Lane v Sacred Heart Primary School
[2009] VCC 109
•26 February 2009
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
SERIOUS INJURY
Case No. CI-08-00477
| MAUREEN LANE | Plaintiff |
| v | |
| SACRED HEART PRIMARY SCHOOL | Defendant |
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| JUDGE: | HIS HONOUR JUDGE SHELTON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 11, 12, 15 and 16 December 2008 |
| DATE OF JUDGMENT: | 26 February 2009 |
| CASE MAY BE CITED AS: | Lane v Sacred Heart Primary School |
| MEDIUM NEUTRAL CITATION: | [2009] VCC 0109 |
REASONS FOR JUDGMENT
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Catchwords: ACCIDENT COMPENSATION – serious injury application – S.134AB Accident Compensation Act 1985 – brain injury – slowness in information processing, anxiety and mild depression – Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167 – Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230 – Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D F Hore-Lacy SC with | Maurice Blackburn |
| Mr S J Carson | ||
| For the Defendant | Mr J L Batten | Minter Ellison |
| HIS HONOUR: |
Introduction
1 This is an application by way of Originating Motion seeking leave pursuant to s.134AB(16)(b) of the Accident Compensation Act 1985 (“the Act”) to bring proceedings for the recovery of damages in respect of a head injury suffered by the plaintiff in the course of her employment with the defendant on 25 July 2003 (“the injury”). On that day the metal closing-mechanism on a door fell and struck her on the head (“the accident”). There was evidence before me that the mechanism weighed approximately 400 grams. S.134AB(19)(a) of the Act provides that I must not give leave to bring the proceedings unless satisfied on the balance of probabilities that the injury suffered was a serious injury.
2 S.134AB(37) of the Act, so far as relevant, defines “serious injury” as follows:
“serious injury means –
(a) permanent serious impairment or loss of a body function . . . (c) permanent severe mental or permanent severe behavioural
disturbance or disorder.”
3 The body function relied upon by the plaintiff is the brain.
4 The plaintiff seeks leave to bring proceedings in relation to consequences with respect to both pain and suffering and loss of earning capacity: see s.134AB(38)(b) of the Act.
The Issues
5 It is not in issue that the plaintiff suffered the injury in the accident. What is in issue is whether the plaintiff is at present suffering from a “serious injury” as a result of the accident: see s.134AB(38)(j) of the Act. The defendant contends that although the plaintiff suffered the injury, she has virtually or completely recovered from it, that relationship difficulties of hers have complicated the situation, and that she is now not suffering a serious injury as defined in sub-s.(38).
6 Mr Dyson Hore-Lacy SC, who with Mr S Carson appeared on behalf of the plaintiff, indicated that the plaintiff principally based her application upon the definition of “serious injury” contained in sub-paragraph (a) rather than (c). Should I decide that the plaintiff has suffered a serious injury as defined in sub-paragraph (a), there is no need for me to determine whether the plaintiff has suffered a serious injury as defined in sub-paragraph (c).
The Plaintiff’s Evidence
7 The plaintiff was born in August 1951 and so is now aged fifty-seven. She left school at age fifteen, married at age seventeen, had two daughters, and separated from her husband at age twenty-nine. She then decided to become a teacher, and eventually obtained a Master’s Degree in Education. She obtained this in 1999, and states that she had intended undertaking a Doctorate in Education with a view to working at Australian Catholic University where she had obtained her earlier qualifications. She stated that she had been told to defer doing this for a few years after obtaining her Master’s Degree in 1999, and that but for the injury she would have undertaken doctorate studies.
8 She has worked as a primary teacher for over twenty five years. She commenced teaching at Sacred Heart Primary School, Diamond Creek, in 1999, working four days a week as a teacher and one day as Coordinator of Religious Education.
9 When she suffered the injury, she states that she did not lose consciousness but recalls bleeding badly from the head but did not have a lump on the head. She recalls being in the staffroom, drifting in and out of full consciousness and feeling dazed and confused. She was injured on a Friday, and, although she felt dizzy over the weekend, recalls that she returned to work the next week, but was confused and unable to cope.
10 She was off work for about three months. During this period she stated that she was confused, dizzy, and nauseous, and had frequent migraine-type headaches. She states:
“I found that I had trouble in finding words to use in normal conversation and that my speech had slowed. My short-term memory was not good at all. At that stage I was of the belief that I had simply suffered serious concussion.”
11 After three months she returned to work. She was having difficulty driving, and so went to and fro by taxi. She returned on a part-time basis, but found that she was not coping. She states that her concentration and comprehension were impaired, and that at times her vision was blurry. She was not coping with teaching. She had difficulty taking part in conversations, and with her memory. She would feel disoriented. She was working two days a week, but found that by the afternoon she was becoming very tired and confused.
12 During 2004 she attended Dorset Rehabilitation, Dr Clayton Thomas, a consultant in rehabilitation and pain medicine, and a physiotherapist and occupational therapist. She also consulted a psychologist, Ms Zaneta Dedovic.
13 In mid-2005 she was seconded by the defendant to work at St Fidelis Primary School in Coburg, where she worked part-time for a year as a reading teacher, working one-to-one with pupils. She never did classroom teaching there. For the final term in 2006 she obtained part-time employment at Our Lady of the Nativity School, Aberfeldie. She still works there for a half day each day. She works 17.5 hours a week, which is one-half effective full-time. She works one-to-one with pupils, assisting with reading and comprehension. The plaintiff states that she would be unable to increase her workload. Working half-time leaves her tired when she gets home. If she works 60 per cent full-time she finds that she suffers from migraines.
14 She states that she is unable to teach a normal class since she has difficulty scanning the children’s faces in the class, and this also means she is unable to carry out yard duty.
15 In 1985 or 1986, she entered into a de facto relationship. This came to an end shortly after she was injured. She states that her de facto husband told her that she had become a different person, and that the relationship deteriorated. She strongly denied that the relationship was deteriorating prior to the accident.
16 The plaintiff states that she cannot now interact socially as she once did, that she is forgetful, and that she finds difficulty in concentrating when driving at night or in rain when the windscreen wipers distract her. When she is tired she has peripheral vision. A test drive on 30 June 2004 showed that she needed to concentrate without distraction and without the wireless on, and she was fatigued at the end of the second test drive.
17 Her balance has been affected. When she is walking next to someone she bumps into them every ten steps or so. She does not walk in a straight line, particularly when going around corners. She still has trouble keeping her balance when she shuts her eyes.
18 The plaintiff states that she does not read any more, since she has trouble remembering what she has read. She does not read novels now as she did previously. She stated that she had big chunks of memory which were lost.
19 She now takes Panadeine regularly, and once a fortnight or more regularly, takes Mersyndol. She states that she was taking anti-depressants for a while but they made her sleepy and she has not taken them for over eighteen months. She has regular physiotherapy treatment.
20 The plaintiff states that since the injury she has also suffered upper back, neck, and right shoulder pain, and that although these cause her frequent discomfort they do not prevent her from carrying out her employment.
21 The plaintiff states that her condition has not got better or worse since she swore her affidavit in support of the application on 4 September 2007, i.e. she states her condition is stable.
