Chandler v QBE Insurance (Australia) Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Chandler v QBE Insurance (Australia) Limited [2024] NSWPICMP 502
CLAIMANT:	Jason Chandler
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	Adeline Hodgkinson
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	26 July 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; causation; mild traumatic brain injury; seizures; dispute related to the assessment of whole person impairment (WPI) of head injury with secondary seizures/epilepsy; Medical Assessor certified traumatic brain injury not established because no medically verified disturbance in level of consciousness; no post-traumatic amnesia and no brain imaging abnormality; Briggs v IAG Limited t/a NRMA Insurance; Held – mechanics of accident where vehicle rammed from behind could cause mild traumatic brain injury; scientific certainty not required; on history provided there was significant amnestic period; normality of initial Glasgow Coma Score, serial MRI brain scans and EEG studies does not invalidate the occurrence of traumatic brain injury; onset of a seizure disorder attributed to TBI links cognitive decline to initial injury; accident caused mild traumatic brain injury causing seizures; assessed at 20% WPI for poorly controlled seizure disorder; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	Review Panel Certificate issued under Part 3.4 of the Motor Accidents Compensation Act 1999 following a review under s 63 as to WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% The Review Panel revokes the certificate of Medical Assessor Cameron dated 17 December 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a whole person impairment which is greater than 10% and is 20%: mild traumatic brain injury causing seizures.

STATEMENT OF REASONS

INTRODUCTION

On 14 November 2017 Jason Chandler (the claimant) sustained injury in a motor vehicle accident.
QBE Insurance (Australia) Limited (the insurer) is the relevant insurer with liability to pay any damages to Mr Chandler under the Motor Accidents Compensation Act 1999 (MAC Act).
This dispute is in relation to whether the degree of permanent impairment sustained by the claimant as a result of the injury caused by the accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1]
[1] Sections 57 and 58 of the MAC Act.
A dispute in relation to a head injury with secondary seizures/epilepsy was referred to Medical Assessor Cameron.
Medical Assessor Cameron issued a certificate dated 17 December 2023. The claimant’s application for review of the certificate of Medical Assessor Cameron was referred to the Review Panel (Panel).

DOCUMENTATION BEFORE THE REVIEW PANEL

On 22 April 2024 the Review Panel issued Amended Directions to the parties which stated:
“Whilst the application for review has been filed by the claimant the Panel proposes to direct the insurer to upload a bundle of documents sought to be relied upon in the review on the basis the claimant will have an opportunity in reply to upload any documents not included in the insurer’s bundle upon which the claimant wishes to rely.
The Panel has now become aware the claimant filed an Application to Admit Late Documents dated 18 April 2024 (AALD) which provides the evidence on which the claimant seeks to rely together with an index to those documents.
Accordingly, the Panel issues the following directions:
1. The insurer is, by close of business 2 May 2023 , to upload to the portal an indexed and paginated bundle of all the documents relevant to this Review in the following suggested order:
(a)All documents relied upon by either party which were before Medical Assessor Cameron;
(b)All submissions relied upon by either party made to Assessor Cameron;
(c)All submissions relied upon by either party in support of the application for review.
(d)any additional documents that the insurer seeks to rely on in the course of this Review.
2. The claimant is, by close of business 13 May 2023, to upload to the portal any additional documents and/or submissions sought to be relied upon by the claimant that were not included in the insurer’s bundle or in the documents attached to the AALD. If all the evidence sought to be relied upon by the claimant is in the AALD and the insurer’s bundle there is no need for the claimant to do anything further.”
The documents uploaded by the claimant under an Application to Admit Late Documents dated 18 April 2024 and paginated from page 1 to 151 will be titled Claimant’s review documents.
In response to the Amended Direction the insurer on 1 May 2024 uploaded an indexed and bundle of documents paginated from page 1 to 369 will be titled Insurer’s bundle.
On 9 May 2024 the claimant uploaded submissions in reply paginated from page 1 to page 19 titled claimant’s submissions.
The Panel notes that this dispute only relates to the head injury with secondary seizures/epilepsy. Therefore, whilst the Panel has considered all medical reports furnished by the parties the Panel has not referenced all records where they relate to the other orthopaedic injuries.

RELEVANT LEGAL AUTHORITY
Permanent impairment dispute

The Motor Accident Permanent Impairment Guidelines (the Guidelines) were issued pursuant to s 44(1)(c) for the assessment of permanent impairment. The Guidelines are based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (AMA 4 Guides) . The Guidelines are effective from 1 June 2018 and relate to motor vehicle accidents that occurred between 5 October 1999 and

30 November 2017. The Guidelines are definitive with regard to the matters they address but where they are silent on an issue, the AMA 4 Guides should be followed.[2]
[2] Clause 1.2 of the Guidelines.
Causation of injury is addressed in the Guidelines:
“1.5   An assessment of the degree of permanent impairment is a medical assessment matter under Section 58 (1)(d) of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident. A determination as to whether the injured person’s impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or claims assessor) in considering such issues.
1.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows: ‘Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2.The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.’
This, therefore, involves a medical decision and a non-medical informed judgement.
1.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
In Norrington v QBE Insurance (Australia) Ltd[3] Brereton J addressed the presence or absence of a contemporaneous record of complaint in the determination of causation stating at [31]:
“In the context of medical assessment under MACA, there is now a substantial body of authority that a panel which decides the question of causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury fails properly to address the questions posed by s 58(1), and that this is jurisdictional error.”
[3] [2021] NSWSC 548, Norrington.
In Norrington Brereton J followed the decision of the Court of Appeal in AAI Limited v McGiffen[4] where the Court stated at [64]:
“The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.”
[4] [2016] NSWCA 229, McGiffen.
Even more recently in Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance[5] Justice Walton set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe Justice Walton concluded that the question was not whether there was any contemporaneous evidence or corroborative evidence to support the injury but whether the motor vehicle accident materially contributed to that injury.
[5] [2021] NSWSC 804, Kinchela.

