Smith and Military Rehabilitation and Compensation Commission (Veterans' entitlements)
[2019] AATA 414
•14 March 2019
Smith and Military Rehabilitation and Compensation Commission (Veterans' entitlements) [2019] AATA 414 (14 March 2019)
Division:VETERANS' APPEALS DIVISION
File Number(s): 2017/0623
Re:Nicole Smith
APPLICANT
AndMilitary Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal:Deputy President Dr P McDermott RFD
Date:14 March 2019
Place:Brisbane
I affirm the decision under review.
...........................[SGD].....................................
Deputy President Dr P McDermott RFD
CATCHWORDS
VETERANS’ ENTITLEMENTS – military service – compensation claim for epilepsy – whether the applicant suffers from epilepsy – whether epilepsy is a service injury or a service disease
LEGISLATION
Military Rehabilitation and Compensation Act 2004 (Cth)
CASES
Lees v Repatriation Commission [2002] FCAFC 398
Re Robertson v Repatriation Commission (1998) 50 ALD 668
Repatriation Commission v Cornelius [2002] FCA 750SECONDARY MATERIALS
David Kaufman, Howard Geyer and Mark Milstein, ‘Kaufman’s Clinical Neurology for Psychiatrists’ (8th ed, 2016)
Drs Narain Tandon and Ravi Ramamurthi, ‘Textbook of Neurosurgery’ (3rd ed, Vol 3, 2012)
Meng Tan, ‘Neurology’ (March 2014) Australian Family Physician 43(3)
Statement of Principles concerning Epilepsy No.76 of 2013
Stedman’s Medical Dictionary
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
14 March 2019
INTRODUCTION
The applicant has lodged a claim for compensation for her epilepsy condition. The applicant served in the Royal Australian Navy (“the Navy”) between 22 October 1988 and 2 January 1993. She subsequently re-enlisted in the Navy on 20 September 2008 and was medically discharged on 6 June 2015. At the time of her discharge the applicant held the rank of Leading Seaman.
CLAIM HISTORY
The applicant has previously lodged a compensation claim for post-traumatic stress disorder (“PTSD”), this claim was rejected by the respondent on 17 February 2015.[1]
[1] Exhibit A, T-Documents, T74.
On 19 August 2014 the applicant lodged a compensation claim in respect of a “temporal lobe epilepsy” condition. In the attached “Injury or Disease Details Sheet” dated 5 August 2014, the applicant stated that she first received medical treatment for the condition on “1 October 2009 + 1 April 2013”.[2] She noted that she first noticed signs or symptoms of the condition on 1 April 2013. The applicant provided the following particulars with regard to why the development of her claimed condition was causally linked to her military service:
“I bent down to pick up stores and when I straightened I hit my head on a steel bench. I was stunned and saw stars and was taken to the Medical Centre. My condition was aggravated by stress and fatigue. Very high amounts of stress caused on HMAS Darwin 2013.”
[2] Exhibit A, T-Documents, T59.
On 3 October 2014 the respondent issued a determination to deny liability for compensation under the Military Rehabilitation and Compensation Act 2004 (Cth) (“the Act”).
The applicant applied to the Veterans’ Review Board (“the VRB”) for a review of that determination. On 20 October 2016 the VRB affirmed the original determination.
On 16 February 2017 the applicant made an application to this Tribunal for further review of the determination.
LEGISLATIVE FRAMEWORK
In order for the applicant to be successful, it needs to be found that the applicant sustained a “service injury” or contracted a “service disease” as defined in s 27 of the Act.
The applicant’s service is “peacetime service” for the purposes of s 6(1) of the Act. For this reason, her claim must be determined pursuant to s 335 of the Act. Sections 339 and 341 of the Act provide that matters must be determined in accordance with any current Statement of Principles (“SoPs”) issued by the Repatriation Medical Authority (“RMA”).
The current SoP in this application is Instrument No. 76 of 2013 concerning “Epilepsy”. This SoP relevantly provides:
5. Subject to clause 7, at least one of the factors set out in clause 6 must be related to the relevant service rendered by the person.
6. The factor that must exist before it can be said that, on the balance of probabilities, epilepsy or death from epilepsy is connected with the circumstances of a person’s relevant service is:
(a) having a moderate to severe traumatic brain injury before the clinical onset of epilepsy; or
(b) having concussion within the 20 years before the clinical onset of epilepsy;
…
The applicant relies on factor 6(b) of the current SoP.
APPLICANT’S EVIDENCE
The applicant did not provide a statement in support of her application, but gave evidence at the hearing.
During cross-examination the applicant was asked about her examination with Dr Beran. She agreed that she first saw Dr Beran around June 2013. The applicant also agreed that her claim for compensation was dated 5 August 2014, and that this was about a year after she saw Dr Beran. The applicant confirmed that her claim remains that she bent down to pick up stores, and then straightened up and hit her head on a steel bench.
The applicant was asked whether Dr Beran took a full history from her. She answered that Dr Beran took a “limited history” from her, and explained that whenever he asked her a question he would then “talk over the top of me” into his recording device. When asked why she did not tell Dr Beran about the injury to her head, the applicant replied, “He didn’t even ask”.
The applicant confirmed that the incident when she bumped her head was a significant incident. She explained that she did not tell Dr Beran because she “just gave him very limited responses to his questions”. She also claimed that Dr Beran “barely asked me any questions”.
The applicant was also asked about her examination with Dr Andrews on 9 September 2013. She was asked whether she told Dr Andrews about the incident, and was at first unable to provide a clear answer. She advised that she “gave him the folder” (a reference to her service medical records) and then later stated, “As far as I can remember I gave him a history, a full history”. The applicant accepted that there was no mention in Dr Andrews’ report of her hitting her head on a steel table.
During re-examination the applicant gave evidence about the nature of her seizures, stating, “I don’t personally know what happens with my seizures. All I know is that I feel a bit funny and generally someone is in my face yelling at me…Then I feel extremely tired and exhausted after I come out of it”.
The applicant described what happened on the day she hit her head. She stated, “I was going through stores and putting them through the computer… I believe I bent down to get stores and had hit my head. I don’t know, between that time, how long, what had happened there. I know that I had blood coming from my head. I was dazed…” and “I have a scar on my head from it”. The applicant continued, “Then I yelled out to Belinda to come out. She cleaned up the blood from my face and that, because I didn’t get up from the chair for quite a bit, because I was very dizzy. I was numb on my face. We waited probably half an hour or so to see if I settled down and I didn’t. So, we went up to the medical centre…”. The applicant said that she was “not aware” if she had any loss of consciousness. She stated that she did not get stitches, but did get a butterfly bandage.
It was put to the applicant by her representative that a VRB member had asked at the hearing, “Would you be surprised that you were given sick leave the next day?”, and the applicant replied that she remembered that she was “quite surprised” that she had sick leave the next day. She also agreed that it was fair to say that she had lost her memory for 24 hours.
The applicant was referred to comments of Professor Robertson and Drs Beran and Cameron regarding her alleged childhood abuse. She stated that she was never sexually or physically abused in her childhood.
The applicant was also asked about the change to her medication. She agreed that Dr Sonigra changed her medication after her seizures started again. She stated that after her change in medication she stopped having seizures.
MEDICAL EVIDENCE
Service medical records
The applicant’s service medical records from 1990 and 1993 contain entries of the applicant experiencing headaches.[3] A record from 5 February 1990 refers to the applicant having a “syncope episode” in which she either fainted or fell from a chair she was standing on.[4] A record from 29 May 2008 also refers to the applicant suffering from migraines or tension headaches.[5] On 26 June 2009 a brain CT scan was performed on the applicant after she presented with “severe headache”.[6] The results of the scan were normal.
[3] Exhibit A, T-Documents, T4, at p. 50-51; Exhibit B, Supplementary T-Documents, at p. 963.
[4] Exhibit B, Supplementary T-Documents, at p. 963.
[5] Exhibit A, T-Documents, T4, at p. 57.
[6] Exhibit B, Supplementary T-Documents, at p. 424.
A discharge summary dated 10 April 1991 noted that the applicant fell off a horse on 8 August 1992.[7] A brain CT scan was performed on 4 November 1992, which revealed normal results.[8]
[7] Exhibit B, Supplementary T-Documents, at p. 1228.
[8] Exhibit B, Supplementary T-Documents, at p. 1223.
A medical continuation form dated 20 May 2008 outlines a brief medical history of the applicant, and includes a reference to a “loss of consciousness 5-10 mins” when the applicant was 14 to 15 years old.[9]
[9] Exhibit B, Supplementary T-Documents, at p. 593.
A clinical record dated 25 June 2009 refers to the applicant presenting with a “severe headache”, which she had been experiencing for the previous 4 hours.[10] The applicant reported feeling a “pop” in her head that morning. The record noted that the applicant has a history of migraines.
[10] Exhibit B, Supplementary T-Documents, at p. 627.