Medical and Like Evidence
22 Dr Raymond Gornall, a general practitioner practising at Pascoe Vale, saw the plaintiff shortly after the accident and has been seeing her regularly since, in recent times, every three months. It appears that he saw her once prior to the accident.
23 In a report of 15 November 2008 to the plaintiff’s solicitors he states that he made a diagnosis of “minimal brain injury, post-traumatic concussion, neck and upper back strain related to the injury of 28/7/03”. He states:
“Maureen notes ongoing problems with reduced concentration, tiredness, difficulty scanning, difficulty driving to unfamiliar places especially in the wet or dark, word finding difficulty, embarrassment related to these handicaps, emotional lability, shakiness of her right hand or right foot at times.
. . . duties for the rest of her working life due to her work place injuries.”
She attends myself every 3 months for the extended WorkCover
certificate. Her condition is stable but ongoing.
. . .
I expect that the symptoms of minimal brain injury will continue
indefinitely. She has now suffered for over 5 years with her injuries.
While there has been a little improvement in the last year such as
reduced frequency of migraines, she continues to be significantly
affected in many areas of her life as previously detailed.
24 Dr Gornall referred the plaintiff to Professor Edward Byrne, neurologist. In a report of 22 August 2003 to Dr Gornall, after referring to the plaintiff as a “nice lady”, he expresses the view that she has suffered mild concussion and has a post-concussion syndrome. He stated:
“I am sure that this will steadily improve. She may have become a little
depressed and lost some confidence also.”
25 He arranged an MRI scan. In a report of 25 September 2003 to Dr Gornall, he states that this showed:
“some minor white matter changes.”
He thought this indicated some post-concussion symptoms and that the plaintiff was somewhat stressed, and he suggested the possibility of having her referred to a psychologist.
26 Dr Gornall referred the plaintiff to Dr Clayton Thomas. He first saw her on 31 October 2003. In a report of 15 August 2006 to Accident Compensation Conciliation Service, he states:
“I reviewed an MRI of her brain which showed some small cerebral suffering from post concussive syndrome. I felt that a full neuropsychological assessment was required in addition to occupational therapy, counselling and physiotherapy. I recommended that she trial some medications for headache treatment. I referred her to Dorset Rehabilitation Centre.
contusions.
I reviewed her again in January 2004. Her headaches were still problematic. I recommended that she add Endep and Epilim to her drug regime.
A neuropsychological assessment was performed by Dr Carol Burton, clinical neuropsychologist. This revealed that some 5 months after the accident, she had slowing in her speed of information processing and mild difficulties in retaining complex verbal information. The weakness has occurred in the context of relatively preserved intellectual functions which were rated high average. She had slow processing and complex attentional difficulties. These difficulties were felt to compromise her efficiency in the work situation, particularly in a situation where complex material was being discussed.
In February 2004 I reviewed Ms Lane and the headaches remained problematic and I recommended that she increase the Epilim that I had prescribed. She was not having any significant side effects.
When I reviewed her on the 26th May 2004 she had significant problems with headache and migraine. The Endep/Epilim combination that I prescribed was not of any benefit. I recommended that we trial Vioxx, an anti inflammatory and then Inderal and I gave her instructions for both of these.
At the commencement of 2005 she was commencing a new job in a new school doing 2 hours per day of reading recovery in addition to retraining in this area. I had organised an up to date neuropsychological assessment and this showed that her primary problem remained one of decrease speed of information processing as well as reduced working memory but the combination made it difficult for her to deal with situations in which she had to deal with multiple stimulae.
Despite this she remained highly motivated with respect to her rehabilitation.
When I reviewed her in March 2005 she was working 3 hours per day, 15 hours per week retraining in reading recovery. I noted that this was a 12 month course. She was uncertain as to what would happen beyond July 2005 being the 2 year anniversary of the date of the injury. She found that her balance was still poor, particularly at night time. Visual difficulties were still noted. She had returned to driving but needed assistance when driving in areas that she was unfamiliar with.
I last saw Ms Lane on the 14th June 2006. Since I last saw her she had been put off work. She was able to achieve a .6 effective full time load. She only ever did one yard duty, primarily limited because of the scanning problems that she had from the visual perspective.
At that review she told me that work involving concentration would lead to an exacerbation of her migraines which were occurring still at 1 to 2 per week. The migraines were unusual insomuch as they would come on during the night and disable her the next day.
I recommended that she trial Endep and Sandomigran to see if that could assist her with these migraines.
. . . involves one to one teaching with students.
Ms Lane sustained a closed head injury consistent with post concussion
syndrome. She had some positive problems which remained as a result
of this.
. . .She has had a number of adjustments that she has needed to make. She remains under the care of a psychologist for support. A review of psychological services would be reasonable as time goes on, but at this stage she still needs a considerable amount of support.”
27 As noted, Dr Thomas last saw the plaintiff on 14 June 2006.
28 Dr Carol Burton, clinical neuropsychologist, interviewed and assessed the plaintiff at the request of Dr Clayton Thomas on 5 December 2003, 25 May 2004 and 4 November 2004. Following the interview and assessment on 5 December 2003, she wrote to Dr Clayton Thomas on 12 December 2003. Dr Burton states that the plaintiff told her her major complaints as a result of the accident were:
“1 Difficulty shifting set from one topic to another. 2 Poor memory. She has a position of leadership in the school but forgets what she is told, which makes it difficult to function effectively, and had even forgotten that someone’s parent had died.
3 Losing track when people were speaking, needing time to think before she talked. Difficulty concentrating, so she had trouble taking notes and following what was going on in meetings. She even had trouble talking on the phone.
4 Disorientation in unfamiliar places or in busy places such as shopping centres.
5 Headaches. She said she had 5 bad headaches in the last 2 weeks (during these episodes, half her face hurt and her eye wept). This was on the left side of her face. Headaches often were in the right frontal area or at the back of her head.”
29 Dr Burton stated:
“It is estimated on the basis of her educational and occupational achievements that she was a woman of at least high average intellectual capacities. Currently, her general level of intellectual ability was rated within the high average range as indicated by her Full Scale IQ 114. She obtained a Verbal Scale IQ of 114 and a Performance Scale IQ of 113 (both of which fell within the high average range). Her Performance Scale IQ was reduced by her slow speed of information processing (rated borderline). Generally her processing speed was slow reflected in slowed psychomotor speed as well as slowed visual decision making speed. Overall, her Processing Speed Index score was 84, rated low average, which was well below her measured intelligence.
. . .
Maureen Lane suffered a mild head injury when a metal box that normally holds a door open fell and hit her on the head while she was a teacher at the Sacred Heart School in July 2003.
Neuropsychological assessment five months after the accident indicated a slowing in her speed of information processing and mild difficulties in retaining complex or lengthy verbal information on first presentation. These weaknesses occurred in the context of relatively preserved intellectual functions (rated high average). Slowed processing and complex attentional difficulties are frequently found after mild head injury. These difficulties would tend to compromise her efficiency in the work situation, and particularly in situations where complex material being discussed had to be absorbed and/or responded to (such as in lengthy meetings or a series of meetings) or she had to think on her feet, juggle facts and make decisions. Such weaknesses would also become more apparent in situations of stress or where she became anxious.
