Tagg v Partelle Racing Pty Ltd
[2024] NSWPICMP 561
•12 August 2024
| DETERMINATION OF APPEAL PANEL | |
| CITATION: | Tagg v Partelle Racing Pty Ltd [2024] NSWPICMP 561 |
| APPELLANT: | Desiree Tagg |
| RESPONDENT: | Partelle Racing Pty Ltd |
| APPEAL PANEL | |
| MEMBER: | Marshal Douglas |
| MEDICAL ASSESSOR: | Ross Mellick |
| MEDICAL ASSESSOR: | Mark Burns |
| DATE OF DECISION: | 12 August 2024 |
| CATCHWORDS: | WORKERS COMPENSATION - Fall from a horse; multiple injuries; assessment in relation to impairment from psychological injury and assessment of the nervous system the subject of appeal; re-examination undertaken in respect of the psychological injury; in respect of the nervous system, whether the Medical Assessor (MA) was correct to hold there was no rateable impairment according to SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021; Held – MA was correct in respect of the nervous system assessment, but the Medical Assessment Certificate was revoked because he should have assessed 0% whole person impairment instead of stating “unable to be assessed”. |
BACKGROUND
Desiree Tagg, the appellant, has appealed against the medical assessment Medical Assessor Peter Spittaler conducted of a medical dispute between the appellant and Partelle Pty Ltd, the respondent, relating to the degree of permanent impairment the appellant has from a brain injury she suffered in an incident on 15 June 2018.
It is necessary to set out at some length the background to the appellant’s appeal so as to make clear the issues with which the Appeal Panel is dealing in this matter and, consequently, the Appeal Panel’s reasons for its decision.
The respondent either employed or engaged the appellant to do riding work in connection with horse racing on a racecourse. On 15 June 2018 the appellant fell from a horse she was riding and suffered physical and psychological injuries.
On 22 December 2020 the appellant’s solicitors wrote to the respondent’s insurer, namely Racing NSW Insurance Fund, advising it that the appellant claimed compensation from it for permanent impairment from her physical injuries and a primary psychological injury she suffered in the incident on 15 June 2018. The appellant’s solicitors acknowledged in their correspondence that in accordance with s 65A(4) of the Workers Compensation Act 1987 (the 1987 Act) the appellant was not entitled to compensation for permanent impairment for both her physical injuries and psychological injury, but was entitled to receive compensation for permanent impairment for whichever of those injuries yielded the highest amount of compensation.
The appellant’s solicitors further advised in their correspondence that, with respect to her physical injuries, the appellant relied on assessments Dr James Bodel and Dr Renata Abraszko had made to support her claim and, with respect to her psychological injury, she relied on assessment Dr Ash Takyar had made of the permanent impairment of her psychiatric injury. The Appeal Panel notes that Dr Bodel is an orthopaedic surgeon who provided a report dated 26 June 2020 to the appellant’s solicitors in which he advised he assessed the appellant had 7% whole person impairment (WPI) relating to her cervical spine, 6% WPI relating to her left upper extremity and 1% WPI for scarring as a result of her injury, which he noted combined to 14% WPI.
Dr Abraszko is a neurosurgeon and spinal surgeon and she advised in a report dated
11 December 2020 addressed to the appellant’s solicitors that she assessed the appellant had 20% WPI from a traumatic brain injury the appellant suffered in the incident on
15 June 2018. Dr Abraszko’s assessment was made in accordance with the criteria of paragraph 5.9 of the SIRA NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, 4th ed 1 March 2021 (the Guidelines) and Tables 13.5 and 13.6 of the American Medical Association Guide to Evaluation of Permanent Impairment, 5th ed (AMA5). Dr Abraszko’s assessment, when combined with the 14% WPI Dr Bodel assessed the appellant had from her other physical injuries, yielded 31% WPI in accordance with the Combined Values Charts of AMA5.The Appeal Panel notes too that Dr Takyar is a psychiatrist who in a report dated
22 October 2022 addressed to the appellant’s solicitors advised he had assessed the degree of the appellant’s permanent impairment from her psychological injury was 22% WPI.On 14 July 2021 the insurer wrote to the appellant’s solicitors notifying them under s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) that it disputed it was liable to pay the appellant compensation for permanent impairment. It advised the appellant’s solicitors this was because it considered the degree of the appellant’s permanent impairment from her injury was below the threshold of more than 10% permanent impairment that s 66(1) of the 1987 Act imposed for an appellant to be entitled to compensation for permanent impairment. The Appeal Panel notes too that s 65A(3) of the 1987 Act requires the degree of permanent impairment of a worker from a primary psychological injury to be at least 15% for a worker to be entitled to compensation for permanent impairment from such an injury. The insurer advised that it relied on reports of
Dr John Roberts dated 19 February 2021, Dr Ron Granot dated 10 March 2021 and
Dr Richard Powell dated 6 May 2021.The Appeal Panel notes that Dr Granot is a neurologist who in his report advised that the appellant did not meet the criteria of paragraph 5.9 of the Guidelines to be assessed for permanent impairment from a traumatic brain injury. Dr Richard Powell is an orthopaedic surgeon and he advised in his report that he assessed the appellant had a 4% WPI from her injury. Dr John Roberts is a psychiatrist who in his report advised that he had diagnosed the appellant had a somatoform disorder from her injury and that no permanent impairment is assessable by reference to such a diagnosis. A medical dispute consequently arose between the parties regarding the degree of the appellant’s permanent impairment from both her physical injury and psychological injury she suffered in the incident of 15 June 2018.
