Taylor v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT TAURANGA Decision No. 14.3 /2007 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN GORDON RUSSELL TAYLOR (Al 257/06 ) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at TAURANGA on 29 March 2007 APPEARANCES Mr A Prendeville, Advocate for Appellant. Ms D Lester, Counsel for Respondent. RESERVED JUDGMENT OF JUDGE M J BEATTIE [1] The issue in this appeal arises from the respondent's decision of 19 December 2005, whereby it declined the appellant's application for weekly compensation, and which included it being backdated to July 1997, on the grounds that the appellant's incapacitating condition, namely psychiatric issues, were not attributable to the concussion injury which he suffered in a motor accident in June 1988 and for which he had cover. [2] The hearing of this appeal took place on 29 March 2007, and at that hearing Mr Prendeville, Advocate for the Appellant, sought to introduce a further report from Dr Gil Newburn, Neuropsychiatrist, dated 27 March 2007. In the interests of justice the Court 257.06 (pg) 2 agreed to it being introduced, but at the same time it acceded to Ms Lester's request that the respondent be given the opportunity of introducing a further report, by way of response, from Dr Schnabel, Clinical Psychologist, who had earlier provided a report for the respondent. (3] The Court has now received that further report from Dr Schnabel dated 18 April 2007, and it has received further submissions from both Mr Prendeville and Ms Lester in relation to that report. [4] The Court is not inclined to accept a further report from Dr Newburn dated 10 May 2007, which seems to have been obtained at Mr Prendeville's request. Such report was not contemplated by the leave granted to Counsel for the Respondent at the Hearing, but in any event the report does not shed any new light on the issue and is, in the main, simply argumentative. [5] As noted above, the issue is whether the appellant's incapacity, arising from psychiatric problems which are contended came to a head in or about June 1997, and have continued thereafter, are causally linked to the head injury which the appellant suffered in a motor accident in June 1988, and for which he received cover. [6] In June 1988 the appellant was aged 19 years, and at the date of the accident was employed as an apprentice printer. The injuries suffered by the appellant in the motor accident were described as 'facial lacerations, bruising, a broken nose and concussion'. He was in hospital for two days and after a two-week convalescence he returned to work. [7] The appellant completed his apprenticeship and continued in employment in the printing trade until June 1997. It is the case that the appellant had had certain psychiatric problems, which included admission to psychiatric hospitals in 1989 and 1990, and his psychiatric situation appears to have deteriorated in 1997 to the extent that he was advised by his GP to cease employment, which he did. He then went on a Sickness Benefit. 257.06 (pg) 3 [8] In November 2003 the appellant sought cover for his psychiatric condition, contending that it was the consequence of solvent neurotoxicity claimed to have been suffered in his employment. For that purpose specialist reports were obtained from Professor Gorman, Occupational Medicine Specialist, and Dr Schnabel, Clinical Psychiatrist. A further report was also obtained from Dr Jan Reeves, Consultant Psychologist. [9] Consequent upon those reports the respondent determined that the appellant's psychiatric condition was not caused by solvent neurotoxicity, and it therefore declined his claim by decision dated 17 November 2004. A review of that decision was dismissed by decision dated 9 August 2005. A report from Dr Gil Newburn, Neuropsychiatrist, had been introduced on the appellant's behalf for that review. [10] On 5 October 2005 the appellant, through his advocate, made application for weekly compensation on the basis that his inability to continue work as a printer after 1997 was due to the effects of a brain injury suffered in the motor accident of 1988. [11] The respondent obtained reports from the appellant's GP and referred also to the earlier reports from Professor Gorman, Dr Schnabel, Dr Reeves and Or Newburn. From the information in the respondent's possession, it was considered that the appellant's difficulties were more likely related to a psychiatric condition that had been in existence since the appellant was a child, but that more information would be required regarding the nature and progression of the post-concussion symptoms and the emergence of his psychiatric condition in 1989. [12] It seems that no further information was forthcoming despite the respondent's requests for same and the respondent therefore issued its decision to decline cover by letter dated 19 December 2005. [13] The appellant sought a review of that decision. The evidence presented at that review was confined to the reports, etc., which had been obtained or provided to the respondent to the date of its primary decision. 