Randall v Carnall Removals Pty Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Randall v Carnall Removals Pty Ltd [2021] NSWPIC 237
APPLICANT:	Kelvin Randall
RESPONDENT:	Carnall Removals Pty Ltd
MEMBER:	Elizabeth Beilby
DATE OF DECISION:	9 July 2021
CATCHWORDS:	WORKERS COMPENSATION- Claim for Whole Person Impairment assessment; question of whether applicant entitled to compensation following head injury; applicant experiences severe visual disturbance although no objective abnormalities in the visual system; Held- award for the applicant.
DETERMINATIONS MADE:	1. The respondent is to pay the applicant compensation in respect of an 85% Whole Person Impairment ($577,050).

STATEMENT OF REASONS

BACKGROUND

Mr Randall (the applicant) commenced employment with Carnall Removals Pty Ltd (the respondent) as a logistics manager/mechanic in August 2012. His duties included the undertaking of mechanical repairs and the servicing of vehicles owned by the business.
On 9 June 2016 he was assessing a vehicle which had a broken tail shaft. At that time the applicant was struck by the drive shaft striking him in the front of the head above the forehead forcing his head down on to the road surface. There was a second impact on the front of the head.[1] He experienced immediate pain in the front and the rear of the head and observed that everything was black, that is he had no vision at all.[2] A short time thereafter he started to see shades of grey and could make out objects up to approximately 11 metres away.
[1] Application page 4.
[2] Application page 4.
The applicant now experiences a severe and debilitating diminution in his eyesight. The extent of the visual impairment has been agreed by both the applicant’s medical expert, Dr Delaney and the respondent’s medical expert Dr Steiner at 85% whole person impairment
The applicant has remained under the care of Dr Rosen, neurologist of Randwick.
The applicant makes a claim pursuant to s 6 of the Workers Compensation Act (1987) due to his injury. The parties agree that if the applicant is successful in his claim, there is no requirement to refer the matter to a Medical Assessor as they agree that there is an 85% whole person impairment.

ISSUES FOR DETERMINATION

The parties agree that the following issue remains in dispute:
(a) Does the applicant have a compensable injury in relation to assessment of permanent visual impairment?

PROCEDURE BEFORE THE COMMISSION

I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied. I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them. I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) Application to Resolve a Dispute (Application) and attached documents, and
(b) Reply to Application to Resolve a Dispute.

The issue

The dispute rests on whether it is appropriate to make a finding that the applicant suffered a severe visual loss resulting from the injury on 9 June 2016 and if that sounds in a payment pursuant to s66 of the Workers Compensation Act (1987).
The applicant’s case is essentially that there is no question that the loss of vision is causally related to the undisputed traumatic injury.
The respondent’s case is not that the applicant is malingering, all parties agree that the applicant is a genuine individual. The respondent’s case is that the applicant’s visual loss is attributable to another factor unrelated to the events of 9 June 2016 and/or further that there has been no pathological change or “injury” and/or it can be characterised as a secondary psychological condition .

Medical evidence

To determine whether the applicant has indeed suffered a personal injury on 9 June 2016 necessarily the medical evidence needs to be considered. I will now consider the medical evidence.

Dr Rosen

Dr Rosen is the applicant’s treating neurologist. He has prepared a report dated 11 September 2020.[3]
[3] Reply page 111.
The applicant was referred to Dr Rosen by his general practitioner and he had attended on Dr Rosen on seven occasions prior to his preparing the report.
Dr Rosen diagnosed the applicant as suffering from a head injury complicated by functional neurological disorder (post-traumatic visual loss and chronic photosensitivity) in addition to chronic post-traumatic headache (chronic migraine and tension type headache).
Dr Rosen reported the applicant had complained of two different types of chronic headache, that is, migraine and a tension-type headache. Dr Rosen recommended different migraine preventer medications and a rehabilitation program aimed at maintaining function and minimising the use of avoidant strategies. He also recommended transcranial magnetic stimulation for the migraine.
Dr Rosen diagnosed the applicant as having a functional neurological disorder. That is because the applicant’s visual impairment was unexplained by conventional neurological pathology. He explained that although it was difficult to understand in terms of classical neurological teaching how a relatively minor head injury can result in such significant visual impairment, nevertheless, chronic post-traumatic headache including post-traumatic migraine is a well-recognised sequelae of event mild head injury and visual symptoms commonly accompanying migraine. The connection between visual disturbance and migraine was therefore well recognised.
Dr Rosen accepts that the applicant’s functional neurological disorder has arisen as a complication of the index injury.
In relation to the causative effect of headaches, Dr Rosen opines that the diagnosis of post-traumatic headache is related temporarily to the blindness since they both commenced in the wake of a concussive head injury. Post-traumatic headaches were well recognised complications of head injury although migraine associated with visual disturbance is rare to progress to functional blindness. Dr Rosen then comments that he has personally treated a similar case of post-traumatic chronic migraine associated with functional visual impairment with a similar clinical characteristic to the applicant.
To be clear, Dr Rosen comments that the cause of the condition is unknown, however in circumstances of any other trigger or pre-existing functional disorder and presuming that the applicant is not malingering, then it is reasonable on balance to consider that the index injury was the cause for the blindness.[4]
[4] Reply page 122, paragraph 48.

