Jackett and Comcare
[2005] AATA 1031
•19 October 2005
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2005] AATA 1031
ADMINISTRATIVE APPEALS TRIBUNAL )
) No N2004/855
GENERAL ADMINISTRATIVE DIVISION ) Re PETER JACKETT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Senior Member M D Allen;
Dr I Alexander, MemberDate19 October 2005
PlaceSydney
Decision The decision under review is affirmed. (Sgd) M D Allen
..............................................
Presiding Member
CATCHWORDS
WORKERS’ COMPENSATION – Applicant assaulted on his way home from work – whether Applicant has permanent impairment resulting from “cognitive disturbance” – Applicant had history of headaches prior to the assault as well as psychiatric disabilities including cognitive impairment – decision under review affirmed.
Safety, Rehabilitation and Compensation Act 1988 sections 14, 24, 27
REASONS FOR DECISION
19 October 2005 Senior Member M D Allen
Dr I Alexander, Member1. By application made the 9th day of July 2004, the Applicant sought review of a reviewable decision which affirmed a prior determination of 24 November 2003 refusing his claim for compensation for permanent impairment arising from what was described as “cognitive disturbance”.
2. The substance of the Applicant’s claim is that following an assault upon him at Mt Druitt Railway Station on 4 October 1996 whilst he was on his way home from employment with the Australian Bureau of Statistics, he now suffers from headaches, a loss of short term memory, a lack of motivation and a shortness of temper.
3. On 28 October 1996 the Respondent, pursuant to section 14 of the Safety, Rehabilitation and Compensation Act 1988 (“the SRC Act”), accepted a claim for “left eye and head laceration and bruised right temporal sustained 4 October 1996”. It will be noted that that determination did not refer to the specific complaints made by the Applicant in his claim for permanent impairment benefits.
4. Immediately after the assault, the Applicant was taken to Mt Druitt Hospital by his partner. The clinical notes of that hospital’s emergency department note that the Applicant did not suffer any loss of consciousness as a result of the assault.
5. On 8 October 1996 the Applicant attended the Plumpton Medical Centre. The clinical notes of that centre read inter alia that the Applicant did not give a history of loss of consciousness following the assault and raised the possibility of a CT scan if the Applicant’s headaches became worse. On 12 October 1996, the notes of Plumpton Medical Centre give a history of “headaches better”.
6. Following the assault, the Applicant was seen by Mr Orme Psychologist, as part of his rehabilitation program instituted by his employer. In a report dated 22 October 1996, Mr Orme states:
“According to Mrs Jackett however since the assault her husband had been easily confused and suffering chronic headaches. He was also experiencing considerable anxiety and mild to moderate confusion on occasions particularly when driving…
I assessed Mr Jackett as suffering from an Acute Stress Disorder with symptoms of mild traumatic stress including loss of appetite, confusion, some nightmares, increased startle response and anxiety…”
7. A later report by Mr Orme dated 5 December 1996 states inter alia:
“As you are aware, on 25 November 1996 a final review was undertaken with Mr Jackett through a work visit. He explained that his symptoms of traumatic stress have resolved to a large extent however he is some what hyperalert and hypervigilant whilst travelling on trains…
It was agreed that Mr Jackett’s (sic) is managing satisfactorily and that his symptoms have resolved…
Clearly he has progressed well and returned to work with minimal difficulty. Early intervention in this case has been effective in dealing with a situation which could easily of (sic) worsened particularly as Mr Jackett had a long history of agoraphobia and his symptoms were exacerbated by the assault…”
8. Document T20 in the documents prepared for the Tribunal pursuant to section 37 of the Administrative Appeals Tribunal Act 1975 (“the AAT Act”), is a report by Dr Cook, Psychiatrist, to the Applicant’s solicitors. In that report Dr Cook states:
“Mr Jackett has been a patient of mine since 1993. I have been treating him for a depressive illness. In October 1996 Mr Jackett was reportedly assaulted by 3 others at Mt Druitt Railway Station and during the assault suffered mild head injuries.
Mr Jackett has evidence of residual memory dysfunction most likely as a result of his assault. He reports difficulty in passing one of the subjects in a TAFE Course in Information Technology. He failed this last year and is repeating the exam this year.
