Payten and Australian Postal Corporation (Compensation)

Payten and Australian Postal Corporation (Compensation) [2020] AATA 1925 (26 June 2020)
Division:GENERAL DIVISION
File Number:2016/0602
Re:Mark Payten
APPLICANT

AndAustralian Postal Corporation
RESPONDENT

DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:26 June 2020
Place:Brisbane

I affirm the decision under review.
........................................................................
Deputy President Dr P McDermott RFD
Catchwords
COMPENSATION – where liability accepted for closed (internal) head injury – whether the applicant continues to suffer from the effects of the accepted injury – whether the applicant is entitled to compensation pursuant to sections 16 and 19 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) – decision under review affirmed
Legislation
Safety, Rehabilitation and Compensation Act 1988 (Cth)
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
26 June 2020
BACKGROUND

Mr Mark Payten (“the applicant”) commenced employment with the Australian Postal Corporation (“the respondent”) in 1986 as a temporary postal delivery officer. The applicant resigned from his employment with the respondent in 1989; however, he was re-employed by the respondent in 1990.
On 8 April 1992 during the course of the applicant’s employment with the respondent, the applicant was injured in a motor vehicle accident.[1]
[1] Exhibit A, T-Documents, T5, p. 30.
On 14 April 1992, the applicant made a claim[2] for compensation under the Safety, Rehabilitation and Compensation Act 1988 (‘the Act’) and liability was accepted by the respondent on 29 April 1992. The respondent accepted liability for “closed (internal) head injury, fractured left mandible on 8/4/92”.[3]
[2] Exhibit A, T-Documents, T4.
[3] Exhibit A, T-Documents, T6, p. 31.
On 19 December 1994, the respondent awarded the applicant a permanent impairment rating of 50 per cent allowing the applicant to be entitled to compensation under section 24 of the Act plus payment under section 27 of the Act for non-economic loss.[4]
[4] Exhibit A, T-Documents, T70, p. 137.
On 30 October 2015, the respondent advised the applicant that the respondent intended to cease payment of compensation pursuant to section 16 and 19 of the Act based on the medical opinion of Dr Fernando Roldan, Clinical Psychologist.[5]
[5] Exhibit A, T-Documents, T319.
On 27 November 2015 the respondent issued a determination in which it was remarked that the applicant did not “presently suffer from any work related effects of [his] closed (internal) head injury, with any present effects being unrelated to [his] employment”.[6]
[6] Exhibit A, T-Documents, T326, p. 604.
On 30 November 2015, the applicant requested a reconsideration of the respondent’s determination.[7] On 4 January 2016, the respondent affirmed its determination of 27 November 2015.[8]
[7] Exhibit A, T-Documents, T327.
[8] Exhibit A, T-Documents, T328, p. 608.
On 5 February 2016 the applicant applied for review of the respondent’s determination to this Tribunal.[9]
[9] Exhibit A, T-Documents, T1.
There was another reviewable decision made by the respondent on 6 February 2017 in which the respondent determined that the applicant no longer suffered from any physical work-related effects of physical injuries arising out of the incident on 8 April 1992. The applicant does not seek review of this decision on the basis that the applicant’s case is that his present incapacity for work relates to the traumatic brain injury and the consequences of that injury suffered in the accident on 8 April 1992.[10]
[10] Applicant’s final submissions dated 14 June 2018; Respondent’s final submissions dated 29 June 2018.
ISSUES
The issues before this Tribunal can be summarised as follows:[11]
·Whether the applicant has any entitlement to compensation for medical expenses incurred at any time on or since 27 November 2015, in relation to the compensable “closed (internal) head injury”;[12] and
·Whether the applicant has any entitlement to incapacity payments at any time on or since 27 November 2015, in relation to the compensable “closed (internal) head injury”.
[11] Applicant’s final submissions dated 14 June 2018.
[12] No receipts for medical expenses incurred on or after 27 November 2017 were presented to the Tribunal.
LEGISLATIVE FRAMEWORK
Section 16 of the Act relevantly provides:
Compensation in respect of medical expenses etc.
(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment. Note: Compensation is not payable under this subsection in relation to certain claims (see section 119A).
(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.
…
Section 19 of the Act relevantly provides:
Compensation for injuries resulting in incapacity
(1) This section applies to an employee who is incapacitated for work as a result of an injury, other than an employee to whom section 20, 21, 21A or 22 applies.
(2) Subject to this Part, Comcare is liable to pay to the employee in respect of the injury, for each week that is a maximum rate compensation week during which the employee is incapacitated, an amount of compensation worked out using the formula:
NWE – AE
where:
AE is the greater of the following amounts:
(a) the amount per week (if any) that the employee is able to earn in suitable employment;
(b) the amount per week (if any) that the employee earns from any employment (including self-employment) that is undertaken by the employee during that week.
NWE is the amount of the employee’s normal weekly earnings.
…
MEDICAL EVIDENCE
Coffs Harbour Health Campus Emergency Department Triage Record
In the emergency department record dated 10 January 2004 it was noted that the applicant attended for “BIBA FOLLOWING MOTORBIKE ACCIDENT. MOTORBIKE T-BONED CAR’ noting ‘NIL LOC. DENIES NECK, CHEST OR PELVIC PAIN. SUPERFICIAL ABRASIONS OVER ARMS. TET TOX UP TO DATE’.[13]
[13] Exhibit O, Emergency Department Triage Records Coffs Harbour Campus.
Imaging Report dated 9 June 1992
Imaging of the applicant’s pelvis was undertaken on 9 June 1992 noting:[14]
There is deformity and sclerosis to the superior right iliac crest in keeping with previous trauma in this region. There is irregularity of the right sided transverse process of L5 in keeping with further bony trauma in this region. Comparison with the previous films is necessary to determine any change.
The sacro-iliac joints and hip joints appear within normal limits.
[14] Exhibit A, T-Documents, T8, p. 33.
Medical Certificate of Lidcombe Hospital dated 9 July 1992
On 9 July 1992, Dr Lovett-Iskandar diagnosed the applicant with a head injury as a result of the motorbike accident on 8 April 1992.[15] Dr Lovett-Iskander considered the applicant’s incapacity would likely last more than 6 months and he would not be able to undertake any work during this period.
[15] Exhibit A, T-Documents, T10, p. 35.
Report of Dr Matthew Giblin, Orthopaedic Surgeon, dated 10 August 1992
On 10 August 1992, Dr Matthew Giblin, Orthopaedic Surgeon, reported that the applicant sustained a compound fracture of his right pelvis and an abdominal injury as a result of the motorbike accident on 8 April 1992.[16] Dr Giblin also noted that the applicant sustained a head injury and was experiencing right knee pain. When discharged following surgery, the applicant complained of chondromalacia patellae. Dr Giblin remarked that the results of the x-rays of the applicant’s pelvis undertaken on 5 June 1992 were satisfactory.
[16] Exhibit A, T-Documents, T12, p. 38.
Reports of Ms Therese Alting, Neuropsychologist, dated 10 June 1992 and 24 June 1992
Ms Therese Alting, Neuropsychologist, of Lidcombe Hospital assessed and reported on the applicant on 10 June 1992 and 24 June 1992.[17] In Ms Alting’s first report she remarked that the applicant reportedly sustained a severe head injury on 8 April 1992 as a result of a motorbike accident. She reported that the applicant was unconscious at the scene of the accident and taken to Liverpool Hospital, whose records indicated that the applicant remained in a coma for approximately four days with a period of post-traumatic amnesia of two to three weeks.
[17] Exhibit D, Reports of Ms Therese Alting dated 10 June 1992 and 24 June 1992.
Ms Alting reports that the initial CT scan undertaken of the applicant showed right sided cortical oedema with an obliterated right ventricle and midline shift. A subsequent CT scan undertaken of the applicant on 15 April 1992 indicated a slight asymmetry of the lateral ventricles due to rotations with no significant lesion being seen. The applicant was discharged on 6 May 1992.
Ms Alting reported that the applicant was cooperative with the assessment and showed reasonable attention and concentration skills both on specific testing and in his ability to concentrate for the duration of the session. She reported that the applicant performed “quite poorly” on a more complex tracking task involving both speed of information processing and concentration skills. The applicant showed reasonable insight into his current cognitive deficits.
Ms Alting reported that the applicant’s performance on tests of memory were generally within the expected range highlighting that despite being slow to learn new verbal information, once this was learned, he retained the information and could recall it after a delay. Ms Alting considered that the applicant’s performance deteriorated quite markedly after a distraction with his performance on tests deteriorating when the information presented was more complex.
Ms Alting reported that the applicant showed evidence of some mild visuoperceptual problems and deficits in tests of visuoconstructional abilities. The applicant’s tracking skills were reasonable, but slow.
Ms Alting reported that the applicant showed variability in his level of executive functioning with the applicant showing poor planning skills but capable of forming concepts and switching between those concepts.
