procedural. Medical question to be referred to an Independent Medical Advisor pursuant to Part 8 of the Return to Work Act 2014. The court found error in Dr Bastian's assessment and exercised its discretion...
Key principles
An accredited assessor's permanent impairment assessment is not binding on the Tribunal; it is expert evidence subject to the rules of admissibility and can be challenged.
To challenge a permanent impairment assessment, the disgruntled party must show error by the assessor, not mere dissatisfaction; cogent evidence is required.
Error is demonstrated where the assessor fails to properly consider relevant contemporaneous medical evidence, relies on incomplete or untested histories, or makes findings...
The second limb of paragraph 5.10 of the Impairment Assessment Guidelines requires confirmation of significant post-traumatic amnesia greater than 12 hours; the assessor's strong...
Issues before the court
Whether Dr Bastian's permanent impairment assessment of 20% WPI for traumatic brain injury was erroneous.
Whether the Tribunal should refer a medical question to an Independent Medical Advisor (IMA) under s 121 of the Return to Work Act 2014.
Plain English Summary
The South Australian Employment Tribunal ruled that a permanent impairment assessment of 20% for traumatic brain injury, made by Dr Bastian and adopted by the Return to Work Corporation, was unreliable because Dr Bastian did not properly apply the legal criteria. The Tribunal found that Dr Bastian wrongly assumed the worker had lost consciousness, did not give enough weight to a hospital cognitive test that showed normal results, and relied too heavily on a neuropsychologist's opinion that was based on incomplete information. Because the assessment was flawed, the Tribunal decided to send the question of the worker's brain injury impairment to an independent medical advisor for a fresh examination and report. The case is important because it clarifies when a workers' compensation decision based on a medical assessment can be challenged and explains the steps a court will take when the medical assessment is not properly supported.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
2,117 words · generated 30/05/2026
Cited legislation
2 cited instruments linked from this judgment.
What happened
On 9 August 2014, Anthony Rogers was operating a dump truck at the Prominent Hill mine site in South Australia when the bucket of an excavator struck his truck. The jolt caused Rogers's head to hit the left side of the cabin window frame. He was dazed and confused but remained conscious and able to speak, use the radio, and walk with assistance. He was treated at the on-site medical centre, then airlifted by the Royal Flying Doctor Service to Port Augusta Hospital, where he was admitted for observation and discharged three days later.
Initial Glasgow Coma Scale (GCS) scores at the Prominent Hill Medical Centre ranged from 13 to 15, never falling to 9 or below. At 6.23am on 10 August 2014, the attending medical officer, Dr Andrew Killcross, conducted a cognitive assessment that was close to the standardised Westmead PTA Scale and recorded the results as 'all normal', with a GCS of 15. Mr Rogers's GCS remained at 15 for the rest of his hospital stay. MRI scans of his brain on 15 August 2014 and later showed no abnormalities.
Over the following years, Mr Rogers complained of significant cognitive deficits, memory loss, headaches, and behavioural changes. He underwent multiple medical assessments. In May 2019, Dr John Bastian, a consultant in rehabilitation medicine and an accredited assessor under the Return to Work Act 2014 (RTW Act), assessed a 20% whole person impairment (WPI) for cognitive dysfunction due to traumatic brain injury, along with other impairments totalling 41% WPI when combined. The Return to Work Corporation adopted Dr Bastian's assessment and issued a decision on 13 August 2019, granting Mr Rogers seriously injured worker status and a lump sum payment.
Thiess Pty Ltd, Rogers's employer, was not satisfied and applied to the South Australian Employment Tribunal for a review. Thiess argued that Dr Bastian's assessment of the brain injury was flawed and that the matter should be referred to an Independent Medical Advisor (IMA) under s 121 of the RTW Act. The Tribunal (President Justice Dolphin) heard evidence over two days in April 2022, with Dr Bastian as the only witness. The worker, Mr Rogers, did not give evidence.
Why the court decided this way
The court applied well-established principles about the status of permanent impairment assessments. An assessment by an accredited assessor is not binding on the Tribunal, but the party challenging it must demonstrate error by cogent evidence – mere dissatisfaction is not enough. The key precedent was Abraham v Return to Work SA [2016] SAET 76, later affirmed in Paschalis v Return to Work Corporation of South Australia [2021] SASCFC 44, which held that the Tribunal is not free to disregard an approved assessment unless error is shown.
The critical gateway for assessing traumatic brain injury is paragraph 5.10 of the Impairment Assessment Guidelines (IAG). To proceed with such an assessment, at least one of three conditions must be confirmed:
a clinically documented GCS score of 9 or below,
significant post-traumatic amnesia (PTA) greater than 12 hours, or
significant intracranial pathology on CT or MRI.
Dr Bastian explicitly relied on the second limb – PTA greater than 12 hours. The court analysed his reasoning in detail and found several material errors.
First, Dr Bastian assumed that Mr Rogers had lost consciousness at the time of impact. The contemporaneous evidence from the excavator operator, the site supervisor, and nurse Egel did not support that assumption. Mr Rogers was able to talk, use the radio, and walk (albeit unsteadily) immediately after the incident. Dr Bastian himself conceded in oral evidence that if Mr Rogers was conversing shortly after impact, that was suggestive he had not lost consciousness.
Second, Dr Bastian failed to give proper weight to Dr Killcross's cognitive assessment at 6.23am on 10 August 2014. That assessment, recorded as 'Place, day, month, year, ruling political party, DOB, 3 object recog. Serial 7's and WORLD spelling all normal', was very close to the Westmead PTA Scale, the recognised tool for evaluating PTA. Dr Bastian in his second report mentioned only the serial 7's aspect and dismissed its significance by saying that ability to perform serial 7's does not exclude PTA. The court considered this unfair, as Dr Bastian himself used similar testing (serial 3's) in his own examination of Mr Rogers years later. The fact that Mr Rogers scored normally on a comprehensive test within 12 hours of the injury was strong evidence that PTA was not present.
Third, Dr Bastian relied heavily on the neuropsychologist Dr Scamps's opinion that Rogers 'may have been in PTA for well over 24 hours'. But the court observed that Dr Scamps had not been provided with key contemporaneous records (Prominent Hill medical records, RFDS notes, witness statements) and had not mentioned Dr Killcross's cognitive assessment. Her opinion was speculative ('may have been') rather than definitive. Dr Bastian also referred to the neuropsychologist Mr Rothwell, but Mr Rothwell did not express any conclusion about PTA duration.
Fourth, Dr Bastian's own history-taking from Mr Rogers was problematic. He noted that Mr Rogers was agitated, swearing, and difficult to interview. The court found that his 'strong suspicion' of PTA >12 hours – based partly on what Mr Rogers's wife had told him – did not meet the standard of confirmation required by the IAG.
The court concluded that Dr Bastian's decision to proceed with the impairment assessment under the second limb was erroneous. The divergence between what the IAG requires and what Dr Bastian based his assessment on was significant and material. That error justified the exercise of discretion to refer the medical question of whole person impairment for any brain injury to an IMA.
Before and after state of the law
Before this judgment, the leading South Australian authorities on challenging permanent impairment assessments were Abraham, Storey, and Paschalis. Those cases established that an accredited assessor's report is not conclusive, that error must be shown, and that the only alternative assessment the Tribunal can use is from an IMA. But the precise standard of 'confirmation' required for the gateway criteria in IAG paragraph 5.10 had not been fully explored.
Thiess v Return to Work Corporation clarifies that the second limb – 'significant duration of post traumatic amnesia, greater than 12 hours' – requires more than a 'strong suspicion'. The assessor must have a proper factual basis, must consider relevant contemporaneous medical evidence (including cognitive assessments that approximate the Westmead PTA Scale), and cannot rely on retrospective opinions from experts who lacked full documentation.
The judgment also reinforces that an assessor who makes an assumption about loss of consciousness contrary to the evidence commits a material error. The case gives practical guidance on what amounts to a 'significant divergence' between the IAG requirements and the assessment: here, the divergence was that Dr Bastian relied on the PTA limb without adequately addressing the only contemporaneous cognitive test, which was normal.
After this decision, the medical question will be examined by an IMA, who will have the benefit of this judgment and all the documentary evidence. The IMA will need to determine de novo whether Mr Rogers satisfies any of the three limbs and, if so, assess the appropriate WPI. The decision does not finally determine the impairment; it clears the way for an independent fresh assessment.
Key passages with plain-English translation
Paragraph 5.10 of the IAG (quoted at [126]):
'In order to consider the impairment assessment of traumatic brain injury, at least one of the following must be confirmed: clinically documented abnormalities in initial post injury Glasgow Coma Scale score of nine or below; significant duration of post traumatic amnesia, greater than 12 hours, or; significant intracranial pathology on CT scan or MRI.'
Plain English: Before a doctor can assess the level of permanent disability from a brain injury, there must be clear proof of one of these three things: a very low consciousness score (9 or less out of 15) right after the injury; a period of confusion and memory loss lasting more than half a day; or definite damage seen on a brain scan.
Para [267] – Finding on Dr Bastian's error:
'I find that Dr Bastian failed to give proper consideration to the cognitive assessment of Mr Rogers undertaken by Dr Killcross at 6.23am on 10 August 2014. And, that that failure was material to the assessment of whether Mr Rogers had a significant duration of PTA, greater than 12 hours, and in turn material to the question of Mr Rogers' WPI for his brain injury. Accordingly, I find that Dr Bastian erred in that regard.'
Plain English: The court said Dr Bastian made a mistake by not properly considering the hospital doctor's memory and orientation test that showed normal results just a few hours after the accident. That mistake affected his decision on whether Mr Rogers had the required memory loss to assess a brain injury.
Para [268] – The material divergence:
'Given all of the above, I find that there is a divergence between what is required for an assessment of a traumatic brain injury in [5.10] of the IAG and what Dr Bastian based his assessment of Mr Rogers on. That divergence is significant and is material to the issues to be resolved in this case.'
Plain English: The court found that Dr Bastian's assessment did not properly match what the law requires. This mismatch was important enough to justify sending the case to an independent doctor for a fresh opinion.
What fact patterns trigger this precedent
This case will be most relevant where:
A worker claims a traumatic brain injury but had GCS scores above 9 and normal brain scans.
The only gateway criterion relied upon is PTA greater than 12 hours.
The treating hospital conducted a cognitive assessment that showed normal results within the first 12–24 hours after injury, even if not a perfect Westmead PTA Scale.
The assessor did not have access to all contemporaneous records (witness statements, pre-hospital notes, nursing records) when forming an opinion on PTA.
The worker did not give evidence or provide first-hand testimony about loss of consciousness.
The assessor mentions 'strong suspicion' or 'likely' rather than 'confirmed' PTA.
There is a dispute about whether psychological factors, rather than organic brain injury, explain the worker's symptoms.
The precedent is also relevant in any challenge to a permanent impairment assessment where the employer or insurer argues that the assessor overlooked key medical records or made assumptions not supported by the evidence.
How later courts have treated it
As at early 2025, this judgment has been cited in several subsequent South Australian Employment Tribunal decisions, notably in cases involving challenges to PIA reports for brain injury and psychiatric impairment. It is frequently referenced for its clear statement of the test for error and the need for proper documentation. The Full Bench has not yet overruled it. It is considered an authoritative application of the Abraham line of authority to the specific context of IAG paragraph 5.10.
Still-open questions
What precisely constitutes a 'cognitive assessment that is close to the Westmead PTA Scale'? The judgment accepted Dr Killcross's test – which included place, day, month, year, ruling political party, DOB, three-object recognition, serial 7s, and WORLD spelling – as sufficient. But the boundaries remain unclear. Would a less comprehensive test suffice? The IAG does not mandate a specific tool.
If a worker has a normal cognitive assessment within 12 hours but later develops memory gaps, can PTA still be confirmed? The court noted that the Westmead PTA Scale requires hourly reassessment. Dr Bastian argued that a single normal test does not exclude PTA, and the court acknowledged that point, but still found he failed to give due weight. Future cases will need to grapple with the weight of a single normal test versus subsequent reports of patchy memory.
The role of the IMA once appointed: the judgment does not specify whether the IMA is bound by the court's factual findings (e.g., the finding that Mr Rogers did not lose consciousness) or can start afresh. The likely approach is that the IMA must consider the evidence and this judgment but applies their own clinical judgment.
The impact of psychogenic factors: the court left open how an IMA should apportion impairment between organic brain injury and psychological overlay. The IAG prohibits double-rating, but the methodology for separation remains contested.
Whether this reasoning applies to other gateway criteria (e.g., GCS of 9 or below) in cases where the only evidence is retrospective estimation rather than clinical documentation. The judgment suggests that an assessor's 'strong suspicion' will not suffice for any limb.
Catchwords
**
Judgment (275 paragraphs)
[1]
Quoting Dr John Bastian, 'this is an extremely complex and concerning case.'
On 9 August 2014 Anthony Rogers sustained a work injury. His claim for compensation was accepted by the respondent, who in due course determined that his combined whole person impairment (WPI) would be 41%. Assessments by Dr Bastian were used to arrive at that figure.
That decision, dated 13 August 2019, entitled Mr Rogers to a lump sum payment of $161,495.00, and the status of a seriously injured worker pursuant to s 22 of the Return to Work Act 2014.
Whilst Mr Rogers was content with that decision, his employer, Thiess Pty Ltd, was not and as such, it has brought these proceedings. For its part, the respondent contended that its decision had been correctly made.
In 2021, Mr Rogers brought an Application for Directions seeking to summarily dismiss the proceedings on the basis that Thiess' challenge to the respondent's decision was either frivolous or was lacking in substance, within the meaning of s 41 of the South Australian Employment Tribunal Act 2014.
In his judgment of 1 June 2021, Deputy President Cole refused Mr Rogers' application to dismiss the proceedings.[1] Hence, the case proceeded to formal hearing before myself.
In challenging the respondent's decision of 13 August 2019, the argument by Thiess was that, given the complexity and extent of the evidence, Dr Bastian's permanent impairment assessment (PIA) of Mr Rogers' traumatic brain injury was ultimately unsound. As such, that before I determine what Mr Rogers' WPI should be, that I should refer a medical question to an Independent Medical Advisor (IMA) pursuant to Part 8 of the RTW Act.
In that regard, it pointed to orders it had sought earlier in the proceedings in March 2020.
The hearing of this case commenced with two days in court in April this year. Given the complexity of the case, the parties then requested an opportunity to consider the transcript and then to file and serve their respective written submissions. Extensive and detailed written submission were subsequently filed by all parties. In its written submissions Thiess requested an opportunity to put further submissions once the written submissions of Mr Rogers and the respondent had been received. Ultimately, orders were made that would see Thiess's written submissions in reply filed and served by 22 August 2022.[2]
In the reasons that follow, I explain why I have concluded that the correct course is for a medical question to be referred to an IMA.
[2]
It is to be noted that Mr Rogers choose not to file an affidavit of his evidence, nor did he give any oral evidence. The facts that I will shortly recount are obtained from an agreed statement of facts and issues document agreed between him and Thiess and from other uncontested material as tendered into evidence.
Mr Rogers commenced working for Thiess as a plant operator in or about October 2012. In August 2014, he was working at a mine site at Prominent Hill, in northern South Australia.[3]
On 9 August 2014, Mr Rogers was operating a dump truck at the mine site in extremely dusty conditions making visibility poor. At 7.40pm his truck was being loaded with rocky and dusty material by an excavator. Unfortunately, given the poor conditions, on the third pass the excavator operator lost visibility of the excavator arm and bucket. In attempting a counter-slew manoeuvre, the bucket struck the left hand side of Mr Rogers' truck's tray (there was some suggestion in the documentation that the weight of the material laden bucket was estimated at over 100 tonnes).[4] This caused the truck to unexpectedly jolt forward with a left to right momentum. The violence of that motion caused Mr Rogers to be shaken in the cabin, and for the left hand side of his head to strike the left hand side of the window frame within the cabin.[5]
In the subsequent incident record document, it was recorded that the corner of the truck's tray was marked by the excavator bucket and that the estimated cost of that damage was less than $15,000.00. A photograph was also taken showing that damage.[6]
Realising that his laden bucket had hit the truck, the excavator operator stopped his operations immediately and called the shift supervisor on the radio to advise what had happened. Mr Rogers' also called the excavator operator on the radio to tell him to stop the operation as 'he had hit his head'.[7] In his own words the excavator operator said, 'Tony Rogers then called me saying "Stop (operator's name) I've smashed my head."'[8]
After dismounting his machine, the excavator operator walked towards the truck. He could see that the driver side door was open, and that Mr Rogers' left leg was slightly sticking out. He motioned for Mr Rogers to shut the truck down. The excavator operator then accessed the truck's cab and found Mr Rogers to be dazed and confused. Mr Rogers told him that 'he had hit his head on the rops(?) and that he had a headache.'
[3]
Mr Rogers was observed for a while in that medical room, and at approximately 9.30pm that night he was taken by ambulance to the Prominent Hill Medical Centre. There he was observed from arrival till approximately 1.20am on the following day when he was collected by the Royal Flying Doctor Service (RFDS) for the purpose of transferring him to the Port Augusta Hospital.[12]
The RFDS plane landed at the Port Augusta Airfield at approximately 4.30am on 10 August 2014. An SA Ambulance Service ambulance was waiting and transferred Mr Rogers to the Port Augusta Hospital. The ambulance arrived there at the hospital at approximately 5.17am, where Mr Rogers was treated in Triage approximately three minutes later. At approximately 6.23am Mr Rogers was seen by Dr Andrew Killcross. At approximately 9.16am Mr Rogers was transferred from the hospital's emergency department to a general ward. After two days of observations and treatment, Mr Rogers was ultimately discharged from the Port Augusta Hospital at approximately 4.22pm on 12 August 2014.[13]
The particulars of Mr Rogers' medical treatment will be examined in detail later in this judgment, but for the moment I will briefly set out further background details of note.
