Kormany and Military Rehabilitation and Compensation Commission
[2007] AATA 1609
•31 July 2007
Administrative Appeals Tribunal
DECISION AND REASONS FOR DECISION [2007] AATA 1609
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q 200700071
VETERANS' APPEALS DIVISION ) Re LIANE THERESE KORMANY Applicant
And
MILITARY REHABILITATION AND COMPENSATION COMMISSION
Respondent
DECISION
Tribunal Deputy President P E Hack SC and Dr J B Morley RFD, Member Date31 July 2007
PlaceBrisbane (heard in Cairns)
Decision The Tribunal affirms the decision under review.
...............Signed...............
Deputy President
CATCHWORDS
VETERANS’ AFFAIRS – compensation – conditions present at time of decision – whether conditions were attributable to anaesthetic administered during dental treatment provided by Navy – whether injury under SRC Act was an unintended consequence of medical treatment paid for by the Commonwealth – pseudo seizures and headaches not attributable to dental treatment – decision under review affirmed
Military Compensation Act 1994
Safety, Rehabilitation and Compensation Act 1988 – ss 6A, 14, 16, 19, 24, 27
Canute v Comcare (2006) 80 ALJR 1578
REASONS FOR DECISION
31 July 2007 Deputy President P E Hack SC and Dr J B Morley RFD, Member Introduction
1.The applicant, Mrs Liane Kormany, seeks a review of the decision of the Military Rehabilitation and Compensation Commission made on 13 December 2006. By that decision the Commission affirmed on reconsideration its earlier determination of 16 July 2005 that:
(a)revoked part of a determination dated 7 July 1995 that accepted liability for an ailment described as “left cerebral thrombosis condition”;
(b)found that Mrs Kormany no longer suffered from epilepsy but suffered from pseudo seizures, a condition for which liability had not been accepted; and
(c)found that Mrs Kormany’s “headaches” condition was related to a cervical spine condition and/or analgesic overuse, conditions for which liability had not been accepted.
2.Despite the width of the decision made by the Commission the issues that we have to decide are twofold – what condition/s did Mrs Kormany suffer from at the date of the decision and were those conditions attributable to Mrs Kormany’s service in the Royal Australian Navy Reserve (the Reserve). In the context of the case the real issue, so far as the latter question is concerned, is whether Mrs Komany’s condition was the result of the administration of a local anaesthetic as part of dental treatment provided in the course of her employment in the Reserve.
Background
3.The background to the matter is not in dispute; the controversy is about medical matters.
4.Mrs Kormany was born in March 1964. She enlisted in the Royal Australian Navy in January 1982 and served until October 1988. Subsequently she enlisted in the Reserve and was serving in the Reserve in July 1993.
5.On 13 July 1993 Mrs Kormany was undergoing dental treatment at HMAS Cairns, the Reserve base in Cairns. The treatment was being provided by a dentist in the Royal Australian Navy. The dentist administered a local anaesthetic for the purposes of the dental treatment. Within a very short time, probably five minutes or less, Mrs Kormany suffered what was subsequently diagnosed as being a right sided seizure followed by a stroke that left her weak down the right side.
6.Mrs Kormany was admitted to the Calvary Private Hospital in Cairns and seen by Dr Geoffrey Boyce, a consultant neurologist. The opinion of Dr Boyce at that time was that Mrs Kormany had suffered from a left cerebral thrombosis. He considered that there was “a direct relationship between the dental anaesthetic and the cerebral event.”
7.In August 1993 Mrs Kormany made a claim for compensation. That claim was rejected on 16 September 1993. The decision to reject the claim was affirmed on reconsideration on 28 March 1994. The basis on which the claim was rejected was that the legislation then in force did not extend liability for compensation to injuries that were the unintended consequences of medical treatment paid for by the Commonwealth. All that changed, and with retrospective effect, with the passage of the Military Compensation Act 1994 which amended the Safety, Rehabilitation and Compensation Act 1988 (the SRC Act) to impose liability in those circumstances.
8.On 7 July 1995, following the commencement of these amendments, the earlier decision to disallow the claim was revoked and liability was accepted for “left cerebral thrombosis, epilepsy and resulting migraines” sustained on 6 July 1993.
