Cortese v TAC
[2011] VCC 960
•25 May 2011
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION
SERIOUS INJURY DIVISION
Case No. CI-09-05128
| ANGELO CORTESE | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
| JUDGE: | HER HONOUR JUDGE K.L. BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 17-18 May 2011 |
| DATE OF JUDGMENT: | 25 May 2011 |
| CASE MAY BE CITED AS: | Cortese v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 960 |
REASONS FOR JUDGMENT
---
Catchwords: TRANSPORT ACCIDENT – Transport Accident Act 1986, Section 93 – serious injury – Petkovski v Galletti – Richards v Wylie – chronic pain syndrome – impairment to the lumbar and cervical spine.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Blanden SC | Zaparas Lawyers |
| with Mr S Jurica | ||
| For the Defendant | Mr R Gorton QC | Solicitor for the Transport |
| with Dr R McNeil | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.93(4)(d) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 19 April 2005 (“the said date”).
2 Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied
that the injury is a serious injury.”
3 The definition of “serious injury” relied upon by the plaintiff is under s.93(17)(a) – “a serious long term impairment or loss of a body function”. The body function pursuant to (a) relied upon by the plaintiff is the lumbar and cervical spine.
4 The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.
5 The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can of itself constitute or be the producer of the impairment of a body function: see Richards v Wylie (2000) 1 VR 79.
6 In forming a judgment as to whether the consequences of an injury are serious, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as at least “very considerable” and more than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
7 The plaintiff relied on three affidavits and gave viva voce evidence. He was cross-examined. The plaintiff’s wife was required for cross-examination as was his general practitioner, Dr Pointon. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s Evidence
8 The plaintiff is presently aged fifty five, having been born on 1 October 1955. He is married with two adult children and he receives a carer’s pension for looking after his elderly mother.
9 The plaintiff left school after Form 4 and undertook an apprenticeship as a painter for Program Maintenance for about a year. He then worked in a number of casual storeman jobs for a year or two.
10 The plaintiff was then employed with the Victorian Department of Agriculture as a clerk for twelve years – a job he handled without difficulty.
11 The plaintiff then worked as a subcontracting painter for Program Maintenance and various other individuals who needed help with their contracts. He also worked occasionally as a storeman hired out by labour hire agencies when there was not enough painting work, especially in the winter.
12 The plaintiff deposed that in the years prior to the said date he was employed about eighty per cent of the time and unemployed for the balance. In 2001 he had a dispute with a painter which led to a court case at VCAT in 2004 about the quality of the plaintiff’s work. The case caused the plaintiff a lot of stress but he was proved right at the hearing.
13 Prior to the said date, the plaintiff worked for various employers in big companies doing all aspects of painting including high rise buildings and high ladder work. He was capable of that sort of work whenever it was available.
14 The plaintiff deposed as at the said date he was in good health and he was earning on average $550 gross per week. In cross examination he said he could not explain how this sum was calculated.
15 The plaintiff was cross-examined as to various notices of assessment which indicated fairly low income prior to the said date. His income every year included at least $4,000 from his share of a rental property he owned with his wife.
Financial Year Taxable Income
2001/02 $9,690 2002/03 $20,352 2003/04 $26,399 2004/05 $17,715 2005/06 $29,729 2006/07 $40,275 2007/08 $20,239
16 The plaintiff explained the lack of work during those years was as a result of not being able to get employment and the fluctuating nature of his work. He agreed that the earnings figures indicated he was not working full time and such hours fitted in with his lifestyle.
17 The plaintiff also worked for himself which was not very profitable. The fact he had to employ others and his expenses were large, explained why he earned so little. He realised from that experience he was better off working for other people.
18 Whilst some of the income figures did not sound much, that is all the plaintiff could manage and get at the time. He was not sure whether that was like working the equivalent of two or three days a week. The plaintiff agreed he had time off between jobs for lifestyle reasons.
Pre-accident Condition
19 In late 2000 the plaintiff noticed a bulge in his lower abdomen which was diagnosed as a hernia. It did not produce any real discomfort and the plaintiff underwent surgery in late 2004.
20 The plaintiff deposed that he had occasional neck and back pain in the past for which he had chiropractic treatment. He never attended such treatment for more than a few months and had not been since about the 1990s.
21 The plaintiff was cross examined as to his pre-accident neck condition.
22 In cross examination, the plaintiff agreed he had taken Panadol before the said date. He had minor back pain and neck pain, “but he always got over it pretty quick. The next day he was fine and ready for work.” He did not suffer the symptoms he has suffered since the said date nor did he have headaches as frequently as he now gets them. Now he is constant pain.
