Wright and Comcare
[2003] AATA 1331
•23 December 2003
Administrative
Appeals
Tribunal
DECISION AND REASONS FOR DECISION [2003] AATA 1331
ADMINISTRATIVE APPEALS TRIBUNAL )
) No Q2001/826 and Q2002/943
GENERAL ADMINISTRATIVE DIVISION ) Re MICHELLE MARY WRIGHT Applicant
And
COMCARE
Respondent
DECISION
Tribunal Mr R G Kenny, Member Date23 December 2003
PlaceBrisbane
Decision The Tribunal affirms the decisions under review. ....................(Sgd).....................
R G Kenny
Member
CATCHWORDS
WORKERS’ COMPENSATION – temporary aggravation of underlying temporal lobe epilepsy – relationship to employment – aggravation not permanent – memory loss not an injury or disease under sub-section 4(1) –– relationship of any memory loss to compensable condition – memory loss an injury under sub-section 6A(2) – medical treatment with Dilantin – unintended consequence of treatment - any such memory loss not permanent – lump sum compensation for permanent impairment not payable
Safety, Rehabilitation and Compensation Act 1988 s 4, 6, 6A, 14, 24, 27, 28
Comcare v Houghton (2003) 37 AAR 138
Re Eaton and Comcare (2002) 67 ALD 182
Re Price-Beck and Department of Veterans’ Affairs [2003] AATA 386
Repatriation Commission v Brown (1990) 12 AAR 253REASONS FOR DECISION
23 December 2003 Mr R G Kenny, Member Background
1. Michelle Mary Wright (the applicant) was born on 26 September 1970 and served in the Australian Army from 7 August 1991 until December 1998. On 8 December 1998, she lodged a claim for rehabilitation and compensation in respect of temporal lobe epilepsy on the basis of circumstances that arose during her military service. On 26 July 1999, a delegate of the Military Compensation and Rehabilitation Service (MCRS) rejected the claim. On 13 July 2001, another delegate of MCRS varied that decision by accepting liability for temporary aggravation of temporal lobe epilepsy but determined that the applicant did not suffer from permanent impairment as a result of that condition and that no amount was payable to her in respect of permanent impairment. On 13 September 2001, the applicant sought review by the Administrative Appeals Tribunal (the Tribunal) of that reviewable decision.
2. On 13 May 2002, the applicant lodged a claim for rehabilitation and compensation in respect of memory loss on the basis that this condition was related to her accepted condition of temporal lobe epilepsy. That claim was rejected by a delegate of MCRS and that decision was affirmed on 8 October 2002. On 1 November 2002, the applicant sought review by the Tribunal of that reviewable decision.
Hearing
3. At the hearing, the applicant was represented by Ms K Cochrane of Counsel. Comcare (the respondent) was represented by Mr C Clark of Counsel. The following materials were taken into evidence:
§Exhibit 1 - documents prepared in accordance with section 37 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) – (the T documents: Q2001/826 - T1 to T16);
§Exhibit 2 - documents prepared in accordance with section 37 of the AAT Act (T documents: Q2002/943 – T1 to T32);
§Exhibit 3 – a record, dated 11 January 1999, of the applicant’s Army service;
§Exhibit 4 - a medical report, dated 13 May 2003, from Dr Don Todman, Neurologist;
§Exhibit 5 - a further report, dated 27 May 2003, from Dr Todman;
§Exhibit 6 - a statement, dated 21 June 2002, from the applicant;
§Exhibit 7 - a further statement, dated 16 November 2003, from the applicant;
§Exhibit 8 - a further statement, dated 16 November 2003, from the applicant;
§Exhibit 9 - a medical report, dated 17 January 2002, from Dr Peter Landy, Consultant Neurologist;
§Exhibit 10 - a further report, dated 16 May 2002, from Dr Landy;
§Exhibit 11 - a further report, dated 14 January 2003, from Dr Landy;
§Exhibit 12 - a further report, dated 16 May 2003, from Dr Landy;
§Exhibit 13 - various clinical notes relating to the applicant; and
§Exhibit 14 - a statement, dated 9 July 2003, by John Wright.
4. The issue for the Tribunal to determine in relation to application Q2001/826 is whether or not the condition for which the respondent has accepted liability, that is, a temporary aggravation of temporal lobe epilepsy, has resulted in permanent impairment such that compensation is payable to her under sections 24 and 27 of the Safety, Rehabilitation and Compensation Act 1988 (the Act).
5. In relation to application Q2002/943, the Tribunal must determine whether memory loss constitutes an injury or disease as defined in sub-section 4(1) of the Act, whether or not the applicant suffers from any such memory loss, whether any such memory loss is related to the condition for which the respondent has accepted liability such that the respondent is liable to pay compensation for impairment in accordance with section 14 of the Act and, if so, whether any such memory loss has resulted in permanent impairment in accordance with sections 24 and 27 of the Act.
6. In relation to application Q2002/943, the Tribunal must also determine whether or not memory loss constitutes an injury in accordance with section 6A of the Act, whether or not the applicant suffers from any such memory loss, whether any such injury is an unintended consequence of treatment paid for by the Commonwealth which resulted in impairment in accordance with section 14 of the Act and, if so, whether any such memory loss has resulted in permanent impairment in accordance with sections 24 and 27 of the Act.
