Long v Colin Green Demolitions

DETERMINATION OF APPEAL PANEL
CITATION:	Long v Colin Green Demolitions [2024] NSWPICMP 564
APPELLANT:	Phillip John Long
RESPONDENT:	Colin Green Demolitions
APPEAL PANEL
MEMBER:	Carolyn Rimmer
MEDICAL ASSESSOR:	Ross Mellick
MEDICAL ASSESSOR:	Michael Steiner
DATE OF DECISION:	13 August 2024
CATCHWORDS:	WORKERS COMPENSATION - Assessment under the Table of Disabilities by Medical Assessor (MA) in respect of loss of sight in both eyes as a result of an injury on 5 April 2001; MA assessed 0% loss of efficient use or impairment of the visual and nervous system; worker appealed on the grounds that the decision was made on the basis of incorrect criteria and the decision contained a demonstrable error; MA failed to discuss the reports of Associate Professor Fraser and explain why his opinion differed; Held – demonstrable error found; Medical Appeal Panel reviewed the evidence and concluded that that there was an obvious history of visual neglect on one side but no obvious history of visual field defects; 25% loss of efficient sight in both eyes; Medical Assessment Certificate revoked.

BACKGROUND TO THE APPLICATION TO APPEAL

On 20 May 2024 Phillip John Long (the appellant) lodged an Application to Appeal Against the Decision of a Medical Assessor. The medical dispute was assessed by Dr Ron Granot, a Medical Assessor, who issued a Medical Assessment Certificate (MAC) on 20 May 2024.
The appellant relies on the following grounds of appeal under s 327(3) of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act):
· the assessment was made on the basis of incorrect criteria, and
· the MAC contains a demonstrable error.
The delegate is satisfied that, on the face of the application, at least one ground of appeal has been made out. The Appeal Panel has conducted a review of the original medical assessment but limited to the ground(s) of appeal on which the appeal is made.
Rule 128 of the Personal Injury Commission Rules 2021 (the PIC Rules) and Procedural Direction PIC7 - Appeals, reviews, reconsiderations and correction of obvious errors in medical disputes set out the practice and procedure in relation to the medical appeal process under s 328 of the 1998 Act. An Appeal Panel determines its own procedures in accordance with r 128(1) of the PIC Rules.
This matter is assessed under the Table of Disabilities.

RELEVANT FACTUAL BACKGROUND

The appellant lodged an Application to Resolve a Dispute (ARD) in the Personal Injury Commission (Commission) on 26 October 2023 in which he claimed an amount of $55,000 in respect of 55% loss of sight in both eyes. The appellant alleged that on 5 April 2001 he fell from a ladder onto concrete hitting his head causing injury to his head and brain including visual processing issues which resulted in permanent loss of vision in both eyes.
In a Certificate of Determination – Consent Orders (COD) dated 1 December 2023, Member Peacock made the following orders:
“1. Admit late reply.
2. The matter is remitted to the President for referral to a Medical Assessor pursuant to section 321 of the Workplace Injury Management and Workers Compensation Act 1998 for assessment as follows:
a) Date of Injury: 5 April 2001
b) Body systems/parts: loss of sight of both eyes
c) Method of assessment: table of disabilities
3. The documents to be forwarded to the Medical Assessor are as follows:
a) The Application to Resolve a Dispute and all documents attached.
b) The late Reply and all documents attached.
4. It is noted the applicant resides in Tasmania and the respondent will pay travel costs.
5. It is noted that the parties consider that an appropriate speciality would be a ‘neuro-ophthalmologist’ but the parties understand that the choice of speciality is a matter that is solely within the direction of the Commission.”
In the Referral for Assessment of Permanent Impairment to Medical Assessor (the referral) dated 6 February 2024 the matter was referred to the Medical Assessor Ron Granot, for assessment of whole person impairment (WPI) of the neurological /visual system with the date of injury being 5 April 2001.
The Medical Assessor examined the appellant on 8 April 2024 and assessed 0% loss of efficient use or impairment of the visual and nervous system as a result of the injury on
5 April 2001.

PRELIMINARY REVIEW

The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
The appellant submitted that the errors identified ought to allow the application to proceed and for the applicant to be re-examined by an “AMS” (sic) being a member of the Appeal Panel, in the appropriate discipline or disciplines.
As a result of that preliminary review, the Appeal Panel determined that it was not necessary for the worker to undergo a further medical examination because there was sufficient information upon which to make a determination.

EVIDENCE

Documentary evidence

The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.

Medical Assessment Certificate

The parts of the medical certificate given by the Medical Assessor that are relevant to the appeal are set out, where relevant, in the body of this decision.