[4]
On 10 August 2014, Thiess completed a claim for compensation form, for Mr Rogers. That form recorded Mr Rogers work injury as 'left side of head, whiplash to neck and concussion'.[14]
Mr Rogers himself completed a claim for compensation form on 14 August 2014 where he recorded his work injury as 'concussion and whiplash, neck and upper left shoulder blade, right eye socket and left elbow.'[15]
In its decision of 11 September 2014, the respondent accepted that Mr Rogers' work injury was compensable, stating the work injury was 'closed head injury, cervical spine sprain, contusion to left shoulder and contusion to left elbow.'[16]
[5]
In its letter of 26 March 2019, the respondent asked Dr John Bastian, a consultant in rehabilitation and an accredited assessor pursuant to the RTW Act, to undertake an examination and then an assessment of Mr Rogers for the purposes of establishing his level of a whole person impairment. In that letter, Dr Bastian was informed that Mr Rogers had previously suffered from bruised neck muscles on 11 March 2009 and that his claim for that injury had been accepted for medical expenses only and that he was subsequently cleared for pre-injury duties.
Dr Bastian was also advised that Mr Rogers had suffered from a closed head injury, cervical spine sprain, a contusion to his left shoulder and a contusion to his left elbow as a result of the incident on 9 August 2014, whist working at the Prominent Hill mine site. Dr Bastian was instructed that the 9 August 2014 injuries arose from the same trauma and as such should be assessed together and combined pursuant to the Return to Work SchemeImpairment Assessment Guidelines (IAG).[17]
To assist him with his assessment, Dr Bastian was provided with well over one hundred separate medical documents relating to Mr Rogers.
On 11 May 2019, Dr Bastian examined Mr Rogers for the purpose of the WPI assessment. Same day he authored his PIA report. In that report, Dr Bastian acknowledged the complex nature of Mr Rogers injuries and said that his case was concerning.[18] Dr Bastian also recorded that he had been asked to assess Mr Rogers' work-related injuries being traumatic brain injury, left shoulder left elbow and neck.[19]
The specifics of Dr Bastian report of 11 May 2019, along with his other reports and his oral evidence will be parsed later on in this judgment, at present it is sufficient to describe what Dr Bastian assessed. In that report Dr Bastian said that he had initial concerns about performing the assessment. He said the examination was very concerning as Mr Rogers' was swearing frequently, and at times would go blank and just stare at the table. With regards to taking a history from him, Dr Bastian said that it was very difficult as Mr Rogers would veer off the question asked, made a number of derogatory comments, and finally became upset and teary.
[6]
In its decision of 13 August 2019, the respondent determined Mr Rogers' WPI based on the opinion of Dr Bastian as set out in his report of 11 May 2019.[24] In that decision, the respondent combined Dr Bastian's individual assessments of 20%, 5%, 7%, 16%, 0% and 0% to arrive at a total of 41%, after the discounting procedures of the Combined Values Chart of American Medical Association, Guides to the evaluation of Permanent Impairment 5__thEdition (AMA5) were applied.[25]
Unhappy with that decision, Thiess filed its Application for Review on 6 September 2019. That application ultimately finding its way to hearing and determination that is now the subject of this judgment.
In arguing that the respondent's decision was made in error, Thiess contented that only that part of the decision that relied on Dr Bastian's assessments of Mr Rogers' brain injury were incorrectly determined. No issue therefore was taken with those parts of the decision - and Dr Bastian's assessments underpinning them - with regards to Mr Rogers' left shoulder, left elbow and neck and cervical spine impairments. Similarly, Mr Rogers did not dispute those assessments.
Therefore, at this juncture, and before I explain the issues that divided the parties, it is convenient to set out two areas of importance: first, the relevant provisions of the IAG, which Dr Bastian utilised to makes his assessments; and, then the Glasgow Coma Scale.
[7]
Impairment Assessment Guidelines - Chapter 5 Nervous System
[8]
Chapter 13 of AMA5 provides the criteria for evaluating permanent impairments due to documented dysfunctions of the brain, cranial nerves, spinal cord, nerve roots and/or peripheral nerves and muscles. Chapter 5 of the IAG provided the criteria for assessing permanent impairment of the central and peripheral nervous system. That chapter applies the principles of ch 13 of AMA5, subject to specific modifications.
In the IAG, the approach to be taken by an accredited assessor, to the assessment of permanent neurological impairment is described at paragraph [5.5] below:
[9]
5.5 Chapter 13, AMA5 disallows combination of cerebral impairments. However, for the purpose of the Guidelines, cerebral impairments should be evaluated and combined as follows:
[10]
consciousness and awareness
mental status, cognition and highest integrative function
emotional and behavioural impairments relating to a verifiable neurological impairment.
[11]
The assessor should take care to be as specific as possible and not to double-rate the same impairment, particularly in the mental status and behavioural categories.
[12]
With regards to the specific interpretation of AMA5, the IAG relevantly stipulates:
[13]
5.9 In assessing disturbances in the level of consciousness and/or awareness, arousal and sleep disorders, mental status, cognition and highest integrative functioning, communication impairments (dysphasia and aphasia) and emotional or behavioural impairments (sections 13.3a, 13.3c, 13.3d, 13.3e, 13.3f, AMA5 pp309-311, 317-327), the assessor should make ratings based on clinical assessment and the results of neuropsychological testing where available.
[14]
Neuropsychological testing should be conducted by a registered psychologist who specialises in clinical neuropsychology. Neuropsychological tests are to be considered in the context of the overall clinical history, examination and radiological findings, not in isolation.
[15]
5.10 For traumatic brain injury, there should be evidence of a severe impact to the head or that the injury involved a high energy impact.
[16]
In order to consider the impairment assessment of traumatic brain injury, atleast one of the following must be confirmed:
[17]
clinically documented abnormalities in initial post injury Glasgow Coma Scale score of nine or below
significant duration of post traumatic amnesia, greater than 12 hours, or
significant intracranial pathology on CT scan or MRI.[27]
[18]
The acronyms GCS for Glasgow Coma Scale and PTA for post traumatic amnesia are used throughout the rest of this judgment**.**
Also, the above three dot points under [5.10], dealing with GCS, PTA and brain pathology, will be referred to in due course as the "three limbs". Of those three, the second will come under the most analysis.
[19]
Of some importance to the resolution of this case is an understanding of the "Glasgow Coma Scale". That scale is used in immediate, pre-hospital and hospital settings in order to assess and monitor persons with a suspected brain injury. The GCS provides an indication of the level of consciousness of a patient at any given point in time and is scored between 3 and 15; 3 being the worst score (unconscious) and 15 being the best (fully conscious). Three parameters are used; best eye response, best verbal response and best motor response, as below.
If a GCS score declines the risk of intracranial complications and the consequential need of surgery increases. Any fall in a GCS score, after the initial recording, is of concern and may represent intracranial bleeding. A fall of 2 or more points at any one time is cause for an immediate investigation and referral.[29]
[23]
Below is a detailed list of Mr Rogers' GCS score at the relevant times. I have underlined all the scores below the fully conscious score of 15/15.
Whilst Mr Rogers was at the Prominent Hill Medical Centre, he was clinically observed with the below GCS scores:
As can be seen at no point from his initial treatment on site, to his time in hospital, was Mr Rogers clinically observed with a GCS score of 9 or below (IAG [5.10]).
It is appropriate now to explain Mr Rogers' medical treatment following his work injury.
[26]
On the day of the work injury, 9 August 2014, Mr Bret Egel, a registered nurse at the Prominent Hill Medical Centre, wrote to the doctor on-call at the Port Augusta Hospital regarding Mr Rogers. In that letter, Mr Egel said that while Mr Rogers' 'head was turned to the left, his forehead had made contact with the inside of the (truck) cab.' Also, that he was 'unsure of any LOC (loss of consciousness)'. He said that on the arrival of the emergency service to the scene that Mr Rogers was disoriented and was complaining of frontal headache, upper neck pain and was nauseated.[34]
On arrival at the 'Health Centre', Mr Egel explained that Mr Rogers GCS scores were Best eye opening: 3-4, Best verbal response: 4, and best motor response: 6, Total + 13-14. Whilst Mr Egel made those comments in his letter, the relevant medical notes, as indicated above, record a GCS score of 14, being best eye opening; 4 (not 3-4), Best verbal response: 4, and best motor response: 6.[35] Although, the full range of GCS scores recorded at the Prominent Hill Medical Centre is 13/15, 14/15 and 15/15.
[27]
In a Pre-Flight Nursing Handover document dated 9 August 2014, a GCS score of 13-14 is recorded, as is the word 'concussion?' Despite that notation, the clinical records commencing at 2.15am document GCS scores of 14, 15, 15 and 15, as described above.[36]
Further in the RFDS documents is a section headed "current presentation". Thereunder, the handwritten the phrase, 'pt is vague' is recorded. I am entitled to assume that where "pt" is used, that it means patient. Also, is the following three sentences:
[28]
Has had short term memory loss about incident. Remembers watching bucket but that's all. Then remembers after getting to clinic.[37]
[29]
The SA Ambulance Service (SAAS) transported Mr Rogers from the care of the RFDS to the Port Augusta Hospital. SAAS's records reveal a handwritten notation which states, 'after being struck by digger - period of amnesia.'[38]
[30]
Mr Rogers was admitted to the Port Augusta Hospital at 5.17am on 10 August 2014, he was triaged at 5.20am. At 6.23am the attending medical officer, Dr Andrew Killcross, first recorded the Reasons for Admission as below:
[31]
Truck hit from behind by large bucket of excavator and pt's head forced forward into inner wall of the cabin. He thinks he hit his central forehead. Post event he was vague -its unclear whether he momentarily lost consciousness: mine site RN seemed to think not. Pt remembers people crowding around post event and then being in the mine clinic room but all else is vague.
[32]
Place, day, month, year, ruling political party, DOB, 3 object recog. Serial 7's and WORLD spellingall normal
[33]
No obvious head injury seen: tender middle upper forehead
[34]
Log roll: Moderately tender para-cervical muscles upper (C2-3 region) bilat. V. mild central spinal tenderness there (over vert. bodies)
[35]
IMP: likely concussion. Need to rule out C spine injury (xray)[39]
[36]
Dr Killcross' notes above are important to the disposition of this case, I will return to them many times in this judgment.
It is also apparent from Dr Killcross' notes that the plan for Mr Rogers' treatment was for an xray to be performed on his cervical spine; the perceived concern at that point in time being Mr Rogers' neck.
As above, Mr Rogers GCS score when first seen by Dr Killcross was 15. As it is well understood in the medical and medico-legal areas, the notations 'Place, day, month, year, ruling political party ... ' are references to the cognitive testing of a patient, where that patient is asked to tell the examiner what place they are in? who is the ruling political party? add up sevens? et cetera. Dr Killcross recorded that Mr Rogers' answers were 'all normal'. Similar such questions also form a significant part of what is known as the "Westmead PTA Scale" being a diagnostic tool, along with the GCS, for objectively measuring PTA. In that document the relevant questions are: What is your name? What is the name of this place? Why are you here? What month are we in? And what year are we in? In the second part of the assessment, the patient is then asked to identify three pictures that they were shown earlier in amongst a group of nine similarly composed pictures.[40]
The Westmead PTA Scale states that it, combined with a standardised GCS assessment, is an objective measure of PTA. It also states that it is to be used only for patients with a GCS score of 13-15 in the 24 hours post head impact injury, and should be administered, along with the GCS, at hourly intervals.[41]
Returning to the narrative, at 8.12am on 10 August 2014, a registered nurse recorded a history that Mr Rogers did report a loss of consciousness after the accident: 'LOC reported'. And that Mr Rogers would be 'admitted for neuro obs(ervations)'. At 7.23, Dr Killcross recorded that Mr Rogers was admitted for neuro obs. At 12.35pm that day, a registered nurse recorded that Mr Rogers' neuro obs where being monitored every hour and that they 'remain satisfactory'. A record was also made that Mr Rogers GCS score at that time was 15. The final reporting that day, by a different registered nurse, was at 8.24pm. At that point Mr Rogers was resting in bed with the room remaining dark as per his request.
[37]
The day after the accident, Mr Rogers underwent a CT Scan of his cervical spine whilst he was at the Port Augusta Hospital. The results of that scan disclosed no fracture of his cervical spine. Also, that there was chronic disc space degenerate spondylosis at the C5/6 level and moderate foraminal narrowing of the left C5/6 neural exit foramen. His brain was not scanned at that time.[43]
[38]
Port Augusta Hospital - 11 August 2014 to discharge
[39]
At 8.38am on 11 August 2014, Dr Killcross recorded that Mr Rogers' GCS score was 15, as it had been with previous scores that day. Also, that he had been mobilising and that he felt 'a little bit dizzy when walking around'.
A physiotherapy note of 3.02pm that day principally concerned Mr Rogers complaints of neck pain and stiffness. However, it was also recorded that he had 'limited recollection of the accident until waking up in the Port Augusta Hospital.' And, that he was now having intermediate headaches and dizziness. At 4.18pm that day Mr Rogers' vitals were observed and his neurovascular obs were within normal limits. His GCS score then was also 15. At 7.14pm Mr Rogers was resting in bed, and aside from generalised aches and pains, he was in 'good spirits.'[44]
The next day, 12 August 2014, a clinical synopsis of Mr Rogers was undertaken. It appears that Dr Killcross' reporting from 6.23am on the day of admission was copied over verbatim. As for Mr Rogers' progress, it was recorded that he had been observed for a period and that he continued to have moderate frontal headaches which required analgesia. It was also recorded that it was felt that a head scan was not necessary at that time.[45]
With regards to the discharge diagnosis, the Port Augusta Hospital records state:
[40]
Concussion, muscle / ligament "whiplash" injury to neck, soft tissue injury to frontal region of skull.[46]
[41]
On 12 August 2014, it was decided that Mr Rogers could be discharged that afternoon. He continued to complain of headaches and was prescribed medication. At 4.22pm he was discharged with a taxi voucher.[47]
[42]
On 15 August 2014, Mr Rogers underwent an MRI scan of his brain. As a prior brain scan had been taken for some unrelated reason on 16 January 2013, the two scan results were therefore compared. In the report of the 15 August 2014 MRI scan, Mr Rogers' brain was said to be essentially normal, with no abnormalities were observed. In that regard, it was stated that there was no significant change as compared to the 2013 scan result.[48]
Pausing here to comment on the third limb of [5.10] of the IAG, the MRI scan of Mr Rogers' brain taken on 15 August 2014 showed no significant intercranial pathology.
[43]
Mr Rogers presented to his general practitioner, Dr Stephen Kennett, on 14 August 2014. Dr Kennett, soon after provided a report - dated 21 August 2014 - to the respondent. In that report Dr Kennett reported that Mr Rogers told him:
[44]
He described that on 9.8.14 he was sitting in the truck whilst it was being loaded with ore by the digger.
[45]
The truck is a left hand vehicle and Mr Rogers was sitting in the driver's seat with his head and body turned to the left as he watched the digger in the side mirror.
[46]
The digger bucket inadvertently hit the back of the truck lurching Mr Rogers sideways into the truck cabin frame with great force.[49]
[47]
Dr Kennet also stated that 'Mr Rogers suffered a closed head injury' and that at the initial review (14 August 2014) he described feeling 'vague, confused, anxious' as well as complaining of pain in his neck and left shoulder. At his second review of 21 August 2014, Dr Kennett said Mr Rogers 'was extremely troubled by short term memory deficits and fatigue.' [50]
Further in that report, Dr Kennett said that Mr Rogers has had a very significant concussion with the recovery time for that being difficult to predict.[51]
[48]
Mr Rogers was referred to Dr Emma Scamps, a clinical neuropsychologist, for a neuropsychological assessment, which took place on 17 October 2014. Dr Scamps provided her opinion regarding that assessment in a report of 31 October 2014.
In that report, Dr Scamps records that Mr Rogers told her that he could recall being in the Prominent Hill Medical Centre and hearing people talking, but he could not recall speaking to his wife, which apparently, he must have done at some point. He said thereafter his memory was patchy and could not recall speaking to a safety officer the next day. Dr Scamps opined that the hospital discharge summary confirmed that Mr Rogers' memory was patchy at that time. Also, that his GCS score at the hospital was 15/15 and that he was orientated, although no formal post-traumatic amnesia testing was conducted.[52]
In summary, and importantly, Dr Scamps said that after the work injury Mr Rogers:
[49]
... reported patchy memory for the first few days, suggestinghe may have been in PTA for well over twenty-four hours. There was no official Glasgow Coma Scale score recorded at the scene, but it was 15 at the hospital.In my opinion, it is likely Mr Rogers has sustained at least a moderate severity brain injury. His previous concussions may have caused his brain to be more vulnerable to this current injury. I do not believe Mr Rogers is suffering from concussion, but that his injury is more significant than that.[53] (emphasis added)
[50]
At the beginning of her report Dr Scamps said that she had been provided with a Return to Work Report, dated 24 September 2014, from the respondent. She then said that since her assessment of Mr Rogers (on 17 October 2014) she had received a letter from a senior speech pathologist at the Hampstead Rehabilitation Centre, dated 21 October 2014. She also said that she had spoken by telephone with Dr Rabin Bhandari and with Mr Rogers' wife.[54]
Other than the above information, Dr Scamps did not advise of any other documents that she may have consulted. It is therefore safe to assume that she did not have copies of the initial medical records from the Prominent Hill Medical Centre, the RFDS, or SAAS. Also, that she had not seen Prominent Hill Incident Investigation Report, the Prominent Hill Incident Record, nor the witness statements of the excavator operator or the site supervisor. Although, given her comments about the discharge summary, and Mr Rogers GCS score, it seems she may have had some information from the Port Augusta Hospital. Although, if she did, she failed to mention Dr Killcross' cognitive assessment of 'all normal' and a GCS score of 15 as at 6.23am on 10 August 2014. Accordingly, it is not completely clear on what Dr Scamps has based her history of Mr Rogers' injury on. However, it appears that history she was provided with came predominantly from Mr Rogers and/or augmented by his wife, or Dr Bhandari.
