William Warmisham and Military Rehabilitation and Compensation Commission
[2014] AATA 422
[2014] AATA 422
Division VETERANS' APPEALS DIVISION File Numbers
2012/0541 & 2012/0843
Re
William Warmisham
APPLICANT
And
Military Rehabilitation and Compensation Commission
RESPONDENT
DECISION
Tribunal Deputy President P E Hack SC & Dr M Sullivan, Member
Date 27 June 2014 Place Brisbane In each application, the decision under review is affirmed.
......................[Sgd]..................................................
Deputy President P E Hack SC
CATCHWORDS
COMPENSATION – injury – impairments – reasoning and memory dysfunction – whether multifactorial in cause – headaches – whether impairments in their own right or symptoms of post traumatic stress disorder – reliability of evidence.
LEGISLATION
Compensation (Commonwealth Government Employees) Act 1971 (Cth) s 124(3)
Safety, Rehabilitation and Compensation Act 1988 (Cth) (now repealed) ss 4(1), 14, 145;
Part II Division 4 ss 24 - 28
CASES
Canute v Comcare [2006] HCA 47; (2007) 226 CLR 535
SECONDARY MATERIALS
Guide to the Assessment of the Degree of Permanent Impairment Edition 2.1
REASONS FOR DECISION
Deputy President P E Hack SC
27 June 2014
Introduction
Mr William Warmisham served in the Royal Australian Air Force between 1966 and 1968. In September 1967, whilst Mr Warmisham was asleep in his quarters, two other servicemen assaulted him. The Military Rehabilitation and Compensation Commission has accepted liability to pay him compensation in accordance with the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act) for a number of conditions which the Commission accepts were a consequence of that assault and which satisfy the definition of "injury" in the Act.
In these proceedings Mr Warmisham seeks a review of two decisions of the Commission – one denying liability to pay compensation for permanent impairment in respect of conditions of memory and reasoning dysfunction, the other denying liability to pay compensation for permanent impairment in respect of headaches.
For the reasons that follow we have concluded that the decisions were correct and should be affirmed.
The legislative structure
Some reference is necessary to the legislative scheme. By virtue of s 14, read together with s 145, of the Act, the Commission is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. Section 14 does not quantify the amount of compensation payable. That is done by succeeding provisions in Part II of the Act, in particular, Division 2 of Part II (ss 17 and 18) dealing with compensation for injuries resulting in death, Division 3 of Part II (ss 19 and 20 in particular) dealing with compensation for injuries resulting in incapacity for work and Division 4 (ss 24 to 28) dealing with injuries resulting in impairment. It is necessary only to have regard to the provisions in Division 4 of Part II of the Act.
So far as is presently material s 24 of the Act is in these terms:
(1) Where an injury to an employee results in a permanent impairment, Comcare is liable to pay compensation to the employee in respect of the injury.
(2) For the purpose of determining whether an impairment is permanent, Comcare shall have regard to:
(a)the duration of the impairment;
(b)the likelihood of improvement in the employee’s condition;
(c) whether the employee has undertaken all reasonable rehabilitative treatment for the impairment; and
(d) any other relevant matters.
(3)Subject to this section, the amount of compensation payable to the employee is such amount, as is assessed by Comcare under subsection (4), being an amount not exceeding the maximum amount at the date of the assessment.
(4) The amount assessed by Comcare shall be an amount that is the same percentage of the maximum amount as the percentage determined by Comcare under subsection (5).
(5) Comcare shall determine the degree of permanent impairment of the employee resulting from an injury under the provisions of the approved Guide.
(6) The degree of permanent impairment shall be expressed as a percentage.
…
As has been seen, s 24(5) of the Act refers to "the degree of permanent impairment of the employee". The expression "impairment" is defined in s 4(1) of the Act to mean,
… the loss, the loss of the use, or the damage or malfunction, of any part of the body or of any bodily system or function or part of such system or function.
Section 4(1) defines "permanent" to mean "likely to continue indefinitely". The approved Guide, referred to in s 24(5) of the Act, is subordinate legislation. The parties are agreed that it is Part 2 of the Guide that applies to Mr Warmisham.
In the legislative context it is as well to note that in Canute v Comcare[1] the High Court emphasised that the concept of "an injury" was a “term of pivotal importance in the structure of the Act”. Comcare’s liability (and thus that of the Commission) under s 24(1) of the Act to pay compensation arises with respect to "an injury" which results in "a permanent impairment". Their Honours continued:[2]
At this juncture, three things may be observed about the concept of “an injury”. First, the Act does not oblige Comcare to pay compensation in respect of an employee's impairment; it is liable to pay compensation in respect of “the injury”. Secondly, the term “injury” is not used in the Act in the sense of “workplace accident”. The definition of “injury” is expressed in terms of the resultant effect of an incident or ailment upon the employee's body. Thirdly, the term “injury” is not used in a global sense to describe the general condition of the employee following an incident. The Act refers disjunctively to “disease” or “physical or mental” injuries and, at least to that extent, it assumes that an employee may sustain more than one “injury”. The use in s 24(1) of the indefinite article in the expression “an injury” reinforces that conclusion.
[1][2006] HCA 47; (2007) 226 CLR 535, 539 at [8]. The legislation has since been amended but not in a way that detracts from the force of their Honours’ comments about the structure of the Act.
[2][2006] HCA 47; (2007) 226 CLR 535, 540 at [10].
The factual background
It is common ground that other airmen assaulted Mr Warmisham in September 1967 whilst he was serving in the Air Force. He left the service in 1968. He obtained employment on his discharge and remained in employment (or fulltime study) until about 2000. In 1977 Mr Warmisham married however that marriage came to an end in 1982. He married again in 1988. The parties separated in June 1991 but reconciled in 1996. That marriage finally broke down in April 2002. It will be necessary to return later to the circumstances of that breakdown and whether it had an effect on Mr Warmisham’s mental health.