Ms Alting considered that the applicant had “made a good recovery from the severe head injury”.[18] Ms Alting considered that the applicant was functioning quite well but there were several areas of impairment highlighted during the assessment process. The applicant showed adequate attention and concentration abilities on less demanding tasks but was easily overloaded with information if the information was presented quickly or was complex. Ms Alting remarked that it had been noted from an orthoptic assessment that the applicant was suffering from various visual deficits which could be corrected with glasses and that a further examination after the provision of glasses might have revealed whether the visuoperceptual and visuoconstructional deficits were simply a result of impaired vision.
[18] Exhibit D, Reports of Ms Therese Alting dated 10 June 1992 and 24 June 1992, page 2.
Ms Alting did not consider the applicant was ready to return to work and recommended he refrain from driving a car for the time being.
Driving Assessment Report of Libby Ireland and Shona Spark dated 21 August 1992
On 21 August 1992, the applicant underwent an assessment with Ms Libby Ireland and Ms Shona Sparke in an on-road driving assessment and it was noted that:[19]
During the physical screening assessment it was noted that Mr Payten is independent with mobility and he is right hand dominant… Mr Payten was observed to have adequate upper and lower limb range of movement, strength and… [co-ordination] for the purposes of driving.
He was noted to be a very observant and alert driver throughout the assessment. Positive driving skills observed during the assessment include monitoring his speed, scanning on the road well, positioning the car appropriately, observing giveway signs and stop signs, being cautious at intersections, proceeding through roundabouts independently, changing lanes safely and independently on 10 occasions. … he was noted to plan his manoeuvres well and in very complex areas where he was having to respond to changes in lanes, changes in traffic and pedestrians, he coped well and covered his brake. Mr Payten also completed a reverse park and 3 point turn with ease.
There were however, a number of driver habits that were observed e.g. using the hand inside the steering wheel on 5 occasions, lack of buffer zone between traffic, lack of indicators during a 3 point turn or reverse. These were considered driver habits and are not considered a result of his head injury.
Mr Payten has been recommended to recommence driving.
[19] Exhibit F, Driving Assessment Report dated 21 August 1992, pp. 1-2.
Report of Dr Matthew Giblin dated 7 October 1992
On 16 September 1992, Dr Giblin reviewed the applicant and remarked that the applicant was still complaining of lower back pain.[20] Dr Giblin reported that the scar on the applicant’s hip was healing satisfactorily but starting to tether again.
[20] Exhibit A, T-Documents, T17, p. 43.
Imaging report of the applicant’s mandible dated 7 October 1992
On 7 October 1992, imaging of the applicant’s mandible was undertaken which indicated a fracture in the mid portion of the body of the mandible on the left side.[21] The fracture had been internally fixed however the fracture line was still partially visible and there did not appear to be a bony union across the fracture line. There was no other bony abnormality recorded and the fracture was undisplaced.
[21] Exhibit A, T-Documents, T18, p. 44.
Fitness for Duty Report of Dr K.W. Hogan dated 16 October 1992
On 16 October 1992, Dr K.W. Hogan reported that the applicant was involved in a motorbike accident on 8 April 1992 in which he sustained multiple injuries. Dr Hogan noted that the applicant fractured his jaw which required internal fixation and remarked that the healing had been unsatisfactory requiring admissions to hospital.[22] Dr Hogan reported that the applicant complained of persisting discomfort and tenderness at the fracture site.
[22] Exhibit A, T-Documents, T19, p. 45-47.
Dr Hogan reported that the applicant’s closed head injuries resulted in a period of unconsciousness which the applicant reported was for several days. The applicant received assistance and assessment from the rehabilitation unit at Lidcombe Hospital under Dr Lovett-Iskander. The applicant complained of problems with his recent memory stating that he often would forget simple things such as phone numbers, dates and his bank PIN. The applicant reported using lists to make notes.
Dr Hogan noted that the compound fracture of the right ilium had resulted in the shortening of the applicant’s right leg and required skin grafting over the wound which had been complicated by adhesions to the underlying bone requiring further surgery. Dr Hogan also noted that the intra-abdominal bleeding resulted from internal injuries at the time of the accident which required exploratory abdominal surgery; the applicant had a good recovery from this.
Dr Hogan noted that the applicant reported that he was fearful of returning to motorcycle duties and that his current social situation was not good. The applicant had broken up with his fiancée since the accident and wanted to transfer to Coffs Harbour where his parents lived as he had no family in Sydney.
Dr Hogan assessed the applicant as having suffered multiple major injuries including some degree of cognitive impairment. The applicant was not certified fit to return to work and Dr Hogan recommended that a report be obtained from Lidcombe Hospital to establish the degree of the applicant’s cognitive impairment. Dr Hogan considered that the applicant was unlikely to be fit to return to motorcycle duties and pushbike duties were also likely to be unsuitable.
Fitness for Duty Report (File Review Only) of Dr K.W. Hogan dated 20 November 1992
On 20 November 1992, Dr Hogan gave a fitness for duty report in which Dr Hogan considered the applicant fit to return to work in accordance with the rehabilitation program formulated in consultation with the respondent and the treating rehabilitation doctors.[23] Dr Hogan also recommended that if the surgery on the applicant’s jaw were to proceed, his return to work would be delayed. Dr Hogan considered that there were reasonable medical grounds, both cognitive and physical, that would justify the applicant being transferred to a location closer to his family. Dr Hogan also considered this transfer appropriate in light of the applicant’s “unfortunate social situation”.
[23] Exhibit A, T-Documents, T21, p. 49-50.
Report of Dr Matthew Giblin dated 2 December 1992
On 2 December 1992, Dr Giblin recommended that the applicant return to work.[24]
[24] Exhibit A, T-Documents, T22, p. 51.
Neuropsychology report of Ms Therese Alting, Neuropsychologist, dated 15 December 1992
On 15 December 1992, Ms Alting provided a further report after examining the applicant.[25] Ms Alting reported that the applicant was cooperative with the assessment, his attention and concentration were adequate, but his speed of information processing was slow, particularly with complex tasks.
[25] Exhibit G, Report of Ms Therese Alting dated 15 December 1992.
Ms Alting reported that the applicant’s memory for semantically related verbal information was “very good” with him remembering the information well after a delay. The applicant, however, showed “quite a flat learning curve on material which was presented without a context, and did not really benefit from repetition”. The applicant’s initial grasp on this material was “quite fragile” however the information that was learned was retained after a delay.
Ms Alting reported that this assessment included more tests of visual memory due to improvements in the applicant’s visuoperceptual processing and considered that the applicant performed “patchily on memory tasks”. Ms Alting reported that the applicant’s basic memory functioning appeared intact but that the applicant was slow to learn new, un-contextualised information and showed a flat learning curve with only a slight improvement after several repetitions.
Ms Alting reported that the applicant improved on tests involving the processing of visuospatial information and markedly improved on his attention to detail. The applicant’s level of executive functioning was reported to have also improved significantly with improved planning and organisational skills. Ms Alting reported no signs of impulsivity, perseveration or other features associated with a dysexecutive syndrome.
Ms Alting considered that, while there were still signs of cognitive impairments, the applicant had improved in several areas since the first assessment, particularly with his attention and concentration skills, however, the applicant’s information processing still remained slow. Ms Alting considered that the applicant’s condition would continue to improve.
Report of Susan Arnold, Occupational Therapist, dated 5 January 1993
On 5 January 1993, Ms Susan Arnold, Occupational Therapist, gave a report in which she outlined that the applicant was diagnosed as having a closed head injury, fractured mandible, compound fracture of the pelvis and laparotomy.[26] In the initial assessment, the applicant reported vision problems, problems with behaviour – irritability and intolerance, and problems with walking.
[26] Exhibit A, T-Documents, T24, p. 53.
Ms Arnold outlined that, as part of the standard procedure following a head injury, the Road Traffic Authority was informed of the applicant’s injury which resulted in the applicant’s driver’s licence being revoked until he was certified medically stable. Given the applicant’s injuries, the applicant was advised to use taxis rather than public transport when attending appointments and was approved for commencement of driving a motor vehicle as of August 1992.
Imaging report of Dr Mark Cohen dated 2 April 1993