Dr Scamps conclusion that Mr Rogers 'may have been in PTA for well over twenty-four hours' is at the heart of the issues in this case. The question being whether she had made an impermissible medical leap, that such a conclusion was available, based only on his reporting of 'patchy memory for the first few days'. Accordingly, her diagnosis of PTA for over 24 hours, and Dr Bastian's reliance on that, is challenged by Thiess.
[51]
Dr Rabin Bhandari - reports 19 November 2014 and 27 June 2015
[52]
Upon referral from his general practitioner, Mr Rogers began consulting with Dr Rabin Bhandari, a rehabilitation physician, on 24 October 2014.[55]
In his report of 19 November 2014, Dr Bhandari reported that Mr Rogers had told him:
[53]
He had a work-related accident on the 9th of August this year while working in the mines for Thiess. He was driving a dump truck and the last memory he had was seeing an excavator about to hit his own truck. He does not remember the accident very well. He was told that the excavator rear ended him and his head hit the front windshield. He also twisted his neck at the time. since the accident he has had quite severe headaches, cognitive problems, irritability, low libido, dizziness and motion sickness, hearing loss in the left ear, constant ringing in both ears, word finding difficult at times and severe fatigue.[56]
[54]
Dr Bhandari then opined that he believed Mr Rogers was suffering from severe post-concussion syndrome with myofascial pain affecting the left trapezius.
In a further report of 27 June 2015, Dr Bhandari set out the many occasions upon which he had treated Mr Rogers. In explaining the history provide to him from Mr Rogers, Dr Bhandari said:
[55]
At my initial consultation Mr Rogers told me that he was working as an excavator driver at a mine site on about 9th August 2014. He was sitting in a large dump truck when another piece of equipment (a large excavator) hit the side of his truck. He was then thrown within the truck cab and he hit his head. He then had a patchy recollection of what happened, although it looks like he was transferred to Port Augusta Hospital. Based onthe neuropsychologist report, he did not have post traumatic amnesia testing but his Glasgow coma scale was 15/15. He was discharged from the Port Augusta Hospital after four days and flew home.[57] (emphasis added)
[56]
The neuropsychologist report that Dr Bhandari was referring to could only have been that of Dr Scamps of 31 October 2014, as above.
As for his updated diagnosis, Dr Bhandari said that based on the neuropsychological evaluation by Dr Scamps, Mr Rogers had a moderate severity traumatic brain injury. However, he opined that he was 'still not 100% in agreement with Dr Scamps'. That being as, there were no anatomical defects seen in the MRI scan of Mr Rogers brain of 15 August 2014, which he said was very atypical for a moderate severity traumatic brain injury, but not unheard of. He further opined that Mr Rogers had quite severe psychological confounding factors. However, later on he qualified by saying that:
[57]
... very often in moderate severity and severe traumatic brain injury, the history is often quite vague. It is however not so common that MRI findings are completely clear.[58]
[58]
With regards to further testing, Dr Bhandari said he would very much appreciate a repeat neuropsychological evaluation with a different neuropsychologist, not Dr Scamps. One of his recommendations was Mr Andrew Rothwell. Dr Bhandari then concluded by saying that the further evaluation would:
[59]
Help me decide whether the impairments that he is exhibiting are truly from a moderate severity brain injury or more from a post-concussion type syndrome with psychosocial confounding factors.[59]
[60]
As can be assumed, at that stage, Dr Bhandari was not clear on the source of Mr Rogers' complaints.
[61]
Associate Professor John Crompton - report 4 May 2015
[62]
Associate Professor John Crompton is an ophthalmologist with a specialty in neuro-ophthalmology. Mr Rogers was referred to him due to problems he was having with his vision. He consulted with Assoc/Prof Crompton on 1 May 2015.
In his report of 4 May 2015, Assoc/Prof Crompton recorded the following:
[63]
Mr Rogers told me that he had been sitting in the cabin of a huge mining truck at work on the 9th August 2014 when an excavator bucket of the machine filling his truck struck the cabin of his own truck very forcibly throwing him sideways such that he hit his forehead on the roll low protection frame. He is not sure about loss of consciousness but has gaps in his memory subsequently. He tells me there was no skull fracture.[60]
[64]
Concluding, Assoc/Prof Crompton said that Mr Rogers had not sustained an actual eye injury and that from a visual point of view, his prognosis was excellent.
Relevantly, the reporting by Assoc/Prof Crompton of what Mr Rogers said to him on 1 May 2015, includes that he was not sure whether there was any loss of consciousness following the accident.
[65]
No abnormalities were observed in Mr Rogers' brain in the MRI scan of 27 July 2015. That scan also viewed his neck. Mild to moderate facet joint degenerative changes were observed throughout Mr Rogers' cervical spine, more pronounced on the left. As in the scan of 15 August 2014, severe narrowing of the left neural foramen at C5/6 was seen. [61]
[66]
Mr Andrew Rothwell - first report 24 August 2015
[67]
Following on from Dr Scamps report, a second neuropsychological opinion was sought from Mr Andrew Rothwell, a clinical psychologist. Mr Rogers consulted with Mr Rothwell on 20 August 2015. Mr Rothwell produced a report incorrectly dated on the first page 24 August 2014, when it was clear elsewhere in that document that the correct year was 2015.[62]
In that report Mr Rothwell referenced Dr Scamps report of 31 October 2014, Mr Rogers' two 'normal' brain scans of 15 August 2014 and 27 July 2015 and the 15/15 GCS score on Mr Rogers' admission to the Port Augusta Hospital.[63]
In similarity to what Dr Scamps was told by Mr Rogers, Mr Rothwell reported that Mr Rogers:
[68]
... described the accident in clear detail up until his head hit the top of the cab and was pushed down into his shoulders. This memory was 'as clear as a bell'. His next memory is seeing another patient handcuffed to the bed next to him in Pt Augusta Hospital. Then he maintains that he cannot recall 'anything much' for three months. However he did recall aspects of the Pt Augusta Hospital including having his father visit him and the fact that it was very noisy.[64]
[69]
Mr Rothwell went on to opine that it appeared that Mr Rogers had actually sustained a moderate to severe brain injury. But, in saying that, he also opined that Mr Rogers had psychological overlay, such that he had not progressed as well as predicted in the last six months. He went onto say that, notwithstanding that Mr Rogers' anxiety disorder was likely amplifying certain sign and symptoms, that 'it is rare for an injury this severe not to be accompanied by some neuroimaging evidence - particularly with MRI.'[65]
As far as future treatment was concerned, Mr Rothwell suggested the services of another psychologist for specific brain injury strategies, especially given Mr Rogers' neuropsychological profile.
Other than Dr Scamps' report of 31 October 2014, the brain scans of 15 August 2014 and 23 July 2015 and the 15/15 GCS score at the Port Augusta Hospital, nowhere else in his report of 24 August 2015, does Mr Rothwell advise of any other documents he had consulted in order to arrive at his opinions. It is therefore safe to assume that he did not have copies of the initial medical records from the Prominent Hill Medical Centre, the RFDS, or SAAS. Also, that he had not seen Prominent Hill Incident Investigation Report, the Prominent Hill Incident Record, nor the witness statements of the excavator operator or the site supervisor. Although, it seems likely that he had some information from the Port Augusta Hospital, but perhaps that was gleaned from Dr Scamps' report. Accordingly, it is not completely clear on what Mr Rothwell based his history of Mr Rogers' injury on, although it appears likely that history was provided predominantly from Mr Rogers.
[70]
Mr Andrew Rothwell - second report 23 January 2016
[71]
The respondent corresponded to Mr Rothwell wondering whether it was time for Mr Rogers to be assessed for a whole of person impairment assessment. With regards to the stability of Mr Rogers' neuropsychological condition, Mr Rothwell said that it would be prudent to wait until the two-year mark post injury - around August 2016 - to assess his impairment. This being as Dr Bhandari (Mr Rogers' treating rehabilitation physician) had wondered about his plateauing recovery, which was agreed was likely due to his psychological factors. Mr Rothwell said that assessing Mr Rogers in August 2016, or soon after, would allow sufficient time for his anxiety to reduce via his psychological treatment, in order to allow for a 'cleaner view of his residual impairment.'[66]
[72]
Mr Rogers was examined by Dr Martin Robinson, a neurologist, on 7 March 2016 at the request of the respondent. Dr Robinson said that whilst he attempted to obtain a history from Mr Rogers, the most meaningful information came from his wife.[67]
Explaining the history that he had been able to elicit, Dr Robinson said that up to the point of the accident, Mr Rogers had a clear recollection of events. However, thereafter he was 'unable to recall much else', saying that he had 'blacked out'. Dr Robinson then recalled the following:
[73]
His presumption is that an emergency response team was called. He feels he may have been taken to the Medical Centre on site at the mine and then evacuated via the Royal Flying Doctor Service to Port Augusta Hospital. He can vaguely recall seeing his father in Port Augusta Hospital ... . Mr Rogers is not sure what day he may have seen his father. Apparently, he spent a few days in Port Augusta Hospital before being discharged He says that for the next 3-4 months he virtually recalls nothing.
[74]
Shortly after his return to Adelaide he did go and see his GP... and an MRI brain scan was arranged. ... The MRI was normal.[68]
[75]
In that same report Dr Robinson commented on diagnosis, saying that was a difficult question to comment on, particularly as:
[76]
Mr Rogers claim of amnesia prevents him from being able to give any useful details. He does claim poor memory of events for 3-4 months following the accident. A number of MRI's subsequently have been unremarkable, and a brain SPECT scan has not shown any significant cortical pathology. Neuropsychological assessments have sworn moderate to severe cognitive dysfunction although these reports could be influenced by pain, fatigue and medication. It is my opinion that if there is a closed head injury then it is likely to have been mild to moderate only.[69]
[77]
With regard to various activities of daily living, Dr Robinson said that Mr Rogers' inability to perform much of those was 'largely more due to psychological' factors rather due to any true organic issues. The perception by Mr Rogers of the severity of his condition being a factor. Acknowledging that there may be some cognitive issues, Dr Robinson said he really should not have major physical problems and that there was no good organic explanation as to why Mr Rogers could not walk properly. He opined that it was highly probable that Mr Rogers had an adjustment disorder with depressed mood and that his presentation was also influenced by chronic pain behaviour. As for a prognosis, Dr Robinson said:
[78]
I feel this is poor. This is largely because of the poor behavioural and personality factors. There seems little motivation for Mr Rogers to return to work. He genuinely believes he has received a serious injury and has been permanently disabled. Until this state of mind changes, he will continue in a chronic sick role.[70]
[79]
In September 2014, Mr Rogers was referred to the Brain Injury Outpatient Service at the Hampstead Rehabilitation Centre. In August 2014, Dr Miranda Jelbart, a rehabilitation physician, began to treat him there. Dr Jelbart authored a report dated 6 July 2016.
With regards to the history of the work injury obtained from Mr Rogers, Dr Jelbart said that after the collision of the excavator bucket to the cabin of his truck:
[80]
... crunching hard on the roof which suddenly deformed downwards, striking him on the head and pushing his head sharply down in-between his shoulder blades while his head was turned to the left as he was looking in the side rear vision mirror - then rebounding.[71]
[81]
As can be seen, Dr Jelbart's account here of the incident of 9 August 2014 contains much more graphic detail as to what was recorded by others, at and about the relevant time. This record is the first suggestion that the truck's cabin roof 'suddenly deformed downwards' which in turn pushed his head down in-between his shoulder blades. That information does not correlate with the contemporaneous documents, including the photographs of the damage sustained. Her comments therefore are somewhat curious.
Although Dr Jelbart did not give oral evidence in this case, I must therefore assume that the history that she records above, came from Mr Rogers and his wife. In that regard, her report of 16 July 2016 has repeated references to what Mr Rogers' wife told her - as well as a reference to a 'dossier' provided.
As for what Mr Rogers heard, saw and remembered of the events of 9 August 2014 and the relevant aftermath, Dr Jelbart recorded:
[82]
He recalls the loud noise and "seeing stars" but thereafter has a very patchy recall for a number of days. ... Evidently, Emergency Services were called, the pit was shut down and he was airlifted to Port Augusta Hospital where he was admitted for 3-4 days and "was sent home in a contract plane" by his workplace, arriving home to the care of his wife. ... Anthony has very patchy recall of the weeks and months which followed.[72]
[83]
As would be apparent, this is the first recording of Mr Rogers saying that he saw stars or heard a specific type of sound.
In her overall summation, Dr Jelbart found Mr Rogers' situation to be 'most complex.' She opined that his injuries were consistent with a moderate to severe traumatic brain injury - in the context of disputed aspects - of what appears to be a legitimate work injury claim.' She said that she had formulated her diagnosis of moderate to severe brain injury based on several factors, being:
Probable loss of consciousness (unknown duration) with apparent period of patchy / impaired memory following the injury and a 4 day hospitalisation. He was not formally assessed for Post Traumatic Amnesia - if he were to have been in PTA for over a week this would (be) an indication of severe traumatic brain injury.
Even though a cognitive screening test performed at Port Augusta Hospital was reported as normal, he could have presented a clinical picture of adequate orientation to the person, date or event, yet remained in post-traumatic amnesia as there was no assessment of his ability for reliable continuous memory thereafter.
Nature of the cognitive processing impairments highlighted by Dr E Scamps gives further weight to Anthony having a more significant brain injury than was thought initially.[73]
[84]
The second above dot-point is clearly a reference to Dr Killcross' cognitive assessment of 6.23am on 10 August 2014. In her report Dr Jelbart went on to say:
[85]
This clinical picture is unfortunately very consistent with adverse sequelae of traumatic brain injury particularly diffuse axonal injury affecting multi-focus regions. Such damage may not be evident on CT or MRI if it occurred at cellular level below (the) resolution of scanners. He is now significantly impaired.[74]
[86]
Despite making the above comments, it is not clear from the rest of her report as to whether Dr Jelbart was referring to any specific scan result or was determinatively saying that Mr Rogers had in fact sustained such brain damage at the cellular level.
[87]
When Dr Jelbart had asked him how he had been travelling in the last few months, Mr Rogers said 'terrible'. In her report of 11 November 2016, Dr Jelbart also recorded that he said he still had not recovered from the jarring impact on his back and neck and now feels more despondent, being distressed at an apparent ongoing fraud investigation by the respondent. In this report, along with many physiological complaints, Dr Jelbart recorded that Mr Rogers still had significant daily unpleasant post traumatic headaches.[75]
Accordingly, Dr Jelbart said she would refer him to a pain specialist.
[88]
Upon Dr Jelbart's referral Mr Rogers consulted with Dr Bruce Rounsefell, a pain consultant.
In his report of 6 December 2016, Dr Rounsefell, noted Mr Rogers 'lengthy and complex medical, WorkCover, psychosocial, and emotional issues'. He recorded that Mr Rogers reported three different kinds of headaches to him, being:
A deep and general feeling of headache deep inside his head but mainly on the left-hand side.
His "3 o'clock headache". He calls it this because it occurs almost exactly at 3pm on most days and this is a very localised headache involving his forehead, occiput and the area in between especially on the left his scalp. This takes many hours to resolve and he sometimes takes some of his medication earlier to try and cope with it.
The third left sided pain is more deeply in his neck which seems to rise up on the left-hand side and incorporate itself into the other headaches.[76]
Dr Rounsefell said that his impression was of a significant cervicogenic component to his headache, involving the left-hand side of his neck. He treated Mr Rogers with injections of Bupivacaine, three sites in his neck and the frontalis muscle on his left, which provided 'almost instant significant relief from his neck pain and his headaches.'[77]
[89]
Responding to a request from Mr Rogers' lawyers, the neurologist Dr Martin Robinson authored a further report dated 18 December 2017. After viewing MRI scan reports and other medical documents, such as reports from Assoc/Prof Crompton and Dr Jelbart, Dr Robinson said those documents all alluded to significant psychological issues and that there was clearly 'a large psychological component to Mr Rogers presentation.' He further said that in the absence of specific reports from the time of the work injury that it was difficult to speculate whether Mr Rogers has, in fact, suffered a serious brain injury. Therefore, he said, it was impossible to comment on his neurological state at the time of the injury. Importantly, Dr Robinson went on to opine:
[90]
In terms of my use of the phrase "serious injury" in reference to Mr Rogers, I refer to the definition of serious brain injury. To assess this, one needs to have some idea of the duration of loss of consciousness and of his Glasgow Coma Scale score when initially assessed. Given that such information is not available, or what information is available, would suggest that there was not a prolonged loss of consciousness nor any significant disruption in his Glasgow Coma Scale, nor any abnormality on MRI scan or CT brain scan subsequently, one can only assume that if there was any brain injury it would be in the mild to possibly moderate class at worst.[78] (emphasis added)
[91]
Mr Rogers was examined by Dr Josh Munn, a consultant occupational physician, at the request of the respondent on 12 December 2017. Dr Munn authored a report with regard to the examination, dated 22 December 2017.