MEDICAL ASSESSMENT UNDER REVIEW

Medical Assessor Cameron issued a certificate dated 17 December 2023.[6] The following injuries were referred to Medical Assessor Cameron for an assessment of the degree of permanent impairment caused by the accident:
· Head – head injury with secondary seizures/epilepsy.
[6] Insurer’s bundle p 358.
Medical Assessor Cameron reported the ambulance records refer to neck pain and a Glasgow Coma Score of 15. He reported Mr Chandler had ongoing neck pain and saw

Dr Smith on 12 December 2017 in respect of neck pain.
Medical Assessor Cameron reported Mr Chandler had two seizures in March 2018, one associated with incontinence. He has continued to have seizures and informed Medical Assessor Cameron he has seizures associated with falls causing further injury including to his jaw.
Medical Assessor Cameron concluded Mr Chandler sustained a soft tissue injury to his cervical spine. He concluded the head injury with secondary seizures/epilepsy was not caused by the accident stating:
“It is not established that Mr Chandler sustained a traumatic brain injury because there is no medically verified disturbance in level of consciousness, no post traumatic amnesia and no brain imaging abnormality. Causation for the epilepsy with reference to the motor accident is not established because there was no traumatic brain injury and no medical reason for epilepsy to develop related to the motor accident in the absence of a significant traumatic brain injury.”

REVIEW PROCEDURE

An application for review of the medical assessment of Medical Assessor Cameron pursuant to s 63 of the MAC Act was lodged by the claimant within 28 days of the date on which the certificate of Medical Assessor Cameron was made available to the parties.[7]
[7] Section 63(7) of the MAC Act.
On 12 April 2024 the delegate of the President being satisfied there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application referred the medical assessment to the Review Panel (the Panel).[8]
[8] Section 63(2B) of the MAC Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made pursuant to Part 5 of the Personal Injury Commission Act 2020. A Review Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.[9]
[9] Rule 128 of the PIC Rules.
The review is by way of a new assessment of all matters with which the medical assessment is concerned.[10]

EVIDENCE BEFORE THE REVIEW PANEL
Police report
[10] Section 63(3A) of the MAC Act.

The police report states:
“Around 7.30a on 14/11/17 a 62 years old man was stopped at the intersection of Kyogle Road and Summerland way at Kyogle, waiting to turn left in a Subaru sedan. Whilst he was waiting to turn left another vehicle, a Honda driven by a middle aged male has collided with the rear of the Subaru. The driver of the Subaru was conveyed to hospital by ambulance and a blood sample was taken.”[11]

Accident Notification form and Personal injury claim form
[11] Claimant’s review documents p 137.

In the Accident Notification form dated 5 December 2017 Mr Chandler stated:
“As I waited to do a left turn I was hit from the rear. Police vehicle was behind this car that collided with my car causing me severe neck, shoulder and back injury. I was taken to Lismore Hospital in Ambulance.”
In the Personal Injury Claim form dated 1 May 2018 Mr Chandler identified his injuries as neck (left and right), knee (right), head (side and front) and abdomen (left).
The medical certificate completed by Dr Shane Smith dated 12 December 2017 provided a diagnosis of “muscular dysfunction”.

Post accident treating medical evidence

Ambulance report

The ambulance report stated:
“Pt stopped at intersection when hit from behind by another vehicle. OA Pt sitting on curbside with police in attendance. OE CO pain around C7 with shooting pain into forehead some pain also around C3 area initially when palpated front headache “4-5” PT refused analgesia, 30 minutes after accident still states vision not 100%. States feels pressure in his eyes. Had 2 small vomits at scene. Pt requested to travel head elevated.”[12]
[12] Insurer’s bundle p 39.
At both 8.10am and 9.18am the Glasgow Coma Score (GCS) was reported to be 15, eyes were spontaneous, Mr Chandler was verbally orientated and obeyed commands. His pupils were normal and reactive.[13]
[13] Insurer’s bundle p 43.

Lismore Base Hospital

Mr Chandler was taken on Lismore Base Hospital following the accident on

14 November 2017. The hospital describes the presenting problem as:
“MVA
Driver if stationary car, hit from behind
c/o pain in neck around C7 with associated shooting pain into forehead and blurred vision at scene
2 small vomits at scene
Hard collar placed by ANSNSW.
…
On arrival
A – own patent
B – sports sats 100% ra.
C – pink and perfused SR, normotensive
D- GCS 15
Febrile
Pain 4/10”[14]
[14] Insurer’s bundle p 72.
The triage records of Lismore Base Hospital following the accident record:
“MOI = MVA <30km/hr rear ended
Nil airbag deployed – Seatbelt insitu
ANSW = Hard Collar insitu
GCS 15 – PERL.”[15]
[15] Insurer’s bundle p 55 – 80.
The progress note reports “hit from behind at speed. Seatbelt on, head jerked forward, but nil impact with inside of car”.[16]
[16] Insurer’s bundle p 70.

Kyogle Memorial Health

A certificate from Kyogle Memorial Health details the claimant’s attendance on

14 November 2017 with a diagnosis of acute whiplash syndrome.

McKid Medical clinical notes

The past health summary incudes a past history of a cerebrovascular accident in 2005. However, the Panel notes this history is apparently incorrect and refers to the cerebral CT of 15 April 2005.
On 12 December 2017 Dr Shane Smith reported a review of whiplash injury. He reported

Mr Chandler was still getting pain in the neck and shoulder, headaches and was unable to sleep.[17] He prescribed Diazepam.
[17] Insurer’s bundle p 136.
On 29 December 2017 Dr Smith recorded constant headaches, continued neck pain, “feels lethargic and often light headed”.[18] He diagnosed whiplash-associated disorder grade 3.
[18] Insurer’s bundle p 137.
On 5 April 2018 Dr Shane Smith referred Mr Chandler to Dr Koshy George for an opinion and management of recent seizures. He reported Mr Chandler had experienced ongoing headaches and “fuzziness” since that accident in November 2017.[19] Dr Smith described the seizures as tonic clonic in nature (one with loss of continence) and a post ictal period of four to five hours.
[19] Insurer’s bundle p 146.
Dr Smith reported Mr Chandler did not have any history of epilepsy or seizure activity prior to the accident.
On 20 January 2020 Dr Smith referred the claimant to Dr Dan McLaughlin, neurologist.
Dr Smith provided a report dated 6 July 2021 in which he stated Mr Chandler started to suffer from seizures soon after the accident and, despite treatment, the seizures had continued.[20] He also stated he had no history of epilepsy or seizure activity prior to the accident.
[20] Claimant’s review bundle p 38.
In a report dated 18 April 2024 the injuries listed by Dr Smith included post traumatic seizures.[21]
[21] Claimant’s review bundle p 1.