23 The plaintiff confirmed chiropractic treatment was spasmodic before the incident and that he had been to his chiropractor a few times prior to 2005.
24 The plaintiff thought he saw Dr Wong in 2004 because of his hernia. He could not recall him discussing a CT scan with him.
25 The plaintiff agreed he probably would have had headaches leading up to May 2004. He got them occasionally and he could not remember whether they required prescription medication. He did not know what brought the headaches on and occasionally they were severe enough to make him vomit.
26 The plaintiff could not recall taking a drug called Feverfew on a daily basis in June 2004 when he was admitted for hernia surgery. At that time, he was prone to coughs and colds which could have caused headaches and he had bad sinuses at that time. Further at that time the plaintiff completed a questionnaire where he listed “headache” in answer to the question, “List any other serious illnesses or medical conditions not mentioned”.
27 The plaintiff agreed he probably complained to Dr Rudzki on 24 July 2004 of intermittent stiff neck and headache. He agreed he continued seeing Dr Rudski until September of that year with ongoing neck pain, headache and
stress. These problems could have been caused by a lot of things ─ they
could have been work related or due to stress. The plaintiff had the most problems in winter but he was always able to cope with the symptoms and he used to get over them “pretty quick.” Since the said date, the headaches are “so unpredictable.”
28 The plaintiff agreed he was not working in the month or so before the said date as he had relatives staying from overseas. Having breaks from work was typical of his lifestyle at that time. He would not necessarily have the same approach now as he is older and circumstances change.
The Accident
29 On the said date, the plaintiff had parked his car to go shopping. When he was just about to open the driver’s door, the left side of his back was hit by a Toyota van and he was pushed into the side of his car and fell on the roadway (“the accident”).
30 Following the accident the plaintiff was in shock and he felt pain in his neck, back and legs, particularly his knees. His legs were cut and bruised.
31 An ambulance was called and the ambulance officers put a brace on the plaintiff’s neck at the scene.
32 The plaintiff was conveyed by ambulance to Dandenong Hospital where his knees were bandaged and he was given an injection and discharged home that evening. After the accident he had no feeling in his neck and he was pretty numb.
33 The plaintiff stayed at home with ongoing pain in his neck, back and legs. On 22 April he went to the Centre Road Medical Centre (“the Medical Centre”) which he had been attending for some years. The bandages on his knees were changed and he was given medication.
34 As the plaintiff’s spinal pain did not improve, in June 2005 he was referred by Dr Rudski at the Medical Centre to Clarinda Physiotherapy where he saw Mr Friend about three times a week.
35 Mr Friend arranged for an x-ray of the plaintiff’s neck, middle and lower back on 14 June 2005. After several months of physiotherapy treatment the plaintiff reduced his attendances to once or twice a week.
36 Dr Rudski arranged for a CT of the plaintiff’s back on 9 September 2005.
37 By November 2005 the plaintiff decided to seek chiropractic treatment as his spinal pain was not improving. He attended Dr Liveriadis on 14 November, a chiropractor he had not seen before but who practised close to where the plaintiff lived. The plaintiff did not know where to locate the chiropractor who had previously treated him and thought he may have retired.
38 The plaintiff saw Dr Liveriadis about twice a week for a few months and then once a week on average until the defendant ceased funding in November 2006. The plaintiff continued to have treatment about once a month which he paid for himself. In November 2006 the plaintiff ceased physiotherapy which was only providing temporary relief.
39 As of April 2008, the plaintiff was seeing Dr Liveriaidis monthly and paying for treatment himself to maintain his spinal condition. Occasionally when the plaintiff had more discomfort requested an urgent appointment.
40 The plaintiff was advised by Dr Liveriadis that his vertebrae was damaged and it was causing damage to the nerves. That advice depressed the plaintiff and made him anxious. In cross examination the plaintiff denied that he had a crushed vertebrae in 2003 that kept him off work for a year at that time.
41 The plaintiff continued to attend the Medical Centre after Dr Rudzki retired in the middle of 2006. In early 2007 the Medical Centre moved to Bentleigh and the plaintiff started to attend the medical clinic in Bourke Road, Clarinda, about once a month. He also attended Dr Pjseivac about three or four times during 2007 and last saw him in about November of that year. Dr Pjesivac arranged for the plaintiff to undergo an MRI scan of his neck and back on 23 October 2007.