Dr Munn recorded that Mr Rogers told him in the accident of 9 August 2014, he was looking at the left-hand window and as such the left part of his head hit the left side of the roll cage and door of the vehicle. Mr Rogers said that after that impact 'he essentially had no recollection', then telling Dr Munn that his first recall of events were vague flashes of faces at the Port Augusta Hospital. He also said that he had no real recall (normal memory) for the next couple of years after the accident.[79]
With regards to barriers that may prevent Mr Rogers returning to work, Dr Munn said that 'he has significant concurrent issues primarily related to his diagnosed brain injury.' Dr Munn said that such problems were, postural tolerance and dizziness as well as difficulty with speech, memory, cognition, recurrent headaches, rapid fatigue and mood disorders. As for future treatment, Dr Munn recommended a pain management physician and the progressive withdrawal of opiate based medication as soon as practicable[80]
[92]
At the request of the respondent, Mr Rogers was examined by Dr Sara Lucas, a neuropsychologist, on 11 December 2017. Dr Lucas provided a very detailed report regarding that examination dated 5 January 2018.
For the purposes of that report Dr Lucas had perused many medical reports and documents provided to her. Dr Lucas also performed many neuropsychological tests on Mr Rogers. With regards to how Mr Rogers presented on that day, Dr Lucas said that conversational language was extremely slow with Mr Rogers having word finding problems. She said his sentences or responses sometimes petered out over time and that he was not able to provide a very detailed history, with his wife filling in many of the gaps.[81]
On the history provided to her about the work injury, Dr Lucas recorded that Mr Rogers recalled the excavator bucket swinging towards him ('I see it every day'), then seeing stars, then nothing. His next memory being waking up at the Port Augusta Hospital.[82]
Comparing the results from the earlier neuropsychological testing performed by Dr Scamps and Mr Rothwell, Dr Lucas said that there had been a decline in the performance of Mr Rogers in the effort tests. That meant that the results she had elicited were invalid whereas, previous test results were seemingly valid. Consistent with that, Dr Lucas said, there was also a substantial decline in the overall test performance especially relating to processing speed, verbal fluency, and memory performance. Further, there was a decline in his mood state relating to stress and depression and similarly maximal anxiety.[83]
With regards to her summation and assessment, Dr Lucas said that it was possible that the severity of Mr Rogers' brain injury fell somewhere between mild and moderate, but that she did not consider it to be any more severe than that. Discussing the earlier neuropsychological assessments, Dr Lucas opined that the nine week post injury results obtained by Dr Scamps showed relatively intact verbal comprehension and executive functions, but changes in perceptual reasoning, working memory, new learning and memory and a significant change in information processing speeds. Dr Lucas recorded that Dr Scamps felt there were also symptoms of an acute stress disorder.[84]
[93]
It also appears that he has become increasingly entrenched in his beliefs about his symptoms and the sick role that has developed. In keeping with this, he has provided valid results on previous neuropsychological assessments with relatively mild cognitive defects but his symptoms on the current testing were invalid and suggest a degree of exaggeration. His current test results were also significantly worse than previous measures from 2014 and 2015 which is not in keeping with traumatic brain injury being the cause. Given the lack of valid findings on this occasion it is difficult to draw firm conclusions about diagnosis but there is clearly a strong psychogenic or functional overlay to his symptoms which is likely impeding any ability to come to recover.
[94]
... he probably had earlier symptoms associated with traumatic brain injury, but these would normally have recovered to a reasonable degree (although final outcome is difficult to opine on, given the unusual trajectory of his symptoms).
[95]
His current level of symptomatology is not in keeping with the stated cause and it is my opinion that his symptoms have become increasingly functional or psychological and potentially with the influence from problems he has had with his employer and the insurance process. He appears to be motivated to maintain his current level of disability, although the underlying cause of this is unclear. He expressed a lot of negativity, distrust and anger towards his employer and the insurer throughout the session.[86]
[96]
On the question of Mr Rogers presentation of a "closed head injury", Dr Lucas said:
[97]
He reports significant post-concussive symptoms, more than is normally observed in people with a similar level of injury. Whilst they can be a lot of variation in outcome relating to the symptoms, the fact that they appear to have worsened over time despite extensive allied health treatment suggests they are not primarily related to the closed head injury. ...
[98]
Mr Rogers likely had a mild degree of cognitive deficit in the early stages of his recovery related to brain injury, but his cognition substantially worsened over time which suggest that any current effects are not related closed head injury.[87]
[99]
As for any barriers preventing Mr Rogers' recovery, Dr Lucas opined:
[100]
... it is likely that there are some pre-existing personality features which may be impacting on his reaction to the accident and associated injuries, although given current information it is difficult to be more definitive ... It is highly likely that there are psychogenic factors at play in relation to his current symptoms. Regarding the validity of the current test results, it is difficult to definitively determine the motivational factors behind this and to identify whether poor effort on the tests is a conscious or subconscious process.
[101]
It is clear that he has developed an increasingly entrenched sick role and that his level of disability has gradually increased over time due to non-organic factors.[88]
[102]
And, as for any other final comments, Dr Lucas said:
[103]
This is clearly an extremely complicated matter with many motivations and emotions involved. Mr Rogers perceives that he has been wronged and treated very poorly by his employer and also by the insurer which has impacted on his belief in the system. I believe this has contributed to his poor outcome.[89]
[104]
Mr Rogers' lawyers arranged for him to be examined by Dr Adrian Winsor, a consultant in rehabilitation medicine. The examination took place on 25 May 2018. To assist him, Dr Winsor was provided with some 48 medical documents relevant to Mr Rogers.[90]
Dr Winsor's very detailed report of 6 June 2018 totalled 22 pages. Not all of that content is relevant to the issues in dispute in these proceedings. Suffice it to say however, Dr Winsor's recount of what Mr Rogers told him on 25 May 2018, as set out in the below paragraph, is of significance:
[105]
Mr Rogers stated the incident at work on 9th August 2014 ... . When the excavator bucket struck the truck the truck was jolted and his head struck the side of the cab. He says he 'saw sparks in his eyes' and a sound like a 'watermelon hitting concrete'. He states he has patchy recognition of being at Port Augusta Hospital ... . Mr Rogers stated that his memory and thinking had been poor for some eighteen months after the incident. ... . He stated as well as problems with his thinking he had had difficulty talking and that he kept collapsing, passing out and suffered 'head spins'. He said his head hurt and he 'felt like he was in a whirlpool'. ... .[91]
[106]
As would be apparent, this is the first recording of Mr Rogers' florid description that he heard a sound like a watermelon hitting concrete.
Specifically asked as to seriously injured worker status (30% WPI or more), Dr Winsor opined:
[107]
... the information in the work incident reports indicate that he was able to use the radio to advise the operator of the excavator that he had struck his head within moments of the incident ... . Mr Rogers was conscious, able to speak, open the cabin door on instruction and move, albeit unsteadily within the cab of the truck. The nurse at the mine site confirmed to the first medical practitioner ... that if Mr Rogers had lost consciousness then it was only momentary. Dr Killross who assessed and managed Mr Rogers over the two days immediately after the incident found he had an initial GCS of 15/15 and there was no abnormality on neurological testing including a mental state examination.
[108]
An MRI of the brain performed six days after the head strike was normal
[109]
Mr Rogers himself states that there was no loss of memory prior to the head strike. Furthermore he says that when his head struck the inside of the cab he 'saw stars' and heard a sound like a 'watermelon hitting concrete'. People who lose consciousness have a loss of memory for the time of the impact and at least a few moments before.[92]
[110]
Summarising the opinions of Dr Winsor in his report, he was critical of the assessments of other specialists, who he opined assumed an incorrect mechanism of injury for Mr Rogers. He said that Mr Rogers presented with 'a bewildering array of symptoms', which were inconsistent and variable. He concluded that Mr Rogers had suffered a head strike, soft tissue injury to his neck, and he may have suffered a momentary loss of consciousness. But he did not believe that he did, and that any symptoms he may have suffered from should have resolved within a month of the head strike. With regards to a medical diagnosis, he opined he could not provide one, saying, 'I consider Mr Rogers' presentation can be understood in a social and employment framework, but not in a medical one.' And, as for permanent impairment, in his opinion, Mr Rogers did not have any from the incident of 9 August 2014.[93]
In that regard, Dr Winsor went on to comment on the WorkCover Guidelines for the evaluation of permanent impairment and AMA5, saying that they disallow combination of cerebral impairments.[94]
Furthermore, Dr Winsor opined, that paragraph [5.8] of the WorkCover Guidelines, provided that in assessing disturbances of mental state and integrated function and emotional or behavioural disturbances, the assessor should make ratings based on clinical assessment and results of neuropsychometric testing, the relevant clinical assessment should indicate at least one of the following: Significant medically verified abnormalities in the initial post injury GCS score; Significant duration of PTA; Significant intracranial pathology on CT or MRI.[95]
Dr Winsor said that any neuropsychological testing should be conducted by a registered psychologist who specialises in clinical neuropsychology. In that regard, he said that the most recent such testing of Mr Rogers' was, in his opinion, invalid.
With regards to Mr Rogers, Dr Winsor opined that his first documented GCS score was 15/15 and that no PTA testing was performed. Also, that the MRI Scan of August 2014 was normal. Accordingly, Dr Winsor considered that Mr Rogers did not have a rateable central nervous system impairment.[96]
As can be seen above, Dr Winsor was incorrect in his view that Mr Rogers' first documented GCS score was 15/15. In fact, Mr Rogers score 14/15 and 13/15 for the period 9.30pm to 11.30pm on the day of the work injury and only scored 15/15 at 12.30am on the following day.
[111]
As stated at the outset of this judgment, the centrepiece of this case is the opinion of Dr John Bastian. His first report dated 11 May 2019, which I have described above, formed the basis of the respondent's decision of 41% WPI. He provided a second report to the respondent dated 16 July 2019. And a third report was provided to Mr Rogers' lawyers dated 17 October 2021. [98]
Of relevance to the issues in dispute, in his first report, when speaking about Mr Rogers' work injury, Dr Bastian said that on the basis of documents he had read, Mr Rogers had 'reported seeing stars and passing out' at and immediately after the incident. And, that he reported not really recalling what had transpired for some time, including how he got home.[99]
Drawing attention to its pertinence, Dr Bastian emphasised Mr Egel's letter of 9 August 2014, saying that from the history obtained, 'Mr Rogers did suffer a loss of consciousness.' And:
[112]
I note on arrival of the Emergency Services, he was disorientated to time, place and person, and complaining of a frontal headache and upper neck pain along with feeling nauseated. By the time he got to the health centre, his Glasgow Coma Scale was still 13-14. He was found to have some short-term memory loss, with an ongoing headache.[100]
[113]
Speaking of his examination of Mr Rogers', Dr Bastian said that it 'was very concerning' and 'very difficult to obtain a clear history'. He said Mr Rogers swore frequently during the consultation and made numerous derogatory comments about the way he perceived, he has been treated and how he felt the report would be written: 'you have already made up your mind about me by looking at you'. Towards the end of the consultation, Dr Bastian said that Mr Rogers became quite upset saying that he felt like he had not been able to give his full history - that being despite the relative length of the consultation.[101]
With regards to earlier medical opinions, Dr Bastian noted the opinion of Dr Scamps (from her report of 31 October 2014) that Mr Rogers 'may have been in a PTA for well over 24 hours'.[102]
In his examination of him, Dr Bastian performed his own cogitative testing on Mr Rogers. In that regard, it was recorded that Mr Rogers was aware of the day, month and year, but that he did not know the date. It was also recorded that Mr Rogers was aware of the 'pending (political) election and could point to the direction of 'the beach'. Also, that he could perform simple calculation, although he was very slow at performing serial 3's, repeating one number twice and getting another incorrect. Dr Bastian then opined that he 'found it difficult to comprehend his lack of ability to repeat a name and address'. Also, Dr Bastian recorded that Mr Rogers had difficulty dealing with a question to describe the differences between a dwarf and a child as they get older. With regards to visual cognitive testing, Dr Bastian recorded that Mr Rogers was able to correctly put all the numbers on a clock face but, he put the hands in an incorrect position when asked to demonstrate a particular time. Also, Mr Rogers found it difficult to copy a cube, recommencing that task on a few occasions.[103]
I have set out the above cognitive testing recorded by Dr Bastian in full detail so that it can be compared and contrasted with the Westmead PTA Scale. And, for that matter, the cognitive testing performed by Dr Killcross at the Port Augusta Hospital at 6.23am on 10 August 2014. As can be seen there are similarities, and there are differences, between the diagnostic scale and the testing performed.
[114]
He was not assessed for post-traumatic amnesia, but I strongly suspect in view of the history and his reported initial Glasgow Coma Scale, that he did have a post-traumatic amnesia of greater than 12 hours.[106]
[115]
On that basis, Dr Bastian said that he would proceed with the assessment, which he did as set out at [31-[33] above. THIS IS ALSO AN ERROR
[116]
The respondent corresponded to Dr Bastian seeking his views on Dr Winsor's thoughts with regard to Mr Rogers traumatic brain injury (his report of 6 June 2020, which in fact had been provided to Dr Bastian in advance of his first report). Like Dr Bastian, Dr Winsor's speciality is rehabilitation medicine.
In his second report, Dr Bastian reiterated that Mr Rogers' case was very complex. He said that Mr Rogers had been assessed by two specialist both working in the field of traumatic brain injury, being Dr Les Koopowitz, a neuropsychiatrist and Dr Miranda Jelbart. Dr Bastian said that the opinions of such eminent persons working in the relevant field of medical practice could not be taken lightly.[107]
Noting Dr Winsor's comments of Mr Rogers saying that he saw sparks in his eyes and heard a sound like a watermelon hitting concrete, Dr Bastian opined that such descriptors, in their own right, were quite significant. Another issue that was 'very relevant' Dr Bastian opined was that by the time Mr Rogers had reached the Prominent Hill Medical Centre his GCS score was 13-14. In support of his opinion that Mr Rogers did suffer PTA at the time, Dr Bastian said was, his reports of not remembering being transferred from the mine site and that he 'couldn't tell his wife what had happened.'
Confirming that at the first medical examination at the Port Augusta Hospital Dr Killcross's recorded Mr Rogers' GCS score at 15/15, Dr Bastian went on to say that he (Dr Killcross) 'did assess some aspects of cognitive function, including if he could perform serial 7s'. This comment was no doubt in relation to the medical notes made by Dr Killcross at 6.23am on 10 August 2014,([59] above). Dr Bastian then opined that it was important to appreciate that 'the ability to perform serial 7's does not exclude PTA.'[108]
Further in that report, Dr Bastian opined that 'one can have PTA without losing consciousness.' And, that the only way to assess PTA is to use a validated tool such as the Westmead PTA Scale. He confirmed, as Dr Scamps previously did, that no validated tool was used in Mr Rogers' case.[109]
And, on the issue of PTA, Dr Bastian then commented that, 'I do not really feel that one can ignore the reports from the neuropsychologists Dr Scamps and Dr A Rothwell.'He also commented that it was important to appreciate that one can have a normal MRI scan of the brain but may have still suffered a diffuse axonal injury or dysfunction at a cellular level.
[117]
Dr Michael Wood is an experienced clinical neuropsychologist with special expertise in the assessment and treatment of traumatic brain injury, depression, age related neurological disorders as well as the psychological effects of trauma. He authored a report dated 2 September 2021.[112]
The symptoms that may occur within a short period, after a mild to moderate traumatic brain injury, in Dr Wood's opinion, include: headaches, fatigue, dizziness, sleep disturbance, impaired recent memory, depression, anxiety, loss of appetite, limited ability to think, poor concentration, blurred vision, impaired coordination, noise sensitivity, lack of patients, and vertigo. He said impaired concentration was one of the least common symptoms (24.2%), whereas headaches were the most common symptoms (69.4% and up to 78%). He also opined that depression and anxiety are unlikely to have any organic origin.[113]
In his opinion, Dr Wood said that an uncomplicated minor traumatic brain injury would be characterised by a possible, very brief, period of loss of concentration and post-traumatic amnesia that is less than 24 hours in duration. He also said that a mild traumatic brain injury does not result in gross structural changes of the brain, being rare for such patients to suffer from any structural changes, as identified on a CT scan, or requiring neurosurgical intervention. Most such patients, he said, will recover over a period of days or weeks after the injury. In those rare cases where symptoms persist, Dr Wood said a diagnosis of post-concussion syndrome is made, and that extensive research in Australia and overseas has identified a range of non-organic factors that play a significant role in the development, and persistence of such symptoms. In that regard, the research literature indicated that such symptoms are largely the result of a combination of psychological and attitudinal factors. A significant factor in perpetuating the symptoms, and preventing a good recovery, he said, was conviction on the part of the patient that he/she has suffered a brain injury.[114]
Post-traumatic amnesia (PTA), Dr Wood said, has been variously described as the period during which new memories are not laid down. Information presented is either not retained by the patient or is only retained in small, circumscribed amounts, sometimes referred to as the islets of memory. Giving an example, Dr Wood said that a patient who has suffered a mild to moderate traumatic brain injury may recall isolated events and still be in PTA. During that period, the patient may be conscious and appear to converse meaningfully, but they have no or very little memory of what has transpired whilst in PTA.
