Bezzina v Phi & Anor
[2011] VCC 423
•27 April, 2011
IN THE COUNTY COURT OF VICTORIA Unrevised
Not Restricted
AT MELBOURNE
CIVIL DIVISIONSERIOUS INJURY
Case No. CI-10-01505
RICKY BEZZINA Plaintiff v TRUNG PHI FIRST DEFENDANT AND TRANSPORT ACCIDENT COMMISSION SECOND DEFENDANT
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JUDGE: COHEN WHERE HELD: Melbourne DATE OF HEARING: 15, 16 and 24 March, 2011 DATE OF JUDGMENT: 27 April, 2011 CASE MAY BE CITED AS: Bezzina v Phi & Anor. MEDIUM NEUTRAL CITATION: [2011] VCC 423
REASONS FOR JUDGMENT
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Catchwords: Serious injury application; s 93 Transport Accident Act 1986; pre-injury lifestyle and capacities seriously restricted by prior physical and psychological injury; young man incapacitated for work for 8 years before injury, and on disability pension; whether consequences of injury suffered in transport accident of extent to satisfy definition.
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APPEARANCES: Counsel Solicitors For the Plaintiff Mr B Collis QC Vincent Verduci & Mr A Ingram Associates For the Defendant Ms J Dixon SC TAC Ms R Annesley HER HONOUR: 1 Mr Ricky Bezzina was injured when the car he was driving was struck by another car on 4 March 2006. He applies for leave to bring a claim for damages in respect of such injuries, and to obtain leave must satisfy the Court that he has suffered a “serious injury” within the definitions and constraints of section 93 of the Transport Accident Act 1986.[1]
[1] Sub- sections 93(4)(b) and(6).
2 Mr Bezzina’s application now relies only on part (a) of the definition of “serious injury” – that he suffered serious long-term impairment of a body function[2]. He claims to have suffered such injury to his right shoulder and or alternatively to his cervical spine. He does not pursue a claim based on part (c) of the definition, but it is argued that relevant consequences to him of the injuries to his right shoulder or neck include aggravation of a pre-existing adjustment disorder with anxiety and depression, and of a pre-existing pain disorder, secondary to each physical injury.[3]
[2] Definition of “serious injury” in ss 93(17)
[3] Written Submissions of Plaintiff para 5; relying on the use permitted of such consequences as outlined in Richards v Wylie(2000) 1VR 79. See also: Transport Accident Commission v Kamal [2011] VSCA 110 at para 66
3 The test which the Court must apply in determining whether he has suffered “serious injury” under part (a) of the definition is whether the consequences of the injury, when judged in comparison with other cases in the range of possible impairments or losses of function, can be fairly described as at least “very considerable” and more than “significant” or “marked”.[4] The seriousness of consequences to the plaintiff can be measured in part by a mental response to a physical impairment, but the mental disorder cannot itself constitute or be the producer of the impairment of a body function.[5]
[4] Humphries v Poljak [1992] 2 VR 129 at 140-141.
[5] Richards v Wylie(2000) 1VR 79 at 88 lines 1-4.
4 The defendants do not dispute that the plaintiff suffered injury to his right shoulder and to his neck in the transport accident of 4 March 2006. They argue, however, that:
(i) the consequences to him of each injury cannot be aggregated as they impact different body functions[6]; and
(ii) assessed separately neither satisfies the test for a “serious injury”, because neither caused significant enough changes to his lifestyle, his treatment and medication, or his work capacity, to be fairly described as “very considerable”.
5 The evidence consisted of the documents set out in the attached schedule, and oral evidence of the plaintiff, of Dr Andrew Soloczynskyj, his general practitioner, and of Dr Clayton Thomas, pain management specialist, who were required for cross-examination.
6 As in most applications of this type, the credibility and reliability of the plaintiff’s own evidence is very important, as both the Court and the doctors whose opinions are in evidence, are all heavily dependent on the reliability of the plaintiff’s account of the timing, extent and duration of symptoms, and their effects on his activities. I have taken into account in assessing the plaintiff’s credibility and reliability as a witness the evidence that he takes considerable quantities of medication likely to affect his mood and affect, and also his memory and concentration. My impression was that for a person taking the dosages he does of medication, especially Oxycontin, he was surprisingly cogent and apparently able to concentrate more than I would have expected. I have inferred that that was due to his having been taking such medication for many years and having developed a tolerance for it so far as his concentration is concerned. I take the effects of medication into account when assessing the genuineness of his claims to not remember details.
7 Plaintiff’s counsel submitted that there had been no significant issues raised with respect to the plaintiff’s credibility.[7] The defendants’ case is that the extent of the consequences of his injury as described by him are amplified through his subjective view, and they urge me to consider not only the plaintiff’s presentation in the witness box, but also the evidence of his actions and behaviour over the course of the injuries, to assess his credibility.[8]
8 As I told counsel during final addresses[9], there was a particular instance where my impression was that Mr Bezzina was deliberately untruthful. That was when he said that the reason he had not applied to the Transport Accident Commission to pay for him to attend the psychologist Mr Tait when the WorkCover authority had discontinued paying for that treatment earlier this year, was because he did not want to go through the bureaucracy or have to go to see more doctors. My impression at the time was that that was not his real reason, and that this had been an easy or lazy explanation. He had applied for other TAC benefits, including physiotherapy without apparent reluctance. Nevertheless, generally I was not of the impression that he was being deliberately evasive or untruthful. Overall I accept that most of his evidence genuinely reflects how he perceives his injuries, symptoms and their consequences, and facts to the best of his recollection, albeit at times unreliable.
Plaintiff’s background and circumstances prior to the transport accident
[6] Lu v Mediterranean Shoes Pty Ltd (2000) 1 VR 511
[7] T 207, lines 25-26, and written submission paragraph 1.
[8] T 220, lines 21-30
[9] T 207, line 28, T 208, line 22.