. . .
Further recovery of function is anticipated given the recency of the head injury.”
30 Following further interview and reassessment on 25 May 2004, Dr Burton provided a further report to Dr Clayton Thomas dated 27 May 2004. In it she stated:
“She was considerably slower on this occasion in her speed of
processing. . . .Mrs Lane was co-operative and attempted all tasks administered. There was no evidence to suggest she might have been exaggerating symptoms on tests. . . .
She presented as much less anxious and distressed than in December 2003 and her responses on the Beck Anxiety Inventory indicated she was reporting minimal anxiety. On the Beck Depression Inventory II, she endorsed symptoms suggestive of mild depression. . . .
Mrs Lane has made gains since she was first assessed 5 months post mild head injury, and her general intellectual capacities and new learning capacities appear preserved. Despite the relative integrity of her intellectual functions, she continues to exhibit a marked slowing in her speed of information processing and visual decision making speed, fluctuating attention and concentration, and reduced nonverbal planning, organization and judgement. As such, these areas of weakness are likely to adversely affect her efficiency in the work situation.
She is less anxious and depressed but still reports symptoms suggestive of mild depression with a loss of self confidence associated with her appreciation of her slowness and inefficiency in carrying out tasks previously managed with ease.
Slowed processing would affect her ability to absorb information and react to it, but might also reflect her uncertainty and need to check her performance for errors. In situations where she would have to think quickly on her feet she would be at a disadvantage, as she would be when having to mentally take in a number of viewpoints, juggle facts, consider consequences and make decisions. She would also find she had difficulty working under pressure or if she were anxious.
There was no evidence to suggest she had any visuo-perceptual, visuo- spatial or visuo-constructional deficit nor any evidence of visual inattention or neglect on testing which might provide an explanation for her complaints of visual difficulties. She also had no trouble seeing complex pictures in their entirety (that is, no evidence of a simultanagnosia). An assessment by an ophthalmologist might be helpful in elucidating her loss of peripheral vision/visual difficulties.”
31 Following further interview and reassessment on 4 November 2004, Dr Burton provided a further report to Dr Clayton Thomas dated 5 November 2004. The plaintiff complained to her of headaches and migraines after she had been at school, which she did not suffer during school holidays. She was not taking any medication at the time. Dr Burton stated in the report:
“Consistent with previous findings, her major areas of weakness were slowed processing speed and mildly reduced working memory in the context of relatively preserved intellectual functioning and considerably improved verbal memory functioning. Her nonverbal planning and organizational skills were also much improved. As before, fluctuations in attention and concentration were evident.
. . .
While exhibiting very slow information processing and mild fluctuations in auditory attention and concentration, the latter were not so evident as in May 2004. . . .
Marked improvement was evident in her verbal memory functioning.
Sentence recall was appropriate for her age. . . .On the Beck Depression Inventory-II, she obtained a score of 14, reflecting mild depression. . . .
Mrs Lane has continued to improve since she was last assessed in May 2004, and currently her intellectual, memory and new learning capacities are consistent with estimated premorbid abilities. In contrast to her preserved intellectual functions, she continues to exhibit a marked slowing in her speed of information processing and visual decision- making, a mild reduction in her working memory (ability to hold information in mind and mentally manipulate it) with some fluctuations in attention and concentration noted particularly on complex mental tasks. These difficulties were apparent when she was first assessed in December 2003 and have persisted over time. Reduced complex attention and mental processing speed has been, and will continue to, compromise her efficiency in the work situation.
She continues to report symptoms consistent with mild anxiety and depression and this too would contribute to her inefficiency and slowness and to the loss of self confidence. The symptoms are not sufficiently severe, however, to warrant referral to a psychiatrist. It is appropriate that she has been seeing a psychologist to help her with managing stress and with adjustment issues.
That there has been an improvement in function, a return to the levels obtained in many instances in December 2003, and an even greater improvement in others, is a credit to the work that Ms Lane and her therapists have put in to her rehabilitation. Slowness in information processing speed and mildly reduced working memory will continue to be a handicap in most work situations, particularly if she has to think quickly on her feet, mentally take in a number of viewpoints, juggle facts, make quick decisions or work under pressure or time constraints. She will do better if she is given enough time to prepare and present material, as her intellectual and memory functions are preserved.”
32 Ms Zineta Dedovic, psychologist, first saw the plaintiff on 18 May 2004. Thereafter she counselled her weekly until February 2005, after which counselling sessions were held on a fortnightly basis. She generally agrees with the opinion of Dr Burton. In a report of 2 March 2006 to the plaintiff’s solicitors, she states that in her opinion the plaintiff has an acquired brain injury. She continued:
“Ms Lane’s cognitive impairments are consistent with an acquired brain injury sustained from a blow to the head. Her social, emotional and vocational difficulties following the accident have resulted from these cognitive impairments.
. . .
Directly following the accident, her cognitive impairments resulted in her only being able to work two days per week in a limited capacity. She was unable to organise or participate in her social activities and her primary relationship dissolved under the pressure of an altered dynamic, when she required extra support and assistance from her partner.
. . .
However, Ms Lane has a present and future limited work capacity, as she is unlikely to show further substantial improvements in cognitive abilities. She is unable to work full time hours because of fatigue. She is unable to work in busy, noisy environments or where there are multiple demands or stimuli.
. . .
Ms Lane has endured a life altering injury that has impacted on her personal relationships and work capacity.”
33 In a report to the defendant’s insurers dated 15 August 2006, Ms Dedovic confirms that the plaintiff has an acquired brain injury and has sustained permanent brain damage. She states:
“Following the accident Ms Lane found being in a busy, noisy classroom difficult and overwhelming. She was unable to manage the complexity and multiple demands and would quickly find that her peripheral vision would diminish and finally she would get a migraine. She was unable to undertake any yard duty or supervision of large groups of children as she has diminished ability to visually scan and identify objects.
Neuropsychological assessments conducted by Dr Carol Burton have also indicated that Ms Lane has a slowing in her speed of information processing, scanning difficulties, poor working memory, difficulties in retaining complex or lengthy verbal information, reduced nonverbal planning and organisational capacities in the context of relatively preserved intellectual functioning. These difficulties affect her ability to attend to complex information, respond, think on her feet and make decisions. All of these difficulties have made teaching in a classroom too demanding for Ms Lane.
. . .
Ms Lane’s cognitive impairments are consistent with an Acquired Brain Injury sustained from a blow to the head. She experiences social, emotional and vocational difficulties following the accident, which have resulted from these cognitive impairments.
Ms Lane’s intellectual, memory and new learning capacities are consistent with estimated premorbid abilities, but reduced complex attention and mental processing speed will continue to compromise her efficiency in the work situation. Since first being assessed by the neuropsychologist in 2003, Ms Lane has shown some cognitive improvements over time, but as it is now more than two years since the injury, it is unlikely that she will show any substantial further improvements.
