| 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…
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Details
- Case
- [2023] NSWPICMP 484
- Decision Date
CaseChat Overview and Summary
The case of CBH v Kelvin Baxter Transport Pty Ltd involved an appeal against a Medical Assessment Certificate (MAC) which determined a 14% impairment rating for an injury to the nervous system sustained by the claimant after suffering brain damage due to a prolonged coughing fit at work. The court was tasked with determining whether the Medical Assessor had correctly applied Chapter 5.4 of the Guides or if there was a misinterpretation in failing to assess the emotional and behavioural impairments caused by the injury. Additionally, the court had to examine whether the Clinical Dementia Rating (CDR) assessment conducted by the Medical Assessor was influenced by any errors.
The court found that the Medical Assessor did not appropriately apply Chapter 5.4 of the Guides in assessing the claimant's emotional and behavioural impairments. The claimant's ongoing debilitating headaches, significant cognitive impairments, and social difficulties were not adequately considered in the original assessment. The claimant's inability to maintain social relationships, increased irritability, and drastic changes in his daily functioning were clear indicators of severe emotional and behavioural impairments, which were not properly accounted for in the initial MAC. Furthermore, the court concluded that the Clinical Dementia Rating assessment contained errors, as the claimant exhibited significant cognitive deficits that were not accurately reflected in the original rating.
In light of these findings, the court revoked the original MAC. The claimant was re-examined by Dr Fitzsimons, who provided a comprehensive report highlighting the claimant's substantial impairments and the necessity for a higher impairment rating. The court accepted Dr Fitzsimons's assessment and ordered a revised MAC to reflect the true extent of the claimant's injuries and impairments. This decision underscores the importance of a thorough and accurate assessment of both physical and psychological impacts in workers' compensation claims.
The court found that the Medical Assessor did not appropriately apply Chapter 5.4 of the Guides in assessing the claimant's emotional and behavioural impairments. The claimant's ongoing debilitating headaches, significant cognitive impairments, and social difficulties were not adequately considered in the original assessment. The claimant's inability to maintain social relationships, increased irritability, and drastic changes in his daily functioning were clear indicators of severe emotional and behavioural impairments, which were not properly accounted for in the initial MAC. Furthermore, the court concluded that the Clinical Dementia Rating assessment contained errors, as the claimant exhibited significant cognitive deficits that were not accurately reflected in the original rating.
In light of these findings, the court revoked the original MAC. The claimant was re-examined by Dr Fitzsimons, who provided a comprehensive report highlighting the claimant's substantial impairments and the necessity for a higher impairment rating. The court accepted Dr Fitzsimons's assessment and ordered a revised MAC to reflect the true extent of the claimant's injuries and impairments. This decision underscores the importance of a thorough and accurate assessment of both physical and psychological impacts in workers' compensation claims.
Orders
Orders of the court
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Background
Background to the litigation
Accordingly, CBH was re-examined on 5 July 2023 by Dr Fitzsimons. Her report follows:“Background HistoryCBH 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 HistoryHeadaches 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 relationshipsHe 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,ExaminationBlood 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.”
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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