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Accident Compensation Cases

Bennett v Accident Compensation Corporation (DC, 16/05/11)

Judgment Text

RESERVED JUDGEMENT OF JUDGE M J BEATTIE 
Judge M J Beattie
[1]
The issue in this appeal arises from the respondent's decision of 9 September 2005, whereby it determined that the appellant was not entitled to weekly compensation on the grounds that his cessation of employment in January 1995, by reason of his medical condition, was not as a consequence of his covered personal injury. In essence, it is the respondent's assertion that the appellant's incapacity was not caused by the head injury he had suffered in August 1993. 
[2]
It is the case that the question of the appellant's incapacity associated with his personal injury of 1993 has already been through the review and appeal procedure, resulting in a decision delivered by me on 18 December 2003 (Decision 331/03) whereby I determined on the basis of the evidence then presented that the claimed incapacitating medical condition associated with cluster headaches had not been caused by the head injury suffered by the appellant in August 1993, as there was clear evidence that the appellant was already experiencing those headaches some year or so before the 1993 injuring event. 
[3]
In paragraph [16] of my decision I stated as follows: 
“In summary then I find that the appellant's headaches are not attributable to his covered injury, but nevertheless he has impaired cerebral function which is attributable to his head injury but that the consequences of that impaired cerebral function are yet to be determined or whether any such consequence can be found to give rise to an entitlement. ”
[4]
It was subsequent to that decision that the respondent sought further medical opinion from Dr Greg Finucane, Consultant Psychologist, and then issued its further decision that the appellant's incapacity was not attributable to his covered injury. 
[5]
It is the case that for the purposes of the earlier appeal to this Court, Counsel for the Appellant had obtained a medical report from Dr Gil Newburn, Neuropsychiatrist, and whilst in that earlier decision I did not accept Dr Newburn's advice as to a causative nexus between the appellant's cluster headaches and his covered injury, I did identify and accept Dr Newburn's opinion that the appellant was suffering impaired cerebral function which was attributable to the head injury. Dr Newburn's advice on this aspect, as contained in his medical report of 23 June 2003, stated as follows: 
“I did carry out some additional testing procedures, as there is no evidence that they were carried out by Ms Kersel, or any of the neurologists who have examined Mr Bennett. Thus, there are problems seen with motor planning both right and left sides, more marked in the upper limbs. There is also a disturbance in postural reflexes. There is a disturbance in visuomotor sequencing. He demonstrates a right palmomental reflex. These are significant findings. In particular, it is not possible to fabricate symptoms such as palmomental reflex, and these must be taken as clear findings consistent with impaired cerebral function. ”
[6]
For the purposes of this present appeal further medical reports have been introduced from Dr Newburn, principally the reports dated 15 February 2006 and 11 February 2009, the former being introduced for the purposes of the review hearing, and the latter being introduced for the purposes of this appeaL 
[7]
At this point I must also identify a potential jurisdictional problem and this problem has arisen as a consequence of the further reports of Dr Newburn and where, for the first time, it is asserted that the appellant did in fact suffer ongoing consequences as a result of a head injury suffered by him in February 1992, and which head injury was suffered as the consequence of an assault. 
[8]
It is the case that the appellant did obtain cover for that head injury, but it is equally the case that after some medical treatment from his GP, no further claims were made in relation to that cover, and the appellant continued in his, employment as a storeman employed by Fletcher Steel. I will return to this jurisdictional issue later in this decision. 
[9]
The relevant background facts are that on 17 August 1993 the appellant was struck on the back of the head by a heavy lifting hook which had broken free during the lifting of a steel plate. The appellant received a laceration to his skull and was granted cover. The appellant was off work for a few days following that injury and received medical treatment from his GP. He returned to work within a week and continued in full-time employment with Fletcher Steel until the week-ending 4 February 1995. 
[10]
It is the case that the appellant ceased physically working at Fletcher Steel in February 1995, but advice from Fletcher Steel was that it kept his job open for him until August 1995 when his final pay was calculated and he was paid out. 
[11]
It seems to be the case that the appellant thereupon went on a WINZ benefit but the precise nature of that benefit has not been advised to the Court. 
[12]
It is also the case that subsequent to the appellant ceasing his employment with Fletcher Steel, he suffered a back injury which required surgical treatment, and it is also the case that he was severely affected, as might be expected, when his 12 year old son was killed in a motor accident later in 1995. 
[13]
With those facts as a background, it is the case that no psychological assessment was undertaken until April 1999 when the appellant was seen and assessed by Dr Denyse Kersel, registered psychologist. 
[14]
It must be noted that the appellant had been unemployed for the previous four years, had experienced further set-backs in life, and was continuing to suffer from cluster headaches. 