7. Relevant to the determination of those matters are the following provisions of the Act:
“4(1) In this Act, unless the contrary intention appears: …
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development); …
disease means:
(a) any ailment suffered by an employee; or
(b) the aggravation of any such ailment;
being an ailment or an aggravation that was contributed to in a material degree by the employee's employment by the Commonwealth or a licensed corporation; …
injury means:
(a) a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, being a physical or mental injury arising out of, or in the course of, the employee's employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee's employment), being an aggravation that arose out of, or in the course of, that employment;
but does not include any such disease, injury or aggravation suffered by an employee as a result of reasonable disciplinary action taken against the employee or failure by the employee to obtain a promotion, transfer or benefit in connection with his or her employment;
…
6A(1) This section applies to the following employees:
(a)members of the Defence Force;
(b)members of the Air Training Corps established under section 8 of the Air Force Act 1923;
(c)members of the Australian Cadet Corps established under section 62 of the Defence Act 1903;
(d)members of the Naval Reserve Cadets established under section 38 of the Naval Defence Act 1910;
(e)persons declared by the Minister under subsection 5(6A).
(2) If, at any time, whether before, on, or after, 1 December 1988:
(a)an employee to whom this section applies received or receives medical treatment paid for by the Commonwealth; and
(b)as an unintended consequence of that treatment the person suffered or suffers an injury;
the injury to the employee is taken to have arisen out of, or in the course of, the person's employment, whether or not the person has remained an employee to whom this section applies.
(3) Subsection (2) applies whether or not the original condition that was being treated was compensable under this Act.
…
14(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment
…
24(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.
(7) Subject to section 25, if:
(a)the employee has a permanent impairment other than a hearing loss; and
(b)Comcare determines that the degree of permanent impairment is less than 10%;
an amount of compensation is not payable to the employee under this section.
(7A) Subject to section 25, if:
(a)the employee has a permanent impairment that is a hearing loss; and
(b)Comcare determines that the binaural hearing loss suffered by the employee is less than 5%;
an amount of compensation is not payable to the employee under this section.
(8) Subsection (7) does not apply to any one or more of the following:
(a)the impairment constituted by the loss, or the loss of the use, of a finger;
(b)the impairment constituted by the loss, or the loss of the use, of a toe;
(c)the impairment constituted by the loss of the sense of taste;
(d)the impairment constituted by the loss of the sense of smell.
(9) For the purposes of this section, the maximum amount is $80,000.
…
27(1) Where an injury to an employee results in a permanent impairment and compensation is payable in respect of the injury under section 24, Comcare is liable to pay additional compensation in accordance with this section to the employee in respect of that injury for any non-economic loss suffered by the employee as a result of that injury or impairment.
(2) The amount of compensation is an amount assessed by Comcare under the formula:
[$15,000 X A] + [$15,000 X B ]
where:
A is the percentage finally determined by Comcare under section 24 to be the degree of permanent impairment of the employee; and
B is the percentage determined by Comcare under the approved Guide to be the degree of non-economic loss suffered by the employee.
(3) This section does not apply in relation to a permanent impairment commencing before 1 December 1988 unless an application for compensation for non-economic loss in relation to that impairment has been made before the date of introduction of the Bill for the Act that inserted this subsection.
28(1) Comcare may, from time to time, prepare a written document, to be called the ‘Guide to the Assessment of the Degree of Permanent Impairment’, setting out:
(a)criteria by reference to which the degree of the permanent impairment of an employee resulting from an injury shall be determined;
(b)criteria by reference to which the degree of non-economic loss suffered by an employee as a result of an injury or impairment shall be determined; and
(c)methods by which the degree of permanent impairment and the degree of non-economic loss, as determined under those criteria, shall be expressed as a percentage.”
8. The applicant’s Army service commenced on 7 August 1991 with period of recruit training at Kapooka. This lasted until 17 December 1991. She then served a further period as a Corps trainee with the Royal Australian Electrical and Mechanical Engineers Training Centre (RAEME) which was followed by a period to January 1994 when she worked with the Australian Defence Force Helicopter School as a clerk.
9. The applicant described her basic training at Kapooka as physically demanding with activities such as forced marches, swimming, running, completing basic fitness tests, rifle shooting, maintaining equipment and undertaking obstacle course procedures. She said that she was not as fit as many of the other recruits which meant that, from time to time, she would lag behind on manoeuvres such as long marches with the result that the platoon would need to “back up” to collect her. She said that she felt that she was under constant psychological pressure to perform and to be a “team player” and that, because of the team mentality, there was a strong disincentive to making complaint about minor medical problems because this would lead to ridicule by other members of the platoon.
10. The applicant said that, while completing an obstacle course during recruit training, probably in September 1991, she fell from an A frame to the ground, a distance of some two to three metres, landing on her right side and striking the right side of her head on the wooden frame. She said that she felt dazed but was not aware of whether or not she was concussed at the time. She thought there may have been a bruise on her head and perhaps a lump but she said this could not be seen because of her long hair. She said that she picked herself up and continued and made no complaint because of her concern at being ridiculed by others. She said that this was the only head injury she had in the whole of the whole of her life.