Dr Delaney

Dr Delaney, Ophthalmic Surgeon, has prepared a report dated 31 October 2017.[5]
[5] Application page 387.
Dr Delaney understood that the applicant had excellent vision before the incident with normal distance vision without glasses but required reading glasses to improve his near vision.
The applicant provided to Dr Delaney a history of the incident wherein a drive shaft fell on the applicant’s head hitting the back of his head. The applicant reported that he lost vision for about 30 minutes and then the vision slowly returned but was never normal again.
Dr Delaney observed that the applicant does not have any objective findings to account for his symptoms of loss of vision or his other unusual visual symptoms. The tests that Dr Delaney carried out were essentially normal. There were only minor variations in electro-physiological tests on the left eye while the right eye was completely normal.
In light of the findings on examination and the CT scans and MRI of the brain which were completely normal, Dr Delaney deferred to the opinion of Dr Clare Fraser[6] that there was the possibility of some form of post-concussional head injury or that there was some other defect caused by the closed head injury.
[6] Application page 1135.
Dr Delaney assessed the applicant’s visual impairment to be 85% whole person impairment.
Dr Delaney has prepared a second report dated 7 November 2019.[7] On the second examination the applicant’s symptoms had not changed. In fact, the applicant felt the distance vision may in fact have decreased. Dr Delaney’s opinion was the same as previously expressed in his prior report. That is, that there was no objective findings of a cause for Mr Randall’s claimed visual loss.
[7] Application page 392.
Dr Delaney did note the findings of the neurologist, Dr David Rosen, in his reports of 6 February 2019 and 8 August 2019 wherein he opined that there was a head injury complicated by post-traumatic visual loss associated with chronic photosensitivity. Dr Rosen then opined that the visual impairment was not associated with visual ophthalmological or neurological disorder and there was a differential diagnosis of a functional neurological disorder.
In light of the total absence of any objective abnormalities in the visual system, Dr Delaney agreed with the diagnosis of Dr Rosen.

Dr Steiner

Dr Steiner, Ophthalmologist, has prepared a report dated 27 July 2020[8] at the request of the respondent insurer. Dr Steiner performed OCT ( Ocular Coherence Tomography) testing which yielded essentially normal results. Field testing was also performed which disclosed significant field effects on the right side and minor field effects on the left-hand side. Dr Steiner could not find any sign of an organic disease to account for such significant loss of vision.
[8] Reply page 21.
Despite the normal testing results, Dr Steiner did not form the view that the applicant was malingering, but did observe that he had been severely depressed as pointed out by Dr Anand.
Dr Steiner diagnosed the applicant as having a case of psychogenic blindness due to psychiatric or psychological problems, there were no signs of any significant organic injury to the visual system. Dr Steiner agreed with the assessment made by Dr Delaney of 85% whole person impairment.
Dr Steiner prepared a second report dated 3 August 2020.[9] In that short report Dr Steiner once again stated that there was no evidence of any organic condition in the visual system but agreed with the other experts that the applicant had actually lost his vision and he accepted the diagnosis of psychogenic blindness. Once again, Dr Steiner opined that the applicant had suffered 85% whole person impairment.
[9] Application page 30.
Dr Steiner prepared a third report dated 24 August 2020.[10] In that report he stated that his clinical opinion was a diagnosis of a psychological condition rather than a neurological condition that had resulted in the loss of vision. He explained that he used the term “psychogenic blindness” to indicate a psychological condition rather than a functional neurological disorder.
[10] Application page 31.