On 2 April 1993, imaging of the applicant’s thoracic spine was undertaken. Dr Mark Cohen noted that “no abnormalities of the upper thoracic spine have been demonstrated”.[27]
[27] Exhibit A, T-Documents, T35, p. 65.
Report of Dr Dwight Dowda, Consultant Occupational Physician, dated 21 May 1993
On 14 May 1993, the applicant was assessed by Dr Dwight Dowda, Consultant Occupational Physician.[28] Dr Dowda reported that, on 8 April 1992, the applicant had a motorbike accident. Dr Dowda reported that the applicant sustained cerebral contusions, a fractured jaw and fractured pelvis, as well as multiple bruises and abrasions and that the applicant also suffered amnesia for the three weeks immediately after the accident. Dr Dowda noted that, subsequent to the accident, the applicant required abdominal surgery which caused ongoing problems since the accident. Dr Dowda reported that the applicant was discharged after one month but his residual problems relate to short term memory problems, diminished visual acuity of the left eye, shortening of the right leg due to pelvic fracture, and intermittent low back pain, particularly if standing which diminishes with rest or sedentary activities.
[28] Exhibit A, T-Documents, T37, p. 67.
The applicant reported that he rented a place by himself and he regularly saw his four year old son. The applicant reported losing a lot of friends since the accident and that he tended to variably drink excessively and he wanted to do something about that. The applicant reported that he used to do a lot of weight-lifting before his accident.
Dr Dowda remarked that, during the examination, the applicant presented as an affable young man who was able to communicate well and presented the history reasonably coherently with the only major gaps in his memory for the three weeks relating to the time that he had amnesia immediately after the accident in April 1992. The applicant presented to Dr Dowda with some recent memory loss in the assessment of his higher centres, however, his long term memory seemed reasonably good. Dr Dowda noted that the applicant lost concentration doing “Serial 7s” and “Serial 3s”, making errors and found this remarkable because the applicant reported that his best subject was mathematics. The applicant reported that if he went into areas about which he was unsure, especially at night-time, he became easily confused and even lost. The applicant reported that his confusion worsened if he had been drinking. The applicant reported using a diary to remind him of appointments and it helped him plan events for the future.
It was noted by Dr Dowda during the examination that the applicant’s back revealed a normal stance with slight scoliosis which was postural in that when he flexed forward the scoliosis disappeared. Dr Dowda remarked that the range of movement of the applicant’s lower back was reasonably normal with flexion allowing fingertips to reach mid shins, extension being full, lateral flexion to the right being full and normal though lateral flexion to the left being restricted due to the right-sided wound in the abdomen. Dr Dowda noted that applicant’s right leg was also two centimetres shorter than his left leg.
A work site visit was conducted with the applicant to observe the duties expected of a Mail Sorting Officer as well as the variety of jobs that might be expected of him when working in that area. The applicant expressed concern that the role of a Mail Sorting Officer was an “indoors job” and that he would prefer an “outdoors job”. The applicant also expressed concern about working with people from other cultures, saying that he would not be comfortable if they were speaking in their own language in front of him.
Dr Dowda considered that the applicant’s lower back pain was postural in that it was manifest while he standing and sometimes when leaning forward but it could and did disappear when he was laying down. Dr Dowda considered that corrective orthosis in the shoe to adjust for the two centimetres difference in the right leg length would help correct the scoliosis in the spine and also assist him in correcting his posture. Further, Dr Dowda recommended that the applicant perform appropriate exercises to strengthen the erector spinae muscles especially, and to a lesser extent, the abdominal muscles, though the abdominal muscles would comprised many of the muscle strengthening exercises in this area.
Dr Dowda considered that the applicant’s visual acuity problem in his left eye did not impact upon the applicant’s overall fitness to do the duties of a Mail Sorting Officer, however, his higher centre dysfunction, especially with planning and concentration, may have be an issue. Dr Dowda recommended that the relatively routine work associated with mail sorting would be within his work capabilities.
Dr Dowda recommended that the heavier duties of a Mail Sorting Officer be avoided and that protracted bending, stooping or lifting should not be part of his work duties at that time, though there was no reason, as the muscle tone increased in the back and with correction of his postural abnormality, for him not to be able to do most, if not all, the duties of a Mail Sorting Officer. Dr Dowda recommended that the initial approach to managing the applicant’s rehabilitation should be within the restrictions of small letter and large letter sorting only at this time, including at least a period of half an hour to one hour at the mail sorting bags doing other articles, but the heavier chores should be avoided while still dealing with his low back pain which was postural in nature.
Dr Dowda considered that the applicant’s concern about working in a covered environment was “basically attitudinal” and there was no physical reason why the applicant could not work indoors. Dr Dowda also considered the applicant’s concern about working with other people who might speak a different language to be attitudinal and not a rehabilitation issue. Dr Dowda also considered that the applicant’s intermittent excessive drinking needed to be addressed.
Report of Dr Matthew Giblin, Orthopaedic Surgeon, dated 24 May 1993
The applicant initially went into the care of Dr Giblin at the Liverpool Hospital after the motorbike accident on 8 April 1992.[29] Dr Giblin treated the applicant conservatively from an orthopaedic point of view. Dr Giblin oversaw the post-operative care of the applicant which included extensive treatment of scarring infection. The applicant reported problems with his lumbar spine particularly with personal care such as drying between his toes and bending over. The applicant reported being unable to lift weights, and could not walk or sit for long periods. Dr Giblin considered that the applicant’s injuries were consistent with the motorbike accident and that, at that stage, he still remained in the rehabilitative phase of his treatment with a definitive prognosis unable to be given.
[29] Exhibit A, T-Documents, T38, p. 75-76.
Neuropsychology report of Ms Therese Alting, Neuropsychologist, dated 27 May 1993
Ms Alting provided her last report after examining the applicant on 27 May 1993.[30] Ms Alting reported that the applicant complained of “continuing memory problems, in particular daily forgetfulness”. Ms Alting reported that the applicant, on some tests of attention, concentration and speed of information processing, performed more poorly than at the first session, however, on quite difficult tests of attention and concentration which required a fast response speed, his performance had improved markedly.
[30] Exhibit H, Lidcombe Neuropsychology Report dated 27 May 1993.
Ms Alting reported that the applicant’s scores on tests of memory were actually worse than at the previous assessments. She noted this was contrary to the normal pattern of performance following a head injury: where recovery occurs with time and the scores on various tests improve accordingly.
Ms Alting reported that there was no residual evidence of impairment in the applicant’s level of executive functioning apart from poor abstract reasoning skills and he was capable of flexibility in thinking, being able to form simple concepts and then switch between them. There was, again, no perseveration or impulsivity apparent. There was also no change in the applicant’s performance on tests of general intellectual functioning or problem solving skills.
Ms Alting considered that the results were difficult to interpret. There were many discrepancies noted where the applicant was performing more poorly thirteen months post-injury than he was two months post-injury. Ms Alting considered that the results were not the usual pattern of performance and that “at least part of his memory problems [were] due to factors other than organic brain damage”.
Ms Alting considered that it was “extremely difficult to comment on [the applicant’s] current level of cognitive functioning” but there were signs of some improvement on difficult tests. Ms Alting did not recommend a further review assessment on the basis that the applicant should be focussing on his future rather than his past.
Report of Fitness for Duty of Dr H. Prochazka dated 28 May 1993
On 28 May 1993, Dr H. Prochazka undertook a fitness for duty assessment of the applicant.[31] The applicant reported loss of memory, back pain, open wound over left hip area and loss of vision in the left eye. The applicant reported his memory to be quite deficient, needing to use a diary. The applicant also reported difficulty in geographical orientation, especially after dark, and sometimes will arrive at places and not be quite sure why he went there. The applicant reported his binocular vision to be quite adequate but his peripheral vision to the left quite diminished. It was also noted that part of the applicant’s back pain was attributed to the shortening of the applicant’s right leg from the accident.
[31] Exhibit A, T-Documents, T39, p. 77-79.
The applicant reported living alone and since the accident he had problems with drinking to excess, sometimes purchasing alcohol rather than paying bills. Dr Prochazka noted that Alcoholics Anonymous had been involved in the applicant’s care. The applicant also reported anxiety about his future as he regarded himself as unemployable outside of Australia Post.
Dr Prochazka considered that the applicant’s higher centres were intact as far as orientation was concerned, but that he made a significant number of errors and, once stopped, the applicant had difficulty getting back on track and correcting the error. However, Dr Prochazka considered the applicant should be employed in a capacity where he did routine work such as sorting mail where he could sit and stand intermittently to minimise discomfort to his back. It was recommended that the applicant not lift more than 5 kilograms and should avoid repetitive bending. Dr Prochazka considered that the applicant could start at around four hours per day and work up to a full working day within four weeks providing the applicant was coping. It was recommended that he be employed on a day shift for the next three months subject to review. Dr Prochazka also noted that the applicant was “very keen to be transferred north to be closer to his parents” and while there were obvious merits to this, this would need to be balanced with the applicant’s need for ongoing specialist treatment in Sydney.
Report of Dr Bruce Austin, Oral and Maxillofacial Surgeon, dated 15 June 1993
Dr Bruce Austin, Oral and Maxillofacial Surgeon, became involved in the care of the applicant at the request of Dr Lionel Chang, Plastic and Reconstructive Surgeon. Dr Austin noted that Dr Chang was the surgeon who performed open reduction and internal fixation of the applicant’s fractured mandible during his hospital stay in 1992.[32] At the time of the request, the examination revealed pain and tenderness of the applicant’s left lower border of the mandible in the region of the previously reduced fracture. The applicant’s left mandibular second premolar, which was in the line of the fracture, was tender to percussion, mobile and tested non-vital to electric pulp testing and the left mental nerve paraesthesia was present. The left mandibular second premolar was removed and the applicant placed on antibiotics, however, pain persisted at the left lower border of the mandible. On 3 December 1992, the applicant was admitted under Dr Austin’s care and two miniplates and one stainless steel wire, used for rigid fixation, were removed which, following the procedure, resolved the pain.
[32] Exhibit A, T-Documents, T42.
The intra-oral examination undertaken of the applicant revealed a stable occlusion and evidence of bony union at the fracture site, however, teeth anterior to the fracture site in the left mandible were tender to percussion in the absence of clinical and radiographic sign of pathosis. The applicant had ongoing paraesthesia of the left mental nerve and hyperaesthesia of the left incisive nerve, more noticeable during eating. Dr Austin considered that little improvement could be expected.
Report of Susan Arnold, Occupational Therapist, dated 16 July 1992
Ms Arnold, who provided an earlier report dated 5 January 1993, undertook a further assessment of the applicant on 8 July 1992 and provided a report on 16 July 1992.[33] Ms Arnold reported that the applicant sustained a closed head injury, fractured mandible, compound fractured pelvis, internal bleeding and visual problems following the motorbike accident on 8 April 1992.
[33] Exhibit E, Occupational Therapy Report dated 16 July 1992.
Ms Arnold reported the applicant was engaged to be married prior to his injury but they had since separated “due to his personality change following the injury”. Ms Arnold reported that the applicant stated that, prior to his injury, he was actively involved in his son’s life but he since found he did not have the desire or patience to spend time with him. Ms Arnold reported that the applicant’s parents lived in Coffs Harbour and he mentioned he was “keen to return to Coffs Harbour to live with them as he does not like Sydney”. Ms Arnold reported that the applicant presented as being “somewhat depressed and anxious to leave Sydney”.
The applicant self-reported that he had no leisure interest and complained of aching pain in his leg and back if standing for periods longer than twenty minutes. The applicant also considered he could not ride a bicycle due to his knee injury. Ms Arnold reported that the applicant was able to carry between 5 and 10 kilograms over 200 metres without any complaints of difficulty.
Ms Arnold remarked that applicant appeared to understand basic instructions but had some difficulties working under pressure. The applicant reported that he was not aware of problems related to basic living skills such as budgeting, money management and public transport usage. The applicant was independent in all aspects of self-care. Ms Arnold recommended that the applicant undertake a return to work program as follows:
·Week 1 – 2 half days (selected duties);
·Week 2 – 2 full days (selected duties);
·Week 3 – 2 full days and 3 half days (selected duties); and
·Week 4 – 5 full days (selected duties).
Ms Arnold recommended that the applicant be re-assessed after completion of the above program and that the applicant apply for a transfer to Coffs Harbour on appropriate duties.
Report of Dr Joan Chen, Occupational Physician, dated 6 August 1993
On 6 August 1993, Dr Joan Chen, Occupational Physician, provided a report as a part of the applicant’s rehabilitation process.[34] Dr Chen was noted that the applicant sustained a closed head injury as a result of the motorbike accident on 8 April 1992 and had post-traumatic amnesia for up to three weeks and pre-traumatic amnesia of one week. Dr Chen noted that the applicant’s recovery period was complicated by adhesion of his abdominal skin graft onto the underlying bone. Dr Chen reported that the applicant developed severe emotional and behavioural problems including bouts of severe depression consequent to the accident and was not only hypervigilant when driving, but had lost confidence with motorbike riding.
[34] Exhibit A, T-Documents, T49, p. 92-97.
It was noted that the applicant admitted to having problems with alcohol dependence following the accident but this had been recognised and addressed with psychological support counselling and by attending Alcoholics Anonymous meetings.
Dr Chen noted that the applicant was engaged to be married at the time of the accident but the relationship deteriorated after the accident and ceased. The applicant had a son that was born out of the relationship immediately prior to the relationship he was engaged to be married in, and it was noted that the applicant had custody of his son prior to the accident. However, this changed after the accident as he was unable to care for his son while recovering. There was then joint custody with the intention of the applicant applying for sole custody if he could demonstrate his ability to care for his son as a single father.
The applicant reported that his spelling was not “crash hot” but he had adequate literacy and reading skills. The applicant reported he left school at 15 years old and missed most of his secondary schooling by not turning up.
Dr Chen reported that, during the examination, the applicant presented impatient and anxious but cooperative throughout. The applicant reported increased irritability since the accident. There was no restriction in active range of truncal movement although the applicant complained of lower back pain at the end range of forward flexion and extension. There was no pain with lateral flexion or rotation. Dr Chen considered that the applicant’s persistent lower back pain was due to a combination of contusion and sprain injuries to the lower lumbar spine exacerbated by postural factors including poor abdominal and gluteal muscle tone and tightness in the hamstrings and erector spinae muscles in the lumbar region placing postural stresses in the lower lumbar spine. Dr Chen also considered that the apparent right leg shortening may have also been contributing to the applicant’s back pain with prolonged standing and walking.
Dr Chen recommended that the applicant use an appropriate orthosis in his right shoe and undertake a program of stretching and strengthening exercises for his back and lower limbs specifically aimed at postural correction and strengthening of his back. A program for general physical fitness was also recommended. Dr Chen considered the applicant was fit for full-time selected duties with restriction from prolonged and repetitive manual handling of loads weighing above 10 kilograms.
Dr Chen recommended that the applicant’s proposed rehabilitation programme consist largely of primary sorting and clerical duties with delivery duties being gradually re-introduced. When engaging in a walk delivery beat, it was recommended that the applicant avoid using a haversack and mail items should be contained within a trolley. Dr Chen suggested that the applicant should also wear a corrective orthosis in the right shoe prior to the walk delivery beat. A motorcycle delivery beat of two hours was considered suitable as the applicant reported a sitting tolerance of well over two hours.
Dr Chen recommended that the applicant avoid prolonged bending, repetitive bending or twisting of his back. It was understood that the three months at Coffs Harbour would be a prelude to the re-introduction of the applicant’s normal duties in Sydney with the applicant being made to understand that he may not automatically remain in Coffs Harbour at the end of the three month period. The applicant had expressed a strong desire to be transferred to Coffs Harbour where his parents lived and throughout the assessment reiterated his apprehension at being returned to Sydney at the end of the three month period. The applicant’s preference for Coffs Harbour was on the basis of the availability of the support of his parents and was considered by Dr Chen to be a personal issue, not a rehabilitation issue.
Report of Dr Adeline Hodgkinson, Director of the Head Injury Unit at Lidcombe Hospital dated 5 October 1993