In 1994 or 1995 Mr Warmisham commenced experiencing seizures. He sought medical attention however they were not of sufficient severity to prevent him from working. In 2000 Mr Warmisham experienced what he described[3] as a "major seizure". His evidence was that he noticed numbness on the right side of his face; he experienced a loss of memory and reasoning capacity together with "sharp, stabbing headaches" in the aftermath of that seizure. In 2002 Mr Warmisham commenced attending upon a psychologist, Mr Neil Crossland. At least initially, he saw Mr Crossland in connection with what he described as his ex-wife's "supposed nervous breakdown"[4] but subsequently, and after the separation in April 2002, he saw Mr Crossland when he had a breakdown and made a suicide attempt in August 2002. He said of that,
I had been taking just masses of seizures. I was in a lot of pain and it was just getting too much for me.[5]
It was an important element of Mr Warmisham’s case that his breakdown and suicide attempt were not the product of any marital discord but were instead the product of an inability "to cope with [the] seizures and headaches and pain and anything any more". [6]
[3]Exhibit 4.
[4]Transcript page 13, line 12.
[5]Transcript page 13, lines 26 – 27.
[6]Transcript page 13, lines 29-41.
It was not entirely clear from Mr Warmisham’s evidence but it seems that the suicide attempt involved setting fire to his wife's clothes. Arising out of this incident he was convicted of arson and incarcerated between April 2003 and January 2004. He says[7] that during the sessions with Mr Crossland a diagnosis of post-traumatic stress disorder was made, a condition said to be a consequence of the assault in September 1967. Surprisingly, there is little information available about the period that Mr Warmisham was in gaol or its impact on him. He does however remain convinced that he was wrongly convicted and seeks to have his conviction quashed. We note, at this juncture, that Mr Warmisham has not been employed since his release from gaol and has described a life marked by invalidity to a serious degree, even requiring the attendance of a carer.
[7]Exhibit 1 (2012/0843), page 29. Exhibit 1 comprises the three sets of sec 37 documents, those relating to application 2012/0541, those relating to application 2012/0843 and supplementary sec 37 documents lodged in application 2012/0541. We will distinguish between the three sets of documents in that way.
Whilst in gaol Mr Warmisham suffered a seizure which resulted in him fracturing his arm. On at least two occasions in 2005 he saw Dr David Banney, a neurologist, at the Royal Brisbane Hospital. Dr Banney's reports of 24 March 2005[8] and 7 July 2005[9] referred to Mr Warmisham having a long history of psychiatric problems with depression and anxiety secondary to post traumatic stress disorder. Dr Banney arranged for an MRI brain scan, which was reported as normal, and for an EEG that had definite epileptic foci. Dr Banney considered the epilepsy to be secondary to the 1967 head injury. He recommended treatment with anti-convulsant medication.
[8]Exhibit 1 (2012/0541), pages 18-21.
[9]Exhibit 1 (2012/0541), pages 22-23.
In December 2007 Mr Warmisham lodged a claim for compensation for conditions described as acquired brain injury, Jacksonian epilepsy, PTSD and spinal injuries, said to have arisen as a consequence of the assault in September 1967.[10] On 7 May 2008 the Commission accepted liability to pay compensation for three conditions it described as acquired brain injury, Jacksonian epilepsy and post traumatic stress disorder.[11] On the same day the Commission rejected claims for compensation for permanent impairment in respect of each of the three conditions on the footing that each of them had become permanent at a time when the Compensation (Commonwealth Government Employees) Act 1971 (Cth) was in force[12], that that Act did not allow for compensation for permanent impairment for such conditions and that, by virtue of s 124(3) of the Act, there was no entitlement to compensation for permanent impairment[13].
[10]Exhibit 1 (2012/0541), pages 24-31.
[11]Exhibit 1 (supplementary), pages 28-29.
[12]The acquired brain injury was considered to have become permanent in 1967, the Jacksonian epilepsy in 1980 and the post traumatic stress disorder in 1968.
[13]Exhibit 1 (supplementary), pages 30-31.
It is also relevant to note that at some time[14] the Commission accepted liability to pay compensation for various back conditions suffered by Mr Warmisham and described as,
·C5/C6 disc degeneration, bilateral foraminal stenosis and spinal stenosis;
·L4/L5 and L5/S1 disc protrusion and S1 nerve root encroachment.
[14]The date of the determination does not emerge from the material however it must have been made prior to 25 November 2011; it is referred to in a determination made that day: see exhibit 1 (2012/0541) at page 180.
On 8 April 2010, following reconsideration, the Commission revoked its decision of 7 May 2008 denying liability to pay compensation for permanent impairment for post-traumatic stress disorder. The Commission, which had earlier determined that the condition had become permanent in 1968, was satisfied that it had become permanent in 2002.[15] In a subsequent determination made on 14 April 2010 the Commission determined that Mr Warmisham had a 25% degree of impairment under Table 5.1 of the Impairment Tables and calculated his entitlement to compensation pursuant to ss 24 and 27 of the Act on that basis.
[15]Exhibit 1 (supplementary), pages 32-34.
It is next relevant to note that on 21 October 2010 the Commission accepted liability, pursuant to s 14 of the Act, for two conditions: (a) muscle contraction tension headaches secondary to depression, anxiety and post traumatic stress disorder; and (b) memory dysfunction as a result of post-traumatic stress disorder.[16]
[16] Exhibit 1 (2012/0541), pages 92- 95.
Thereafter Mr Warmisham made a claim for permanent impairment compensation for the memory dysfunction condition. The claim was refused on 23 February 2011. The Commission determined that there was no liability to pay compensation pursuant to ss 24 and 27 of the Act in respect to the memory dysfunction condition.[17] The delegate was of the view, in light of the opinion of Dr David Rosen, a consultant neurologist, that the memory dysfunction "was a result and symptom of post traumatic stress disorder" and, as such, had been the subject of the determination of 14 April 2010 assessing a 25% permanent impairment for post-traumatic stress disorder.
[17]Exhibit 1 (2012/0541), pages 121-122.
Then on 12 May 2011 the Commission determined to accept liability to pay compensation for a condition it described as "reasoning dysfunction as a result of post traumatic stress disorder".[18] Again Mr Warmisham made a claim for permanent impairment compensation for this condition and again it was refused, on 18 July 2011,[19] on the basis that compensation for permanent impairment had already been paid as part of the 14 April 2000 determination.