Dr Koshy George, neurologist

In a report dated 18 April 2018 Dr George reported the claimant’s involvement in the accident on 7 November 2017.[22] Dr George reported following discharge from Lismore Base Hospital Mr Chandler came home and found blood in his left ear and had difficulty walking. She reported since the accident he had almost daily headaches predominantly on the right side and radiating towards the occipital region. His sleep was affected. In February he was having coffee with a friend when he felt unwell. He fell to the ground and was found shaking on the left side of the body. He lost consciousness for a few minutes but was subsequently fine. Dr George reported a week later when at work he fell forwards and passed out. Limb jerks were noticed on the left side of his body. He was confused following this episode. The third episode was on 3 March 2018 when he parked his car, was about to open the door when he passed out and fell onto the seat. Following this episode, he had a bad headache and could not think clearly.
[22] Insurer’s bundle p 149.
On examination on 18 April 2018 Dr George reported:
“His blood pressure was 144/83 with a heart rate of 698 per minute. His weight was 74.6kg with a BMI of 24.8. His pupils are equal and reactive. He had no ptosis. His upgaze and downgaze are normal. His conjugate eye movements are normal. His field of vision is normal. The power in the upper and lower limbs is normal. He had some pain and discomfort when extending his right knee. His Romberg’s sign is negative. His toe gait and heel gait are normal. He could not hop on the right side due to pain.”
At that time Dr George stated his impression was of post-traumatic headache and post traumatic epilepsy (focal epilepsy).
On 24 May 2018 Dr George reported a further seizure the week before. He noted the MRI brain did not show any gliotic changes on the right side and the EEG did not show any epileptic discharges or focal slowing.[23]
[23] Insurer’s bundle p 156.
On 12 September 2018 and 21 November 2018 Dr George reported Mr Chandler was having seizures every two to three weeks. On 19 February 2019 he reported seizures every six weeks and on 20 August 2019 he reported they were less frequent, one every three months. He reported headaches every day.[24]
[24] Insurer’s bundle p 84.
In a report dated 20 August 2019 Dr George diagnosed:
· focal epilepsy, probably post traumatic, although noted his MRIs were normal, and
· recurrent headaches/migraines. [25]
[25] Insurer’s bundle p 96.
On 9 January 2020 Dr George reported no seizures from August to November 2019 followed by a seizure in November and again in December.
On 19 February 2019 Dr George reported the frequency of the seizures had decreased but not completely stopped.[26] He reported the claimant had a seizure every four, five or six weeks. He has found himself on the floor and has been incontinent of urine. He reported the claimant was plagued by migraines and headaches, about four or five a week. Dr George changed the claimant’s medication regime.
[26] Insurer’s bundle p 184.

Dr Dan McLaughlin, neurologist

Dr McLaughlin reviewed Mr Chandler for his seizure management on 24 March 2020.[27] He did not express an opinion as to causation but reported the following history:
“In November 2017 his stationary car (he was the driver) was struck from behind. He understands his head struck the dashboard. He apparently was conscious soon after the accident as the police were immediately in attendance …. He got himself out of the car and was sitting by the road and vomited and then collapsed for a few minutes. He said during this time he had some awareness of what was occurring. No convulsive movements were noted. He was later assessed at Lismore Hospital and no significant problems were identified so he was allowed home. Outside this there is no history of significant head injury, prior epilepsy or family history of this condition.”
[27] Insurer’s bundle p 204.
On 24 July 2020 Dr McLaughlin reported further seizures including one in April as he was walking up steps resulting in significant dental damage. He suggested the answer was epilepsy but recommended a repeat ECG to see if a cardiac arrhythmia might produce a convulsive syncope.
On 18 September 2020 Dr Smith received a phone report from the claimant advised that over a fortnight ago he had three seizures in one day. Due to his earlier dental injuries, he had required removal of all his teeth. Dr Smith varied the claimant’s medication regime.

Dr Allen Lim, gastroenterologist and hepatologist

Mr Chandler saw Dr Lim on 4 April 2023 in respect of recurrent epigastric pain since 2017.[28]
[28] Insurer’s bundle p 315.

Gold Coast University Hospital

On 22 September 2023 Mr Chandler had a coronary angiography, an intravascular ultrasound and the insertion or two or more stents into a single coronary artery at the Gold Coast University Hospital. [29] The report concluded he had severe left anterior descending coronary artery disease.
[29] Insurer’s bundle p 320.

Cecelia Chan, optometrist

Ms Chan saw Mr Chandler on 2 February 2024. She referred him to Professor Selva Niranjan in respect of a flame haemorrhage next to the right optic nerve. [30] She reported the claimant had undergone a heart attack two months earlier.
[30] Insurer’s bundle p 315.

