fearnside, neurosurgeon reported to CBH on 24 March 2020.[8]
“2.1 He reported constant chronic and severe headache . On some occasions the headache would be rather more severe, this was a variable pattern and could last for up to 30 minutes ,once or twice a day. Often, he would need to lie down and have a rest when his headache was severe.
2.2 His memory had been poor since the accident. Generally, he was able to cope with the change in memory and could accommodate to it.
…..
He has somewhat easy irritability, more so than prior to the accident but this was not inappropriate and there was generally good reason , he felt , for the anger. He did agree that on some occasions there was fairly minor provocation.”
[8] Appeal papers page 66.
Dr Donald Rowe provided a neurophysical examination and report for CBH on
10 September 2020.[9] He said:“78. Prior to CBH’s injury he appears to have been in a successful phase of his older adult life having been driving trucks for most his life amongst other jobs in what appears to have been a successful employment history. He had also been a successful husband and father in the past with now grown up children. Prior to the injury he was enjoying his work on the road being paid well and engaging in various recreational activities such as shooting, going to the pub with his friends, as well as supporting his older children in their studies and other areas.
…..
80. Despite ongoing treatment CBH has been left with significant permanent disability arising from chronic post‐traumatic headache, excessive somnolence, emotional and behavioural difficulties and mental status impairments. He does not appear to have had any pre‐existing medical conditions that appear related to his current difficulties. In contrast, prior to his injury he said he was relatively calm individual and could function well with four to six hours sleep having been a truck driving. Nor did he ever have any regular headaches.”
[9] Appeal papers page 76.
Dr Ross Mellick, consultant neurologist reported on 16 March 2021.[10] He recorded:
“He said that he now has few friends because he is, to use his words, “…inclined to be excessively blunt”. He said that this tendency has again only been present in the last two and a half to three years. He said this was different from prior to the episode of bleeding, when he would either ignore insults or say something like “don’t push me buttons or I’ll ignore you”. He said he is now prone to verbal aggression and has difficulty controlling his response. He regrets losing his temper but is not able to control it as he did prior to the bleeding.
…..
I make this assessment as there is a clear differentiation between impairment of judgement in relation to what he says when compared with his pre-injury state. With regard to the emotional disorder which involves verbal aggression, for which he feels regretful, this is a separate matter indicating a different neurological disorder from impairment of judgement because it represents impairment of emotional control.”
[10] Appeal papers page 92.
Dr Grant Walker, neurologist, provided a medicolegal report for the respondent on
1 June 2021.[11] Dr Walker took a consistent history, but appeared to have some reservations as to CBH’s presentation. He said at page 105:“CBH complains of poor memory, but this appears to be entirely selective (such
as with medications) as he remembers in word for word detail things that were said to him prior to and following the surgery and on other occasions where he had verbal
disagreements with doctors about a variety of issues. His is quite disparaging about
some of the doctors that he has seen and uses “colourful” language to describe
them.”
[11] Appeal papers page 103.
Dr Walker concluded at page 109:
“…Dr Mellick is incorrect in adding emotional or behavioural disturbances to mental status abnormalities as one must chose the highest value between them in assessing brain injury.
In respect of emotional or behavioural impairments he would fit into a class I impairment which is 0-14% of the whole person. He is an angry person which is more to do with his personality than any brain injury but I would accept that there has been some significant emotional impairment and would grade it as a mid-position of 7%.”
Dr Peter Ashkar, forensic consultant psychologist and clinical neuropsychologist, reported to the respondent on 22 April 2022.[12] Dr Ashkar stated:
“30. CBH's stroke related impairments in his functioning are accompanied by emotional/psychiatric disturbance (predominantly demoralisation, helplessness, and low positive emotions), somatic/cognitive disturbance (predominantly malaise, head pain complaints, and a diffuse pattern of cognitive difficulties), and interpersonal dysfunction (predominantly social withdrawal and a dislike of people and being around them) (see paragraph 26 above), which appear to be underpinned by unremitting headache, pain, and reduced quality of life.”
[12] Appeal papers page 732.
Dr Vidyasagar Casikar, neurosurgeon, provided a number of reports to the respondent. His emphasis was on the cause of CBH’s condition, and Dr Casikar did not consider the effect of the stroke on CBH's emotional and behavioural problems in any relevant retail.