Slowness in information processing speed and mildly reduced working memory will make work difficult where she has to take in different information, juggle facts, make decisions or work under pressure. She experiences difficulty in crowded, noisy or busy situations and feels overwhelmed and anxious. Ms Lane’s intellectual and long term memory functions are preserved, but in any work situation she will need extra time to plan and prepare. She will also be unable to work full time hours due to fatigue.
. . .
Ms Lane has worked very hard in her recovery and has worked out many strategies that assist her to maximise her abilities. These strategies include taking adequate rest breaks when she begins to fatigue and working quietly on tasks alone where she can concentrate and focus, keeping diaries and lists. She writes down important memories of events so they will not be lost. She ensures that she takes plenty of time to plan, prepare and then check her work. She has a strong work ethic and will to succeed.
However, Ms Lane has a present and future limited work capacity, as she is unlikely to show further substantial improvements in cognitive abilities. She is unable to work full time hours because of fatigue. She is unable to work in busy, noisy environments where there are multiple demands or stimuli.
Ms Lane’s role as a Reading Recovery teacher seemed to suit her particular needs and she felt a sense of pride and accomplishment with this work.”
34 I note Ms Dedovic’s comments as to the plaintiff’s “strong work ethic and will to succeed”. Ms Dedovic ceased counselling the plaintiff in February 2007.
35 Professor Jennie Ponsford, Professor of Neuropsychology at Monash University, carried out a neuropsychological assessment of the plaintiff on 12 June 2008 at the request of her solicitors. In a report of 1 July 2008 she states:
“Ms Lane is a woman of high average to superior intelligence.
. . .
At this neuropsychological assessment she performed at a level consistent with her above average ability levels on most tests in both the verbal and the non-verbal domains. However she displayed significant slowing of information processing across a range of tasks, and some milder difficulties with working memory and mild inefficiency in learning of complex verbal material, although her recall of what she learned was very good.
Ms Lane’s information processing difficulties are consistent with the effects of a head injury, although they seem disproportionately severe given the initial apparent mild severity of her injury. Ms Lane denied significant anxiety or depression. However I gained the impression that her symptoms and difficulties are exacerbated by the presence of anxiety. This is not uncommon when a person experiences the overwhelming effects of post-concussional symptoms. As it is now about five years since the injury took place, significant further recovery is unlikely.
Ms Lane has tried to return to her previous role as a classroom teacher and failed due to her information processing difficulties, as well as fatigue and headaches. She desperately wants to remain in a teaching role and is now working half-time helping children one on one with reading recovery. She said she is coping with this, just, and there seems little prospect at this long time after her injury, that she will ever be able to increase beyond this level. Thus her career in teaching has been significantly curtailed. She has also had to give up her writing and historical research interests again because they are too cognitively demanding.”
36 I note that Professor Ponsford states that anxiety commonly follows post- concussional symptoms, and that, in her view, the plaintiff has no more capacity for work. In carrying out her assessment she had the benefit of Ms Dedovic’s report of 2 March 2006 and Dr Gibbs’ reports of 26 April 2006 and 14 January 2008.
37 Dr Stella Kwong, consultant psychiatrist, examined the plaintiff on 10 October 2008 at the request of her solicitors and has provided a report dated 19 November 2008. In the report she states:
“I also accept Ms. Dedovic’s quote of Dr. Carol Burton’s assessment that Maureen has a ‘slowing in her speed of information processing, scanning difficulties, poor working memory, difficulties in retaining complex and lengthy verbal information, reduced non verbal planning and organizational capacity in the context of relatively preserved intellectual functioning’.
My decision to do so is because Maureen’s clinical presentation and
current functional status are reflective of these organic deficits.
. . .It is my opinion that Maureen Lane is suffering from a very mild adjustment disorder with mixed anxiety and depressed mood (DSMIV 309.28) as a result of her loss of some mental capacity due to the consequence of a head injury on 25th July 2003.
. . . the current psychosocial support and financial stability, she might remain in her current functional status with minimal improvement in the foreseeable future as exemplified by her degree of improvement in the last five years.”
It is my opinion that Maureen is currently working to the maximum of her
ability.
Maureen is currently functioning like an eighty years old non-demented
woman in a fifty-seven years old woman’s body. Like an old lady, she
needs adequate rest. If over-tired, they will become irritable and make
mistakes.
Maureen’s incapacity for work is most likely to continue indefinitely, i.e.,
her partial incapacity for work is assessed as being permanent.
38 Dr Andrew Gibbs, clinical neuropsychologist, assessed the plaintiff for GIO Workers Compensation on 19 April 2006. In a report of 26 April 2006 he stated, following testing:
“Mrs Lane demonstrated a continued reduction in scores that reflected aspects of performance speed and auditory attention in particular, with improvement in measures of a verbal nature. However, the areas of reduced scoring remain at similar levels as those reported in December 2003 (where ‘further recovery’ was expected) and so the continued observation of these reduced scores is unusual given this expectation, and a description of a head injury that appears of a relatively mild to moderate nature. I note that Ms Lane reports some sleep disturbance, loss of confidence and anxiety as well as some irritation and anger.”
39 The suggestion is made that the reduced scores may be due to a motivational component. There is no suggestion, however, that the plaintiff was not motivated. In fact, the evidence before me, such as that of Ms Dedovic and Doctors Thomas and Entwisle, is to the contrary. Dr Gibbs continued:
“However, timed scanning tasks that required her to match symbols according to a key under time pressure (i.e.: SYS) was scored at the lower 16th percentile - where she tended not to make errors and so the score was lowered due to the number of items visually searched. Similarly, on a similar timed symbol substitution task (DSY), her performance was at the lower 5th percentile - with the score reduced not due to errors or sequencing difficulties but due to the absolute number of items completed in the given time limit.
. . .
Ms Lane demonstrated a variable pattern of memory performance, where this appeared to be associated with reduced scoring on measures of attention - although she showed an intact ability to learn and retain new verbal and spatial information at good levels provided good attention.
Verbal memory function was at least at average range, albeit with moderate reduction solely on a task of recall for spoken prose material, although she demonstrated an intact verbal learning curve, was not susceptible to interference (distraction) effects, and could retain the information she had learned over a period of 30 minutes.
. . .
As mentioned, the immediate and delayed recall of a short spoken passage of prose information was at low average and below average range, respectively. This represented the only area of reduced verbal memory on current assessment - where she performed at intact and good levels elsewhere.
. . .
Some of the individual measures within the memory assessment are presented in Table 1, with Verbal Memory and Attention measures scored at average and low average levels, respectively. The reduction is likely to reflect an attention/motivation factor rather than ability to learn and retain new material/knowledge.
. . .
There appeared some mild features of a depressive nature, where she
reported her sleep as poor.
. . .Does Ms Lane have the capacity to undertake her pre-injury employment?
Ms Lane is reported to have sustained what appears a minor head injury with concussion in July 2003, where it would be reasonable to expect recovery to now be close to her previous level of function - including the ability to return to a former work role with familiar tasks and duties. I note this was expected in late 2003 when she was assessed in December of that year. It is therefore unclear as to why this has not occurred given the description and nature of the initial injury being one of a minor head injury, or concussion.