42 The plaintiff returned to work on 17 May 2006 working principally for Vic Laroca Painting Service and occasionally he worked for others. The plaintiff worked an average of three days a week but he had to take one or two days off a week because of neck pain.
43 Mr Laroca knew the plaintiff had discomfort and he did not require him to roll ceilings or do any high work. The plaintiff just did basic painting on residential properties.
44 In cross-examination, the plaintiff agreed that he had a good year financially in 2006/2007 earning $40,725. He worked on a big painting job in Toorak. He explained his restrictions to the boss who had a number of painters working for him before Christmas.
45 The plaintiff was able to work at his own pace and the boss was very easy going and understood him. The plaintiff was working most days five hours a day and he used to take long breaks and rest when he wanted to. Sometimes he got to work late because it was hard to get up in the morning because his neck was stiff.
46 The boss told the plaintiff the job was finishing and that he would like him to come back to work in the New Year. This did not happen because the plaintiff knew the next job would not be as easy going and it was more a scheduled job and he would be pushed to get the work done quickly.
47 The plaintiff confirmed that when he was working in Toorak at the beginning of July 2006 he earned $200 a day for a month and a half.
48 During that time the plaintiff always struggled with aches and pains but he did not give up or complain, nor did his treatment change.
49 The plaintiff conceded his condition improved, with periods of full time painting in late 2006 but he was not totally fit. The chiropractic treatment ended up not being overly helpful and the manipulation made his condition worse so the plaintiff decided to go back to the physiotherapist whom he thought would be more beneficial.
50 The plaintiff found physiotherapy helpful and Mr Friend said to him to return to work if he felt capable. Whilst going to the physiotherapist the plaintiff was also having support from his general practitioner whom the plaintiff thought prescribed medication and just looked after his progress and he also suggested heat treatment.
51 The plaintiff did not work between 19 December 2006 and 22 February 2007 because he thought a long break might lessen his discomfort. He then worked from 22 February 2007 until 28 June that year, again working on average about three days a week. Sometimes on the days he worked he had to stop early, usually because of neck pain.
52 The plaintiff stopped work in June 2007 because it was getting colder and he was having increased spinal symptoms. He recommenced work on 13 February 2008 but continued to be restricted in the work he did.
53 In April 2008 the plaintiff deposed he only took work from people who knew about his condition and that he did not look for general work from the public because he knew he could not be relied on to finish a job in a set time.
54 The plaintiff felt very lucky that he had an understanding boss and he had been able to keep his job for the time being. He then was worried he would not be able to keep working as a painter for much longer because of his pain. He felt anxious because he did not know what else he could do as he did not have any other skills for lighter work.
55 In April 2008 the plaintiff deposed that he had ongoing neck and back pain although his neck caused him the most inconvenience. It was always stiff and painful and he got a feeling of swelling and burning. His neck discomfort tended to spread into his shoulders and shoulder blades, sometimes worse on one side in particular. The pain was worse if he turned his neck to extremes, particularly looking up. If he held his neck still and unsupported, his level of discomfort increased. He got worse neck and shoulder pain if he raised his arms hence he tried to avoid doing that.
56 The plaintiff was then getting headaches twice a fortnight which started at the back of his neck and spread over the back of his head into his forehead. Those headaches usually lasted until he went to sleep and occasionally they lasted a few days. When he got a headache he took Panadeine or Panadol or similar medication.
57 The plaintiff also had intermittent lower back discomfort, worse with any prolonged bending. He had a tingling sensation in his legs all the time and a throbbing in his soles and ankles.
58 The plaintiff avoided lifting weights in excess of five kilograms because of the increase in neck, shoulder and back pain on doing so. When working he had to try and avoid looking up. To paint walls he often used a stepladder to limit looking up. He did not paint ceilings and he did not use extension ladders because that always involved looking up and placed strain on his arms, shoulders and legs.
59 When walking, the plaintiff often had a feeling he could not properly control his legs and he also experienced a tingling sensation in his legs. He did not run because of the lack of strength in his legs and also because of the jarring which increased his spinal discomfort.
60 When the plaintiff walked he felt like bending forward slightly to protect his spine. When he first stood up he felt top heavy with his head and neck and felt like something was pulling his upper body down. He tried to keep his head facing straight ahead.