SUBMISSIONS

Both parties made written submissions. They are not repeated in full but have been considered by the Appeal Panel.
The appellant’s submissions include the following:
(a)    Ground 1 - The MAC does not demonstrate a path of reasoning which is an error on the face of the record.
(b)    Under paragraph 6 "Details and dates of special investigations" the Medical Assessor states “Discussed in documentation". There is no "discussion" on the face of the record, except to exclusively adopt Dr Milder. The reasoning makes no reference to the reports dated 27 May 2021 of Associate Professor Clare Fraser, who is qualified as specialist consultant neuro-ophthalmologist at the Sydney Eye Hospital. The failure to logically explain how he rejected that opinion is completely absent and constitutes an error of law on the face of the record.
(c)    At paragraph 8 (a), the Medical Assessor confined his expertise to “nervous system”. This should have led him to defer to the opinion of Associate Professor Fraser and the neuropsychological tests that demonstrated a likelihood of "contra coup" injury as reported by Dr Wayne Reid on 7 January 2010 and Dr Jeanne Geourgius on 28 September 2014. For the Medical Assessor to form his own opinion, in finding 0% WPI, it required as a minimum, a process of reasoning that can be discerned on the face of the record.
(d)    Ground 2 - The MAC demonstrates jurisdictional error and/or legal unreasonableness in illogically rejecting uncontested evidence of the history of visual disturbance, properly assessable under the criteria in Chapter 13.10 (and related guidelines in Chapters 12 and 13).
(e)    The absence of reference to the relevant historical testing of the applicant and to the specialist reports of Associate Professor Clare Fraser, must lead to a conclusion that the Medical Assessor was legally unreasonable and therefore falls into jurisdictional error entitling the relief sought.
(f) Ground 3 s327(3)(d) -The record demonstrates the Medical Assessor did not attach his visual field testing and the appellant was not afforded an opportunity to have that testing done on referral by the Commission, leading to practical injustice and jurisdictional error.
(g)    The Medical Assessor confined his expertise to "nervous system”. lf migraine was a potential reason for visual disturbance and decline, procedural fairness dictates the appellant be directly asked and offered an opportunity support his case. Alternatively, the Medical Assessor had power to defer the assessment, for such tests as were required to confirm or eliminate this contra coup pathology. The practical injustice demonstrated should be regarded as jurisdictional error.
(h)    Ground 4 – the Medical Assessor was to assess the WPI as set out in the referral. If there was significant dispute as to his task, it would (and should) have been the subject of a defended hearing, to make relevant findings of fact. Instead, the Medical Assessor proceeds on the assumption that injury and causation were in dispute to lead himself to his conclusion. This is constructive failure to exercise jurisdiction, or jurisdictional error.
(i)    While the MAC speaks of visual field testing being carried out [at paragraph 5] there is absolutely no reference to the symptomology as would qualify the applicant under chapter 13.10 of the AMA5, nor are the visual field testing maps reproduced with the MAC.
(j)    The COD dated 1 December 2023 demonstrates that the parties by consent, through Member Peacock, agreed to have the issue of WPI determined by a medical assessor. The terms of that referral were that the applicant be assessed for "loss of sight of both eyes".
(k)    If there was a legitimate dispute on causation by the effect of his accepted injury, the respondent would have insisted that the issue of liability be determined by Member Peacock. That did not occur.
(l)    lt is apparent from the face of the record [at paragraph 9] the Medical Assessor assumed that there was no traumatic brain injury, relevant to causation, or that he did not have to follow the mandated medical assessment guidelines. This a "constructive failure to exercise jurisdiction" being jurisdictional error, entitling the relief sought.
(m)     The appellant ought be re-examined by an AMS [sic] being a member of the Appeal Panel, in the appropriate discipline or disciplines. Such an assessment should properly determine the scores and re-assess the appellant's WPI. Alternatively, the MAC should be set aside, and the Appeal Panel proceed to score him on the assessment of Dr Duke, viz., 55% WPI.
The respondent’s submissions include the following:
(a)    The appellant sustained his injuries on 5 April 2001 and therefore an assessment of whole person impairment is not appropriate. The assessment should be carried out under the Table of Disabilities in respect of loss of sight of both eyes.
(b)    The appellant was referred pursuant to the Certificate of Determination – Consent Orders of Member Jane Peacock dated 1 December 2023 to have an assessment carried out in accordance with the Table of Disabilities.
(c)    In the MAC, the Medical Assessor refers to a method assessment of whole person impairment and comes to a conclusion that the relevant body part is that of “visual and nervous system” with a stated date of injury of 5 April 2001.
(d)    Ground 1 – the appellant submitted that the Medical Assessor did not demonstrate a path of reasoning and therefore falls into error in respect of the record. This does not amount to either the application of incorrect criteria or represent a demonstrable error.
(e) Ground 2, the appellant refers to a “jurisdictional error and/or legal unreasonableness”. This is not the appropriate test under s 327(3)(d).
(f)    Ground 3, the appellant submits that the Medical Assessor did not attach his alleged visual field testing and/or was not afforded an opportunity to have that testing carried out. The Medical Assessor refers at paragraph 9 of the MAC to “electrophysiological testing of the visual pathways does not demonstrate any abnormalities, suggesting that electrical signals from the retina are transmitted to the brain without significant delay.” The Medical Assessor did not indicate what electrophysiological testing was being referred to.
(g)    Ground 4, the respondent concedes there was no dispute relating to the referral. The Medical Assessor was remitted the matter by the President in order to determine the extent of loss of sight of both eyes under the Table of Disabilities with respect to a date of injury of 5 April 2001.
(h)    The appellant’s reference to the AMA 5 Guidelines is totally irrelevant to the determination as the determination was to be made pursuant to the Table of Disabilities.
(i)    On the face of it, it is accepted that the Medical Assessor has made an error with respect to referring to the method of assessment as being pursuant to the whole person impairment, however, it is clear that the COD had indicated that the matter was to be referred pursuant to the Table of Disabilities.
(j)    The assessment of 0% permanent loss of sight of both eyes should be upheld by the Appeal Panel.
The appellant in submissions in reply included the following:
(a) The reference to “WPI” in submissions should have read “permanent loss of sight in both eyes”.
(b) The appellant makes a supplementary submission that the Medical Assessor demonstrably errs in failing to provide an assessment of permanent loss of sight in both eyes, as he was delegated to determine.

FINDINGS AND REASONS

The procedures on appeal are contained in s 328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons. Where there are disputes of fact it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. Where more than one conclusion is open, it will be necessary to explain why one conclusion is preferred. On the other hand, the reasons need not be extensive or provide a detailed explanation of the criteria applied by the medical professionals in reaching a professional judgement.

Ground 1 - The MAC does not demonstrate a path of reasoning

The appellant submits that the MAC does not demonstrate a path of reasoning which is an error on the face of the record. In particular, the appellant argued that under paragraph 6 "Details and dates of special investigations" the Medical Assessor states “Discussed in documentation" but there is no "discussion" on the face of the record, except to exclusively adopt Dr Milder [at 10(c)]. The reasoning makes no reference to the reports dated
27 May 2021 of Associate Professor Clare Fraser, who is qualified as specialist consultant neuro-ophthalmologist at the Sydney Eye Hospital.
The Appeal Panel reviewed the evidence in this matter.
As noted above, Member Peacock made orders on 1 December 2023 remitting the matter to the President to refer to a Medical Assessor to assess loss of sight in both eyes under the Table of Disabilities with the date of injury being 5 April 2001.
The President’s delegate then referred the matter to the Medical Assessor in a referral dated 4 February 2024. However, this referral provided that the method of assessment was “whole person impairment” and the body parts referred were “Neurological/visual system”. The date of injury was 5 April 2001.
The referral was incorrect in so far as it provided that the method of assessment was “whole person impairment” and the body parts referred were “Neurological/visual system”. It appears that neither party objected to the terms of the referral. However, despite this error in the referral and a reference in the MAC to the method of assessment as “whole person impairment” and the body parts referred as “Neurological/visual system”, it is clear from Table 1 at the end of the MAC that the Medical Assessor did in fact make an assessment under the Table of Disabilities although the body part was described as “Visual and Nervous System” rather than “loss of sight in both eyes” as agreed in the COD.
The Medical Assessor under Part 2 in the MAC did list all the documents which were forwarded to him by the Commission, including the reports of Associate Professor Fraser,
Dr Wayne Reid and Dr Georgious.
Under “History Relating to the Injury” the Medical Assessor wrote:
“He was on the third rung of a ladder and was stripping batons from the ceiling of a single storey garage. Next recollection was him on his hands and knees. Next recollection he was at home and his wife took him to hospital.
He understands that he fell from the ladder and fell backwards, striking his occiput on the ground. He was driven the 90 minutes home by his employer.
He was diagnosed with a fracture of the occiput as well as C2 vertebra.
He recalls having difficulties signing paperwork when initially reviewed in Maitland
Hospital. He states that vision was ‘all blurred… couldn’t make anything out’. He states he still has ‘floaters… black spots’ described as pin sized and moving in his vision. When asked specifically, he recalls ‘blotches’ which were the size of a pea, but are now ‘pinhead’ sized. He denies positive visual features – sparkles or kaleidoscopic patterns, for example.
Ongoing symptoms include ‘fuzziness’ of vision, though he is able to read with glasses – these have just been updated. He finds it difficult to pick up fine objects from the ground.
He is able to read, though becomes tired quickly, feeling somnolence. He is also driving, typically 9-10km, accompanied by his wife. When driving, he specifically denies any specific issues related to vision. He is able to see signs and objects, but describes lack of clarity until he is closer to the object for better vision.
When asked specifically, he did mention bumping into objects on the right side primarily, such as an oncoming post or person. His wife, he states, walks beside him on the right when out. However, he denies any motor vehicle accidents.
He also describes:
- headaches: these are now down to 2 per week, lasting hours to the whole day. These are bifrontal, occasionally occipital, squeezing and throbbing. Photophobia is also noted throughout, worse with the headaches as is phonophobia. Nausea was a more prominent accompaniment. Nurofen is effective in resolving them or sleep. He does not recall any migraine prophylaxis.
- postural light-headedness, when arising from a squat, which worsens the floaters
- neck stiffness, limiting rotation such as when driving
• Present treatment: Nurofen is effective in resolving headaches. He does not recall any migraine prophylaxis. He is having glasses updated frequently.
• Present symptoms: floaters, general visual fuzziness, headaches, postural light-headedness.”
Under “Social Activities/ADL” the Medical Assessor noted:
“He breeds birds, but has difficulties with putting rings on the birds’ legs, due to poor vision. He no longer is able to play snooker due to poor vision and neck pain. He is independent in self care. He takes the bins out, mows the lawn (ride on mower), though may hit the edge and clothes pegs”.
Under “Findings on Physical Examination” the Medical Assessor wrote:
“He was able to read with glasses to N5 line. Acuity for binocular vision was 6/6 corrected.
Visual fields were normal to confrontation, including for colour. Ocular movements were within normal limits without diplopia. There was no visual inattention.
Cranial nerve examination was within normal limits.
Limbs showed normal tone, power, reflexes and coordination. He was, with encouragement to remain accurate, able to demonstrate normal finger-nose testing with no dysmetria, to the left or right. There was normal sensation and specifically no sensory inattention”.
Under “Summary”, the Medical Assessor made a diagnosis of an occipital skull fracture. He wrote: “No definite visual pathway or cerebral injury identified, though there is a component of migraine headache that may be contributing to his current symptomatology”.
Under “consistency of presentation” the Medical Assessor wrote:
“Mr Long describes visual symptoms that have largely been consistent, else he has explained the progression to me today in such a way that makes them so. He describes a general blurring of vision with superimposed “blotches” initially that he states have now become floaters, and describes the latter appropriately enough to make them consistent with the usual definition thereof. He exerts appropriate effort in tests of visual acuity including with reading, and does not deny the preserved function that his vision permits when asked.”