9.Dr Boyce continued to treat Mrs Kormany but in a report dated 11 May 2000 indicated that he was beginning to doubt his earlier conclusions. Subsequent medical reports obtained by the Commission (and examined in detail below) led to the Commission making the decision in issue in these proceedings. That decision was affirmed on reconsideration in December 2006. Mrs Kormany now seeks a review of that decision.
Statutory Framework
10.The SRC Act provides for compensation for Commonwealth employees. By virtue of s 14 of the SRC Act, Comcare (or the Commonwealth in cases such as the present) is liable to pay compensation in accordance with the SRC Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work or impairment. “Injury” in this context means “the resultant effect of an incident or ailment upon the employee’s body”[1]. It is sufficient for present purposes to note that the injury must have arisen out of, or in the course of, the employee’s employment. Section 6A of the SRC Act gives an extended operation to the course of employment to include, relevantly, an injury suffered as an unintended consequence of medical treatment paid for by the Commonwealth.
[1] Canute v Comcare (2006) 80 ALJR 1578, 1581 [10].
11.The scheme of the SRC Act is to provide for payments of compensation for benefits including medical expenses (s 16), payments for incapacity for work (s 19), permanent impairment (s 24) and non-economic loss (s 27).
The Evidence
The Medical Evidence
12.The conclusions that we are required to reach in this case fall to be determined by reference to a large body of medical evidence. While we have evidence from Mrs Kormany, her evidence is not determinative of the factual issues. We should say, however, that we regard Mrs Komany as entirely honest in both her evidence and in her dealings with the Commission over the years. Mrs Kormany is understandably perplexed at the fact that after a number of years in which she acted in accordance with one view of her diagnosis another view is being put forward by the practitioner who made the original diagnosis and that new view is accepted by the Commission as being correct.
13.Evidence at the hearing was given by five distinguished medical practitioners: consultant neurologists Professor Eadie, and Drs McLaughlin, Archer, Cameron and Boyce. Dr Boyce was Mrs Kormany’s treating neurologist from 1993 to 2002, and Dr Archer has been her treating neurologist since 2002.
Medical Records of Calvary Private Hospital
14.It seems logical to commence a review of the medical evidence with the detail revealed by the clinical notes of the Calvary Private Hospital in Cairns where Mrs Kormany was admitted on 13 July 1993. These notes record that five minutes following a dental procedure performed at 1320 hours of a left inferior alveolar (lower jaw) block treated with xylocaine and adrenaline, Mrs Kormany had developed right facial and hand twitching for an unspecified period, for which at 1350 hours she was given intravenous Valium. At 1630 hrs she was admitted by another general practitioner, Dr Bilbe.
15.At 1700 hours Mrs Kormany was seen by Dr Boyce. He noted that she had been suffering from severe headaches since "last November", which had grown worse in recent times. Dr Boyce recorded that five minutes after the dental anaesthetic was given to Mrs Kormany, she had developed a "numb feeling on the right side of body (face, arm and leg)" then had a "tonic-clonic seizure". The impression of Dr Boyce was that this seizure was an isolated convulsion, to be investigated by a CT brain scan and an electroencephalogram (EEG). At 1900 hrs Dr Bilbe amplified on the seizure description; describing it as being of right sided "Jacksonian-type (i.e. focal motor)". He found that Mrs Komany had mild right limbs' weaknesses (grade 4/5). At 0900 hours on 14 July 1993 Mrs Kormany had almost completely regained strength in her right limbs and she was discharged, with arrangements made for a CT brain scan and an EEG to be done in the future.
16.On 2 August 1993 Dr Boyce readmitted Mrs Kormany to Calvary Private Hospital with a provisional diagnosis of a persistent complicated migraine, after her recent right Jacksonian seizure followed by a right hemiplegia. Dr Boyce again recorded that Mrs Kormany had had "severe continued headaches for 4 months after possible viral meningitis". Later on 2 August 1993 anaesthetist, Dr Brands, performed a lumbar puncture withdrawing 15 mls of cerebrospinal fluid that was "crystal clear" in colour. The results of the analysis of this fluid were not available to us, but the evidence contains no reference to it being abnormal. Mrs Kormany’s headache worsened after this lumbar puncture; on 6 August she had an epidural blood patch inserted by Dr Brands of 20 mls of autologous blood injected at the level of the 3rd and 4th lumbar vertebral interspace. Her headache then resolved and three days later she was transferred, as arranged by Dr Boyce, to the Military Hospital Yeronga for further investigation.