In May 1998 I ordered an electroencephalogram EEG on Mr Jackett. This showed an abnormality greater on the right from the left. This would explain some of the memory and learning difficulties Mr Jackett reports.
I feel that Mr Jackett needs a full neuropsychological assessment in order to document the deficits that he reports and to assist in any claims that Mr Jackett is entitled to make…”
It would seem however, in that report that Dr Cook does not state that the abnormality revealed by the electroencephalogram EEG is attributable to the assault.
9. In a report dated 15 October 2001 Dr Morse, Psychiatrist stated:
“I would currently make a diagnosis of adjustment disorder with depressed mood, i.e., the stress of the assault and the problems and difficulties following it are causing this depressed state…
…An MRI scan showed non-specific abnormalities, probably of ischaemic origin. It is difficult to understand how the assault could have caused the brain damage leading to these cognitive difficulties. He has a clear memory of events up to the assault, a full memory of events during the assault, did not lose consciousness and there is no post-assault loss of memory…
The MRI really does not give any indication of traumatic brain damage…”
In a letter directed to the Applicant’s solicitors Dr Morse stated:
“In my opinion Mr Jackett appears to have suffered a permanent impairment of his cognitive functioning since the assault.”
10. The Applicant was referred to Neuropsychologist Arthur Shores PhD for neuropsychological assessment. Part of Dr Shores’ history is not correct as he refers to the Applicant not being aware until he was present in court that he had been assaulted by three men, yet the Applicant’s statement to the police shortly after the assault states that the Aboriginal male who assaulted him was accompanied by two other Aboriginal males.
11. At paragraph 5.1 of his report Dr Shores states:
“The history to hand suggesting a brief period of amnesia associated with the assault is consistent with Mr Jackett having suffered a ‘Mild’ traumatic brain injury. There is apparently EEG as well as MRI brain scan evidence of abnormalities that would support such a diagnosis. The strength of this evidence in support of the diagnosis of a mild traumatic brain injury should be commented upon by a Neurologist. As Dr King appears to have had involvement in this case he would be an appropriate expert.”
As stated above, the history of amnesia is not correct.
12. The Applicant was not referred to Dr King following Dr Shores’ report.
13. Dr King however had seen the Applicant on 21 and 28 March 2000. In a report to the Applicant’s treating Psychiatrist Dr Cook, Dr King states:
“An EEG done on 28/3/2000 was normal. The background consisted of posterior moderate amplitude 9Hz symmetrical alpha. Hyperventilation and photic stimulation evoked no abnormalities. I arranged an MRI which showed some punctata areas of high signal intensity in the posterial right frontal lobe. These were thought to represent areas of gliosis, possibly ischaemic in origin. Blood count, biochemistry, TSH and B 12 were normal.
It is difficult to know whether there has been developmental delay during his childhood or whether his educational problems may simply have been as a result of his deafness. He certainly seems to be performing reasonably well at the moment and so I would assume most of it was from his deafness. With the severity of his head injury, one would not expect any cognitive deficits and it is much more likely that any reported memory problem is on the basis of pre-existing disease and/or his psychiatric condition. We have searched carefully for any underlying reversible factor and there are none. The MRI abnormalities are non specific and they may have been caused by a previous viral illness or problems associated with the perinatal period.
His headaches have features of tension headache and migraine. Prompt treatment with analgesics should be useful.”
14. Although not referred to Dr King, the Applicant was referred by his solicitors to Neurosurgeon Dr Bleasel. In a report dated 1 December 2004, Dr Bleasel states:
“Judging from the history and the information in the various reports I believe that but for the assault he would be in a much happier frame of mind and would be still in employment. His activities of daily living have been severely affected.”
15. In a later report dated 1 February 2005, Dr Bleasel refers to the Applicant having had post traumatic amnesia. This is to be contrasted with the reports of Mt Druitt Hospital and Plumpton Medical Centre which record no loss of consciousness.
16. Dr Bleasel goes on to opine that the assault resulted in organic cognitive disorder.
17. Cross-examined, Dr Bleasel conceded that he was not familiar with the tests carried out by psychologists and that in the case of Dr Shores’ neuropsychological assessment, he was dependent upon Dr Shores’ opinion as expressed in his report.