257.06 (pg) 4 [14] The review decision, dated 15 May 2006, determined that the appellant had not established that his incapacity from 1997 onwards was as the result of his motor accident injuries. It has to be noted that at the date of that Review Decision the respondent had not recognised that the injuries suffered by the appellant extended to any traumatic brain injury. The appellant's cover was subsequently extended to include concussion by decision dated 15 May 2006. [15] Subsequent to the filing of an appeal from that review decision, further medical opinions have been provided by Dr Gil Newburn, on behalf of the appellant, and from Dr Schnabel on behalf of the respondent, each of whom has referred to and responded to the other's report. [16] The Court has been presented with two sizeable bundles of documents and it has to be said that there is significant documentation of the appellant's behavioural problems right from the age of 3. These reports provided a background to the specialists who were asked to provide opinions on the appellant's current (at the time) psychiatric problems and their possible origins. [17] A potted history of the appellant's mental condition in the years following the motor accident is best provided in the report of Dr Jan Reeves, Consultant Psychiatrist, where she noted as follows: "Within the year following the motor vehicle accident, Gordon suffered a psychotic illness in 1989 and was admitted to Tauranga Hospital Psychiatric Unit on 11 December 1989. He was transferred to Tokonui Hospital under section 19 of the Mental Health Act on 13 January 1990. He was discharged from Tokonui Hospital on 14 February 1990. Symptoms included visual hallucinations, delusions and agitated behaviour. Gordon has attributed this episode to being drugged at a party, as he recalls the initial acute onset of the psychotic symptoms occurring at the party. He does however have no evidence that his drink was spiked Gordon's next contact with Mental Health Services was on 22 June 1998 when he ewed by Dr Mackirdy, Consultant Psychiatrist. At this time it was noted "he presents in a paranoid schizophrenic state". Dr Mackirdy also noted that Gordon complained of "feeling frantic" and included manic mood in his differential diagnosis. Gordon continued under the care of Tauranga Mental Health Services as an outpatient. He discontinued Risperidone anti psychotic medication one year ago. 257.06 (pg) 5 Gordon states that he was depressed while he was working in 1996. He was concerned about what was happening with OSH and was wanting to leave his workplace, as he believed it was unsafe in terms of his exposure to solvents." Dr Reeves' report is dated 14 October 2004 and was requested by the respondent in response to the appellant's claim for cover for the effects of neurotoxicity from exposure to solvents from his employment. It was Dr Reeves' diagnosis made at that time that the appellant was suffering from a psychotic illness with symptoms of thought disorder and paranoid ideation. She also noted that the possibility that he had a bi-polar disorder could not be excluded. Dr Reeves' final word on the appellant was as follows: "Gordon's psychotic symptoms have remained chronic, albeit less florid than in 1989 and 1998. Many drug induced psychoses resolve within a short period of time and do not recur unless there is further exposure to the drug, e.g., cannabis, LSD. Gordon's chronic symptoms are more consistent with a diagnosis of paranoid schizophrenia. [18] Dr Gil Newburn, Neuropsychiatrist, was also asked to provide an opinion for the purposes of the solvent neurotoxicity claim. He obtained a history from the appellant about the motor accident and his admission to hospital. That history, as related to Dr Newburn, was as follows. "His next recollection was of a brief conversation in hospital with his boss. He was told that he was unconscious for two to three hours. He was an in-patient for approximately two days. His only recall of his hospitalisation was of the brief conversation with his boss. He did not obtain a regular memory thread until he left hospital, suggesting that post traumatic amnesia was of at least two days duration." Or Newburn also noted the significant behavioural history from his early years as documented by psychiatrists' reports. Dr Newburn noted that on a cognitive assessment he was within a normal range. Dr Newburn considered the motor accident to be a significant event and he noted it as follows: "History is suggestive of post traumatic amnesia of at least two days, meaning that by definition this was a severe injury. History from his mother suggests that there was a stepwise change in his function at the time of this injury, matching the history provided by Mr Taylor. Therefore, it seems that the severity of this injury and its consequences have been minimized in the past. It was following this injury, and possibly also after the ingestion of illicit substances, hat he developed psychotic symptoms. It is notable however that he also developed psychotic symptoms at a later date when he had not consumed illicit 257.06 (pg) 6 substances suggesting that these were not the primary factor (although they certainly may have an aggravating role)." [19] Dr Newburn summed up his opinion as follows: 'Dr Reeves has considered that Mr Taylor suffers from paranoid schizophrenia (probable) on the basis of some abnormalities in the words he presents, some abnormalities in his interactional style with apparent blunting of emotions, and ongoing preoccupations. These re all