On 1 October 2009 the applicant presented for medical treatment following a hit to her head.[11] She presented with nausea, blurred vision, and altered sensation on the left side of her face. Her pupils were noted to be of a different size due to a previous injury. She was recorded as having an “obvious injury” but was “alert and orientated”. The record noted, “minor head trauma for investigation”.
[11] Exhibit A, T-Documents, T15.
An outpatient clinical record dated 6 December 2009 documented an incident of domestic violence where the applicant was choked and lifted up off the ground, and pushed against a wall multiple times.[12] It was noted that the applicant had experienced a headache after this incident. A further record dated 7 December 2009 noted that after this incident the applicant also experienced a sore back.[13]
[12] Exhibit A, T-Documents, T16.
[13] Exhibit A, T-Documents, T17.
A record dated 22 January 2010 noted that the applicant had been experiencing headaches since July 2009, and had been dizzy in the previous week.[14]
[14] Exhibit A, T-Documents, T19.
Medical records dated 19 August 2010, 26 August 2011 and 26 July 2012 document the applicant presenting with migraines or headaches.[15] On 26 July 2012 the applicant also reported blurred vision and dizzy spells.[16]
[15] Exhibit A, T-Documents, T20 and T21; Exhibit B, Supplementary T-Documents, at p. 243.
[16] Exhibit A, T-Documents, T21.
A report of a brain CT scan dated 31 August 2011 refers to the applicant having experiencing bifrontal morning headaches and fuzzy vision, and recorded that no abnormality was detected.[17]
[17] Exhibit B, Supplementary T-Documents, at p. 238.
A further brain CT scan was performed on 1 August 2012 following the applicant experiencing a constant headache for the past 4 weeks.[18] The results showed no cerebral abnormality.
[18] Exhibit A, T-Documents, T22.
In a Comprehensive Preventative Health Examination form dated 14 February 2013, the applicant ticked ‘yes’ to suffering migraines or severe headaches and noted “headaches if I do not watch what I eat”.[19] The applicant ticked ‘no’ to the question ‘any other health problem troubling you’.
[19] Exhibit A, T-Documents, T4, at p. 21-22.
On 10 April 2013 the applicant presented with an increase in fatigue and workplace related stress.[20] On 15 April 2013 the applicant reported that she was considering putting in her discharge due to issues with her chief.[21]
[20] Exhibit A, T-Documents, T23.
[21] Exhibit A, T-Documents, T24.
A medical record dated 24 May 2013 confirms that the applicant underwent eye surgery at the age of four after she went through a glass window and suffered a penetrating left eye injury.[22] This resulted in the applicant having an abnormally shaped pupil.
[22] Exhibit B, Supplementary T-Documents, at p. 141.
On 27 May 2013 an outpatient clinical record recorded that the applicant presented with “uncoordination”, a headache in the back of her head and pressure in her left eye.[23] It was noted that the applicant’s colleagues had said that the applicant had been experiencing periods of “absence” over the last few weeks. The record stated that the applicant had a recent history of tingling in her left cheek, a slight left “dead leg feeling”, left side disassociation of thought and action, and stress/anxiety. There was also a reference to “unexplained hot and cold flushes”. It was noted that there was no history of head trauma. It was also noted that the applicant had left eye surgery as a 4-year-old.
[23] Exhibit A, T-Documents, T25.
A clinical record of 18 July 2013 also made reference to the applicant experiencing “absence attacks”, and expressed concern about whether the applicant was still suffering from stress.[24] The applicant was referred to neurologist Dr Beran.
[24] Exhibit A, T-Documents, T4, at p. 31.
A colleague of the applicant, Rachael Brookshaw, sent an email on 31 July 2013 outlining recent observations of the applicant.[25] She stated that she had witnessed the applicant “zone out” or “become vague”, and when she asked if the applicant was okay the applicant indicated that she was not feeling well. Another colleague, S Norris, documented in a Minute dated 2 August 2013 that he had witnessed the applicant have several “spacing out episodes” during her military employment.[26]
[25] Exhibit A, T-Documents, T4, at p. 34.
[26] Exhibit A, T-Documents, T4, at p. 30.
A clinical record dated 27 August 2013 noted that the applicant was presently undergoing neurological review and extensive investigations in regards to absences she had been experiencing for the past 5 weeks.[27]
[27] Exhibit A, T-Documents, T26.
A clinical record dated 19 September 2013 noted that the applicant had been diagnosed with epilepsy and prescribed with medication.[28] The applicant reported feeling very “out of it” and experiencing headaches which she thought were caused by the medication.
[28] Exhibit B, Supplementary T-Documents, at p. 104.
A clinical record dated 26 September 2013 noted that the applicant seemed to be responding well to recently prescribed antiepileptic medications, but she had had a few episodes of “aura” in the past week, which was not uncommon in the early stages of starting on a medication.[29]
[29] Exhibit A, T-Documents, T29.
On 5 February 2014 the applicant presented to the Emergency Department at Canberra Hospital.[30] She reported having a headache, intermittent episodes of paraesthesia affecting the left side of her body, and possibly one brief episode of ataxia. A CT brain scan was conducted and the results were normal. The registrar of the hospital noted that some of the applicant’s symptoms could be attributed to Epilim side effects.
[30] Exhibit B, Supplementary T-Documents, at p. 28.
On 10 February 2014 an MRI of the brain and cervical spine was conducted and showed no abnormalities.[31]
[31] Exhibit B, Supplementary T-Documents, at p. 60.
On 12 February 2014 a clinical record notes that the applicant experienced a sore neck and headache after hitting her head on a car seat.
A Medical Employment Classification Review conducted on 24 February 2014 recorded the applicant’s medical conditions as temporal lobe epilepsy, PTSD and migraines.[32] It was noted that the applicant had been diagnosed with temporal lobe epilepsy by Dr Andrews, and that she had been referred to Dr Beran for further investigations. This record also noted that the applicant’s last seizure or absence episode was in early February 2014.
[32] Exhibit A, T-Documents, T34.
On 26 November 2014 Professor Michael Robertson, consultant psychiatrist, gave a report which discussed the applicant’s temporal lobe epilepsy and issues with PTSD-type symptoms.[33] Professor Robertson discussed how the applicant’s difficulties extended from a “bullying situation” with her Chief Petty Officer. Professor Robertson recorded that since that time, the applicant “has evolved a syndrome characterised by hyperarousal, hypervigilance, hypersensitivity to smell (particularly smells of cigarette smoke and Echinacea), high levels of anxiety with likely panic attacks and phobic avoidance, irritability and a modicum of intrusive symptoms of PTSD including nightmares, flashbacks and psychological responses to various salient cues, particularly smell.”
[33] Exhibit A, T-Documents, T40.
Professor Robertson went on to state, “The situation was complicated further by her suffering what seemed to be a series of complex partial seizures, which given the clinical features of olfactory hallucinations and gustatory disturbances, is suggestive of uncinate fits. She was a (sic) diagnosed with temporal lobe epilepsy… These difficulties need to be considered against the background of a traumatic childhood where she and a number of relatives were at the mercy of a particularly sadistic and emotionally abusive father who perpetrated a consistent pattern of physical, verbal and emotional abuse. The salience to the Echinacea and tobacco smells is that she recalls quite clearly both parents used to chew these tablets habitually as well as smoke and this was a dominant smell from her childhood.”
Professor Robertson opined, “It appears [the applicant] presents with complex post-traumatic stress disorder.” He suggested the commencement of antidepressant medication.
On 29 January 2015 Professor Robertson reported that the applicant had been “seizure free” since being on sodium valproate.[34] In this report he also noted that the applicant had been involved in at least one abusive relationship in her adult years. Professor Robertson opined that the applicant had “likely experienced a hypertrophic psychopathological response to the alleged bullying behaviour by a senior officer. Her clinical presentation is characterised by prominent dissociative-type symptoms...” Professor Robertson also commented, “Whilst I would not seek to weigh into debates about the diagnosis of her seizure disorder, although I have seen such symptoms attributed to dissociative phenomena… I defer to my neurologist colleagues as to the nature of her current presentation.”
[34] Exhibit A, T-Documents, T42
On 3 March 2015 the Medical Employment Classification Review Board determined that the applicant should be medically discharged.[35] It was concluded that it was highly unlikely that the applicant’s conditions would improve and that she would be upgraded to deployable status. On 5 March 2015 the applicant agreed to be medically discharged with effect from 5 June 2015.[36]
[35] Exhibit A, T-Documents, T75.
[36] Exhibit A, T-Documents, T77.
The applicant’s Invalidity Retirement from the Defence Force Medical Information form dated 1 April 2015 listed the medical conditions which led to her retirement as including epilepsy, migraines and PTSD.[37]
[37] Exhibit A, T-Documents, T78.
A 16 April 2015 report of Dr David Shooter, orthopaedic surgeon, described the applicant’s epilepsy as “unstable” and noted that she had a seizure within the last six months, which the applicant claimed was brought on by fatigue.[38] Dr Shooter later reported, on 30 September 2015, that the applicant had not suffered from a seizure for around 6 months and that her neurologist was “not particularly concerned about things either”.[39]
[38] Exhibit A, T-Documents, T44.