11. The applicant said that she had not suffered from any epileptic seizures prior to enlisting in the Army and that she suffered the first seizure when she was at the helicopter school. She went to see Dr Adam Black on 19 February 1993 and he organised for her to have a CT scan and referred her to Neurologist, Dr Colin Andrews who arranged for her to undergo an EEG procedure. She said that Dr Andrews, diagnosed temporal lob epilepsy and prescribed Tegratol. She said that she took this for only a short time because of side-effects she experienced in the form of tiredness and that she was then prescribed Dilantin which she continued to take for a period of two to three years. She said that she was not advised of any side-effects this medication might have but that, subsequently, she learned that Dilantin caused memory loss and that, in 1998 because she felt that she was experiencing such loss, her medication was changed to Epilim. She said that she no longer takes medication which she ceased in about February 1999. She said that she becomes aware of the pending onset of a seizure and is able to take protective measures and she felt that the triggers for these seizures were stressful situations, computer usage and physical activity.
12. The applicant was referred to medical reports from Dr Black, Dr Andrews, Dr Gorman, Dr Todman and Dr Landy for varying references as to the timing of onset of her symptoms. She accepted that Dr Black and Dr Andrews, in their reports of February 1993 (Exhibit 1 -T4/50) and March 1993 (Exhibit 1 -T4/47), respectively, had each referred to a period of eighteen months over which she had suffered from symptoms described by Dr Black as “strange sensations” and by Dr Andrews as “episodes of olfactory hallucinations”. However, she said that the timeframe they referred to was not correct and that she had only been experiencing those symptoms for about twelve months at that time. She said she had not calculated time in any considered way when she was speaking to Dr Black or Dr Andrews and had simply guessed at the timeframe. The applicant also agreed that Dr Gorman, in his report of 12 July 1999, had recorded her as having seizures which were most severe during 1992 while she was undergoing her active initial obstacle and elementary courses at Kapooka (Q2001/826 -T9/63). She also accepted that Dr Gorman had referred to her as having these “funny feelings” prior to the fall in recruit training but she denied this was a correct history and said that, while she had seizures in 1992, this was after she had completed her basic Kapooka training. She also said she had never had them prior to the fall at Kapooka. She also accepted that Dr Todman, in his report of 4 April 2001, had referred to her as having epileptic attacks in late 1992 and 1993 (Exhibit 1- T13(a)/74). However, again, she said that this was not a correct record as they had begun in early 1992. The applicant was also referred to Dr Landy’s report of 17 January 2002 where she was described as having her first episode of seizure in late 1992 and where she is quoted as stating that she did “not have a clue” as to when the first occurrence was (Exhibit 9). She said that Dr Landy had incorrectly recorded the timing of her first seizure.
13. The applicant said that, since she had seen these practitioners, she had taken the opportunity to peruse her medical records and that, from these, she was better able to provide guidance as to when it was that she began to have her seizures.
14. The applicant said that she had not told Dr Andrews or Dr Black that she had suffered a trauma to her head and this was because she had not been asked about such an event. She said that one of the neurologists she had seen years later advised her that head trauma might be responsible for epilepsy and it was then that she realised the relevance of what had occurred at Kapooka. The applicant agreed that her referral to Dr Andrews had occurred in closer proximity to the event at Kapooka which was the only time in her life she had bumped her head. She said that she thought Dr Andrews did not ask her about any head trauma and that, at that stage, she was not aware that head trauma could be a cause of epilepsy.
15. The applicant was referred to Dr Todman’s report where he described her fall from the obstacle, a distance of two to three metres, with the point of impact being the “frontal region” of her head (Exhibit 1- T13(a)/74). She said this was not a correct record of what she had told him because she had told him that she had struck her head on the right side above the temple.
16. The applicant was referred to her statement (Exhibit 8) where she described the bump on her head and where she made no reference to effects such as being dazed. The applicant agreed that this was the case and said that, at that time, she was not aware of how detailed the statement needed to be and that she had received no legal advice at that point.
17. The applicant conceded that there were occasions when she went to the Regimental Aid Post (RAP) for medical treatment for conditions while she was at Kapooka and that these included a sore chest, influenza, a burn on her arm, back pain and blisters. She said that, with some of these, such as the burn and the blisters, she had been directed to go to the RAP by the platoon corporal but conceded, with the other matters, she had attended voluntarily. Nevertheless, she maintained that, if she had gone to the RAP in relation to the bump on her head, she would have been ridiculed as it would have been seen as a means of trying to reduce her activity level. She also said that she did not feel the need to go to the RAP in relation to what happened in the fall and she said that she did not consider the head injury as being relevant until much later when she was asked a question about previous head trauma. She also said that she had attempted to shut out much of what had happened at Kapooka because they were unpleasant memories.
18. In relation to her memory loss, the applicant said that she first became aware of it when her partner made reference to it in 1998 and she said that, shortly thereafter, her Dilantin medication was changed. However, she said this change to her medication had not resulted in any improvement and she said that her memory loss is continuing and manifests itself in the need for her to prepare lists of activities that she needs to do so that she is reminded of things and the timing of her activities. In particular, she said that she has needed to keep a careful diary for the feeding of her children and, in relation to utilising devices such as the oven, she doesn’t move away unless she turns them off. This is because she forgets that she had left them on. She said that she had forgotten her recent wedding anniversary although she conceded that her husband had also forgotten that event on the same day. She said that the condition had affected her socially in that she was no longer able to play card games or maintain any kind of exercise regime because of the effects that it may have on the triggering of seizures.
Other Evidence at the Hearing
John Wright
19. Mr Wright is the applicant’s husband. He said that there was no apparent pattern to the applicant’s presentation of seizures and that they occurred sporadically and would appear to be related to stressful activities, computer work and physical activity. He said that he considered that the frequency and duration of the condition was getting worse over the years. In relation to memory loss, he said that the applicant lives her life by following lists and timetables and that she avoids activities such as washing the children because of the prospect of her having a seizure while they are in the water. He said that, when he is away from home, he frequently phones to check on her and he often follows her when she is undertaking activities to ensure that things are done correctly.