[18]Exhibit 1 (2012/0541), pages 133-135.
[19]Exhibit 1 (2012/0541), pages 163-166.
Mr Warmisham sought reconsideration of the 23 February 2011 determination by letter (of his solicitors) of 20 June 2011[20] and of the 18 July 2011 determination by his solicitor’s letter of 13 September 2011.[21]
[20]Exhibit 1 (2012/0541), pages 144-152.
[21]Exhibit 1 (2012/0541), pages 167-176.
On 25 November 2011 the Commission affirmed its earlier decisions on the basis that both memory and reasoning dysfunction were attributable to Mr Warmisham’s psychiatric condition.[22] That decision is the subject matter of application 2012/0546, lodged in the Tribunal on 10 February 2012.
[22]Exhibit 1 (2012/0541), pages 179-188.
In the meantime, on 28 February 2011, the Commission had determined, by reference to Table 13.1 of the Guide, that Mr Warmisham had a 20% permanent impairment attributable to the tension headaches condition and was entitled to compensation accordingly pursuant to ss 24 and 27 of the Act.[23] On 20 May 2011 the Commission varied the determination of 28 February 2011 to assess separately the non-economic loss component of the compensation for permanent impairment for the headaches condition.[24]
[23]Exhibit 1 (2012/0843), pages 149-150.
[24]Exhibit 1 (2012/0843), pages 157-158.
By letter dated 11 August 2011,[25] Mr Warmisham sought reconsideration of the decision of 28 February 2011. He contended that the level of impairment, properly assessed, was 60%. On 22 February 2012 the Commission affirmed the decision of 28 February 2011.[26] That decision is the subject matter of application 2012/0843 lodged in the Tribunal on 1 March 2012.
[25]Exhibit 1 (2012/0843), pages 174-178.
[26] Exhibit 1 (2012/0843), pages 181-188.
The arguments of the parties
The arguments of the parties are set out in detailed written submissions lodged after the hearing. Mr Anforth, counsel for Mr Warmisham, submitted that the memory and reasoning dysfunction (which he described collectively as neurological dysfunctions) were impairments, not injuries in their own right, and were multifactorial in cause. He relied, to a very great extent, on the evidence of Ms Debbie Anderson, a clinical neuropsychologist, to demonstrate that the neurological dysfunctions existed and that they were in part due to each of:
(a)the acquired brain injury;
(b)epilepsy:
(c)post-traumatic stress disorder:
(d)neck and back pain;
(e)depression secondary to post-traumatic stress disorder; and
(f)medication used to treat the various conditions.
Ms Anderson, he submitted, did not identify any cause or contribution that was not an accepted condition. Alternatively, and in reliance on the evidence of Dr Melinda Pascoe, a consultant neurologist, it was submitted that the requisite causal relationship was established if the neurological dysfunctions had been caused in part by post-traumatic stress disorder and secondary depression. And, it was said, we ought to accept Mr Warmisham’s evidence that marital disharmony was not a significant causal factor in the development of depression and neurological dysfunctions.
The neurological dysfunctions ought be assessed by reference to Table 12.4 (Memory) and Table 12.5 (Reasoning) of the Guide. Ms Anderson's assessments of 40% under Table 12.4 and 25% under Table 12.5 ought be accepted.
So far as the headaches were concerned, they were impairments in their own right and not to be subsumed as mere symptoms of post-traumatic stress disorder. Each of the neurologist witnesses (Dr Don Todman, Dr Pascoe and Dr David Rosen) opined that the headaches were in part caused by post-traumatic stress disorder, the secondary depression,[27] the neck pain and medications used.
[27]In Mr Warmisham’s written submissions at paragraph 155 the expression "second depression" is used. We have assumed this is intended to be a reference to secondary depression.
We were urged to accept the evidence of Dr Pascoe and Dr Todman that the headaches warranted an assessment of 60% on Table 13.1 of the Guide and to reject Dr Rosen's assessment of 20% under that Table.
Mr Clark, counsel for the Commission, submitted, by way of a preliminary argument, that having regard to the manner in which the claims were advanced by Mr Warmisham and decided by the Commission, the Tribunal lacked jurisdiction to proceed with the applications on the bases now contended for by Mr Warmisham. He emphasised that the conditions for which the Commission had accepted liability to pay compensation were "memory dysfunction as a result of PTSD", "reasoning dysfunction as a result of PTSD" and "muscular contraction tension headaches secondary to depression, anxiety and PTSD".
But, it was said, if these arguments were not accepted, it is necessary to focus on Mr Warmisham’s credit and reliability. We ought approach assertions affected by him, and opinions based on those assertions, with "a large degree of caution".
As to the substance of the claims, it was said that we could not accept Ms Anderson's evidence over that of specialist neurologists; it was her task to undertake testing and that of the specialist clinicians to comment on diagnosis and causation. We ought to prefer the evidence of Dr Rosen and Dr Ben Duke, a consultant psychiatrist, and conclude that any memory or reasoning dysfunction was attributable to the (non-compensable) depressive condition arising from Mr Warmisham’s marital difficulties. And, in any event, given the wording of the Guide, these deficits had already been taken into account the assessment under Table 5.1 (Psychiatric Conditions) and cannot again be assessed under Table 12.4 and Table 12.5 of the Guide.
As to the headaches, we would prefer the assessment of Dr Rosen (although assigning a 20% level of impairment), particularly in light of the varying descriptions given by Mr Warmisham over time as to his symptoms and their severity.
Consideration
Mr Warmisham’s reliability
As it seems to us, there is considerable force in the Commission's submission that Mr Warmisham’s recounting of his history ought be treated with considerable caution. We have not reached this conclusion lightly. We have done so because of a decidedly unfavourable impression we gained of Mr Warmisham and, more importantly, because of the considerable disconnect between his later recounting of facts and contemporaneous accounts. Additionally, it is evident that his account has altered significantly over time as he has asserted increasing severity of his various ailments. There is, as well, an absence of inherent logic to some of his evidence.