Imaging

Cerebral CT, 15 April 2005 – the report reads:
“The examination is within normal limits. There is slight prominence of the sylvian fissures bilaterally. The grey/white matter differentiation is normal. Ventricles appear normal. NO shift in midline structures seen. No CT evidence of CVA.”[31]
[31] Claimant’s review bundle p 151.
X-ray cervical spine, Lismore Base Hospital, 14 November 2017 – reported:
“No fracture seen. There are degenerative changes present. Disc space narrowing at C5-6.”
MRI brain and cervical spine, 8 January 2018 – the findings were reported as follows:
“Brain.
No diffusion restriction to suggest infarction or susceptibility weighted artifact to suggest haemorrhage. Grey matter/whist matter signal intensity is normal. Ventricles are normal. Normal subarachnoid space and basal cisterns. Normal MRA.
Impression
Normal examination. No evidence of mesial temporal sclerosis.
Cervical spine.
No disc lesion seen at C203. Atlanto axial joint is within normal limits.
At C3-4, no disc lesion seen neural foramina are not compromised.
At C4-5 there is minor shallow annulus tear with no significant impression on the spinal canal. No compromise of the neural foramina. Apophyseal joints are normal.
At C5-6, there is disc space narrowing and shallow posterior disc bulging. There is disc osteophyte complex narrowing the neural foramen on the right. No compromise on the left. No lesion seen C6-7 C7-T1.”[32]
[32] Insurer’s bundle p 46.
Electroencephalogram (EEG), 10 April 2018 – Dr Reid concluded:
“This is a beautifully formed absolutely normal awake and light drowsy trace. There is no seizure activity present.”[33]
[33] Insurer’s bundle p 181.
MR head, Lismore Base Hospital, 30 April 2018 – the report reads:
“FINDINGS
No abnormal restricted diffusion in the brain.
No abnormality is demonstrated in relation to the mesial temporal structures.
No signal abnormality is demonstrated in the brain.
The ventricles, subarachnoid spaces and basal cisterns are normal for age.
No surface collection or midline shift.
No abnormality in relation to the major intracranial vascular flow voids.
No signal abnormality involving the petrous temporal bones.
Minor mucosal thickening involves the sphenoid sinuses. Moderate mucosal thickening involves the rest of the paranasal sinuses.
CONCLUSION
No intracranial abnormality is demonstrated.”[34]
[34] Insurer’s bundle p 48.
EEG, 24 May 2018 – Dr George reported:
“The background shows well developed Alpha waves at 8hz and 10-30mV. These are posteriorly dominant and attenuate with eye opening. Beta activity is noted anteriorly. HV and IPS did not add any additional information. Blink, movement and myogenic artefacts are seen. No focal slowing or epileptiform discharges noted.
Normal awake EEG.”[35]
[35] Insurer’s bundle p 99.
MRI brain, 31 December 2020 – the report concludes:
“Normal MRI brain for age. No convincing evidence of mesial temporal sclerosis”.

Medico-legal reports

Dr Frank Machart, orthopaedic surgeon

Dr Machart assessed the claimant and provided a report at the request of the insurer dated

6 May 2020.[36] He reported the head injury and post-traumatic seizure were outside his area of speciality.
[36] Insurer’s bundle p 332.

Dr Leigh Atkinson, neurosurgeon

Dr Atkinson assessed the claimant at the request of his then lawyers and provided a report dated 17 July 2020.[37]
[37] Insurer’s bundle p 220.
She reported:
“In summary, Mr Chandler suffered a minor closed head injury on 14 October [sic] 2017. He was not knocked unconscious and presented a clear history of the events immediately before and after the accident. He reports some blood in the left ear and two episodes of mild vomiting at the scene. I consider it unlikely that he suffered any reversible organic brain injury. The reasons why are:
·he did not suffer a concussion;
·two Magnetic Resonance Imaging (MRI) scans of the brain were normal;
·an electroencephalogram (EEG) was normal; and
·here were no residual neurological abnormalities apart from ‘recurrent seizures’.
I conclude it is more likely that not that Mr Chandler suffers a functional neurological disorder.”
Dr Atkinson concluded that it was more likely than not that the chronic daily headaches, the “seizures” and the breakdown of his family relationships and mood changes were the result of an adjustment disorder with anxiety and depression.
She also noted the prior history of a cerebrovascular accident in 2005 for which Mr Chandler was placed on Asasantin SR, an anticoagulant. She also noted Mr Chandler continued to suffer from hypertension.

Dr Vidyasagar Casikar, neurosurgeon

Dr Casikar assessed the claimant at the request of the insurer and provided a report dated 29 September 2020. [38]
[38] Insurer’s bundle p 245
He concluded that Mr Chandler had a post-traumatic seizure following the accident on

14 November 2017. He stated the fact that the seizure occurred after some time is consistent with the history of post-traumatic seizures. He did not agree with Dr Atkinson that because the EEG was normal Mr Chandler did not have any seizures. Dr Casikar reported it is well recognised that seizure activities can occur with a normal EEG, even in people who have three to four seizures per week, about 50% of people. On the balance of probabilities, he considered Mr Chandler had a post-traumatic seizure disorder.
Dr Casikar provided a supplementary report dated 25 November 2020 where he was asked to assume that the ambulance crew on arrival made an accurate diagnosis and indicated

Mr Chandler did not have a head injury.[39] He concluded if there was no head injury the epilepsy is not due to head injury.
[39] Insurer’s bundle p 249
He also noted the diagnosis of epilepsy had not been confirmed. He suggested he required admission to an Epilepsy Unit where he could have a TeleEEG when he actually has a seizure.

Dr Donald James Wright, psychiatrist

Dr Wright assessed the claimant at the request of his then lawyers and provided a report dated 13 October 2020.
Dr Wright reported Mr Chandler described sustaining a minor head injury but no loss of consciousness in the accident. He also reported a musculoligamentous injury to the cervical spine, a soft tissue injury to the sternum and a possible right knee injury. He reported since the accident Mr Chandler had experienced recurrent severe headaches, six days a week and since March 2018 he had been having seizures.
He initially consulted Dr George neurologist. He was prescribed Keppra which was poorly tolerated and caused rashes, depression, mood swings and irritability. He eventually saw another neurologist Dr McLaughlin who prescribed Lamictal and Topamax which had helped although he continued to have headaches and occasional seizures.
Dr Wright stated Mr Chandler said he was very frustrated by the ongoing seizures which together with the headaches have led to sleep deprivation resulting in impaired concentration and focus. Mr Chandler had been unable to do his clinical work since early 2018 but attempted to keep teaching as a Professor of Naturopathy until COVID-19.
Dr Wright concluded in the aftermath of the accident Mr Chandler developed chronic headaches and possible epileptic seizures and subsequent to the development of those symptoms he developed an adjustment disorder with anxiety.