Dr Adam Black
20. The reports of Dr Black, dated 19 February 1993 (Exhibit 1-T4/49 and 50), record the applicant’s complaints of “strange sensations” for the previous twelve to eighteen months with intermittent bouts of strange aura followed by olfactory hallucinations and occasional bouts of auditory hallucinations, often with strange chest “feelings” which lasted for a few seconds at a time. Dr Black referred the applicant to neurologist Dr Andrews.
Dr Colin Andrews
21. Dr Andrews prepared a report on 2 March 1993 (Exhibit 1- T4/47) where, again, an eighteen month history is recorded. No reference is made in that report to head trauma and it is noted that “stress” was thought to be a trigger in some cases. In his oral evidence, Dr Andrews said that he had been practising as a neurologist for some thirty years and, in a consultation with a patient with epilepsy, it was his usual practice and, indeed, “basic stuff”, to ask about potential triggering mechanisms such as infections or trauma to the head. He said he would have asked the applicant that question when he saw her in 1993 and that, if she had said there had been such a trauma, he would have noted it in his report.
22. Dr Andrews said that, in order for head trauma to be responsible for epilepsy, it had to be severe enough to bruise the brain and would normally be associated with a prolonged period of loss of consciousness and that symptoms would last for some weeks. He said that, if a fall of the kind the applicant had was to trigger an epileptic seizure, it would do so at the time and that it would be self-limiting rather than an ongoing or permanent situation. He also said that stressful circumstances may trigger an epileptic fit but that this, again, would be only a temporary manifestation.
23. In relation to Dilantin, Dr Andrews said that he had prescribed this medication and that tests showed that the applicant was receiving dosage in the middle of the therapeutic range. He said that this was 40 to 80 and that she measured 60 on that scale. He said that, at that level, Dilantin would not be responsible for memory loss and that such a loss would only happen if high levels of Dilantin were ingested. He also said that, if Dilantin is discontinued, there would be an end to any memory loss unless the person had been on an extended high dose for a period of over two years. He said that the potential for memory loss was a well known phenomenon amongst medical practitioners as a result of taking Dilantin in those doses.
Dr Don Todman
24. Dr Todman has practised as a neurologist for fifteen years. He said that the applicant had an underlying condition of left temporal lobe epilepsy which was due to an inherent abnormality. He said that he was aware that the applicant had suffered a fall of two to three metres from the obstacle at Kapooka and he considered that this was likely to be a trigger for subsequent seizures. He said the severity of the head injury would be relevant in determining whether or not it would cause seizures with a less severe injury placing a person at lower risk. He said that some 60% of patients would experience a seizure within twelve months of an injury. Dr Todman considered that a person may have an underlying abnormality, as demonstrated in various kinds of tests, and yet not suffer from any seizures so that the presence of the underlying condition did not inevitably mean that seizures would be experienced. He said that, if a person experienced a seizure, the question of whether he/she would return to a seizure-free state would depend entirely on the individual’s constitution and also the medication regimen which was implemented. He said that, because of the applicant’s underlying condition, she was vulnerable to epilepsy which was triggered by an event, in this case, the head injury. He said this amounted to an aggravation of the underlying condition and that this had resulted in permanent effects because the seizures had continued.
25. Dr Todman said he assessed the applicant as being incapacitated to the level of 10% in accordance with Australian Medical Association Guidelines although he conceded he had not utilised the terms of the Approved Guide in making any assessment of the applicant.
26. In relation to memory loss, Dr Todman said this could be related either to the aggravation of the underlying abnormality of the applicant or to the medication she took in the form of Dilantin. He said that recurrent seizures could cause further aggravation of the temporal lobe abnormality with consequential cognitive dysfunction, a part of that being memory loss. Dr Todman was referred to a report of Senior Compensation Medical Adviser, Dr Ian Smith, who, on 2 July 2002, expressed the opinion that memory loss was not a feature of Dilantin usage at therapeutic levels (Exhibit 2- T25). Dr Todman said he did not agree with this conclusion and considered all people were potentially capable of experiencing cognitive impairment, including memory loss, even without high doses of the medication. He said the reason for giving the medication was to control the seizures and he described the memory loss as an unwanted side effect of the medication. He said he normally warns his patients of the prospect of memory loss where Dilantin is prescribed. He said that he considered the applicant’s memory loss to be permanent and he assessed the incapacity level at 10% although, again, he conceded that he had not consulted any of the Tables in the Approved Guide for making that assessment.
27. In cross-examination, Dr Todman agreed that the taking of an accurate history was an important process in determining the cause of epilepsy in a patient. He agreed that he had described the head injury experienced by the applicant as being a “significant” one with headaches and dizziness being experienced thereafter. He also agreed that, in his report, he had described the point of impact as being the frontal region of her head rather than the right side of the head above the temple. He conceded that an underlying temporal lobe abnormality could become overt with seizures spontaneously, that is, without a trigger and he also said that he considered that the continuing experiencing of seizures could aggravate the underling abnormality. In relation to Dilantin, he confirmed that it was not necessary for high doses to be taken in order for memory loss to result but conceded that, if the medication ceased, memory should improve.