[39] Exhibit A, T-Documents, T48.
A report of Dr Jayne Berryman dated 3 June 2015 noted that the applicant has a background of PTSD and anxiety, and a “strong personal history of pain syndromes including migraines”.[40] She also reported that both the applicant’s mother and daughter suffer from migraines as well.
[40] Exhibit A, T-Documents, T46.
Dr Roy Beran, neurologist
The applicant was referred to Dr Beran for further investigation in 2013. He provided reports dated 14 June 2013, 18 June 2013 and 2 July 2013.[41]
[41] Exhibit B, p. 127-132 and 139-140.
In his report of 14 June 2013 Dr Beran noted that he saw the applicant on 12 June 2013. The applicant reported to him that she was well until two and a half months ago, but since that time she has experienced a number of episodes of “absences” where people asked why she was staring at them or not responding. She estimated that this happened approximately twice per week. The applicant experienced no warning of a coming episode, and was not aware during or after an event; she felt like her head was “in a fog” and felt “heavy headed”. The applicant also noticed dysfunction of her left upper limb, and a burning sensation in her left thigh.
Dr Beran commented that the applicant’s description of her headaches did not sound like migraines. The applicant advised that her headaches were provoked by food, and since stopping consuming that food she no longer had the headaches. Dr Beran noted that there was “nothing of relevance in the patient’s past medical history and surgical procedures”.
Physical examination of the applicant revealed a distribution of loss of sensation in the applicant’s left thigh. Dr Beran also investigated the applicant’s reported loss of sensation on the left side of her face, which was found to be non-anatomical.
Dr Beran decided to conduct a 48 hour sleep deprived EEG. He considered that the applicant should also undergo an MRI/MRA of her brain, an MRI performed on 28 May 2013 was reviewed by Dr Beran and found to be normal.
Dr Beran produced a report on 18 June 2013 following the completion of the first EEG.[42] He determined that the study was normal and showed no features of epilepsy or focal abnormalities.
[42] Exhibit B, p. 127-129.
In this report Dr Beran also detailed a conversation had with the applicant’s partner, Laurie Davis, who had witnessed the applicant’s episodes. He described a typical episode where the applicant stopped talking in the middle of a conversation and stared at him. He used the words, “lights on and nobody home”, and said the applicant appeared to have no cognitive perception of her environment. The episode lasted about 15 seconds, and afterwards she was “completely back to normal as if nothing had happened”. Mr Davis reported that the applicant “did not appear confused, disoriented, fatigued or anything else that would indicate that she was even aware that she had had such an episode”. Dr Beran considered that this history is suggestive of the applicant having “absence episodes, which does sound epileptiform in nature but it is highly unusual to have the onset of absence seizures in the fifth decade of life”. He stated, “That would then revert to being considered a complex partial seizure but for that to be the case one would expect post-ictal fatigue and confusion and she doesn’t have that”.
Dr Beran stated that there was no “conclusive indication” as to what was happening with the applicant. He discussed the usefulness of performing a “Holter monitor ECG”. He also recommended a 72 hour sleep-deprived EEG.
Dr Beran provided a further report dated 2 July 2013 after the applicant underwent the 72 hour sleep-deprived EEG.[43] Dr Beran noted that the study revealed there was some waxing and waning of the background rhythm, which was suggestive of some minor fatigue which would not be expected with 72 hours sleep deprivation. The applicant and her partner were adamant that she stayed awake for the full 72 hours but Dr Beran noted that the EEG did not reflect this. He concluded that the results of the test were normal and showed no features of epilepsy or focal abnormalities.
[43] Exhibit B, p. 139-140.
In this report Dr Beran noted that the applicant reported having an episode one week ago, and described feeling as though her head went “foggy” and she couldn’t think clearly, but she was still aware of what was happening around her. No one witnessed this episode. This was the only reported episode the applicant experienced since she was last seen by Dr Beran on 17 June 2013. Dr Beran noted that this episode occurred despite the fact that her workload and pressures had been reduced.
Dr Beran recommended that the next step would be to conduct a “video telemetric EEG with full polysomnography”. If the results of these tests were both normal, he considered that the next step would be to have an “ambulatory EEG”.
Dr Beran was later asked to provide a further report at the request of the respondent, and he did so on 18 July 2017.[44] Dr Beran made reference to his own notes and evaluation of the applicant in 2013, the applicant’s service medical records and the medical reports of Drs Andrews and Cameron.
[44] Exhibit C.
In this report Dr Beran made it clear that during his contact with the applicant in 2013 she made no reference whatsoever to any traumatic head injury, minor or otherwise, while she was employed in the Navy; nor did she make reference to falling off a horse at age 10. He stated that he took a “fairly detailed history” from the applicant.
Dr Beran noted that the applicant gave no history of any associated olfactory hallucinations or déjà vu, or of having “post-ictal manifestations” which have been referred to in the medical reports of other neurologists. Dr Beran considered that this raises concerns. Dr Beran also noted that had the applicant been tested with an ambulatory EEG, as was advocated by him, this may have not shown epileptic features and may have excluded an epilepsy diagnosis.
In his report Dr Beran responded to a question asked regarding the severity of the applicant’s claimed injury from 1 October 2009. He clarified that he had not been advised of this incident by the applicant, and instead referred to the contemporaneous documents of the incident. He noted that there was no reference to an injury above the left eye, loss of consciousness, or retrograde or prograde amnesia, and the applicant could recall exactly what happened. Dr Beran commented that, in his experience, retrograde amnesia is the most reliable indicator of the severity of a head injury. Dr Beran considered that the absence of retrograde amnesia in this case would suggest that the head injury was of a “trivial nature” and was high unlikely to have caused “post-traumatic epilepsy”. Dr Beran opined that if the applicant does have post-traumatic epilepsy it is unlikely to be a result of this head injury, although it is possible that it might have related to the fall from the horse (for which he noted there was very little detail available).
Dr Beran was asked for his opinion regarding whether the applicant had likely suffered a concussion as a consequence of the 1 October 2009 injury. Dr Beran reiterated his comments regarding retrograde amnesia, and noted that the lack of any retrograde amnesia in this case means that the head injury was highly unlikely to have been concussive. He also commented that there appears to be conflicting information regarding the reported prograde period following the injury. Dr Beran agreed with Dr Cameron, who suggested that if any concussion did occur it would have been of a very trivial nature; however, his opinion remains that there was no concussive incident.
Dr Beran was asked to comment on the medical opinions of Drs Andrews, Cameron and Sonigra. Dr Beran commented that there is a significant disagreement between Drs Andrew and Cameron: however, he noted that the inclusion of the word “probably” in the final report of Dr Andrews suggests that he has some doubts after reviewing the report of Dr Cameron.
Dr Beran opined that too little weight has been placed on the report of Professor Robertson in this case. Dr Beran agreed with Professor Robertson that the applicant’s symptoms are not indicative of epileptic seizures, but rather are the consequence of a “deep-seated psychiatric disturbance”. Dr Beran acknowledged that he is not a psychiatrist and defers such an opinion to Professor Robertson.
Dr Beran agreed with Dr Andrews that the fact that all of the tests that he (Dr Beran) ran produced a normal result which did not exclude an epilepsy diagnosis; however, Dr Beran opined that the applicant’s heightened olfactory awareness to Echinacea and cigarette smell is highly relevant, and he does not believe that Dr Andrews was aware of this material when giving his diagnosis. Dr Beran considered that the history provided by the applicant may have confused olfactory hallucinations with psychiatric symptoms identified by Professor Robertson. Dr Beran referred to the applicant’s history of violent abuse by both her father and her partner, which would suggest, as diagnosed by Professor Robertson, dissociative post-traumatic stress disorder.
Dr Beran confirmed that he has serious doubts about the diagnosis of temporal lobe epilepsy in this case. Dr Beran noted that he neither supports or dismisses the opinion of Dr Sonigra, but considers that Dr Sonigra’s opinion was based on the opinion of a highly respected colleague (that is, Dr Andrews), rather than an independent opinion.
In this report Dr Beran also commented that there appears to have been an embellishment of the applicant’s claimed injuries which was inconsistent with the contemporaneous records, which raises serious concern. Dr Beran noted that where such conflict exists he usually places greater weight on the contemporaneous material.
At the hearing Dr Beran gave evidence that he has a great deal of experience with epilepsy; he has served on several commissions, published several books, completed a doctorate on epilepsy, and had involvement in clinical drug trials. He advised that his practice is to take a “very, very detailed history because neurology is based almost exclusively on history”. Dr Beran stated that he took a history from both the applicant and her partner. Dr Beran confirmed that the applicant made no mention to him of a hit to her head, either on a table or by falling off a horse when she was younger.