Dr Mellick

Dr Mellick (Neurologist) has prepared a report dated 22 August 2018.[11] Dr Mellick had the benefit of all the scans undertaken at Macquarie Hospital which included an MRI scan which was described as being normal. There was also a CT scan performed a week after the injury which Mr Randall understood showed some swelling on the brain but no bleeding.
[11] Reply page 33.
Dr Mellick accepts that the applicant is suffering some severe visual impairment dating from the injury in question. Indeed he comments that “the compensable symptom resulting from the injury on 9 June 2016 is bilateral loss of vision.”[12]
[12] Reply page 36.
He noted that the impact the applicant suffered on the front of his forehead was followed almost immediately by a second impact as his occiput struck the asphalt he was lying on. The applicant reported a flash and subsequent blackness, as though his eyes were closed.
Dr Mellick opined that the axial impact and the flash reported are in keeping with a contrecoup phenomenon with deactivation of the visual cortex in the occipital lobes because of the direct force of the impact and the movement of the brain within the calvarium as a result of the impact.

SUBMISSIONS

The applicant relies on the medical opinion of Drs Mellick, Delaney and to a lesser extent the opinion of Dr Steiner.
The applicant referred me to Dr Mellick’s report which discloses that Dr Mellick considers that the injury itself has caused the loss of vision as distinct from any other factor. That is, an eminent neurologist, has no difficulty considering the bilateral loss of vision to be compensable and resulting from the subject injury.
Dr Mellick quite clearly provides a mechanism of injury where the axial impact and the flash reported were in keeping with a contrecoup phenomenon with deactivation of visual cortex in the occipital lobe because of the direct force of impact and movement of the brain within the calvarium as a result of that impact.
So, there can be little doubt that the neurologist is satisfied as to the work-related nature of the loss of vision and provides a mechanism as to that injury. He also describes the change in pathology that explains the loss of vision (see above paragraph).
I observe that there is no competing opinion with the explanation of visual impairment diagnosed by Dr Mellick, that is there is no opinion that explains to me why his diagnosis is incorrect.
Dr Rosen is the treating neurologist. He also accepts that the applicant has significant visual impairment. His report initially commences with a diagnosis of functional neurological disorder but then introduces a component of chronic post-traumatic headache as a factor explaining visual symptoms.
It is quite clear reading Dr Rosen’s report that he accepts that the 9 June 2016 incident is a crucial event which has caused the applicant’s visual loss. He quite clearly considers it is reasonable on balance to consider the index injury is the cause in this case. That is, Dr Rosen accepts that the effect of the index injury is that the applicant experiences blindness. Interestingly, Dr Rosen also comments that whilst the applicant’s condition has some difficulties in diagnosis, it has been his professional experience that there is another case which has had a similar characterisation.
The respondent complains that the applicant has not provided causal link to establish a real link between the index event and the loss of vision. The respondent complains that a temporal link is insufficient for the applicant to discharge its burden of proof.
As a matter of common sense, I was also reminded that all medical experts in this case agree that the applicant is experiencing visual loss, which has commenced from the index date of injury. That is they all agree at a minimum that there is a temporal link.
The respondent submits that while Dr Rosen does provide an opinion that there could be a consequential condition related to migraines and headaches, there is insufficient evidence for Dr Rosen to form that view. The submission made was that whilst Dr Rosen has indicated that the applicant’s visual impairment could be related to the headaches or the migraine problem, the doctor has not indicated how or why the applicant did sustain such a condition in this case. That is, the relative causative explanation has not been provided.
I must say that I disagree with such a submission. Dr Rosen has been treating the applicant for a significant period of time and is in the best position to be able to summarise his symptomatology which includes two types of headaches. It is quite clear that Dr Rosen opines that the headaches are “post traumatic” , which clearly follow a head injury.
Whilst the applicant’s statement does not address the headaches directly, it does not need to. The decisions of Greenhills Childcare Centre Inc v Meireles[13] and also J B Metropolitan Distributors Pty Ltd v Kitanoski [14]where Deputy President Roche commented that statements and medical histories are evidence of the fact apply in this case. Similar sentiments were also made in Southern Meats Pty Ltd v Tucker[15] and Black v Inghams Enterprises Pty Ltd[16].
[13] [2020] NSWCCPD 37.
[14] [2016] NSWCCPD 17.
[15] [2021] NSWCCPD 2.
[16] [2020] NSWCCPD 69.
I also observe that there is significant evidence of headaches in the treating material. Dr Schofield describes “chronic headaches” at page 1121 of the Application.