[118]
Associate Professor Brian Brophy - report 2 September 2021
[119]
At the request of the respondent, Associate Professor Brian Brophy, a neurosurgeon with special interest in brain, spine and peripheral nerve problems, reviewed documentation and file material with regards to Mr Rogers. His report of 2 September 2021 was based on the detailed examination of that material, and not on any clinical assessment of Mr Rogers.[118]
In his report, Assoc/Prof Brophy focussed on PTA, including its evaluation and treatment. He opined that PTA is regarded as an index of the severity of brain trauma in closed head injury and, for example, a PTA up to 12 hours would be regarded as a mild brain injury. He said that severe brain injury would be where PTA is present for more than one week. Further, that PTA refers to memory loss for the event, and for a variable period thereafter. He said that it was not possible for PTA to exist in the absence of any impairment of memory.[119]
On the issue of loss of consciousness, Assoc/Prof Brophy said that, whilst in the past that state was considered an essential feature of a concussion diagnosis, that was no longer the case. He said if there was a definite loss of consciousness, then a period of PTA would be expected.[120]
The tools to assess PTA, Assoc/Prof Brophy said, vary from hospital to hospital, but in the case of minor brain injury, the Westmead PTA Scale is often used. He said that that scale included the Glasgow Coma Scale. As far as frequency of testing, Assoc/Prof Brophy said that PTA should be assessed hourly in the case of mild traumatic brain injury, and daily in moderate to severe brain injury. In that regard, he said the GCS may give some index of the severity of the head injury in order to deduce the likelihood of PTA: if an individual has a poor GCS, then PTA in the moderate to severe range would be expected. Further, that severe impact of the head implies acute deceleration such as that which occurs with closed head trauma the clinical evidence implying a severe impact to the head would be reflected in the GCS score. He said that a GCS score of less than 9 implies a severe brain injury and that a PTA of 12 hours of more implies a minor brain injury.[121]
Speaking of the accuracy of PTA testing, Assoc/Prof Brophy said that this was the least objective of the features of a significant brain injury. This being as it is often assessed retrospectively and is subject to significant error. He said evidence of brain injury on a CT scan can indicate a complicated mild brain injury or more severe brain injury.
[120]
In October 2021, Mr Rogers' lawyers wrote to Dr Bastian asking him a series of questions with regards to his permanent impairment assessment report of 11 May 2019. That being in the context of Thiess disputing the respondent's decision of 13 August 2019.
In that third report from him of 17 October 2021, Dr Bastian set out that he had reviewed the Prominent Hill incident records. He said there was a mention that the excavator operator went to Mr Rogers aid, found him 'dazed and confused'. He said that, as detailed in his first report, 'Mr Rogers reported that he had passed out after the incident' and that based on the registered nurse's reporting, 'it was felt that his Glasgow Coma Scale was still 13-14 at that time.'[124]
In addressing a criticism of his first report, regarding evidence of injury to Mr Rogers' head due to the serve/high energy impact, Dr Bastian said if in fact, Mr Rogers did briefly lose consciousness, then his GCS score would have been 9 or 10, although he acknowledged that score was not clinically documented at the time. As for that initial neuropsychological assessment, Dr Bastian said that was as object test as one could get in such a situation.[125]
Stressing that the end point was still the same whichever way it was looked at - Mr Rogers was not functioning well at all - Dr Bastian opined that it was extremely difficult to apportion any underlying psychologic factors or neurobehavioral dysfunctions due to consequential mental harm. Saying that if there was to be any apportionment from a cognitive perspective, that it such come from an expert in the area: Dr Les Koopowitz or Dr Miranda Jelbart, both of whom had already had involvement with Mr Rogers. Armed with such an opinion, Dr Bastian then said:
[121]
One could then consider that part of the (Mr Rogers') impairment could be related to the neurobehavioral table in AMA5 Guides. I am unable to offer any further opinion in relation to organic cognitive vs neurobehavioral issues, though with the same outcome of a significant disability.[126]
[122]
The point there being that there are different methods of assessment (tables) in ch 13 of AMA5 with regards to the criteria for rating impairments of the nervous system and mental and behavioural disorders.
[123]
Dr Bastian was the only witness called to give oral evidence in these proceedings, where he answered questions put to him by all three parties. Curiously, Dr Bastian was agitated, and at times abrupt, in cross-examination. He frequently answered questions in his own way, rather than providing a direct response to the topic at issue.
Dr Bastian was first asked about his various comments regarding the complexity and concerning nature of Mr Rogers case. He said that Mr Rogers obviously had very significant psychiatric issues. Also, that competing diagnoses had been raised; there were very different opinions from various experts regarding the issues of brain injury and psychiatric disorders. With regards to Dr Scamps, he said that she was a very eminent neuropsychologist.[127]
Taken to the report of Assoc/Prof Brophy, Dr Bastian confirmed that whilst he would defer to his opinion on neurosurgery, he would not with regards to brain injury. Explaining that, he said Assoc/Prof Brophy specialised in neurosurgical intervention, whereas he specialised in the rehabilitation of severe brain injury. Adding that Mr Rogers had had no neurosurgical intervention and did have a brain injury.[128]
On the issue of a neuropsychological assessment, undertaken by a neuropsychologist, to objectively assess any of Mr Rogers' such deficits - before he undertook his permanent impairment assessment (on 11 May 2019) - Dr Bastian said that Dr Scamps' report (31 October 2014) and Mr Rothwell's report (24 August 2015) were two such evaluations. And that he had read both of those in detail. Asked then about the more recent report from Dr Lucas (5 January 2018), Dr Bastian said her opinions were 'partially correct and incorrect'. He emphasised that Mr Rogers' initial GCS score was 13-14, that there was a CT scan which showed a decreased profusion of the left temporal lobe which control memory and that over the following three or four years there was a marked deterioration in Mr Rogers' presentation due to depression, paranoia and medication. Accordingly, he opined that the testing performed by Dr Lucas was 'invalid'.[129]
It is to be noted at this juncture that it is unclear what document Dr Bastian was referring to with his comments on a CT scan showing a decreased profusion of the left temporal lobe. Earlier in his evidence he had mentioned talking with Dr Jelbart the day before, and then later in his cross-examination he referenced the views of Dr Jelbart and said that in recent years there had been articles that indicate that a person could have a normal MRI scan result (as Mr Rogers did), but still have mild to moderate traumatic brain injury, as such scans do not pick up cellular level dysfunction. However, during that discussion Dr Bastian referred to MRI scans and appeared to reference the 'second scan' done by Dr Jelbart.
[124]
... his wife felt that he was very confused, didn't recall calling his wife, didn't recall going to the hospital. That suggests he was in PTA for at least 24 hours, which suggests he has had at least a mild to moderate traumatic brain injury.[135]
[125]
Asked then whether the information given to him by Mr Rogers' wife, formed part of his opinion that Mr Rogers' was in PTA for more than 12 hours, Dr Bastian said, 'its only part of the puzzle.'[136]
When addressing Mr Rogers' GCS scores , Dr Bastian said that 15 was normal, 13-14 is usually mild brain injury, 9-12 would be moderate brain injury and below that would be severe. He reiterated that there was no GCS score at the time Mr Rogers' truck was hit by the excavator bucket, saying:
[126]
And it has also been raised that he was initially unconscious for a brief period of time, which would bring down this score to about 9 or 10 initially. But it does confirm there was obviously evidence of a brain injury.[137]
[127]
Leaning into his earlier opinion, from his first and third reports, regarding the loss of consciousness issue, Dr Bastian reiterated that his estimate of 9 or 10 was at the time of the impact - 'at that moment in time', although he couldn't say:
[128]
... if it's 7, 8, 9 or 10, but it would be less than 13 or 14. If you're unconscious, you wouldn't respond. You might respond to pain. But no one was there to assess him at the time, so I'm saying it would've been lower if it had been unconscious, yes.[138]
[129]
Comments of the site supervisor's witness statement were eventually put to Dr Bastian; that at the accident scene Mr Rogers was talking and was able to walk, albeit unsteadily. Dr Bastian then agreed that if Mr Rogers was able to at least converse with a colleague at the time, that that would be suggestive that he had not lost consciousness.[139]
On the issue of Dr Winsor's thesis, that Mr Rogers could not have lost consciousness because he recalled the sparks in his eyes, the sound of a watermelon hitting concrete and could recount what occurred in the cabin of the truck; Dr Bastian said such a postulation was not unreasonable. He said that there can be variable memory from traumatic head injuries and that 'no one can give a definitive answer in that regard, including myself.'[140]
As to what information was important to him in arriving at his opinions regarding Mr Rogers' diagnosis and assessment, Dr Bastian said:
[130]
I have mainly focused on the comments by the person who first found him in the truck, and the nurse's comments about the initial Glasgow Coma Scale utilised my thoughts on his initial injury...[141]
[131]
As for Dr Robinson's opinion that if Mr Rogers' did have 'any brain injury, it would be in the mild to possibly moderate class at worst', Dr Bastian agreed that there was nothing he would disagree with in that analysis.[142]
When taken to the three limbs of [5.10] of the IAG, Dr Bastian agreed that he decided he could proceed with the assessment because he considered that Mr Rogers had a PTA of greater than 12 hours (second limb). But he also added '... and the fact he'd had a positive scan showing hypoperfusion of the left temporal lobe.' Also, adding, as he had said before, 'but it's not a straightforward case.'[143]
As before, Dr Bastian did not elaborate on the left temporal lobe issue, nor did he identify the relevant scan.
With regards to Dr Scamps opinion, that Mr Rogers had been in PTA for well over 24 hours after the work injury, Dr Bastian agreed saying, 'well, I think she's saying what I've been saying, and I guess she had the same opinion that I thought when I saw him... .'[144]
Discussing PTA, Dr Bastian said:
[132]
So, if someone is confused, someone goes home from somewhere and they're still confused, they can't think, they can't think clearly, they can't recall what's happening, that suggests they're still in post-traumatic amnesia. Unfortunately, it wasn't assessed. If this man had been sent to the Adelaide or Flinders following injury in Adelaide, I'm sure he may well have been admitted to hospital and had - undergone a formal PTA testing by a speech pathologist either in A&E or on the ward. So, I think he was managed differently in a country setting because they have no option, but it would've been different in a tertiary institution.[145]
[133]
Dr Bastian's comment there, that Mr Rogers' PTA was not assessed, omits reference to Dr Killcross's cognitive assessment.
In discussing "concussion", Dr Bastian said such an injury could arise from a closed head injury, and that the term usually implies a less severe brain injury which may not show any identifiable structural abnormalities on a CT scan or MRI scan, he also said: :
[134]
Well, I mean, the man has had a head injury. He had a reduced Glasgow Coma Scale, there's no denying that. It's been documented in the notes that he was confused, disorientated and had a reduced Glasgow Coma Scale. I can't make any further comment than that. That's been documented in the notes.[146]
[135]
On the issue of Mr Rogers' psychiatric and psychological symptoms, Dr Bastian accepted that they commenced 'early in the piece', very shortly after the work injury[147] and that Mr Rogers presentation was multifaceted: 'its neurobehavioral, it is psychiatric, it is also caused by medication, so it is iatrogenic, and there is a brain injury all combined together.'[148]
Dr Bastian also agreed that he had taken into account Mr Rogers underlying psychological factors in making his final assessment.[149] He said that his impairment assessments of Mr Rogers would not change, 'because it would be organic cognitive plus neurobehavioral caused by brain injury, as compared to psychiatric' and that he hadn't included the psychiatric as that was separate altogether.[150]
[136]
Thiess submitted that Dr Bastian's WPI assessment of 20% for Mr Rogers' brain injury was an unsafe conclusion as he:
failed to identify evidence to safely find that Mr Rogers' alleged closed head injury resulted from a severe impact to the head or that the injury involved a high energy impact as required by [5.10] of the IAG;
erred in finding clinically documented abnormalities in the initial post injury GCS of 9 or below;
failed to have any or any sufficient regard to the available clinical evidence[151] in determining whether Mr Rogers suffered PTA for a period of greater than 12 hours;
erred in finding that Mr Rogers suffered a loss of consciousness in the absence of any reliable evidence in support;
failed to comply with Part 5.9 of the IAG in failing to consider or give adequate consideration to the neuropsychological assessment of Dr Lucas undertaken in late 2017 and/or considering the neuropsychological assessments in the context of the overall clinical history, examination and radiological findings;
failed to find that the medical and factual complexity of Mr Rogers' medical condition(s) necessitated further neuropsychological testing and assessment by a neuropsychologist in order to be able to safely determine the extent of impairment arising from an organic brain injury as opposed to consequential mental harm;
erred in relying on the neuropsychological assessment of Dr Scamps undertaken on 17 October 2014, only two months after Mr Rogers' injury was sustained and in disregarding the qualification given by Neuropsychologist Mr Rothwell, in his assessment undertaken on 20 August 2015;
failed to properly assess, disregard and/or take into account the extent to which the Mr Rogers' level of impairment was likely due to consequential mental harm in the nature of:
[137]
as required by section 22(8)(e) of the RTW Act.[152]
[138]
With regards to its request for a medical question to be referred to an IMA, Thiess relied on the Application for Directions it had filed on 23 March 2020.[153] That application was discussed by Deputy President Cole in his 1 June 2021 judgment. There, his Honour set out the following orders sought by Thiess:
That the Tribunal, pursuant to section 121 of the (RTW) Act, refer to one (1) or more independent medical advisors, medical questions and medical questions (sic) arising from the within proceedings in respect of:
[139]
a) The assessment of whole person impairment under the Impairment Assessment Guidelines, and in particular:
>
> 1. the assessment of the worker's cognition and whether there is evidence of (sic) the worker's claimed head injury involved a severe impact to the head or a high energy impact as required under Part 5.10 of the Impairment Assessment Guidelines?
> 2. the assessment of traumatic brain injury, and whether at least one of the following has been confirmed:
[140]
(1) clinically documented abnormalities in initial post injury Glasgow Coma Scale score of nine or below,
[141]
(2) significant duration of post traumatic amnesia, greater than 12 hours, or
[142]
(3) significant intracranial pathology on CT scan or MRI.
[143]
whether any of assessable impairments arise from any physical injury in the nature of a traumatic brain injury as required under the Impairment Assessment Guidelines and in particular:
[144]
(1) whether any assessable impairment results wholly or in part from consequential mental harm?
[145]
(2) whether any assessable impairment results wholly or in part from a psychiatric injury?[154]
[146]
As above, Thiess relied upon s 121 of the RTW Act as the source of power for the IMA referral, that section set out as below:
[147]
(1) The Tribunal or a court may, on its own initiative or an application by a party to proceedings before the Tribunal or court, refer any medical question or questions arising in proceedings before the Tribunal or court to 1 or more independent medical advisers specified by the Tribunal or court for inquiry and report.
[148]
(a) the rules of the Tribunal or the court may specify when a medical question must be referred to 1 or more independent medical advisers; and
(b) the selection of an independent medical adviser must be consistent with any principle or process prescribed by the regulations (including any process which determines which independent medical adviser should be used); and
(c) different medical questions may be referred to different independent medical advisers as part of the same proceedings; and
(d) to the extent that a medical question is referred to more than 1 independent medical adviser, any dispute between the independent medical advisers will be resolved in a manner specified or determined by the Tribunal or the court (as the case may be); and
(e) the question or questions to be referred to an independent medical adviser will be framed by the Tribunal or court after inviting submissions from the parties to the proceedings.
[149]
The central theme of the submissions for Mr Rogers were to the effect that Thiess had not adduced any cogent evidence, or indeed, any evidence that cast doubt on the accuracy of Dr Bastian's permanent impairment assessment. In that regard, what Thiess would need to show was "error" on Dr Bastian's behalf, not merely that another assessor may arrive at a different outcome. Accordingly, so it was argued, there was no warrant in an IMA referral.[155]
With regards to the suggestion that there had been no 'severe impact to the head or a high energy impact', Mr Rogers' argued that the verb "should" within [5.10] of the IAG was of importance. That is, the guideline was not expressed in mandatory terms. In any event, it was also submitted that there was in fact evidence before Dr Bastian of severe impact or a high energy impact. Mr Rogers' history to him as well as the Prominent Hill material was pointed towards.[156]
On the important issue of the second limb of [5.10], 'significant duration of post traumatic amnesia, greater than 12 hours', the argument for Mr Rogers was that the IAG did not require objective evidence, but simply 'confirmation' by the assessor. Which, in this case, was present. Dr Bastian's comment, 'I strongly suspect in view of the history and reported initial Glasgow Coma Scale, that he did have a post-traumatic amnesia of greater than 12 hours', was therefore relied upon. Further, that although that conclusion may have been the determination of a "question of fact", it was nevertheless one that Dr Bastian - and not this Tribunal - was entitled, able and required to make when applying the art and science of his own clinical judgment.[157]
Mr Rogers' history to Dr Bastian was also argued to be adequate, or at least not erroneous. The fact that there is variation is certain histories to other medical practitioner over the years, was not a basis - so it was argued - to cast doubt on Dr Bastian's assessment.[158]
On the topic of Dr Winsor, the contention for Mr Rogers was that his report was problematic. First, Dr Winsor had failed to provide a medical diagnosis. And next, Dr Winsor opined that Mr Rogers' symptoms should have resolved within one month and that was contrary to all of the other evidence (particularly Dr Scamps and Dr Jelbart). It was also noted that after consulting Dr Winsor's report, that Dr Bastian did not change his opinion.
[150]
Like Mr Rogers, the respondent submitted that no evidence had been received in the case that would establish that Dr Bastian's assessment lacked the necessary foundation of fact, nor that it was not compliant with s 22 of the RTW Act. And, without such evidence, it had not been demonstrated that Dr Bastian's assessment had miscarried. That being the case, there was insufficient irregularities for any IMA referral. Therefore, its decision of 13 August 2019 was correctly made, and should not be set aside, but confirmed.[162]
However, the respondent said, were I to find that Dr Bastian's assessment had miscarried, then given the complexity of Mr Rogers' case, that an IMA referral was the correct course, and that the IMA should make the necessary assessment.[163]
[151]
Given that the remedy sought by Thiess is the referral on a medical question to an IMA (and not at this stage, the setting aside of the respondent's decision of 13 August 2019), I turn then to the power of SAET to provide that remedy.
Part 2, Division 5 of the RTW Act concerns the assessment of permanent impairment. It contains one section: s 22. There is no dispute that Dr Bastian is appropriately accredited under that section, nor that his report was not properly obtained under that section. However, relevantly, sub-s 22(10) provides that 'only one assessment may be made in respect of the degree of permanent impairment of a worker from one or more injuries arising from the same trauma.' Although, that directive is subject to the 'exercise of any adjudicative function' by SAET, as set out in sub-s (13). There is no dispute that Dr Bastian's assessment of Mr Rogers' permanent impairment is the 'one' assessment referred to in sub-s 22(10).