On 1 November 2021 the appellant’s solicitors lodged with the Personal Injury Commission (Commission), on behalf of the appellant, an Application to Resolve a Dispute (ARD) seeking the Commission determine the appellant’s claim for compensation from the respondent for permanent impairment from her injuries. A delegate of the President of the Commission, pursuant to s 321(2) of the 1998 Act, chose Medical Assessor Spittaler, a neurosurgeon, to assess the medical disputes relating to the appellant’s nervous system, that is her brain injury, from the incident on 15 June 2018. The delegate chose Medical Assessor Tim Anderson, an occupational physician, to assess the medical disputes relating to the appellant’s cervical spine, left upper extremity (shoulder) and scarring (TEMSKI) from the injuries she suffered on 15 June 2018 and also to consolidate his assessments with the assessments that Medical Assessor Spittaler made.
The delegate chose Medical Assessor Douglas Andrews, a psychiatrist, to assess the medical dispute relating to the appellant’s psychological injury suffered in the incident on
15 June 2018.The delegate issued referrals to those Medical Assessors on 3 December 2021.
On 24 August 2022 Medical Assessor Spittaler issued a Medical Assessment Certificate (MAC) relating to the medical disputes that were referred to him. In that he said he was “unable to assess” the medical disputes referred to him. More will soon be said regarding his reasons for that.
Medical Assessor Anderson also issued a Medical Assessment Certificate on the same day in which he certified he assessed the degree of the appellant’s permanent impairment was 7% WPI relating to her cervical spine, 4% WPI relating to her left upper extremity (shoulder) and 1% WPI relating to scarring. Medical Assessor Anderson issued a “consolidated Medical Assessment Certificate” in which he combined those assessments to 12% WPI and noted that the medical disputes that were referred to Dr Spittaler with respect to the appellant’s nervous system was “not able to be assessed”. In short, the consolidated Medical Assessment Certificate Medical Assessor Anderson issued certified the degree of the appellant’s permanent impairment from her physical injuries was 12% WPI.
The Appeal Panel notes too that Medical Assessor Andrews also issued a Medical Assessment Certificate on 24 August 2022 in which he certified that he did not assess the appellant’s permanent impairment from a psychological injury because he considered the appellant did not have a primary psychiatric disorder from the incident on 15 June 2018.
On 20 September 2022 the appellant lodged an “Application to Appeal Against the Decision of a Medical Assessor” relating to both the assessments that Medical Assessor Andrews and Medical Assessor Spittaler made with respect to the medical disputes that had been respectively referred to them. A delegate of the President constituted a single Appeal Panel, pursuant to s 328(1) of the 1998 Act, to hear those appeals.
On 23 May 2023 that Appeal Panel revoked both the certificate Medical Assessor Andrews had issued and the certificate Medical Assessor Spittaler had issued and issued new medical assessment certificates in which it certified the degree of permanent impairment of the appellant relating to her nervous system from her injury on 15 June 2018 was 0% WPI and that the degree of her permanent impairment relating to the psychological injury she suffered on 15 June 2018 was 9% WPI.[1]
[1] Tagg v Partelle Racing Pty Ltd [2023] NSWPICMP 2019 (the first Appeal Panel’s decision).