. . .
[I]t is felt that Ms Lane should be capable of some duties within a classroom, particularly where the tasks are familiar. She should therefore be provided the opportunity to take classes of greater than one child on a graduated or staged basis.
. . .
I feel that Ms Lane should be considered for a graded return to work for classroom duties alongside her current 0.4 EFT of one to one reading recovery tutoring.
. . .
It is also felt that Ms Lane would be in a position to initially increase her hours to daily attendance at four hours per day with a break for recess. . . .
It would now be expected in April 2004 that she would have recovered the majority of any neuropsychological impairment to close to previous levels, or even where there is minimal to nil residual neuropsychological impairment. It is unclear as to why she has not improved principally in the areas of performance speed from her assessment in December 2003, where such recovery would be expected.
. . .
Ms Lane is of at least high average range of general intellect, where she demonstrated reductions on some measures of performance speed (although a capacity to respond quickly and precisely, with spontaneity). It is unclear why performance speed has not improved from December 2003, where this would be expected as part of the natural course of recovery from her stated injury. There did not appear to be a generalised deficit on measures of visual scanning, spatial organization or planning ability, or with spatial reasoning and integration of information. Ms Lane did not demonstrate features of executive deficit that is frequently observed following head injury, where she appeared not to be rigid or perseverative, did not make impulsive errors, appeared able to self-regulate and monitor her performance, and where she was able to adapt to different task demands over a period of hours. Verbal skills were a particular strength at superior levels, particularly vocabulary knowledge and verbal abstraction.
. . .
The neuropsychological test results above, and findings of the clinical assessment, provide evidence in support of such areas of preserved ability that can be utilized on a graduated program of return to duties as a Teacher. In addition, it would now be expected that Ms Lane should have made significant recovery (given the reported information in the literature concerning recovery from head injury). Any ongoing residual deficit might therefore reflect her loss of confidence and psychological coping with the accident.”
40 Dr Gibbs reassessed the plaintiff on 10 January 2008 and has provided a report dated 14 January 2008. In this report he states that the door mechanism which fell on the plaintiff weighed 40 grams and struck her a glancing blow. The evidence is that it weighed 400 grams and was more than a glancing blow, in that it caused bleeding and symptoms of concussion. Dr Gibbs’ opinion may well be influenced by what appeared to him as a quite trivial incident. He notes that at January 2008, the plaintiff was not receiving any psychological or psychiatric treatment, nor taking any prescribed psychotropic medication. This, of course, is consistent with her not suffering from any “permanent severe mental or permanent severe behavioural disturbance or disorder” – see definition of “serious injury” in s.134AB(37). He noted that the plaintiff had “significant relationship difficulty since her injury in July 2003, mainly concerned with the breakdown of her longstanding de facto relationship”. He stated that testing conducted by him “demonstrated a continued reduction in scores that reflected aspects of performance speed and timed visual search”. He states in the report:
“Ms Lane demonstrated an adequate pattern of verbal and visual (spatial) memory performance - albeit with some fluctuation on attentional tasks (particularly one for spatial sequencing). However, overall, she has a good and intact capacity to learn and retain new knowledge and skills, for both spatial and verbal material.
. . .
As reported, there is notable improvement in her prose recall (Logical Memory) albeit with some minor reduction in spatial recall (Visual Reproduction) with this still at above average and adequate levels, not representing impairment.
. . .
No confabulation was apparent during the memory assessment or elsewhere during the interview. There was no inclusion of extraneous information. Memory performance appeared organized and systematic.
. . .
Medical opinion is relevant here in that it would appear that there is potential that there is insufficient brain pathology to explain the widespread nature and severity of ongoing complaint.
One would not expect gross persistent neuropsychological impairment at 4.5 years after what appears as a minor injury, if this was sufficient to produce such pathology.
As referred to in my previous assessment, I considered that psychological factors appeared as a component to her presentation. As such, much of her symptomatology might not be explained by ‘brain damage’ but by attentional shifts, lowering of mood, somatic symptoms, and sleep disturbance (i.e.: depression/anxiety). Any potential residual organic brain injury would be expected to be minimal to nil at some 4.5 years post-event.
I am not a medical practitioner, and so am limited in ability to comment on the physical state of the individual. However, it would appear from the information available that any likely organic brain injury is likely to be minimal to nil, and where physical/medical opinion is advised as to whether she was likely to have sustained a blow of sufficient force to sustain such injury.
. . .
Ms Lane’s performance speed measure significantly declined between assessments conducted in 2003 and 2004 - with these measures remaining low rather than recovering. In the ordinary course of events, with a head/brain injury, one would expect to observe recovery on these measures rather than decline - and particularly after a 4.5 year time period. One would expect at least some recovery, and so this raises the likelihood that this reflects a significant non-organic component, particularly in the absence of broader cognitive deficit.
. . . would be capable of a full return to pre-employment duties, with any likely residual deficit minimal to nil.
Ms Lane’s current level of neuropsychological function indicates that she should be capable of a full return to pre-employment duties and hours - albeit that her performance speed declined from 2003 to 2004 and remained low when tested (where usually recovery over this time would be expected).
. . .
Attention to visual detail was excellent - while a timed measure of visual search/scanning remained at a poor below average range - with no improvement or apparent recovery where this would be expected. A timed written measure of performance speed also remained low- although she was not pervasively slow in her responding, and where one would expect some recovery in the former measure given an expected process of physical recovery.
. . .
Ms Lane is presently working 0.5 EFT, and describes this as being positive albeit with some fatigue. A trial of afternoon work spaced perhaps between a Monday and Wednesday would be worthwhile to see how she copes with a full day, or close to this. This might be over a period of 3 to 6 months. Following assessment of how she copes, an additional afternoon might be added over successive quarters (i.e.: 4 monthly periods).
. . .
It would be expected that a return close to between 0.8 EFT (i.e.: three full days; two half days) to 1 EFT should be possible within the next 6 to 12 months . . .
. . .
It is surprising that given the reported minor nature of any potential blow to the head/brain, and the absence of significant acute loss of consciousness, retrograde/anterograde and post-traumatic amnesia, that a full return has not occurred at present.
It is now some 4.5 years since the event where one would have expected a likely full return by now, as well as significant recovery rather than fluctuation in measures of performance speed. Inability or decline is more likely to relate to management of the matter at the workplace, or subsequent difficulties such as anxiety, depression or psychosocial stressors.
. . .
It would be expected that at some four and a half years post event, particularly where this is said to have been a minor head injury without significant loss of consciousness or acute post-traumatic amnesia, that any residual deficit would be likely to be minimal to nil.”
41 It will be noted that Dr Gibbs suggests that the plaintiff is capable of extending her working hours. What he understands as the extremely minor nature of the injury may well be colouring his views.
42 Dr Malcolm Brown, occupational physician, examined the plaintiff for GIO Workers Compensation on 26 April 2006. In a report of that date, he states:
“This report is given in the absence of any information from the treating general practitioner, from the initial specialist assessments or from the radiological and any other investigations. I note that the treating general practitioner has stated in the certificate of capacity that Ms Lane is not fit for yard duty due to balance problems.