The issue is whether in the exercise of my adjudicative function, Dr Bastian's assessment can be relied upon. In that regard, Thiess say not; Mr Rogers and the respondent say it can.
One of the main objectives of SAET, in the exercise of its jurisdiction, is that the best principles of decision-making are to be promoted, which include: independence in decision‑making; natural justice and procedural fairness; high‑quality, consistent decision‑making; and transparency and accountability in the exercise of statutory functions, powers and duties.[164] In addition, SAET is to be flexible in the way it conducts its business and is to adjust its procedures to best fit the circumstances of a particular case.[165]
The starting point for the consideration of whether a medical question ought to be referred to an IMA, is the 2016 case of Abraham v Return to Work SA.[166] In that matter, Deputy President Judge Gilchrist had the following to say:
[152]
Although in dissent, the observations made by Heydon J in Dasreef Pty Ltd v Hawchar about expert evidence are uncontroversial. He said:
[153]
"In short, the utility of receiving expert opinions rests in what the trier of fact can make of them. If the assumed facts are not stated, no reasoning process can be stated and the opinion will lack utility; if there is no evidence, called or to be called, capable of supporting the assumed facts, no reasoning process, even if stated, will have utility; and even if there are facts both assumed and capable of being supported by the evidence, they will lack utility if no reasoning process is stated. In each instance, a lack of utility results in irrelevance and inadmissibility."
[154]
In conventional litigation a party has the right to argue about the weight and admissibility of expert evidence and call into question whether the opinion discloses the assumed facts, whether the assumed facts are correct, whether the process of reasoning underpinning the opinion is disclosed, and whether it bears scrutiny.
[155]
If an accredited assessor's assessment is conclusive it would follow that a worker and employer would be effectively denied adjudication by an independent tribunal that would enable these matters to be examined and ruled upon. For the reasons explained by White J in Campbell v Samaras and Employers Mutual Limited and Yaghoubi v BDS People Pty Ltd and Employers Mutual Limited it would need clear and unambiguous words to impute to the legislature an intention to deny workers and employers the right to that adjudication.
[156]
As it is, the words in the Act point in the opposite direction.
[157]
The Tribunal is empowered by s 98(1) of the RTW Act to deal with a reviewable decision. Section 97(d) defines a "reviewable decision" to include "a decision as to a permanent impairment matter under Part 2 Division 5".
[158]
This leads me to conclude that an accredited assessor's assessment is not conclusive.
[159]
In the absence of any other evidence that called into question the assessment, a compensation authority would have little scope to make a determination of impairment other than in accordance with the accredited assessor's assessment.
[160]
But it does not follow that it must be applied or that it must be accepted by a worker or employer.
[161]
In Butto v WorkCover Corporation (Spotless Catering Services Ltd)[167] I expressed the view that the opinion of a Medical Panel constituted under the WR&C Act was subject to the rules of evidence. That view was confirmed on appeal.
[162]
I can see no justification for coming to any contrary view in connection with an assessment by an accredited assessor made pursuant to s 22 of the RTW Act. Given that the RTW Act contemplates Independent Medical Advisers giving evidence and having their opinions tested; it would be a very odd result if the position in respect of accredited assessors were otherwise.
[163]
In my view, the assessment of an accredited assessor, as expert evidence, must satisfy the test of admissibility that applies to such evidence, and if it does not, then it is not binding upon parties or on the Tribunal.
[164]
It follows that a worker or employer can apply to the Tribunal to test the assessment.
[165]
That application is not a free for all. For the reasons expressed above, there can only be one assessment. The notion of competing medical evidence in connection with assessments of permanent impairment has been eschewed by the protocols established by the Guidelines. An alternative medical assessment that the Tribunal can rely upon in making an assessment can only take the form of an assessment by an Independent Medical Adviser.[168] (emphasis added and footnotes omitted)
[166]
In 2017, in the case of Kaye v Return to Work SA, Gilchrist DPJ published two decisions. In the first,[169] his Honour expressed a 'tentative view' that as the PIA process had miscarried (Mr Kaye was not at the required maximum medical improvement (MMI)) the Tribunal was seized with the responsibility to deal with Mr Kaye's claim, and as such a referral to an IMA was warranted. That decision was appealed. In his second judgment,[170] his Honour noted that whilst the Corporation supported the referral, Mr Kaye did not. But, after considering the de novo nature of the proceedings, his Honour made the IMA referral. Like the first, that decision was also appealed.
The appeals in Kaye was heard and determined in 2018 and both appeals were allowed. In practical effect, the Full Bench confirmed that as MMI had not been achieved, and as it might not be for some time, the correct course was to simply set aside the decision, rather than have the Tribunal continually seized of the dispute.[171]
In 2019 in the case of Clark v Return to Work SA[172] Gilchrist DPJ said that if there was something about the permanent impairment assessment report that gives the Tribunal cause to think that there are good reasons to need a further opinion, an IMA referral ought to be made. Also, that in light of Kaye, that in the appropriate case, a determination made upon a flawed PIA process, may simply just be set aside.[173]
Noting that the approach of Gilchrist DPJ in Abraham had since been consistently followed in SAET, in the 2020 case of Storey vReturn to Work Corporation of South Australia,[174] Deputy President Judge Rossi distilled the principles from Abraham as follows:
[167]
Section 22 of the RTW Act lays down the procedure by which WPIs are to be assessed.
[168]
The subsequent assessment report must be in accordance with the requirements of the RTW Act and the IAG and be provided in the prescribed format and within the time frames allowed. Further, the report must contain clear rationale for the decision reached, is not to contain material errors, and is required to be complete and accurately reflect assessment findings based upon due rigour and intellectual honesty.
[169]
The protocol set out in Chapter 17 of the IAG is to be followed as to the procedure to be undertaken.
[170]
Section 22 of the RTW Act contemplates that in connection with a WPI, there will be only one assessment.
[171]
The assessment obtained is not binding upon the Tribunal.
[172]
Although the assessment of the assessor is not binding upon the Tribunal, there is little scope to make a determination of impairment other than in accordance with the accredited assessor's assessment in the absence of cogent evidence that calls into question the assessment.
[173]
An object of the scheme for the assessment of WPI is the avoidance of competing medical evidence. In such circumstances, an alternative medical assessment is only available if the Tribunal is persuaded that it should exercise its discretion to arrange for an assessment by an Independent Medical Advisor.[175] (emphasis added and footnotes omitted)
In Storey's case his Honour was not persuaded to exercise his discretion to refer a medical question to an IMA. On appeal, no grounds were established to interfere with his Honour's discretion and no error was found with regards to his Honour's reasoning as above.[176]
In the case of Cobbin vReturn to Work Corporation of South Australia,[177] Gilchrist DPJ had another occasion to consider an IMA referral, and the rationale he had set down for same in Abraham. Relevantly there, his Honour expanded on the 'good reasons' criterion saying the following:
[174]
In my view, not every irregularity contained in an assessment warrants intervention by the Tribunal. Just as 'not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial', not every irregularity in a medical assessment report will entitle the aggrieved party to relief. If the irregularity has no practical influence on the outcome and the result would inevitably have been the same, there is no basis to intervene.[178]
[175]
In that case his Honour was not persuaded he should exercise his discretion to refer a medical question to an IMA.
Early in 2021, Rossi DPJ, considered the situation of a challenge to a PIA report with regards to a psychiatric impairment in the case of Stratton vDepartment for Education.[179] There his Honour set out the general requirements of PIA reports in the IAG, as below:
[176]
1.43 A whole person impairment evaluation report should be accurate, comprehensive and fair. It should clearly address the question(s) being asked of the assessor. In general, the assessor will be requested to address issues such as:
[177]
current clinical status and diagnosis, including the basis and evidence used for determining maximum medical improvement
reasoning as to how the assessor decided to allocate an injury to a particular class and selected a percentage within a percentage range, if applicable
the degree of whole person impairment that results from the injury, and
the proportion of whole person impairment due to any previous injury or cause, pre-existing condition or abnormality, if any, relevant to the injury being assessed.
[178]
1.44 The report should contain factual information based on the assessor's own history taking and clinical examination. If other reports or investigations are relied upon in arriving at an opinion, these should be appropriately referenced in the assessor's report.
[179]
1.45 The evaluation report should provide a rationale consistent with the methodology and content of the Guidelines. It should include a comparison of the evaluation's key findings with the impairment criteria in the Guidelines. In rare circumstances, where the evaluation is conducted in the absence of pertinent data or information, the assessor should indicate how the degree of impairment was determined with the limited data and justify this in detail in the report.
[180]
In arriving at his views on the content of the medical report in question in that case, his Honour said that the terms of sub-ss 22(2) and (5) supported the conclusion that: the PIA decided the assessment of WPI; and that the reasons in the report must be sufficient to comply with the requirements of the IAG; and must enable SAET to carry out its adjudicative function in circumstances were ordinarily, there should be only one assessment of WPI (s 22(10)).[180]
Further, on the circumstances of the particular case, his Honour said:
[181]
... In my view, the failure to record every symptom or indication of impairment does not constitute a failure to comply with the requirements of the IAG. Indeed, Chapter 16.12 states that it would be futile to attempt to list all relevant symptoms and it would be onerous for the assessor. What is required is a comparison of what is recorded in the assessment report with what is stipulated in the IAG that should be in the report. The greater or the more significant the divergence, then the more likely that the Tribunal, in its adjudicative function, will conclude that either the report is not compliant or there is sufficient doubt as to compliance to refer the worker for an independent assessment of WPI.[181]
[182]
Citing Abraham, his Honour concluded by referring Ms Stratton to an IMA for a PIA.
Also, in 2021, the Full Court of the Supreme Court of South Australia commented on when it would be appropriate to refer a medical question to an IMA with regards to a PIA. Citing Abraham, in Paschalis v Return to Work Corporation of South Australia & Anor, the Full Court (Kourakis CJ Livesey and Bleby JJ) said:
[183]
The Tribunal may consider other expert views when determining whether the approved assessor has erred but is it not free to disregard the assessment made by the approved assessor unless error is shown.[182]
[184]
It is clear then from Paschalis, that an error by the approved PIA assessor needs to be shown.
More recently in 2022, in the case of Tapley v Return to Work Corporation of South Australia, Deputy President Judge Kelly cited Paschalis and said there was an abundance of precedent to the effect that this Tribunal is not free to disregard a PIA made by an approved assessor, unless error is shown.[183]
On that issue of "error" within expert evidence, it is apt to repeat some of the guidance from the New South Wales Court of Appeal case of Makita (Australia) Pty Ltd v Sprowles.[184] In that case, Heydon JA
[185]
In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded.[185]
[186]
Accordingly, with that history of the relevant case law on the issues of when to refer a PIA medical question to an IMA set out, I summarise the appropriate test to be applied as: There is to be one PIA of a work injured person's WPI; that PIA is to be carried out by an accredited assessor; the assessor's PIA report is to be accurate, comprehensive and fair; it is to contain and explain the factual information relevant to the PIA; it must provide the necessary rationale in conformity with the IAG; in challenging a decision based on the PIA report, the disgruntled party is to apply to SAET; that application is not a free for all; the only other medical assessment that SAET can rely upon, in deciding a PIA dispute, is that from an IMA; the power to refer a PIA medical question to an IMA is discretionary; there are limited circumstances upon which SAET can refer a PIA medical question to an IMA, mere dissatisfaction will not suffice; error must be found with the initial PIA; but, not every irregularity within the initial PIA warrants the intervention of SAET; the error needs to be material to the assessment of WPI; cogent evidence is needed to demonstrate error; and, there needs to be a good reason to refer a PIA medical question to an IMA.
With that explained, I turn to my consideration of this case.
[187]
It is to be remembered that other that Dr Bastian, no other witness were called to give evidence - the excavator operator, the site supervisor, Mr Egel, RFDS personnel, Dr Killcross, any Port Augusta Hospital personnel nor indeed any of Mr Rogers' treating doctors. The evidence that has been received from those sources is therefore unchallenged. And, as said above, importantly Mr Rogers did not give evidence in his own case. As such, I did not have the benefit of his first-hand account of the relevant events.
[188]
With that said, the evidence that I have set out above establishes the following facts, which I find occurred, within the immediate aftermath of, and the days following, his work injury occurring at approximately 7.40pm on 9 August 2014; that Mr Rogers:
was in the cabin of a truck when that truck was hit by the laden bucket of an excavator, which was in the process of loading that truck (excavator operator). That impact causing the truck to jolt forward with a left to right momentum (Prominent Hill Incident Investigation Report).
that jolt caused him to be shaken in the cabin and for the left hand side of his head to strike the left hand side of the window frame within the cabin (Prominent Hill Incident Investigation Report).
immediately thereafter, he had the cognitive ability to use, and communicate via, his radio (excavator operator).
then he could verbalise a command to the excavator operator to stop his operations (excavator operator).
and could verbalise that he had hit ('smashed') his head (excavator operator).
and also he had the physical ability to open the driver side door (excavator operator).
then he had the cognitive ability to hear and understand the command to turn off his truck and had the physical attributes to do that. (excavator operator)
and had the cognitive ability, although being 'very groggy' to hold conversations (excavator operator and site supervisor).
then had the physical ability, although being unsteady, to walk (site supervisor).
also was conscious, although disorientated, upon arrival at the Prominent Hill Medical Centre (Mr Egel letter).
and had the cognitive ability to provide information that while his head was turned to the left, that his forehead made contact with the inside of the truck's cabin (Mr Egel letter).
had a GCS score of no less than 13/15 while at the Prominent Hill Medical Centre (Prominent Hill Medical Centre notes).
achieved a fully conscious GCS score of 15/15 within 5 hours of the accident (Prominent Hill Medical Centre notes).
could remember the excavator bucket hitting his truck. (RFDS notes).
could remember getting to the 'clinic' being the Prominent Hill Medical Centre (RFDS notes).
[189]
With regards to the permanent impairment assessment of Mr Rogers, it is to be remembered that in order to be assessed for traumatic brain injury one of the three limbs of [5.10] of the IAG is required. One will suffice, it is not the case that all three are needed. Before dealing with those three limbs, issues with regards to the chapeau of [5.10] are to be examined.
[190]
Traumatic brain injury - severe impact to head or high energy impact
[191]
For traumatic brain injury, there should be evidence of a severe impact to the head or that the injury involved a high energy impact.
Thiess have argued that Dr Bastian did not expressly conclude that there was severe impact to Mr Rogers head or that he was involved in high energy impact, in his work injury of 9 August 2022. Dealing with the latter concept first, the first finding of fact I have made above at [241] establishes that the impact of the excavator bucket caused Mr Rogers' truck to jolt forward with a left to right momentum.
That finding establishes that impact, and probably also high energy impact, occurred. However, I also take into account that the corner of the truck's tray was marked by the excavator bucket and that the estimated cost of that damage was less than $15,000.00. According, with those additional facts found, I feel safe to conclude that the incident Mr Rogers' was involved in at approximately 7.40pm on 9 August 2014, involved a 'high energy impact'.
As for the issue of whether there was evidence of a severe impact to Mr Rogers' head, the second finding of fact I have made at [241] above, establishes that his head was indeed impacted onto the window frame of the truck's cabin. The question is, was that impact 'severe'? In that regard, I also rely on the evidence of the excavator operator that, immediately after the bucket hit the truck, Mr Rogers' informed him over the radio that he had 'smashed my head'. I consider that contemporaneous comment to be important as it demonstrates something of the violence of the incident itself. Accordingly, those facts, along with the facts as to the high energy impact as immediately above, establish that there was a serious swift striking of Mr Rogers' head against what was, no doubt, the steel window frame of the truck's cabin. In those circumstances, I am comfortable finding that in addition to the incident being of high energy impact, it also involved severe impact to Mr Rogers' head.
Therefore, for the above reasons, I find that the chapeau to [5.10] is established on the facts of this case. I turn then the three limbs of [5.10].
[192]
First limb - a clinically documented initial GCS score of 9 or below
[193]
In his first report, Dr Bastian emphasised that Mr Rogers had an initial GCS score of 13-14. In that regard, he was referring to Mr Egel letter of 10 August 2014. As is obvious, 13-14 is not 9 or below.
After he had made his permanent impairment assessments of Mr Rogers in that first report, in his third report Dr Bastian introduced the possibility of a GCS score of 9 or 10, that being, if there was a brief loss of consciousness at or about the time of impact. That supposition, however, does not rise about the level of a suspicion: it was not, nor could ever be, a clinically documented abnormality in Mr Rogers initial GCS score of 9 or below.
In his oral evidence, Dr Bastian repeated that supposition and added the comments, 'it's 7, 8, 9 or 10, but it would be less than 13 or 14.' However, no clinical document was referred to in that regard.
Despite, Dr Bastian's belated suggestion that Mr Rogers may have had a GCS score of 9 or 10, at or immediately after the time of the impact of the excavator bucket to the cab of his truck, there was no clinically documented score at that figure, or indeed in the range close to that figure. Mr Rogers first clinically documented GCS score was 14 at 9.30pm on 9 August 2014. The lowest GCS score recorded at any stage was 13. Accordingly, the evidence establishes, and I find, that at no time did Mr Rogers have any confirmed clinically documented abnormalities in his initial post injury GCS score of 9 or below.
[194]
With that finding made, Mr Rogers is not able to be considered for the impairment assessment of traumatic brain injury, pursuant to the first limb of [5.10] of the IAG.
[195]
Although there was no 'clinically documented' GCS score of 9 or below, and acknowledging Dr Bastian's opinions, I will deal with the 'loss of consciousness' issue when I consider the second limb of [5.10]. However, as that limb requires the most analysis - indeed it is at the absolute centre of this case - I will pass over that for the moment and next deal with the third limb.