9 Mr Bezzina is now aged 38. He left school at the age of 15 after completing Year 8, worked for about three years at service stations, then at various manual or labouring jobs, such as machine operator, storeman, labourer, and, from 1996, delivery truck driver. By 1999, in his mid-twenties, he was living with his wife, their two children (at that stage), and his wife’s elder daughter, and working to provide for his family, and two other children of his.
10 In July 1999 Mr Bezzina suffered injury in the course of his employment with Supagas. Unfortunately for him it occurred during a period for which claims for damages at common law were excluded. As a result of what was primarily an injury to his lower back, but also a significant psychological reaction, he was unable to work. He was prescribed medication for pain, and its use grew. In 2001 he was referred to Dr Clayton Thomas, a specialist in pain management. He was by that time on significant quantities of opiate-based medication for pain, and Dr Thomas made recommendations to his general practitioner to rationalise and try to reduce or limit the amount of medication he was taking. He was referred to a psychiatrist, Dr Senadipathy, in April 2002, and diagnosed with an adjustment disorder secondary to his physical injuries. He had been taking some anti-depressants, but over the following years he was reluctant to pursue treatment, in person or by medication, for a psychological condition. During 2004 and 2005, he was prescribed Lexapro for anxiety, but his general practitioner gave him “a loose rein” to take or cease medication.
11 In the first two to three years after his back injury, there was consideration of a return to alternative work after rehabilitation, including through Dr Thomas and Dorset Hospital. However, he was unable to be successfully returned to the workforce, and in 2003 was granted a disability pension.
12 By the time of the transport accident in March 2006, Mr Bezzina was taking large quantities of Oxycontin for pain, and was suffering significant depression and panic attacks. He mainly stayed inside[10], but making some contribution to tasks and activities within the home, and in relation to the upbringing of the children. He clearly went out with his family at times, because he was driving them at the time of the transport accident that gives rise to this case. I am satisfied that there was no realistic prospect of him returning to any employment in the foreseeable future, notwithstanding what he told Mr Tait on first consultation, with the advantage of hindsight. Mr Collis describes him as having accepted his lot.
[10] T 56, l 19-21
The transport accident injuries and following events and treatment
13 On 4 March 2006 Mr Bezzina was driving with his wife and children when his vehicle was struck by another which entered an intersection against red lights. I accept that there was significant force in the impact as his car was effectively a total “write-off”. He says that he knew he had suffered injury, but he was more concerned about the safety of his children and wife in the car. This is consistent with the ambulance report[11] that also records taking him to the Sunshine Hospital – travelling in the front while his wife was transported in the back.
[11] Exhibit R
14 In the ambulance and at the hospital Mr Bezzina complained of increasing pain in his right shoulder[12]. The presenting problem at the Emergency Department was noted as “INJURY - ARM (SHOULDER) AND NECK” with “SL” deformity noted on the right shoulder [13]. There was some swelling and some tenderness over the lateral part of his clavicle with some pain on movement, although he retained full range of movement. The diagnosis at the hospital was sprain or strain of the shoulder, and he was advised to keep his arm in a sling, take regular analgesia, and rest, and referred to the care of his treating general practitioner. An x-ray of the shoulder showed no fracture of the clavicle, although as reported the following day did show a dislocation of the AC joint but the only hospital report[14] does not mention this finding. Although increasing neck pain was noted when in the ambulance, it is unclear[15] the extent of clinical signs of neck injury on examination at the hospital, and no diagnosis in respect of the neck has been recorded.
[12] Exhibit R
[13] Exhibit Q
[14] Exhibit Q
[15] Exhibit Q – critical word obliterated in relation to denial of neck or back tenderness.
15 Mr Bezzina attended his long-term general practitioner, Dr Soloczynskyj, two days later, where he complained of persisting pain in the right AC joint. An x- ray showed a fracture dislocation of the right AC joint with the clavicle subluxed superiorly with a small fragment adjacent to this, but the shoulder joint itself was normal[16]. As he was already on what his doctor called “a reasonable amount” of pain relief in relation to his WorkCover back injury[17], no further medication was prescribed, and he was advised to keep his arm in a sling and rest it.
[16] Exhibits C and D
[17] Exhibit D – report dated 13/10/05 [but obviously 2006]
16 In late April another x-ray of the shoulder showed a mildly dislocated AC joint with some minor fragments from the fracture. Anti-inflammatory medication was prescribed and he was referred for physiotherapy which he underwent in May and June 2006.
17 Over the following months he continued to complain to Dr Soloczynskyj of problems in the right shoulder, and developed neck discomfort that had been radiating down his left shoulder. As he was already on high doses of Oxycontin for his back injury, the only other medication was for him to use some Feldene Gel.
18 In October 2006 Mr Bezzina was referred to Mr Peter Tait, a psychologist, in relation to chronic pain management, anxiety and panic attacks. Mr Tait undertook cognitive behavioural therapy, including solution-based hypnosis. Mr Bezzina says that he found the techniques taught to him by Mr Tait helpful, and that this therapy helped him understand what he had been experiencing for many years before the accident.
19 In April 2007 Dr Soloczynskyj referred him to Dr Zelco Matkovic, neurologist, who found no neurological reason for the plaintiff’s right shoulder or neck or left arm symptoms, and concluded they were musculo-skeletal. He did order an MRI of the cervical spine in March 2008, but that did not result in any change of diagnosis and he did not recommend any particular treatment.
20 No surgery has ever been suggested by treating doctors to improve the condition of his right shoulder, despite there still being some distortion of shape due to the dislocation. There is no medical evidence as to whether or not any surgical treatment might have assisted, and given that five years have passed since the transport accident, I am satisfied that it is unlikely that any will be attempted in the foreseeable future.
Mr Bezzina continues under the care of Dr Soloczynskyj, attending approximately weekly[18], and being prescribed Oxycontin for pain for both work injuries and transport accident injuries. He has also been prescribed Xanax for anxiety, but the regularity of its consumption is unclear. Since early this year the Xanax has been replaced with Antenex, for anxiety but also as remedial for neck muscle spasms[19], and that has resulted in some improvement from everyone’s perception, and in a moderate reduction in Oxycontin consumption – to about 240 mg per day.