The appellant then instituted proceedings in the Supreme Court of New South Wales seeking judicial review of the first Appeal Panel’s decision, specifically seeking an order quashing that decision and an order requiring her appeal to be determined afresh by a differently constituted Appeal Panel according to law.
The matter was heard by her Honour Schmidt AJ who on 14 December 2022 made those.[2]
[2] Tagg v Racing New South Wales [2023] NSWSC 1547 (Tagg).
This Appeal Panel has been constituted by a delegate of the President under s 328(1) to deal with the appellant’s appeal against the medical assessment Medical Assessor Spittaler conducted of the medical disputes that were referred to him. A separate Appeal Panel has been constituted to deal with the appellant’s appeal against the medical assessment Medical Assessor Andrews made in response to the medical disputes referred to him.
THE MAC
As mentioned, Medical Assessor Spittaler did not assess the medical disputes that were referred to him. His reason for not doing so was that he considered the appellant did not meet the criteria of paragraph 5.9 of the Guidelines. In his view, there was no evidence of significantly medically verified abnormalities in the Glasgow Coma Scale Score, or significantly medically verified duration of post-traumatic amnesia, or significant intercranial pathology on CT scan or MRI. He said “based on the lack of documented GCS abnormality, PTA duration and CT or MRI abnormality I am not in a position to be able to assess any permanent impairment relating to a traumatic brain injury”. Medical Assessor Spittaler provided reasons in the MAC for concluding the appellant did not meet those criteria.
THE APPEAL
The appellant relies on the grounds for appeal found in s 327(3)(c) and (d) of the 1998 Act, being, respectively, that Medical Assessor Spittaler’s assessment was made on the basis of incorrect criteria and that the MAC contains a demonstrable error.
The appellant’s submissions in support of her appeal, which were prepared by her counsel Mr Lachlan Robison on 20 September 2022, were, in substance, that the referral to Medical Assessor Spittaler required him to assess the medical disputes listed in the referral and it was not optional for the Medical Assessor not to do so. That is, it was mandatory for him to assess these disputes and his failure to do so amounts to a demonstrable error.
In response, the respondent’s submissions, which were drafted by its solicitor and dated
4 October 2022 were, in substance, that Medical Assessor Spittaler conducted an assessment of the appellant’s permanent impairment and this is because the Medical Assessor had considered whether the appellant met the criteria of paragraph 5.9 of the Guidelines. The respondent submitted that the Medical Assessor had referred to the evidence he was provided and to his findings from his clinical examination of the appellant and concluded the appellant did not meet this criteria. The respondent submitted that the Medical Assessor “has complied with the referral by engaged [sic] in the process of assessing whole person impairment”.The Appeal Panel observes that the first Appeal Panel found that Medical Assessor Spittaler did conduct an assessment of the appellant’s permanent impairment in accordance with the correct criteria of the Guidelines and that when the MAC is read as a whole, Medical Assessor Spittaler assessed the appellant had no ratable impairment.[3] That is, it accepted the respondent’s submissions.
[3] The first Appeal Panel’s decision at [45].
However, irrespective of the fact that Medical Assessor Spittaler had considered whether the appellant met the criteria of paragraph 5.9, the MAC nevertheless contains a demonstrable error because Medical Assessor Spittaler did not anywhere in the MAC say that he had assessed the appellant had 0% WPI from her injury. Rather, he said that he was unable to assess the degree of her permanent impairment from her injury. He took one necessary step in the process, in that he considered whether in accordance with paragraph 5.9 of the Guidelines the appellant met the criteria to be rated under sections 13.3a, 13.3c, 13.3d, 13.3e and 13.3f of AMA5, but then did not take the next step and rate the appellant’s impairment by reference to those sections. Further, he did not consider section 13.3b of AMA5.
To repeat, the first Appeal Panel revoked the MAC and issued a new Medica Assessment Certificate in which it certified the degree of the appellant’s permanent impairment relating to her nervous system from the injury on 15 June 2018 was 0% WPI. To repeat too, that certificate was subsequently quashed by order of Schmidt AJ.
In her application for judicial review of the first Appeal Panel’s decision, insofar as it is related to Medical Assessor Spittaler’s assessment, the issue the appellant agitated was whether the first Appeal Panel erred by failing to assess her impairment from her traumatic brain injury, that is failed to correct the error Medical Assessor Spittaler had made, and whether the first Appeal Panel had also erred by failing to give adequate reasons for its interpretation and application of the Guidelines.[4]
[4] Tagg at [9], [59] and [60].