Dr Beran was asked to explain what factors led to his conclusion that the applicant does not suffer from epilepsy, and he stated that the applicant’s history does not lead to a diagnosis of epilepsy. He explained that there are two types of seizures to be considered in the applicant’s case; the first, primary generalised epilepsy, very rarely, if ever, occurs for the first time after childhood. In the second, focal epilepsy (previously referred to as “complex partial epilepsy”), there is “almost exclusively some postictal feature and she has none”. In addition, Dr Beran stated that he did both a 48 hour sleep-deprived EEG and a 72 hour sleep-deprived EEG, at a time that the applicant was reporting having two fits per week, and both test results were “pristine”. Dr Beran explained that EEG tests are designed to provoke a seizure where a person is prone to seizures.
When he was asked to elaborate on his opinion that it was unlikely the applicant had suffered a concussion as a result of the incident, Dr Beran stated that most persons who are seen not long after an incident will report a concussion head injury if it occurred, but while the applicant was “prompted and questioned in detail” she did not report any head injury. He commented, “The history that has come subsequently reads to me as if it is schooled”.
Dr Beran confirmed that he remains of the opinion that the applicant does not have epilepsy.
During cross-examination Dr Beran was asked about his 18 June 2013 report, in which he documented discussions with the applicant’s partner Mr Davis. Dr Beran confirmed that at that time Mr Davis was “adamant that there was no confusion, disorientation, fatigue, or anything else that would indicate that she was even aware that she had had such an episode”. It was put to Dr Beran that in this report he stated that the history provided by Mr Davis was “suggestive of having absent seizures which sound epileptiform in nature”, and Dr Beran responded by saying that he “had doubts then, and I have even more doubts now having gone through everything else”. Dr Beran went on to explain that he had advocated for the applicant to have both an ambulatory EEG and ECG.
Dr Beran was questioned about his opinion that the applicant did not suffer any retrograde or prograde amnesia. He explained that the fact that the applicant can recall what she was doing immediately before the event (that is, bending down and picking something up and then hitting her head on the table) means that there was no retrograde amnesia. As the applicant can remember the events immediately after hitting her head too, there was no prograde amnesia. He considered that either prograde or retrograde amnesia are needed to verify loss of consciousness.
Dr Beran explained the difference between generalised epilepsy seizures and non-epileptic psychogenic seizures, stating that one is epileptic and the other is not; one is caused by a physical abnormality in the brain and the other is caused by psychiatric or psychological issues. He stated that the difference is the origin of the event.
It was put to Dr Beran that certain medical literature suggested that non-epileptic seizures were characterised by variable symptoms in every episode. Dr Beran stated that where every episode is different, that is usually a good indication that the patient’s seizures are not epileptic; however the reverse is not true. The fact that a patient presents with similar symptoms in every episode does in no way exclude her from being non-epileptic.
Dr Beran was asked why he did not query whether the applicant had a psychiatric condition if he thought that her epilepsy may be psychiatric in nature, and he advised that he was not a psychiatrist but a neurologist. He explained that he suggested an ambulatory ECG and EEG to make sure there was no cardiac or epileptic cause for her symptoms, and that was his role.
Dr Beran confirmed that he places great weight on the reports of Professor Robertson, and that he agrees with the opinions put forward by him. He commented, “it may well be that the olfactory hallucinations referred to by Dr Andrews were part and parcel of the hypersensitivity to smell and has nothing to do with epilepsy. It is clear to me that there are many, many psychological issues involved in this matter…” He also noted that the applicant’s treatment with Epilim is not just used for epilepsy.
Dr Beran agreed with the comments put to him from the March 2014 edition of the Australian Family Physician publication, ‘Focus on Epilepsy’ that “Epilepsy remains a clinical diagnosis” and “Normal EEG and neuroimaging do not exclude the diagnosis”.
Dr Colin Andrews
Dr Colin Andrews provided numerous reports between 2013 and 2017.
The first report of Dr Andrews was provided on 10 September 2013, after he reviewed the applicant on 9 September 2013.[45] In this report he noted that the applicant was suffering anxiety from bullying, was sleeping poorly and had started to have “current turns where she stares as though ‘there is no one home’”. It was also documented that the applicant occasionally “gets olfactory hallucination as though there is unpleasant cheese, sometimes déjà vu and at other times taste is distorted as though there are bad peanuts”.
[45] Exhibit A, T-Documents, T28.
Dr Andrews noted that the applicant experienced a head injury at the age of 10 when she came off a horse. To his knowledge the applicant had a normal birth history. He noted that the applicant had been seeing Dr Beran, and the results of the MRI and several EEGs were normal.
Dr Andrews reported that the applicant gave “an excellent history of temporal lobe epilepsy”, describing it as “a very accurate history” which “I don’t think we could confuse with any other condition”. He commented that this condition is usually “acquired but sometimes can be genetic”, although there was no family history in this case.
Dr Andrews noted that he had started the applicant on an anticonvulsant treatment, Epilim.
Dr Andrews referred to the witness accounts of both Rachael Brookshaw and S Norris, which he considered were fairly typical observations of temporal lobe epilepsy. Dr Andrews noted that he did not have the reports of Dr Beran, but got the impression from the applicant that Dr Beran thought “it may have been psychogenic”, and he did not obtain a history of olfactory hallucinations from the applicant.
In his report of 29 October 2013, Dr Andrews noted that there had been a “modest” improvement in the applicant’s temporal lobe epilepsy since commencing her on Epilim.[46] He noted that the applicant had been experiencing one to two seizures per week, but they were fairly minor. He recorded that the applicant’s dose of Epilim would be increased, and noted that the applicant may need to take some days off work as a result.
[46] Exhibit A, T-Documents, T31.
In a report dated 17 February 2014 Dr Andrews recorded that the applicant had recently undergone an MRI of the brain and cervical cord, which were both normal.[47] He documented that the applicant had presented to Accident and Emergency two weeks ago with numbness in her left face spreading to the left arm and leg, and associated with a headache and poor balance. Dr Andrews opined that it sounded like the applicant had a migraine; he noted that the applicant had had an “altercation” with her husband that day and was stressed.
[47] Exhibit A, T-Documents, T33.
Dr Andrews noted that the hospital staff reduced the applicant’s Epilim medication, and since that time the tremor had improved so it was likely aggravated by Epilim. He recorded that the applicant’s medication dose had since been decreased and he had introduced Inderal for her headache and the tremor.
On 14 April 2014 Dr Andrews reported that the applicant was “headache free” and that her tremor had settled after the commencement of Inderal.[48] However, he also noted that the applicant was “still having a few minor turns”, so he had increased the dose of Epilim again.
[48] Exhibit A, T-Documents, T35.
On 18 June 2014 Dr Andrews reported that the applicant had issues with Inderal because of her lactose intolerance, and so her medication had been changed to Deralin.[49] Her dose of Epilim remained the same. He noted that the applicant could not drive for another four months (that is, six months after the last episode).
[49] Exhibit A, T-Documents, T36.
On 10 December 2014 Dr Andrews reported that the applicant’s dose of Epilim remained the same and she had had no seizures for at least a year.[50]
[50] Exhibit J.
On 27 March 2015 Dr Andrews reported that the applicant was having a “few breakthrough seizures”.[51] However, he noted that these were not as severe as they used to be and it was “more just being spaced out without an olfactory hallucination”. The applicant’s dose of Epilim was increased again. Dr Andrews noted that as the applicant was moving he would not see her again.
[51] Exhibit G.
On 31 May 2017 Dr Andrews provided a supplementary report at the request of the applicant. In this report he noted that he had reviewed the report of Dr John Cameron, and stated, “He tends to describe a panic attack and of course panic attacks and temporal lobe epilepsy can look fairly similar”. He commented of the applicant, “She certainly gave me a very good history of temporal lobe epilepsy which was backed up by two witness accounts”. Dr Andrews noted that the applicant seems to “space out” and seems “somewhat drowsy” afterwards, which is not usually something that happens with a panic attack. On the whole he concluded, “I think temporal lobe epilepsy probably still stands”.
Dr Jai Tho, neurologist
Dr Tho has given two reports dated 29 May 2015 and 9 July 2015.[52] The applicant was referred to Dr Tho by Dr Greg Sarson for “migralepsy for continuing care”.[53]
[52] Exhibit D.
[53] Report dated 29 May 2015.
In his report dated 29 May 2015 Dr Tho confirmed that the applicant was diagnosed with temporal lobe epilepsy in 2013, “most probably after closed head injury in 2009”. He noted that the applicant reported experiencing “aura”, blank spells and confusion prior to receiving medical treatment. It was noted that most of these symptoms resolved after being on Epilim, apart from “staring episodes” which could still be aggravated by stress and fatigue.
The applicant reported to Dr Tho that she thinks her migraines started with visual blurring when she was “in her teens”, and that it is mainly related to her food allergy “with retro-orbital pain with left sided emphasis”. Dr Tho noted that the applicant’s mother and daughter also suffer from migraines.
Dr Tho noted that a further neurological examination was “unremarkable”, with no sign of anticonvulsant toxicity. Dr Tho organised an EEG recording for the applicant and noted that she would be reviewed in one month.