17.The evidence of Mrs Kormany before us was that her headaches had developed following her dental procedure on 13 July 1993, and that she had been suffering from headaches since. The hospital notes however indicate that she been troubled by headaches at an earlier time. We think, to this extent, that Mrs Kormany’s recollection is faulty.
Analysis of EEG results
18.Mrs Kormany’s EEG conducted on 20 July 1993 was interpreted by Dr Boyce as showing changes "typical of an underlying epileptic condition". Although her CT brain scan had been arranged for 15 July 1993 at Cairns Diagnostic Imaging we had no evidence of its result. However in Brisbane her MRI brain scan, including an angiography, was normal. Dilantin medication, commenced for epilepsy in July 1993, was replaced by Epilim and Isoptin because, according to Dr Boyce, she had further "periodic episodes of numbness and weakness of the right side when she could not talk".
19.Later EEGs conducted in October 1993 and March 1994 were interpreted by Dr Boyce to show left temporal/hemisphere abnormal activity. The EEG in September 1994 was found to be normal. In October 1996, due to uncertainty as to whether Mrs Kormany’s seizures were epileptic in origin, Dr Boyce referred Mrs Kormany to the Epilepsy Assessment Unit of the Royal Prince Alfred Hospital in Sydney for video EEG monitoring over a 13 day period. This testing, along with MRI and PET scans, was reported as being normal.
20.Around October 1996 it appears that it was recommended to Mrs Kormany that she cease the use of anti-epileptic medication however on 15 May 1997 Dr Boyce reported that she "had a lot more turns” which now had been "brought under control". On 16 December 1998 Dr Boyce advised Dr Haug (Mrs Kormany’s general practitioner) that her latest EEG was not normal and that she should remain on anticonvulsant therapy.
21.In February 1999 Dr Boyce advised Dr Haug that he recently had admitted Mrs Kormany to hospital for a severe headache, diagnosed as right occipital neuralgia, which had responded to two injections into that region, however we have no record of that admission in the material before us. On 24 March 1999 Dr Haug referred Mrs Kormany to a psychologist, Ms Magatti Balatti, for assistance with her chronic pain management. Mrs Kormany attended for seven sessions over the next six months.
22.Then, in letters of 30 November 1999 and 11 May 2000, Dr Boyce suggested to the Commission that Mrs Kormany’s case be reviewed on the basis that he was beginning to doubt his earlier conclusions as to her medical conditions. Dr Boyce suggested that an additional opinion be obtained from Dr John Cameron, a consultant neurologist in Brisbane. This view was supported by Dr Haug. In June 2002 Dr Haug advised the Commission that he had referred Mrs Kormany to Dr John Archer, who had recently been appointed as Neurologist at the Cairns Base Hospital.
The opinion of Dr Archer
23.Mrs Kormany was first seen by Dr Archer in the Neurology Department at the Cairns Base Hospital on 17 September 2002. Subsequently, in his letter to Dr Haug of 29 October 2002, Dr Archer identified Mrs Kormany’s two main problems as:
·focal seizures, arising near the left cerebral hemisphere motor cortex, but with possible temporal lobe components; and
·chronic daily headaches secondary to analgesic over use, possibly triggered by her recurring seizures.
24.On 5 November 2002 Dr Archer again wrote to Dr Haug. He said that Mrs Kormany’s EEG of 23 October 2002 had indicated abnormalities "consistent with an occipital lobe epilepsy", and that her cerebral MRI scan showed "possible areas of dysplasia in the right medial occipital region and left temporal region", adding that the latter observations were subject to review at the Hospital's pending neuroradiology meeting. Dr Archer told us in his oral evidence that, in discussion with his colleagues, he later concluded that this MRI scan was in fact normal. As to Mrs Kormany’s headaches he reported that she was "gradually weaning her Mersyndol intake" from 40 to "around 20" tablets per week, his intention being to reduce her intake "to around 3 tablets weekly".
25.Mrs Kormany’s Cairns Base Hospital records document her subsequent admissions:
·on 19 June 2004 for morphine withdrawal, with associated atypical seizures; and
·between 9 and 24 August 2004 for "pseudo seizures and functional right-sided weakness" in conjunction with morphine withdrawal.