Based on the available information, I believe that Ms Lane may have some residual neurological sequelae from the accident in 2003, but these symptoms seem to be gradually improving. She has now returned to driving, which she seems to be able to manage provided there is no complicated navigation required. My main concern is that she shows evidence of an anxiety/depression condition, most likely secondary to the physical injuries, and there does not appear to have been a psychiatric assessment at any time. I think these psychiatric symptoms are likely to be impairing her progress, and work capacity, and so I recommend a psychiatric assessment is obtained.”
43 It will be noted that Dr Brown had a paucity of background information but concludes that any problems the plaintiff has are more of a psychiatric nature than “residual neurological sequelae” which appear to be “gradually improving”.
44 Dr Timothy Entwisle, consultant psychiatrist, examined the plaintiff for GIO Workers Compensation on 23 May 2006 and reported on 25 May 2006. He accepted that the plaintiff has an acquired brain injury, that she had “various memory and concentration difficulties” but stated that she did not have a psychiatric condition. He regarded her as being “highly motivated”. When he examined the plaintiff on the second occasion on 11 November 2008 he had a copy of Professor Davis’ report of 11 June 2008. In a report of 14 November 2008 to the defendant’s solicitors, he confirmed that the plaintiff did not have a psychiatric condition “apart from some headaches and some beliefs about her incapacities accompanied by some anxiety”. He saw the plaintiff as having a perception that she was brain-injured, even though neuropsychological assessments did not support this opinion. He concludes:
“She does have a capacity to return to her pre-injury employment from a psychiatric perspective alone. No doubt however her now entrenched beliefs and perception of being brain injured will act as a significant barrier to that. She leads a somewhat restricted existence around an organised routine which produces little in the way of work output. She would no doubt experience any request to increase her work requirements in that respect as difficult and stressful. Nonetheless with reassurance, support and firm direction I do believe that she could cope with more than she is doing currently.”
45 Dr Entwisle, in his second report, refers to the plaintiff’s “entrenched beliefs and perception of being brain injured”. He stated, however, that on 11 November 2008, the plaintiff presented “in much the same manner as she did previously” when he accepted that the plaintiff had an acquired brain injury. It appears that he may have been influenced by the opinion of Professor Davis, in his report of 11 June 2008 which he had on the second examination. He states in the report of 14 November 2008 that neuropsychological assessments do not support the plaintiff. This is incorrect as Dr Burton’s and Professor Ponsford’s assessments do support the plaintiff.
46 I note that Dr Entwisle is the only medical reporter who states that the plaintiff could return to her pre-accident work.
47 Dr Leslie Sedal, consultant neurologist, examined the plaintiff on 31 July 2006 at the request of GIO Workers Compensation. In a report dated 24 August 2006, he stated:
“On examination I did not find any physical neurological abnormality including examination of the cranial nerves and fundi, the power, tone, reflexes, sensation and gait. Her tests of cerebellar function were normal. However she swayed on the Romberg test. She had some brief episodes of movement of her right leg and I felt the movements were more likely to be related to her psychological state of nervousness rather than reflecting any neurological movement disorder or disease. She scored 29/30 on the Folstein Mini Mental State Examination which is still in the normal range.
She had with her an MRI scan of the brain performed on the 25th of September 2003 and a CAT scan of the brain performed on the 5th of August 2003. The CAT scan appeared normal and the MRI scan showed minor white matter changes which are not necessarily abnormal at this age.
Comments
Nature of ConditionMs Lane suffered a head injury without loss of consciousness and I believe has suffered and continues to suffer from Post Concussional Syndrome. This has persisted to the present time and a brain injury has been accepted. She reports problems with memory, multi tasking and concentration and neuropsychological testing has shown slowness of information processing and fluctuation in concentration and attention.
. . . the assessment of her accepted brain injury.”
From a neurological point of view her condition has stabilized at the
present level of symptomatology and her impairment has stabilized.
. . .
48 Three doctors constituting a Medical Panel pursuant to the Act examined the plaintiff on 29 May 2007. Dr John Lloyd, a neuropsychiatrist, examined her individually, and Dr David Barton, an occupational physician, and Dr Robert Hjorth, a neurologist, examined her jointly. Their Reasons for Opinion, with the consent of the parties, were tendered before me. The Panel, in these reasons dated 8 June 2007, stated:
“On mental state examination the worker presented as a quietly spoken woman who experienced difficulty giving a clear history. She appeared anxious and unhappy and preoccupied by her multiple physical complaints, and she presented a typewritten page with 53 complaints. There was no disorder in the form or content of thought and no major perceptual change suggestive of psychosis was identified. Her manner was generally slow and laboured and there was limited reactivity. She was fluent throughout and no language disorder was identified although the worker complained of using the wrong words at times. The Panel concluded that the worker is suffering from a Chronic Adjustment Disorder with anxiety and somatoform features and illness preoccupation relevant to the accepted injuries.
Based on the worker’s description of her current duties and the Panel’s findings on examination, the Panel concluded that the worker is currently working to her full capacity.
As the worker’s condition is unlikely to change in the foreseeable future, the Panel also concluded that she is likely to continue indefinitely to be incapable of undertaking further or additional employment or work because of the injury.”
49 Professor Stephen Davis, neurologist, examined the plaintiff at the request of the defendant’s solicitors in June 2008. In a report of 11 June 2008 he states:
“1 This patient has had an extremely mild brain injury with no loss of consciousness or amnesia. Her MRI brain scan which I reviewed today is normal for age. She has a single T2 hyperintensity in the left frontal lobe and the radiologist has correctly stated that this is ‘of no significance’ and that the study is otherwise normal. Apparently she was being investigated at that time for choreiform movements which was certainly not a feature on the examination today. She had a normal CT brain scan. Hence the previous report of evidence of ‘contusions’ on the MRI scan is incorrect.
2 With this type of brain injury, it would be most surprising if there were persisting significant neuropsychological issues. She certainly believes that she has had a significant head injury and one cannot completely rule out the possibility of a very high level neuronal injury, although frankly I think this is unlikely. To be fair, this cannot be entirely excluded and hence she may have sustained a minimal brain injury as a result of this accident.
3 I would consider that a large proportion of the current symptoms and subjected disability in terms of work has a psychological or psychiatric basis rather than brain injury. On neurological grounds, I certainly think that she could work full-time and probably in her present employment. I think that most of the current symptoms have a substantial psychological contribution. This is not in any way to suggest that she is elaborating or feigning her symptoms, that they simply are extraordinarily unlikely to be due to diffuse axonal injuries to the brain. Again, I would emphasise that a very high level injury cannot be excluded. . . . This seems to be in line also with the very comprehensive assessment by Dr Andrew Gibbs on the 2 occasions he saw her in 2006 and 2008. She therefore certainly does have a current work capacity and I believe she would in fact be able to gradually increase to full-time employment. The main barrier in fact is a very strong perception that brain function has been irreversibly damaged by what at most has been a very mild head injury. This fear has of course been reinforced by various treating doctors and other specialists.