28. Dr Todman said that, in determining whether or not the applicant suffered from memory loss he was relying upon the history she gave of her own understanding of this. He agreed that it was possible for various forms of neuropsychological testing to be conducted so that the loss could be objectively measured and said that he was not aware that any such testing had been done in the applicant’s case.
Dr David Gorman
29. Dr Gorman saw the applicant in June 1999. He described himself as a chronic pain specialist with training as a general physician. In his report dated 12 July 1999 (Exhibit 1- T9), he set out the applicant’s account of the history of the seizures and, in his evidence, confirmed that this had been correctly recorded. Dr Gorman said that it was critically important to get an accurate history when interviewing a potential epilepsy patient and that he would have done this as his usual practice in the applicant’s case. In his report, he said the applicant’s seizures were most severe during 1992 when she was having very active initial obstacle and elementary course training at Kapooka. He also recorded that she had a fall at Kapooka where she hit her head, that she was not unconscious, that she did not have a laceration but had “funny feelings” and that these later turned out to be seizures. He also recorded that she told him that she had seizures prior to the fall.
30. Dr Gorman said that, where a person has an underlying mental lobe abnormality, seizures could be triggered by a range of things such as dehydration, sleep deprivation or stress as well as physical activity but he said that the seizures would not make the underlying condition any worse. He said that, in order for trauma of the head to manifest itself in seizures, there would need to be a blow of strength akin to one which would cause concussion.
31. Dr Gorman said that the recurrence of seizures would only affect the severity of the underlying condition if the strength of the seizures was such as to cause a hypoxia which he described as being present when neurones die and the patient experiences the phenomenon of turning blue with a significant respiratory effect. He said that, in the absence of these quite profound seizures, there would be no change to the underlying condition.
32. In relation to medication, Dr Gorman said Dilantin can cause memory loss but that this is not permanent in that, once the medication is discontinued, things would return to normal.
Dr Peter Landy
33. Dr Landy said that he had practised as a consultant neurologist for fifty years, had examined the applicant on 17 January 2002 and had produced four reports. He said that he did not believe the head injury experienced by the applicant had been responsible for the first seizure because it had occurred some six to eight months after the fall from the A frame. He said that, if the trauma were to be responsible, the seizure would have occurred immediately. He also said that, in order for trauma to the head to trigger a seizure, it would need to be a severe injury with some brain damage and that it would not be triggered by minor trauma. He said that, if a person has an underlying abnormality, there would not need to be a triggering event for a seizure to occur in that it may simply become active and, once this happened, it would be more likely to result in further seizures.
34. In relation to Dilantin, Dr Landy agreed that it can cause memory loss and that this was a known side effect of the drug but he added that, once the medication ceases, any memory loss would also cease. He said that he agreed with the comments of Dr Smith that Dilantin would not cause memory loss if taken at therapeutic levels and said that only if it was taken at high levels would that occur. In his report of 14 January 2003 (Exhibit 11), Dr Landy said he had been treating epileptic patients for fifty years and it was only in the case of a severe recurrent chronic epileptic who did not respond to treatment that memory impairment has been found. He said that Dilantin was a very old drug which had been used successfully for many years and any contribution it makes to memory impairment is temporary. He said memory improves when the medication ceases or is reduced.
35. Dr Landy said that, in order to determine whether a person was suffering from memory loss, there would need to be some objective testing by neuropsychomatic means and he said that this was the normal and accepted method of determining whether a person suffered from memory loss. He said he had not seen any evidence of memory loss in dealing with the applicant.
Submissions
36. For the applicant, Ms Cochrane submitted that the aggravation of the applicant’s underlying temporal lobe abnormality was a permanent condition and that seizures had been continuing since they first occurred in early 1992. She submitted that incorrect chronologies had been taken by several of the medical practitioners in this case and that regard should be had to the evidence as given by the applicant to determine what those timeframes actually were. She submitted that reliance should also be placed on the evidence of Dr Todman to show that the blow to her head was the trigger for the aggravation of the condition and as to its permanent status. She submitted that the level of permanent impairment was as indicated in Dr Todman’s report and this should be relied upon even though he had not consulted the Approved Guide.
37. Ms Cochrane submitted that the applicant’s memory loss was either a sequela of the aggravation of the epilepsy or an unintended consequence of treatment provided by the Commonwealth and therefore an injury in accordance with sub-section 6A(2) of the Act. She submitted that memory loss was not an inevitable outcome of the Dilantin medication as there was evidence that it may or may not cause memory loss depending on the make-up of the individual. Nevertheless, she submitted that it was an unintended consequence of the treatment and therefore an injury which fell within the terms of section 6A of the Act.
38. For the respondent, Mr Clark submitted that reliance should not be placed upon the evidence of the applicant because of its unreliability. He referred to the varying dates that had been given to various doctors about the history of her condition and to the late realisation by the applicant of the need to establish that she had suffered a head injury and that this was sufficient to cause her epilepsy.
39. He referred to the report of Dr Landy where the applicant is described as saying she did “not have a clue” when she had her first episode of a seizure. He submitted that Dr Andrews, in following his usual practice, would have asked the applicant about a history of head trauma and that, as no such record appeared in his report, a negative response must have been provided by the applicant.
40. Mr Clark conceded that aggravation of the underlying constitutional condition in the applicant had been accepted but that the effects of this were only temporary. He submitted that reliance should be placed on the reports of Dr Andrews, Dr Gorman and Dr Landy in that regard rather than that of Dr Todman who had relied upon a flawed history in relation to the degree of head trauma which the applicant had suffered.