26.On 14 February 2006 Dr Archer reviewed Mrs Kormany’s case and provided a report addressed “To whom it may concern”. He reported that a MRI brain scan conducted on 10 August 2004 had been normal. He reported her Cairns Base Hospital admission for morphine withdrawal on 19 August 2004. He described the development of "prolonged runs of shaking in the right upper and lower limbs" with "apparent weakness on the right upper limb with evidence of give way, but instantaneous power was within normal limits bilaterally". Dr Archer stated that Mrs Kormany’s serum prolactin level was normal, "reinforcing the suspicion that the episodes of jerking were not epileptic.” The video EEG monitoring of her prolonged right-sided shaking "revealed no epileptiform abnormalities". Her MRI brain scan was repeated on 24 August 2004, and again was found to be normal. Dr Archer concluded:
"Our impression was that, the episodes of right side of jerking captured, were not epileptic and represented pseudo seizures. However, we recognise that it is possible that the patient has had prior true epileptic attacks, particularly in light of her prior abnormal routine EEG..."
27.The evidence of Mrs Kormany was that thereafter Dr Archer had raised the possibility with her that her attacks were non-epileptic. She acknowledged that her seizures during that admission were different to her usual attacks. She said that Dr Archer did not recommend that she be referred to a psychiatrist.
28.In his letter of 17 April 2007 to Dr Haug, Dr Archer reported his review of Mrs Kormany. He stated that:
"... our working hypothesis has been that a substantial number of Mrs Kormany's previous 'funny turns' have been pseudo seizures but that it is possible that some of the events have been epileptic in origin. For this reason we recommended she remain on anticonvulsant therapy".
He went on to note that Mrs Kormany’s “funny turns" had completely ceased on her current medication of Topiramate. He noted that she had recently been seen by Dr Cameron and Professor Eadie for review at the request of the Commission. Dr Archer also noted that Mrs Kormany was no longer using analgesics to treat her headaches. These headaches still recurred once or twice a week, lasting two to three days. He considered it possible that her Topiramate medication was assisting in relieving her headaches.
29.In her evidence Mrs Kormany told us that she had never lost consciousness in a seizure. She confirmed that she had had no seizures for about nine months. She also confirmed that her headaches still recurred once or twice each week, lasting two to three days, but that she was not taking pain relieving medications. She considered that her present Topamax (Topiramate) medication had been helpful in treating her headaches.
A Diagnosis of Epilepsy or Pseudo seizures
30.In his oral evidence and in both of his reports Dr McLaughlin accepted that Mrs Kormany had a diagnosis of epilepsy, despite medical evidence that some of her seizures were “pseudo seizures”. He explained that, for this reason, he advised her against ceasing her anti-epileptic medication.
31.Professor Eadie has been a practising consultant neurologist since 1960. He diagnosed Mrs Kormany with epilepsy based on the available description of some of her seizure events and her EEG abnormalities. He regarded Mrs Kormany’s normal MRI brain scan as consistent with this diagnosis. He also accepted that "some of her more recent events may not have been organic", i.e. pseudo seizures, adding:
"It would be almost impossible to decide whether a particular event was organic or functional without seeing the event and probably without having an EEG recorded at the time of the actual event."
Professor Eadie considered that an individual may have both "genuine epilepsy" and "pseudo seizures". He did not consider that Mrs Kormany should cease her anti-epileptic medication.
32.Dr Archer’s doctorate was in epilepsy studies and in cerebral cortical dysplasia, a congenitally abnormal brain development which may eventually cause epileptic seizures. He had been Mrs Kormany’s recent treating neurologist for her attendances at the Cairns Base Hospital. He stated that the seizure events that he had observed were non-epileptic i.e. pseudo seizures. However Dr Archer confirmed that he also could not exclude the diagnosis of epilepsy, because a significant number of patients with pseudo seizures also have epilepsy. For this reason, he also has advised Mrs Kormany to continue on her anti-epileptic medication.
33.In his oral evidence Dr Cameron confirmed, as he had said in his report of 8 July 2006, that he diagnosed against epilepsy. He relied particularly upon Mrs Kormany’s reportedly normal EEG telemetry studies at the Royal Prince Alfred Hospital in Sydney in 1996 and Royal Brisbane Hospital in 2005. Although he acknowledged that Mrs Kormany had had non-specific EEG "sharp wave instability", he considered this insufficient evidence for epilepsy; such changes, he said, could also be seen with migraine as well as with some medications used for treating headaches. He preferred the diagnosis of pseudo seizures, although he agreed that epilepsy and pseudo seizures can "coexist" in the one patient.