Against this history, the Medical Assessor, whilst noting that Dr Mellick had found that
CBH’s emotional and behavioural condition was rateable, simply stated that “these impairments are overlapping” and that Dr Mellick’s assessment was “grossly exaggerated.”This appeared to be the Medical Assessor’s explanation for not awarding any impairment for CBH’s emotional and behaviour disorder. It is not clear whether the Medical Assessor thought that where two categories overlapped, only one could be chosen. However, the provisions of Chapter 5.4 of the Guides make it clear that whilst the guidelines in Chapter 13 of AMA5 disallow a combination of cerebral impairments, such impairments may be evaluated and combined under the Guides, which take precedence over AMA5. Thus Table 13.6 and 13.8, reproduced above, may be combined. The only caveat on that assessment is that care had to be taken “to be as specific as possible and not to double – rate the same impairment particularly in mental status and behavioural categories.”
We are uncertain why the Medical Assessor did not then rate the emotional and behavioural problems – particularly when he went to the trouble of criticising Dr Mellick’s assessment as being exaggerated. There was no impediment to the Medical Assessor doing so at a value that he thought was more appropriate. We note that Dr Walker too was of the view that a combination was not available.
Accordingly, we were satisfied that the Medical Assessor had fallen into error by failing to give adequate reasons as to his assessment. Chapter 5.4 of the Guides meant that a different conclusion was open, and whilst, in accordance with the principle in Vegan, the Medical Assessor’s reasons need not be extensive, they lacked the detail to enable the medical professionals on the Panel to comprehend his assessment. We note that the Medical Assessor did not refer to Chapter 5.4 of the Guides in his Certificate, which suggests that he did indeed fail to apply this criteria.
Accordingly, CBH was re-examined on 5 July 2023 by Dr Fitzsimons. Her report follows:
“Background History
CBH had been a long-distance truck driver for about 15-20 years, before the subject injury. He typically took loads of grain interstate, and unloaded them. Before that he was a glazier, salesman, farmer, crowd controller.
His wife died of cancer 18 months ago.
He described himself as having been a “total workaholic” all his life – prior to the brain haemorrhages in the subject injury.
History of the “Accident”.
On 1 December 2017 (deemed date) CBH was unloading a contingent of grain from his truck. He believes it had mildew or the like on it, as shortly afterwards he began having a severe coughing fit which lasted 2 or 3 days.
He tried treatment using a “puffer” which he happened to have in the truck from a similar coughing fit twelve months earlier.
He was a bit vague about times and dates, and began getting agitated by some of the questioning. (I did not interpret this as deliberate evasiveness). At some point after his coughing fit started he parked his truck for a 7-hour break.
Later, as his coughing fit finished, a generalized ”flogging headache “ came on. However, he was driving long-distance interstate, and so he continued driving, with view to completing his trips. i.e. his headaches continued, and he continued driving.
Four days after the coughing or headaches came on he was passing by the hospital in Deniliquin, so he decided to call in to get his headache checked. “They asked a heap of questions”. He was sent home and told to come back the next morning if not better. So he did return the next morning because his headache was still there. A CT brain scan was then undertaken. He said that when the doctors saw the result (subdural haemorrhages) they “flew me to Melbourne (Royal Melbourne Hospital -RMH) in a hurry”.
He stayed in RMH for a few days He can’t recall any symptoms (eg limb weakness) other than headache while he was in hospital. He knows he had a fit while he was there.
A doctor told him that he had four brain bleeds.
Subsequent History
Headaches Since leaving hospital he has had ongoing debilitating, generalized, headaches. He says that the only thing that gets rid of the headaches is sleep. He said he feels that “if someone took (his) head off and sat it on top of a cupboard” he would feel a lot better.
Headache is permanently present – and “has been all day every day for five and a bit years”. It does fluctuate somewhat in intensity, in that can become “extreme” two or three times a day.
If a suddenly worsening headache catches him out too far from his house or when he is in a car he will have to sleep on the ground for a couple of hours.
He doesn’t vomit or feel nauseous with the headache. He doesn’t have associated visual symptoms.
I endeavoured to find out whether it was throbbing. He replied that he “count my heartbeat by it. It is just continual screaming pain that doesn’t get better - it just gets worse.”
The headache can be made worse by walking or exercise. If he pushes himself too far his legs will start shaking.
I asked him whether he had had headaches at all before the accident. He said that he didn’t have “anything to talk about” regarding headaches before the accident. He might have had a headache once every six weeks.
Fatigue
After he left hospital on the way back to Deniliquin he slept in the bus.
He sleeps 14-16 hours a day. He says he sleeps because of the headache. This is not because of medication. He will go to sleep without taking medication, and he certainly doesn’t need to take medication to sleep.
He arrived at the consultation in Sydney via his brother’s car which took him to Albury, and he then took a plane and a taxi. He said that If he had walked 5 blocks (from where the taxi had at first intended to drop him, before being persuaded that it was the wrong, similar-sounding, address) to the consultation he wouldn’t have got to the consultation, as he would have had to have a sleep in the gutter. More generally, he drives very little.