He ceased treatment with Mr Tait in January 2011, when the Workcover insurer ceased paying for these services. He says that he found Mr Tait’s treatment very helpful, and if he obtains TAC approval to pay for such services he will continue them. I am satisfied that he is likely to continue with that treatment, and that it is likely to be to his benefit, provided payment for it can be obtained.
Consequences of Plaintiff’s injuries
Following the transport accident Mr Bezzina had the addition to his underlying disabilities, of a painful right shoulder which required a sling for about two weeks, and remained painful, with sensitivity to touch over the front where a bulge remained over the dislocated joint. He underwent physiotherapy for a few months, but found it did not help. He also suffered neck pain, at first less noticeable than the right shoulder, but over time noticing that there was pain referred into his left shoulder and down the arm at times.
Mr Bezzina says that the pain in his right shoulder, and also in his neck and at times left shoulder or arm, has continued, and that his social recreational and domestic activities have been “very greatly affected”[20]. He also says that these new injuries greatly increased his anxiety, especially in the months following the accident, although after referral to Mr Tait he has been assisted by techniques taught to him by Mr Tait, and he also says that he has felt improvement since taking Antenex from early this year.
[18] T 155, l 11-20
[19] T 169,l 30 – 170,l 3
[20] Affidavit of 21 May 2010, para 11.
Medical Opinion
21 Dr Soloczynskyj provided reports over the years, and was called for cross- examination. His initial report explained the findings on X-ray in relation to the right shoulder, and that the existing medication regime for the long-standing work injury would be continued and would cover the new injuries. By March 2009 his view was that Mr Bezzina’s WorkCover injuries, which had been relatively stable, were stirred up a bit by the motor vehicle accident, but subsequently seemed to settle down. He described the shoulder and neck as continuing to give him “a little bit of trouble on and off”.[21] However, by September 2010, Dr Soloczynskyj’s view was that he had constant ongoing pain requiring narcotic analgesia to control it, and that although all fractures had healed by that time he had ongoing soft tissue pain in his shoulder and neck as a result of the motor vehicle collision that was unlikely to improve much more in the future[22].
[21] Report dated 19 March 2009, Exhibit D.
[22] Report dated 7 September 2010, Exhibit D.
22 In his oral evidence he confirmed that he did not expect the patient’s condition to change, and the most improvement likely had been achieved over the last few months since the addition of Antenex which he believed had resulted in a decrease (to 240mg/d) of consumption of Oxycontin[23].
[23] T 169
23 As to the psychological condition, Dr Soloczynskyj said that over the years after the back injury there were times when Mr Bezzina was quite depressed and anxious about his back pain, and being such a young person not having the ability to work anymore. He had been referred to a psychiatrist, Dr Senadipathy, in March 2002 and prescribed anti-depressants and pethidine, however, he had been reluctant to acknowledge the need for psychiatric treatment. The referral to Mr Tait, psychologist in October 2006, had produced some improvement.
24 Mr Peter Tait, psychologist, treated the plaintiff from October 2006 for chronic pain management, anxiety and panic attacks. Mr Tait records a history which differs in two significant respects from what I have found to be the likely facts. First, he reports that Mr Bezzina told him initially that prior to the motor vehicle accident he was making progress with his work injury and was managing his lower back pain and contemplating return to work. In his most recent report Mr Tait says that Mr Bezzina had told him that if he had not been involved in the motor vehicle accident he would have been able to return to work, and that he has attempted several times to return to work by sitting in his uncle’s truck for a day, however he was unable to tolerate the pain in his neck and shoulder. That is contrary to all other evidence, including the plaintiff’s own affidavit[24]. Secondly, Mr Tait reported that Mr Bezzina was, as at August 2007, currently trying to eliminate most medications. That is not consistent with Dr Soloczynskyj’s evidence, nor any other evidence.
[24] Exhibit A, affidavit of 21/5/10, paragraph 12
25 I have taken these differences in history into account in lessening the weight I place on Mr Tait’s views as to the cause and extent of consequences of the plaintiff’s psychological conditions.
26 In a report of January 2011[25] Mr Tait recorded that Mr Bezzina’s current psychological condition that his treatment had helped him to deal with specific issues, but he continued to feel sad and empty most days, and to experience fatigue and loss of energy but has difficulty sleeping due to pain. The chronic pain in his shoulder and neck area is constant and causes irritability, he experiences a depressed mood, tearfulness and feelings of hopelessness. Mr Bezzina had also during July 2010 complained about experiencing pressure in his head and nasal cavity, the pressure and pain being so intense that he had felt like killing himself and on 31 July was hospitalised. He no longer was taking anti-depressants because he was fearful of the side effects, but continued on prescribed pain medication, although he claimed it does not help the pain. He also continued to experience panic attacks, although they had reduced.
[25] Part of Exhibit E.
27 He describes the therapy he has used, and its focus, and I accept his view that Mr Bezzina has received significant benefits from those strategies. I also accept his opinion that this therapy should continue, for further benefit to the plaintiff.
28 Mr Tait’s overall opinion was that Mr Bezzina suffered a chronic pain disorder, referable to his lower back, consistent with the work injury and also referable to the right shoulder and neck, consistent with the motor vehicle accident. He also suffered an adjustment disorder with anxiety and depression consistent with the work injury, but that it had been aggravated by the effects of the motor vehicle accident. The Post-Traumatic Stress Disorder, which he also diagnosed, was considered consistent with the motor vehicle accident. He thought the signs and symptoms associated with these disorders had caused clinically significant distress and impairment in social, occupational and personal functioning for Mr Bezzina. Mr Tait’s opinion was that currently Mr Bezzina’s disorders are predominantly related to the motor vehicle accident, but as he relied on a history that Mr Bezzina had his low back pain under control and intended to return to work before the motor vehicle accident, I am not satisfied by this opinion, and further note that it does not differentiate the contribution of the post-traumatic stress symptoms which cannot be taken into account in assessing the extent of the plaintiff’s impairment in this case.