Schmidt AJ held that the first Appeal Panel had misread paragraph 5.9 of the Guidelines. This Appeal Panel notes that paragraph 5.9 requires, prior to making an assessment of impairment by reference to sections 13.3a, 13.3c, 13.3d, 13.3e and 13.3f of AMA5, that at least one of three criteria enumerated by bullet points within the paragraph exist. Schmidt AJ found that paragraph 5.9 when properly read does not affect section 13.3b of AMA5. Schmidt AJ found that the first Appeal Panel did not refer or consider section 13.3b, that is it did not consider whether the appellant had a rateable impairment by reference to the criteria of that section of AMA5.[5]
[5] [85]-[91].
Schmidt AJ also found that the Appeal Panel had not considered whether the appellant’s report of ongoing amnesia and her presentation at Wyong Hospital on the day of her fall and whether the other medical evidence before the first Appeal Panel supported a conclusion that there was “significantly medically verified duration of posttraumatic amnesia”. Her Honour held that the first Appeal Panel did not consider this nor had it explained its reasons for concluding that there was no significant medically verified duration of post-traumatic amnesia.[6]
[6] Tagg at [94].
In the end result, her Honour held that the first Appeal Panel fell into error and hence the orders she made with respect to the first Appeal Panel’s decision regarding Medical Assessor Spittaler’s assessment.
PRELIMINARY REVIEW
The Appeal Panel conducted a preliminary review of the original medical assessment in the absence of the parties and in accordance with the Procedural Direction PIC7.
As a result of that preliminary review, the Appeal Panel determined that the appellant should undergo a further medical examination. This is because the Appeal Panel found, for reasons it will explain below, the MAC did contain a demonstrable error. In order to correct that error the Appeal Panel considered it would need further clinical data and to obtain that data it needed to re-examine the appellant.
The Appeal Panel appointed Medical Assessor Ross Mellick, one of its members, and who is a neurologist, to conduct that re-examination. His report to the Appeal Panel on his examination is set out below.
The Appeal Panel also considered whether it would receive into evidence documents attached to an Application to Admit Late Documents that the appellant filed with the Commission, those documents being the clinical records that the Berkley Vale Private Hospital maintained relating to the appellant. The respondent’s solicitors initially wrote to the Commission advising that it objects to those documents being admitted into evidence but subsequently withdrew that objection. Given that there is no objection to the admission of that material, the Appeal Panel decided to receive it into evidence.
EVIDENCE
The Appeal Panel has before it all the documents that were sent to the Medical Assessor for the original medical assessment and has taken them into account in making this determination.
FINDINGS AND REASONS
The procedures on appeal are contained in s328 of the 1998 Act. The appeal is to be by way of review of the original medical assessment but the review is limited to the grounds of appeal on which the appeal is made.
In Campbelltown City Council v Vegan [2006] NSWCA 284 the Court of Appeal held that the Appeal Panel is obliged to give reasons.
The Appeal Panel agrees with the appellant’s submission that the MAC did not respond to the medical dispute that was referred to Medical Assessor Spittaler to assess, specifically the degree of the appellant’s permanent impairment from her injury, insofar as her injury related to her nervous system. Whilst the Medical Assessor conducted an examination of the appellant and obtained a history from her, which was necessary so as to conduct the assessment, and notwithstanding he considered that the appellant did not meet any of the bullet pointed criteria within paragraph 5.9, he did not make an assessment of the appellant’s permanent impairment from her injury.
Since the MAC does not contain an assessment of the key medical dispute that was referred to Medical Assessor Spittaler to assess, the MAC contains a demonstrable error.
Given that, the Appeal Panel must correct that error. As indicated above it considered it required further clinical data to enable it to do that and required the appellant to be examined by Medical Assessor Mellick to that end. The report Medical Assessor Mellick provided to the Appeal Panel is this:
“Ms Tagg attended my rooms accompanied by her husband, Mr Tagg on 11 July 2024. Ms Tagg informed me at the beginning of history taking that she has no recollection of the injury which occurred on 15 June 2018. She also said she has no memories beginning about 10 days before the injury and continuing for approximately two weeks after the injury.