41. Mr Clark submitted there was no evidence that the applicant’s memory loss, to the extent there was any, was permanent or related to her accepted aggravation of her underlying condition. He also submitted that the temporary nature of any memory loss the applicant suffered precluded it from being compensable under section 24 of the Act even in the event that sub-section 6A of the Act was satisfied.
Consideration
Q2001/826: Epilepsy and Permanent Impairment
42. It is not disputed in this case that the applicant, whilst in the Army, had an underlying abnormality of the temporal lobe and that she began to experience seizures. The respondent has accepted liability in respect of the temporary aggravation of epilepsy.. In the reviewable decision of 13 July 2001, it was determined that circumstances of the applicant’s service made her temporal lobe epilepsy worse for a period but that this constituted only temporary rather than permanent aggravation.
43. While the decision about acceptance of temporary aggravation as being related to employment is not in issue before the Tribunal, it is not at all clear from the medical evidence that circumstances of the applicant’s service were responsible for the aggravation of her epilepsy. The only component of service which has been specifically identified as being of potential relevance to the aggravation of the applicant’s epileptic condition is a blow to her head when she fell from the A frame during her recruit training at Kapooka. The evidence of Dr Andrews, Dr Gorman and Dr Landy was to the effect that only a severe level of trauma to the head would be sufficient to manifest itself in epileptic seizures. The applicant said that the fall was one which left her feeling that she did not need to go to the RAP and that is consistent with her description of the injury. She described herself as feeling “dazed” and also said that there was a bruise and some swelling but that this could not be seen because of her long hair. She also gave evidence that, on joining the Army, her hair was cut short and then re-cut frequently so that it did not grow any more than two centimetres in length. In that situation, it is difficult to see how the length of her hair would have hidden any bruising or swelling. I do not accept the applicant’s evidence that she was fearful of attending the RAP because she would be discriminated against or ridiculed by her peers. The clinical notes associated with her period in the Army show that she did attend for medical treatment from time to time for relatively minor matters. I am satisfied she did not attend the RAP after the fall because, in her own words, she “didn’t feel the need to go in relation to her head”.
44. Dr Todman expressed the opinion that the blow to the head would have triggered epilepsy but, clearly, he was relying for his opinion on the history given by the applicant as to the circumstances of her fall. I am satisfied that the historical basis which he relied upon was not accurate. He referred to the applicant as receiving a significant blow which was to the front of her head rather than to the side. He also expressed the view that the reason for the applicant not reporting the condition to her superiors was because of the intensity of the training. As noted above, I am satisfied the applicant did not report the matter because it was not one which was significant at the time. In that regard, I have noted the evidence of Dr Andrews who saw the applicant in 1993. His evidence was that he would have asked the applicant about trauma to the head. I accept his evidence in that regard and am satisfied that the applicant did not tell him of a bump to the head at Kapooka.
45. While I accept that the applicant received a blow to the side of her head in 1991 while she was training at Kapooka, I am satisfied that this was not severe and did not involve the degree of trauma which is sufficient to meet the descriptions given by Dr Andrews, Dr Gorman or Dr Landy as being necessary pre-conditions to the onset of epileptic seizure.
46. Nevertheless, the respondent has accepted liability for aggravation of the applicant’s epilepsy but has determined the effects of that were temporary rather than permanent and therefore non-compensable in accordance with sub-section 24(1) of the Act.
47. The evidence of Dr Gorman and Dr Landy was that the seizures experienced by the applicant constituted the natural progression of a pre-existing or underlying temporal lobe abnormality from which the applicant suffered. Dr Landy was of the opinion that the applicant’s service was not responsible for the underlying condition and that, to the extent that there were any employment-related factors leading to an aggravation of the condition, these were temporary rather than permanent. He said that lack of sleep and exercise can precipitate a seizure in a person who is already suffering from seizures but these would have ceased when the applicant was discharged from the Army.
48. I am satisfied the applicant did not experience symptoms of her epilepsy prior to 1992 and, in that regard, Dr Gorman has relied upon an incorrect history when he has recounted the background to the applicant’s presentation of symptoms. Nevertheless, in his report he has indicated that physical activity and stress could increase the frequency of seizures. However, he also expressed the opinion that these would cease when she finished work and were not permanent in nature. In that sense, I am satisfied his opinion is in concurrence with that of Dr Landy.
49. Dr Andrews also said that, if the applicant’s fall had triggered an epileptic seizure, the effects would be self-limiting rather than ongoing or permanent.
50. Dr Todman’s evidence was that the condition in the applicant was not temporary in nature because she still suffers from it. I accept that the applicant has an underlying temporal lobe abnormality which may well be permanent. However, Dr Gorman, Dr Landy and Dr Andrews were all of the opinion that the circumstances of the applicant’s service did not permanently aggravate that underlying condition and I accept their evidence that any aggravation was temporary in nature. On that basis, the respondent is not liable to compensate the applicant for permanent impairment in respect of her epilepsy.