That said, he has driven to Melbourne (for his late wife’s chemotherapy) and Albury since the accident. Sometimes he would make the distance (4 hours) to Melbourne, and on other occasions he would have to stop at a motel.
He can drive to Albury on his own when his “head his not out of control”. If his head starts hurting too much he will pull over “and have a camp”. He will sleep on a park bench.
Epilepsy.
He has not had any more epileptic fits. He is still on Epilim (sodium valproate) – with view to preventing seizure recurrence. He does not know how long he will be staying on this medication.
Gait.
He has no problems with his arms. He has no problems with his legs “until it all gets too much”. “When my head flogs my legs get shaky”. When this happens he lies down (eg on a footpath) and sleeps for two hours – no matter where he is. He then can’t be woken up. “Not a chance in heck”. Otherwise his only problem with his legs is when he gets up, but this unsteadiness only lasts briefly.
Cognition and Activities of Daily Living (including CDR assessment)
Memory. (M) “I don’t remember anything. My memory is shot.”
He will forget things (eg butter) he is supposed to buy at the supermarket.
If he is asked to go to the shop for a container of milk, he “might get the milk or might not”. He doesn’t get lost on these short journeys. It’s just that he forgets what he is supposed to be doing. He will lose papers, as he forgets where he might have put things. He was unsure as to whether this memory difficulty was progressive or static.
He recently could not remember the name of the father of his grand-daughter.
He doesn’t remember his wife coming to visit him in hospital.
Orientation (O) He reported no difficulty in finding his way from his home to Melbourne by car. On the other hand, when he is driving longer distances, he can forget whether he is supposed to be driving left, right or north.
His neighbour makes sure that he keeps appointments.
Home and Hobbies (HH). He said he has no social life, no hobbies, “no bloody nothing”.
He makes breakfast if he feels like it and if he wakes up feeling reasonable. He will have porridge or weetbix, and toast.
He could do the housework himself “but for the frigging headaches”. “I don’t do it because I’ve got a choice”. So he will choose to sleep instead. He doesn’t watch a lot of television – he says there is no point. “If the TV was on I’d go to sleep anyway”.
He lives on his own in a house. He used to have a beautiful garden. He mows it sometimes, or he gets a lawnmower man in. However the lawn has not been mowed since December. He recently stayed at his daughter’s place (in Queensland) for 3 weeks, so someone would be at home when the children came home from school, while his daughter worked. (See also below re Social Relationships).
Community Affairs (CA) I asked him how he spends his days – he says “if you sleep 14-16 hours a day there is not much to fill in”. He may go and see a friend and her husband who live a block away, and have coffee. He has meals at these neighbours’ place two or three times a week. She will come and help clean the house for him. (See also below re Social Relationships)
Judgement and Problem Solving (JPS) He looks after his own bank account, which only has a small pension, in it. “Everything’s got expensive.”
He doesn’t use computers, and has never had done do. He will use email on his phone if he has to. He may go to the (above-mentioned) friend’s place for help, and to use her I-pad. He uses his mobile normally, although it sometimes confuses him.
Personal Care He normally remembers to shave or shower (every second day). He will definitely shower and shave when he is going out.
“Emotional/ behavioural” - Social relationships
He now gets very cranky very quickly – this is a change from before the accident. “I don’t get on with people. I stay home”. His brother and his friends now understand this, and to ignore him when he gets angry.
He conveyed his volatility in the following terms “If you were to tell ‘ em I’m a smart arse I’d say for god’s sake stand back”.
He has “no social life”. “Friends have gone to a minimum, because I can’t go and see them”. He will drive to Coles or to his brother’s farm. This brother lives in a house on 10 acres of land.
He used to get on really well with his family and friends. Now he gets on well with brother, who lives 30-45 minutes away in a car. He doesn’t see family and friends that much. His daughter in Queensland thinks that the sun shines out of him. He also gets on with a son who is doing nursing in Cairns. He gets on OK with his stepson in WA. He gets on with his 2 daughters in Deniliquin plus a step- daughter in Denliliquin who he does not get on with.
The woman nearby who helps with cooking and cleaning will remind him of his appointments and when he has to pay bills. She and her husband keep track of everything for him. He said that he used to do everything for them. “Now they’re doing it for me”.
There is now another significant logistic problem, because he had a disagreement (in which he acknowledges his own role, using highly perjorative nouns and adjectives) with his Deniliquin doctor, who did not want to see him again. As a result of this that doctor refused to see him again, and he has go to and see another doctor about 50 minutes’ drive away.