We acknowledge at the outset that impressions of witnesses in the witness box are notoriously unreliable. But where, as here, there is other reason to be cautious, we consider we should give effect to our unfavourable impression. That said, the variation between the present account and the historical account is of considerable significance in a case where the various claimed impairments are not readily capable of objective assessment.
As we have observed, Mr Warmisham was at pains to reject the notion that marital disharmony was a factor in the development of any of his conditions. His evidence was that the marriage breakup was of no consequence; he was, by then, as he put it in his evidence,[28] "sick of that woman" and "clearly disenchanted with that woman". Yet the history given to Dr Jim Rodney, a consultant psychiatrist who saw Mr Warmisham in November 2009 at the request of his solicitors, was in these terms:[29]
Mr Warmisham claims that he was functional and there was no evidence of any psychological difficulties until stresses occurred in his life in 2001. He denied any evidence of Post Traumatic Stress Disorder before this time.…
Mr Warmisham said that this seemed to appear when he was going through difficulties in his life and the stressor appeared to be his marital breakdown. He underwent counselling during that time but it would appear from his history that the features of this illness became more manifest during this stressful time.
In 2002, Mr Warmisham became increasingly depressed; he was having flashbacks about the assault; he had nightmares and intrusive thoughts during the day. He said these were not present before the stress of the marital breakdown. By August 2002, he said he was in a state of severe depression and suicidality. He said he wanted to take his life; he was planning an overdose and his life was in turmoil. Some of this related to the stress of the marital breakup. During this time, he set fire to his house and was eventually charged with arson and he was jailed for a nine-month period in 2003. It was during 2002 that he saw Mr Crossland, Psychologist, who diagnosed him as being depressed and having features of Post Traumatic Stress Disorder.
The depression and the Post Traumatic Stress Disorder have continued throughout the years from 2002 without much change.
When taken to this report in cross-examination Mr Warmisham said:[30]
I'm not saying anything is wrong in fact. I'm saying that it's the way it's written.
Mr Warmisham’s responses to cross-examination on this report were entirely un-convincing. Additionally, what is entirely absent from Dr Rodney's report is any reference to seizures of the severity claimed by Mr Warmisham in his evidence, seizures which, on his case, were of sufficient severity to cause him to have a breakdown and to attempt suicide.[31] It defies logic that such matters would not be recounted to Dr Rodney if they had been of that severity; what Dr Rodney recorded was the stress of the marital breakup.
[28]Transcript page 18, line 15 and line 25.
[29]Exhibit 1 (2012/0541), pages 99-100.
[30]Transcript page 21, line 1-2.
[31]See paragraph [9] above and, generally the transcript at page 13.
Similarly inconsistent with Mr Warmisham’s assertions that the marital difficulties were not stressful are the clinical notes of the Bundaberg Hospital.[32] They record that as recently as October 2008 matters regarding his divorce were stressors for him.
[32]Exhibit 5,
Dr John Flanagan, a consultant psychiatrist, saw Mr Warmisham in April 2008 at the request of the Commission. Again, the history recorded by Dr Flanagan[33] is consistent with the suicide attempt in 2002 being attributable to his ex-wife’s leaving and not to any difficulties occasioned by seizures. Dr Flanagan recorded:[34]
He ended up setting fire to his house. He didn't mean to. He had taken an overdose and was trying to burn some of his wife's clothes. She had just left him. He was trying to commit suicide by an overdose and he was nearly burnt to death.
[33]Exhibit 1 (supplementary), pages 7-27.
[34]Exhibit 1 (supplementary), page 14.
The same is true of the history recorded by Dr Pascoe when she saw Mr Warmisham in September 2009 at the request of his solicitors. She noted:[35]
In 2000 saw Dr N Crossland (Psychologist) for marital difficulties and mental breakdown.
For completeness, we note that in Ms Anderson’s report of 22 June 2009 she records this history:[36]
According to Mr Warmisham in 2002, he experienced a mental breakdown and some of the issues were that he was having conflict with his wife because of his forgetfulness and he felt that nobody was listening to his concerns.
[35] Exhibit 1 (2012/0843) page 94
[36]Exhibit 1 (2012/0541), page 80.
The submissions of the Commission point to inconsistencies in Mr Warmisham’s reporting of the severity and frequency of his headaches. To Dr Pascoe in May 2009 he reported, with the aid of notes he had taken to the consultation,[37]
These notes outlined his headaches that he describes as daily, of variable intensity from mild to very severe affecting all his activities of daily living and associated with disturbed thought processes and remembering.
He reported incapacitating headaches that were present daily and which lasted many hours at a time. Yet to Dr Rosen in February 2011[38] he said that his “main problem" was that he forgot things; he referred to headaches every day but a severe headache approximately every 10 days or so. It seems extraordinary, given his descriptions of the effects of his headaches, that he could describe memory problems, rather than headaches, as his main problem.
[37]Exhibit 1 (2012/0843), page 91 at page 95.
[38]Exhibit 1 (2012/0843), page 130 at page 134.
In June 2011 Mr Warmisham provided material to the Commission in support of his claim for headaches. The material purported to describe the effects of headaches upon Mr Warmisham. Each of Dr Pascoe and Dr Rosen commented on the increase in severity of headaches and the change in symptoms reflected in that document when compared with the history given in 2009. Dr Pascoe said:[39]
I have read Dr Rosen's report, particularly his most recent supplementary report dated June 20th, 2012. I would agree that there are now other symptoms surrounding Mr Warmisham’s headaches that caused the degree of disability afforded to be brought into doubt.
From my perusal of other neurologists’ reports, the discrepancies in degrees of impairment are based on historical data supplied by Mr Warmisham in 2009 and more recently in his notes submitted to support his claim in 2011.
…
Mr Warmisham describes his headaches very fully in his documentation. However the degree of suffering and the severity of these headaches have differed over the years between 2009 and currently and some of the associated features have also changed.
I believe it is the increased severity and other features that has caused assessment of severity of the accepted disability to vary and the question of clear definition and differentiation between different types of chronic headaches to be raised.