29 The opinion of Dr Zelko Matkovic, neurologist, was based on a history that in the motor vehicle accident in 2006 a fracture of the right shoulder was found in hospital, but he noted that surgery was not planned (assuming that it had been considered by those treating him earlier). Mr Bezzina had undergone physiotherapy. He complained to Dr Matkovic of symptoms of neck and left arm pain being more troublesome, which he had been told by others was referred pain. Sometimes the neck pain shoots to the left elbow or less often to the hand. He said that in the past it would only occur with neck movement but now occurs without any precipitant and occurs every day and the pain causes him anxiety. Mr Bezzina said he had a bad back injured at work and had been off work for seven to eight years. At the time he was on three 80 milligram Oxycontin tablets per day and sometimes also taking Panamax and he was seeing a psychologist once a week. On examination, tone, power, reflexes and coordination were all normal and there was no muscle wasting in either arm.
30 Dr Matkovic’s conclusion was that the symptoms were likely to be musculoskeletal in origin. A cervical MRI taken in March 2008 showed narrowing of the left C7 foramen but with no definite nerve root compression radiologically, and clinical examination did not disclose any evidence of radiculopathy or myelopathy. He recommended that the opinion of a spinal surgeon or neurosurgeon be obtained as the patient had had symptoms for many years without any recovery, and he felt the prognosis for a major improvement in the future was poor.
31 On review in October 2010, Dr Matkovic noted that the plaintiff was taking 240 milligrams of Oxycontin per day and also Panamax and Feldene Gel applied to the left shoulder, using a TENS machine once per fortnight and no longer having physiotherapy but seeing a psychologist once per week. There were still complaints of symptoms in the neck and both shoulders, and it felt like someone was pinching or squeezing the muscles between his neck and right shoulder. Turning his neck increased the neck pain and he felt as if his right shoulder crumbles when he moves the right arm. He complained of pins and needles in the arms, especially the right arm, at times of throbbing pain which may occur with neck movement, and a buzzing may also occur in the arm. He said there were also symptoms in the lower back that he termed sciatica in the left leg, especially when cold and in winter. On examination he had collapsing weakness of all four limbs but all reflexes were present and symmetrical. He had reduced vibration sense over the right knee and an increased pin prick sensation over the left arm. He had restriction of right shoulder abduction bilaterally but the doctor did not examine the lumbar or cervical spine. Dr Matkovic concluded that the plaintiff has severe and longstanding symptoms, but there are no significant abnormalities on neurological examination. He concluded the symptoms are musculoskeletal in origin and appear to combine injury to his shoulder, cervical and lumbar spines. He stated that, on Mr Bezzina’s account, his symptoms relate to the back injury and the more recent motor vehicle accident. He considered the prognosis for recovery was poor.
32 Mr Peter Scott, consultant surgeon, had provided a medico-legal report after seeing the plaintiff in September 2010.[26] Examination of the right shoulder showed a dislocated right acromioclavicular joint with marked pain being experienced at that level. There was a full range of painless movements of the cervical spine but complaint of some mild discomfort at the extreme of flexion and extension. There was no tenderness to deep palpation along the cervical spine musculature to the left and right of the midline posteriorly. Mr Scott noted that there was evidence of a fracture dislocation having occurred to the right acromioclavicular joint, and features suggestive of a right shoulder rotator cuff lesion as a result of the motor vehicle accident. There were also features suggestive of intermittent cervical nerve root irritation resulting in left upper limb radiculopathy without any ongoing features of any motor or sensory deficit. He considered the plaintiff may also have developed some aggravation of a pre-existing, longstanding depressive state which in turn required clarification by a consultant psychologist.
[26] Exhibit F. He had also seen examined the plaintiff after the work injury, in March 2000- Exhibit U
33 Mr Scott reported that the plaintiff had been unemployed since 2001 as a result of a chronic pain syndrome resulting from a work injury in July 1999 and that his inability to work continued. He considered the prognosis poor in view of the lack of response to various forms of treatment to date. He thought there appeared to be a major problem with anxiety and depression which required interpretation by a psychiatrist but he also had significant ongoing work-related organic disability in relation to his dislocated right shoulder and probable associated right shoulder cuff lesion.[27]
[27] I take the expression “work related” to in fact refer to the transport accident.
34 Mr Michael Fogarty, orthopaedic surgeon, examined the plaintiff twice for the TAC[28]. The history he took included that the right shoulder movement had returned but the plaintiff had intermittent pain in his shoulder and found sleeping on his right side a problem. He had some pain in his neck, particularly at the base of the neck and across his left shoulder into the arm extending to the hand, especially index finger and sometimes accompanied by tingling and pins and needles, however the feeling was variable. On examination, in July 2008, the posture of his neck appeared to be normal. Some measured limitation on range of movement was noted. Mr Fogarty could detect no neurological deficit in either arm and all reflexes were present, brisk and equal. At the right shoulder there was a prominent outer end of the clavicle caused by chronic acromioclavicular dislocation but it was not particularly tender. He had radiological x-rays available. He diagnosed a grade III (complete) acute dislocation of the right acromioclavicular joint and soft tissue injury to the neck, probably with aggravation of early degenerative changes in the lower neck-spine resulting from the motor accident. He did not consider there to be any injury in the lower back arising from the transport accident, but a history of lower back injury occurring about seven years before.
[28] Exhibit P – reports 23/7/08 and 17/1/11
35 Mr Fogarty concluded that the medical condition had affected the daily living activities of Mr Bezzina, and that he finds certain aspects of housework difficult and lifting children difficult, but it had not impacted on his occupational activities as he was not working at the time and had not been working for seven years. He considered the treatment of medication he had received to be appropriate and did not feel that other medication was required. He considered that Mr Bezzina’s mobility had been somewhat affected by these injuries, however he could carry out most activities of daily living, having some difficulty when using his arms in a stressful way or carrying any significant weight. He did not think that Mr Bezzina’s personal relationships had changed purely as a result of this accident. His leisure activities may have been curtailed to a degree and there may well have been a psychological impact of the injury which needed to be separately assessed.