On 9 July 2015 Dr Tho reported that since the last examination the applicant experienced more than 15 days of headache and more than 8 days of migraines. He noted that the applicant asked him to check her medical records from 2009 “when she was claimed to have minor head injury”, but Dr Tho could not find any mention of this in the letters of Dr Andrews.
Dr Dharmesh Sonigra, neurologist
Dr Sonigra provided a report dated 16 June 2017, in which he confirmed that he saw the applicant on 25 August 2016 and 16 June 2017.[54] Dr Sonigra noted that the applicant gave a history of a head injury on 1 October 2009 while she was working in the Defence Force. It was recorded that the applicant had a “significant knock to her forehead on left side while standing up from sitting position and hit her head to a metal table” and “she was quite confused with severe nausea and vomiting for few hours following this episode”. Dr Sonigra concluded that the applicant’s symptoms following this head injury were consistent with “head concussion”.
[54] Exhibit I.
In his report Dr Sonigra noted that the applicant had been getting “frequent short lasting periods of unresponsiveness lasting minutes with exhaustion and drowsiness afterwards”. He noted that the applicant also gets “deja vu and odd olfactory aura prior to these unresponsive episodes”. Dr Sonigra concluded that these episodes were consistent with “focal dyscognitive seizures from temporal lobe epilepsy”.
Dr John Cameron, neurologist
Dr Cameron provided two reports at the request of the respondent dated 5 April 2017 and 10 July 2017.[55]
[55] Exhibit F.
In his report of 5 April 2017 Dr Cameron stated that he had not personally examined the applicant but had reviewed a number of relevant medical documents. He noted that based on the medical records dated 1 October 2009 it appeared that the applicant suffered a minor blow to her left forehead on this date. Dr Cameron reported that there was no evidence of impaired consciousness, and after the event the applicant experienced mild symptoms of nausea, blurred vision and altered sensation on the left side of her face; Dr Cameron considered that, “at most this would represent a very minor concussive head injury”.
Dr Cameron noted that the medical documents reflect that the applicant experienced headaches/migraines periodically between 2009 and 2012, and that she has a past history of post-traumatic stress due to a childhood trauma and possible workplace bullying.
Dr Cameron referred to the VRB decision, in which the applicant’s representative described the incident of 1 October 2009. Dr Cameron noted that a history of head trauma with bleeding is not recorded in the contemporaneous medical records from that time. He had particular regard to the comment of, “no obvious injury” by the treating nurse and “no tenderness” by the assessing doctor. He considered that these comments went against any claim of a scalp injury having occurred.
Dr Cameron reported that, based on the description of events put forward by the applicant’s representative, it appeared that the applicant “developed a migrainous disturbance in the immediate post injury phase”.
Dr Cameron was asked to comment on the severity of the incident on 1 October 2009. He considered that, “at the most the injury suffered on 1.10.09 would be regarded as minor”. He noted that the applicant suffered a blow to the head but there was no head trauma and “no documented history of loss of consciousness associated with this event”. In this regard he did not consider that the applicant would have suffered a concussion from the injury. Dr Cameron reported that the applicant’s symptoms following this blow to the head may have represented “a very minor concussive disturbance”, but this was unlikely. He considered it was most likely that the symptoms were attributable to a “migrainous disturbance” following the blow, as migraine sufferers can experience an exacerbation of migraine following a blow to the head. Dr Cameron commented that a migrainous disturbance following a head injury can be confused with concussion. Dr Cameron opined that as he considered the applicant’s head injury to be minor in nature, it would not have led to any permanent impairment or neurological disturbance.
Dr Cameron concluded that there is no evidence to support the diagnosis of temporal lobe epilepsy or “complex partial seizures”. He referred to several studies conducted on seizures after traumatic brain injuries, which determined that “the incidence of post-traumatic epilepsy following a head injury of a minor nature is no higher than that seen in the general normal population” – that is, the injury suffered by the applicant would not have led to the development of post-traumatic epilepsy.
To support his conclusion Dr Cameron also referred to the following factors:
·The applicant’s history of absences and symptoms of heightened sensitivity and altered sensation of smell and taste are variable, which is unusual for temporal lobe epilepsy;
·The applicant’s MRI scan showed no evidence of trauma, and the EEGs showed no epileptic instability;
·The applicant appeared to have not responded to therapeutic doses of the anti-epileptic medication Epilim; and
·The applicant’s symptoms were documented in the presence of a “prominent anxiety disturbance”.
Dr Cameron opined that the events experienced by the applicant were related to stress and anxiety, and not to underlying temporal lobe epilepsy caused by a minor blow to the head on 1 October 2009.
In his supplementary report of 10 July 2017, Dr Cameron confirmed that he had since been provided with the 31 May 2017 report of Dr Colin Andrews and the 16 June 2017 report of Dr Dharmesh Sonigra. He stated that these reports did not alter his original opinion.
Dr Cameron was asked to explain why he concluded that the applicant is unlikely to suffer from temporal lobe epilepsy. Dr Cameron noted the following:
·The applicant suffered a blow to the head;
·There appeared to be no impaired consciousness or recall surrounding this event;
·The contemporaneous medical documents from that time reveal no evidence of scalp trauma, so the blow appears to have been minimal;
·The applicant had some symptoms following the event which represent a migrainous type disturbance, which is not uncommon for a blow to the head;
·The applicant subsequently manifested “odd attacks”;
·The applicant was thoroughly investigated by Dr Beran, and had extensive electrical brain tests which revealed no evidence of epilepsy;
·The applicant failed to respond to any epileptic medication under the care of Dr Andrews;
·Professor Robertson considered that the applicant suffers a disassociation phenomenon.
Dr Cameron concluded that in light of the above reasons, and the investigations which showed no evidence of underlying brain injury or epilepsy, the applicant does not suffer from temporal lobe epilepsy. Dr Cameron agreed with the conclusions of Professor Robertson that the applicant’s symptoms were most likely disassociation symptoms that may have a psychiatric basis.
Dr Cameron addressed the comments of Dr Andrews that he considered the applicant was suffering from epilepsy rather than panic attacks as she was drowsy after the episodes and the witness accounts described the episodes as involving the applicant “spacing out”. Dr Cameron stated that the described events can also occur in dissociative anxiety states, and are not specific to epilepsy.
Dr Cameron was asked to elaborate on his opinion regarding whether or not the applicant suffered a concussion when she hit her head. Dr Cameron noted that there is no documentation to suggest that the applicant suffered any cuts to her head as a result of the blow, or any transient loss of consciousness or loss of conscious awareness, or transient memory loss. He concluded that if the applicant had suffered a significant concussion injury she should have had a transient loss of consciousness or loss of conscious awareness with transient memory loss.
Dr Cameron was asked to comment on the reports of Dr Sonigra. Dr Cameron noted that Dr Sonigra concluded that the applicant suffered a head injury, confusion and severe memory loss, and on this basis determined that the applicant suffered a concussion. Dr Sonigra also opined that the applicant had temporal lobe epilepsy. Dr Cameron noted that he was not aware whether Dr Sonigra had reviewed the contemporaneous documentation from the time of the injury. He commented that the fact that the applicant had recently responded to Topiramate did not necessarily mean that her underlying condition was epilepsy.
At the hearing Dr Cameron was asked to elaborate on how he formed the view that the applicant does not suffer from epilepsy. He noted that this case refers to post-traumatic epilepsy, and explained that there were several reasons why he does not believe that epilepsy is present:
·The blow to the applicant’s head was minimal, and there are a number of studies which show that “a head injury of this nature is not associated with any increased risk of seizure formation following that trauma”;
·Her symptoms are rather complex, which is particularly revealed in Professor Robertson’s report. “There's really nothing in the history that really stands out as a stereotypic type pattern one sees in complex or simple partial seizures. Her symptoms represent a whole collection of events and experiences, and these are well documented…”;
·The applicant has been thoroughly investigated by Dr Beran, who specialises in epilepsy and has done extensive studies, whose tests showed no evidence of trauma or abnormality. Dr Cameron commented that sleep-deprived studies “are probably the best you have available to determine epilepsy”, and as both studies were normal it makes it “highly improbable” that the applicant has epilepsy;
·The MRI conducted on the applicant showed no evidence of trauma; and
·Dr Andrews tried the applicant on some epilepsy medication and she responded poorly.
Dr Cameron stated that there are a number of factors which suggest the applicant does not suffer from post-traumatic epilepsy. He stated that he believes the applicant’s problems are related to anxiety, and noted that this is well-documented in Professor Robinson’s report.
Dr Cameron was also asked about the importance of contemporaneous records when assessing an issue like concussion. Dr Cameron advised that they are “extremely important” particularly where “these are observations made by medically trained people”. He recalled that on the day of the incident the applicant was examined by a nursing attendant and a qualified doctor, whose observations should be “strongly relied on” as opposed to later recollections or distorted impressions which “can be coloured with time and suggestion”.