Her husband, Mr Tagg, was the manager of the racetrack where Ms Tagg was injured. At about 4.00am, before first light, he saw a riderless horse with its saddle on one side and realised the rider must have had an accident. He raised the alarm and additional lighting was put on. He and another racetrack official got into a buggy to find the rider, who was Ms Tagg. He said when they were approaching the “fast sand track” he saw someone lying on the track. As they approached he became aware that Ms Tagg was moving. When he spoke to her, he noted an abrasion on her face involving her nose and the region around her lips, which were also swollen. He observed that she had sand on her face and in her mouth.
Ms Tagg recognised him immediately and she confirms that she remembers this contact. She can recall reaching to touch him with the index and middle fingers of the right hand, and she demonstrated that movement to me, and explained that she made that gesture because of the pain around her mouth when she tried to speak to him.
Mr Tagg rang for an ambulance and while he was doing so the other official who was speaking to Ms Tagg called out ‘she doesn’t want an ambulance’. The person Mr Tagg was talking to on the phone heard this and no ambulance was sent.
Ms Tagg was lifted and carried to the buggy and informed me that she was unable to speak normally because of pain and bruising around her mouth and sand in her mouth. She has recollection of these events.
Mr Tagg was obliged to stay at the racetrack to complete his duties while the other official transported her home. She was assisted to walk inside where there was another person looking after Ms Tagg’s children.
I understand that Mr Tagg returned home after finishing his shift, arriving home at about 8.45am. Ms Tagg was speaking and understanding conversation but bruising and swelling of her lips caused pain when doing so. He took her to Wyong Hospital. She was also then complaining of pain involving her left shoulder.
Mr Tagg told me that when she arrived at the hospital she was taken for scans.
The next contact he made with Ms Tagg was a phone call in the early afternoon when he recalls she was complaining that she was very hungry. He took “hot chips and a chicken burger” to the hospital and during subsequent conversation she suddenly became ‘unconscious’ lying back immobile with her eyes closed. This lasted for about 30 seconds and then she became fully and immediately conscious.
There was a paroxysm of these brief episodes which were described as ‘seizures’ Mr Tagg reported that the nurse there began to panic and raised the alarm. He said a number of doctors rushed to Ms Tagg’s bedside and she was transferred to the Intensive Care Unit.
According to history provided by Mr Tagg and corroborated by Ms Tagg, these episodes continued and later episodes became associated with different motor activity and severe generalised bodily pain causing her to panic. Severe pain now commonly accompanies these episodes.
Ms Tagg described how the episodes felt and now feel, they commonly continue to involve extreme pain associated with screaming because of the pain. She described the pain to involve ‘every single particle of skin and every single bone’. She said the pain is like her ‘bones breaking’. The episodes of screaming she explained occur because she feels extreme panic. She is aware of what is happening and is aware of screaming and of the considerable panic. The episodes sometimes last 10 minutes and on occasions last for as long as 40 minutes at their maximum, they can occur up to seven times a day and on other occasions may occur only once a week. Ms Tagg explained the “seizures” are provoked if she is “overloaded” or stressed.
I enquired what ‘overloaded’ entails and she explained that she tries to “do everything” but ‘cannot’ and feels ‘guilty’ because she tries to pull her weight ‘but cannot’, she then becomes ‘overloaded’, which entails a feeling of being stressed and guilty and seizures then occur with the severe pain.
She made reference to an example of an incident at home recently when she was taking something out of the microwave and forgot it was hot and ‘all the contents went everywhere’. She therefore limits her activities and essentially does “nothing” on a regular and reliable basis other than dressing, toileting and showering. She informed me that she has had her driving licence returned but she does not drive.
Ms Tagg also remarked that the ‘seizures’ can be provoked if there is simply ‘too much happening’ around her. She referred to being overwhelmed by stimuli such as may occur in traffic when driving and ceased driving because of that feeling.
During history taking, Ms Tagg suddenly began to stutter with very long pauses between syllables and words, lasting between 15 and 30 seconds. Nevertheless, her speech was intelligible and appropriate without dysphasic or grammatical errors and she was fully conscious. When the stammering commenced, I curtailed history taking to avoid ‘overloading’ Ms Tagg.
The above description involves history and relevant comment from Ms Tagg about what followed shortly after the fall when she was still where she had fallen.
She also describes the feelings she experiences associated with episodic ‘seizures’. Observations I made during history taking comprise observations relevant to the physical examination and further relevant comment follows below.
The history above was recorded in the presence of Ms Tagg and Mr Tagg with their permission in order to ensure the accuracy of the dictation.