36 On re-examination in January 2011, Mr Fogarty noted the then current complaints were right shoulder still giving some pain, which he also felt between his shoulder blades, and that he did not have quite full movement in his shoulder. He said he had some numbness in his little and right fingers from time to time and his whole right arm gets tired. He still had some pain and relative stiffness in his neck and across the left shoulder into the arm. Mr Fogarty confirmed his previous diagnoses of the injuries resulting from the motor accident. He considered the injury to the right shoulder was significant but that there had actually been good but not complete recovery of function. The injury to the neck was also significant but had been followed by an expected recovery. The prognosis for the injuries was that the shoulder will stay in much the same condition as at present, and the neck may improve slightly but some symptoms are likely to persist. The current disabilities were not great in his opinion. He noted there was certainly radiological support for the plaintiff’s current complaint of injury relating to his right shoulder and neck, but the underlying cause of his pain was predominantly related now to psychological factors, although some signs of the previous injury remained. He did not consider any further treatment of any description would assist the plaintiff given the five years that had passed since the motor accident. His view was that the injuries did interfere to a mild extent with the patient’s ability to undertake any suitable work, and would have been expected to incapacitate him for about a year, however noted that it is now ten years since he last worked and he has been on a disability support pension for eight years.[29]
[29] Exhibit P
37 Dr Helen Sutcliffe, occupational physician, examined the plaintiff for medico- legal purposes in November 2010[30]. He described to her persisting symptoms of persisting severe pain in the neck, left shoulder, right shoulder and upper back. On examination he described increased pain with the limited activity he performed, and difficulty sleeping because of pain in lying in any position in bed. On examination there was restricted and painful movement of the cervical spine with muscle spasm observed. There was some restriction of range of neck movement. There was restriction of range of movement of the shoulders, with pain on movement of the right shoulder, and a crunching sensation at the right acromio clavicular joint. She found no alteration in reflexes, but altered sensation to light touch in an area of the left and right hand and forearm. Dr Sutcliffe reviewed all of the radiological findings. She believed that Mr Bezzina had sustained a fracture dislocation at the right acromio clavicular joint. She thought he also sustained onset of degenerative change in the left acromio clavicular joint as a result of the traumatic injury. She felt soft tissue injury to rotator cuffs on both sides had not been excluded (by MRI). Dr Sutcliffe also diagnosed disc derangement at C5/6 and C6/7 as a result of the motor accident, and that he has left sided foraminal narrowing at those levels consistent with the pain he experiences in the left upper arm, and altered sensation in the forearms and hands.
[30] Exhibit L
38 Dr Sutcliffe related his ongoing symptoms to occupational incapacities, which she believes taken alone result in him having no capacity for suitable occupations, but does not comment on the pre-existing incapacity for any suitable work.
39 Dr Sutcliffe believed the prognosis to be poor and that there is likely to be progression of osteoarthritis in the right acromio-clavicular joint, and also the left, and progression of degenerative changes in the cervical spine.
40 Dr Alex Stockman, rheumatologist, provided impairment assessments and medico-legal opinion[31]. He confirmed the AC joint dislocation, and the possibility of rotator cuff damage, but the signs were equivocal, absent ultrasound. He initially suggested that an orthopaedic opinion be obtained to see if reduction of the dislocation was required, and also as to the possibility of secondary degenerative changes in the AC joint developing in the future, but that appears not to have occurred. By his last report, he accepted that there was ongoing pain and a grating sensation in the right shoulder, tenderness when pressed, and that he cannot sleep on the right shoulder because pain wakes him. On examination he found some restriction of full range of movement. He expected little change for the foreseeable future.
[31] Exhibit H – 24/5/07, 7/8/08, 22/10/10
41 In relation to the neck injury, he initially felt the cause of the pain in the neck and left shoulder was unclear, but after the report of MRI of cervical spine of 31/8/08 was seen, his opinion was that there was degenerative condition of the lower cervical spine with likelihood of pressure on the C7 nerve root on the left, thus causing sharp pain down the left arm and numbness of fingers as complained of by Mr Bezzina. He found the range of movement of the left shoulder somewhat improved since May 2007, but the main complaint continued to be recurrent and severe pain in the left arm. The neck was likely to remain unchanged. He believed it possible that Mr Bezzina required surgery on the cervical spine to relieve the sharp pain in the left arm. In September 2010 his view was that the condition seems to have stabilized and he would expect little change in the foreseeable future.
42 The defendant showed video surveillance of the plaintiff taken on 24 January 2011, 25 February 2011 and 1 March 2011. The first of these showed the family’s red Landcruiser in the driveway being cleaned. He is present and is seen to do some of the cleaning, gently polishing and wiping the car duco with his left hand and without much energy. He was shown for a short period leaning down by supporting himself with a bent right arm against the car to reach down to his left. The greater polishing effort comes from his children. His son at one stage pushed him on the right upper arm. He sat in the driver’s seat and eased himself out of it, then used his right hand to close the car door and to reopen it. At the end he uses his right arm raised and straight a little above shoulder level height propping himself against the house.
43 Mr Bezzina was cross-examined about his movements and agreed to what had been seen. He was asked about his son pushing his right upper arm and said that it is the top of his shoulder that is very sensitive.
44 The next footage showed Mr Bezzina leaning forward in the garden but not doing much, and the third footage showed him in the red Landcruiser parked outside a hot roast shop, and then backing the car out slowly from a right angle parking space.
45 From the video surveillance shown, my impression was that the plaintiff was not doing anything more in the way of activity than what he had previously described in his affidavit and oral evidence. He was not engaging in more extensive activity than he had previously described. On the other hand, his own description of the limitations in his daily living and activities and movements prior to the motor vehicle accident, would be consistent with the same degree of limitation shown on this video footage.