He says that CentreLink also refused to see him for months after an altercation when he expressed his views (with perjorative vernacular). At Centrelink a woman told him he was a smartarse. He then told her she was to “watch your mouth – bitch”. He was then told to leave Centrelink office. He had a major dispute over texts he had been sent from Social Security. He has been told (apparently by doctors) he will never work again.
Treatment
His current medications include:-
APO- telmisartan 40 mg/day (for high blood pressure)
Cymbalta (duloxetine) 60 mg/day (for depression)
Epilim (sodium valproate) 100 mg x 4 tablets mane (presumably because he had a fit in hospital)
Epilim (sodium valproate) 500 mg at night,
Examination
Blood pressure 115/77 (within normal limits)
Although there was evidence suggestive of disinhibition (see also above regarding social relationships) during the consultation and he had some difficulty remembering dates and times from over 5 years ago there were otherwise no overt cognitive difficulties during the consultation. There was no evidence of aphasia. He was appropriately orientated in current time. He correctly gave the date as “Wednesday. 5th of 7th month –2023.” He called the season “bloody winter”. He quickly and accurately subtracted 7 from 93, and 7 from 86 to give 79. He added “I was always good at maths”.
He had a 7-digit immediate forward recall (which is normal), and a 6-digit immediate reverse recall (which is excellent). He accurately spelt “world” backwards”. He remembered that he had had cornflakes for breakfast. He couldn’t recall the name of the Prime Minister – but knew that “ScoMo” was “the other PM”. He reserved some expletives for the current Prime Minister (“No good – Labor”),but couldn’t recall his name. He knew that we now have a King , and that his name is Charles (followed by a few negative comments).
He named a “pen” and its “nib” normally (no evident nominal aphasia). He made a satisfactory copy of overlapping pentagons. He drew a conventional clock as instructed, with the numbers all in the appropriate places, and the hands showing 4.15, as instructed.
Dexterity (piano-playing hand movements) appeared normal bilaterally.
He had a somewhat clumsy gait, but it was not definitely abnormal. He was able to walk on either his toes or his heels (signifying reasonable foot power in flexion and extension). Finger-nose testing was normal bilaterally. There was no dysdiadochokinesis. (i.e. coordination appeared normal).
There was no “pyramidal drift” of his outstretched arms.
No overt motor weakness or sensory loss.
Deep tendon reflexes were normal and symmetrical in the upper and lower limbs. Plantar responses were flexor bilaterally.
He was able easily to smell either peppermint oil or lavender oil via either nostril.”
The Panel adopts Dr Fitzsimons’ report, and acknowledges the detail of her careful assessment. We note that CBH had quite extensive subdural haematomas as revealed on the CT of 2 December 2017, including over the frontal lobes and the right temporal lobe. Frontal lobe injury is often associated with disinhibition, which was most evident during the re-examination. There was no evidence that CBH had been so affected prior to his injury, but verbal aggression has been noted since the accident, which Dr Rowe dealt with in some detail. The Medical Assessor described CBH as an “odd character,” but
CBH’s account of his inter-action with his doctors and with Centrelink indicates a case for his having a moderate limitation of some but not all social and interpersonal daily living functions. A Class 2 assessment pursuant to Table 13-8 is therefore indicated regarding
CBH’s emotional and behavioural problems, pursuant to Chapter 5.4 of the Guides. We would assess a 15% WPI under this criterion. As to the danger of double rating adverted to at Chapter 5.4, we reduce that assessment accordingly to 7%.The CDR Rating Table provided by Table 13-5 AMA5 we assess as follows:
Memory 1.0
Orientation 0.5
Judgment and Problem solving 1.0
Community Affairs 0.5
Home and Hobbies 1.0
Personal Care 1.0
This results in a CDR score of 1, which results in an entitlement pursuant to Class 2 of 15-29% WPI. We assess CBH’s entitlement as being 15% WPI. !5% combined with 7% under the Combined Value Tables give an entitlement of 21%.
For these reasons, the Appeal Panel has determined that the MAC issued on
29 September 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
WORKERS COMPENSATION DIVISION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W3846/22 |
Applicant: | CBH |
Respondent: | Kelvin Baxter Transport Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor John Hugh O’Neill and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in NSW workers compensation guidelines | Chapter, page, paragraph, figure and table numbers in AMA5 Guides | % WPI | WPI deductions pursuant to S323 for pre- existing injury, condition or abnormality (expressed as a fraction) | Sub-total/s % WPI (after any deductions in column 6) |
| Nervous system | 1/12/2017 (deemed) | Chapter 5.4 p.31 | Table 13.8, page 325 | 21% | Nil | 21% |
| Total % WPI (the Combined Table values of all sub-totals) | 21% | |||||
0
2
0