Dr Doron Samuell, psychiatrist

Dr Samuell assessed the claimant at the request of the insurer and provided a report dated

7 April 2021.[40] He suggested in using the term “functional” Dr Atkinson was intending to convey that there was no structural or organic basis to the claimant’s seizures. Dr Samuell noted there was no structural abnormality of the brain and the EEG’s were normal. However, he stated to make a psychiatric determination there needs to be not merely an absence of evidence of neurological damage but actual evidence for a psychological disorder.
[40] Insurer’s bundle p 267.
Dr Samuell found no psychological basis on which to assert that the seizures were the product of a mental health condition. He stated Mr Chandler said he was not impacted psychologically until he developed seizures. He is worried about further seizures as well as the embarrassment associated with the seizures and his physical safety, noting the significant dental injuries he sustained due to a seizure in April 2020.
Dr Samuell reported Mr Chandler had not had any psychological treatment. He concluded Mr Chandler’s mental state findings were largely normal. He concluded he did not have pervasive mood difficulties but rather a specific and focused anxiety in relation to the potential for seizures.
Dr Samuell concluded if it is accepted that the seizures were caused by the accident then the specific phobia that he has in relation to his epilepsy is similarly caused by the accident.
In a supplementary report dated 7 May 2021 Dr Samuell clarified that there was no psychological injury as a result of the accident. The psychological condition arose as a result of the seizure disorder that followed the accident.

OTHER MEDICAL ASSESSMENTS

Certificate of Medical Assessor Neil Berry

Medical Assessor Berry issued a certificate dated 21 July 2020 in which he certified the following injury caused by the accident had resolved:
· internal trauma of the abdomen.

Certificate of Medical Assessor Atsumi Fukui

Medical Assessor Fukui issued a certificate dated 10 December 2023.[41] She was asked to assess the degree of permanent impairment of the following injury:
· anxiety causing seizures.
[41] Insurer’s bundle p 356.
Medical Assessor Fukui reported Mr Chandler denied he had previously had a stroke or cerebrovascular accident, as otherwise reported.
She reported after the accident on 14 November 2017 Mr Chandler had pain in his abdomen, neck and back as well as his right knee. He was taken by ambulance to Lismore Base Hospital. He was off work for about two months and returned to work in January 2018. She reported he had some anxiety and worry about his physical injury following the accident. In February 2018 he had his first seizure and was referred to a neurologist.
Medical Assessor Fukui reported he had been diagnosed with epilepsy. Since suffering seizures Mr Chandler had started to worry more about his work and his future. She reported he became irritable as he was on many antiepileptic medications and suffered side effects. Medical Assessor Fukui reported Mr Chandler did not report any psychological symptoms other than worrying about his epilepsy and the adjustments to his lifestyle.
Medical Assessor Fukui certified the injury “anxiety causing seizures” was not caused by the accident. She noted:
·anxiety does not cause seizures, and
·there is no anxiety disorder or any diagnosable psychiatric disorder related to the accident.

Articles referenced by Mr Chandler
Epilepsy, depression and anxiety

The fact sheet from Epilepsy Action Australia states people with a history of depression are four to six times more likely to develop epilepsy.[42] This is said to be “because the genetic or biological factors that cause both epilepsy and depression sometimes present as unexplained feelings of sadness before the first recognisable seizure”. It is said if untreated this makes the onset of epilepsy more likely.
[42] Epilepsy Action Australia, Fact Sheet: Epilepsy, Depression and Anxiety; Relationship between Epilepsy and Anxiety Disorders[43]
[43] Hingray, McGonigal, Kotwas, Micoulaud-Franchi, The Relationship Between Epilepsy and Anxiety Disorders, Current Psychiatry Reports Vol 2019; type="1">
The article suggests that anxiety symptoms are of three types; preictal (preceding a seizure), ictal (presenting as part of the seizure symptoms and signs) and postictal (occurring within 72 hours of a seizure). It is suggested that anxiety can be a trigger for seizures.

SUBMISSIONS

Mr Chandler provided detailed submissions dated 9 May 2024.
Mr Chandler relies upon the following to assert the diagnosis of focal epilepsy was caused by the accident:
(a)    the lack of any pre-accident history of epilepsy or seizure activity;
(b)    the ambulance report documented pain around C7 and also C3 with shooting pain into the forehead following the accident;
(c)    the ambulance report documented that his vision was still not 100% 30 minutes after the accident;
(d)    he vomited at the scene;
(e)    at Lismore Base Hospital he complained of pain in the C7 area shooting into his forehead;
(f)    blood discharge from the right ear was mentioned at his first visit to Kyogle Hospital when he saw Dr Smith and another doctor on 14 November 2017;
(g)    at the time of his second consultation with Dr Smith he referred Mr Chandler for further investigations including an MRI of the head;
(h)    neurologists Dr George and Dr McLaughlin both diagnosed the condition as post traumatic epilepsy; and
(i)    neurosurgeon Dr Casikar, diagnosed a post-traumatic seizure and stated the fact that the seizure occurred after some time is consistent with the history of post-traumatic seizures. Dr Casikar also stated seizure activity can occur with a normal EEG and occurs in about 50% of people.
Mr Chandler asserts the ambulance report is erroneous. He notes it is in the name of James Chandler and cannot be changed although the Ambulance Service has acknowledged the error. He also states he was in and out of consciousness whilst he was transported to Lismore Base Hospital, 50km from the scene of the accident. Mr Chandler asserts he was taken to Lismore Base Hospital due to the seriousness of the injuries sustained and did not know where he was or what had occurred when he arrived.
Mr Chandler disputes the insurer’s assertion that he first sought medical help three weeks after the accident. He was assessed by his GP Dr Smith at Kyogle Hospital on the date of the accident and the next available appointment he could get with Dr Smith was on

12 December 2017.
Mr Chandler asserts his severe headaches continued after the accident and in February 2018 he started having seizures, however, he had to wait for an appointment with Dr Smith who immediately referred him to Dr George, neurologist and suspended his driver’s licence.
Mr Chandler states the medico-legal specialists had an incorrect history when they asserted he had suffered a cerebrovascular accident (stroke) in 2005. Mr Chandler states he did not suffer a stroke. In 2005 he fell whilst dehydrated and his partner insisted he see a doctor. On the referral from his doctor Mr Chandler underwent some tests including a CT scan of the head which confirmed no sign of a cerebrovascular accident. That history in the notes of

Dr Smith is a mistake. Mr Chandler states Dr Smith has acknowledged it is a mistake.
As to whether he made any complaints of psychological symptoms from the date of the accident until the diagnosis of focal epilepsy in April 2018 Mr Chander submits he expressed his serious concerns about the physical, financial, emotional and psychological impacts caused by the accident to Dr Smith, Dr James Duffy, Dr George and Dr McLaughlin.