Findings on Physical Examination
On examination, Ms Tagg was alert and cooperative during the entire consultation.
The Cranial nerves were intact and the examination included testing for frontal
lobe abnormalities including the glabellar tap, the pout reflex and the palmo-mental
reflexes.
She walked very slowly with a variable wide based gait and normal ankle dorsiflexion and plantar flexion bilaterally.
I asked Ms Tagg to walk behind a screen to the examination couch and suggested that Mr Tagg walks near to her in case a seizure occurred.
She was assisted to assume the seated position on the examination couch with hips flexed and knees extended. She was able to pull her wide trouser legs up just above her knees and the sleeves of her upper garments above her elbows and exhibited normal fast finger dexterity bilaterally when doing so. I asked her to extend her upper extremities and spread her fingers. She looked at me for a moment as though not fully comprehending and then asked what spreading her fingers meant, after a pause she then spread the fingers of both hands normally but very slowly.
I then requested her to assume the lying position and I tested superficial sensation on her face, anterior cervical region, upper extremities and lower extremities. I found no abnormality of perception of light touch and temperature. The deep modalities of sensation, of proprioception and vibration were also intact in all four extremities.
Muscle tone was normal in both upper and lower extremities and all the deep tendon reflexes were symmetrical and normally brisk. The plantar responses were bilaterally flexor.
When still lying after the above signs were elicited, Ms Tagg suddenly began to shake and cry and when doing so complained that the left side of her body felt ‘strange’. I curtailed the physical examination at that point.
She was immediately distracted and assisted into the seated position with knees flexed over the edge of the examination couch. With distraction, the crying immediately stopped and she explained that she wanted ‘to put weight’ on her left leg” to relieve the abnormal feeling in that leg. She was assisted to stand and after a minute or so she was able to walk to the chair, ambulating slowly but otherwise normally without a wide based gait.
She was then able to assume a seated position and remarked that the phenomenon that had just occurred was an example of the seizures. Mr Tagg confirmed her remarks.
The neurological examination was of necessity somewhat difficult. However, the examination enabled the assessment of Ms Tagg’s alertness, capacity to comprehend and to speak and to assess her sensory and motor function involving power and tone in the upper and lower extremities, complex finger movements, superficial and deep modalities of sensation, the deep tendon reflexes and the Babinski responses. A number of examples of ‘seizures’ were also witnessed. She exhibited no frontal lobe signs.
The neurological examination revealed no abnormal neurological signs.
Investigations
§A CT scan of the brain performed on 15 June 2018 revealed no acute intracranial finding.
§CT scans of the face, cervical spine and shoulder were performed on 17 June 2018. Non-contrast CT scans of the brain revealed no acute intracranial haemorrhage. Grey/white matter differentiation was preserved. The ventricles and extra-axial CSF spaces were within normal limits. No evidence of mass effect or midline shift. Mild left periorbital swelling is noted. No evidence of intra or extracranial haematoma. The visualised perinasal sinuses and mastoid air cells are clear. No skull or facial bone fractures demonstrated.
The cervical spine is in normal alignment. No evidence of acute fracture or dislocation. The atlanto-occipital and atlanto-axial joints are intact. No evidence of paravertebral soft tissue swelling.
There is anteroinferior dislocation of the left shoulder associated with a comminuted fracture of the left greater tubicle. No evidence of cortical breach at the glenoid to suggest fracture.
§An MRI scan of the brain performed on 20 September 2018 was reported to be normal.
§An EEG performed on 30 October 2018 was reported to be normal.
Reference to Documentation
§I have a Discharge Summary from the Wyong Hospital referring to Ms Tagg’s admission on 15 June 2018 and her discharge on 17 June 2018. The history is as follows, ‘Ms Tagg presented after a fall from a horse. She sustained fracture dislocation of left shoulder and multiple bruises in the face. Pan scan showed no other bony injuries…shoulder was reduced in ED and a sling was applied. Her pain was controlled with … morphine and switched to oral analgesics. The orthopaedic team was involved with her care and the plan was to attend a fracture clinic after 2 weeks’. It is noted that no neurological consult was thought necessary nor neurological outpatient attention suggested.
§Reference was made to radiological investigations of the brain, facial bones, cervical spine, left shoulder, chest, abdomen and pelvis. The scans of the brain and facial bones revealed no evidence of intracranial or intracerebral bleeding or other evidence of a brain injury. There was no reference to abnormalities of the cervical spine and cervical scans referred to the absence of evidence of paravertebral soft tissue swelling in the cervical region.