Injury to the plaintiff’s right shoulder
46 It is clear that the transport accident of 4 March 2006 caused injury to Mr Bezzina’s right shoulder, being dislocation of the acromio-clavicular (“AC”) joint[32] (described in one x-ray and by some doctors as a “fracture dislocation”. Some x-ray reports note one or more small fragment(s) seen adjacent to it and likely to be from the outer aspect of the adjacent acromion[33]. Some doctors note that there might also have been rotator cuff damage, but no ultrasound has ever been carried out to confirm that[34]. There was no surgical repair of the dislocated joint, and only Dr Sutcliffe (in November 2010) refers to the possibility of possible benefit had surgery been carried out at an early stage.
[32] Exhibit C X-ray report on right shoulder taken at hospital, and X-ray report 7/3/06 to GP.
[33] Exhibit C – reports of Xrays 7/3/06 and 29 April 2006
[34] Eg Dr Stockman,
47 The shoulder remains distorted[35], and I am satisfied that it is also tender and sensitive to touch on the front upper shoulder. However on the preponderance of evidence – despite Dr Sutcliff’s findings - the range of movement is not significantly restricted.
[35] But this claim does not rely on part(b) of the definition of serious injury.
Injury to the plaintiff’s neck
48 I am satisfied that in the type of collision which occurred, and especially in conjunction with dislocation of his shoulder, it is likely that the plaintiff suffered a jarring injury to his neck. The precise diagnosis differs amongst the doctors as outlined above. I am satisfied that there was probably an aggravation of pre-existing degeneration of the cervical spine in its early stages. Radiology does not support compression or impingement of any nerve root, although Dr Stockman does consider that there is some C7 nerve root involvement, and Mr Scott’s view is that there is some nerve root irritation responsible for the symptoms of which he complains in his left shoulder and arm. As it is the consequences and not the injury itself that determine this application, it is not necessary for me to reach a finding as to the exact injury to the neck beyond finding that it is of organic nature.
Pre-existing injury?
49 The defendant argues that as the plaintiff had claimed to have suffered pain in his right shoulder blade, and neck pain, following his 1999 work accident, whatever occurred to either in the transport accident should be viewed and assessed as an aggravation of a pre-existing injury under the principles in Petkovski v Galletti[36]. I am not satisfied that the evidence supports that approach in respect of either his right shoulder or neck.
[36] [1994] 1 VR 436
50 In relation to the right shoulder, as the plaintiff’s counsel’s written submission details[37], doctors examining him for the work injury discounted any actual injury to the right shoulder, ascribing pain to a soft tissue strain of the thoracic and lumbar spine, which in any event had settled completely by the time he saw Mr Byrne in November 2001. Moreover, It had been described as pain in the shoulder blade, whereas the current symptoms are described as at the top and front of his shoulder. The clear evidence of a dislocation of the AC joint in my view excludes the current injury from being an aggravation or exacerbation of any pre-existing injury if there had been one to the plaitiff’s right shoulder.
[37] Paragraph 7
51 So far as prior neck pain is concerned, I accept the plaintiff’s evidence, as corroborated by reference in earlier medical reports[38], that what he had felt, and complained of, following the work accident was pain in the area under his shoulder blades reaching up to his neck. I take that to be dorsal pain which he felt extended up to the base of his neck. There was no indication of referred pain from his neck into his left arm as is now complained of. I am satisfied in any event that by the time of the transport accident there was no pain in his neck or left shoulder of any incapacitating degree.
[38] Eg Described to psychiatrist Dr Barrie Kenny – 28/11/01
Are the consequences of either injury “serious” and “long term”
52 Prior to the motor vehicle accident the plaintiff had been incapacitated for work by physical injury and significant psychological conditions for some seven years, and before he was 30 years of age had been granted a disability pension. That is of significant disadvantage to the plaintiff in this case, because it means that he cannot rely on consequences to his earning capacity from the injuries suffered in this accident, even though they probably would have interrupted his ability to work for at least some period (Mr Fogarty suggests about a year), and from his perception contribute to his ongoing incapacity for work.
53 It is also necessary to consider the consequences of each injury and assess their consequences separately. The more difficult aspect of that assessment in this case is in considering the psychological consequences to the physical injuries. I have taken the view that each of the physical injuries, that is the right shoulder and the neck, materially contributed to aggravation of his psychological condition, and that that condition contributed to amplify the consequences to him of each physical impairment.
54 It is argued that as a result of the transport accident injuries his medication has substantially increased. At the plaintiff’s lawyers’ request, Dr Soloczynskyj had calculated the total quantities of Oxycontin he had prescribed to the plaintiff over the nine months prior to the motor accident, and the nine months after it. There was an increase of approximately 35% in the total quantity prescribed, but the amount was decreasing towards the end of the nine months after the accident, and the calculation does not shed light on the most recent three years. Both the doctor and Mr Bezzina say that the doctor gives this patient some flexibility in how often he would take the dosages, allowing him to control this, and providing further prescriptions if Mr Bezzina exceeds earlier scripts in any particular period.
55 As at May 2009 Dr Soloczynskyj explained to the Workcover insurer, that of the amounts prescribed, 240 milligrams of Oxycontin tablets per day were attributable to the WorkCover injury, and anything extra, which he described as approximately one and on the odd occasion two 80 milligram tablets, was to be attributed to the TAC injury. As I understand this, the doctor was advising the WorkCover insurer that three 80 milligram Oxycontin tablets per day were being taken as a result of the WorkCover injury and the further usual one 80 milligram tablet – namely 25 per cent of the usual total daily intake – was attributable to the transport accident as was any further odd extra tablet taken.
56 Mr Bezzina says that he is currently taking two 40mg and two 80 mg tablets of Oxycontin per day. He also takes from one to three Antenex tablets which was started earlier this year as an anti-anxiety drug.
57 Overall, I am satisfied that there was a significant increase in the usage of Oxycontin following the transport accident. However I am not satisfied that that a significant increase lasted consistently over the intervening years, and if, as both the plaintiff and Dr Soloczynskyj said in oral evidence, he is currently being prescribed and usually taking 240mg per day, down from 360mg for many years, this increase has now been reversed. Indeed, it may well be[39] below his average daily intake in the months prior to the transport accident.
[39] Charts created by Dr Soloczynskyj were not tendered absolutely – Ex X (IDO), and in any event do not show daily dosages prescribed.