Under “9. The Facts on which the assessment is based” the Medical Assessor wrote:
“Mr Long sustained a head injury of significant force to cause an occipital skull fracture. The question of a traumatic brain injury has been previously dealt with. The question remaining is the cause of the visual symptomatology he complains of and on this basis whether these constiture [sic] an impairment.
From a symptomatic perspective, Mr Long complains of generalised blurring of vision as well as floaters, in the context of headaches which would satisfy diagnostic criteria for migraine. He denies currently any positive symptoms visually, although I note that previously photopsia was described historically.
From an examination perspective, I could not find convincing evidence of reduced visual acuity upon refractive correction, nor could I find convincing evidence of visual or sensory inattention. In addition, he showed no evidence of dysmetria to suggest problematic vision causing functional difficulties.
From an investigation perspective, electrophysiological testing of the visual pathways does not demonstrate any abnormalities, suggesting that electrical signals from the retina are transmitted to the brain without significant delay. This would therefore point strongly away from any structural lesion causing reduced vision of the ocular or cerebral systems. In addition, magnetic resonance imaging of the brain does not demonstrate changes to suggest a lesion causing inattention, and the occipital lobe lesion that was described could only affect a unilateral pathway and would not explain his current symptoms. Therefore, there does not appear to be any structural lesion or evidence of one to suggest interruption of either the visual pathway or the interpretation of the visual input. I will note at this juncture that visual field testing has been reported widely variable, from tunnel vision to homonymous losses and uninterpretable by various practitioners. In all, none of these findings are compatible with his presenting symptoms and given their wide variability and the highly subjective nature of the test, I would consider them unhelpful.
Finally, from the perspective of dysfunction, Mr Long is able to perform all activities of daily living without significant hindrance from his vision, including being able to read and drive. He describes somnolence as an issue with prolonged reading primarily.
From an holistic perspective, therefore, in the context of ongoing migraine headaches, I would suspect that the symptoms he describes are more likely than not to be related to migraine than any other potential differential diagnosis. This would explain the wide variability of results of subjective visual function and subjective visual complaints, whilst maintenance of both structural integrity and neurophysiology of the brain and visual pathway are maintained”.
The Medical Assessor made an assessment of 0% stating that in making that assessment he took into account preserved visual acuity (corrected), intact confrontation visual fields with visual inattention and the investigation results.
In commenting on the other medical opinions and findings submitted by the parties and, where applicable, the reasons why his opinion differs the Medical Assessor wrote:
“Please see a detailed discussion in the response to question 9 above. Essentially, the major differences of opinion centre around the results of visual field automated testing, rather than any definite clinical testing abnormalities. Most of the practitioners did not think that the abnormalities were organic in nature, apart from the neurologist,
Dr Milder, who likewise felt that the findings may well relate to migraine.”
The Appeal Panel noted that in the COD Member Peacock noted that that the parties consider that an appropriate speciality would be a “neuro-ophthalmologist” but understood that the choice of speciality is a matter that is solely within the direction of the Commission.
The Medical Assessor is a neurologist and not a neuro-ophthalmologist. Associate Professor Fraser is a neuro-ophthalmologist, that is, a specialist in the area identified by the parties as an appropriate speciality for the assessment in this matter.
The Appeal Panel is satisfied that the Medical Assessor failed to adequately comment on medical opinions submitted by the parties and, in particular, on the opinion of Associate Professor Fraser. Further, the Medical Assessor failed to provide reasons as to why his opinion differs from that of Associate Professor Fraser and Dr Duke. The failure to provide adequate reasons is a demonstrable error.

Ground 2 - MAC demonstrates jurisdictional error and/or legal unreasonableness

The appellant submits that the MAC demonstrates jurisdictional error and/or legal unreasonableness in illogically rejecting uncontested evidence of the history of visual disturbance. Further, the absence of reference to the relevant historical testing of the applicant and to the reports of Associate Professor Fraser, must lead to a conclusion that the Medical Assessor was legally unreasonable and therefore falls into jurisdictional error.
In view of the findings made above, the Appeal Panel considers it unnecessary to consider this ground of appeal. However, the Appeal Panel notes that the principle of legal unreasonableness is to be considered in the exercise of a discretion in an administrative decision. The appellant did not, in our view, appear to identify the discretion that was to be exercised in this matter.