The medication provided while Ms Tagg was in hospital included analgesics and psychotropic medication.
§A report from Prof Robert Heard dated 18 December 2018 addressed to general practitioner, Dr Beckwith, makes reference to seizures and to unremarkable MRI and EEG findings. In the fourth paragraph Prof Heard records ‘it is most unlikely that these are epileptic seizures. Almost certainly they are non-epileptic or dissociative seizures and in this situation it is likely to have developed as a direct consequences of her trauma’. Reference was made to Ms Tagg’s clinical state and he described her then as being ‘highly anxious and tearful today. My impression is that she has developed a significant anxiety state and possibly PTSD’. The opinion of Dr Simon, neurologist in January 2019 is also taken into account in close agreement with Dr Heard’s opinion.
§A report from Dr Ron Granot dated 10 March 2021 records a face-to-face consultation with Ms Tagg on 8 March 2021. He records history from her as follows, ‘she reported a fox ran out and spooked her horse and her saddle slipped causing her to fall to the ground. Ms Tagg does not recall the fall but she refused ambulance assistance and went home’. Dr Granot also refers to amnesia having been present on 15 June 2018 and he continues on page 2 ‘she recalls events about two weeks prior to the event and then has patchy memories of the two weeks leading into the event. She was not clear when her normal memory returned’. He said that she was able to communicate whilst on the ground and indicated that the issue was with her left arm. She was able to walk but needed help to do so. She was taken home by a track attendant. She then went to sleep for a period”.
Dr Granot’s report makes reference to the Discharge Summary from Wyong Hospital covering from 15 to 17 June 2018. A secondary examination there recorded a Glasgow Coma Score of 15 ().
The doctor recorded the physical examination on page 10 and documented no abnormal neurological signs. He commented as follows, ‘apart from the history of the event, she was able to relate almost the entire history, offering her medication list, photo of the accident at the appropriate time. A MOCA test was performed and a score of 28/30 was documented, a normal result being 26 or more’.
In the penultimate paragraph on page 12 Dr Granot writes ‘her pain syndrome is most unusual, being that of widespread whole body pain…There is no physical change to suggest Complex Regional Pain Syndrome…Finally, the so-called seizure episodes I agree do not appear to be epileptiform…It appears indeed that the physical injury has largely resulted in a psychiatric presentation, currently diagnosed as an adjustment disorder by her psychiatrist and a functional disorder neurologically”. Reference is also made to “possible post-traumatic migraine headaches’.
OPINION
History taking and the physical examination was accomplished with a little difficulty because of the nature of Ms Tagg’s condition. However the formal neurological observations were completed adequately and necessary observations duly made and recorded above.
It is clear that the fall caused an impact on Ms Tagg’s face producing bruising and swelling anteriorly particularly around the mouth. At first contact at the place where she fell Ms Tagg recognised her husband and was able to intervene in the telephone conversation which she overheard and indicated forcefully that she did not want an ambulance. She also moved her dominant uninjured right upper extremity purposefully and used her index and middle fingers intentionally to make contact with her husband’s arm. There was no difficulty with her ability to recognise her husband and the other person and to understand and communicate with them. Pain was present in left shoulder impairing her ability to use the left arm extremity. She was not confused and acted positively and purposefully.
This factual information is consistent with the history recorded from Ms Tagg’s history to Dr Granot described above when she reported that she fell from the horse because the horse was ‘spooked’ when a fox ‘ran out’ and her saddle slipped and she fell to the ground.
It is accordingly clear that Ms Tagg was not amnesic for the event causing the fall and was not amnesic because of the fall when first contact was made by her husband and his companion at the site of the fall.
If the Glasgow coma score had been tested then and there, the information available establishes she would more likely than not have scored 4, 5 and 6 as she had done after she had been admitted to the Wyong hospital.
Although at the very beginning of the consultation Ms Tagg told me of lengthy amnesia before and after the fall, that history is not consistent with the history provided later in the interview nor consistent with the neurological evidence relating to this injury.
If amnesia were to have been present at some time in the past it was not organically determined because of physical consequences of brain injury but due to psychologically based causes.
In regard to the epilepsy; the most accurate means of diagnosing pseudo seizures and differentiating them from true epilepsy is for the neurologist to witness the seizures.