Q2002/943: Memory Loss and Epilepsy
51. In relation to memory loss, there was evidence from Dr Landy and Dr Todman that testing procedures are available to ascertain, in an objective manner, whether or not a person suffers from memory loss. The evidence is that no such testing has been conducted on the applicant. Dr Landy said that he saw nothing to indicate that the applicant suffered from memory loss. Dr Todman referred to the applicant’s memory loss but was merely relying on her statements to him in that regard. In the absence of tests to indicate whether this phenomenon exists in the applicant, I am not able to make a finding in that regard or, indeed, whether memory loss constitutes a discrete disease or injury as those terms are defined in sub-section 4(1) of the Act. However, from what follows it will be seen that, even if the condition is present in the applicant and is a disease or injury as defined, I am satisfied that it is not related to her employment per medium of her accepted condition of temporary aggravation of temporal lobe epilepsy.
52. In relation to whether memory loss is a sequela of the applicant’s epilepsy, Dr Todman stated in his report of 3 June 2002 (Exhibit 2- T27/48):
“Recurring epileptic seizures may affect memory. It is common for a degree of short term memory loss to occur after a seizure and this may last from minutes to some hours. If numerous seizures occur or in the situation of uncontrolled epilepsy, there may be further aggravation of the memory problem of a more prolonged nature.
When seen in April 2001, Ms Wright had been off all medication for epilepsy. Nonetheless, the problem with memory had continued. I indicated in my previous report that the memory impairment was likely to be in part related to a temporal lobe abnormality, possibly medial temporal sclerosis. The effect of medication would have aggravated this. There may be alternative medications such as Lamietal which are less likely to cause memory problems and which would be mote suitable for her treatment.
Both the memory problem and epilepsy are developed at the same time. It is likely, therefore, that there is a single cause and medial temporal sclerosis would be the most likely explanation…”
53. As I read that report, Dr Todman is relying upon the underlying pre-existing condition as the basis for memory loss. That condition has not been accepted as being related to service. Rather, it was the temporary aggravation of that through some aspect of service which was accepted. It is conceded by the applicant that the underlying condition was not service-related and, therefore, any memory loss which is related to that underlying condition cannot be related to the applicant’s employment.
54. Dr Landy referred to the effects of epileptic seizures on memory in the following way (Exhibit 12):
“Very frequent recurring seizures may effect memory. A short degree of confusion may occur after a seizure, but usually only lasts some minutes.
I would agree that if numerous seizures occur in a situation of uncontrolled epilepsy there may be further aggravation of memory. However, there is no evidence that Ms Wright is continuing to suffer numerous uncontrolled epileptic seizures. She has been consulting a neurologist and is not on any treatment.”
55. I accept Dr Landy’s evidence that the applicant did not suffer from uncontrolled epilepsy and I am satisfied that any memory loss from which she may have suffered and which could be attributed to the seizures was temporary in nature and, therefore, not compensable under sections 24 or 27 of the Act.
Q2002/943: Memory Loss and Medication
56. Section 6A of the Act is set out above. It applies to the applicant if she received medical treatment paid for by the Commonwealth and if, as an unintended consequence of that treatment, she suffered an injury. In that situation, the injury is taken to have arisen out of, or in the course of, her employment and the respondent will be liable to compensate her for associated impairment in accordance with section 14 of the Act and, in the event that impairment is permanent, under sections 24 and 27 of the Act.
57. In the Federal Court decision of Comcare v Houghton (2003) 37 AAR 138, the proper construction of section 6A of the Act was considered by Lindgren J. There, the employee was diagnosed as having a right intracanalicular acoustic neuroma which was removed in a surgical procedure described as a sub-occipital craniotomy. The condition was not related to the applicant’s employment and, after the surgery, he had lost hearing in the right ear. There was evidence that the loss of hearing was almost an inevitable consequence of the surgical procedure. In that case, the treatment was paid for by the Commonwealth and the Tribunal had determined that the hearing loss was an injury, as that term is defined is sub-section 4(1) of the Act, and that such injury was an unintended consequence of the medical treatment given. In so finding, the Tribunal had concluded that an “unintended consequence” for the purposes of section 6A of the Act was a consequence that was not “desired, sought or aimed for by the operating surgeons”. On appeal, Lindgren J set the decision aside and remitted it for determination by the Tribunal.
58. In Comcare v Houghton, Lindgren J said that, according to subsection 6A(2) of the Act, it is the suffering of an "injury", rather than any ongoing impairment, which is referred to as the unintended consequence of the medical treatment and his Honour said that the scheme expressed in the Act involves the following:
§there must be medical treatment paid for by the Commonwealth (subsection 6A(2)(a));
§there must be the unintended consequential suffering of an injury (subsection 6A(2)(b));
§there must be resultant impairment (subsection 14(1)).
Clearly, in an appropriate case, there might also be resultant permanent impairment as provided for in section 24 of the Act.
59. In relation to the first of those matters, I am satisfied that the applicant received medical treatment in the form of ingestion of Dilantin and that this was treatment paid for by the Commonwealth in respect of her epilepsy. Only the temporary aggravation of her epilepsy rather than the underlying condition has been accepted by the respondent under the Act. However, subsection 6A(3) of the Act provides that subsection 6A(2) thereof is applicable whether or not the original condition that was being treated was compensable under the Act.
60. In relation to the term “injury”, as it is used in sub-section 6A(2) of the Act, Lindgren J held that it does not take its meaning from the definition of “injury” in subsection 4(1) of the Act. His Honour referred to the distinction in sub-section 14(1) of the Act between an “injury” and the “impairment” which results from the injury. In relation to the term “injury”, his Honour said:
“The word ‘injury’ has a wide meaning. Hill J considered the meaning of the word as it occurred in the Veterans' Entitlements Act 1986 (Cth) in Repatriation Commission v Brown (1990) 12 AAR 253 at 257--259, and concluded that it signified the suffering of some harm. In that case, his Honour was concerned with the grinding down of two healthy teeth to near the gum line in order to provide the foundation for the fitting of a bridge. Hill J thought that, regarded in isolation, the two healthy teeth might be seen to have been injured by being ground down, but that properly viewed, the grinding down was not harmful but beneficial. Accordingly, his Honour held that the grinding down itself did not constitute an ‘injury’..”