…
While some of Mr Warmisham’s symptoms are suggestive of migraine with the periodicity of the headache and the association of light sensitivity which has become a more prominent feature as noted in his most recent documentation, these features were not so apparent in the earlier reports. In addition the late onset of migraine in a male person is very rare and always has to be questioned.
[39]Exhibit 6 at page 2.
Finally we note that the one thing Ms Anderson's testing does demonstrate beyond any question is that Mr Warmisham’s reported perception of his cognitive deficits was completely at variance with what that testing showed. Ms Anderson commented:[40]
At one level Mr Warmisham can be reassured that his cognitive dysfunction does not appear to be as severe as he is concerned that it was.
[40] Exhibit 1 (2012/0541) page 83.
These matters lead us to conclude that we need treat Mr Warmisham’s evidence, and opinions based on histories provided by him, with considerable caution. It may be that Mr Warmisham has managed to persuade himself of the truth of what he says about his symptoms and his history. We need not decide whether that is so. It is sufficient for us to say that we regard him as an unreliable historian.
Memory and reasoning dysfunction
We note, at the outset, that we do not propose to deal with the Commission’s preliminary argument that the Tribunal lacks jurisdiction. We take that course because, on the view we take of the facts, it is unnecessary to decide the point. We will assume, rather than decide, that it is open to Mr Warmisham to advance the case that he does having regard to the descriptions of the conditions that have been accepted by the Commission. The interesting, and somewhat novel, argument of the Commission can be left to be decided on another day.
Mr Warmisham saw Ms Anderson in June 2009. She undertook neuropsychological testing of him. She noted[41] that he
[41]Exhibit 1 (2012/0541), page 80.
… presented as an individual who was very concerned about his symptoms but it was very difficult to establish a clear timeline about their nature and onset.
She concluded,[42]
Mr Warmisham presented as an individual who was convinced that he was experiencing severe cognitive dysfunction although he seemed of the view that his intellect was fairly well preserved.
Formal testing found that his overall level of intellectual function was in fact in the average to above average range, consistent with estimated premorbid level of intellect. However, on the processing speed index his result was an area of relative weakness, suggesting slow speed of information processing. In addition to that, fluctuating concentration was noted across tasks. This interfered with his ability to initially register information, particularly on the verbal tasks, but he demonstrated at least average ability to learn and retain new information, particularly when he either had more time to study the original stimuli or the information was repeated for him.
In terms of higher cognitive functions, subtle difficulties were evident on these tasks. Verbal fluency was low average, problem solving skills on the abstract card sorting test were low average to borderline and moderate impulsivity was noted on one task and lack of cognitive flexibility will is also evident on the Trail Making test.
In terms of everyday function it is very likely that two major factors are contributing to produce the difficulties that have been evident to Mr Warmisham. The first is his reduced cognitive processing speed and the second is his reduced attention and concentration skills. It is likely that he is slower and less efficient to process information in everyday situations, for example during conversations, and this means that he is not able to transfer the information into his memory system so that he can access it later on. This is most likely the cause of his everyday forgetfulness. In addition to that, there were a number of indicators of subtle dysfunction on the measures of higher cognitive function, lack of cognitive flexibility, impulsivity, lack of problem-solving. It is possible that these reflect the effects of cerebral dysfunction, but they may also reflect the effects of fluctuating motivation and concentration on the tasks.
At one level Mr Warmisham can be reassured that his cognitive dysfunction does not appear to be as severe as he is concerned that it was. It is possible that factors such as medication (and I note he was unable to provide me with a complete list) may be interfering with his processing speed and concentration skills and even in terms of higher cognitive function. His mood may also be having an impact on all of these functions, as well as any ongoing seizure activity. This makes it very difficult for me to determine if there is any underlying brain impairment and associated cognitive dysfunction. Unfortunately I can't be unequivocal on this matter which, unfortunately Mr Warmisham was hoping for. He is presenting with only quite subtle cognitive difficulties on this occasion but there are a number of factors that are likely to be contributing to these affecting his cognitive function.
It does appear possible that the frontal lobe atrophy has produced some subtle impairment of executive functions. If this atrophy is the long-term consequence of the initial brain injury, then it may be related, but I cannot be sure.
[42]At pages 83 – 84.
Ms Anderson provided a further report in May 2013[43] in which she was asked to consider the reports of Dr Rosen and Dr Duke. At the outset she noted that she had "been repeatedly asked to provide more detailed opinions on what is now quite old clinical data", the assessment having been undertaken some four years earlier. She also noted the following qualification, one we regard as important:
[43]Exhibit 10.
I also note that the original assessment occurred as the result of a referral from Mr Warmisham’s treating psychiatrist. Thus, it was carried out with a view to providing information of assistance in his treatment, and not answering forensic questions. Thus, my access to his history, and particularly medical opinions was non-existent, and this is not the situation in which I would usually address complex forensic questions. As a result, all comments are offered in retrospect, and I note that I am unable to administer any further tests/procedures in order to address the questions at hand. I have also not been able to review all of the medical reports in order to create a timeline of the presentation of clinical symptoms as I would normally do in a forensic case.
Ms Anderson continued:
The opinion that I have consistently expressed is that given that Mr Warmisham suffers from several diagnoses including: Head injury, Seizure disorder, Bilateral frontal lobe atrophy, Depression and PTSD, as well as being prescribed medications that are capable of impacting on cognitive functions, it is reasonable to conclude that it is more likely than not that his cognitive difficulties are multi-factorial in nature, most likely caused by a combination of these factors.
In my original report I was unable to identify a specific cause of the cognitive deficits. I concluded that since he suffered from several conditions which were all capable of impacting upon cognition, then the presentation was likely to be multi-factorial.
There have been subsequent reports from medical practitioners (Dr Rosen and Dr Duke) that have argued that the cognitive deficits are entirely related to other PTSD or Major Depression. However, they have provided no clear evidence as to why the other factors are not likely to be contributing also.
For example seizure activity and medications can impact upon information processing speed and attention/concentration (as can depression & PTSD).
Thus, I do not wish to change my opinion from that previously expressed. Whilst I have been presented with alternative opinions, it is my view that they have not presented clear evidence as to why the other factors are not likely to be impacting on cognition, as it is well recognised in the modern literature that all of the factors may impact on cognition.