4 Her headaches are not due to any brain injury but it could be argued that they have been exacerbated/precipitated by psychological or psychiatric factors.”
50 It will be noted that he confirms that the plaintiff suffered a brain injury, although he rates it as “extremely mild”. He states that there is a possibility of “a very high level neuronal injury”. It will be noted that, in his view, the plaintiff is not elaborating or feigning her symptoms.
51 Mr Daryl Nye, neurosurgeon, examined the plaintiff at the request of GIO Workers Compensation on 16 September 2008. The plaintiff provided him with a lengthy list of symptoms and limitations on her activities. In a report of 16 September 2008 he states:
“No radiological material was presented for inspection, the subject did produce a report on an MRI scan of the brain undergone on the 25th September 2003, and the reporting radiologist identifies a very small 2 mm minor T2 area of signal in the left frontal region and this was considered to be of ‘no significance’. A CT scan of the 6th October 2003 was also reported as normal.
Conclusion
Following my examination of the above I came to the conclusion that in the work related incident a minor head injury was sustained with a scalp laceration which did not require suture repair and loss of consciousness did not occur. Under the circumstances it is difficult to explain the post- injury symptoms, and particularly enduring for a number of years, however I acknowledge that it is possible that in the immediate post injury period post concussion like symptoms were experienced, and the possibility of post traumatic migraine would also be acknowledged. Under ordinary circumstances one would expect with time a complete recovery from all aspects of injury, and the continuing galaxy of complaints suggest strongly to my mind a psychosomatic condition. I would be in a position to provide further comment if access to reports prepared by other assessing specialists and particularly Neurologist, Psychologists or Neuropsychologists were available.
. . .
3 I am of the opinion that the physical consequences of injury have resolved, and do not materially contribute to an incapacity for work or need for treatment services. The same comment cannot apply to the possibility of a secondary psychological condition, with development of a psychosomatic syndrome.
4 I believe the worker has a current capacity for employment, but not for full pre-injury duties, and with respect to the current work situation this individual is probably functioning to a maximum.
. . .
6 As stated I consider the worker functioning to her full capacity and I do not believe that an increase in hours would be possible at this late stage.
7 I have not identified any physical condition which would prevent the worker increasing current work responsibilities with respect to the nature of the work undertaken.
8 Having regard to the time relationships the prognosis for improvement is not considered favourable.
9 The clinical examination does not support the contention that a physical disorder exists with respect to limitation of capacity for employment.
. . .
[S]he is currently functioning to her maximum in consideration of non-
organically determined aspects of presentation.. . .
5 It would have to be accepted that employment and the related injury contributes to a partial incapacity for employment.”
52 In summary, Mr Nye cannot see any organic basis for the plaintiff’s present condition, although, as he notes, he would be in a position to provide further comment were he provided with reports of other assessing specialists. Unfortunately, this invitation was not accepted. Somewhat strangely, he states that the plaintiff is presently working to maximum capacity, even though he states she has no present organic disability.
Discussion and Conclusions
53 I consider, firstly, whether the plaintiff has suffered a serious injury as defined in sub-paragraph (a). In doing so, I am particularly mindful of the provisions of s.134AB(38)(h).
54 As indicated, there is no issue that the plaintiff suffered a brain injury, even if somewhat minor, in the accident. Dr Burton, a clinical neuropsychologist, states that the plaintiff, as a result of the accident, has “a marked slowing in her speed of information processing”. She also refers to fluctuations in attention and concentration. These disabilities, in my view, are not of a psychological or psychiatric nature but are rather physical consequences of the injury. Ms Dedovic, psychologist, who counselled the plaintiff on many occasions between May 2004 and February 2007, generally agrees with Dr Burton. Dr Gornall, the plaintiff’s general practitioner, who has seen her regularly since the accident and now sees her every three months, accepts the plaintiff’s problems as being genuine. Dr Clayton Thomas accepts the opinion of Dr Burton, and notes that the plaintiff is “highly motivated with respect to her rehabilitation”. Dr Kwong accepts that the plaintiff has lost some mental capacity as a result of the accident, and states that this has caused “a very mild adjustment disorder with mixed anxiety and depressed mood”.
55 Testing by Professor Ponsford in June 2008 confirms the plaintiff’s slowness in information processing, together with difficulties with working memory. She, too, notes the presence of anxiety.
56 There is thus a strong body of evidence before me that the plaintiff, as a result of the accident, has suffered slowness of information processing and mildly reduced working memory. Further, these limitations, after the period of time which has passed since the accident, are regarded as being permanent.
57 There were optimistic views shortly after the accident that the plaintiff would make a substantial, if not full recovery from her acquired brain injury. It seemed that unfortunately, this is an unusual case where this did not occur.
58 So far as the plaintiff’s anxiety condition and mild depression are concerned, the comments of Ashley JA, with whom Neave JA and Pagone AJ agreed, in Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167, at paragraph 19, are relevant:
“. . . A court might well be able to conclude, considering all the evidence, that on the probabilities the plaintiff has suffered a physically-based impairment which satisfies the statutory test even though identification of the precise quantum of a supervening psychological overlay has not been attempted, or is in the real world impossible.”
59 The example given by Ashley JA, at paragraph 26 of Jayatilake v Toyota Motor Corp Australia Limited of a man losing a dominant right arm in an industrial accident and then suffering from somatic symptoms is particularly relevant.
60 I note the pertinent comment of Buchanan JA in Smorgon Steel Tube Mills Pty Ltd v Majkic [2008] VSCA 230, where His Honour stated, at paragraph 25:
“This was not a case that required the disentangling of the effects of physical and psychiatric conditions. Rather, the question was whether or not the respondent suffered from complex regional pain syndrome, which did have an organic or physical basis. . . . I consider that the medical evidence taken as a whole warranted the conclusion that the respondent’s foot injury produced a complex regional pain syndrome, that is, real, chronic and disabling pain, which was physical, not psychiatric, in origin. . . . “
61 Here, the plaintiff’s anxiety condition and mild depression caused by the frustration of being unable to operate normally as a teacher are perfectly understandable.
62 This medical and like evidence must be considered in the context of the whole of the evidence before me – see Grech v Orica Australia Pty Ltd & Anor (2006) 14 VR 602, at 611. In this regard, I particularly note the favourable impression the plaintiff made on a number of those who examined her. Dr Clayton Thomas refers to her as being “highly motivated”. Professor Davis expressed the view that she was not exaggerating or feigning her symptoms. Dr Entwisle also regarded her as highly motivated. Dr Burton stated that the plaintiff was co-operative and attempted all tasks administered and there was no suggestion that she was exaggerating her symptoms. Ms Dedovic has referred to the plaintiff’s “will to succeed”. The opinion of Professor Ponsford that the plaintiff performed above average in most tests suggests that the plaintiff was well-motivated and not feigning her symptoms. Adelaide Barbon, of Barbon Smith & Associates, Injury Management and Conflict Resolution Consultants, in an email dated 1 December 2005, refers to the plaintiff as being “extremely motivated” and, incidentally, accepted the problems with teaching, as described by the plaintiff. In fact, of the many who examined the plaintiff, Dr Gibbs alone suggests the possibility of a lack of motivation on the plaintiff’s part.