During cross-examination Dr Cameron agreed with an April 2013 extract of the American Psychologist publication, you do not have to lose consciousness to have a concussion. However, he stated that “the force should be sufficient to cause temporary disturbance of brain function”. He explained that there should be a “significant force which impairs the person's recall of the event and subsequent events”.
A further extract from this publication was put to Dr Cameron:
“People with concussions may have cognitive difficulties and short-term memory loss.”
Dr Cameron responded that people “may go on to have transient or temporary disturbance of brain function… A concussive injury gets better, by the nature of the definition of concussion”.
It was put to Dr Cameron that the applicant smells unpleasant cheese before she is about to have a seizure, and that this is not uncommon in seizures. Dr Cameron responded, “…it depends what you’re defining as her seizure. You’re defining the aura or preceding event; you haven’t told me what the seizure is… heightened sensitivities can occur in epilepsy, they can occur in migraine aura, they can occur in (indistinct) dysfunction disorders. So it’s not specific of epilepsy.” He stated that the hallucinations or sensory perceptions can be particularly prominent in stress disorders, as covered by Professor Robertson.
It was put to Dr Cameron that it was not unheard of for traumatic brain injury to lead to seizures. Dr Cameron responded that the average occurrence of epilepsy in the community is about 2 to 3 per cent of normal people. He also commented that the study of Annegers, as referred to in his report, was much more reliable as it went over many years. Other studies have also shown that head injury of the severity in this case “is not associated with an increased risk of seizure”.
Dr Cameron was asked to comment on the reports of Dr Andrews which indicated, contrary to his own reports, that the applicant’s epilepsy actually improved on Epilim. Dr Cameron stated that, “The mere fact a person's taking an anti-epileptic drug and there's a response ultimately does not mean they have epilepsy”. He advised that Epilim is also used by psychiatrists “very frequently” for treatment of psychiatric disorders. He commented that Epilim also works very well on psychiatric anxiety problems. He also stated that it could have been a placebo effect, commenting, “One in three patients respond to anything you put them on”.
During the hearing Dr Cameron also commented on the medication Topiramate which is another medication that was prescribed by Dr Andrews. He stated that Topiramate is another anti-epileptic agent, but it also has the effect of migraine prevention and is a good mood stabiliser, so it is also used by psychiatrists.
An extract from Chapter 10 of Dr Kaufman’s book “Clinical Neurology for Psychiatrists” (eighth edition) was put to Dr Cameron: “Astute physicians are unlikely to mistake complex partial seizures for psychotic episodes”. Dr Cameron responded:
“Depends on the presentation. These assessments are made over time… In time an astute physician will be able to work out, or attempts further talking to the patient when their clear thought processes are there and then make a judgment, and I agree with him on that, but if you're confronted with a person in the ED department in a complex partial seizure you've got no chance of talking to them, because what - the definition of complex partial seizures is that they're amnesiac and they're not responding. You can't make any comment on what's going on at that time, so in the long-term I agree with him. Put on the spot with this person you can't, so it's time.”
The applicant’s representative referred to the 26 November 2014 report of Professor Robertson, where he stated “The olfactory hallucinations and gustatory disturbance is suggestive of uncinate fits”. Dr Cameron explained that “uncinate fits” are “a special type of focal epilepsy which involves the under portion of the temporal lobe where people can get a sense of olfactory hallucination if an electrical circuit - short-circuit occurs there.” He further explained, “Gustatory hallucinations are extremely uncommon in epilepsy. Olfactory hallucinations are very common in focal epilepsy in that region. Usually gustatory are more psychiatric type disturbances.”
It was put to Dr Cameron that in his second report dated 29 January 2015 Professor Robertson had noted that the applicant had comorbid temporal lobe epilepsy. Dr Cameron stated that as Professor Robertson is a psychiatrist, he could not be diagnosing epilepsy. He stated that Professor Robertson’s reports reflect that he has been told the applicant has epilepsy, and “he's just assuming that this is a coexisting condition also”. However, Dr Cameron commented that Professor Robertson also raised a lot of concern about that particular diagnosis. Dr Cameron stated that his impression was that Professor Robertson felt the applicant did not have epilepsy but a dissociative disorder.
Dr Cameron clarified that when he stated he agrees with Professor Robertson, he was referring to him agreeing that the applicant’s attacks were dissociative attacks, and that she had a lot of other heightened anxiety symptoms that came on around the same time.
During the hearing Dr Cameron was asked to comment on the applicant’s PTSD diagnosis, and he declined to do so as he is not a psychiatrist. He simply stated, “I believe these attacks are related to her anxiety, because I can find no evidence to neurologically support that this is epilepsy”.
Dr Cameron agreed that the applicant’s episodes always have the same manifestation and last for roughly the same period of time. He stated that this revealed that the applicant was experiencing symptoms in “sort of a pattern”. He stated that these symptoms were further investigated by Professor Robertson, and “it turns out there’s a bit more to these heightened stimulus or… appreciation states than just purely smelling something or tasting something, and then going amnesic”. Dr Cameron opined that these symptoms were “anxiety symptoms”. He commented that neurologists and psychiatrists know that dissociative states occur when people are “feeling heightened sensations and amnesia; they stop, they blink their eyes, they're unresponsive and they snap out of it. This can be very commonly seen in stress disorder - dissociative states.” He stated that these symptoms do not mean the applicant has epilepsy.
Dr Cameron also commented that sleep-deprived EEGs are “the gold standard” to usually exclude epilepsy. If two sleep-deprived EEGs are both normal, the probability of epilepsy is “far remote”.
SUBMISSIONS
Applicant’s submissions
The applicant’s submissions outline her claim that she suffered a head injury on 1 October 2009 while on duty and as a result, she suffered a concussion which led to her developing epilepsy on or around 10 September 2013. The applicant’s Statement of Issues, Facts and Contentions dated 5 June 2017 submit that, if the claim is accepted, the date of effect should be 19 June 2014.
The applicant submits that she was first diagnosed with temporal lobe epilepsy by Dr Andrews in his letter of 10 September 2013. This diagnosis was subsequently supported by Dr Sonigra in his letter of 16 June 2017. The applicant notes that she also saw Dr Tho while still serving in the Navy, but she then transferred to seeing Dr Sonigra who remains her treating neurologist. Dr Tho referred to the applicant’s condition as “migralepsy” in his letter of 29 May 2015 but at that time he was awaiting the medical history from Dr Andrews. Dr Tho treated the applicant with anti-epileptic medication.
The applicant contends that the clinical onset date of her epilepsy condition is 10 September 2013, based on Dr Andrews’ letter; this was the first time a qualified person diagnosed the epilepsy condition. The applicant submits that the concept of clinical onset is clearly set out in several cases including Re Robertson v Repatriation Commission (1998) 50 ALD 668 and Repatriation Commission v Cornelius [2002] FCA 750, and is discussed in Lees v Repatriation Commission [2002] FCAFC 398. The applicant submits that no earlier date of clinical onset can be preferred.
The applicant disputes the medical opinions provided by Drs Cameron and Beran. The applicant pointed out that Dr Cameron has never examined the applicant personally, and Dr Beran has not seen the applicant since 2013. The applicant noted that neither Dr Beran nor Dr Cameron offered a diagnosis in their reports or at the hearing; instead, they indicated that they support the diagnoses of Professor Robertson. The applicant submitted that Drs Beran and Cameron agreed at the hearing with the extract from the Australian Family Physician publication, “Epilepsy remains a clinical diagnosis. Normal EEG and neuroimaging do not exclude the diagnosis.” In her submissions the applicant also referred to Chapter 10 of David Kaufman’s textbook, Clinical Neurology For Psychiatrists[56] and the extract:
“Astute physicians are unlikely to mistake complex partial seizures for psychotic episodes. Complex partial seizures usually last only a few minutes, consist of stereotyped symptoms, necessarily include impaired consciousness, and usually have debilitating postictal manifestations. After recovering from a seizure and its aftermath, patients gradually return to their interictal personality, which admittedly might be abnormal. In contrast, psychotic episodes, which are frequently triggered by factors in the environment, typically last at least several days. Also, the manifestations of the psychosis vary greatly from episode to episode and often include hypervigilance.”
[56] Exhibit H.
The applicant’s submissions address the issue of comorbidity, stating that there is a vast amount of scientific evidence to suggest that many conditions can be comorbid with epilepsy, including migraines, psychogenic non-epileptic siezures (PNES), and dissociative disorders. The applicant submits that, even if it is accepted that she has another condition (such as a dissociative disorder), it is likely to be comorbid with epilepsy.
Gustatory and olfactory phenomena
The applicant’s submissions addressed the claims that her seizures were related to gustatory and olfactory phenomena, specifically the smells of cigarette smoke and Echinacea. The applicant submitted that the smells of cigarette smoke and Echinacea relate to when the applicant was having a stressful, unsatisfactory working relationship with her supervisor while on board the HMAS Darwin. Her supervisor was a heavy smoker and her parents had started using Echinacea. Since then the applicant has had heightened senses, particularly smell.