Organically determined epilepsy is characterised by multiple recognisable neurological abnormalities for example stereotyped movements, disordered or loss of consciousness and characteristic patterns of motor, sensory or behavioural abnormalities. True epilepsy is also usually associated with some degree of disorientation or confusion when a seizure ceases. Tongue biting and incontinence are characteristic stigmata.
The phenomena observed by the writer during what was described as ‘seizures’ and reported above involved none of the diagnostic stigmata of epilepsy. My observations establish these attacks to be pseudo seizures. The phenomena observed could not have arisen because of a brain injury.
The abnormalities dating from the injury in question should be regarded to be psychologically determined.
The neurological consultation I have conducted included a consideration of all the documents sent including the radiological and EEG evidence and leads to the above conclusion.
The requirements of Clause 5.9, Chapter 5 of the SIRA guides 4th Edition are not satisfied and no permanent whole person impairment is assessable because of the injury which occurred on 15.6.18.”
The Appeal Panel is of the view that Medical Assessor Mellick’s examination of the appellant was thorough and the Appeal Panel adopts the history he detailed in his report to the Appeal Panel and his findings as set out therein from his examination of the appellant.[7]
[7] Coca-Cola Europacific Partners API Pty Ltd v Pombinho [2024] NSWCA 191 at [88].
The Appeal Panel agrees with what Medical Assessor Mellick advised in his report that immediately after the appellant fell from the horse on 15 June 2018 if a Glasgow Coma Score had then been tested she would have scored 15, comprising eyes 4, verbal 5, and motor 6. That is the same score as when it was tested when the appellant was admitted to Wyong Hospital.
The Appeal Panel also considers, based on the history Medical Assessor Mellick recorded in his report to the Appeal Panel, that there is no significantly medically verified duration of post-traumatic amnesia due to a brain injury. Any amnesia the appellant has experienced does not have an organic base, that is it is not due to a physical injury, and specifically her brain injury.
The CT scan of the appellant’s brain, which was done on 15 June 2018, and the MRI scan of her brain done on 20 September 2018 do not reveal any intercranial pathology. There is consequently no CT scan or MRI evidence confirming significant intercranial pathology consequent upon the appellant’s brain injury.
Given that, by reference to the criteria of sections 13.3a, 13.c, 13.3d, 13.3e and 13.3f of AMA5 the appellant’s permanent impairment relating to her nervous system as a consequence of her injury is assessed as 0% WPI.
Further, based on Medical Assessor Mellick’s report to the Appeal Panel, it is apparent that the disturbances the appellant experiences in her consciousness and awareness and arousal function and her disorders of communication are due to her pseudo seizures and are not the result of her brain injury. Consequently, she does not have an episodic neurological impairment that can be rated under section 13.3b of AMA5. That is to say any syncope or loss of awareness, compulsive disorders and arousal and sleep disorders do not result from her brain injury. Consequently, her permanent impairment from her injury is assessed, by reference to the criteria of section 13.3b of AMA5, as also 0% WPI.
Hence, the Appeal Panel corrects the demonstrable error in the MAC by assessing the degree of the appellant’s permanent impairment relating to her nervous system from her injury on 15 June 2018 as 0%.
For these reasons, the Appeal Panel has determined that the MAC issued on
24 August 2022 should be revoked, and a new MAC should be issued. The new certificate is attached to this statement of reasons.
PERSONAL INJURY COMMISSION
APPEAL PANEL
MEDICAL ASSESSMENT CERTIFICATE
Injuries received after 1 January 2002
Matter number: | W5515/21 |
Applicant: | Desiree Tagg |
Respondent: | Partelle Racing Pty Ltd |
This Certificate is issued pursuant to s 328(5) of the Workplace Injury Management and Workers Compensation Act1998.
The Appeal Panel revokes the Medical Assessment Certificate of Medical Assessor Peter Spitttaler and issues this new Medical Assessment Certificate as to the matters set out in the Table below:
Table - whole person impairment (WPI)
| Body Part or system | Date of Injury | Chapter, page and paragraph number in WorkCover Guides | Chapter, page, paragraph, figure and table numbers in AMA 5 Guides | % WPI | Proportion of permanent impairment due to pre-existing injury, abnormality or condition | Sub-total/s % WPI (after any deductions in column 6) |
| Nervous system | 15/6/2018 | Chapter 5 | Chapter 13 | 0% | - | 0% |
| Total % WPI (the Combined Table values of all sub-totals) | 0% | |||||
0
3
0