63 Further, I indicate that having observed the plaintiff give evidence in this application over several hours, I have no reason to doubt her credibility as a witness. As indicated, she created a like impression on many of the doctors and psychologists who examined her and who accepted her as being genuine. She readily conceded under cross-examination that she had told Adelaide Barbon, shortly after the accident, that she was living alone, whereas she was living in a de facto relationship. She stated that she did so since, when employed in the Catholic education system, she was required to sign a form stating that there was nothing in her personal life that would contravene the Catholic ethos. In my view, nothing turns upon this, and I do not regard the plaintiff’s overall credibility as having been affected by it.
64 Obviously the neuropsychological testing is central to this application. The fact that the plaintiff consistently performed well with some tests and consistently poorly with others suggests that she is genuine. The fact that on Professor Ponsford’s tests she performed well over average on various tests suggests that she was not feigning her symptoms.
65 The plaintiff had some difficulty in understanding the questions put to her in cross-examination which appeared to me to be consistent with her condition.
66 I turn to consider medical and like reports which might be thought not so supportive of the plaintiff and which were relied on by the defendant. I have already commented, to some extent, on what I see as limitations in these reports.
67 Professor Davis refers to the plaintiff’s perception that she has suffered a more serious brain injury than she has. He does not suggest, however, that she is not having problems with information retention nor does he query the accuracy of Dr Burton’s testing. Further, he did not have the benefit of Professor Ponsford’s views.
68 So far as the Medical Panel is concerned, Mr Batten particularly relied upon the fact that a member of it, Dr Lloyd, was a neuropsychiatrist. The Medical Panel also refers to the plaintiff as suffering from a chronic adjustment disorder and an illness preoccupation. They had a copy of Ms Dedovic’s report of 19 July 2006. They refer to it as a 6-page report. As mentioned, I have two reports from Ms Dedovic dated 2 March 2006 (6-pages) and 15 August 2006 (5-pages). If they are referring to the report of 2 March 2006, there Ms Dedovic refers to the neuropsychological assessments of Dr Burton. It appears, however, that they did not have Dr Burton’s assessments and opinion and Professor Ponsford’s assessment and opinion. They had Dr Gibbs’ assessment of 26 April 2006. The Panel’s reasons dated 8 June 2007 state that the plaintiff told them of her symptoms, including memory difficulties. They do not suggest that the plaintiff is feigning her symptoms, nor do they dispute the neuropsychological assessments of which they were aware.
69 Mr Nye did not have the benefit of the opinions of Dr Burton and Professor Ponsford relating to the plaintiff’s difficulties in processing information.
70 I have already commented upon what I see as the limitations to Dr Entwisle’s report.
71 Dr Brown bemoans the fact that he has little background information. It appears that he had Dr Burton’s report of 12 December 2003. He makes no comment upon it. He does, however, in April 2006, state that the plaintiff “may have some residual neurological sequelae”. His report, in my view, gives little comfort to the defendant.
72 Dr Gibbs suggests that the plaintiff’s problems with information processing were due to lack of motivation on her part. As mentioned, there is ample evidence before me that the plaintiff was highly motivated. Further, as mentioned, Dr Gibbs’ views may well have been coloured by his understanding that the plaintiff was struck a glancing blow by a weight of only 40 grams. I think there is some validity in Mr Hore-Lacy’s submission that Dr Gibbs’ views seem to be influenced by the recovery which the plaintiff might normally have been expected to make from her brain injury rather than by accepting the plaintiff as in fact she was and whom I accept as credible and motivated.
73 Dr Sedal appears to accept that the plaintiff has “slowness of information processing and fluctuation in concentration and attention” and regards her as suffering from post-concussional syndrome. There is, however, to adopt the language of Buchanan JA in Smorgon Steel Tube Mills referred to above, “an organic or physical basis” for this syndrome.
74 Video footage of the plaintiff was shown in the course of the application. Mr Batten relied upon this and the activities of the plaintiff such as shown on Facebook as indicating that she was leading a fairly normal life. However, these matters must be looked at in the context of the neuropsychological test results and my acceptance that she was motivated and a credible witness. These matters, in my view, show nothing which contradicts the plaintiff’s evidence or histories given by her to doctors and like professionals.
75 Mr Batten submitted that I should conclude that relationship difficulties played a major part in the plaintiff’s problems and that I should not accept that these arose only after the accident. He relied particularly upon an incident a week or so after the accident which suggested an already existing deterioration in the relationship. As indicated, I accept the plaintiff as a credible witness and I accept her evidence that the relationship breakdown only occurred after the accident as a result of her changed personality. Any consideration of the effect of the relationship breakdown also needs to be considered in the context of the neuropsychological testing results and the plaintiff’s motivation.
76 It is not in issue that the plaintiff suffered an acquired brain injury in the accident. The preponderance of the evidence is, in my view, that this has led to problems with information processing and working memory and visual- spatial problems, the problems are permanent and that the plaintiff is presently working at the limit of her capacity, 17.5 hours each week, half effective full-time.
77 As to her “without injury” earnings, the plaintiff sought to rely upon the sum which a teacher of her classification would have received under the Victorian Catholic Schools and Catholic Education Officers Certified Agreement (2004– 2007) for the period commencing 1 December 2005 and 1 January 2006, $64,531 per annum. Mr Hore-Lacy submitted that this figure “most fairly reflects the worker’s earning capacity had the injury not occurred”: (see sub-s.(38)(f)). To this sum is to be added the further sum of $200 per fortnight ($5,200 per annum) which she received in addition for her role as Religious Education Coordinator. Thus, the “without injury” earnings of the plaintiff are $69,731 per annum.
78 In her present position at Our Lady of the Nativity Primary School, Aberfeldie, the plaintiff earns $34,094 gross per annum. Mr Hore-Lacy submitted that this figure represented both what the worker is presently earning and is capable of earning in suitable employment for the purposes of sub-s.38(f).
79 Mr Batten did not dispute that the plaintiff’s “without injury” earnings were as stated above, nor that the plaintiff is presently earning the sum of $34,094 per annum. $34,094 as approximately 49 per cent of $69,731. I accept these figures. Having concluded that the plaintiff is presently working to her full capacity, it follows that she has a loss of earning capacity of greater than 40 per cent.
80 She has clearly satisfied s.134AB (38)(e), (f) and (g). The plaintiff has also, in my view, satisfied s.134AB(38)(b) and (c), so far as loss of earning capacity consequences are concerned.
81 Mr Batten appropriately conceded that should I find that the plaintiff has suffered a serious injury with respect to loss of earning capacity, it followed that I should also find that the plaintiff has suffered a serious injury with respect to pain and suffering consequences.
82 In the event, there is no need for me to consider whether the plaintiff suffered a serious injury within the meaning of sub-paragraph (c).
83 I give leave to the plaintiff to issue proceedings for the recovery of damages with respect to both pain and suffering and loss of earning capacity.
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