Ground 3

Ground 3 refers to a number of matters including the failure to attach visual field testing to the MAC, having such visual fields testing done on referral, not putting migraine to the appellant as being the potential reason for visual disturbance and decline and not deferring the assessment to test for contra coup pathology.
Although the Medical Assessor did not attach his visual field testing to the MAC, or afford the appellant an opportunity to have that testing done on referral by the Commission, the Appeal Panel does not consider that this led to practical injustice and jurisdictional error.
The many specialists, who have examined the appellant, have found visual field defects but these have varied markedly. There is evidence that the appellant has significant cognitive difficulties and Associate Professor Fraser says that this accounts for his difficulties in satisfactorily performing a visual fields test. There is no requirement that the visual field test results be attached to the MAC. The Appeal Panel considers in those circumstances, that the Medical Assessor made no error in not attaching his visual field testing to the MAC or referring the appellant for testing on referral by the Commission. The appellant complains that he had not been afforded an opportunity to have the testing done, but in fact the appellant had been tested on many occasions by his treating doctors and Independent Medical Examiners.
Any failure to put migraine as the cause for his visual problems to the appellant, is, in our view, not an error. This was a possible cause identified by other doctors, including Dr Milder and the appellant had ample opportunity to support his case (as he did) before the matter was assessed.
The appellant argues that the Medical Assessor could have deferred his assessment for such tests as required to confirm or eliminate the contra coup pathology diagnosis. However, the appellant does not identify any further tests that could have been carried out to identify such pathology. The Appeal Panel is not persuaded that there was any practical injustice in the Medical Assessor not deferring his assessment.

Ground 4 - the Medical Assessor proceeds on the assumption that injury and causation were in dispute

The appellant submits that the Medical Assessor proceeds on the assumption that injury and causation were in dispute in making his assessment of the WPI of the injuries, as set out in the referral. The appellant argues if there was significant dispute as to his task, it should have been the subject of a defended hearing, to make relevant findings of fact.
The appellant refers to extracts of the guidelines in AMA 5 in Chapter 13.10 all relating to nervous system impairment. However, as noted above, despite the terms of the referral, this was an assessment agreed by the parties to be an assessment under the Table of Disabilities and not of WPI. The references by the appellant to AMA 5 are misplaced.
The appellant submits that if there was a legitimate dispute on causation as to the effect of his accepted injury, the issue of liability would have been determined by Member Peacock and this did not occur. The Appeal Panel considered that the parties agreed that the appellant’s loss of sight be assessed by a Medical Assessor with the method of assessment being the Table of Disabilities. The Medical Assessor can make findings on questions of matters including the degree of permanent impairment of a worker as a result of an injury, and whether any proportion of permanent impairment is due to any previous injury or pre-existing condition or abnormality. Such findings call for determination of a causal connection (Bindah v Carter Holt Harvey Woodproducts Australia Pty Ltd [2014] NSWCCA 264).
The appellant submitted that the Medical Assessor assumed that there was no traumatic brain injury, relevant to causation, which amounted to a "constructive failure to exercise jurisdiction" entitling the relief sought. The Appeal Panel noted that the Medical Assessor actually stated that “The question of a traumatic brain injury has been previously dealt with”. The Medical Assessor did not explain what he meant by this or what the answer the question of whether there was a traumatic brain injury was.
The parties appeared to agree that the matter could be referred for assessment of loss of sight under the Table of Disabilities. No agreement was recorded concerning any agreement relating to the cause of any loss of sight that the Medical Assessor might find on examination. The Appeal Panel considers the Medical Assessor was entitled to determine the question of causation of any loss of sight and did not err in proceedings to do this in the MAC.
However, as noted above, the Medical Assessor failed to adequately consider and discuss the various reports that he listed in the MAC and explain, for example, why he reached a different conclusion on causation of loss of sight to that reached by Associated Professor Fraser, who is a neuro-ophthalmologist, and Dr Duke. This failure was a demonstrable error.
The Appeal Panel reviewed the evidence in this matter.
Dr Benjamin, ophthalmic surgeon, in a report dated 3 July 2001, recorded that the appellant initially had difficulty with his vision for both distance and close work. He wrote: “Now his distant vision is clear but he has had increasing discomfort with close work.” Dr Benjamin concluded that the appellant had a “disturbance of accommodation following the head injury” and referred the applicant to a neurologist.
Dr Milder, consultant neurologist, in a report dated 26 July 2001, wrote: “The perimeters of the visual fields, as determined by confrontation, were entirely normal. The remaining neurological examination was normal.” Dr Milder expressed the opinion that the appellant’s visual disturbances may be migrainous in origin as he appeared to suffer daily migrainous headaches.
Dr Burton, consultant neurologist, in a report dated 29 November 2001, recorded complaints of recurrent dizziness as well as episodes of “blotchiness” of his vision. He noted that the appellant had been referred to Sydney Eye Hospital where he had been seen by a neuro-ophthalmologist. Dr Burton thought that further neurological investigations were necessary in view of the nature of the appellant’s complaints.
Dr Lyn Smith, radiologist, in the report of MRI scan on 29 January 2002 noted that there were “white matter changes adjacent to the posterior horn of the left lateral ventricle which are nonspecific” and possible early stenosis of the left internal carotid artery.
In a report dated 25 March 2002, Dr Burton recorded that the intracranial arterial circulation was examined by Trans Cranial Colour-Coded Duplex and by Trans Cranial Pulse-Wave Doppler. He concluded that these tests “did not demonstrate any definite evidence of intracranial stenotic disease”. He did note the presence of asymmetric distal middle cerebral artery flow profiles and he thought the relevance of this observation “remains uncertain in the context of his presenting complaints”.
On 11 April 2002, Dr Burton carried out visual evoked potentials and oculomotor and caloric testing. He concluded that the former test did not demonstrate any evidence of “a delay in conduction involving the anterior visual pathways”. The latter test did not provide any evidence for the presence of “a persistent, unilateral vestibular lesion”.