The respondent then says that that report does not provide a proper assessment of causation and if anything, suggests the migraine element is more hereditary than related to the causal incident. The problem I have with this assertion is that there is no evidence of any significant treatment or complaint before the subject injury and therefore I do not accept such a submission. The characterisation of “ post-traumatic” militates against such a proposition.
To be clear in my reasoning, I therefore find as a matter of fact that the applicant does suffer significant had headaches as described by Dr Rosen and that these have emerged after he index injury.
The respondent recognises Dr Delaney accepts Dr Rosen’s diagnosis but similarly has not indicated why causation is established. I agree with this submission. Dr Delaney and Dr Steiner try to grabble with this complex medical problem but defer to other specialists. There can be no criticism of these experts who have assists with their candour and agreed assessment of the applicant’s impairment.
The respondent points to a report from Dr Wellings dated 5 March 2018.[17] Dr Wellings observes the applicant has been reviewed by another neurologist in Sydney who felt that the symptoms were largely migrainous with an element of probable functional illness. Dr Wellings opines that the applicant does have a significant disability but believes that most of his illness is in fact functional, though probably with a migrainous element that runs in the family. There is no history of the applicant experiencing headaches before the index injury however.
[17] Application page 145.
The respondent opines that as Dr Rosen says the functional neurological disorder can be due to a psychiatric and a physical condition it is due to a somatoform disorder and is therefore not assessable by the permanent impairment scale. It was therefore said that the applicant’s visual loss, insofar as it relates to the functional neurological disorder, is not assessable for the purposes of whole person impairment. It is simply a symptom causally related to what is a somatoform disorder consistent with Dr Rosen’s opinion.
So far as there being a consequential psychological condition causing the blindness, there is no evidence before me that qualifies as a psychiatric opinion to support such a finding. That is, in order to mount a persuadable submission to be considered plausible, I would need psychiatric opinion in relation to the applicant’s current psychological condition and how it would cause visual disturbance. I therefore reject the submission that there is a secondary psychological injury.
There is no doubt in this case that various doctors have wrestled with the conundrum explaining the applicant’s condition. What is significant is there is no report which identifies an explanation satisfactory to me that it is unrelated to the subject injury.
I agree that as a matter of common sense having regard to the test in the Kooragang Cement Pty Ltd v Bates (1994) 35 NSWLR 452 that I accept the relevant causal connection as being proven. There is simply no explanation available that provides any reasonable explanation as to any other cause.
Dr Steiner, Dr Delaney and Dr Mellick’s opinion is that the injury occurred as claimed. They see a causal link.
The relevant test in the Commission is on the balance of probabilities and what that means is that the applicant does not need to present a case which is completely without differing diagnoses and opinion on causation.
There is no doubt the applicant’s condition is a complex one which experts have grappled with over many different specialties. What all the specialists appear to accept is that the applicant is suffering from blindness and that it is linked to the events of 9 June 2016. I accept the opinion of Dr Mellick who provides an unchallenged opinion as to causation and further the comorbid condition of headaches as described by Dr Rosen for which there is no evidence the applicant suffered before the subject incident.

I am mindful that the applicant does not need to present a perfect case and that there are challenges when there is an injury that does not fall squarely on all fours so far as diagnosis is concerned. In this case however the applicant had no visual disturbance before the index incident and has suffered from headaches and blindness following that incident.
We have two experts, Dr Mellick and Dr Rosen, both providing explanations as to how the visual disturbance could occur with both mechanisms of injury providing pathological changes and/or a consequential condition (headaches) causing visual disturbance. Both mechanisms are plausible and may also act in concert in causing the visual disturbance.
I am particularly persuaded by the opinion of Dr Mellick, who has described a pathway of pathological change and subsequent impairment. There is no competing opinion that explains to me why I should not accept his explanation for the visual impairment. I therefore accept the opinion of Dr Mellick as a primary mechanism of injury.
I therefore find that the applicant suffered an personal injury on the index date that has caused his visual disturbance.
I therefore find that the applicant has suffered an injury which has resulted in his loss of vision and that there should therefore be an Award in favour of the applicant in respect of 85% whole person impairment.

[2021] NSWPIC 237

9 July 2021