The applicant submits that these smells are not hallucinations as opined by Drs Beran and Cameron, and they have no relation to her epilepsy. Immediately prior to experiencing a seizure the applicant often has a bad taste in her mouth that is metallic or tastes like bad peanuts. She can always smell cheese. These sensations are usually referred to as an “aura” and are common in sufferers of epilepsy.
Head injury
The applicant submits that the alleged incident on 1 October 2009 occurred as follows:
·On 9 October 2009 the applicant was performing her normal duties on the HMAS Albatross when she hit her head on a steel bench;
·She has no memory of what happened after that until another person (Belinda) appeared. Belinda wiped the blood from above the applicant’s left eye and took her to the sick bay;
·The applicant was examined by one of the medical staff, her wound was cleaned and a butterfly band aid was applied;
·Approximately one hour later the applicant saw a doctor;
·Both the doctor and medical staffer recorded a head trauma/injury. While there is a reference to “no obvious injury”, the applicant submitted that this likely means no other injury was noted; and
·The applicant had a dressed wound and a large lump above her eye. She still has a scar on her forehead from the injury.
The applicant’s submissions pose the question why would the doctor have given the applicant sick leave and asked to see her the following day if she had no injury.
The applicant pointed out that the Glasgow Coma Scale test, the Westmead Post-Traumatic Amnesia Scale, and the Rivermead Post-Concussion Symptoms Questionnaire were not applied following the accident. The submissions describe the applicant’s care following the accident as “less than comprehensive”.
The applicant submits that the comments of Drs Beran and Cameron regarding the size of the cut on the applicant’s head are of no relevance as a concussion (or mild traumatic brain injury) is caused by movement of the brain inside the cranial vault, not by a cut.
Concussion or ‘mild traumatic brain injury’
The applicant submits that she is claiming that she had a ‘mild traumatic brain injury’, not a moderate or severe brain injury. The applicant considers that the terms ‘concussion’ and ‘mild traumatic brain injury’ are interchangeable.
The applicant referred to the SoP for Concussion, and to the RMA document relating to post-concussion syndrome which provides a definition of concussion that includes loss of consciousness, alteration of consciousness, post-traumatic amnesia or a Glasgow Coma Scale score of 13 to 15.
The applicant submits that no one can say whether or not she had a loss of consciousness as a result of the accident as she was the only person there, and she has no memory of that moment. The applicant herself is unsure of whether or not she lost consciousness, but considers that it is likely that she did so for a short period of time.
The applicant listed the typical symptoms of concussion, which include nausea and dizziness, as well as often delayed symptoms such as psychological adjustment problems or disorders of taste and smell. The medical records reflect that the applicant reported nausea, blurred vision, altered sensation, altered pupils and dizziness after she hit her head. The records also reflect that the applicant later reported headaches, psychological problems, and changes in her sense of smell and taste.
The applicant referred to the Textbook of Neurosurgery by Drs Narain Tandon and Ravi Ramamurthi (3rd ed, vol 3), where it states, “Amnesia is emerging as perhaps the most important sign for careful assessment of concussion. It may present as retrograde amnesia or anterograde amnesia”. It also states, “The most common symptoms associated with concussion are headache or dizziness” and “The patient may also complain of blurring of vision”. The applicant submitted that she suffered from all of these symptoms as a result of her accident, which she considers is a clear indication that she suffered a concussive event.
The applicant noted the definition of ‘anterograde amnesia’ in Stedman’s Medical Dictionary is, “amnesia in reference to events occurring after the trauma or disease that caused the condition”.
The applicant’s submissions contend that the VRB hearing revealed further insight into her memory loss surrounding the accident and the 24 hours after the accident. The applicant recalled that she went to work the next day, but it was then revealed that she was given sick leave the next day. She also had no recollection of going back to the doctor the next day. She could not recall who took her home after the accident, nor who tended to her at home; she assumed Belinda took her home and her daughter tended to her. The applicant submits that it is clear, based on this information, that the applicant has almost no recollection of the 24 hours after the accident.
The applicant also referred to another extract from the Textbook of Neurosurgery,[57] which stated, “epilepsy has long been established as a late consequence of head injury, and is related to the severity and type of injury”.
[57] Drs Narain Tandon and Ravi Ramamurthi, ‘Textbook of Neurosurgery’ (3rd ed, Vol 3, 2012).
Dr Beran’s reports and evidence
The applicant contends that the reports of Dr Beran contain some factual errors, and there is some dispute between himself and the applicant about the consultations that took place.
The applicant referred to two key comments in Dr Beran’s report of 18 June 2013: “The real issue here is that we do not know what is happening” and “suggestive of epileptiform”. The applicant submits that now, years later, Dr Beran has opined that the applicant’s experiences are not “suggestive of epileptiform” and that he does know what is happening. She submits that in Dr Beran’s 2013 reports he made no mention of any psychological or psychiatric phenomena such as dissociative disorders.
The applicant’s two main issues with the reports and evidence of Dr Beran are that, firstly, he makes no formal diagnosis, and secondly, he agrees with the reports of Professor Robertson.
Dr Cameron’s reports and evidence
The applicant also considers that the reports of Dr Cameron contain a number of factual errors, and “a number of debateable medical symptoms and issues”.
In his report dated 10 July 2017 Dr Cameron stated that the contemporaneous medical records revealed no evidence of scalp trauma. The applicant disputes this and claims that there was a clear notation of the presence of head trauma. Dr Cameron also commented that the applicant failed to respond to any specific medication. The applicant considers this to be untrue.
Dr Cameron noted that he was unsure whether or not Dr Andrews was given all the relevant medical information before reaching his diagnosis. The applicant clarified that Dr Andrews was given a “comprehensive folder”, and that contained “everything medically known to that point”.
The applicant challenged Dr Cameron’s interpretation of a scientific paper by Annegers, which he used to support his opinion that the applicant’s injury would not have led to the development of post-traumatic epilepsy. The applicant submits that this is not true, and the Annegers report actually states that 1.5% of persons in that study suffered seizures, and it also referred to another Arizona study on veterans which put the figure at 3%.
The applicant disputes the reports and evidence of Dr Cameron on the same basis as that for Dr Beran: that he makes no formal diagnosis and that he agrees with the reports of Professor Robertson.
Professor Robertson’s reports
The applicant’s submissions note that Professor Robertson is not a neurologist but a psychiatrist. The applicant considers that there are a number of factual errors in his two reports. In his 26 November 2014 report Professor Robertson states, “The salience to the Echinacea and tobacco smells is that she recalls quite clearly both these parents used to chew these tablets habitually as well as smoke and this was a dominant smell of her childhood.” The applicant submits that neither of her parents smoked and they did not use Echinacea until she was an adult and gone from the family home.
The applicant highlighted that Professor Robertson made two diagnoses: complex PTSD, and PTSD with dissociative subtype. She noted that neither of these conditions have an SoP, but there is an SoP for PTSD. The applicant discussed the importance of meeting an SoP for a claimed condition. The submissions seek to address whether or not the applicant has PTSD, however there is no claim for PTSD before the Tribunal in this matter.
The applicant submitted that, in reaching a PTSD diagnosis, Professor Robertson relied on the assumption that the applicant suffered childhood abuse and experienced “bullying” from her supervisor. The submissions accept that the applicant had an abusive childhood, and came from a family with a dysfunctional father. However, she did not experience any physical or sexual abuse. The applicant submits that she does not satisfy the SoP for PTSD.
The applicant submits that the opinions of Drs Beran and Cameron that her episodes are not epileptic in nature but dissociative, are based on Professor Robertson’s reports and diagnosis of PTSD with dissociative subtype. The applicant disputes this diagnosis, and refers to the book of Dr Marlene Steinberg, a recognised expert on dissociative disorders, which listed five components of dissociative disorders. The applicant claims to not meet any of these components. The applicant also referred to achieving normal results from the ‘Depersonalisation Test’, the ‘Dissociative Experience Scale’ and the ‘Adverse Childhood Experience Questionnaire’.
Contentions
The applicant contends that she suffered a head trauma (which was noted in the medical records), and has all of the physical attributes of a concussion as a result of the accident. She also claims to have experienced memory loss immediately after the accident and in the 24 hours following the accident.
The applicant submits that she has been formally diagnosed with temporal lobe epilepsy by Dr Andrews, a qualified neurologist. Dr Sonigra confirmed this diagnosis and Dr Tho also treated her with an anti-epilpetic medication.
The applicant submits that there is a psychological diagnosis by Professor Robertson for complex PTSD and PTSD with dissociative subtype, but the applicant does not suffer from either of these conditions or any other dissociative disorder. The applicant contends that, even if it is accepted that the applicant has another condition, it is likely to be comorbid with epilepsy.
The applicant submits that she meets factor 6(b) of the Epilepsy SoP.
Respondent’s submissions
The respondent’s submissions outline their position that the Tribunal’s jurisdiction in this matter is limited to a consideration of liability for epilepsy, which is the subject of the reviewable decision.