On 19 April 2002, Dr Burton reported that he had carried out a Brainstem Auditory Evoked Responses (BAER) test and a Vestibular Evoked Myogenic Potentials (VEMP). He concluded that the combined BAER and VEMP studies did not demonstrate any delay in conduction in the vestibular/cochlear pathways.
On 26 April 2002, Dr Burton reported that the appellant’s investigations revealed “some subtle changes yet those findings do not appear to be of immediate clinical relevance”. He raised the possibility of the appellant undergoing multifocal ERG studies at Sydney Eye Hospital should his visual impairment remain unexplained.
On 28 August 2002, Dr Petsoglou, the senior registrar to Professor Billson, reported that
Dr Billson had seen the applicant at the Save Sight Institute on 13 August 2002. He wrote:
“Mr Long underwent extensive electro-physiological examinations. I have included copies of these reports for your reference.
All the results show that the electrical signals from both eyes were within normal limits. There was no significant loss of vision reflecting his poor performance on prior field tests.
In general, it can be concluded that the eye and visual pathways to the brain are intact and normal. They have not suffered any injury from his fall. It is uncertain whether his visual symptoms are due to some type of higher order problem.”
Dr Benjamin, in a report dated 25 September 2002, reviewed the investigations that had been carried out by Dr Milder, Dr Burton and Dr Billson. He wrote:
“It was concluded that the eye and the visual pathway to the brain were intact and normal and had not been injured in any way from his fall. The absence of any injury to the eye and the absence of any abnormality to the electro-physiological tests strongly suggest a non-organic explanation for his continued symptoms.”
Dr Benjamin stated that he was unable to offer a diagnosis explaining the appellant’s visual symptoms. He continued:
“His symptoms of blotchy vision is applicable to both eyes, but there has been no evidence of injury to the eyes or visual pathways. The only positive detail is tunnel vision in both eyes, the only condition which produced this was lesion of the visual pathway bilaterally, but this has not been demonstrated by any of the electrophysiological tests which have been done.”
Dr Benjamin also wrote: “His visual acuities, clinical examination of the eyes and electrophysiological tests do not show any permanent damage or impairment of sight. However, the visual fields show about 50% loss of visual function.” Dr Benjamin postulated that the latter responses were not entirely accurate as it depends on the person’s responses to the stimuli and the “responses could be suppressed by non-organic factors affecting his brain”. Therefore, Dr Benjamin paid more attention to the results of the electro-physiological tests “which cannot be suppressed by higher centres of the brain or non-organic factors”.
Dr John Harrison, ophthalmic surgeon, in a report dated 23 January 2008, noted that examination did not show any objective evidence of injury to the visual pathways. He expressed the view that field constriction may have resulted from bilateral cortical injury and would constitute a moderate impairment. Dr Harrison stated that he would expect mild difficulties with peripheral objects, and there may be difficulties in dim light. He assessed 52% WPI of the visual system.
Dr Peter Duke, ophthalmic surgeon, in a report dated 4 December 2008, noted that the results of the Visually Evoked Potentials carried out by Dr Burton on 1 April 2001. He noted that those studies did not “demonstrate any evidence of delayed conduction involving the anterior visual pathways (i.e. optic nerve)”. Dr Duke made a diagnosis that included “industrial type concussive head injury” and “post-injury frontal headache, vertigo and blurred vision”. He wrote:
“Based upon the standard of unaided visual acuity, the loss of sight of the right eye is 50% (6/18) and of the left eye 65% (6/24).
There is no loss of visual efficiency due to diplopia. Any visual field defect is
quite unreliable for the purpose of assessment. Thus the assessed loss of sight of the right eye is 50% and of the left eye 65%. Applying the specified formula, 50% X 2 + 65 + 3 = 165 + 3 (ie 55%).
Thus the total visual incapacity is 55% and the whole person visual impairment is thus 52%.”
On 24 February 2009, the appellant saw Dr Benjamin. His “visual field test” demonstrated peripheral constriction amounting to tunnel vision. Dr Benjamin wrote:
“I felt there was marginal increase in the concentric peripheral scotoma leaving only a very small area in the centre through which he could see. My estimate of the disability was around 55-60 percent.
However I observed that in spite of the extensive peripheral visual defect he walked through the surgery quite comfortably. He walked from the waiting room to the consulting room then to the fields room and back to the consultation room without bumping into any objects. Both eyes were straight and had full range of movements. The pupils were normal in size and reaction. The ocular media were clear, the fundi did not show any abnormalities, the optic disc did not show any pallor indicating damage to the visual system. There was no cupping of the discs nor papilloedema. The intraocular tensions were normal. He had no bruit over the carotid regions.”
Dr Benjamin concluded that the appellant had visual field constriction due to non-organic cause. He stated that the restriction had been consistent and was estimated to be between 55 to 60%. He thought that it was likely to remain permanent as it was non-organic.
Dr Duke, in a report dated 25 August 2009, noted that he had read the reports of
Dr Benjamin and Dr Petsoglou. He wrote:
“The concussive head injury may have led to bilateral occipital cortical injury but the electro-physiological tests do not support this and a higher frontal cortical function impairment may be responsible.
The electro-physiological tests could be repeated but I doubt that they would document any change in the former findings.
The opinion of a psychiatrist or psychologist with an expertise in visual physiology may be helpful.
I do not consider that Mr Phillip Long is feigning his apparent visual impairment.”
He suggested that a further consultation may assist in conjunction with updated electrophysiological laboratory techniques.
Dr Wayne Reid, clinical neuropsychologist, in a report dated 7 January 2010 noted that he had administered a battery of neuropsychological tests. There were some specific deficits of serial auditory verbal learning, planning and organisational skills, ability to form concepts and regulate adaptive behaviour.
Dr Reid wrote:
“From my assessment I could find no evidence that he was deliberately exaggerating his cognitive problems. In the context of his history and looking at the mechanisms of brain injury from his fall it seems on the balance of probability he sustained a contra-coup injury to his frontal lobes mainly affecting the orbital basal surface causing a most notable change in his personality and behaviour where he has become more apathetic, anxious, has difficulties with serial auditory verbal learning, thinking quickly and flexibly, adapting and changing his behaviour based on feedback. In addition Mr Long shows evidence of depression and anxiety.”