Whilst I have made the following declaration [concerning the duty of an expert witness], I note that as outlined above, my opinions are based on data collected several years ago for a different purpose, and an incomplete file.
Dr Pascoe had a different view. In her initial report of 20 May 2009 she was unable to express a view of the cause of Mr Warmisham’s cognitive impairment and suggested an assessment by a neurophysiologist. Thereafter, and with the benefit of the reports of Dr Rodney and Ms Anderson, she concluded, in her report of 4 January 2010:[44]
In my opinion Mr Warmisham’s cognitive impairment is related to his post traumatic stress disorder. A small contribution from his medications cannot be excluded.
…
With further neuro imaging and in particular the neuropsychological assessment, which is the objective measure over a broad category of neuropsychological testing I am of the opinion that Mr Warmisham does not suffer from a communication, expressive, memory problems or a reasoning disorder related to his neurological injury. The great majority of these problems are related to his post traumatic disorder. There is however clear evidence of some frontal lobe disinhibition that is supported by the neuro imaging showing frontal lobe damage.
[44]Exhibit 1 (2012/0541), page 85 at pages 87 & 88.
Despite the best endeavours of Mr Anforth,[45] Dr Pascoe confirmed in cross-examination[46] that the "fairly emphatic" view she had earlier expressed had not changed except that a small contribution from medications could not be excluded and the frontal lobe atrophy might exacerbate Mr Warmisham’s psychological issues that could then have an impact on cognitive impairment.
[45]Transcript page 33, lines 31 – 38.
[46]Transcript page 38, lines 34 – 46.
Dr Rosen's initial report of 17 February 2011[47] expressed the view that Mr Warmisham’s memory and reasoning dysfunction were secondary to his depression and post-traumatic stress disorder. Dr Rosen said:[48]
It was not possible to get a proper chronological history from Mr Warmisham but for the purposes of later formulating my opinion with regard to Mr Warmisham’s permanent impairment the fact that he worked for a considerable time after the alleged injury and the fact that the neuropsychological testing results cannot reliably determine the cause of his neuropsychological (relatively mild) weaknesses lends more credibility to the argument that by far the most important contributing factor to Mr Warmisham’s disability are psychological rather than neurological and in due course his degree of permanent impairment should be assessed according to psychiatric and not neurological principles.
In his evidence, Dr Rosen was asked to comment on the other factors suggested by Ms Anderson as possible causes of the memory and reasoning dysfunction. He considered that the long delay between the head injury in 1997 and the onset of cognitive impairment meant that it was unlikely that there was any connection between them.[49] So far as the possible contribution of "seizure disorder" was concerned, he did not think it could contribute to memory and reasoning dysfunction given the results of the EEG, a view shared by Dr Pascoe. Dr Rosen did not consider that the available evidence demonstrated that there was properly a diagnosis of frontal lobe atrophy to be made. He accepted that medications could contribute to cognitive impairment.
[47]Exhibit 1 (2012/0541), page 110 at page 117.
[48]At page 113.
[49]Transcript page 86, lines 26-40.
Thus both neurologists,[50] Dr Pascoe and Dr Rosen, consider that the most likely cause of Mr Warmisham’s memory and reasoning impairment is psychiatric in nature, with a possible contribution from medication. We turn then to consider the evidence of Dr Duke who saw Mr Warmisham in May 2012. In his report of 6 June 2012[51] Dr Duke records this history:
[50]Dr Todman’s evidence seems to have been limited to commenting on Mr Warmisham’s headaches.
[51]Exhibit 8 at pages 3-4.
In the period of time between 2000 and 2002 Mr Warmisham experienced the onset of symptoms of posttraumatic stress disorder related to the assault that occurred in 1967. This onset of symptoms occurred in the context of significant marital disharmony that resulted in his separation and ultimate divorce from his wife of the time, and was also associated with significant depression. Mr Warmisham reports that since this time he has had ongoing problems with psychiatric symptoms and cognitive impairment.
Serial assessments of his cognitive function over the last 10 years have demonstrated no objective impairment of his cognitive function. These assessments have included mini mental status examinations performed by Dr Banning [sic], a neurologist, and Dr Ringrose, a general physician. In addition he has had extensive neuropsychological testing performed by Ms Debbie Anderson, a clinical neuropsychologist. Her report of 22 June 2009 indicates an IQ score of 108 with no differences in verbal and performance results. She did note a relative weakness in processing speed and problems with concentration, but that there was no evidence of overall loss of intellectual functioning. She identified the possibility of a number of factors contributing to these relative weaknesses, and it is the interpretation of these findings that appears to be causing the disagreement in opinion.
Subsequent reports by neurologists and psychiatrists attribute the cognitive impairment to his posttraumatic stress disorder.
Mr Warmisham reports that since the onset of marital difficulties around 2000 he has had ongoing problems with episodes of depressed mood. He reports two admissions to the Bundaberg Base Hospital for depression and suicidality. He reports having received treatment from the psychologist, Mr Neil Crossland, as well as a psychiatrist, Dr West, from the local public mental health service. Various medical specialist reports indicate that at times over the last 10 years he has been on the antidepressant citalopram and doses of up to 60 mg per day for the management of his depression. There is some discrepancy in the duration of time that he was receiving treatment from the psychologist, with a report from Dr Ringrose indicating that this had been occurring for approximately 10 years, whereas Mr Warmisham reports that it was at most six years. Unfortunately, I have not been provided with a report from either Mr Crossland or Dr West, and I believe that it is the lack of provision of a report by Mr Crossland that led to Mr Warmisham ceasing treatment with him. Reports from both Dr Ring Rose (general physician) and Dr Rodney (psychiatrist) have both noted ongoing problems with depression when Mr Warmisham was seen by them.