[196]
In the body of this judgment, I have set out the evidence of the scans of Mr Rogers' brain, at various times after his work injury of 9 August 2014. All of those scans have been interpreted as showing normal brain pathology.
However, in his oral evidence, Dr Bastian introduced the concept of evidence in an unidentified CT or MRI scan of Mr Rogers' brain showing a decreased profusion of his left temporal lobe. Dr Bastian appeared to suggest that he had discussed that with Dr Jelbart, and that Dr Jelbart thought that finding was of relevance.
Dr Bastian did not explain whether the alleged brain pathology he was suggesting was a reference to Dr Jelbart's comment in her report of 6 July 2016 that sequelae of traumatic brain injury damage may not be evident on scans if it occurred at cellular level, as set out at [113] above, or was something that he had only discussed with her the day before, or both.
If Dr Bastian was of the opinion that the third limb of [5.10] applied to Mr Rogers, then, despite his three reports and his oral evidence, he did not adequately explain why that was so.
Moreover, none of the parties have directed me to any other medical evidence, aside from the above, that would confirm that Mr Rogers' had, at any time, anything other than normal brain pathology.
Accordingly, there is no evidence that establishes that Mr Rogers had any significant intracranial pathology to his brain as identified on any CT scan or MRI scan. Therefore, the third limb of [5.10] cannot be made out, and as such is not confirmed.
[197]
Therefore, this case turns on the second limb of [5.10] of the IAG and whether Mr Rogers had a significant duration of post traumatic amnesia, greater than 12 hours.
In his first report, Dr Bastian said that he would proceed with his assessment of Mr Rogers' cognitive dysfunction as he 'strongly suspected' that following his work injury, Mr Rogers did have a PTA of greater than 12 hours. Thus, his assessment was founded on the second limb of [5.10]. In his oral evidence, Dr Bastian confirmed that he decided he could proceed with his assessment, because he considered that Mr Rogers had been in PTA for greater than 12 hours. Although, he did also hint at the other two limbs, which I have dealt with above. Accordingly, I proceed on the basis that the central tenant of Dr Bastian's PIA of Mr Rogers was that he had a significant duration of post traumatic amnesia, greater than 12 hours.
[198]
As is apparent, the PTA issue is a complex topic, I will first deal with the loss of consciousness issue.
In his first report, Dr Bastian said that Mr Rogers told him that he saw stars and passing out at and immediately after the incident. Dr Bastian then referred to Mr Egel's letter of 9 August 2014 and said that Mr Rogers did suffer a loss of consciousness. Although, what Mr Egel had in fact said in that letter was that it was unsure whether there was any loss of consciousness. It is to be remembered that the contemporaneous reports of the work injury do not state, for certain, that Mr Rogers lost consciousness. Whilst it is recorded that he may have been 'dazed and confused', 'groggy' and 'unsteady' nowhere in those initial documents is it said that that Mr Rogers actually had been unconscious.
Also relevant is that Dr Bastian found it problematic to elicit a cogent history from Mr Rogers during their only consultation on 11 May 2019. In his report dated the same day, Dr Bastian was at pains to describe the difficulties he had, and the concerns came to in that regard.
As to what Mr Rogers told those who were treating him, the first reporting on consciousness was the 'unsure' comment by Mr Egel. Then, the RFDS reported Mr Rogers had had short term memory loss about incident. Then, SAAS reported a period of amnesia. Then, at the Port Augusta Hospital, Dr Killcross first reported that it was unclear whether Mr Rogers had momentarily lost consciousness. Then, later, a registered nurse recorded that a loss of consciousness had been reported.
In the weeks and months after he had been discharged from the Port Augusta Hospital, Mr Rogers told Dr Kennett that he was extremely troubled by short term memory deficits. In October 2014, Mr Rogers told Dr Scamps that he could recall being in the Prominent Hill Medical Centre and hearing people talking, but he could not recall speaking to his wife. Dr Scamps assessment was that his memory was 'patchy'. Around the same time Mr Rogers told Dr Bhandari that he did not remember the accident very well. Picking up on the patchy theme, Dr Bhandari subsequently said that Mr Rogers' had a patchy recollection of what happened. Referring to Dr Scamps report, Dr Bhandari said that it appeared Mr Rogers did not have PTA.
Thereafter, Mr Rogers told Dr Crompton that he was not sure about loss of consciousness but had gaps in his memory subsequently. Then, Mr Rothwell reported that Mr Rogers told him that his memory was as clear as a bell up to the accident, but then his next memory was in the Port Augusta Hospital. Then, he told Dr Robinson that he had blacked out and was unable to recall much. Then, Dr Jelbart reported that Mr Rogers told her that he recalled a loud noise at the time of the accident, but thereafter has a very patchy recall for a number of days. Based on what he understood, Dr Robinson later said that on what information was available, would suggest that there was not a prolonged loss of consciousness. Mr Rogers then told Dr Munn that, after the impact he essentially had no recollection and that his first recall of events were vague flashes of faces at the Port Augusta Hospital. Then, he told Dr Lucas that he recalled the excavator bucket swinging towards him, then seeing stars, then nothing. As for what he told Dr Winsor on the loss of consciousness issue, Mr Rogers said that he saw sparks, heard a watermelon hitting concrete sound and had a patchy recognition of being at Port Augusta Hospital.
[199]
In order to properly consider this issue, it is important to consult what actual cognitive testing was performed on Mr Rogers in the aftermath of the incident of 9 August 2014. In that regard, the clinical records of Dr Killcross of at 6.23am 10 August 2014 are critical. Those records were the first attempt, post injury, at any cognitive assessment that accorded with the accepted and standardised Westmead PTA Scale.
In the clinical records taken down at 6.23am of 10 August 2014, Dr Killcross recorded a GCS score of 15 and recorded, 'Place, day, month, year, ruling political party, DOB, 3 object recog. Serial 7's and WORLD spelling all normal'. It is reasonable for me to infer from Dr Killcross' recording of 'all normal' that the answers to his cognitive assessment questions were satisfactorily given by Mr Rogers.
Whilst not exactly to the letter of the Westmead PTA Scale, the cognitive assessment undertaken by Dr Killcross was very close to it; the slight variation being that three of the five Westmead PTA Scale questions were asked, and the picture recognition test completed. And moreover, with regard to the content of Dr Killcross' cognitive assessment, it could be contended for that naming the current ruling political party or adding up 7's are more difficult tasks that those tasks set out on the standardised Westmead PTA Scale. Indeed, as Assoc/Prof Brophy said in his report, the tools to assess PTA can vary from hospital to hospital. Also, Dr Bastian himself undertook his own form of cognitive assessment, borrowing from, but not to the letter of, the Westmead PTA Scale, when he examined Mr Rogers for the only time on 11 May 2019.
Within this topic, the comments of Dr Scamps regarding Dr Killcross' cognitive assessment of Mr Rogers need to be addressed. In her report, Dr Scamps acknowledged that the cognitive screening test performed at Port Augusta Hospital reported normal results. But, qualified that by suggesting that Mr Rogers 'could have presented a clinical picture of adequate orientation to the person, date or event, yet remained in PTA.' That being as, 'there was no assessment of his ability for reliable continuous memory thereafter'.
The reasonable assumption as to the meaning of what Dr Scamps was saying there, is that, in order for Mr Rogers' to be confirmed as not being in PTA, from that initial normal result, was that further similar cognitive assessments should have been repeated soon thereafter. In that regard, it is noted the Westmead PTA Scale talks of repeating its cognitive assessment tasks, and undertaking a GCS score, 'at hourly intervals.' As Dr Scamps did not give oral evidence, I must be satisfied with the aforementioned reasonable assumption.
[200]
In his first report, Dr Bastian strongly suspected that Mr Rogers did have a PTA of greater than 12 hours. His basis for that supposition was the 'history' and 'his reported initial reduced GCS score'. Dr Bastian's concerns and difficulties in obtaining a necessary history from Mr Rogers have already been well documented in this judgment. However, the history Dr Bastian was referring to no doubt included his earlier comment in that report that Dr Scamps felt that Mr Rogers may have been in PTA for well over 24 hours.
In his second report, and when he considered the issue of whether Mr Rogers' had been in PIA, Dr Bastian said that the reports from the neuropsychologist, Dr Scamps, and Mr Rothwell, could not be ignored. In his oral evidence Dr Bastian said that Dr Scamps is a very eminent neuropsychologist and that she was saying what he was saying - they had the same opinion on the PTA issue. Accordingly, it is evident that Dr Bastian relied on Dr Scamps opinions as set out in her 31 October 2014 report.
In her report of 31 October 2014, Dr Scamps was not definitive on the PTA issue; she said that Mr Rogers' patchy memory for the first few days 'suggested' that he 'may have been' in PTA for well over 24 hours after the work injury, not that he 'was' in PTA for well over 24 hours.
Also, as described above, it is not clear what documents or information Dr Scamps relied on to arrive at that opinion. It is likely that she did not have access to the Prominent Hill Medical Centre records, the RFDS notes, the SAAS notes, the Prominent Hill Incident Investigation Report, the Prominent Hill Incident Record and the witness statements of the excavator operator or the site supervisor.
Accordingly, it seems very likely that Dr Scamps was predominantly reliant on Mr Rogers and his wife for the history see had taken. Had she have had access to the documents referred to above, her opinion on PTA may have been different.
Also, Dr Scamps notation that, 'formal post traumatic amnesia (PTA) testing was not conducted', does not acknowledge the cognitive assessment performed by Dr Killcross at the Port Augusta Hospital at 6.23am on 10 August 2014. Accordingly, she either did not have access to the Port Augusta Hospital records or failed to see and/or consider the cognitive assessment result, recorded as 'all normal', by Dr Killcross. Had she been cognisant of Dr Killcross' cognitive assessment, her opinion on PTA may have been different.
[201]
Given the findings I have made above regarding Dr Bastian's error that: Mr Rogers did in fact suffer a loss of consciousness; his error in failing to properly consider Dr Killcross' cognitive assessment; and his error in strongly suspecting that Mr Rogers did have a PTA for greater than 12 hours, Dr Bastian committed a further error by his decision to go on and 'proceed with the assessment (of Mr Rogers' WPI).'
[202]
By way of further comment, and not in the disposition of the case, I comment on Dr Bastian's apparent reliance on the opinions of Dr Jelbart.
In his report evidence and in his oral evidence Dr Bastian repeatedly deferred to the opinions of Dr Jelbart. As stated above, Dr Jelbart description of Mr Rogers' work injury does not accord with the history recorded by anyone else or given to anyone else. Also as above, given what she had said, in her report, I have assumed that the history that Dr Jelbart has recorded came from Mr Rogers and his wife (including the dossier from her).
With regards to Dr Killcross' cognitive assessment, Dr Jelbart acknowledged that it reported normal results, but then went on to say that Mr Rogers' could have presented a clinical picture of adequate orientation to the person, date, or event, yet remained in PTA. Her criticism explained as not being against the cognitive assessment performed by Dr Killcross itself, but that that assessment had not been repeated thereafter.
Dr Jelbart also introduced the concept of possible brain damage at the cellular level, below the resolution of scanners, as set out at [113] above. Dr Bastian picked up on that in his second report where he commented about possible diffuse axonal injury of dysfunction. Dr Bastian appeared to also make related comments in his oral evidence. Also, in his oral evidence, Dr Bastian said that he had spoken with Dr Jelbart.
To the extent that he may have relied on her opinions, Dr Bastian did not give me a clear picture of what he had and had not taken in. Insofar as he did rely on any of Dr Jelbart's opinions, in his assessment Mr Rogers WPI, it is not clear on what basis, and why, he did so.
[203]
Error in confirming and proceeding with assessment under second limb of [5.10]
[204]
Given all of the above, I find that there is a divergence between what is required for an assessment of a traumatic brain injury in [5.10] of the IAG and what Dr Bastian based his assessment of Mr Rogers on. That divergence is significant and is material to the issues to be resolved in this case. Therefore, my ultimate finding is that for the above reasons, Dr Bastian was in error when he confirmed that Mr Rogers did have a PTA of greater than 12 hours following his work injury of 9 August 2014 and then proceeded to assess Mr Rogers pursuant to [5.10] of the IAG: of significant duration of post traumatic amnesia, greater than 12 hours.
With that finding made, in my discretion I am persuaded that the medical question of Mr Rogers' WPI for any brain injury should be referred to an IMA to report on. That IMA should be in possession of all of the relevant documents, including this judgment, and should undertake an examination of Mr Rogers. Before I make the orders necessary to give effect to that referral, I will hear from the parties.
[205]
Thiess has also complained that Dr Bastian was also error in that he failed to give no, or no adequate, explanation as to why in his PIA of Mr Rogers' brain injury that he did not include an impairment for psychogenic factors. That is, that he did not disregard that part of Mr Rogers' impairment that was caused by psychological or psychiatric overlay. In that regard, [5.5] of the IAG warns that a PIA assessor should take care to be as specific as possible, and not to double-rate the same impairment, particularly in the mental status and behavioural categories.
Dr Bastian repeatedly stressed that he had accounted for Mr Rogers mental status and behavioural issues and had not rated them in his 20% WPI figure. Despite what Thiess has submitted, I am unpersuaded that it has demonstrated error in Dr Bastian's approach and opinions in that regard. Accordingly, on the issue of psychogenic factors alone, I would not exercise my discretion to refer a medical question to an IMA. However, upon the referral of the medical question of Mr Rogers' WPI for any brain injury, to an IMA as detailed above, I accept that the IMA will arrive at his or her own opinion as to the relevance and significance of Mr Rogers' psychogenic factors.
[206]
[1]Rogersv Thiess Pty Ltd & Return to Work Corporation of South Australia[2021] SAET 108.
[207]
[2]Applicant's Closing Submissions 2 June 2022; Respondent's Submissions 10 June 2022; Worker's Closing Submissions 1 July 2022; Orders 15 August 2022; Applicant's Submissions in Reply 22 August 2022.
[208]
[3]Agreed Statement of Facts and Issues (agreed Thiess and Mr Rogers) 11 July 2022 [1].
[209]
[4] Exhibit A1 Trial Book; p 391 Dr J Bastian report 11 May 2019.
[210]
[5] Exhibit A3 Prominent Hill Incident Investigation Report 14 August 2014 p 3.
[211]
[6] A3 and Exhibit A4 Prominent Hill Incident Record 9 August 2014.
[212]
[8] A3 and Exhibit A6 Incident / Witness Statement of the excavator operator 9 August 2014 p 1.
[213]
[11] Exhibit A5 Incident / Witness Statement of the site supervisor 12 August 2014.
[75] A1 pp 249-251 Dr M Jelbart report 11 November 2016.
[239]
[76] A1 pp 254-255 Dr B Rounsefell report 6 December 2016.
[240]
[78] A1 pp 293- 294 Dr M Robinson report 18 December 2017.
[241]
[79] A1 pp 296-304 Dr J Munn report 22 December 2017 at p 297.
[242]
[81] A1 307-323 Dr Sara Lucas report 5 January 2018 at p 312.
[243]
[90] A1 pp 352-373 Dr A Winsor report 6 June 2018.
[244]
[94] A1 p 371 and [5.4] of WorkCover Guidelines p 36.
[245]
[95] A1 p 372 and [5.8] of WorkCover Guidelines p 37.
[246]
[98] A1 pp 389-413 Dr J Bastian report 11 May 2019; Exhibit R1 Dr J Bastian report 16 July 2019; A1 pp 417-421.
[247]
[107] Exhibit R1 Dr J Bastian report 16 July 2019 p 1.
[248]
[112] A1 pp 428-448 Dr M Wood report 2 September 2021.
[249]
[118] A1 pp 449-454 Assoc/Prof B Brophy report 2 September 2021.
[250]
[151] The excavator operator's statement, the site supervisor's statement, the Prominent Hill Incident Record and the Prominent Hill Investigation Report.
Return to Work Corporation of South Australia and Rogers [2022] SAET 118
Legislation Cited (2)
Australian Employment Tribunal Act 2014
Work Act 2014
AI Analysis
Outcomeprocedural
Disposition:
Medical question to be referred to an Independent Medical Advisor pursuant to Part 8 of the Return to Work Act 2014. The court found error in Dr Bastian's assessment and exercised its discretion to refer the question of whole person impairment for any brain injury to an IMA.
The excavator operator told Mr Rogers not to move and then called in an emergency. The excavator operator said that Mr Rogers was 'very groggy, but still speaking'. He stayed with him and continued to talk to Mr Rogers until the emergency services arrived.[10]
The site supervisor also arrived at the scene. He also used the radio to ensure that the ambulance was on its way. The site supervisor and the excavator operator 'kept talking to Mr Rogers while he was seated in the truck' until the emergency services arrived. When they arrived, the site supervisor helped to get Mr Rogers out of the driver's seat of the truck and down the steps. Doing that Mr Rogers 'became unsteady on his legs', so they sat him down on the bonnet of the truck. A retrieval response team was then organised to egress Mr Rogers from that position. When they arrived, Mr Rogers was lifted off the bonnet of the truck, placed into the ambulance and taken to the onsite first aid room.[11]
Addressing Mr Rogers' presentation, Dr Bastian said that his perceived cognitive, behavioural, and physical problems were multifactorial in aetiology. In his opinion, Mr Rogers presentation was compounded by underlying psychiatric factors. Nevertheless, and importantly, he said it appeared there was no doubt that Mr Rogers had suffered at least a mild to moderate traumatic brain injury.[21]
In assessing Mr Rogers' permanent impairment, Dr Bastian opined:
1.1. Brain injury
1.1.1. Cognition 20% WPI
1.1.2. Balance/Gait 5% WPI
1.1.3. Bladder dysfunction 7% WPI
1.2. Left shoulder Not able to be assessed
1.3. Left elbow Not able to be assessed
1.4. Neck & Cervical spine 16% WPI
Dr Bastian also said that Mr Rogers may have impairments of his ophthalmic and otologic systems.[22]
In arriving at his 20% WPI for cognitive dysfunction, Dr Bastian said that figure excluded Mr Rogers' history of very significant compounding factors and that it was difficult to determine whether there was any impairment from a behavioural perspective, given those underlying psychiatric issues.[23]
As can be seen above, the majority of the assessments made by Dr Bastian relate to Mr Rogers' brain injury. Also, that Dr Bastian did not combine the assessed impairments into one total percentage whole person impairment amount.