On 5 October 1993 the applicant was seen in the Head Injury Clinic at Lidcombe Hospital for a progress assessment.[35] The report of the unit’s director, Dr Adeline Hodgkinson, noted that the applicant was currently living with his parents in Coffs Harbour and had made significant gains in terms of psychological stability and adjustment since his last assessment. Dr Hodgkinson attributed these gains to the close support the applicant was receiving from his parents and especially with his son. Dr Hodgkinson noted that while the applicant was living alone in Sydney he was significantly depressed drinking alcohol in excess which he had reduced.
[35] Exhibit A, T-Documents, T51, p. 99-100.
Dr Hodgkinson reported that the applicant participated and performed well in the work trial although significant problems in the area of planning, organisation and learning were encountered. The applicant attempted to return to bike riding while in Coffs Harbour; however, while coping well in the back streets, as soon as he encountered heavier traffic or highway traffic he suffered a panic attack and could not ride his bike further. Dr Hodgkinson explained that the panic attacks were a psychological reaction to trying to return to riding a motorbike after a major accident which would not be unusual and should be taken into account when returning to work.
Dr Hodgkinson recommended that the applicant remain in Coffs Harbour to live in close proximity to his parents to enable him to complete his psychological adjustment to the head injury and to retain custody of his son. Dr Hodgkinson considered that the option of a motorbike postal run would be unlikely at that stage. Dr Hodgkinson considered it inappropriate to return the applicant to live in Sydney alone.
Report of Dr Adeline Hodgkinson, Director of the Head Injury Unit at Lidcombe Hospital dated 2 December 1993
On 2 December 1993, Dr Hodgkinson reported on the reasons for why she believed that the applicant was best to continue rehabilitation in Coffs Harbour.[36] Dr Hodgkinson explained that the applicant suffered a traumatic brain injury which not only resulted in the applicant suffering a severe cognitive, physical and functional deficit, but also major changes to his psycho-social circumstances with a reactive depression.
[36] Exhibit A, T-Documents, T58, p. 107.
Dr Hodgkinson considered that the practical support provided by the applicant’s parents had proven to be greater than the psychological support provided by a counsellor in Sydney when the applicant attempted to live alone. Dr Hodgkinson also considered that the breakup of his relationship with his fiancée at the time of the accident could be directly linked to the consequences of the accident.
Letter of Dr J Keith Anderson of Urunga Medical dated 7 March 1994
On 7 March 1994, Dr J Keith Anderson recommended that the applicant attend a gym as a part of his rehabilitation program to work towards lifting 16 kilograms after 8 weeks.[37]
[37] Exhibit A, T-Documents, T59, p. 108.
Physiotherapy request of Kempsey District Hospital dated 11 March 1994
A physiotherapy request of the Kempsey District Hospital dated 11 March 1994 indicated that the applicant required physiotherapy for his lower back and required a “weight programme”.[38]
[38] Exhibit A, T-Documents, T60, p. 109.
Report of Mr Gary Grant, Consultant Clinical Psychologist dated 10 May 1994
Mr Gary Grant, Consultant Clinical Psychologist, gave a report dated 10 May 1994. Mr Grant interviewed the applicant and undertook two subsequent assessment sessions prior to providing his report.[39] Mr Grant noted that the applicant suffered a severe head injury on 8 April 1992 where he remained in a coma for four days after the accident and then a period of post-traumatic amnesia of two to three weeks.
[39] Exhibit A, T-Documents, T64, p. 113-117.
Mr Grant commented that it appeared that the applicant had not been successful in returning to work with the respondent, nor in being rehabilitated to the point where returning to work was recommended.
During the assessment the applicant reported that his memory abilities and his visual impairments were his main difficulties but he was also suffering from lower back pain and was quick to anger. Mr Grant observed the applicant to be alert, orientated, motivated, and remarked that he cooperated well. The applicant’s attention and concentration skills were adequate on specific testing, however, he failed to complete the requirements during the first session. The applicant performed at an impoverished level on tracking tasks involving speed of information processing. The applicant’s overall memory abilities lacked efficiency and were performed within a below-average range, however, he performed within the normal limits for memory tasks that were less complex and did not have a distraction element built into it. The applicant performed below average in tasks involving complex material over time. The applicant’s verbal memory was generally poorer than his visual memory and he was able to adequately perform an automatic, well-learnt task.
Mr Grant recommended that the applicant have a job structured around simple tasks, that is not visually taxing and which does not require quick responses to be made within a short period of time. Mr Grant opined that the applicant would also require small breaks built into the job because of his concentration problems and back complaints. It was suggested that the applicant be retested with regards to his driving abilities and that he refrain from driving at night until this test was done.
Mr Grant reported that the applicant retained a strong belief that the respondent had not acted in a very compassionate manner to his predicament and that he was of the view that “no one really seems to care”. The applicant was anxious regarding a perception that he had no control over his life and that his future rested in the hands of the respondent. Mr Grant considered that the applicant presented as someone who was finding it increasingly difficult to live with the high degree of uncertainty about his future and that it would be of benefit if the respondent explained their intentions and capacity to facilitate appropriate rehabilitation within their organisation to the applicant.
Report of Dr Robert Cameron, Consultant Surgeon dated 11 November 1994
On 11 November 1994 Dr Robert Cameron, Consultant Surgeon, assessed the applicant and gave a report.[40] The applicant reported that after his accident on 8 April 1992 he was taken in an ambulance to Liverpool Hospital where he was admitted for approximately one month. The applicant was unconscious after the accident for about three or four days and reported having no memory of the accident, the week before the accident or three weeks after the accident. The applicant reported that the main injury sustained was a head injury but he also sustained fractures to the left side of the jaw and right iliac crest of the pelvis. The applicant reported losing vision in his left eye as a result of the accident with the exact cause uncertain. The applicant reported being unable to be helped with glasses.
[40] Exhibit A, T-Documents, T68, pp. 123-128.
The applicant reported at the time smoking intermittently and drinking 15 to 20 beers on a Friday night. He reported that following his injuries he had a period of drug and alcohol dependency which partly improved when he moved to the North Coast. The applicant reported being involved in social cricket, football and lifting weights at the gym prior to the accident.
The applicant reported that he returned to work in August 1993 when he was transferred to Coffs Harbour for a three month trial. The applicant reported that he attempted to do motorbike deliveries but “freaked out” when he saw a truck while riding. In February 1994 the applicant moved to Kempsey to be closer to his parents and undertook two weeks at the Kempsey Post Office; however, he was unable to memorise post codes and did not persist in this work.
The applicant reported his worst problem as being his memory loss and that he used a diary to manage appointments. The applicant reported having lower back pain after sitting for prolonged periods, his pain worsened in cold weather. The applicant also reported pain in his right knee which occasionally gives way. The applicant reported a loss of feeling on the left side of the face overlying the jaw and occasionally gets headaches attributed to stress.
The applicant reported living alone and doing his own housework, shopping and cooking.
Dr Cameron assessed the applicant as having a satisfactory memory with no difficulties understanding. The applicant’s upper limbs were normal with “very strong muscular development” and there was no local tenderness of the reported pain in the mid thoracic and lower lumbar region. The applicant’s movements were also within the normal limits and there was no muscle wasting of either lower limb.
Dr Cameron considered that despite the applicant’s complaints of ongoing back and leg pain there was no objective evidence of ongoing musculo-skeletal or orthopaedic abnormality. Dr Cameron considered that some ongoing problems with memory were reasonably attributable to the head injury.
Dr Cameron considered that the cause of loss of left visual acuity was uncertain and no ophthalmological reports were available. Dr Cameron assessed the applicant as having 0% whole person impairment for:
·Facial disfigurement;
·ENT disorders;
·Lower extremity;
·Limb function lower limb;
·Thoracolumbar spine;
·Cranial nerves;
·Comprehension; and
·Expression.
Dr Cameron assessed the applicant as having 20% whole person impairment to visual acuity. Dr Cameron opined that ff there were evidence of correctable equity to 6/18, this would reduce to 10% whole person impairment. Dr Cameron also assessed the applicant as having 25% whole person impairment for memory and 25% for reasoning. Dr Cameron considered it unlikely that the impairment would deteriorate significantly.
Report of Dr Matthew Giblin, Orthopaedic Surgeon, dated 13 February 1995
Dr Giblin assessed the applicant on 13 February 1995 for whole person impairment, awarding the applicant 15% whole person impairment for the lumbar spine injury and 19% whole person impairment for the combined injuries of the pelvis and knee.[41]
[41] Exhibit A, T-Documents, T71, p. 139.
Rehabilitation Review Report dated 22 June 1995
On 22 June 1995, a review of the applicant’s rehabilitation was undertaken by Ms Jane Beaumont, Rehabilitation Counsellor.[42] Ms Beaumont noted that the applicant wanted to gain work in Kempsey where he lived with his son particularly as his parents were not far away, and where he had established a routine and a good social network. The applicant was prepared to consider most work that did not include driving motorcycles. Ms Beaumont noted that the applicant was performing his own home and car care activities so duties such as lawn mowing and car cleaning were going to be assessed.
[42] Exhibit A, T-Documents, T72, pp. 140-146.
Ms Beaumont recognised that the applicant had made progress with his fitness by attending the gym but still had limited lifting capacity and was not considered suitable to undertake lawn mowing due to the physical demands involved. The applicant also required more assistance with his work attitude and behaviour, as well as his communication in the workplace. The applicant continually expressed a desire to discuss his situation and what was going to happen at the end of the 12 months with a fear of being transferred back to Sydney. Ms Beaumont encouraged the applicant to leave this issue until his capacity for work had been determined. Ms Beaumont commented that the applicant demonstrated concerns that he would not settle into work until his compensation matter had finalised and that ideally he would “like to be pensioned from Australia Post and gain work in the community”.
The applicant was noted to have a very fixed routine and had difficulties adjusting to change. Ms Beaumont considered this attributable to the applicant’s head injury which resulted in the need for structure and routine. The applicant was able to make the necessary childcare arrangements while working part-time but would require further assistance if, or when, he returned to work part-time.
Ms Beaumont considered that the factors that needed to continue to be addressed in the applicant’s rehabilitation were:
·A realistic job choice in view of the applicant’s physical limitations and cognitive deficits;
·An increase in the applicant’s general fitness to prepare for work;
·Options such as childcare arrangements and new routines to allow the applicant to fit work into his lifestyle;
·The applicant’s fear of being returned to Sydney for work;
·The applicant wanting to settle his claim;
·The applicant’s knowledge of work, how to behave appropriately, presentation etc.; and
·Determining how the applicant would learn new tasks and how much support/training is required for the applicant to maintain employment.
Ms Beaumont, when considering the applicant’s work capacity, noted that she had only been involved in the applicant’s rehabilitation since earlier in the year 1995 and had been involved in organising work placements to assess his suitability for work in Kempsey. Ms Beaumont considered that the applicant’s work capacity was still being assessed and that at this stage he was capable of part-time light work. The applicant was due to commence his work placement at the car yard with the main duties setting up the car yard in the morning, cleaning cars and keeping them well presented.
Ms Beaumont noted that there was a depressed job market in Kempsey. There was a limited amount of manufacturing work with no current recruitment. The applicant had expressed some prospect of ongoing work with Macleay Ford if he was able to learn the tasks of the job and fit in with their work routines.
Summary Report of Commonwealth Rehabilitation Service Intervention dated 23 June 1995
Ms Diane Cook, Case Manager with the Commonwealth Rehabilitation Service, provided a report dated 23 June 1995 outlining that the applicant was fit for work in the “moderate to light physical capacity” with the following restrictions:[43]
·Lift from floor to waist 5kg maximum;
·Lift from waist to above head 5.6kg maximum;
·Able to carry 13.5kg when lifted at waist height and put down at waist height;
·Able to work with hands at shoulder height for up to 5 minutes;
·Able to work at desk with adjustable equipment; and
·Good sitting tolerance when able to shift posture.
[43] Exhibit A, T-Documents, T72, p. 144-146.
Ms Cook recommended that the applicant avoid heavy lifting, repetitive lifting, carrying weights upstairs, tasks with significant rotation components, kneeling and crouching. Ms Cook noted that the applicant had a reduced visual activity of the left eye requiring postural compensation (turning head).
Ms Cook recommended unskilled and semi-skilled work of a repetitive nature with a minimum number of tasks. It was also recommended that the applicant’s work hours be consistent.
Ms Cook noted that the applicant’s work trial supervisor noted the following issues with the applicant in the early phase of trial:
·Poor concentration – Mark’s mind was on something else;
·The applicant wished to leave as soon as time was up even if the task was not completed; and
·The applicant was not good at checking his work.
Ms Cook noted that the applicant’s capacity to do the work improved to 95% by the end of the trial but that repetitious work was physically detrimental to the applicant’s back and knee.
Ms Cook concluded that the applicant’s head injury, back and knee injuries restricted his work options. Ms Cook recommended that the applicant have an organised introduction to the workplace with training of the task and supervision of workplace requirements which could then be reduced once the applicant had mastered the skills and behaviours necessary in the workplace. Ms Cook noted that the applicant’s concentration and stamina meant that he was more successful in the workplace when he had reduced hours that were eventually upgraded. Ms Cook remarked that a variety of tasks without timeframe pressures also enhanced the applicant’s success.
Ms Cook considered that the applicant should be medically retired from Australia Post and then move to the open workforce locally, beginning with part-time employment. Ms Cook recommended that the applicant not return to Sydney or Australia Post.
Report of Dr Sydney Nade, Orthopaedic and Accident Surgeon dated 11 August 1995
Dr Sydney Nade, Orthopaedic and Accident Surgeon, undertook an assessment of the applicant on 2 August 1995 and provided his report on 11 August 1995.[44] Dr Nade reported that the applicant could not remember the accident and his first recall was about one month after the accident when he was an inpatient at Liverpool Hospital. The applicant reported that he did not need walking aids when he was discharged from the hospital but had injuries to his pelvis, right knee and jaw.
[44] Exhibit A, T-Documents, T73, pp. 147-151.
The applicant reported his current symptoms as memory problems stating: “my memory ain’t there like it used to be”, frequent headaches, nearly blind in left eye, back problems particularly in cold weather, right knee problems requiring a knee guard most of the time, and aches and pains in his pelvis during cold weather. The applicant reported not being able to play sports with his son or ride a motorbike and said: “I don’t enjoy life and I’m quick tempered”. The applicant reported being a non-smoker who occasionally drank beer. He also reported he was living with his son and was currently undergoing a rehabilitation program.
During the assessment of the applicant, Dr Nade noted that the applicant’s spinal movements demonstrated that he could bend forwards and flex to reach his fingers 17 centimetres from the floor. The applicant’s lateral flexion was about 75% of the normal range and the applicant’s rotation of his spine and extension had full range. The applicant was also able to squat without difficulty and he could stand unaided on each leg alone for about 20 seconds. There was no evidence of muscle wasting in the lower limbs and the applicant’s visual acuity was diminished in the left eye (6/60).
The applicant reported that he felt unable to work due to his poor memory and loss of vision. The applicant also reported that he believed he would get arthritis in his back and so he had to look after his back.
Dr Nade considered that the applicant suffered from loss of visual acuity in the left eye but noted that he was unqualified to comment on this. Dr Nade also considered that the applicant suffered the consequences of a brain injury and was unqualified to make comment about the consequences of the fracture of the applicant’s mandible from which he had no symptoms.
Dr Nade considered that, on the balance of probabilities, the applicant’s current condition was directly related to the incident on 8 April 1992 and there was no evidence to suggest that there has been an aggravation of an underlying or pre-existing condition by the incident. Dr Nade considered that the applicant’s symptoms were not a natural progression of an underlying or pre-existing condition to which his employment did not materially contribute and that his employment with the respondent continued to contribute to the condition.
Dr Nade did not consider any treatment was required for the applicant’s current symptoms. Dr Nade, however, recommended that the applicant have a vocational assessment performed to determine his level of intelligence and memory impairment which the applicant claimed to be a consequence of the accident on 8 April 1992. Dr Nade considered that the applicant had a significant injury to the right side of his trunk and still had some abnormal tethering of muscles to underlying tissues and that it was conceivable that the applicant did suffer some discomfort when he had to lift objects. Dr Nade could not detect any abnormality of the applicant’s lumbar spine or lower limbs and considered the applicant capable of performing a large number of sedentary occupations or light duties in a physical occupation in a full-time capacity. However, Dr Nade did consider it inappropriate for the applicant to be in an occupation which required binocular vision due to his left eye impairment.