[15]
Dr Kersel's conclusions following her assessment and interview with the appellant was as follows: 
“Mr Bennett is reported to have sustained a head injury in 1993. Unfortunately it is difficult to establish the exact severity of the injury that Mr Bennett sustained. The injury does not appear to have been very severe as the only medical intervention that Mr Bennett required was suturing for a laceration. Neither Mr Bennett nor his wife were able to elaborate on Mr Bennett's condition following the accident although they reported that he was nauseous, slept a lot over the week, and had severe headaches. Therefore it is likely that he did sustain a head injury. However, this injury is likely to have been mild in nature. At the most, the injury may have been at the less severe end of a moderate injury. 
Mr Bennett's performance on tests of cognitive functioning suggested severe and global impairment of cognitive function. This extremely poor performance is inconsistent with him having sustained a mild or even a moderate injury, and cannot be entirely explained as a consequence of a head injury. While it is possible that Mr Bennett is experiencing some mild degree of cognitive impairment as a result of his injury he also appears to be experiencing a significant degree of depression. The possibility of depression is more consistent with his wife's report that his symptoms are becoming worse over time. This is not a pattern that can be expected following a head injury. I understand that Mr Bennett has seen Dr Singh, Neurologist, and that no other neurological condition has been identified. 
It is likely that Mr Bennett experienced post-concussion symptoms following his accident. He then lost his job and additional to this he experienced headaches and pain associated with his back injury. These events have resulted in a changed lifestyle for Mr Bennett and he has consequently become depressed. However, Mr Bennett is still experiencing a significant degree of grief over the death of his son and this is obviously impacting on his general mood. Until there is some resolution of Mr Bennett's depressive symptomatology it is difficult to determine the exact degree of cognitive impairment that he may suffer. ”
[16]
At the time of her assessment, Dr Kersel identified that the appellant was suffering from depression and she recommended counselling to assist him with his depression. 
[17]
As earlier noted, following the earlier decision of this Court which had identified that the appellant was suffering from impaired cerebral function attributable to his head injury, the respondent referred him for assessment to Dr Greg Finucane, Psychiatrist, and he provided a report dated 5 May 2004. Dr Finucane was provided with earlier neurological and neuropsychological assessments for reference, including the report of Dr Newburn of June 2003. 
[18]
Dr Finucane carried out some cognitive functioning testing and he considered that the tests did not seem valid having regard to the way the appellant acted. In his report, he stated as follows: 
“The results on neuropsychological testing are unusual, and in the testing setting did not seem to conform with his ability to perform when history giving. Dr Newburn seems to be correct, however, when he states that Mr Bennett is not currently depressed and that that is not the reason for his poor cognitive performance. However, the degree of apparent cognitive dysfunction is well out of keeping with two very mild traumatic brain injuries over 10 years ago, and in the absence of depression a somatoform or other psychological disorder would seem the logical explanation for the results on testing. This of course does not mean that such cognitive dysfunction significantly intrudes into day to day life, and it is also the case that his performance on the Rey 15 item test was not typical for gross malingering. 
An ongoing Post Concussion Syndrome with cognitive fatigue, however, cannot be ruled out on the basis of the present evidence, even though it would appear that there is also a somatoform component. The Post Concussion Syndrome in this case is not sufficiently severe that it would prevent part time work and since Mr Bennett does describe some loss of self-esteem when he finally gave up work in 1995 it may be that a partial return to work programme would be of benefit for his psychological state. 
It does seem logical at this point to take the view that part of Mr Bennett's working capacity is related to one or both of the traumatic brain injuries sustained two years ago, whilst acknowledging that part is not, and that he be assisted in such a way that his work capacity will increase. This is likely to involve a combination of occupational therapy ‘monitoring of a graduated return to work programme, since if he is fatiguing after lunch most days it is likely he could manage at least 3 hours per day 3 days per week initially, he should receive psychological assistance to address any persisting cognitions impairing work capacity and a cognitive behavioural approach to any episodic low mood could also be utilised, and his general practitioner should continue to monitor the headache variety and utilise appropriate medication strategies.’ ”
[19]
In a further report of 29 August 2004, when Dr Finucane had been asked for some clarification he stated, inter alia, as follows: 
“I will reiterate that he does have a combination of several headache varieties, though the headache present when I assessed him was not of a variety which developed following either traumatic brain injury, and it is not clear that the previous cluster headache had a significant effect on work capacity within a short period of the injuries. When his cognitive function was tested he demonstrated ‘non organic’ cognitive difficulties. Depression has apparently been noted in the past but does not appear a current salient issue. A small contribution to his difficulties from a persisting post-concussion syndrome cannot be ruled out but this would not seem the major cause of any incapacity. 