61 The plaintiff could drive but had discomfort if he had to turn his neck quickly to see traffic.
62 At night it was hard to get comfortable to sleep and the plaintiff was always changing pillows under his head to ease the neck discomfort but nothing seemed to work very long, nor did alternative pillows help. The plaintiff was also aware of a tingling sensation in his legs at night and several times a week he used to wake because of back pain and sometimes he took painkillers.
63 In the morning the plaintiff’s neck was always stiff. He got up slowly and did stretching exercises as directed by Dr Rudzki and also exercises shown to him by the chiropractor which involved slow rotation and flexion movements of his neck and back. He then had a hot shower which helped him relax and eased his spinal discomfort. He shaved and cleaned his teeth as quickly as he could to limit the amount of bending.
64 If working, the plaintiff usually worked from about eight in the morning until 3.30 pm with breaks. Sometimes he finished work earlier depending on how he felt and if he did not feel well enough to work he rang in and advised he would not be attending.
65 Prior to the accident the plaintiff had landscaped and dug out his back garden in 2002 using pavers and bricks, a task he could not do now. The digging and use of a wheelbarrow would place too much strain on his spine.
66 The plaintiff still mowed the lawn but avoided doing so if his neck pain was worse. He tended to take breaks. He put mulch on the flower beds to stop the weeds and his garden was now low maintenance.
67 Prior to the accident the plaintiff used to like going fishing once a month during the summer and nearly every day when on holidays. He no longer goes surf or rock fishing. He cannot cast for fish and walking on uneven ground or on sand and balancing on rocks would be too uncomfortable for his spine. He only goes fishing off piers now supporting the rod on railings, going about once a month in summer at most.
68 In 2011 the plaintiff deposed that having previously greatly looked forward to fishing, he had only been fishing a handful of times that he could remember after the accident because of problems with casting and standing. It disappoints him greatly that he cannot go fishing regularly.
69 Prior to the accident, the plaintiff used to jog about two kilometres a week in Clarinda Park and ride a bike about once a fortnight, usually in summer along the Kakaru bike track. Since the accident, the plaintiff has found bike riding causes too much neck discomfort because of bending forward and he no longer feels strong enough in the legs. The stretching and jarring when jogging causes too much neck pain and he does not feel strong enough in the legs. In cross-examination, the plaintiff could not actually remember a date when he last jogged before the accident, but he confirmed he used to jog, run and walk.
70 Prior to the accident, the plaintiff used to enjoy going for long walks and liked to be active, however now walking for extended periods only aggravates his spine and his back.
71 The plaintiff confirmed that he cannot walk as well as he used to. The further he walks the more tired his legs get but he pushes himself; otherwise he would stay in bed all day. The plaintiff “is not a cripple. He may look okay but he does not feel okay.”
72 The plaintiff still does the exercises his physiotherapist has given him. He tries to walk but it is painful on his legs and feet. However if he does not keep going every day, then he falls back and it is a “vicious circle”.
73 Prior to the accident, the plaintiff also used to enjoy going for long drives to places such as Phillip Island for fishing but he now avoids such drives as sitting down in the car for too long increases his spinal pain.
74 Since the accident, the plaintiff has been less interested in socialising because of his pain and he gets emotional at times. He is upset at what has happened to him with ongoing pain which restricts his ability to work. The plaintiff deposed in April 2008 that he wondered how his life would have been different. He was then uncertain of the future.
75 The plaintiff could not recall exactly being prescribed Zoloft in 2009. He then said he was a bit worried about taking it because he had heard of side effects and perhaps getting addicted to it. He also had a problem with his digestive system and was worried about taking it, so he preferred a more natural type of pain relief.
76 In cross examination, the plaintiff disagreed that he would not take Zoloft because he did not want to accept that his problems might be largely mental rather than physical. He explained he did not agree with that:
“ … because I’m feeling the pain. I don’t know how my mind could make
me feel that I’m feeling this pain.”
77 The plaintiff swore a second affidavit on 3 June 2010. He was then attending the Bourke Road Clinic at least every couple of months. He also had had chiropractic treatment once a month until the end of 2009 from Dr Liveriadis, who was using a fibrillator machine on his spine. This provided temporary relief but there was no overall improvement and the plaintiff decided to take a break from treatment.
78 Subsequently the plaintiff returned to see Mr Friend, physiotherapist, who recommended in March 2010 that the plaintiff undergo treatment for his spine once a month.