Dr Reid recommended a referral to a psychiatrist and an MRI of the brain.
Dr Rebecca Briers, consultant in rehabilitation medicine, in a report dated 11 March 2010, noted that when he was admitted to hospital, PTA scoring was not done and that a CT scan revealed an occipital fracture. She examined Mr Long and performed a Mini Mental State Examination (MMSE) where he scored 24/30.
Dr Briers "found it difficult to assess his degree of brain injury on the usual factors such as Glasgow coma scores and post traumatic amnesia testing, as these have not been undertaken". She noted that the appellant when he arrived at Maitland Hospital, had no post-traumatic amnesia (testing was not performed) but no expression of concern about his neurological state was recorded. She believed there was an element of mild to moderate traumatic brain injury and assessed 15% WPI for mental status and cognition.
The MRI brain scan dated 30 March 2010 reported an area of increased subcortical white matter T2 hyperintensity in the left parieto-occipital region, together with multiple other deep white matter hyperintensities in both cerebral hemispheres. The differential diagnosis was considered to include old ischemic change or old trauma.
In a MAC dated 18 August 2011, the Approved Medical Specialist, Associate Professor Fearnside, was requested to assess WPI of the cervical spine, left upper extremity and nervous system (mental status and cognition) as a result of the injury on 5 April 2001. Associate Professor Fearnside made a diagnosis of injury to the cervical spine, left shoulder and head injury – fractured skull.
In relation to the head injury, he wrote:
“With regard to the head injury, Mr Long does not satisfy the criteria for assessment for mental status and cognition as caused by traumatic brain injury. The WorkCover Guides at paragraph 5.8 (page 35) state:
In assessing disturbances of mental status and integrative functioning, and emotional and behavioural disturbances (section I 3.3 (d) and I 3.3 (I), AMA5, pp 319-322, 325- 327), the assessor should make ratings of mental status impairments and emotional and behavioural impairments based on clinical assessment and the results of neuropsychometric testing. Clinical assessment should indicate at least one of the following:
• Significant medically verified abnormalities in initial post-injury Glasgow
Coma Scale Score
• Significant duration of post-traumatic amnesia
• Significant intracranial pathology on CT scan or MRI.
Mr Long had no medically verified abnormality in his GCS. When the ambulance officers came to him, he had normal consciousness and his level of consciousness was not abnormal in Maitland Hospital. Nor was there any record of concern expressed about his neurological state. There was no post-traumatic amnesia recorded. Although he had an occipital fracture, this is not indicative of ‘significant intracranial pathology on CT scan or MRI. The abnormalities on the MRI scan are more likely the result of a small vessel disease. He has a history of hypertension for which he was taking Tritace and the periventricular signal alteration, minimal though it is, is not a pattern seen following traumatic brain injury’.”
Associate Professor Fearnside concluded:
“…it is my opinion that although Mr Long sustained a blow to the head with an occipital skull fracture, he did not sustain a traumatic brain injury, cognitive impairment or a WPI rating under a mental status or cognitive function category.”
Dr Harry Stern, ophthalmic surgeon, in a report dated 25 October 2012 reported that the ocular examination was normal but his visual field finding indicated a right sided incongruous partial homonymous hemianopia. He observed that the field loss did not respect the mid-line. Dr Stern noted that the visual field findings coincided with history of symptoms related to decreased vision on the right side of his vision. He reported that the most recent MRI brain orbits included his notes was one dated 30 March 2010 which suggested old ischemic change in the white matter of the left parieto-occipital lobe which the radiologist stated may be post-traumatic in nature. Dr Stern wrote:
“I, therefore, feel that the findings in the brain could have been caused by the accident and may have caused bilateral visual field changes. These visual changes may have been further modified by poor performance abilities with the regard to visual field testing as indicated in the report. I feel a further opinion should be sought by a neurologist and he should include repeat imaging studies and electro-physiological tests, such as VER (Visually Evoked Response) and ACCUMAP (multi-focal VEP). An O.C.T. (Optical Coherence Tomography) of his retinas including optic nerves and macula, would also be useful.”
The report from QDI Buderim of MRI brain scan dated 14 August 2013 noted focal gliosis of the left occipital lobe which is unchanged compared to the preceding examination on
30 March 2010. The report read: “This suggests old trauma or old infarct. This could easily affect the left occipital radiation, although it is not directly affecting the visual cortex…Minor microvascular changes previously noted have not progressed”.
Associate Professor Fraser, in an undated report (assumed to be 13 December 2013, as per later correspondence of 27 May 2021) noted stated that she conducted a further electro-diagnostic work up. Associate Professor Fraser noted that the appellant continued to drive with an unrestricted driver’s licence. He still complained of blurred eyes. She said that his wife reported that he frequently bumped into objects on the right and has even knocked people over in the street. Her ocular examination including colour vision testing was completely normal. She performed tests of high visual functioning in which he showed difficulty with object perception and space perception. She noted that visual fields to confrontation with each eye separately were normal but on binocular testing he appeared as to have visual neglect on the right side.
Associate Professor Fraser wrote:
“Overall I would say that his visual evoked potentials are normal. He
has undergone OCT of the optic else and macula and these too are normal.
In conclusion, structurally and functionally his visual Pathways from cornea to the V1 visual cortex are normal. However on basic screening testing he did appear to have problems with right-sided visual neglect and visual processing difficulties.
This may explain why he continues to bump into objects on the right hand side, had inconsistent visual field test and has otherwise had normal ophthalmic examination. I would consider referring him for in depth visual neuropsychology tests. If these confirm an abnormality of visual spatial perception on the right then he may be a candidate for rehabilitation.”
Dr Stern in a report dated 13 February 2014 noted he had received the MRI Brain and Orbits report dated 15 August 2013 performed by QDI Buderin Radiologists and the report from
Dr Claire Fraser, neuro-ophthalmologist dated 13 December 2013. He noted that Dr Fraser thought that the appellant had problems with right-sided visual neglect and visual processing difficulty. He concluded that the further electro-physiological testing did not reveal any anatomical/organic cause for the marked visual field loss. He wrote: “Dr Claire Fraser made the conclusion that structurally and functionally his visual field pathways from the corneal to the visual cortex are normal. I would agree that this is the conclusion to be made particularly from the multi-focal Visually Evoked Potentials being essentially normal in each eye”.
Dr Jeanne Georgius, clinical neuropsychologist, in a report dated 28 September 2014 noted that she had conducted a neuropsychological evaluation of the appellant. She wrote:
“The current assessment revealed that Mr. Long has statistically significant cognitive impairments for his age that represent substantial reductions from his estimated premorbid functioning. His neuropsychological profile revealed deficits in the following domains: general intellectual functioning, verbal abilities, executive functioning and auditory memory. More specifically, his Full Scale IQ (FSIQ) score as measured by the WAIS-IV was 78, in the Borderline range for his age and ranked at the 7th percentile, below 93% of his peers. Importantly, there was variability within the indices that comprise this global measure of intellectual functioning with a statistically significant weakness in his auditory verbal skills. His verbal skills as measured by the VCI of the WAIS-IV were in the Borderline range ranked at the 4th percentile and hence below 96% of his peers. Importantly his verbal deficits comprised impaired general knowledge and abstract verbal reasoning. It is likely that Mr. Long's deficits in factual general knowledge are associated with his low academic achievement and are not related to a brain injury. However, his impairment in abstract verbal reasoning is typical of traumatic brain injuries and is directly related to his marked executive functioning impairments that were evident on a range of tests.
Marginal but nonetheless statistically significant reductions from his estimated premorbid functioning were also found in his visuo-spatial and perceptual skills as well as his working memory, cognitive processing speed and speed of language comprehension, all of which were in the Low Average range for his age.”
Dr Georgius referred to evidence of limited loss of consciousness and post-traumatic amnesia, the mechanism of injury and imaging (revealing ischaemic changes in the post-occipital lobe, which could be post-traumatic in nature, and gliosis in the left occipital lobe) in making a diagnosis of a moderate traumatic brain injury in the accident in April 2001. She noted that the appellant’s cognitive profile was consistent with impairments typically seen in moderate traumatic brain injuries.
Dr Stern, in a report dated 27 October 2014, noted that he had received the report of
Dr Jeanne Georguis, neuropsychologist, dated 28 February 2014 and that she included an assessment for traumatic brain injury. He stated that this did not alter his assessment of the visual system, that is, the visual system is normal and the visual field losses in each eye are not due to any disease or injury related to the visual system.
Dr Ionne Anderson, ophthalmologist, in a report dated 26 November 2014, said that visual field analysis “demonstrates patchy peripheral loss bilaterally”.