It does not appear that the magnitude of any post-concussion syndrome as such is sufficient to explain his need to be off work since 1995. I note that 2 events occurred in 1995 which could potentially affect his work capacity, the first being his hospitalisation at Middlemore with back problems, and I am not sure whether this could have had any psychological effect on him, and also the death of his son. It is possible that there are alternative explanations for his presumed Somatoform Disorder since the mid 1990s and it would be unusual if the major contribution to his occupational incapacity were from the second brain injury, which was mild, and only became sufficiently severe to prevent him working approximately 2 years after the insult. ”
[20]
As earlier noted, there have been three reports from Dr Newburn, but the matters contained in his first two reports are to a large measure repeated and consolidated in his report of 11 February 2009. 
[21]
In his reports, Dr Newburn identifies the fact of the two head injury events and he identifies that the appellant suffered brain injuries on each of those two occasions, with the 1993 event exacerbating the already existing brain injury from the 1992 event. 
[22]
The essence of Dr Newburn's report is that he has identified that the appellant has sustained a traumatic brain injury and that this has brought about the development of what he describes as significant disablement and which he lists under 16 headings. He considers that there is no psychological factor in the genesis of the appellant's symptoms and he puts all this appellant's problems down to a traumatic brain injury. 
[23]
It must be noted that Dr Newburn does identify the appellant's headaches as being post-traumatic and he identifies that these occurred consequent upon the 1992 injuring event. Dr Newburn's final comment is as follows: 
“There does appear to have been an assumption that because he did not spend significant periods of time unconsciousness [sic] or with a prolonged post traumatic amnesia that he ought to have recovered from h is injuring events. However, the modern prospective literature shows that this assumption is a fallacy. Thornhill et al 9BMJ, 2000) with adults, or Hawley et al (JNNP,2005) in children both show that the long-term outcome, even with individuals who by definition have mild injury, is frequently poor. In both cases, greater than 40% of individuals at long-term follow-up continue to have prominent symptoms, often finding them as disabled as individuals who have sustained a severe brain injury. It is therefore not surprising to find in individuals such as Mr Bennett, who has functioned well premorbidly, who sustains an injury, or in his case two injuries, and finds himself significantly disabled afterwards. This is entirely in keeping with what is now known from clinical experience, and in the scientific literature, about traumatic brain injury. ”
[24]
In her submissions, Ms Bagnall referred to the fact that Dr Newburn was able to identify a causative link between the appellant's 1992 injury and the onset of cluster headaches, and she referred to the passage I have quoted above in that regard. 
[25]
Counsel submitted that there was now a clear causative link to the head injuries and this was the reason why the appellant could not continue in employment after February 1995. 
[26]
Mr Barnett, Counsel for the Respondent, submitted that because of the previous decision of this Court determining that there was no causative link between the headaches and his covered personal injury suffered in 1993, the only issue that can be determined in this appeal is whether the appellant was suffering from cognitive impairment such as was to render him incapacitated. 
[27]
Counsel submitted that if the Court were now to introduce the factors arising from the 1992 head injury, then it was his submission that those issues were outside the ambit of the decision of the respondent and therefore could not be considered in this appeal. 
[28]
Counsel submitted that in any event the 1992 accident just did not rate, it was not an incident which brought on incapacitating conditions. 
Decision 
[29]
In this appeal the Court is required to consider whether, other than the appellant's ongoing cluster headaches, there was any other incapacitating condition which could be identified as having been caused by the head injury suffered by him in August 1993. 
[30]
I concur with Mr Barnett's submission that this appeal must be confined to an identification of whether there is evidence which would establish that the appellant was suffering from cognitive impairment such as would cause him incapacity as of February 1995. The appellant is bound by the previous decision of this Court and I certainly do not propose to open that issue up. 
[31]
Despite what Dr Newburn says, the evidence is that the cluster headaches are not as a consequence of his covered injury and I find that there is little, if any, evidence that can establish that they were caused by the 1992 injury, which was in essence the same type of head injury as was suffered in 1993 and which, from a medical perspective, has been identified as not being the type of headache that arises from head injury, but rather it is of a vascular nature, that is, pertaining to blood supply. 
[32]
I have considered the reports of Dr Newburn but find that they just do not address the issue which this Court is confined to considering and as has been this Court's findings in the past, Dr Newburn is very quick to identify traumatic brain injuries without there being any pathology to confirm this, and it is all the more surprising that Dr Newburn thinks that he can make such a diagnosis so many years after the events concerned. 
[33]
In short form, I find that Dr Newburn has not identified any incapacitating feature of the appellant's impaired cerebral function. The evidence is quite clear that the reason for the appellant having to give up work was because of the continuation of his cluster headaches and his problems at work had been identified by evidence given by fellow-employees of him having problems due to the headaches and the medication which he was taking. 
[34]
That, as far as I am concerned, is the end of the matter from an incapacity perspective, and accordingly I find that there is no basis to identify that the appellant was incapacitated as from February 1995 as a consequence of his covered personal injury. This appeal is therefore dismissed. 

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