symptoms that could be seen in an individual with residual signs of schizophrenia. Equally however they could arise in other states. Mr Taylor has a has a clearly defined history of developmental language problems. Therefore, it would be inappropriate to ascribe any subtle language abnormalities to a severe psychotic disorder when there is a pre-existing more satisfactory explanation. Additionally, brain injury may have aggravated these issues. Certainly, in addition to the language issues, his disturbances in emotional display and reduced ability to shift mental set (giving him some preoccupations could equally be described on the basis of frontal system impairment due to brain injury. His reduced ability to be able to engage in complex attentional tasks, impaired digit span reversal, pattern of controlled oral word association (verbal fluency), left palmomental reflex, subtle disturbances in motor planning, and greater than three errors on the conflicting instructions test are all consistent with frontal system damage. Unfortunately, Mr Taylor was not tested in any of these areas premorbidly. However, the presence of these typical signs, along with a history of typical symptoms, and a correlated history of a stepwise deterioration at the time of his brain injury all increase the probability that the brain injury was a significant factor in the presentation of his symptoms. Given the above, it is the opinion of the writer that on the basis of probability Mr Taylor sustained a significant brain injury on 25 June 1988, and that this has been the predominant factor in his subsequent difficulties. While there has been exposure to possible neurotoxins, it is therefore possible that these have had an aggravating factor. However, it is difficult, and may indeed be impossible, to differentiate between his developing problems in the workplace as arising from ongoing neurotoxin exposure versus the consequences of brain injury. Thus, the involvement of neurotoxins can only be considered at the level of possibility." [20] Dr Schnabel, Consultant Psycholog chologist, also considered and assessed the appellant in relation to the solvent neurotoxicity claim, and his report of June 2004 summarised the diagnosis as follows: "The documented relatively isolated decrease of multiple attention (and secondary learning/memory problems) on the background of otherwise high average cognitive abilities are atypical for complex conditions such as Post Concussion Syndrome or Neurotoxicity. TBI related cognitive problems 16 ye s 16 years post injury are unlikely, given the absence of symptoms of post concussion syndrome in the last decade. For toxicity-related cognitive changes, impact on fronto-temporal functions would be expected, however the assessment documented excellent levels of frontal lobe functioning." 257.06 (pg) 7 [21] Consequent upon the appellant seeking entitlements from the respondent for incapacity due to traumatic brain injury, the opinion of Dr Schnabel was again sought by the respondent. He reviewed the medical information with which he had been provided and he identifies 48 separate documents in that regard. In his review of the appellant's history, he noted that the appellant's mother noted increasing problems with mood and behaviour management, and there was a psychotic episode in August 1989 following the appellant believing he had been drugged with an illicit substance, he thought to be LSD. It was following this episode that the appellant was admitted under the Mental Health Act for assessment and treatment. [22] Dr Schnabel summarised the appellant's history as follows: "Mr Taylor has a significant and continuous psycho-social and psychiatric history, since infancy including adopted child, psycho-social/attachment problems with adopted family, epilepsy, severe behavioural problems including anger management problems and poor impulse control, Attention Deficit Hyper Activity Disorder, Dyslexia, cognitive impairment, emotional instability. stability. He had significant psychiatric and psychological input prior to the index injury, however he had not received any of the psychiatric diagnoses which have characterised his psychiatric condition since, namely 'Chronic Paranoid Schizophrenia', 'Bipolar Disorder, and 'Schizoaffective Disorder. The above developmental, behavioural, cognitive, emotional and psycho-social problems of his earlier years have rendered a sizeable vulnerability to developing psychotic conditions, and may even be regarded as early indicators for developing such disorders, although he did not receive a formal diagnosis of psychosis prior to the injury." Or Schnabel then went on to consider whether the appellant's developing mental disorder was attributable to brain trauma and his advice was as follows: "Statistically, the likelihood for developing mental disorder slightly increases for individuals with Brain Trauma. However such injury-related vulnerability is dwarfed by the significantly greater likelihood of developing mental disorder following documented severe developmental and behavioural disorders in childhood and adolescence. There are two additional factors further weakening the link between head injury and psychosis for Mr Taylor Firstly, there was a very graduated onset of his condition with considerable delay since the index