58 Further, and in my view importantly, there is little to suggest from the evidence that the effect on the plaintiff of any overall increase in his consumption of Oxycontin has affected his daily functioning. He was already taking large quantities of this narcotic medication. The inconvenience of taking it, and any effect on his mood, memory or concentration, was long established before the transport accident. Accepting that if he felt more pain he would take more Oxycontin, there is little to indicate that that produced more interruption to his daily functioning than it had prior to the transport accident.
59 He was asked about his consultation with a Dr Diner in December 2006 seeking assistance to “get off” the 440mg per day dose of Oxycontin he said he was then taking. There was inpatient treatment recommended to break the dependency, but he did not undergo it at that stage, nor when similar was recommended after a referral to DASWEST in 2010. Despite what clearly has been, and remains, a dependency on opiate-based medication, which many doctors, starting with Dr Thomas in 2001, have recommended be addressed, I do not regard the plaintiff as having unreasonably refused to undertake treatment that would be likely to have improved his condition. The situation is much more complex than that, precedes the transport accident by many years, and while his general practitioner continues to prescribe the medication I do not consider this to be a situation where the court should consider that he has unreasonably refused reasonable treatment likely to improve his condition.
60 I am satisfied that as a result of the injury to his right shoulder the plaintiff does experience pain in an area where he had not experienced it before, and that this imposes some restriction on movements of his right arm and shoulder. However, the range of movement on testing by doctors is not greatly restricted, he has told them that most function returned, and he can use his right dominant arm for most purposes if he is careful or moderates his movements. I accept that at times if he aggravates it the pain can be severe and cause him to “go white”, but I am not satisfied that it is usually debilitating pain as described by his counsel. I accept that it probably interferes with sleeping on his right side, and that may interrupt his sleep if he turns onto it, but part of the sleep disturbance as described is still attributable to the pre- existing low back pain and left leg pain.
61 I accept that the area over the dislocated joint remains tender and sensitive to touch. The distortion itself he says causes him some embarrassment, but this does not stop him dressing in singlet-type tops, when in company with his children in the drive and garden[40].
[40] As shown in the video surveillance; and this is not a claim based on part (b) of the definition of
62 I find that the impact of the right shoulder injury on the plaintiff has been significant and is likely to be long term. The difficulty in this case is in assessing whether the degree of impairment it causes can be fairly described as more than significant or at least very considerable, when superimposed on an already very modified and limited lifestyle due to pre-existing conditions. As it has not impacted on his earning capacity, and has there are very few changes in the mode and parameter of his activities since the accident, I am not satisfied on the evidence that he reaches that test in respect of his right shoulder.
63 So far as his neck injury is concerned, I accept that there is pain of a type he had not previously suffered, but I find that it is intermittent, and that referred pain into his left shoulder or shooting into his left arm is also intermittent. I accept that when driving, which he does not do often, and only locally, he has difficulty turning his neck to reverse, and relies on his children if in the car to be “lookout” when he is reversing. I also accept that if his left arm is “playing up” he has difficulty in the manual car changing gear and needs to lean across with his right arm. However as the family still runs two cars, and one is automatic, and his wife says they are very rarely out in separate cars[41],( and the left arm is not always “playing up”) I do not regard that limitation as of frequent significance.
[41] T 110, l 4-11
64 I am not satisfied that the injury to the plaintiff’s neck causes any significant distinct limitations on any other activities than driving, and in particular not beyond the considerable limitations from his pre-existing back condition.
Psychological Consequences
65 I am satisfied that there was probably a post traumatic stress component to his post transport accident condition, due to fear of his family (including three- month old baby) being injured in the car crash which involved sudden significant impact from another vehicle approaching against a red light. However, as his counsel’s written submission concedes, that condition and its symptoms could not be considered as a secondary reaction to the physically caused impairment to his neck or shoulder, so does not fall to be considered in the case as now put[42].
[42] Post traumatic stress disorder would be a primary injury from the collision, falling to be assessed under part (c) of the definition, but in the circumstances of this case not approaching the severity required to meet that test for a “serious injury”.
66 There is no doubt that Mr Bezzina was suffering from significant psychological symptoms before the transport accident, from an adjustment disorder and a pain syndrome. In his own evidence he tried to distinguish that before this accident it was only depression, and that the accident caused significant anxiety. However, as he says he did have panic attacks before the accident, and was prescribed an anti-anxiety medication[43], that is not a distinction I accept as a distinct new psychological reaction or giving rise to a different range of symptoms.
[43] T 82, and per Dr Soloczynskyj at T 150-151
67 I am satisfied that it is more likely than not that Mr Bezzina’s pre-existing adjustment disorder was aggravated by the addition to his disabilities of an injury to his right shoulder, and by the development of neck and left arm pain, and by his perception of aggravation of his back injury. I accept that in combination facing these further injuries caused him further anxiety about his limitations, inability to work to support his family, and would have increased his symptoms of depression and anxiety. He describes as things going “haywire” in the months after the transport accident, and I am satisfied that he was in greater psychological distress over that time as a consequence of the physical injuries suffered in that accident. I find that the both the right shoulder injury and the neck injury would have materially contributed to that condition.
68 That aggravation of his condition, however, in fact resulted in his agreeing to obtain treatment which he had previously avoided, and led to his being referred to the psychologist Mr Tait. Mr Tait has taught him various ways of coping with his pain and with his depression. He says that he had fallen into a big rut, and been really depressed and felt anxiety, and had no idea how to get out of it until Mr Tait taught him to get himself distracted. He found benefit in that and would visit his brother’s house, go shopping with his wife, drop off and pick the children up from school, and even assist his wife in the garden. Mr Bezzina himself says that being counselled by Mr Tait has helped him considerably. His wife also acknowledges the change [44], although she qualifies it that he still is not socializing outside the house or family.
[44] T 109, l 12-21
69 The medical evidence also supports that there has been some improvement in his mental health since he has been seeing Mr Tait. It is to be hoped that he will continue to be able to be assisted by Mr Tait’s therapy, by his overcoming his reluctance to apply to the TAC for payment of those expenses, and that the TAC will agree to pay for those services.