79 Since swearing his first affidavit in early 2008, the plaintiff’s symptoms remained much the same and his worst discomfort was in his neck and back. The neck discomfort worsened during the day and his neck began to feel tighter. It was usually worse at night and he then often got headaches. He believed his headaches were more frequent and he got them now several days a week.
80 The plaintiff continued to work with discomfort with Mr Laroca, only doing suitable painting with no ceiling rolling or prolonged work on a ladder. He worked about two to three days a week mainly doing internal work.
81 In February 2010 Mr Laroca advised the plaintiff he did not have any more suitable work for a while with the next job involving prolonged work on heights. Mr Laroca said he would call the plaintiff when he got more suitable work but he has not contacted the plaintiff since.
82 From that time, the only painting the plaintiff has done was on the exterior of his mother’s house where he painted for about six weeks working on average three days a week, four hours a day which was as much as he could do. He has also done some maintenance work on his investment property. Before the accident the plaintiff could have done the painting job at this mother’s house in a week and he cannot do a normal painting job now.
83 In his most recent affidavit sworn on 10 May 2011, the plaintiff confirmed he still has neck and back pain which interrupts his sleep greatly. Quite often at night he wakes with neck pain resulting in strong headaches and on occasion that has led him to vomit.
84 On some of these occasions the plaintiff has moved to a different room and slept separately from his wife in order to allow her to get to sleep and get up early for work.
85 Having seen the surveillance film prior to the hearing, the plaintiff deposed that he tried to get on with daily life by watering his garden whenever he could. He could climb a ladder to do a short amount of maintenance in the garden but he would definitely struggle to climb and descend ladders for hours as required in a painting job. Also, raising his arms to paint aggravated his pain.
86 During the hearing, the plaintiff was shown the video surveillance taken on 7 and 8 April 2011. He explained he was climbing the ladder and carrying the bucket because he was picking some prickly pears for his wife. He must then have been feeling a bit better than usual and he decided to go and pick just a few pears in a short time.
87 The plaintiff has always said he could climb a ladder but for short periods of times, as long as it was just a step ladder such as shown on the film. He just persevered and was able to do it. It did not mean that he did not feel pain when he was doing it.
88 The plaintiff explained that he had his arm bent because if it hangs straight down, it pulls and feels like a dead weight. The plaintiff explained that he was carrying two bags of shopping because he did not have a $2 coin. In any event, he can lift up to five kilograms.
89 The plaintiff receives a carer’s pension to look after his mother. He sees her every day. He does grocery shopping for her and he tries to remain useful in some respects. Before the accident he used to help his wife with the cooking and prepared meals to take to his mother, however now his wife just does the cooking and he delivers the meals. Occasionally he makes his mother a sandwich.
90 In cross examination the plaintiff said he could fit in a job with his duties caring for his mother.
91 As a result of the accident, the plaintiff’s wife has to do more housework as the plaintiff is more focussed on his pain than anything else. They used to go out together more often to play the pokies and then enjoy a meal or a coffee, however as the plaintiff struggles to sit for too long, they rarely have such outings.
92 In the last year or so, the plaintiff admitted to himself he can no longer be a painter and therefore has tried applying for four or five jobs. He submitted his resume for driving jobs however his applications were unsuccessful. The plaintiff would only have been able to try such jobs if they did not involve driving for too long.
93 The plaintiff has had second thoughts about truck driving because it would require sitting all day. He has approached a disability employment agency with a view to being registered with it to find him suitable work but has not heard from them.
94 In cross-examination, the plaintiff agreed he could still do clerical type work and he has turned his mind to it since the accident. In addition to driving jobs, the plaintiff has applied for work with the post office and various other jobs. He has submitted his resume without success. The plaintiff specifically applied for jobs he thought he could handle and believed he would be paid about $20 per hours for such work.
95 In cross-examination, the plaintiff confirmed he had not worked for the last year. Prior to that he worked for a sub-contractor two or three days a week whenever he was needed. With this last employer, the plaintiff worked less and less and some days he was too ill to go to work. The plaintiff agreed some weeks in the last eighteen months he worked five days whilst others he worked only two or three days. He thought a day’s work was worth about $200.
96 The plaintiff agreed he had not kept painting because he has not been rung up and offered work. If he was offered two or three days of suitable work, maybe he could do it, but he is struggling and even getting to work on time would be a problem and he seems to be going downhill.
97 The plaintiff confirmed his wife has been working for the last year. They have investment properties and he has substantial sums of money on term deposit. The plaintiff is a bit more cautious and wary about spending money since the accident, but other than that, his lack of income has not really made much difference.