injury. Increased emotional instability, drug use, and erratic behaviour were first observed by Mr Taylor's mother seven months after the injury. Further increase of symptoms over the next 11 months resulted in his admission and committal 18 months past the injury. An injury-related mental health disorder 257.06 (pg) 8 would be expected to occur in closer proximity to the index event, and to present with a more sudden onset of symptoms. Secondly, there was well documented substance abuse, some of it reportedly "involuntarily", by being "set up by friends", some of it as part of a more regular habit. Mr Taylor's mother noted already at an early stage a correlated symptom cluster, consisting of mental instability and erratic behaviour, and drug use. Her observation is consistent with research-based evidence linking the onset of mental health disorder in vulnerable individuals to the use of illicit substances. In summary, the relationship between Mr Taylor's car accident and his psychiatric condition has been weak at the most, at all stages. It is my professional opinion that a significant causal relationship is unlikely between Mr Taylor's mild Traumatic Brain Injury sustained in June 1988 and his Mental Health Disorders, diagnosed as 'Chronic Paranoid Schizophrenia', 'Bipolar Disorder, and 'Schizoaffective Disorder. . . . The symptoms presented in 1997 constitute a relapse of a diagnosed chronic, recurring mental health disorder, which had resulted in committal and hospitalised care in 1989/1990 I consider Mr Taylor's mental health condition to be of longstanding nature. Multiple causes apply, including psycho-social factors in childhood, early developmental and mental health problems in childhood and adolescence, and substance abuse Whilst I believe a theoretical (statistical) contribution of Mild Head Injury could be argued for his first psychotic episode in 1989/1990, I don't believe there is good evidence for linking Mr Taylor's relapse to the head injury in 1988." Or Schnabel summarised his opinion as follows: "It is my opinion that in the balance of such significant risk-factors Mr Taylor's mild head injury is not a substantial causal factor for subsequent problems, certainly not for ongoing (sustained) problems considerable time after the index injury. Effects of such relatively mild head trauma would be expected to have been spent one to two years post brain trauma. The Neuropsychological Assessment, conducted in 2004, certainly did not document ongoing neuro-cognitive impairment. Instead certain Somatoform features, longstanding loss of age appropriate life roles and activities, illness behaviour, and deconditioning were identified." [23] Dr Newburn was asked to comment on Dr Schnabel's report and it was his response that was produced by Mr Prendeville on the day of the hearing of this appeal and hence the need to provide the respondent with the opportunity of further reply. [24] At the outset I have to state that i am not particularly impressed with the manner in which Dr Newburn has set about his response, and the tenor of this report, I find, places his objectivity in serious doubt. The Court is, of course, familiar with Dr Newburn and his impassioned advocacy on behalf of his patients. 257.06 (pg) 9 [25] Dr Newburn commented on Dr Schnabel's opinion that there was only a slight chance of developing a mental disorder from a person with brain trauma. Dr Newburn indicated that research, albeit from research done in the 1960's and 1980's, indicated that the rate of major depressive disorder in the first year after traumatic brain injury is 42%, with an incidence of annual prevalence in New Zealand of only 4.5%. [26] Dr Newburn went on to state as follows: "Once individuals have developed a post traumatic psychotic disorder, then this tends to be a lifelong condition. The brain conditions associated with disturbances in such mental processes are of course permanent, and cannot be expected to go away. It is not uncommon for there to be recurrent presentations with psychotic conditions, which will continue in the absence of appropriate ongoing strategies therapeutically. It is equally not uncommon for such issues to be missed. The writer is aware of at least two other situations in New Zealand in recent years where such factors were minimized, and the injured individual committed murder. This was on the basis of psychotic symptoms." Dr Newburn then considered the causative relationship between the brain trauma and the appellant's subsequent difficulties and he identified it as being one of step-wise deterioration with further deterioration later. He considered that whilst there were clearly pre-morbid factors, these were clearly exacerbated by the injuring event. [27] Dr Schnabel was asked to respond to Dr Newburn's report and he did so by report dated 18 April 2007. That report again referred to the extensive pre-accident history of this appellant dating right back to infancy and which involved a multitude of behavioural problems. He summed up that history as follows "A continuous psychiatric history has been documented since the age of three years, involving behavioural disorder, developmental delay, cognitive dysfunction, and epilepsy. Diagnoses include: hyperkinesis, epilepsy, cognitive impairment, enuresis. Particular safety concerns were repeatedly raised due to violent, antisocial behaviour with homicidal risks. The management of Master Gordon's symptoms had required prolonged pharmaceutical treatment with anti-psychotic, anti-depressant, and anti-epileptic medication." 