Associate Professor Steven Faux, rehabilitation physician, in a report dated 31 March 2015, formed the impression that the appellant had a possible post-traumatic brain injury and possible cognitive impairment although that was out of keeping with his ability to drive. He recommended the appellant be reviewed by the Brain Injury Research Unit in Queensland.
Dr Dudley O’Sullivan, consultant neurologist, in a report dated 20 November 2017 noted that the appellant had sustained a left parieto-occipital skull fracture without any significant intracranial damage. Dr O’Sullivan noted that the appellant does not appear to satisfy the prerequisite requirements for assessment of impairment in relation to the forebrain, including cognition, but nevertheless said that there is definite evidence of cognitive impairment due to the accident. He noted a “small area of gliosis in the left parieto-occipital region of uncertain origin”.
Dr O’Sullivan wrote: “He has definite evidence of some cognitive impairment due to his traumatic brain injury as well as his visual impairment”. Dr O’Sullivan assessed 20% WPI as a consequence of the traumatic brain injury.
Dr Weschler, ophthalmologist, in a report dated 17 September 2019, recorded the visual fields on Humphrey testing. He wrote:
“The computer visual fields (Humphreys 30-2) were normal in the right eye apart from some non-specific superior temporal and superior nasal peripheral visual field changes which could well be due to the right upper lid being lower than normal due to blepharochalasis. Similar changes were noted in the left eye with some superior temporal and superior nasal changes which again could be due to the lowered position of the left upper lid because of left blepharochalasis. There were some very non-specific and non-diagnostic nasal changes …The computerized field tests that Mr Long did in my examination room was a vast improvement compared to the visual field defects documented from previous ophthalmologists.”
Dr Weschler noted that the pattern he observed was “not the pattern of occipital lobe trauma”. In particular, he noted that the fields did not respect the midline (as a field defect due to cerebral hemispheric lesion does). The scotoma in extremely peripheral and crosses the “midline”. He further opined that the superior field defect in both nasal and temporal fields which was present in both eyes was probably due to eyelid positioning. “In my opinion these visual changes are related to the position of the upper lid and do not reflect direct trauma to the occipital lobes”.
Dr Weschler considered the possibility that visual association areas adjacent to the occipital visual cortex might have been traumatized but did not feel qualified to come to any conclusion on this issue. He wrote:
“Mr Long has symptoms of visual neglect, variable visual fields assessment and symptoms of blotchy vision. His ophthalmic examination was basically normal but there is evidence of significant neurological problems related to Mr Long’s head injury from the 5th April, 2001. I would recommend a further neurological assessment with a neurologist particularly interested in neuro-ophthalmology.”
Associate Professor Fraser, in a report dated 27 May 2021, reported the same visual issues as in 2013 and a tendency to veer to the right. Humphrey screen testing confirms difficulties with right visual field. She concluded that his main visual issues were right hemifield neglect and difficulties with object and spatial perception which are visual processing issues. She stated that this fitted with the left-sided gliosis seen on the MRI as a consequence of his injury and this was not an expected age related change.
Associate Professor Fraser noted that Humphrey visual fields confirmed the difficulties with the right visual field. She reported that the OCT shows a healthy optic disc with normal macular architecture. Professor Fraser concluded that this field change was therefore not a consequence of glaucoma or any structural ophthalmic abnormality.
Associate Professor Fraser, in a report dated 27 May 2021, wrote: “On balance of probability Mr Long's head injury from 5 April 2001 caused left-sided cerebral gliosis and as a consequence of this, he has right hemifield neglect and difficulties with objects and spatial perception”.
In a Medical Assessment Certificate Assessment of a General Medical Dispute, dated
3 May 2022, Medical Assessor Associate Professor Robin Fitzsimons addressed the following issues in dispute:
“1. Whether the applicant’s visual impairment results from the injury on 5 April 2001, bearing in mind the conflicting opinions of Dr Fearnside and Dr Benjamin, on the one hand, and Dr Fraser and Dr O’Sullivan on the other, as to whether the applicant suffered a traumatic brain injury.
I am asked to note that in considering this issue that I am not bound by the specific interpretations in relation to the disturbance of mental status and integrative functioning contained in AMA 5 or in Chapter 5 of the NSW workers compensation guidelines for the evaluation of permanent impairment.”
Associate Professor Fitzsimons carried out an extensive review of the medical evidence in the case. She noted that the visual fields as reported in the early years showed two contrasting patterns. The GP, Dr Wong, reported “blotches with clear vision in between” while Dr Benjamin noted peripheral field constriction around the perimeters of each eye with only central vision preserved in each eye. Associate Professor Fitzsimons noted that the change in the visual fields over time had been striking and that it was exceptionally unlikely that such densely abnormal peripherally constricted visual fields observed over the first decade would improve in the way they did in later years if they were due to traumatic brain trauma. She concluded that visual field analyses cannot be relied upon as evidence when determining whether or not the appellant sustained a brain injury.
Associate Professor Fitzsimons wrote:
“The trauma with occipital fracture could easily have been associated with brain injury, particularly of the occipital lobe, and possibly (eg contra coup) anteriorly (frontal lobes). The question of whether it actually did cause brain injury is by no means clear-cut.
There was, on the one hand, unequivocal evidence of a significant head injury, with left occipital skull fracture and overlying contusion, and on the other hand, an absence of many of the usual criteria by which brain injury is established. This is also in the context of visual symptoms and visual field deficits in the clear and agreed (by all or virtually all ophthalmologists consulted) absence of evidence of damage to the visual pathways in the brain, but also in the presence of substantial inconsistencies in the visual field testing over time, in a way that is difficult to explain on an organic basis.”
Associate Professor Fitzsimons concluded that on balance of probabilities, and for reasons given (the unreliability and gross inconsistency of visual fields over time), MRI scanning more consistent with microvascular disease than trauma, as opined by the neurosurgeon who saw the films and on the basis of the 2002 report, and also because of the history of functionality (driving) which is difficult to reconcile with right neglect when walking, that it is more likely than not that there was no brain injury. However, she added that should further information become available she would be open to coming to a different conclusion, on probability.
Associate Professor Fraser, in a report dated 17 April 2023, noted that she had been provided with the Medical Assessment Certificate of Associate Professor Fitzsimons dated
3 May 2022. Associate Professor Fraser believed that it is more likely than not, that the appellant’s visual disturbance is due to trauma to the higher associative areas caused by or arising from his fall on 5 April 2001.
Associate Professor Fraser wrote:
“One of the main concerns raised by Prof Fitzsimons in her report, which informed her opinion on the case, is the inconsistent performance on his visual field testing. I believe that his cognitive performance and troubles with higher visual processing are more likely than not to account for this
inconsistency. I also think that difficulties with higher visual performance can account for his other symptoms, and his tests for these difficulties have remained static between 2013 and 2021. If this was part of an age-related decline, I would have expected progression in that 8-year period. Equally
his neuroimaging is reported as unchanged between examinations.”
Associate Professor Fraser referred to the report of September 2002 which stated “the absence of any injury to the eye and the absence of any abnormality to the electro-physiological tests strongly suggests a non-organic explanation for his continued symptoms”. Associate Professor Fraser noted that the tests done at this point had examined the structure and the function of the visual pathways from the cornea at the front of the eye to the V1 visual cortex in the occipital lobes and that these tests do not rule out structural or functional pathology in the visual cortex beyond V1.
Associate Professor Fraser noted that in January 2010 Dr Reid could not find any evidence that the appellant was deliberately exaggerating his cognitive problems and suggested a contra-coup injury with affecting mood and behaviour. She noted specific deficits listed in the ability to form concepts and adapt and regulate behaviour, he was also more apathetic, with difficulty thinking quickly and flexibly. Associate Professor Fraser stated that visual field performance on standard automated perimetry, such as that done in a routine ophthalmic examination requires prolonged concentration for over 5-10 mins per eye, the capacity to understand the test itself and the ability to respond quickly to visual stimuli. She stated that if there are underlying cognitive and behavioural difficulties, visual field tasks will be unreliable and variable, and this could account for the inconsistency of presentation mentioned by Associate Professor Fitzsimons. Associate Professor Fraser noted that several ophthalmologists comment on the high rate of “false negatives” during testing, which is a sign of poor test performance and can cause inconsistent results. She expressed the opinion that this poor performance is not due to malingering, and Dr Duke did not think the appellant was feigning his impairment, then his poor cognitive performance more likely than not can account for the inconsistency.