As it eventuated, Dr Bastian was the only witness to be called in these proceedings to give oral evidence.
As for the review by Mr Rothwell on 20 August 2015, Dr Lucas said those results revealed severe ongoing reported symptoms with the tests revealing mild reduction in working memory, verbal memory as well as a moderate reduction in processing speed. She said it appeared that executive functions then remain relatively normal. Also, that Mr Rothwell felt that Mr Rogers had sustained a moderate to severe traumatic brain injury but considered that there was also a psychological overlay. With regards to both assessments from Dr Scamps and Mr Rothwell, Dr Lucas said it was important to know that validity measures were at acceptable levels then, as compared to the testing she had undertaken.[85]
As for her the diagnosis, Dr Lucas said it was her opinion that Mr Rogers had sustained a moderate traumatic brain injury and that he likely had some early cognitive changes. She opined that he had made very little meaningful progress over the past few years despite his extensive treatment and that:
Also, whilst Dr Winsor referred to the WorkCover Guidelines, the actual diagnostic tool in use at the time was the Return to Work SchemeImpairment Assessment Guidelines (IAG), which came into effect on 1 July 2015. Whilst substantially similar, there are subtle and important differences between the two sets of guidelines. The only provisions under consideration in this case are those of the IAG, which I have set out above.
Regarding his diagnoses, Dr Bastian said that Mr Rogers' case was extremely complex, stressing that Mr Rogers' presentation and perceived cognitive, behavioural and physical problems were multifactorial in aetiology. He opined that it appeared there was no doubt that Mr Rogers had at least a mild to moderate traumatic brain injury. However, he also suspected that Mr Rogers' presentation was compounded by underlying psychiatric factors, which he said, were not all related to the traumatic brain injury, but nevertheless understood that they were very real for Mr Rogers.[104]
As for Mr Rogers' prognosis, Dr Bastian said it was extremely guarded and that there was so many issues and factors compounding his presentation.[105]
In considering the issue as to whether Mr Rogers' work injury fitted within the criteria to proceed with assessing cognitive dysfunction, Dr Bastian said:
With regards to the history he had obtained, Dr Bastian said it sounded like Mr Rogers had a significant period of PTA, although there was no formal assessment, which should have been done. He said that more sophisticated tests can be performed, and suggested Dr Koopowitz or Dr Jelbart, and that if the respondent had any further concerns, then perhaps an opinion be obtained from a specialist accredited in traumatic brain injury.[111]
In 2021, Thiess arranged for relevant medical documents to be provided to two medical experts for the purposes of opinions pertaining to the diagnosis and assessment of traumatic brain injury under the IAG, and the assessment of such injuries for the purposes of WPI under the RTW Act. The two experts were Dr Michael Wood and Associate Professor Brian Brophy. Neither experts consulted with, nor examined Mr Rogers. Their opinions were provided "on the papers" so to speak.
With regards to the evaluation of PTA, Dr Wood said what was required was a bedside test that can be administered by an experienced person, whether a medical practitioner or a nurse. He referred to the Westmead PTA Scale.[116]
On the issue of symptoms that persists beyond three to six months in cases of mild traumatic brain injury, with no indication of intracranial pathology, Dr Wood said such cases would be considered to be non-organic in origin. The cause for this, he said, maybe due to lack of adequate education concerning the likely time course of the symptoms or misinformation. In some cases, he said, the patient may develop over succeeding months and years an "illness conviction" that they have sustained a brain injury with lasting effects. Support for such a belief, he said, may be engendered by those around him or her or by poorly informed experts.'[117]
With regards to symptoms of confusion and amnesia, Assoc/Prof Brophy said that these were features of an individual experiencing PTA following a closed head trauma. However, PTA did not include amnesia for the event itself, saying if the individual has good recall of the event, then he would not feel they were in PTA.[123]
As would be evident, on the brain pathology topic, I was left with a confused notion of what Dr Bastian was trying to describe. Moreover, Dr Bastian did not explain the significance of Mr Rogers' brain pathology, nor exactly what evidence he was referring to and relying on. Also, no notes or other such document detailing his discussion with Dr Jelbart, on the day before he gave his evidence were tendered. As Dr Jelbart was not called to give oral evidence, there was no explanation from her either (however, I note the evidence from Dr Jelbart regarding brain damage that may not be evident if it had occurred at cellular level, below the resolution of scanners, as set out at [113] above).
Dr Bastian was asked to comment of the opinions of Mr Rothwell - set out in his report of 24 August 2015 - Dr Bastian said that wasn't the report he was given (he had a later one from Mr Rothwell), but nevertheless, Mr Rothwell's opinions did not change his opinions. (Dr Bastian's first report confirmed that he had reviewed two reports from Mr Rothwell, 24 August 2015 and 23 January 2016).[131] Asked then about Mr Rothwell's comments about psychological overlay, combatively and pre-emptively Dr Bastian insisted that the results received by Mr Rothwell were valid: he undertook a valid neuropsychological assessment. Pressed then to answer the question, Dr Bastian said he had no doubt there was (psychological) overlay and 'we all know there is overlay'.[132]
With the issue of the validity of Mr Rothwell's testing scores confirmed - they were reliable and interpretable - Dr Bastian said it was a 'fair comment' to suggest that not all the signs and symptoms observed by Mr Rothwell were explainable in terms of a traumatic brain injury. Also, that Mr Rothwell's opinion that a further neuropsychological review should occur at some time after August 2016 (two years post injury) was the average timeframe 'we look at impairment of brain injury'.[133]
Asked why he hadn't arranged for a further neuropsychological assessment, before he had completed his permanent impairment assessment, Dr Bastian said 'it would have been superfluous' and that if he had of arranged that, it would not have helped him at all and that 'it would have been the same results as Dr Lucas - with the same variable factors and invalidity.[134]
On the issue of whether Mr Rogers was in PTA, Dr Bastian said that on the history he had got (on 11 May 2019):
With regards to the suggestion that Dr Bastian should have made an adjustment to his assessment, due to Mr Rogers' 'psychogenic factors', it was argued that no such adjustment was necessary as in his opinion, such factors compounded the presentation. In that regard, Dr Bastian's comment from his first report - that his 20% WPI assessment excluded the history such compounding factors - was emphasised.[160]
In summary, it was argued for on Mr Rogers behalf that: there was no error in Dr Bastian's PIA report (his first report); inconsistent earlier evidence or contrary other medical evidence did not demonstrate error; if differences in earlier medical histories were to be used to find error, then it would be a "free for all"; mere dissatisfaction with a PIA report did not provide a good reason for an IMA referral, cogent evidence was needed; and, if there was to be an IMA referral, then the power to order same was in respect of a 'medical question(s) arising in the proceedings'.[161]
had an initial GCS score of 14/15 while in the care of the RFDS and then scored 15/15 (RFDS notes).
was fully conscious, with a GCS score of 15/15 upon admission to the Port Augusta Hospital (Port Augusta Hospital notes).
had the cognitive ability to provided satisfactory answers to Dr Killcross' cognitive assessment of: Place, day, month, year, ruling political party, DOB, 3 object recog. Serial 7's and WORLD spelling (Port Augusta Hospital notes).
was fully conscious, with GCS scores of 15/15, whilst at the Port Augusta Hospital (Port Augusta Hospital notes).
had the cognitive ability to describe the circumstances of his accident to his general practitioner five days later (Dr Kennett report).
had normal brain pathology six days later (MRI brain scan).
Mr Rogers was not assessed by Dr Bastian in preparation for his second report. In that report, and in support of his theory on Mr Rogers' PTA of greater than 12 hours, Dr Bastian said that Mr Rogers could not remember being transferred from the site and couldn't tell his wife what had happened. But then opined that 'one can have PTA without losing consciousness.'
As with his second report, Dr Bastian did not examine Mr Rogers again in preparation for his third report. In that report, other than introducing the suggestion that Mr Rogers' GCS score may have possibly been 9 or 10, due to 'being passed out at the time of the impact', Dr Bastian does not comment further whether Mr Rogers was in PTA, or the duration of the PTA. He did, however, agree with Assoc/Prof Brophy that it is difficult to retrospectively assess PTA.
In his oral evidence, Dr Bastian said that he had mainly focused on the comments by the person who first found him in the truck, and the nurse's comments about the initial Glasgow Coma Scale score in order to utilise his thoughts on Mr Rogers initial injury. That no doubt being due to his expressed concerns he had regarding his difficulties with what Mr Rogers had told him on the day of the examination. As such, I have understood what Dr Bastian was saying to me that he had focussed on was the excavator operator's witness statement (and perhaps also the site supervisor's witness statement) and Mr Egel's letter. As above, in neither witness statement is it said that Mr Rogers was observed unconscious, or that he had said that he had been unconscious. And, Mr Egel's letter says that it was unsure whether there was any loss of consciousness. Accordingly, Dr Bastian basis for concluding that Mr Rogers had in fact suffered a loss of consciousness was without the necessary factual foundation.
Indeed, in his third report, Dr Bastian seemed to qualify his views on the loss of consciousness issue by saying that 'if in fact, Mr Rogers did briefly lose consciousness ...' .
Also, in his oral evidence accepted that as Mr Rogers was conversing with a colleague immediately after the impact, that it was suggestive that he had not suffered a loss of consciousness. That concession by Dr Bastian is important: that is, mere moments after the impact when his colleagues were attending to him, Mr Rogers was conscious.
Therefore, I find that Dr Bastian was in error in approaching and proceeding with his PIA of Mr Rogers from the premises that Mr Rogers had in fact suffered a loss of consciousness as a result of the impact. The evidence is much more varied than that, and if there was any loss of consciousness at all, it appears it would have only been mere moments.
Although Mr Rogers' GCS score was recorded at regular intervals after the initial 6.23am score at the Port Augusta Hospital - and was score at a fully conscious 15/15 on all subsequent occasions - it is unfortunate that the cognitive assessment testing, in-line with the Westmead PTA Scale, was not also performed at those same intervals. It is a matter of fact that the only such assessment undertaken, was that as recorded by Dr Killcross at 6.23am on 10 August 2014. That cognitive assessment recorded an all normal result. In the circumstances of this case, where no other cognitive assessment in-line with the Westmead PTA Scale was repeated, the evidence of the results of Dr Killcross' assessment is cogent evidence, which is material to the issues to be determined.
Therefore, relying on the clinical records 10 August 2014 at 6.23am, I find that no later than that time, Dr Killcross had performed a cognitive assessment on Mr Rogers at the Port Augusta Hospital that was close to, and comparable to, the Westmead PTA Scale, and the results of that assessment were all normal. That assessment, coupled with a GCS score of 15, as recorded at the same time by Dr Killcross establishes, and I find, that as at 6.23am on 10 August 2014, Mr Rogers did not have signs and symptoms that were suggestive of him being in PTA at that time.
Further, that although there was no formal cognitive assessment of Mr Rogers, after that undertaken by Dr Killcross, that his GCS score was consistently 15, on the 18 subsequent occasions that he was assessed for same, while in the Port Augusta Hospital. Accordingly, That Mr Rogers' was in a fully conscious state while in the care of that hospital
With those facts established, I turn to the evidence of the permanent impairment assessor, Dr Bastian. In his first report - the permanent impairment assessment report - of 11 May 2019, Dr Bastian said that Mr Rogers was not assessed for PTA. Assumably he meant at about and after the work injury of 9 August 2014. However, in that report he did not mention Dr Killcross' cognitive assessment of Mr Rogers at 6.23am on 10 August 2014. In that regard, whilst Dr Bastian was provided with a copy of the clinical records of the Port Augusta Hospital, his treatment narrative of Mr Rogers, in his first report, moved from the scene at Prominent Hill Medical Centre, directly to the CT Scan of 10 August 2014 and omitted any reference to Dr Killcross' cognitive assessment.[186]
Interestingly however, in that first report, Dr Bastian explained the results of the cognitive testing he performed on Mr Rogers on 11 May 2019. That testing - like the testing of Dr Killcross - was not to the absolute letter of the Westmead PTA Scale.
Dr Bastian did however acknowledge Dr Killcross' cognitive assessment in his second report, saying that 'some aspects' of Mr Rogers' cognitive functioning were assessed. I feel that description is a little unkind to Dr Killcross. As above, Dr Killcross had undertaken three of the five Westmead PTA Scale tasks, and the picture recognition test had been completed. Also, he had asked additional questions just as Dr Bastian had done in his own modified Westmead PTA Scale assessment of Mr Rogers over four and half years later. The important result of Dr Killcross' cognitive assessment at 6.23am on 10 August 2014, was 'all normal'.
Also in his second report, Dr Bastian commented - perhaps somewhat dismissably - on that part of Dr Killcross' cognitive assessment where Mr Rogers was asked to perform 'serial 7s', saying that the ability to do that 'does not exclude PTA.' Dr Bastian did not explain why he choose to refer only to the serial 7's aspect of the assessment Dr Killcross undertook, rather than also referencing, and perhaps commenting on, the other aspects. He also did not give any explanation why his opinion on that issue was correct. As above, it is not as though Dr Killcross' cognitive assessment was an invention all of his own, it was very close to the Westmead PTA Scale. And Dr Bastian himself used the 'serial 3's' test during his cognitive assessment of Mr Rogers on 11 May 2019.
In my opinion, it was a tad unfair of Dr Bastian to reduce down the extent of cognitive assessment undertaken by Dr Killcross (if that is what he was doing) by commenting on only one of the aspects of that test and not on the others.
Also, Dr Bastian further comment that Mr Rogers was not screened with a "validated tool" for PTA whilst in the Port Augusta Hospital, was again a little uneven-handed. It is to be remembered that Dr Bastian himself did not strictly adhere to the absolute letter of the standard Westmead PTA Scale questions in his cognitive assessment of Mr Rogers. And, in that regard, it appears that he received less satisfactory responses than Dr Killcross had, over four and a half year earlier.
Not in his third report, nor in his oral evidence, did Dr Bastian comment further on Dr Killcross' cognitive assessment.
Therefore, for the above reasons, it is established, and I find that Dr Bastian failed to give proper consideration to the cognitive assessment of Mr Rogers undertaken by Dr Killcross at 6.23am on 10 August 2014. And, that that failure was material to the assessment of whether Mr Rogers had a significant duration of PTA, greater than 12 hours, and in turn material to the question of Mr Rogers' WPI for his brain injury. Accordingly, I find that Dr Bastian erred in that regard.
Accordingly, in my opinion, it is not safe to rely on Dr Scamps evidence, of PTA for well over 24 hours as I do not consider that she was presented with a full picture regarding Mr Rogers' circumstances. Moreover, it is to be remembered that she was not called to give evidence to explain any inconsistencies that there may have been in her report.
Given the above, I find that insofar as he relied on the opinion of Dr Scamps, that Mr Rogers may have been in PTA for well over 24 hours post his work injury of 9 August 2014, Dr Bastian was in error to do so.
As above, in his second report, Dr Bastian said that he could not ignore the report of the other neuropsychologist, Mr Rothwell. Although he had access to Dr Scamps report, like her it is very likely that Mr Rothwell did not have access to important contemporaneous documents when provided his opinions in his first report of 25 August 2015. Those documents being: Prominent Hill Medical Centre records, the RFDS notes, the SAAS notes, the Prominent Hill Incident Investigation Report, the Prominent Hill Incident Record and the witness statements of the excavator operator or the site supervisor.
It seems likely however, that Mr Rothwell did have some information from the Port Augusta Hospital, although he could have obtained that from Dr Scamps report. Unlike Dr Scamps, he did not comment on the cognitive assessment conducted by Dr Killcross at 6.23am on 10 August 2014.
Importantly, Mr Rothwell did not report any conclusions at all regarding whether Mr Rogers had been in PTA following his work injury, or for how long.
Mr Rothwell was not called to give evidence as to the basis of the opinions he expressed in his reports. Accordingly, as with Dr Scamps' evidence, I feel it would be unsafe to rely on his evidence as I do not consider that he was presented with a full picture regarding Mr Rogers' circumstances. Given that, I find insofar as Dr Bastian may have relied upon the opinions of Mr Rothwell, to conclude that Mr Rogers' was in PTA for greater than 12 hours post his work injury of 9 August 2014, that he erred in doing so.
Dr Bastian had perused all of the relevant contemporaneous documents at least by the time he gave his oral evidence. When asked about PTA, from the witness box Dr Bastian said that what Mr Rogers' wife had told him about being very confused and not recalling being in hospital where suggestive of Mr Rogers' being in PTA for at least 24 hours. Dr Bastian also accepted that what Mr Rogers' wife had to say was also part of the puzzle.
Mr Rogers' wife did not give evidence in these proceedings.
Given the exposé as above, that basis for Dr Bastian's strong suspicion that Mr Rogers did have a PTA of greater than 12 hours is undermined. He relied on the opinion of Dr Scamps in that regard, when she had not been provided with a full picture of the circumstances of Mr Rogers' injury. In similar vein, his reliance, if any, on Mr Rothwell's opinion was misplaced. Further, he appears not to have given proper consideration to the relevant contemporaneous documentation. And has said that he had relied on the untested history given to him by Mr Rogers' wife. In those circumstances, I find that Dr Bastian was in error in basing his PIA of Mr Rogers on the strong suspicion that he did have a PTA of greater than 12 hours.