Mr Chandler asserts Dr Smith prescribed Valium but due to side effects it was replaced by other medications on 12 December 2017.

Insurer’s submissions

The insurer provided submissions dated 1 July 2021.[44] The insurer submits the diagnosis of focal epilepsy causing seizures is unrelated to the accident.
[44] Insurer’s bundle p 287.
The insurer notes the ambulance report and the GCS scores of 15 at 8:10am and 9:18am on the day of the accident. The insurer notes there was no investigation of the head/brain at Lismore Base Hospital following the accident.
At the time of the initial attendance on Dr Smith on 12 December 2017 there was no mention of headaches over the right temporal region or blood discharge in the right ear.
The diagnosis of focal epilepsy was made in April 2018, five months after the accident.
The MRI of the brain of 8 January 2018 was normal.
Dr Atkinson did not believe the claimant sustained a “cerebral concussion of any organic brain injury”.
The insurer provided submission in response to the application for review dated

28 February 2024 and on 1 May 2024.[45]
[45] Insurer’s bundle p 369
The insurer asserts the findings of Medical Assessor Cameron were open to him on the medical evidence and the claimant did not sustain a head injury in the accident.
The insurer submits the findings of Medical Assessor Cameron was consistent with the opinion of Dr Leigh Atkinson. The insurer also relies upon the opinion of Medical Assessor Fukui.
The insurer asks that the dispute be assessed on the papers based on the documents provided.

MEDICAL EXAMINATION

Mr Chandler was assessed by Medical Assessor Adeline Hodgkinson and Medical Assessor Sophia Lahz on 5 July 2024.
At the commencement of the interview, the medical assessors introduced themselves to

Mr Chandler and explained the purpose of the assessment. It was explained that whilst the Panel was aware that he was claiming numerous physical injuries from the motor accident, the Panel’s task would be confined to the assessment of whether the accident had resulted in a traumatic brain injury.
Mr Chandler is aged 68 and right-handed. He is a practitioner in Ayurvedic Medicine and has operated a clinic in Byron Bay for 25 years. He is also an Ayurvedic teacher. He is currently single and living in Kyogle, with supportive friends taking it in turns to stay with him.
He told the Medical Assessors that at the time of the accident on 14 November 2017, he had been working six days per week. Typically, he taught his craft from 8am to 3.30pm and would then do a late afternoon clinic. He had also been living with his former partner and two school-aged children (13,16) in Kyogle when the accident happened. Mr Chandler said due to irritability caused by pain and by Levetiracetam, together with the stresses of frequent seizures, his relationship broke up after the accident.