Informed by that history Dr Duke reached these conclusions on diagnosis and cause:
I believe that Mr Warmisham is suffering from a number of psychological conditions. The first of these is a posttraumatic stress disorder of delayed onset, but the symptoms of this appear to be causing minimal functional impairment. Of greater significance is his recurrent major depressive disorder, which appears to have been ongoing and at varying levels of severity since approximately 2000. This illness appears to have arisen in the context of marital discord and break up, and despite two hospital admissions early in the course he appears to have been poorly treated over the last 10 years. In part this poor treatment can be attributed to Mr Warmisham’s poor compliance with prescribed antidepressant medications, as well as a desire to manage his difficulties on his own without assistance. His depression appears to be contributing significantly to his ongoing levels of impairment.
…
It is my opinion that Mr Warmisham’s memory dysfunction can most appropriately be attributed as a symptom of his recurrent major depression. He reports that prior to 2000 he had no difficulties with his memory, and the ongoing difficulties that he describes appear to fluctuate in response to stressors and his mood state. It is also relevant to note that his subject perception of memory impairment is disproportionate in relation to the objective assessment performed by the neuropsychologist. This is a common finding in people with depression.
…
For much the same reasons as outlined above, it is my opinion that his reasoning dysfunction can be most appropriately attributed to his recurrent major depressive disorder. Diminished ability to think or concentrate, or indecisiveness, is one of the defining symptoms of a major depressive disorder. I think that it is much more likely that his perceived cognitive dysfunction (of both memory and reasoning) can be attributed to his depression rather than to his post-traumatic stress disorder. Post-traumatic stress disorder tends to be characterised by re-experiencing phenomena, avoidance and sympathetic arousal, not by impaired cognitive functioning. In addition Mr Warmisham’s current PTSD symptomatology appears to be quite minor, whereas his depressive symptomatology appears to be quite significant.
Dr Duke observed that the major depression was essentially untreated and that he anticipated that with appropriate treatment both the depression and the associated memory and reasoning dysfunction would significantly improve.
We intend no disrespect to Ms Anderson, but we prefer the evidence of the medical specialists. As the Commission’s submissions point out, her evidence really goes no further than saying that other factors may or could be causative of Mr Warmisham’s memory and reasoning dysfunctions. It is unnecessary to decide whether Ms Anderson is expressing opinions outside her area of expertise. But, as her later report made clear, and as she herself noted,[52] the setting in which her reports were provided was suboptimal. She was not privy to a complete history, even a history of Mr Warmisham’s medications, she had no access to contemporary medical records and she was relying upon tests undertaken some years ago in a treatment, rather than a forensic, setting. The evidence of Dr Pascoe and Dr Rosen satisfies us that the cause of Mr Warmisham’s memory and reasoning dysfunction was psychiatric, subject only to the question of the effect of medications.
[52]Transcript page 106, line 19.
There is controversy over the characterisation of the memory and reasoning dysfunction in the injury/disease dichotomy in the Act. Mr Warmisham submits that it amounts to an injury simpliciter; the Commission submits it is a disease. In other circumstances it might be necessary to decide that question in order to consider the differing statutory tests for causation. But, so far as the impact of medication is concerned, we need not decide the issue. That is so because the evidence did not satisfy us that medications have, in fact, played a role or, indeed, that medications associated with Mr Warmisham’s accepted conditions, have played a role. Dr Pascoe's evidence was that "the drug treatment… may be a contributor"[53] [emphasis added]. Dr Rosen, having referred to the particular medication as prescribed to Mr Warmisham, put the matter no higher than that those medications
…can cause or can contribute to cognitive dysfunction or cognitive weakness or cognitive impairment.[54]
The evidence, in any event, leaves us uncertain of the nature and extent of the medications actually taken by Mr Warmisham.
[53]Transcript page 33, lines 35-36.
[54]Transcript page 88, lines 33 – 38.
Thus, on the view we take of the evidence, the dysfunctions are psychiatric in origin. We were impressed with the evidence of Dr Duke as to the particular psychiatric cause of the dysfunctions. His evidence satisfies us that it is Mr Warmisham’s untreated depression rather than his post-traumatic stress disorder that has brought about any memory or reasoning dysfunction. His analysis of the earlier psychiatric history provides a compelling logic for preferring depression to post-traumatic stress disorder as the cause. Moreover, as he pointed out, the matters of which Mr Warmisham complains are classically symptoms of depression rather than post-traumatic stress disorder.
We do not accept, as Mr Warmisham’s submissions assert,[55] that Dr Duke "reverse[d] his position" from the views he originally expressed about the relationship between Mr Warmisham’s post traumatic stress disorder and his marital disharmony. And we reject the submission[56] that Dr Duke "accepted that the principal cause of the depression was the compensable PTSD". The following passage of Dr Duke's evidence sets out his opinions quite clearly:[57]
What about the late onset PTSD, did it play a role in the development of the major depression?---It can but none of the evidence that I’ve seen from the various reports that have been made available to me, and at all from the history provided by Mr Warmisham, suggests the symptoms of the PTSD were particularly severe at any stage. The history given to me by Mr Warmisham suggests that it wasn’t until he became depressed that he started seeking help. And certainly the notes from Dr West through the outpatient contact that he had with Mr Warmisham through the Bundaberg Hospital suggests that the PTSD symptoms were only mild and were never a focus of the treatment that was being provided. So although it’s possible to develop depression as a result of the PTSD symptoms, it’s normally the result of a more severe level of symptomatology than Mr Warmisham appears to have been suffering from.
We are not aware of any evidence where Dr Duke accepted that post-traumatic stress disorder had been the cause of Mr Warmisham’s depression and none was referred to in the submissions in support of the proposition.
[55]At paragraph 57.
[56]At paragraphs 125 and 152.
[57] Transcript page 75, lines 19-31.
In the result, and whether the condition be regarded as an injury simpliciter or a disease, we are of the view that the condition is attributable to Mr Warmisham’s untreated depression. We are well short of being satisfied that it has any foundation in his service in the Royal Australian Air Force. It follows that we are not satisfied that the Commission is liable to pay Mr Warmisham compensation pursuant to s 24 of the Act in respect of this condition. The decision under review in application 2012/0541 will be affirmed.
Headaches
The critical issue here is the level of permanent impairment. It is common ground that the assessment of the degree of permanent impairment is to be undertaken by reference to Table 13.1 of the Guide.