257.06 (pg) 10 [28] On the issue of the increased likelihood for developing mental disorder following brain injury, he advised that this was a complex matter where there could be a wide range of contributing and mediating factors. He stated his position to be as follows: "This is not the place for a comprehensive review of empirical studies on the impact lopment of psychosis; in par in particular as claim involve such a wealth of confounding factors, including pre-existing psychiatric disorder, drug use, and specific psycho-social factors. I therefore restrict myself to reiterating my previous cautious statement that there is, in statistical terms, a relationship between head-injury and the development of mental disorder, however there is substantial variation h regards to the closeness of this relationship depending on a phalanx of variables. Given the specifics of Mr Taylor's history, a particularly careful interpretation of general statistical data is required. The correlation between the use of illicit drugs and the onset of psychiatric disorder is well documented, and I believe, acknowledged by Or Newburn. I agree with Dr Newburn that this correlation is further increased for clients with pre-existing conditions such as head-injury, pre-existing psychiatric history, and psycho-social vulnerabilities." Dr Schnabel's summary is as foll "Both Dr Newburn and myself struggle with an essentially irresolvable problem: trying to, retrospectively, interpret reported symptoms and reported events, relying on incomplete data, opinions of other clinicians, and findings, covering the large imeframe of over 30 years in a client's personal history. Dr Newburn and myself have different opinions, based on different knowledge bases and interpretations. Answers to specific questions, such as the role of Mr Taylor's head injury or the relevance of his complex childhood issues for his current disability/symptom-cluster are a matter of interpretation, plausibility and understanding. This can be guided by evidence-based science, but will not provide an indisputable answer. Clinical experience, moreover, suggests multi-factorial, complex, and closely interlinked causation for a specific functional disability (e.g. inability for work), and / would be happy to concur with Dr Newburn that we are not in a position to categorically dismiss any potential causal factor in the interpretation of a complex history case. [29] The Court received comprehensive written submissions from Counsel for both parties, commenting on that medical evidence and the Court has noted those submissions in its consideration of that specialist evidence. 257.06 (pg) 11 DECISION (30] It should be remembered that the issue in this appeal arises from the appellant's application for weekly compensation for the period from June 1997 onwards, he contending that he is incapacitated and was so from the time he ceased his employment. [31] The issue of incapacity is central in this appeal, and whilst it may be accepted that the appellant's overall mental state is not one which is conducive to securing or maintaining employment, it must be recognised and kept at the forefront that the incapacity does not arise as a consequence of any cognitive deficiencies or inability to carry on his pre-injury employment as a printer from that aspect. (32] What is being asserted is that the appellant's general psychiatric condition, something totally removed from any cognitive disability, is the reason he cannot continue with his employment. There is no evidence that any brain injury that the appellant may have suffered has caused any cognitive deficiency. A number of the psychiatric specialists have carried out various tests which reinforce that fact. (33] The question therefore is, whether the concussion which the appellant suffered in the motor accident in June 1988 caused the psychotic state which is now diagnosed as being the appellant's ongoing condition. It is to be noted that Dr Reeves provided differential diagnoses, according to DSM IV, as being paranoid schizophrenia, bi-polar disorder and schizoaffective disorder. She described his symptoms as chronic. [34] The picture that is painted of the appellant as a child growing up is one of significant anti-social behaviour and during which he has under the care and treatment of Dr A G Williams, Consultant Psychiatrist, and there are a number of reports to the appellant's GP and to his school regarding Dr Williams' attendances on him. [35] There does not appear to be any recorded reference to his situation in his teens. [36] The appellant was aged 19 when he had the motor accident and within a year of that accident he had a major psychotic episode. At aged 20 he was admitted to Tokanui 257.06 (pg) 12 Hospital with the diagnosis of a schizoaffective disorder. It was believed that this chain of circumstances came about as a result of him consuming a spiked drink. [37] On the other side of the ledger the appellant returned to work within two weeks of the motor accident, completed his apprenticeship and remained in gainful employment in the printing