18. Further, Dr Bleasel conceded that he did not obtain from the Applicant a full history of his previous alcohol consumption patterns and admissions to hospital.
19. The Applicant was cross-examined as to his previous history. He admitted that he had left school at grade 8 level and had obtained unskilled work, first in a bicycle factory and then in an engineering shop. At around age 16 or 17, he consulted Psychiatrist Dr Retalick. Later, he informed Dr Cook that at around that time he began to drink alcohol, often becoming violent and picking fights in hotels as a result of his alcohol consumption.
20. In 1979 the Applicant was admitted to Bexley Private Hospital by Dr Retalick and prescribed Tryptanol for depression. Subsequently, he overdosed on Tryptanol (or Seropax) and was admitted to Canterbury Hospital.
21. Questioned regarding headaches, the Applicant conceded that he had sought medical treatment for headaches prior to the assault.
22. The Applicant also conceded that whilst working as a courier before the assault, he was having difficulties with that work if it involved driving in the city. He found he could not get motivated to go into the city. He had told Dr Cook that since stopping work as a truck driver he had lost energy and was having problems with his sleep. When he later obtained work however, his symptoms abated.
23. Dr O’Neill, Neurologist, examined the Applicant on behalf of the Respondent. The history he obtained did not state that the Applicant had lost consciousness following the assault and there was no history of ongoing headaches after the assault. He noted that the Applicant had a long history of pre-existing headaches. He concluded that on the balance of probability there was no correlation between the assault and any ongoing symptoms experienced by the Applicant.
24. In his report of 3 May 2005, Dr O’Neill, after reviewing prior medical reports and clinical notes stated:
“It is extremely clear that Mr Jackett sustained a very mild closed head injury in the assault on 4 October 1996 and that this is not the type of head injury which would be expected to result in any permanent impairment of the brain.
It is also clear that prior to the mild head injury of 4 October 1996, Mr Jackett had a long history of psychiatric problems which required medication. He also had a pre-existing history of headache. Not unexpectedly, the aforementioned complaints have continued to the present time.
As might be expected, the MRI brain scan of 25 March 2000, did not reveal evidence of post-traumatic gliosis. The EEG undertaken by Dr King in 2000 was normal.
The quantitive EEG undertaken by Mr Anderson in 1998 is not used in routine clinical practice. The findings were certainly non-specific…”
This opinion is consistent with that of Dr Morse who stated:
“At this stage I am unable to state that any cognitive impairment is secondary to brain damage due to the assault”.
25. The Applicant himself conceded in cross-examination that the problems of which he was complaining did not emerge until about a year after the assault and at a time when he was unemployed.
26. We agree with the opinion of Dr O’Neill that whereas the Applicant did suffer a closed head injury, it is not possible to say that it led to any ongoing disabilities or impairment.
27. The Applicant’s prior history makes it clear that he has had psychiatric disabilities prior to the assault including cognitive problems and agoraphobia. The problems of motivation and ability to concentrate were exacerbated during periods of unemployment and the Applicant is currently unemployed.
28. Contrary to the history taken by Dr Bleasel, the Applicant did not lose consciousness as a result of the assault and the reports of Psychologist, Mr Orme make it clear that he returned to work with no ongoing symptoms. As conceded by the Applicant himself, he had sought medical treatment for headaches prior to the assault.
29. Although Dr Cook is the Applicant’s treating psychiatrist and states in his report in 1999 that the Applicant has evidence of residual memory dysfunction most likely as a result of his assault, he gives no reason for that opinion and was not called in these proceedings.
30. As pointed out in the report of Dr O’Neill, the MRI scan and the EEG resulted in non specific findings. Given the total history of the Applicant, we are not satisfied on the balance of probabilities that any impairment currently suffered by him is as a result of the assault on 4 October 1996 and the decision under review is therefore affirmed.
I certify that the 30 preceding paragraphs are a true copy of the reasons for the decision herein of Senior Member M D Allen and Dr I Alexander, Member
Signed: E.Pope .....................................................................................
AssociateDate/s of Hearing 20 July 2005 and 10 October 2005
Date of Decision 19 October 2005
Counsel for the Applicant Mr G Niven
Solicitor for the Applicant Napier Keen
Counsel for the Respondent Mr G Elliott
Solicitor for the Respondent Phillips Fox
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