Dr Nade considered it unlikely that the applicant’s impairment would deteriorate significantly in the future.
Report of Dr Jennifer Batchelor, Clinical Neuropsychologist, dated 28 August 1995
Dr Jennifer Batchelor, Clinical Neuropsychologist, undertook an assessment of the applicant on 2 August 1995 and provided her report on 28 August 1995.[45] The applicant reported during the examination that he had no recollection of the 8 April 1992 accident itself and could not recall a period of approximately one week prior to the accident. The applicant reported that his first clear memory was waking up in the hospital and recalled only being able to remember the final week of his stay in hospital. He could remember his discharge from the hospital.
[45] Exhibit A, T-Documents, T74, pp. 152-163.
Dr Batchelor considered that the applicant’s account of the accident would suggest that the applicant was rendered densely amnesic as a result of the accident and that he remained in a state of post-traumatic amnesia for a number of weeks subsequent to the event. Dr Batchelor considered that the duration of the post-traumatic amnesia interval is generally considered the best measure of a head injury severity and the most accurate index of the likelihood of residual cognitive and behavioural sequelae. According to conventional criteria, a post-traumatic amnesia of between one and four weeks duration should be considered a very severe head injury.
Dr Batchelor reported that the applicant suffered visual problems, problems in walking and behavioural disturbances. The applicant was described as irritable and intolerant and was diagnosed with reactive depression. The applicant reported during the time following the accident that he was unable to cope with living in a busy city and was drinking heavily. He had also lost the custody of his son. The applicant reported consuming alcohol only occasionally and that he was residing with his son.
Dr Batchelor reported that the applicant attended the assessment with his father and that he presented as alert and oriented. The applicant’s expressive and receptive language appeared intact on a conversational level and the information relayed on interview impressed as internally consistent and unembellished. The applicant was also fully cooperative throughout the assessment and appeared to be working to the best of his abilities.
The applicant identified a number of concerns in relation to how his thinking and behaviour had been affected as a result of the head injury, namely, forgetfulness and short-temperedness. The applicant reported being engaged and his fiancée was said to have recently purchased a property. The applicant reported being previously engaged to a woman who was unable to cope with the behavioural changes that followed the accident.
Dr Batchelor considered that the assessment revealed definite evidence that the applicant has an acquired cognitive impairment. Dr Batchelor remarked: “although of low average to borderline intelligence, Mr Payten was unable to achieve at even close to this level on measures of recent memory, attention and adaptive ability”.[46] Dr Batchelor considered that the applicant’s capacity to learn new information, to manipulate material in mind, to reason and problem-solve and to regulate responses was severely impaired. Dr Batchelor did not consider that these deficits represented a deliberate attempt to enact cognitive impairment but rather they were consistent with the sequelae of head injury described in the literature. Dr Batchelor further considered that it was unlikely that the applicant’s short period of substance abuse would have resulted in the severe and wide ranging cognitive impairments identified.
[46] Exhibit A, T-Documents, T74, pp. 157-158.
Dr Batchelor considered that, given the testing was performed more than three years after the accident, the results may have represented permanent impairments which impacted on the applicant’s daily life. Dr Batchelor considered that the applicant’s deficits were most likely to manifest in the form of an inability to learn material of any complexity, a tendency to confuse information, an inability to cope with procedures for which he has not been specifically trained and a tendency to persevere with a given mode of response even when given information that he is not proceeding correctly. Dr Batchelor considered that the applicant was capable of performing routine and stereotyped activities, however, he would require supervision and guidance if there were tasks of greater complexity.
Dr Batchelor also considered that the applicant was suffering from significant depression and anxiety and these conditions would appear to be directly related to the accident in 1992.
Dr Batchelor considered that despite the applicant’s cognitive problems were pronounced, they were not sufficient to preclude him from participating in some of employment and that the applicant could perform routine and stereotyped procedures that place minimal demands on learning and memory. Dr Batchelor considered that the applicant would not be capable of duties involving delivering or sorting mail and that he should be medically retired from Australia Post.
Dr Batchelor recommended that the applicant reside outside of Sydney as returning to Sydney would merely serve to aggravate his symptoms. Dr Batchelor considered that the applicant could maintain full-time employment however it would be his physical problems and frequent headaches that may restrict his ability to do so.
Letter of Dr Carmel Shanahan dated 22 August 1996
Dr Carmel Shanahan considered that in order for the applicant to maintain his current level of mobility, he should follow a program at the gym and this would be essential if the applicant was to remain independent and mobile following the injuries he sustained in the accident.[47] This opinion was echoed by Dr Ulf Stenback on 9 March 1997.[48]
[47] Exhibit A, T-Documents, T80, p. 172.
[48] Exhibit A, T-Documents, T82, p. 174.
Letter of Dr Matthew Giblin, Orthopaedic Surgeon, dated 17 August 1998
On 17 August 1998, Dr Giblin reported that the applicant was doing a lot of squats and leg extension exercises in the gym and had advised the applicant that these were inappropriate.[49]
[49] Exhibit A, T-Documents, T93, p. 187.
Letter of Dr Matthew Giblin, Orthopaedic Surgeon, dated 21 December 1998
On 21 December 1998, Dr Giblin reported that the applicant was complaining of symptoms in his left knee which appeared to relate to his retro-patella surface but this was not related to his accident.[50]
[50] Exhibit A, T-Documents, T94, p.188.
Report of Dr J Holmes, Psychiatrist, dated 9 February 1999
On 9 February 1999, Dr J Holmes, Psychiatrist, provided a report at the request of the respondent.[51] Dr Holmes reported that the applicant suffered a brain injury which resulted in impairment of a number of higher functions, especially short term memory and emotional control. The applicant’s frustration tolerance was diminished and he became more impulsive. Dr Holmes considered that as a result of the applicant’s impairment he became virtually unemployable, adding greatly to the loss of his self-esteem. The applicant turned to alcohol and other drugs and became depressed and anxious.
[51] Exhibit A, T-Documents, T95, p. 189-190.
Dr Holmes reported seeing the applicant for the past two years and steadily the applicant’s depression and anxiety had improved. Dr Holmes considered that the applicant did not then have a psychiatric disorder but diagnosed the applicant with adjustment disorder with depression, anxiety and substance abuse. Dr Holmes considered that the applicant’s exercise routine helped his self-esteem and confidence, and if he were to cease it he would become depressed again.
Dr Holmes considered that the applicant’s condition settled in 1998 and that he had no plans to see him for continuing therapy. Dr Holmes considered that the applicant’s condition was “as good as it will get” and he did not require medication.
Report of Dr Anthony Smith, Orthopaedic Surgeon, dated 31 May 2000
On 26 May 2000, Dr Anthony Smith, Orthopaedic Surgeon, undertook an assessment of the applicant at the request of the respondent and provided his report on 31 May 2000.[52] Dr Smith remarked that upon clinical examination the applicant presented as:
·extremely well-muscled with a number of tattoos;
·his cervical movements had full range with no complaint of pain;
·his shoulder movement was normal and the range of movement of all joints in both upper limbs were within the normal range;
·he stands erect without spasm and the lumbar lordosis is normally preserved;
·he can reach down to his toes and resumes the erect position with a normal rhythm of movement – extension is better than average for a man of his age and is pain free;
·he has full and free range of movement in all directions without pain in his hips; and
·he has no effusion or any wasting in his knees and no evidence of ligamentous instability.
[52] Exhibit A, T-Documents, T112, p. 210-213.
Dr Smith considered that from an orthopaedic point of view there was “nothing wrong” with the applicant and that there was “no reason for him to restrict his employment”. However, Dr Smith did agree that if the applicant had impaired vision and mental function then he would probably be unfit for a wide range of jobs. Dr Smith did not consider the applicant to be suffering from any orthopaedic disability from 1992 and commented that he did not think that the applicant needed to do gymnasium or body building.
Reports of Dr Paul Hitchen, Orthopaedic Surgeon, dated 8 June 2000, 6 July 2000, 20 July 2000 and 16 August 2000
On 8 June 2000, Dr Paul Hitchin, Orthopaedic Surgeon, reported on the applicant’s right elbow.[53] Dr Hitchin reported that the applicant attended the gym five to six days per week for one to two hours. During this time the applicant did “a lot (sic) gripping of dumbbells and various weights”. The applicant reported experiencing pain within his elbow which intensified when performing bicep curls with his wrist and elbow flexed.
[53] Exhibit A, T-Documents, T113, p. 214.