61. On the facts of Comcare v Houghton, Lindgren J was unable to determine whether there had been an injury because the Tribunal had not made the necessary findings in that regard.
62. The meaning of “injury” in section 6A of the Act was also dealt with by the Tribunal in Re Price-Beck and Department of Veterans’ Affairs [2003] AATA 386. There, the Tribunal applied the meaning ascribed to the term in Comcare v Houghton and also noted that the term “injury”, unlike the definition in subsection 4(1) of the Act, did not extend to a disease. In that case, the employee suffered a recurring infection in his tooth as a result of the failure of root canal therapy which had been performed in the Commonwealth’s service some years earlier. As a result of the infection, the tooth was removed. The Tribunal held that the infection from which the applicant suffered did not constitute an “injury” for the purposes of sub-section 6A(2) of the Act.
63. The Concise Oxford Dictionary gives the following meaning of “injury”:
“…wrongful action or treatment; harm, damage…”
64. That meaning is consistent with the interpretation in Repatriation Commission v Brown, referred to by Lindgren J in Comcare v Houghton (above). In paragraph 50, above, I left open the matter of whether the applicant suffers from memory loss because of an absence of evidence on that matter. I also made no finding on whether memory loss is a disease or injury for the purposes of subsection 4(1) of the Act. However, for the purposes of applying section 6A of the Act, I am satisfied that any memory loss from which the applicant has suffered is a form of harm which would constitute an injury for the purposes of that provision.
65. In Comcare v Houghton (above), Lindgren J also made reference to the approach which the Tribunal had adopted in relation to the meaning of the term “unintended consequences” in subsection 6A(2) of the Act. His Honour noted that the Tribunal had declined to follow the construction adopted by the Tribunal in Re Eaton and Comcare (2002) 67 ALD 182. In Re Eaton and Comcare, the Tribunal determined that, an unintended consequence will be one which is:
(a)not desired or aimed for or designed by the provider of the medical treatment; and
(b)not a likely consequence of the medical treatment.
66. The Tribunal in Houghton’s case had adopted a broader interpretation and concluded that an unintended consequence was one which was not desired, sought or aimed for by the operating surgeons. In the Federal Court, Lindgren J refrained from expressing an opinion on the meaning of “unintended” or “unintended consequences” in sub-section 6A(2) of the Act because it was not necessary to do so for the resolution of the appeal. However, his Honour said (at 146):
“I need go only so far as to say that in my opinion subs 6A(2) does not encompass an injury which was, and was always known to be, an unavoidable direct consequence of the medical treatment, albeit one which those administering the treatment did not positively desire, seek or aim to produce. Yet this appears to be the meaning attributed to the word ‘unintended’ by the Tribunal.”
67. As I read that opinion, it is not inconsistent with the approach adopted by the Tribunal in Re Eaton and Comcare and I have decided to adopt the construction utilised by the Tribunal in that case. Accordingly, an unintended consequence in subsection 6A(2) of the Act is one that is not desired, aimed for or designed by the provider of the medical treatment and which is not a likely consequence of the medical treatment.
68. Dr Todman made reference to the applicant’s medication regime and referred to the potential of this to affect her memory. He said that memory loss was a common problem with Dilantin. However, he concluded (Exhibit 2- T27/49) that the applicant’s epilepsy and her memory loss had a single cause and that the most likely explanation was medial temporal sclerosis. As I understand his evidence, he attributes any memory loss in the applicant to the underlying seizure disorder rather than to the effect of the medication. The evidence of Dr Andrews, Dr Landy, Dr Smith and Dr Gorman was that, when taken at therapeutic levels, Dilantin will not cause memory loss or, if it does, this would be reversed when ingestion of the drug ceases. I am satisfied that the applicant’s ingestion of Dilantin was at therapeutic levels and I accept the medical evidence that this was not sufficient to result in memory loss. On that basis, the respondent is not liable to compensate the applicant for impairment in respect of any memory loss that she may have under sections 14, 24 or 27 of the Act.
69. In any event, if the applicant suffered memory loss as a result of the ingestion of Dilantin, I am satisfied that it would have been a temporary phenomenon which would have ceased with the cessation of the drug. I am also satisfied that any such memory loss was not an outcome desired, aimed for or designed by the provider of the medical treatment but that it would have been an outcome which was a known side-effect of the usage of Dilantin. That was the evidence of all of the specialists and, as such, a likely consequence of the medical treatment. This means that it would not fall within the ambit of section 6A of the Act.
Decision
70. The Tribunal affirms the decisions under review.
I certify that the 70 preceding paragraphs are a true copy of the reasons for the decision herein of Mr R G Kenny, Member
Signed: Sarah Oliver
AssociateDates of Hearing 13 and 14 November 2003
Date of Decision 23 December 2003
Counsel for the Applicant Ms K Cochrane
Solicitor for the Applicant D'Arcys
Counsel for the Respondent Mr C J Clark
Solicitor for the Respondent Australian Government Solicitor
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