34.Dr Boyce gave evidence that since providing his report of 13 July 2004 he had changed his opinion on the diagnosis of Mrs Kormany. Over time he had become less confident that Mrs Kormany had had an epileptic seizure disorder because her seizures had been difficult to treat and her EEG telemetry studies had been normal.
Relationship Between the Dental Procedure and the Seizure Disorder
35.Dr McLaughlin regarded the occurrence of Mrs Kormany’s seizure at the time of her dental procedure on 13 July 1993 as "coincidental". He said that any anxiety she experienced at the time of the dental procedure may have acted as a "trigger" for her seizure on that day, but the procedure was not the cause of her ongoing condition of epilepsy.
36.Professor Eadie considered anxiety as an unlikely "trigger" for the seizure on 13 July 1993. However, his view was that on the balance of probabilities Mrs Kormany’s seizure had been caused by some of the dental local anaesthetic entering her bloodstream and travelling to her brain. He did not outline the circulatory pathway by which this could have occurred. The local anaesthetic would have had an effect on the functions of the “calcium channels” in the membranes of brain nerve cells, increasing their excitability. The "Todd's paralysis" mentioned in Professor Eadie’s letter to Dr Haug, which referred to Mrs Kormany’s temporary weakness down her right side following her right sided seizure on 13 June 1993, is a phenomenon described by the British physician Robert Todd in 1840. It indicates that the individual has had an epileptic seizure, and that the brain cells from which the epileptic seizure has been derived have been "exhausted".
37.Professor Eadie also expressed the view that Todd’s paralysis could have resulted in Mrs Kormany’s apparent ongoing seizure disorder. He explained that once an epileptic process has commenced in brain cells it has a tendency to "self-perpetuate". This would eventually subside, but "may take a long time to die out". He suggested an alternative mechanism by which the seizure could have been caused by the local anaesthetic affecting the applicant's brain cells of a spasm of blood vessels in the brain. He did not elaborate on whether this might result in an ongoing epileptic condition.
38.Dr Archer, in his oral evidence, said that "it seems likely that there was an initial epileptic event" associated with Mrs Kormany’s dental procedure. He acknowledged Professor Eadie's expertise in epilepsy, and agreed that it was possible that some of the dental local anaesthetic administered to Mrs Kormany may have reached her brain. He understood that she also had had a second seizure two days later. However, he doubted that the seizure on 13 July 1993 had initiated any ongoing epileptic seizure disorder. He conceded that this was possible if the seizure of 13 July 1993 had been prolonged enough to have caused brain nerve cell damage; he added that the seizure's recorded duration of 20 minutes was "getting up there". Dr Archer also cited Mrs Kormany’s abnormal sleep deprived EEG changes of 23 October 2002 as being located at the back of her head ("occipital lobe epilepsy"), not on the left side of her brain to be consistent with her initial seizure affecting the right side of her body. Also, her EEG changes were present long after the local anaesthetic had left her body. He considered that she had some unknown underlying cause for her epilepsy and agreed with Dr McLaughlin's proposition that the dental procedure was the “trigger” for the seizure, not the cause.
39.The view of Dr Cameron was that it was "extremely unlikely" that some of the dental local anaesthetic reached Mrs Kormany’s brain and caused her seizure. His view was that, in order to have reached her brain directly, the anaesthetic would have had to enter one of the branches of her left internal carotid artery, none of which were in the vicinity of the region operated on during her dental procedure. Branches of the left external carotid artery were in that region, but these arteries supply blood to the outside of the cranium, not inside to the brain. Otherwise the local anaesthetic would be carried by the circulatory system to the heart and liver and dispersed throughout the body, rather than directly to the brain. Dr Cameron could not think of any link between the dental procedure and Mrs Kormany’s seizure. It was his view that, if she had an epileptic seizure at that time, it was coincidental. In his report of 8 July 2006 he had considered the possible diagnosis of migraine for this incident, but did not regard it as probable. The reason for this was that the weakness in her right limbs were noted to have persisted for about a week after the event; too long for migraine, which Dr Cameron regarded as forming part of her headache symptom complex. Dr Cameron said he was “at a loss to explain the event of that day" but was of the view that it was not due to any form of stroke.