70 Notwithstanding the benefit that has flowed from Mr Tait’s treatment, I am satisfied that there are ongoing symptoms of Mr Bezzina’s adjustment disorder that have been aggravated or perpetuated by the effects on him of the additional injuries suffered in the transport accident. I have taken them into account as sequelae of the physical injuries, and as likely to be making it harder for him to cope with the physical effects of those injuries. However, in light of the very significant extent of limitations on his lifestyle and impact on his mood and state of mind from his pre-existing adjustment disorder and pain syndrome, I am not satisfied that the effect of the aggravation including what has now been ameliorated by treatment has significantly impacted on the level of impairment resulting from the right shoulder or neck injury.
Conclusion
71 I am satisfied that Mr Bezzina suffered an injury to his right shoulder, and an injury to his neck, which have caused ongoing symptoms for him which result in long term impairment to the function of his right shoulder and to the function of his neck. However, I am not satisfied that the extent of the consequences of either of those injuries, when compared with other possible impairments of body function, can be fairly described as very considerable in respect of either injury. His application is therefore dismissed.
SCHEDULE OF EXHIBITS
Bezzina v Phi & Anor
CI- 10-01505
| Number | Short Description of Exhibit | Plaintiff | Defence | Date tendered | Court Book |
| and | pages |
Identifying
Mark on Exhibit
A Plaintiff’s affidavits of 04/02/2010 and Plaintiff 16/03/ 2011 P16-19,
21/5/2010 24-28
B Affidavit of Michelle Bezzina dated Plaintiff 16/03/ 2011 P29-30 16/09/2010 C 7 radiological reports dated between Plaintiff 16/03/ 2011 P37-44 05/03/06 and18/06/08 D Reports of Dr Soloczynskjy dated Plaintiff 16/03/ 2011 P45-52 13/10/05, 14/08/07, 01/12/18, 19/03/09
and 07/09/10E Reports of Mr P Tait dated 27/8/07 and Plaintiff 16/03/ 2011 P53-64 07/01/11 F Report of Mr Peter Scott dated 13/9/10 Plaintiff 16/03/ 2011 P65-81 G 2 reports of Dr Kaplan dated 14/8/08 Plaintiff 16/03/ 2011 P82-98 and 26/10/10
H 3 reports of Dr Stockman dated Plaintiff 16/03/ 2011 P99-108 24/5/07, 07/08/08 and 22/10/10 J Report of Dr Clayton Thomas dated Plaintiff 16/03/ 2011 P109-112 04/11/10 K Report of Dr Don Senadipathy dated Plaintiff 16/03/ 2011 P113-119 23/11/10 L Report of Dr Sutcliffe dated 30/11/10 Plaintiff 16/03/ 2011 P120-128 M Reports of Dr Matkovic dated 26/09/08 Plaintiff 16/03/ 2011 P132-135 N Report of Mr Henry Byrne dated Plaintiff 16/03/ 2011 P136-141 22/11/01 O 2 reports of Dr Weissman dated Plaintiff 16/03/ 2011 D12-36 20/05/08 and 17/11/10 P 2 reports of Mr M Fogarty dated Plaintiff 16/03/ 2011 D37-47 23/07/08 and 17/01/11 Q Extracts from Western Hospital file Plaintiff
16/03/ 2011 D51 R Ambulance Report Plaintiff
16/03/ 2011 D61-62 S TAC printout of payment as at Plaintiff 16/03/ 2011 D100-113 20/01/11 T Report of Mr K Hayes Plaintiff 16/03/ 2011 D186-189 U Report of Mr Peter Scott dated Plaintiff 16/03/ 2011 D190-195 07/03/00 V Report of Mr Russel Miller dated Plaintiff 16/03/ 2011 D232-235 21/01/03 W Report of Dr Wallin dated 05/09/00 Plaintiff 16/03/ 2011 D282-286
| X (MFI) | 2 pages of graphs charting Oxycontin | Plaintiff | 24/03/2011 | N/A |
| dosages |
Y Letter to CGU from Dr Soloczynskjy Plaintiff 24/03/2011 N/A dated 11/05/09 responding to letters from CGU dated 16/03/08 and 08/04/09
1
2 DVDs of surveillance of plaintiff the first being 24/1/2011 and the second being the 25/02/2011 and 01/03/2011
Defence
16/03/ 2011
NA
2
Report of Mr Robert Wilks dated 17/5/2010
Defence
16/03/ 2011 D179-182
3 Affidavit of Ricky Bezzina dated Defence 16/03/ 2011 197-198
29/3/00 and Statement dated 10/04/02 240-242 and Statement dated 18/01/01 247-250
4 Claim for compensation dated Defence 16/03/ 2011 D199 29/03/00
5 Report of Dr Diner dated 04/12/06 Defence 16/03/ 2011 D206
6
Medical practitioner questionnaire by Dr Soloczynskjy dated 08/6/07 and worker questionnaire dated 08/06/07
Defence
16/03/ 2011 D222-6
7
Report of Dr Senadipathy dated 3 June 2002
Defence
16/03/ 2011 D236-237
8
Report of Dr Soloczynskjy dated 3 May 2002
Defence
16/03/ 2011 D238-239
9 Workcover request for conciliation
dated 25/3/02Defence
16/03/ 2011 D243 10 2 reports of Mr David Conroy dated Defence
16/03/ 2011 D250A-
20/3/01 and 11/12/01 55
11 2 reports of Dr B Kenny dated 15/3/01 Defence 16/03/ 2011 D256- and 28/11/01 264D 12 Letter Dr Lythe to CGU dated 29/11/01 Defence 16/03/ 2011 D275
13 2 reports of Dr Clayton Thomas dated 15/9/01 and 27/12/01and 2 letters from Dr Clayton Thomas to Dr Andrew Soloczynskjy dated 17/07/01 and 09/08/01 Defence 16/03/ 2011 D276-281 serious injury”
5
3
0