Associate Professor Fraser wrote:
“I first assessed Mr Long in November 2013 at the Save Sight Institute. He reported difficulty with his vision since his accident in 2001. His wife reported that he could bump into objects on the right and had even bumped into people on the street. Structural ophthalmic examination was normal. I performed tests of higher visual function using the Queens Square Screening Test for Visual Deficits. This test has been shown to differentiate patients with changes in visual processing as a result of cognitive difficulties from normal patients. (Kim L, Cordato D, McDougal A, Fraser C. Pilot Study: The Queen Square Screening Test for Visual Deficits in Dementia. Neuroophthalmology 2021;45(6): 380-385). I document that he has difficulty with object perception and space perception. I also found that he appeared to have visual neglect on the right side when testing visual fields to confrontation binocularly. I concluded that structural and functionally his visual pathways from the cornea to the V1 visual cortex are normal. I emphasise in the conclusion of my clinic letter: he appeared to have problems of visual processing, and that this would explain why he bumps into objects and why he is inconsistent on his performance of visual field tests.
Again during my own assessment in May 2021, I repeated the Queens Square Screening Test for Visual Deficits. I have again documented that Mr Long had the same difficulties with object perception and space perception. These results make it more likely than not that he will struggle to perform standard automated perimetry tests. This may also account for him missing things in his vision – or his ‘blotchy’ vision. Visual processing is dependent on higher order functions of both visual and object and space perception, and reading ability depends on both of these as well as other multiple cortical areas. I also found on clinical testing that he had neglect in
his right hemifield on testing with both eyes open. Neglect is a sign of higher visual processing issues.”
Associate Professor Fraser noted that in 2002 an MRI report mentions non-specific white matter changes adjacent to the posterior horn of the left lateral ventricle, which were reported as non-specific. She noted that further MRI scans in 2010 and 2013 show subcortical white matter T2 hyperintensity in the left parieto-occipital region. Associate Professor Fraser noted that the differential diagnosis at that time included old ischaemic change or old trauma. She reported that “these were described as non-progressive” and expressed the view that if the MRI changes were due to small vessel ischemia from hypertension and smoking, she would expect these to change over the years, or involve other cortical regions.
Associate Professor Fraser noted that her comment in the report of 27 May 2021 at the end of paragraph 3 says: “This is not an expected age-related change” was a reference to his visual processing issues not to the MRI report. She stated that this was based on an opinion formed as a result of his repeated clinical testing and his relatively young age when she first documented the visual changes in 2013. She stated that her handwritten notes in 2021 said “MRI (L) gliosis consistent with” and an arrow pointing to my impression of his clinical findings. She reported that what she was indicating was that the areas documented to have changes on his MRI could account for his visual findings.
Associate Professor Fraser noted that one of the main concerns raised by Associate Professor Fitzsimons in her report, is the inconsistent performance on his visual field testing. Associate Professor Fraser believed that his cognitive performance and troubles with higher visual processing are more likely than not to account for this inconsistency. Associate Professor Fraser also thought that difficulties with higher visual performance can account for his other symptoms. She noted that his tests of higher visual processing using the Queens Square Screening Test for Visual Deficits have remained static between 2013 and 2021 and if this was part of an age-related decline, it was more likely than not that they would have documented progression in that 8-year period.
As noted above, the Medical Assessor in Part 9 of the MAC stated that the question of a traumatic brain injury “has been previously dealt with”. However, the Medical Assessor did not explain this further. He then went on to state that the question remaining is the cause of the visual symptomatology he complains of and on this basis whether these constitute an impairment.
The Medical Assessor considered that the major differences of opinion centre around the results of visual field automated testing, rather than any definite clinical testing abnormalities and most of the practitioners did not think that the abnormalities were organic in nature. The Medical Assessor concludes that the symptoms described were more likely than not related to migraine. However, the Appeal Panel notes that a number of medical practitioners, including Associate Professor Fraser, considered that the abnormalities were organic and not caused by migraine. The Appeal Panel concludes that the Medical Assessor did not properly consider whether the appellant’s visual disturbance is due to trauma to the higher associative areas caused by or arising from his fall on 5 April 2001. Further, the Appeal Panel does not consider that the Medical Assessor had properly reviewed and discussed the evidence.
The Appeal Panel notes that each specialist, that the appellant has seen, found visual field defects but these varied markedly. The Appeal Panel accepts that there is also evidence of significant cognitive difficulties. Associate Professor Fraser says that these cognitive difficulties account for his difficulties in satisfactorily performing a visual fields test. The Appeal Panel concludes that because of the cognitive difficulties and inconsistencies in the visual fields tests further examination and testing would not assist.
The Appeal Panel is satisfied on reviewing the evidence that there was an obvious history of visual neglect on one side but no obvious history of visual field defects. The Appeal Panel is satisfied that the appellant was not malingering, and his symptoms are genuine. The evidence of some visual neglect on right side corresponds with the lesion in the occipital cortex.
Associate Professor Fraser noted that further MRI scans in 2010 and 2013 show subcortical white matter T2 hyperintensity in the left parieto-occipital region. She reported that the differential diagnosis at that time included old ischaemic change or old trauma. However, she noted that “these were described as non-progressive” and expressed the view that if the MRI changes were due to small vessel ischemia fromf hypertension and smoking, she would expect these to change over the years, or involve other cortical regions.
The Appeal Panel agrees with Associate Professor Fraser’s view that the scar is likely to be traumatic as it has not changed over time.
As noted above, the Appeal Panel reached the view that the appellant’s main visual problem is on his right side where he has visual neglect, and that site corresponds with his cortical brain lesion. The Appeal Panel considers that the appellant does not appear to have dense Homonymous hemianopia, rather somewhat milder right homonymous visual neglect.
The Guide by the Royal Australian College of Ophthalmologists awards 60% loss of efficiency for Homonymous hemianopia. In this case the Appeal Panel considers that an assessment of this loss as one third to one half of that, which equates to 25% loss of efficiency of sight in both eyes.
Under the Table of Disabilities this results in an assessment of 25% loss of efficient use (Total Vision loss of both eyes is 100%).
For these reasons, the Appeal Panel has determined that the MAC issued on 20 May 2024 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.

WORKERS COMPENSATION DIVISION

APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received before 1 January 2002

Matter Number:	W8055/23
Applicant:	Phillip John Long
Respondent:	Colin Green Demolitions

This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.

The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Ron Granot and issues this new Medical Assessment Certificate as to the matters set out in the Table below:

Assessment in accordance with the Table of Disabilities for injuries received before
1 January 2002

Body Part

(describe the body part as per Table of Disabilities)

Date of injury

Total amount of permanent % loss of efficient use or impairment

Proportion of permanent impairment due to pre-existing injury, abnormality or condition

Total permanent % loss of efficient use or impairment attributable to this injury (after deduction of any pre-existing impairment in column 4.)

Loss of sight of both eyes

5 April 2001

25%

[2024] NSWPICMP 564

13 August 2024