40.Dr Boyce also now agreed that it was unlikely that Mrs Kormany’s seizure on 13 July 1993 was due to local anaesthetic from the dental procedure reaching her brain. He stated that, whereas initially he had regarded some form of stroke ("cerebrovascular event") as the cause of her seizure, he since had changed his view because of a lack of supporting evidence.
Diagnosis of headaches
41.It is apparent from Exhibit 3, the records of Calvary Private Hospital, that Mrs Kormany had developed headaches from about a year before the dental procedure of 13 July 1993. The medical evidence shows that she has suffered headaches to variable degrees since that time. She told us that she continues to have headaches once or twice each week, lasting two to three days.
42.Only Drs Archer, Cameron, and Boyce have provided opinions regarding Mrs Kormany’s headaches.
43.On 23 October 2002 Dr Archer diagnosed Mrs Kormany with chronic daily headaches secondary to analgesic overuse, possibly triggered by her recurring seizures. On 5 November 2002 he noted that she was reducing her intake of the analgesic Mersyndol. However, in June and August 2004 she required two Cairns Base Hospital admissions for withdrawal of morphine. On the other hand, by the time of Dr Archer's latest review of Mrs Kormany on 17 April 2007, he recorded that she had stopped using analgesics for her headaches, although they still recurred once or twice each week. His impression was that her Topiramate medication seemed to be relieving her headaches; this was supported by Mrs Kormany’s evidence.
44.In his report Dr Cameron diagnosed Mrs Kormany with chronic daily headaches, with some features of muscular contraction, possibly with "analgesic abuse". He also diagnosed her with migraine.
45.In his oral evidence Dr Boyce expressed the view that Mrs Kormany’s headaches had "features of a vascular or migrainous" type, which he could not connect to her dental procedure of 13 July 1993.
Assessment of the Medical Evidence
46.Our first task is to determine what condition/s Mrs Kormany suffered from at the time of the decision under review. Then we must consider whether any condition that is found to exist at that time is causally related to the dental treatment in July 1993.
47.Each of the consultant neurologists has diagnosed that Mrs Kormany has had pseudo seizures; seizures of non-epileptic, psychogenic origin. We are satisfied that this is so and was so in July 2005.
48.In addition, each of the neurologists has stated that patients can have both pseudo seizures and epileptic seizures. Although Dr Boyce did not comment on this in his evidence at the Tribunal hearing he remarked in his report of 13 July 2004 that, as well as having "an epileptic type syndrome", more likely than not "there is a super imposed psychiatric component".
49.
Dr McLaughlin and Professor Eadie have diagnosed that Mrs Kormany has had epilepsy. Dr Archer considered this to be likely earlier in Mrs Kormany’s history. While Dr Boyce previously diagnosed
Mrs Kormany with epilepsy, he told us that he had since changed his opinion. Dr Cameron has diagnosed against epilepsy. We need to examine in more detail the medical evidence pertaining to this conflict of opinion.
50.In his oral evidence Dr McLaughlin expressed the view that Mrs Kormany probably had epilepsy, although he was "still not certain about the diagnosis". In his letter of 12 December 2005 he stated that, although her video EEG telemetry on 28 October 2005 captured no seizures, her EEG of that same day was abnormal, with a pattern "suggestive of an active epilepsy". Accordingly, he advised her to continue with anti-epileptic medication.
51.Professor Eadie concluded from the available description that Mrs Kormany had had a focal motor epileptic seizure in July 1993, followed by a Todd's paralysis (epileptic hemiplegia), and that her EEGs had shown "paroxysmal disturbances". His evidence to the Tribunal was that he diagnosed that Mrs Kormany had had "epileptic events", based on the descriptions of some of the events and her EEG abnormalities. He also advised her to continue with her anti-epileptic medication.
52.When Dr Archer first saw Mrs Kormany in September 2002 he diagnosed her with focal seizures. On her sleep deprived EEG a month later he described changes which he regarded as "consistent with an occipital lobe epilepsy". However, two years later (August 2004) he concluded that her then seizures were not epileptic, but allowed that Mrs Kormany could have had "prior true epileptic attacks, particularly in light of her prior abnormal routine EEG". When giving his evidence to the Tribunal he agreed that her initial seizure in July 1993 could have represented "an underlying seizure tendency which has come out". He also stated that he could not "100% exclude ongoing epilepsy", this being the reason why he advised her to stay on anti-epileptic medication.