Dr Hitchin considered that the applicant was a “well muscled gentleman” and his “upper limb muscle habitus was consistent with chronic weight training”. Dr Hitchin concluded that the applicant has “acute onchronic medial epicondylitis” otherwise known as “golfer’s elbow” and is frequently caused by over gripping of objects. Dr Hitchin considered that in the applicant’s case, prolonged dedicated weight training has resulted in an enthesopathy and recommended that the applicant have a break from weight training to help improve his troubles.
On 6 July 2000, Dr Hitchin re-examined the applicant who continued to complain of ongoing troubles with his elbow and he was referred for an MRI.[54] Dr Hitchin considered that the applicant may have some subtle bicep tendon irritation or bursitis around the radial tuberosity.
[54] Exhibit A, T-Documents, T116, p. 217.
On 20 July 2000, Dr Hitchin gave his opinion that the applicant’s injury is “related to some form of overuse injury induced by his gymnasium work”.[55]
[55] Exhibit A, T-Documents, T117, p. 218.
On 16 August 2000, Dr Hitchin re-examined the applicant who was continuing to complain of elbow pain and recommended injecting the radial tuberosity in the region of the bicipital bursa with some local anaesthetic and steroid under ultrasound or image intensifier control.[56]
[56] Exhibit A, T-Documents, T118, p. 219.
MRI report of the right elbow dated 8 August 2000
In an MRI report dated 8 August 2000, it was reported that there was no cause for the applicant’s symptoms and the bicep tendon defined normally.[57] There was no abnormality.
[57] Exhibit A, T-Documents, T119, p. 220.
Report of Dr Matthew Giblin, Orthopaedic Surgeon dated 18 August 2000
On 18 August 2000, Dr Giblin reported that he maintained his opinion outlined in his previous reports that there had been no major change in the applicant’s condition, however, there was some minor deterioration in the right knee.[58] Dr Giblin did not consider that the applicant required a gym programme, but he did require an exercise programme of some sort.
[58] Exhibit A, T-Documents, T120, p. 221-223.
Report of Dr Simon Crowe, Consultant Neuropsychologist, dated 20 October 2000
Dr Simon Crowe assessed the applicant on 6 October 2000 and provided his report on 20 October 2000 at the request of the respondent.[59] The assessment was cut short due to the applicant needing to fly back to Port Macquarie and Dr Crowe has noted that because of this it is difficult to be definitive about the applicant’s current symptoms and disabilities.
[59] Exhibit A, T-Documents, T121, p. 224-235.
Dr Crowe reported that the applicant appears to have had some post-traumatic amnesia in the vicinity of three weeks and a retrograde amnesia in the vicinity of one week. Dr Crowe considered that the applicant’s performance was consistent with that reported in other neuropsychological assessments since his injury in 1992. Dr Crowe considered that there was a relative preservation of general cognitive functions but deficits in the area of memory, planning and problem solving.
Dr Crowe considered that the applicant had a severe post-concussional syndrome which occurred as a consequence of the accident on 8 April 1992 characterised by a diminution of his memory functions in association with a compromise of his executive function and emotional changes. Dr Crowe considered the applicant’s condition was consistent with previous examiners’ reports and there had been no significant improvement. Dr Crowe considered that the applicant’s deficit was solely attributable to the incident of 8 April 1992 and, in terms of employment, the applicant would only be able to perform in a very structured environment in which there was a direct association between him and the supervisor. The applicant would also not be able to function independently in any role, most notably not a postal delivery officer.
Reports of Dr Alan Hopcroft, General Surgeon, dated 16 November 2000 and 22 November 2000
Dr Alan Hopcroft assessed the applicant on 16 November 2000 and reported that the applicant had been left with “significant ongoing deformity and pain in the vicinity of his right pelvis where he had suffered a compound fractured pelvis and had required several surgical procedures, two of which became secondarily infected and required protracted dressings”.[60] Dr Hopcroft considered that the applicant had some lumbosacral tenderness from a lumbosacral strain injury and tenderness over his thoracic spinous processes which in his opinion arose from an underlying Scheuermann’s osteochondritis condition.
[60] Exhibit A, T-Documents, T123, p.241.
Dr Hopcroft considered that the applicant was fit for undertaking light physical work but that it is dismissive to say that “from an orthopaedic point of view, there is nothing wrong with him” as one of the arthroscopy reports performed on the applicant’s knee by Dr Giblin showed a deep traumatic articular cartilage fissure on the posterior surface of the applicant’s patella and a chondroplasty was performed. Dr Hopcroft considered that such a procedure does not return a joint to normal but simply delays the development of osteoarthritis in the longer term. Dr Hopcroft considered that the applicant would inevitably develop significant osteoarthritis in his right knee joint as a result of the injuries suffered in the motor vehicle accident due to his chondromalacia patellae condition.
On 22 November 2000, the applicant underwent a bone scan; there was no significant abnormal activity in the applicant’s hip joints or spine reported, and no evidence of significant facet joint arthritis or recent fracture in the spine.[61] Dr Hopcroft reported that the bone scan indicated multiple changes in the applicant’s pelvis as a result of his fractured right iliac crest. Dr Hopcroft considered that the applicant’s spinal pain was due to the strain injury from the motor vehicle accident and considered this to be a continuing problem. Dr Hopcroft considered that the applicant would develop osteoarthritis in his right knee as a result of the arthroscopic changes found at the operation by Dr Giblin and that it was quite likely that the applicant would require further arthroscopic procedures in his later life to undertake further shaving procedures as degenerative changes develop at the patellofemoral joint.
[61] Exhibit A, T-Documents, T124, p. 242.
Report of Dr Paul Hitchin, Orthopaedic Surgeon, dated 8 February 2001
Dr Hitchin reported that the applicant continued with his body building and weight training, and had recently commenced volunteer work helping people with intellectual disabilities.[62] Dr Hitchin considered that the applicant was extremely well-muscled and that he continued to display signs of distal biceps tendonitis. The applicant was content to take no further action.
[62] Exhibit A, T-Documents, T128, p. 246.
Report of Dr Derek Lovell, Consultant Forensic Psychiatrist, dated 23 March 2001
On 22 March 2001, Dr Derek Lovell, Consultant Forensic Psychiatrist, assessed the applicant and provided his report on 23 March 2001.[63] The applicant reported to Dr Lovell that he was short-tempered and did not handle things like he used to, commenting that “Australia Post is my biggest stress. For me to get anywhere in life, I’ve got to answer to them…‘it’s like a game to them’”.[64] The applicant also reported memory difficulties and that he had to maintain a diary otherwise he forgot appointments. The applicant reported misplacing items and that he was not good with names.
[63] Exhibit A, T-Documents, T131, pp. 249-253.
[64] Exhibit A, T-Documents, T131, p. 250.
Dr Lovell described the applicant as “clearly very fit” presenting as a “muscular individual”. The applicant reported complaints of back pain, headaches and poor visual acuity in the left eye. The applicant reported doing the housework and shopping. He also reported taking his son to cricket training and school. The applicant reported his marriage of three years ended over two years prior because of his irritability.
Dr Lovell reported that the applicant was initially tense and irritable during the assessment and inappropriately demanded a copy of all of the questions that would be asked. The applicant became very irritated when talking about the respondent and tended to project his anger on what he perceived as unfair treatment commenting that the respondent was ruining his life.
Dr Lovell considered that the applicant presented as being of low average intelligence with there being evidence of frontal lobe damage. However, Dr Lovell considered that, despite memory difficulties, the applicant managed well with memory retraining, keeping a diary and ensuring he placed items in the one spot.
Dr Lovell considered that the applicant’s anger was not entirely rational and he did not believe that the applicant suffered from an anxiety disorder or a mood disorder. Apart from anger and interrupted sleep, Dr Lovell considered that there were few psychological symptoms other than irritability and his acquired brain damage related to the accident in which he suffered a post-traumatic amnesia of two to three weeks. Dr Holmes considered that, while the applicant was not clinically depressed at present, this was a possible outcome if the applicant’s current predicament were not solved in the near future.[65]
[65] Exhibit A, T-Documents, T136, p. 260.
Report of Dr David Maxwell, Orthopaedic and Spinal Surgeon, dated 5 February 2004
Dr David Maxwell, Orthopaedic and Spinal Surgeon, assessed the applicant and provided his report dated 5 February 2004.[66] Dr Maxwell reported that the applicant presented as aggressive and somewhat absent-minded. It appeared that the applicant’s memory was poor and he was suffering some loss of intellectual function. Dr Maxwell considered that the applicant’s compound fracture of the iliac crest had healed and would normally not cause any significant disability. The applicant’s fracture of the left mandible appeared to have also healed without residual sequelae. Dr Maxwell considered that the applicant’s knees were not responsible for any of his claimed incapacity and that it is reasonably common to have some softening of the retropatellar articular cartilage as described by Dr Giblin.
[66] Exhibit A, T-Documents, T160, p. 287-290.