trade until mid-1997. It was about this time that his behaviour again took a nose dive and his unstable condition culminated in him being advised by his doctor to cease work, which he did. [38] The diagnoses made by Dr Reeves, Dr Schnabel and Dr Newburn from 2004 onwards, indicate that the appellant is troubled by a schizoaffective disorder which often manifests itself in unpredictable behaviour. The Court can accept that the appellant is not in a state where he can resume his employment in the printing trade, not because he has ceased to be a competent person in a technical sense but rather because of his general mental condition. [39] The cause of that mental condition is the subject of conflicting opinions, principally from Dr Schnabel and Dr Newburn, both of whom were requested to consider and give an opinion on the medico-legal issue which is at the heart of this appeal. [40] On the one hand, Dr Schnabel identifed the significant pre-accident history, and he opined that the appellant was a type of personality that brought about a vulnerability to developing psychotic conditions. He considered that his early behavioural problems could be regarded as early indicators of his later developing disorder. [41] It is the opinion of Dr Schnabel that the traumatic brain injury that he suffered in the accident was unlikely to have been a significant factor in the development of his mental disorder in the light of the behavioural disorders that he had in childhood and adolescence. [42] Dr Schnabel also considered that the head injury was not significant although it may have caused short-term amnesia. Dr Schnabel also considered that the absence of any post-concussion syndrome since the accident and the absence of any TBI related 257.06 (pg) 13 cognitive problems point to the fact of the concussion in the accident as not being a causative factor in the development of his psychotic condition. [43] Dr Newburn, on the other hand, bases his opinion largely on the assessment that the injury suffered by the appellant was a significant brain injury. He uses that term by reason of his understanding that the appellant suffered post-traumatic amnesia of at least two days, and that, on the scale of things, meant that the brain injury was severe. [44] Dr Newburn is relying on the information provided by the appellant, whereas Dr Schnabel had reference to the clinical notes at the hospital. Dr Newburn's response to Or Schnabel's reliance on those notes was that the hospital staff were most likely not trained to identify the symptoms of post-traumatic amnesia and that to accurately identify it there would need to have been specific tests carried out. He referred to the Westmead Post-Traumatic Scale or the Galveston Orientation and Amnesia Test. He accepts that neither of these tests were carried out and he simply then reverted back to his taking of an accurate history. [45] The Court has great difficulty in accepting that the appellant himself could provide an accurate history. I find that the assessment which Dr Schnabel carried out, he having regard to the clinical notes and the reports made at the time, is more likely to provide a clearer basis upon which to provide an opinion. [46] When it comes to the critical question, Dr Newburn is in no doubt that the cause is the appellant's significant brain injury and that everything stems from that. He referred to the onset and development of his mental condition as being that of a history of step- wise deterioration. 47] Dr Schnabel, I find, has put the matter in better perspective when he noted that whilst there is, in statistical terms, a relationship between head injury and the development of mental disorder, that relationship is questionable and subject to a phalanx of variables. It is the phalanx of variables that are documented in the background of this appellant which caused Dr Schnabel to come to his conclusion that whilst the connection is possible, it is unlikely to be probable. 257.06 (pg) 14 [48] Dr Schnabel acknowledged that the matter was essentially an irresolvable problem but he comes to the conclusion that the relationship is weak at the most at all stages. He considers that the concussion suffered in the motor accident is unlikely to be the cause of the appellant's diagnosed chronic paranoid schizophrenia, bipolar disorder and schizoaffective disorder. [49] At the end of the day, the Court is required to determine whether a causative link has been made out on the balance of probabilities. Taking an overall view of all the evidence of this appellant's troubled life, and the influences which have been brought to bear on his behaviour, including intended and unintended substance abuse, the link can never be said to be more than a possibility, that is it cannot be discounted entirely, but in the particular circumstances of this appellant it cannot be said to be a probability. [50] Accordingly, I find that the incapacitating mental features which the appellant displays cannot be said to be the result of the head injury he suffered in 1988, and therefore his current condition is not one for which entitlements under the Act can arise. The respondent made the correct decision in the circumstances. [51] This appeal is dismissed. DATED at AUCKLAND this 2 of July 2007 ethic M J Beattie District Court Judge 257.06 (pg)