53.Dr Cameron acknowledged in his report that Mrs Kormany had had "some sharp wave instability demonstrated on both sides of her brain on EEG studies over the years". However he regarded this as non-specific, and that it would only represent "epileptic electrical disturbance" if this appeared in correlation with her shaking attacks. This had not been demonstrated in Sydney's Royal Prince Alfred Hospital in 1996, in Cairns Base Hospital in 2004 and Royal Brisbane Hospital in 2005. In giving his evidence to the Tribunal he conceded that he could not exclude epilepsy, but was not persuaded.
54.Thus Professor Eadie and Dr McLaughlin have diagnosed that some of Mrs Kormany’s seizures have been epileptic. Dr Archer accepted that Mrs Kormany could have had epileptic attacks earlier in her history and Dr Boyce diagnosed her with epilepsy in the earlier stages when her EEG abnormalities were repeatedly present. Dr Cameron has stated that he could not exclude epilepsy. Having regard to these views, and noting that each neurologist has stated that an individual can have both epileptic seizures and pseudo seizures, we are satisfied, on balance of probabilities, that at least earlier in Mrs Kormany’s history, some of her attacks were epileptic.
55.We note, from Dr Archer's observations and Mrs Kormany’s evidence that her seizures now appear to have subsided on her continuing treatment with the medication Topiramate.
56.Dr Cameron has expressed the opinion that Mrs Kormany has not had epilepsy, and that the neurological event of 13 July 1993 was not epileptic. Dr Boyce has concluded that Mrs Kormany has not had a seizure disorder. Drs McLaughlin and Archer accepted that it was a seizure disorder, but that the dental procedure was the "trigger", not the cause, of her epilepsy condition. Professor Eadie has suggested, on the balance of probabilities, that Mrs Kormany’s epileptic seizure disorder was caused by some of the dental local anaesthetic reaching her brain, provoking the seizure that day. Furthermore, this initiated a "self-perpetuating" epileptic disturbance of those brain cells, which would eventually "die out". Dr Archer agreed that the local anaesthetic possibly reached Mrs Kormany’s brain, but that it did not cause her ongoing seizure disorder. He cited reasons such as that the sleep deprived EEG performed in October 2002 showed abnormalities located in the occipital (posterior) part of the brain and not the left side of her brain, and that her seizures continued long after the local anaesthetic had left her body.
57.As it seems to us it is not necessary to reach any view about the precise nature of the events that affected Mrs Kormany in July 1993. It is sufficient for us to conclude, as we do, that the weight of persuasive and logical medical opinion supports the conclusion that although the events of 13 July 1993 were epileptic in nature, Mrs Kormany was not suffering from epilepsy in July 2005.
58.We consider, as well, that the weight of evidence supports a conclusion that there is no relationship between Mrs Kormany’s condition in July 2005 of pseudo seizures and the events of July 1993. In reaching that conclusion we acknowledge the logic of Professor Eadie of the coincidence between the administration of the local anaesthetic and the seizure, but having regard to the totality of the medical opinions, we conclude that this was either a true coincidence or that the anaesthetic triggered (in the way suggested by Dr McLaughlin), but did not cause, the seizure.
59.So far as the condition of headaches is concerned we note that the hospital records indicate that Mrs Kormany was suffering headaches for at least a year before her dental procedure. Drs Cameron and Boyce have diagnosed that her headaches have a migrainous basis, not related to her dental procedure. Dr Cameron has suggested a possible additional "analgesic abuse" component. Dr Archer opined that she had chronic daily headaches secondary to analgesic over use, possibly triggered by her recurring seizures. Again, in our view, the overwhelming body of evidence leads us to conclude that Mrs Kormany’s continuing headaches are unrelated, either directly or indirectly, to the dental treatment of July 1993.
Conclusion
60.It follows that we are not satisfied that there was any causal relationship between the dental treatment, and thus Mrs Kormany’s service in the Navy Reserve, and the conditions that now afflict her (and afflicted her at the time of the decision under review). Accordingly we would affirm the decision that the respondent is not liable to pay compensation to Mrs Kormany in respect of her current condition.
I certify that the 60 preceding paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC and Dr J B Morley RFD, Member.
Signed: .....................Signed.............................................
Eleanor O’Gorman, AssociateDates of Hearing 4 & 5 June 2007
Date of Decision 31 July 2007
The applicant represented herself
Solicitors for the Respondent Sparke Helmore
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