The applicant outlined that prior to 2012 he had a carer for approximately six years. In March 2012 Ms Marsh became his carer (he came to know her through his sister). The applicant outlined that since his payments were stopped he rents out their property in Maclean and lives at Ms Marsh’s parent’s house.
The applicant outlined that Ms Marsh assisted him with everyday tasks such as banking, reading documents, heavy cleaning, washing and hanging clothes, driving and shopping. The applicant stated that he could do some of these tasks alone but it took him a lot longer. The applicant outlined that he drove around Maclean but his sense of direction was quite poor so he relied on Ms Marsh for directions.
The applicant outlined that he had struggled with motivation and direction since his gym membership was ceased he had found it especially hard. The applicant considered that his depression and anxiety had worsened since his compensation payments ceased. The applicant outlined that he struggled to accept the fact that people could think he was exaggerating or faking his injuries.
The applicant outlined that he believed his memory had deteriorated, however, his family and friends do not feel the same way and he believed that it had more to do with his mood, and that when he was depressed he felt his memory was worse than it was.
The applicant outlined that prior to his assessment with Dr Roldan he had driven to Sydney the night before with Ms Marsh as the respondent had not organised flights or accommodation so, after arriving late and not having a good sleep, he arrived at the assessment tired and with a bad headache. He was also on strong pain medication and did not think it would be a good idea to go ahead with the testing but Dr Roldan considered he should. The applicant outlined that he just wanted to get out of the office and did not care about the results. Then on the next occasion when he saw Dr Roldan he “lost it”[126] in the reception area as he had read the report which suggested he was exaggerating his condition.
[126] Exhibit B, Statement of the applicant dated 16 November 2016, at [43].
Statement of Debbie Marsh dated 16 November 2016
Ms Marsh provided a statement on 16 November 2016.[127] She outlined that she had been the applicant’s carer since March 2012 and that this came about after a discussion with the applicant’s sister who asked her to move in with the applicant as he was struggling to cope living on his own. Ms Marsh outlined that she had known the applicant’s sister and family for a long time and that she made a promise to the applicant’s mother that she would take care of him.
[127] Exhibit VV, Statement of Debbie Lorraine Marsh dated 16 November 2016.
Ms Marsh outlined that her duties included driving the applicant to medical appointments, making sure he took his medication on time, cleaning up around the house including washing and hanging out clothes, preparing and cooking meals, ironing and cleaning bathrooms. Ms Marsh outlined that she previously allowed the applicant to cook meals and iron clothes, however, he would forget or lose concentration and burn the food and/or leave the iron on. She also assisted the applicant with shopping, banking, paying bills, tidying and dropping him off/picking him up from events. Ms Marsh outlined that simple tasks took the applicant a lot longer to complete often making him frustrated. He also lost concentration quite easily. Ms Marsh outlined that the applicant was forgetful and a slow reader. She also had to help him with directions while he was driving and could be very moody and inpatient. Ms Marsh considered that the applicant’s behaviour had changed in the years since she had been his carer.
Relationships
There is evidence before the Tribunal that the applicant has been in relationships with some of his carers, particularly Ms Small and Ms Marsh. The applicant denies any romantic relationship with his carers, however, the respondent submits that there is evidence which indicates the contrary. The respondent submits that the applicant commenced a relationship with Ms Small in 2006 which lasted about five years. The respondent submits that there is evidence to suggest that they were in a relationship together, such as references to them purchasing a block of land and building a house together in early 2010, as well as references to Ms Small as the applicant’s partner.
The respondent also submits that the applicant commenced a relationship with Ms Marsh in 2012 and that there are references in the material that they entered into a loan agreement with Commonwealth Bank in 2014 together in the amount of $64,000.00. The respondent submits that the applicant referred to Ms Marsh in the loan application as his de-facto and his solicitors also referred to her as the applicant’s “partner”. The applicant and Ms Marsh then became registered joint tenants of a property in Gulmarrad. There are also other references in the material as Ms Marsh being the applicant’s partner.
Commercial transactions
Letter of Wallace Davies Solicitors to Dr Mark Scurrah dated 12 October 2012
In the letter of Wallace Davies Solicitors (‘WDS’) dated 12 October 2012, it outlined that the applicant was undergoing a property settlement against his “ex-defacto wife”, Ms Small.[128] The letter requested that Dr Scurrah provide his opinion on the applicant’s ability to make appropriate and reasonable decisions relating to his property dispute before WDS file proceedings in the Magistrates Court. In making this request, WDS made reference to the applicant’s motorbike accident “a number of years ago” while working with the respondent which left him with a severe brain injury.
Letter of Dr Mark Scurrah, Consultant Psychiatrist, to Wallace Davies Solicitors dated 30 October 2012
[128] Exhibit Z, Letter from Wallace Davies Solicitors dated 12 October 2012.
On 30 October 2012, Dr Mark Scurrah provided his response to the letter of WDS opining that the applicant had the capacity and ability to reason a property dispute.[129]
[129] Exhibit AA, Letters from Dr Scurrah dated 16 October 2012 and 30 October 2012.
Commonwealth Bank Home Loan Application dated 5 March 2014
The applicant and Ms Marsh applied for a home loan in March 2014 in the amount of $234,367.00.[130] The applicant’s marital status was listed as “Single” and Ms Marsh’s marital status was listed as “DeFacto”. The assets listed on the application form were Harley Davison, boat, Toyota Camry, Holden Colorado and Triton GLX. It listed the gross monthly income as $6,328.44 with a monthly salary of $3,736.89.
[130] Exhibit HH, Home Loan Investment Application.
Commonwealth Bank Insurance Options for Home Loan Customers document dated 24 March 2014
This Insurance Options document outlined that “Mark Raymond Payten” and “Debbie Lorraine Marsh” had acknowledged that they had been given the opportunity to buy Loan Protection and/or to speak to a Commonwealth Financial Planner about life insurance and had decided to make their own arrangements.[131] The total amount of repayments listed was $361,509.91.
[131] Exhibit II, Insurance Options Document dated 24 March 2014.
Residential Exclusive Management Agency Agreement dated 4 August 2015
The Residential Exclusive Management Agency Agreement dated 4 August 2015 provided the Principals as “Mark Payten & Debbie Marsh” who reside in Gulmarrad.[132]
[132] Exhibit QQ, Residential Exclusive Management Agency Agreement dated 4 August 2015.
Commonwealth Bank Home Loan Application dated 7 December 2016
The applicant and Ms Marsh applied for a home loan in December 2016 in the amount of $252,800.00.[133] The marital status of the applicant and Ms Marsh was listed as “Single”. The assets listed on the application form were boat, Suzuki Sports, Nissan Navara 2008, Suzuki Sports 2012 and Caravan. The gross monthly income was listed as $9,837.58 with a monthly salary of $1,900.00.
[133] Exhibit UU, Home Loan Investment Application.
NSW Land Registry Services Search as at 22 February 2018
The NSW Land Registry Services search outlines that “Mark Raymond Payten” and “Debbie Lorraine Marsh” are “joint tenants” of the property.[134]
[134] Exhibit JJ, Property Search conducted 22 February 2018.
Travel
The applicant travelled to:
·Bali in February 1999;[135]
·Thailand in October 2002;[136]
·Bali in August 2004;[137]
·Bali in September 2008;[138]
·Fiji in October 2013;[139]
[135] Exhibit K, Departure Record – Bali, dated 21 February 1999.
[136] Exhibit M, Departure Record – Thailand, dated 4 October 2002.
[137] Exhibit Q, Departure Record – Bali, dated 5 August 2004.
[138] Exhibit R, Departure Record – Bali, dated 7 September 2008.
[139] Exhibit DD, Departure Record – Fiji, dated 5 October 2013.
The applicant may have also travelled to Bali in September 2010.[140]
SUBMISSIONS
[140] Respondent’s final submissions dated 29 June 2018, at [96].
Applicant’s Submissions
The applicant submits that for the Tribunal to affirm the reviewable decision, it will need to be satisfied on the evidence before it that, on the balance of probabilities, the applicant no longer suffers from the effects of the compensable injury such that he does not require medical treatment and is not incapacitated for work.
The applicant seeks an order that the Tribunal set aside the decision under review and determine that the applicant has continuously, since 27 November 2015, been entitled to payment of compensation in respect of medical expenses and incapacity in accordance with sections 16 and 19 of the Act.
For the sake of completeness, there was another reviewable decision made by the respondent made on 6 February 2017 that determined that the applicant no longer suffered from any physical work-related effects of physical injuries arising out of the incident on 8 April 1992. The applicant no longer contests this reviewable decision on the basis that the applicant’s incapacity for work relates to the traumatic brain injury and the consequences of that injury suffered in the accident on 8 April 1992.[141]
[141] Applicant’s submissions dated 14 June 2018; Respondent’s final submissions dated 29 June 2018.
The applicant submits that his incapacity arises from cognitive impairment and anger and impulsivity problems and that there is sufficient evidence to support that the applicant remains incapacitated for the same reasons he was incapacitated for work when assessed by Dr Carless. The applicant submits that he suffered a brain injury and has not worked in over twenty years apart from showing the capability to do occasional part time volunteer work. The applicant accepts that he remains capable of some activities of daily living including occasional volunteering and driving, but that the respondent has led no evidence to show that the applicant’s or Ms Marsh’s evidence in relation to the daily activities is untrue.
The respondent submits that the applicant’s capabilities do not demonstrate that he has lost his incapacity for work as none of the activities have required full-time or even part-time attendance at work on a regular basis, performing work under supervision, or relying on memory, concentration or pace and persistence, all of which would be required even in a sedentary or light manual job of the type performed prior to the incident in 1992. The applicant also submits there is insufficient evidence to show that the applicant could perform any of his pre-incident occupations.
The applicant submits that he has received a lot of assistance from friends and family to manage his affairs and look after his children. The applicant submits that he has not independently managed his finances for years and has received assistance with organising holidays and looking after his sons.
The applicant submits that in regards to being on the board of management of the Magpies Rugby League Club,[142] he was purely there to “make up numbers” and that the suggestion from the respondent that this appointment indicated management and planning abilities are far in excess of what the applicant’s evidence was to the Tribunal.
[142] Exhibit PP, Letter of Magpies Football Club dated 19 May 2015.
The applicant submits that, despite it being put to the applicant on multiple occasions that he was capable of organising complex financial transactions; capable of independently caring for disabled children; capable of managing the affairs of the football club; capable of undertaking activities above and beyond those expressed himself; capable of buying and selling assets: there were no lay witnesses called to give evidence about these matters and the applicant’s capabilities. There was also no lay witness called regarding the nature of the relationship between the applicant and Ms Marsh.
The applicant submits that while he has a heavy vehicle driver’s licence (which was a medium rigid licence) there was no evidence put to the applicant that contradicted his reasons for obtaining the licence, that is, so he could register and drive his motor home.
The applicant submits that his demeanour while giving evidence is a relevant consideration as he was argumentative and unresponsive at times to questions which is consistent with other evidence the applicant has given regarding his behaviour post-accident in March 1992. The applicant further submits that no evidence was led by the respondent from previous carers or family members about the applicant’s behaviour and personality after the accident. Further the applicant submits that his behaviour with Dr Roldan is consistent with this, as well as his assault conviction. The applicant also relies on the evidence of Ms Marsh who recalled the applicant at his first visit to Dr Roldan being grumpy, “very out of his ordinary self” and at times yelling and swearing.
The applicant submits that there is evidence that the applicant has not performed appropriately on recent neuropsychological testing conducted by Dr Roldan and Mr Cipriani and that the applicant displayed an inappropriate attitude towards Dr Roldan. However, that the applicant’s lack of cooperation is indicative of the anger management and behavioural issues he has.
Respondent’s Submissions
The respondent submits that, given the concessions made by the applicant that there is no physical work incapacity arising from the subject trauma, the restriction of any future employment, ultimately rests on the assessment, of any continuing head injury.[143] The respondent considers that given the absence of any demonstrable pathology on the MRI brain scan, one is heavily reliant on the reported history and symptomatology of the applicant which they submit, has been shown to be “completely unreliable”.[144] The respondent submits that there may be some residual symptomatology arising from the brain injury of 8 April 1992 but the true extent of any residual symptomatology is unable to be ascertained because of the actions of the applicant, and that any residual incapacity is likely to be minor in nature.
[143] Respondent’s final submissions dated 29 June 2018, at [404].
[144] Respondent’s final submissions dated 29 June 2018, at [405]-[406].
The respondent submits that the reports of Ms Alting are significant as they deal with the period immediately post injury and for 12 months thereafter. The respondent submits that it is apparent that during the first 2 year period post injury, the applicant produced responses on objective testing, which were incongruent:[145] “actually performing more poorly on tests at the current sessions than when he was first tested 2 months following his head injury. Also Mark performed better on some difficult tasks than he did on simpler items which are thought to test the same functions”.[146]
[145] Respondent’s final submissions dated 29 June 2018, at [50].
[146] Exhibit H, Lidcombe Neuropsychology Report dated 27 May 1993.
The respondent submits that the submission that Ms Alting did not carry out specifically identified tests is of no moment and that it is clearly apparent that Ms Alting was comparing the applicant’s latest testing and assessment to her earlier two assessments. The respondent submits that the significance of this is that, whilst some recent experts have raised the issue of incongruent results within the past couple of years, such incongruent results had already commenced in a little more than 12 months after the subject accident.[147] The respondent considers that this has further importance as a number of the assessors have simply accepted the applicant’s recount at face value without having the benefit of access to the records of the initial treating neuropsychologist.
[147] Respondent’s final submissions dated 29 June 2018, at [55].
The respondent submits that the assessment undertaken by Ms Arnold, Occupational Therapist, on 16 July 2002 is at odds with the current assertions of the applicant in that he is so debilitated in the activities of daily living that he requires a full-time carer.[148]
[148] Respondent’s final submissions dated 29 June 2018, at [58].
The respondent submits that the driving assessment undertaken on 21 August 1992 is also at odds with the assertions of the applicant in that he had great difficulty driving.[149]
[149] Respondent’s final submissions dated 29 June 2018, at [60].
The respondent submits that despite the applicant alleging he has difficulty sitting for prolonged periods of time, difficulty walking, difficulty carrying, difficulties with social isolation, the applicant has managed to undertake a number of overseas holidays including Bali in 1999, 2004, 2008 and 2010; Thailand in 2002; and Fiji in 2013. The respondent also submits that the applicant travelled around Australia in his motor home with Ms Marsh and during evidence stated that he shared the driving with Ms Marsh. The respondent submits that despite driving long distances, the applicant was still able to regularly attend the gym at the end of the day.[150] The respondent further submits that the applicant’s assertion that his back, knee and arthritic conditions disable him, this is inconsistent with his past gym programs.
[150] Exhibit S, Gym Receipt Statement dated 2 December 2009.
The respondent submits that the applicant was also travelling extensively in 2013. The applicant also travelled to Fiji in November 2013. The respondent submits that while the applicant was in Fiji he made a withdrawal from Lautoka ATM which shows he is capable of financial management and memorising a pin code which contradicts the assertion made by Dr Roldan that the applicant “does not have a key card and that instead he makes withdrawals with the assistance of a teller”. The respondent submits that Ms Marsh also confirmed in her oral evidence that the applicant is capable of using an ATM by entering his pin and can recall the pin. The respondent also considers that the applicant has been capable of making significant cash deposits into his account in different branches.[151]
[151] Exhibit FF, CBA Complete Access Account Records.
The respondent submits that despite the applicant’s evidence that he has a complete lack of ability to organise himself generally in activities of daily living, the applicant was able to be on the board of management of the Magpies Rugby League Club.[152]
[152] Exhibit PP, Letter of Magpies Football Club dated 19 May 2015.
The applicant has purchased and sold properties over the years, turning a substantial profit at times. The respondent submits that this not plausible for someone with a significant brain injury.
The respondent submits that many of the symptoms the applicant has reported are inconsistent as the history indicates that the applicant:
·at times was living by himself;
·was the custodian of two children;
·drove and travelled extensively throughout Australia and sometimes overseas;
·operated bank accounts;
·purchased property;
·held a heavy vehicle driver’s licence;
·was able to socialise and meet easily with others;
·was able to attend the gym regularly; and
·competed in body building competitions.