Mr Chandler reported no personal history of epileptic seizures before the accident. There is no family history of seizures nor is there a family history of dementia. He is a lifelong non-smoker, non-drinker and vegetarian who regarded himself as having been in excellent health before the accident. He also wished to draw to our attention that contrary to some of the documents, he had never suffered any stroke predating the accident. He said there had been an episode due to dehydration a few years ago, and that a CT brain at the time had been normal.
Mr Chandler confirmed his involvement in the accident. At the time, he was a restrained driver, waiting to turn left into a mechanical workshop when a large 4WD “rammed” the rear of his vehicle which was later written off. Immediately afterwards, he noted an inability to turn his neck as well as pain in the knee and chest (due to impact with the gear lever). He does not specifically recall if he hit his head. Fortuitously, a police car was immediately behind his car when the incident occurred.
He told the Medical Assessors that he was assisted from the vehicle, having had difficulty opening the car door, and was then able to walk around with difficulty. He said he vomited at the scene a few times.
The ambulance took him from Kyogle to Lismore Hospital, a 45 minute journey. He said he had no recall of being in the ambulance but was told he was confused and uncertain of what was happening, reportedly asking several times what had happened and where they were going.
The Medical Assessors checked the ambulance report immediately after the accident, noting he was not given any medications. He was offered analgesia although he declined this. The Glasgow Coma Score (GCS) was 15/15 on two occasions.
He reported feeling very “groggy” at Lismore Hospital. There was neck pain and he underwent plain X-rays of the neck whilst the nurse (and later the doctor) recommended that he take Paracetamol. He was unhappy with the treatment given at Lismore, which he said was not thorough. The doctor “tapped” his knee and said it was fine. He said that he didn’t feel right and he just wanted to leave in order to find the necessary help elsewhere.
Before leaving the hospital (just a few hours after his arrival), he said he fell over due to knee problems, and was put temporarily on a trolley. Afterwards, he limped out of the Emergency Department and waited near a roundabout for a taxi. Fortunately, a friend was passing by, collected him and took him home. He was unhappy that his condition was not properly checked at Lismore in the busy Emergency Department.
Subsequently, he continued feeling unwell whilst also noting the presence of blood in his ears and mouth. He went to Kyogle Hospital, a much smaller hospital, where his GP was working. There, he complained of neck pain with headaches and was diagnosed, he said with “severe whiplash”. He explained that he was prescribed Valium to help sleep. Again, he was only there for several hours.
Ongoing, he was plagued by severe “pulsating” headaches and neck pain. There was visual disturbance causing difficulty with using a computer screen. He also complained of knee and chest wall/rib pain.
He was later diagnosed with a splenic subcapsular haematoma, which he attributes to the impact with the gear stick. The splenic injury was non-operatively managed. He said too that there was a rupture of the “costal ligament”.
Subsequently, he took two months off work due to ongoing neck, knee and head pain. On returning to work, he decided to just teach and no longer saw clinic patients because he was “not thinking right”. He was concerned about reduced memory and frequent migrainous headaches. There was also persistent abdominal pain and difficulties weight bearing on the right leg. He struggled even with teaching and asked to junior colleagues to step in to assist him.
Dr Smith his GP prescribed Valium and then “something else” for symptomatic relief. In addition, he took some of his own Ayurvedic treatments, containing Brahmi, iron and vitamin C, other vitamins and antioxidants.
In February 2018, he suffered an epileptic seizure whilst teaching. He said he had no idea what happened, other than to say, “the lights went out” and he collapsed without warning. The episode was associated with urinary incontinence, and for a short time after the episode, he felt groggy and unable to properly get his words out.
He wanted to see his GP immediately although there was (he said) a long waiting list. Over the next few days, there were two further seizures, several days apart. One of these occurred whilst he was simply fetching an item from his car, never to return. A friend found him “out to it” and for the rest of the day he felt drowsy and out of it.
He was able to see the GP the following week, who referred him to Dr Koshy George a neurologist on the Gold Coast.
He has undergone MRI brain scans all of which were reportedly unremarkable. He has also undergone three EEG’s which reportedly have not demonstrated any epileptiform activity.
Mr Chandler explained that he saw Dr George for approximately two years, and was prescribed many anticonvulsant medications, unfortunately having no effect on the seizures. He continued losing consciousness due to seizure activity every three to four weeks, despite treatment with Keppra (initially), Topamax, Fycompa, Briviactin, Perampanel and Lamictal. He was also treated with Endep for headaches and Mirtazapine for mood and sleep issues.
Mr Chandler reported that there were adverse effects with many of the medications, for example, Keppra caused aggression.
Due to lack of improvement, his GP then sent him to Dr McLaughlin, a neurologist with expertise in epilepsy, whom he still sees, most recently a few days ago. Dr McLaughlin decided to serially wean the numerous medications due to side effects and lack of benefit.
Seizures have more or less continued to occur every few weeks aside from a brief reprieve for a three month period. The most recent seizure occurred the day before this assessment. He likens all seizure episodes to a sudden onset of “lights out” and he then awakes feeling groggy (“in LaLa land) with “froth” in his mouth. He is also often incontinent of urine.
Mr Chandler reports multiple falls (inclusive of down stairwells and on hard concrete surfaces) from seizures, causing various physical injuries, namely to both knees, jaw and dentition.
He explained too that there had been a seizure at Robina Shopping Centre following which he awoke minus his phone and wallet. Consequently, he does not go out now unless someone is with him and he spends much time at home.
He is currently reliant on two crutches (since 2019) and told the Medical Assessors that there are meniscal tears in both knees.
Dr McLaughlin has just tapered the Topamax (ceased yesterday) and he has commenced on Lacosamide currently 100 mg twice daily. Mr Chandler is taking another antiseizure medication although he could not remember the name of this. He thought the latter medication was not Epilim, Keppra, Lamictal or Tegretol (which are the most common antiseizure medications). However, subsequently, on 7 July 2024 Mr Chandler provided the Commission with photographs of his current antiseizure medications which are Lacosamide (known as Vimpat) and Lamotrigine (also known as Lamictal).
According to Mr Chandler, most (90%) of the seizures have been witnessed although the most recent seizure yesterday occurred whilst he was sitting on his bed. He can’t remember what he had been doing beforehand.
Due to frequent seizures, he cannot drive, go swimming, use electric tools or safely leave the house on his own. He continues working in a very limited fashion (2 x 2.5 hours per week) as a teacher although this is very difficult. It is also very difficult due to lack of local public transport for him to travel from home in Kyogle to work at Byron Bay.
He reports memory difficulties, ongoing head and neck pain (now associated with numb right index/middle fingertips) and difficulty with cognitive focus. He also reports regular “loss of words”.
He is not on any medications for headache prevention nor for acute management of headache symptoms.
He has never been referred to any brain injury rehabilitation service, and he has not undergone a formal neuropsychological assessment.
He explained that he is financially strapped though unable to obtain benefits from Centrelink because he has a farm growing ayurvedic medical products and herbs.
His friends have been assisting him with financial matters for the last 18 months, because he said that he would sometimes overpay a bill by adding a “zero”.
He is heavily reliant on two friends, sisters, who have been taking it in turns to help him with meals and chores. He also needs some help with personal care, reporting that due to bilateral knee pain he is now unable to climb out of the bath. He told the Medical Assessors that his friends do not permit him to touch the gas stove because he tends to leave it on. Also, when he is cooking, he is forgetful and the food burns.
In October 2023, he suffered a myocardial infarction (heart attack) requiring placement of coronary artery stents. Subsequently, he has been prescribed Ramipril 5 mg mane, Rosuvastatin, Aspirin, Clopidogrel and Anginine. He said he also tried medicinal cannabis oils although he detested the taste so ceased taking it.
For neck and head pain, he has received physiotherapy and chiropractic interventions. His neck is still sore with proneness to lock up.
He told the Medical Assessors that he felt he was not properly assessed by the insurers’ doctors whom he said conducted brief examinations and had not listened to his complaints. He expressed the hope that he would be treated fairly and thanked both assessors for having listened closely to his symptomatic complaints.
On examination, the Medical Assessors observed that he was a tall man with mild central adiposity. He looked somewhat older than stated age. He appeared quite disabled, hobbling about on two crutches.
He was cooperative and pleasant throughout the clinical interview and examination. He had difficulties recalling his medications.
His pulse was 63 (regular) and blood pressure (BP) measured on several occasions with the following results: Left arm SBP 189, Right arm 172/94 and a few minutes later 163/92).
On the MoCA (Montreal Cognitive Assessment), he scored 22/30 (which is an abnormal score) with obviously slowed mentation. He eventually performed the trail making test correctly although he required prompting. On the clock face, he omitted several of the numbers although he could set the hands to a specified time. Short term memory was impaired, with recall of three words after five minutes. He could perform serial sevens accurately but slowly. There were some difficulties with accurate repetition and his verbal fluency was also poor with reduced spontaneous generation of words commencing with a designated letter. He was fully oriented to time and place. There were also difficulties with abstraction, for example, he was unable to provide the most obvious answer to how, for example, a train and bicycle were similar (just stated that they “move”) and how a watch and ruler were similar (“nothing”).
There was no (upper limb) pronator drift. Rapid alternating hand movements and finger nose testing were bilaterally slowed. There was mild intention tremor on right-sided finger nose testing. The instructions for the abovementioned coordination tests required repetition because he had difficulty following them initially.
Upper limb reflexes were generally depressed (all 1+). Visual fields were full to confrontation and extraocular movements full. There was no nystagmus. He reported subjective reduction in olfaction (smell) although this was not formally assessed. He was able to stand briefly on the left leg but not the right due to knee pain. Glabellar tap was normal and palmomental reflexes were bilaterally absent.
The Medical Assessors reviewed the images of the MRI brain of 30 April 2018. There were no traumatic findings although there were numerous white matter intensities (unreported) which the Medical Assessors ascribed to microcerebrovascular disease.