The respondent notes that the applicant’s claim is advanced on the basis that her epilepsy is related to her military service and that she satisfies factor 6(b) of the SoP. It is the submission of the respondent that the medical and factual evidence does not support this claim.
Medical evidence
The respondent submits that both Drs Beran and Cameron provided reports and gave evidence at the hearing, and both doctors agree that the applicant does not suffer from epilepsy.
The respondent highlighted that while the applicant seeks to rely on the evidence of Drs Andrews, Tho and Sonigra, none of them were called to give evidence at the hearing and were not available for cross-examination.
The respondent considers that the evidence of Drs Beran and Cameron ought to be preferred over the evidence of Drs Andrews, Tho and Sonigra, particularly given that the findings of these two doctors were reached with the benefit of having reference to all of the applicant’s available medical records and reports. The respondent contends that the evidence of Dr Beran is particularly persuasive given that he has not only reviewed all medical records and reports, but he also personally examined the applicant in 2013 on several occasions.
The respondent also addressed the applicant’s submission which made reference to the applicant having a scar above her left eye, and to Drs Cameron and Beran making observations about the size of the cut on her head. The respondent seeks to clarify that any reference by Drs Beran or Cameron regarding the scar was referred to in the context of the applicant undergoing surgery on her left eye when she was four years of age. This is consistent with the other medical evidence on file.
Contentions
The respondent submits that the weight of the evidence fails to support a finding that the applicant suffers from epilepsy. They submit that, even if it were found that the applicant suffers from epilepsy, the evidence fails to establish that she suffered a concussion in October 2009 in the manner alleged, and therefore the relevant SoP factor (factor 6(b)) is not satisfied. The respondent notes that, in particular, the contemporaneous medical records do not establish that the applicant experienced a concussion.
Applicant’s submissions in reply
In her submissions in reply, the applicant reiterated that Dr Sonigra is her current treating neurologist, and has been treating her for years. The applicant described it as “inconceivable” that Dr Sonigra could have been treating her for so long and not suspect that she does not suffer from epilepsy. Similarly, Dr Andrews reviewed the applicant over a number of years and did not raise any doubts or concerns about the diagnosis of epilepsy.
The applicant referred to the evidence of Dr Beran that the applicant did not mention her head injury during their consultations. The applicant contends that at that stage, no one knew what was wrong with the applicant, “so how is she expected to know the relevance of something that happened a long time before?”
The applicant highlighted in her evidence that Dr Beran did not ask her any questions which would have elicited the information relating to her head injury; on the contrary, Dr Andrews asked her directly, “did you suffer any head injuries”.
The applicant takes issue with the comment of Dr Beran at the hearing that the applicant’s recount of the incident “reads to me as if it was schooled”.
The applicant referred to the comments of Drs Beran and Cameron mentioned in the respondent’s submissions, regarding a scar above the applicant’s eye. The applicant contends that the respondent’s submission, which intimates that the scar relates to an eye surgery the applicant underwent when she was a child, is a “medical nonsense”. The applicant submits that she had a piece of glass in her eye, and the surgery would not have resulted in a scar above her eye.
The applicant submits that it was shown that she suffered all the physical attributes of a concussive event at the time she hit her head, and she also experienced memory loss at the time of the accident and for 24 hours after the event.
CONSIDERATION
There is no cogent evidence before the Tribunal which enables me to find that the applicant has sustained a service injury or a service disease.
I find that the applicant had a head injury on 1 October 2009. The contemporaneous medical record from 1 October 2009 refers to the applicant having a “minor head trauma for investigation”. While Dr Sonigra in his report dated 25 August 2016 remarks that her symptoms following the head injury are suggestive of head concussion, there is no record in the contemporaneous records that this was the case. Rather the documentation records the applicant as being “alert and orientated” on that occasion. Dr Beran considered that the lack of any retrograde amnesia means that the head injury was unlikely to have been concussive. Dr Cameron in giving evidence stated that he did not think that the applicant would have suffered a concussion from the injury. Dr Cameron also referred to remarks in contemporaneous medical records which would indicate that there was not a scalp injury. Drs Beran and Cameron were closely examined by the applicant on their conclusions. I do not find that the applicant was concussed after her injury.
I give great weight to the opinions of Drs Beran and Cameron that the applicant does not suffer from epilepsy. Drs Beran and Cameron provided comprehensive reports: the opinions of these specialists were made after they had the benefit of having access to all of the applicant’s available medical records and reports. Both Drs Beran and Cameron gave evidence at the hearing and their conclusions were not in my view effectively challenged.
I outline why I rely upon the opinions of Drs Beran and Cameron who both agreed with the assessment of Professor Robertson.
In 2013 Dr Beran had the benefit of having a number of consultations with the applicant. Dr Beran has undoubted expertise to give his opinion as to whether the applicant has epilepsy having completed his doctorate in the study of epilepsy as well as publishing in this field. I give great weight to the opinion that Dr Beran expressed in his report dated 18 July 2017 in which he stated that he had serious doubts regarding the diagnosis of epilepsy. Dr Beran also referred with approval to the psychological/psychiatric opinions of Professor Robertson. Before writing his report Dr Beran had conducted a number of investigations involving sleep deprivation which are outlined in his reports of 14 June 2013 and 18 June 2013. It is apparent from the reports dated 14 June 2017 and 18 July 2017 that the applicant did not inform Dr Beran that she had fallen off a horse at the age of 10 years nor about hitting her head while in the Navy. However, Dr Beran did consider the circumstances of her head injury on 1 October 2009.
Dr Cameron is a neurologist of some seniority and certainly has expertise in the field of epilepsy. Dr Cameron has put forward valid reasons for his conclusion, and in giving evidence made observations about the applicant that: “she has a whole host of symptoms, some of which represent these amnesic type disturbances and altered smell and taste appreciation. There’s nothing really in the history that really stands out as a stereotypic type pattern one sees in complex or simple partial seizures”. Dr Cameron also referred to the poor performance of the applicant to epilepsy medication. Even if it is accepted that the applicant had a head injury, Dr Cameron explained in his evidence that the head injury of the applicant is not associated with any risk of seizure formation following a trauma. He also mentioned that the MRI showed no evidence of trauma.
While the applicant relies on the opinions of Drs Andrews, Tho and Sonigra; none of these doctors were called to give evidence at the hearing and their opinions could not be tested in cross-examination. It is a matter of some concern that the applicant indicated on the hearing certificate that Drs Andrews and Sonigra would be called by the applicant to give evidence. The respondent outlined in their hearing certificate that Drs Andrews and Sonigra were required for cross-examination.
While these are not adversarial proceedings, and the applicant certainly does not bear any onus of proof (s 337 of the Act), in these circumstances it is difficult to give weight to the opinions of Drs Andrews, Tho and Sonigra in preference to those of Drs Beran and Cameron. Dr Beran did not believe that Dr Andrews was aware of the heightened olfactory awareness of the application to certain smells. Dr Cameron was asked to consider the reliance by Dr Andrews on the drowsy nature of the applicant after panic attacks. Dr Cameron stated that such events are not specific to epilepsy but can also occur in dissociative anxiety state. Dr Cameron remarked that he was not aware whether Dr Sonigra had reviewed the contemporaneous documentation. Dr Cameron had also commented that a response to Topiramate was indicative of an epilepsy condition.
I rely upon the evidence of Dr Cameron who pointed out that he was aware that the applicant had three EEGs, and that she had two sleep deprived EEGs. Dr Cameron remarked that sleep-deprived EEGs are the “Gold standard” usually to exclude epilepsy apart from doing five days of telemetry which he acknowledges is expensive.
I am unable to make a finding, on the balance of probabilities, that the applicant has epilepsy.
There is one matter of concern to the Tribunal and that is that the recommendation of Dr Beran that there be an ambulatory (Holter monitor) ECG and an ambulatory EEG has not been acted upon. While these procedures would provide more insight into the condition of the applicant, these procedures would require the consent and cooperation of the applicant.
At the outset of the hearing the applicant indicated that the respondent was not calling Professor Robertson. The respondent had not previously advised the Tribunal in the hearing certificate that it would call Professor Robertson. The hearing certificate of the applicant did not contain a request for Professor Robertson to be called. In the circumstances the respondent was not obliged to call Professor Robertson as a psychiatrist and I accept his considered assessment that the problems of the applicant are related to a deep-seated psychiatric disturbance.
DECISION
I affirm the decision under review.
198.
199.
200. I certify that the preceding 197 (one hundred and ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD
........................[SGD]..............................
Associate
Dated: 14 March 2019
Dates of hearing:
Date final submissions received:
7 March 2018
8 March 2018
30 April 2018
Advocate for the Applicant:
Solicitors for the Respondent:
Tony Alexander
Moray & Agnew Lawyers
Key Legal Topics
Areas of Law
-
Administrative Law
-
Statutory Interpretation
Legal Concepts
-
Judicial Review
-
Expert Evidence
-
Procedural Fairness
-
Statutory Construction
-
Appeal
0