In January 2010 Dr Pascoe noted this history from Mr Warmisham:[58]
On history Mr Warmisham reports that his headaches are incapacitating for him. They are present daily and last many hours at a time. I would therefore assess his level of impairment at 60%.
Subsequently, she was provided with Mr Warmisham’s detailed statement which, she acknowledged, showed a "deterioration since [the] report in 2009".[59] It is a concerning aspect of her original assessment that she did not regard it necessary to alter that assessment of 60%.
[58] Exhibit 1(2012/0843) page 98 at page 101.
[59]Exhibit 6, page 3.
Dr Todman also assessed the level of impairment. He saw Mr Warmisham in June 2011 and recorded this history:[60]
[60]Exhibit 1 (2012/0843), page 166 at page 169.
Mr Warmisham is still experiencing frequent headaches. These are a daily occurrence and have a variety of characteristics. He has a constant pain which is like a tight band around his head which fluctuates in severity. They are present from waking in the morning until late at night. More severe headaches occur at least 2 to 3 days per week.
At times he has throbbing pain that is also associated with nausea, light sensitivity and occasional vomiting. At times he also has visual blurring or wavy lines in front of his vision, particularly on the left side of his visual fields.
There is chronic neck pain and a number of headaches are localised in the occipital region of the head. These are aggravated by neck movements. Overall his headaches are aggravated by stress and tension. When more severe headaches occur he has to be very still and lie in a dark room.
For treatment he is taking analgesics. He has been prescribed Oxycontin and Endone but tries to reduce these as much as possible. He is also on Primidone and Lyrica as well as an anti-depressant.
Dr Todman concluded[61]:
[Mr Warmisham] has post-traumatic headaches which are related to his service.…
The post-traumatic headaches have a variety of manifestations. The most common feature is a chronic tension type headache syndrome. This is also known as muscle contraction headache. They are related to his service condition including the direct head trauma as well is trauma to the cervical spine and also secondary to his depressive disorder and post-traumatic stress condition. Nonetheless this headache condition is a stand-alone diagnosis and fulfils the International Headache Society criteria for this condition.
At times the headaches have other characteristics including throbbing pain, nausea, light sensitivity and a visual aura. These are migraine features and are also post-traumatic in nature. The same triggering factors related to his service are also pertinent to this headache subtype.
Thirdly there is also an element of analgesic overuse headache syndrome. Mr Warmisham is aware of this and is doing his best to reduce the amount of Oxycontin and other strong analgesics. However this is a difficult problem as he also requires pain relief for other conditions including his cervical and lumbar spine problems.
There is a permanent impairment referable to this post-traumatic headache syndrome. From Table 13.1, this is 60% whole person impairment, that is, attacks occupy up to 60% of the time and cause significant interferences with most activities of daily living other than self-care.
[61]Exhibit 1 (2012/0843), page 166 at page 169.
As is apparent, and on the history given to him, Dr Todman concluded that Mr Warmisham suffered from headaches with "migraine features", a conclusion we are unable to accept.
Dr Rosen saw Mr Warmisham in February 2011. As we have already noted, Mr Warmisham, on that occasion, described his habit of forgetting things as his "main problem", and described headaches as being the secondary problem. He gave a history in these terms:[62]
The second symptom is headaches of variable severity, exacerbated by difficulties with concentration, for instance when he forgets things his headaches tend to get worse. The headaches are non-specific and in a variable location. He quotes a medical report that he cannot quite remember and states "there is a slowing of electrical flow and one side is calcifying and there is…something atrophy". He states that the headache "might be" bi- frontal or unilateral or global and sometimes related to the neck and is associated with stabbing and sharp pains and occasionally nausea, sometimes some slight sensitivity to light and during a headache he tries to keep still. He states that he has a headache every day but a severe headache approximately every 10 days or so.
Dr Rosen assessed a degree of permanent impairment of 20%.
[62]Exhibit 1 (2012/0843), page 130 at page 134.
In his subsequent report of 9 July 2000[63] Dr Rosen said:
The description of his headaches that Mr Warmisham gave me in February 2011 is quite different to the statement that he made in June of the same year. Here the headaches are described more precisely and taken together with a statement of his son provide a picture of more severe and more constant headaches corresponding to a level of disability far higher than 20% had more in keeping with the estimates of Dr Todman and Dr Pascoe in their reports.
However, as stated above, the definition of tension headache requires mild or moderate headache and, Mr Warmisham’s description of severe headache does not correspond to tension headaches and, therefore, must be some other headache type.
That latter comment referred to Dr Rosen's observation that Mr Warmisham’s description of his headaches was inconsistent with the accepted definition of chronic tension-type headaches.
[63]Exhibit 9 at page 6.
This passage of evidence highlights our particular concern on this aspect of the matter – the reliability of Mr Warmisham. We have already expressed our reservations about his reliability; we need not repeat what we have said. However there is a marked variation in the severity of symptoms as described in February 2011 and as described some four months later in June 2011. We need not consider whether Dr Rosen's assessment is correct.
Ultimately, we take the view that there is no reliable evidence that satisfies us that it is appropriate to vary the assessment of the degree of impairment already made. It is trite that there is no onus in proceedings in the Tribunal but it is for Mr Warmisham to demonstrate why a different decision should be made. Having regard to our general dissatisfaction with his evidence, and the concern we have as to the reliability of the assessments made by Dr Pascoe and Dr Todman for the reasons we have expressed and because of our concern about the reliability of the history as given to them, we are not satisfied that any different decision is warranted.
It follows that the decision in application 2012/0843 should be affirmed.
I certify that the preceding 60 (sixty) paragraphs are a true copy of the reasons for the decision herein of Deputy President P E Hack SC .......................[Sgd].................................................
Associate
Dated 27 June 2014
Dates of hearing 28 & 29 January 2014 Date final submissions received 19 March 2014 Counsel for the Applicant Mr A Anforth Solicitors for the Applicant Watt & Severin Counsel for the Respondent Mr CJ Clark Solicitors for the Respondent Australian Government Solicitor
0
1
0