DIAGNOSIS AND CAUSATION

Mr Chandler presented in a genuine, straightforward manner.
He reported a brief period of confusion after the accident during ambulance transfer from Kyogle to Lismore Hospital. The available ambulance report does not document any confusion and of note GCS was reportedly 15 on two occasions. Based on the history

Mr Chandler gave, he did not receive a thorough medical assessment at either Lismore or Kyogle Hospitals, given that both facilities were dealing with cases which were deemed more urgent. Unfortunately, no assessment of post-traumatic amnesia was undertaken such as the AWPTAS (Abbreviated Westmead Post-Traumatic Amnesia Scale).
Of note, he was later found to have a splenic haematoma, indicating that there were significant forces imposed to his body by the accident.
He also reports the presence of blood in his mouth and ears after the accident although again, this was not recorded in the medical documentation, probably for the reasons provided above.
When he was assessed on 5 July 2024 Mr Chandler demonstrated signs and symptoms of at least mild cognitive impairment with slowed mentation, reduced verbal fluency, poor memory and executive dysfunction with abnormal score on the MoCA 22/30. Whilst he appeared cooperative and to try his best, it is not possible to make any objective assessment of effort on a MoCA. The impaired score on the MoCA correlates with the history he provided (assuming this is accurate) of (cognitive) difficulties with cooking and financial management.
Mr Chandler has established vascular disease as evidenced by recent myocardial infarction with significant stenosis of the left anterior descending coronary artery requiring coronary stenting and antiplatelet therapy. He is also significantly hypertensive, based on the readings at our assessment inclusive of a systolic reading of 192. He reported that the usually measured systolic BP is around 145. The MRI of the brain of 31 December 2020 shows evidence of white matter changes consistent with microcerebrovascular disease. Vascular disease is a risk factor for cognitive impairment especially if blood pressure remains poorly controlled.
There was no history of seizure disorder before the accident. Three months after the accident, Mr Chandler suffered an initial seizure with ongoing, very frequent seizures ever since, which have proven resistant to myriad antiseizure medications. The presence of an uncontrolled seizure disorder will also be associated with cognitive decline.
Investigations to date are not sufficient to diagnose continuing cognitive decline, the presence of a dementia or another cause.

In Briggs v IAG Limited t/a NRMA Insurance Wright J reminded us that the relevant legal test in relation to causation does not require scientific certainty.[46] His Honour stated at [70]-[72]:
“70. This reasoning does not accord with the relevant legal test in relation to causation, which does not require scientific certainty. In Metro North Hospital and Health Service v Pierce[2018] NSWCA 11, the Court of Appeal said, in relation to causation in a similar context, as follows at [138] (White JA, Macfarlan and Payne JJA agreeing):
‘138 Whether the Hospital’s negligence in not responding to the induced seizures in a timely manner materially contributed to Ms Pierce’s worsened condition is not to be determined on the basis of scientific certainty, but on the balance of probabilities. As Spigelman CJ said in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262; [2000] NSWCA 29 at [143]:
‘An inference of causation for purposes of the tort of negligence may well be drawn when a scientist, including an epidemiologist, would not draw such an inference’.”
[46] Briggs [2022] NSWSC 372.
The Panel notes the definition of causation and is satisfied the mechanics of the accident where Mr Chandler’s vehicle was “rammed from behind” could cause a mild traumatic brain injury. Where the relevant legal test in relation to causation does not require scientific certainty the Panel finds the accident did result in the occurrence of a mild traumatic brain injury notwithstanding the definition set out in cl 1.164 of the Guidelines for the assessment of cerebral impairment. Based on the history provided, there was a significant amnestic period and of note, the ambulance officers did not administer any sedative/analgesic medications at the scene.
The normality of the initial GCS score, serial MRI brain scans and EEG studies does not invalidate the occurrence of a traumatic brain injury, especially a mild severity injury.
Cognitive impairment of this degree is not consistent solely with a mild traumatic brain injury (TBI). A mild TBI without radiological changes may result in initial subtle cognitive changes with full recovery expected typically within three months.
The onset of a seizure disorder attributed to the TBI links the cognitive decline to the initial injury. The frequency of the seizures increases the likelihood of cognitive decline.
It is well established that the more severe a traumatic brain injury, the greater the incidence of post-traumatic seizures. It is also well known that post-traumatic seizures may have onset months or even years after the inciting brain trauma. A mild traumatic brain injury can be complicated by a seizure disorder in 2-17% of cases, in the Medical Assessors’ clinical experience. Neurological opinion has diagnosed Mr Chandler as having a convincing history of a seizure disorder. The Panel acknowledges that the labelling of his epileptic condition as post-traumatic by treating neurologists appears to have occurred in the absence of other explanations for the development of a seizure disorder.
It is our medical responsibility regardless of our role as assessors to draw attention to his poorly controlled BP at the time of interview and the evidence of cognitive decline requiring further assessment and treatment.

ASSESSMENT OF PERMANENT IMPAIRMENT

According to cl 1.160 of the Guidelines, the Medical Assessor must select the highest rating from categories 1-4, namely aphasia or communication disorders, mental status and integrative functioning abnormalities, emotional and behavioural disturbances, disturbances and disturbances of consciousness and awareness (permanent and episodic).
In Mr Chandler’s case, there is poorly controlled epilepsy, an episodic disturbance of consciousness and awareness.
Referring to Table 5, page 143 of the AMA 4 Guides, he meets the criteria for the category specified: “paroxysmal disorder that interferes with some activities of daily living” e.g. driving, with discretionary range of 15-29% whole person impairment (WPI). The Panel deems 20% WPI for poorly controlled seizure disorder given the seizures remain poorly controlled despite numerous anticonvulsant medications more than six years post injury.
There is no deductible proportion for any relevant pre-existing condition.

CONCLUSION

The Panel revokes the certificate of Medical Assessor Cameron dated 17 December 2023 and issues a new certificate determining that the following injuries were caused by the motor accident and give rise to a WPI which is greater than 10% and is 20%:
· mild traumatic brain injury causing seizures.

[2024] NSWPICMP 502

26 July 2024