The respondent submits that the applicant is an unreliable historian who is prepared to adapt his story if “he thinks that this would be beneficial to him”.[153] The respondent submits that the Tribunal should regard the applicant’s evidence with a great deal of circumspection and the evidence should not be accepted unless corroborated by independent, contemporaneous documentation.[154]
[153] Respondent’s final submissions dated 29 June 2018, at [106].
[154] Respondent’s final submissions dated 29 June 2018, at [107].
The respondent submits that despite the applicant alleging cognitive difficulties, the applicant was giving instructions to Commonwealth Bank about his preferred loan method as at 7 September 2012.[155]
[155] Exhibit Y, Consumer Credit Contract Schedule (CBA) dated 7 September 2012.
The respondent submits that the applicant had no interest in returning to work once he retired in 1995, and was “content to receive his fortnightly salary payments”.[156] The respondent submits that this is apparent amongst the evidence, including when the rehabilitation assessor noted that:
During the initial assessment interview, Mr Payten expressed anger at Australia Post and was very adamant that he would not return to work with the organisation in any capacity.[157]
[156] Respondent’s final submissions dated 29 June 2018, at [112].
[157] Exhibit A, T-Documents, T183, p. 322.
The respondent ultimately submits that the applicant is an unreliable witness and his accounts should not be accepted in the absence of contemporaneous independent medical documentation. The respondent also submits that the Tribunal should regard with circumspection the evidence of Ms Marsh.
THE HEARING
This matter was heard across eight days being: 26, 27, 28 February 2018; 1, 2 March 2018; and 14, 15, 24 May 2018.
The following people gave evidence at the hearing:
(a)The applicant;
(b)Ms Marsh;
(c)Dr Scurrah;
(d)Dr Parsonage;
(e)Dr Roldan;
(f)Mr Cipriani; and
(g)Dr Champion.
CONSIDERATION
There is no doubt that on 6 April 1992 the applicant sustained serious injuries while working for the respondent. It is apparent that the applicant is under the belief that when he was assessed by Dr Carless he was told that he would be paid by the respondent until he was 65 years of age. However, I have to decide whether the applicant continues to suffer from those injuries.
It is my conclusion that after the accident the accident the applicant had recovered well enough to engage in several physical tasks. On 5 February 2004, the applicant informed Dr Maxwell, Orthopaedic Surgeon, of what he was physically capable of doing. Dr Maxwell reported:[158]
Mr Payten does most of his housework. He has a small garden which he maintains, including mowing the lawns. He drives an automatic car fitted with power steering. He rides a 250cc motorcycle. He attends a gymnasium at Port Macquarie 5 days a week in the mornings. He does what he calls ‘weights’ and cardio work. He ‘works out’ for up to 1 hour. He also uses an exercise bike and other machines. He swims laps in a 50m pool 4-5 times a week. He does freestyle. He has been doing this for the last 12 months and feels this has been of great benefit.
[158] Exhibit A, T-Documents, T160.
Professor McGill, Clinical Associate Professor, University of Sydney, in his report dated 4 August 2016[159] outlined the injuries that the applicant sustained in 1992, there were injuries to his head, low back, jaw, left eye, one knee and pelvis. Professor McGill states that the applicant did gym workouts for five days per week. Professor McGill gave some weight to the belief of the applicant that his gym workouts were responsible for his shoulder injuries. Professor McGill mentioned that an ultrasound guided injection was performed on his elbow because of injury weightlifting at the gym.
[159] Exhibit TT.
Professor McGill has identified that the only significant diagnosis from a rheumatological point of view is bilateral great toe MTP osteoarthritis. Professor McGill was of the opinion that this is a constitutional disorder which is not related to the treadmill running activities of the applicant nor his motor bike accident. Professor McGill has given his opinion that the applicant “is physically fit for all normal work, home and general activities”. Professor McGill has, in my opinion, made a comprehensive examination of the applicant.
Although Professor McGill was scheduled to appear as a witness at the hearing, the applicant elected to not cross-examine him. The report of Professor McGill is unchallenged evidence. I rely upon the comprehensive report of Professor McGill to conclude that the applicant is physically fit for all normal work activities.
I also rely upon the report of Professor McGill to conclude that the applicant is not a credible witness. The fact that prior to the examination with Professor McGill the applicant had done gym workouts for five days per week is quite inconsistent with the applicant’s assertions in his recent statement[160] that he experiences pain in his knees, pelvis and lower back and fee and he struggles walking long distances, bending and lifting heavy items. I have also had regard to the fact that the applicant enters body building competitions.
[160] Exhibit B.
While I consider that the applicant has no physical limitations which are caused by the accident, I must consider whether the head injury of the applicant affected the work capacity of the applicant or impedes the activities of the applicant. Dr Parsonage reported that an MRI scan of the brain in 2010 confirmed that the structure of the brain was normal.
In evidence was the second psychological report of Mr Cipriani in which he concluded that the applicant “may be capable of work involving light to moderate routine tasks with on the job support until he learns new job routines” and that the applicant has “some capacity for work". The applicant has submitted that the evidence of the writer of the report was “vague and unsatisfactory, consisting of a positive response to a proposition put to him”. However, the applicant did not in cross-examination challenge the conclusion of Mr Cipriani that the applicant has some capacity for work.
The applicant has submitted that the second psychological report of Mr Cipriani can hardly be considered expert evidence on the issue of work capacity. The applicant submitted that there was no expert evidence from expert practitioners having expertise in occupational medicine. The various practitioners who were called and who were about to be called by the respondent did examine different functional capacities of the applicant However, the applicant did not call a practitioner having expertise in occupational medicine.
Amongst the important evidence which is before the Tribunal is the report dated 16 July 1992 from Ms Susan Arnold, Occupational Therapist, Lidcombe Hospital, who reported on the state of the applicant some three months after the accident:
Mr Payten was independent in self-care and reported no difficulties with the activities of daily living, eg, budgeting, money management, use of public transport.
This extract from the report of Ms Arnold was put to Dr Scurrah who did not previously have that information. Dr Scurrah did not think that the information “made sense”. Dr Scurrah did not think that the information was correct because it did not fit with a bipolar affective disorder and the applicant’s prolonged period involved in the rehabilitation section. However, I do not consider that there is any basis to disregard the assessment of Ms Arnold who is an independent person who recorded the information presented to her. There is some dispute between Dr Scurrah and Dr Parsonage as to whether the applicant has a bipolar affective disorder. Dr Parsonage informed the Tribunal that he did not diagnose the applicant as having a bipolar affective disorder. There is no cogent evidence before me that the applicant has a bipolar affective disorder.
Not long after the accident there was an on-road driving assessment by Ms Sparke and Ms Ireland of August 1992. Earlier in these reasons (at [25]) I have earlier referred to the assessment which indicated that the applicant was very observant, an alert driver, able to monitor his speed, scan, observe, give way, show caution at intersections, change lanes, check his mirrors, plan manoeuvres and respond to changes in traffic. I do not accept the opinion of Dr Scurrah that this was more than simply a reflex action. Mr Cipriani gave cogent reasons for his conclusion that the on-road driving assessment suggested good executive abilities in situations that have not been experienced before. Mr Cipriani pointed out that the test was consistent with the second test of Ms Alting that suggested that recovery was happening. There is another opinion on which I rely for my conclusion the driving test indicated a reflex type action. Dr Parsonage, who was called by the applicant, did not consider that the road test indicated reflex type actions. Dr Roldan considered that the test indicated was “ an earlier, reasonable recovery from the head injury".
One of the issues that I must decide is whether the applicant is feigning the residual impacts of his injury in his psychological test results. Dr Parsonage, who was called by the applicant was asked whether inconsistency in the test results was indicative that the applicant was feigning injury. Dr Parsonage answered that “you couldn’t say that he was on the basis of that, but you couldn’t entirely say that he wasn’t either”. Dr Parsonage has agreed that in the third test done by Ms Alting in 2003 there “could be seen to be inconsistencies”. Dr Champion in his report of 24 January 2017 gave cogent reasons for his conclusions that there has been a level of exaggeration that has continued over time. He points to the third assessment of Ms Alting which is not in accordance with the usual pattern of progressive recovery.
The preponderance of medical opinion from Dr Champion, Dr Parsonage, Dr Roldan and Mr Cipriani is that in brain injury cases, the recovery occurs in the first 2 to 3 years and then there is a “flattening” of any improvement. Dr Scurrah disagreed with this viewpoint and stated that this depended on the person’s age. However, Dr Champion was strongly of the opinion that this was the pattern that could be expected after a traumatic brain injury whether of a younger person or an older person.
There have been a series of tests to ascertain whether the applicant was deliberately underperforming. Dr Roldan remarked:
Mr Payten's performance on these tests at face value, his performance would not only be inconsistent with his previously mentioned post accident occupational history, but they were also likely to be incompatible with his current reported ability to attend to various self-care tasks independently and/or participate in recreational and/or volunteer activities he told me he currently undertakes.
I consider that the assessment of Dr Roldan who acknowledged that it is likely that the applicant had a severe brain injury but who has fairly assessed his current capabilities, is preferable. I accept the evidence of Dr Roldan who disagreed with the view of Dr Scurrah that the Weschler test should not be used in a medio legal situation. Dr Roldan attends conferences concerning these tests.
I rely upon the evidence of Dr Taylor who stated that it is likely that there has been a level of exaggeration of symptomology over time.
The applicant has a history of not being able to cooperate with medical practitioners who are engaged by the respondent. The applicant did not cooperate with psychological testing since he was interviewed by Ms Bryant in 2008 and more recently with Dr Roldan and Mr Cipriani. In 2010 Dr Taylor, Psychiatrist, did not take part in the treatment of the applicant who is reported to have told Dr Taylor that he had to see the documentation that Dr Taylor was to send to the respondent before sending it.[161] Dr Parsonage, who was called by the applicant, also considered, from the neuropsychological tests administered, that the applicant was not cooperating. I make the inference that he did not want the respondent to know his then current mental capabilities.
[161] Exhibit A, T-Documents, T198, p. 370; T206, p. 382.
There has been some suggestion that the applicant has difficulty relating to people. I do not consider that this is the case. In 2008 he informed Dr Bryant, Clinical Psychologist, that he enjoys new people and will happily talk to anyone. The applicant has done voluntary work with BlazeAID. He has also been on the board of management of the Magpies Rugby League Club.
The applicant asserts in his latest statement that Ms Marsh assists him with everyday tasks like banking. He claims that he has difficulty with the use of an ATM as he does not have a key card. He asserts that his withdrawal from a bank account in Latoka in 2013 was done with the assistance of a bank teller. However, Ms Marsh informed the Tribunal that he can access his bank account at an ATM by entering his pin which he can remember. I have concluded that the applicant is certainly able to do banking without the assistance of a carer and does not have the difficulties of memory that he asserts.
There is evidence of the generally successful property investment activities of the applicant. He purchased a property on 10 May 1996 for $145,000 and sold it on 30 November 2001 for $178,000. He purchased another property on 14 January 1999 for $96,500 and sold it on 30 September 2002 for $134,000. He purchased a further property on 7 December 2001 for $75,000 and sold it on 26 November 2002 for $262,000. These activities are not consistent with the applicant being a person who has difficulties in making decisions.
The applicant had his accident on a 90cc motorcycle. In giving evidence, he stated that he did not own a 250cc motorcycle, although he later stated when he was referred to loan applications that he did own a 250cc motorcycle. His evidence was unreliable, initially denying that he had such a motorcycle. He has a license to drive a heavy vehicle.
There was evidence before the Tribunal of the level of buying and selling of the property, the entering into commercial arrangements with financier, overseas travel including sole travel to Bangkok which indicate that he has executive decision making ability. In 2006 the applicant sought a security clearance and reported: “On numerous occasions I have taken service users (disabled persons) on holidays one on one and of course many outings as agreed These outings included both day outings and holiday/camps etc”. I do not accept the evidence of the applicant that he has difficulty in decision making and, unfortunately, I have come to the conclusion that he feigns his neurological and psychological incapacity.
During the hearing of the application, documents which could be regarded as material documents within the meaning of section 38AA of the Administrative Appeals Tribunal Act 1975 (“AAT Act”) were tendered without being previously filed with the Tribunal, these documents were only admitted with the consent of the applicant. During the hearing, I mentioned that the documents were not subject to any previous order of the Tribunal under section 35 of the AAT Act in accordance with the Practice Direction concerning the lodgement of documents.[162]
[162] Practice Direction: Lodgement of Documents under Sections 37 and 38AA of the AAT Act, Justice Duncan Kerr President 30 June 2015
CONCLUSION
While I accept that the applicant had a severe accident in 1992, I have concluded that, at the time of the reviewable decision, he no longer suffered from the effects of any injuries that he sustained in the accident.
DECISION
I affirm the decision under review.

I certify that the preceding 380 (three hundred and eighty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD

........................................................................
Associate
Dated: 26 June 2020

Dates of Hearing:
26, 27, 28 February 2018

1, 2 March 2018

14, 15, 24 May 2018

Counsel for the Applicant: Mr Guy Hampson

Solicitor for the Applicant: Mr Brett Gilbert, Gilberts Legal

Counsel for the Respondent: Mr Paul Jones

Solicitor for the Respondent:

Mr Graham Jones, Graham Jones Lawyers

[2020] AATA 1925

26 June 2020

Key Legal Topics

Areas of Law

Employment Law

Statutory Interpretation

Legal Concepts

Causation

Expert Evidence

Remedies

Dates of Hearing:	26, 27, 28 February 2018 1, 2 March 2018 14, 15, 24 May 2018
Counsel for the Applicant:	Mr Guy Hampson
Solicitor for the Applicant:	Mr Brett Gilbert, Gilberts Legal
Counsel for the Respondent:	Mr Paul Jones
Solicitor for the Respondent:	Mr Graham Jones, Graham Jones Lawyers