98 The plaintiff feels as if despite trying to move on with his life he still struggles because of the pain. Tasks he used to do before the accident now take a lot of effort and he does not enjoy them as much because of the pain. He probably has a bit of stress and anxiety which gets him down sometimes. He tries not to let it affect him and his wife, but they have arguments.
Lay Evidence
99 The plaintiff’s wife, Arcangla Cortese, swore an affidavit on 10 May 2011. She has been married to the plaintiff for twenty seven years.
100 Before the accident she and the plaintiff used to attend social events together and also enjoyed long drives to places such as Phillip Island or Rye where they had picnics and the plaintiff went fishing. He was a very active man who went for long walks and he also enjoyed jogging and keeping fit.
101 Before the accident the plaintiff used to help her with housework and cooking and he was also working and able to contribute financially to the household.
102 Since the accident they do not go out together very often because the plaintiff’s injuries cause him too much pain. He struggles to drive or sit in the car for too long because of his spinal pain and therefore they generally travel short distances and are restricted in the places they can go.
103 Since the accident, the plaintiff has not been as active as he used to be. He struggles to jog or walk long distances. He has not been out fishing as often. She knows he is upset by the limitations and restrictions he now faces physically as he is down most of the time.
104 Following the accident there has also been more tension at home. The plaintiff has not been able to help as much as he used to. She worked thirty hours a week until recently when her hours were reduced to twenty two per week. She is responsible for most of the cleaning and cooking which makes it stressful. The plaintiff does try to force himself at times to help at home, however this only aggravates his pain and makes matters worse.
105 Mrs Cortese has noted the plaintiff does not sleep well most nights. He wakes up quite often as a result of spinal pain. This pain as a result of his severe headaches also causes him to get up to vomit. At times they sleep in separate rooms because when the plaintiff is in severe pain he keeps her awake and she struggles to get to work the next day.
106 In examination-in-chief Mrs Cortese confirmed the contents of her affidavit. For the last three years she has been employed as a shop assistant and prior to that time she was a housewife.
107 Mrs Cortese went back to work for financial reasons, to make ends meet and pay the bills. Before that, she and the plaintiff had a rental property and she was receiving Centrelink payments for their children. There was no other income coming into the house.
108 In cross-examination Mrs Cortese confirmed the plaintiff had not worked since the accident. He had had occasional headaches before that time, but he was well enough to recover and go to work. She recalled the headaches were of sufficient severity for the plaintiff to vomit, but he recovered from them.
109 The plaintiff had not complained often of headaches since the accident. Mrs Cortese was aware the plaintiff had occasionally seen a chiropractor before the accident for his neck but he was well enough and recovered.
110 The plaintiff had not gone fishing or jogging since the accident. He tried to jog but he could not because of his legs and neck. He does not walk much. The pain before the accident was mostly in his neck and his lower back. When he had those pains, he was not jogging or walking far. Before the accident the plaintiff went jogging two or three times a week but he preferred walking.
111 In re examination, Mrs Cortese said that the plaintiff’s neck and back problems are worse since the accident and he is always complaining about them. They cause him difficulties and limitation. He wakes up at night in pain and he cannot do all the things he used to do before, and he cannot help her around the house as much.
112 These problems are not improving; they are staying the same and some days the plaintiff feels worse.
Medical Evidence
113 Dr Liveriadis, chiropractor, first saw the plaintiff on 14 November 2005. He reported that in the accident the plaintiff had suffered significant soft tissue injury to the paraspinal muscles and related soft tissues, especially of the right neck, shoulder and low back.
114 On initial consultation, the plaintiff complained of significant shoulder and neck pain associated with stiffness. He also had very frequent headaches, as well as pain in the mid thoracic and lower back regions.
115 Dr Liveriadis noted all symptoms started straight after the accident and the plaintiff had no such problems before.
116 Dr Liveriadis diagnosed a chronic post traumatic strain of the spinal soft tissues in association with loss of normal alignment of the spine involving an irritation of spinal nerves and muscle spasms of the muscles of the spine and shoulder, leading to instability of the whole spine.
117 With manipulation, soft tissue treatment and trigger point therapy, Dr Liveriadis noted that between November 2005 and November 2006, the plaintiff’s condition had been improving overall and he tried to do something physical, (returning to his painting job), and his neck and back still got tight and painful although not as bad as before.
118 When the defendant ceased funding treatment in November 2006, the plaintiff continued as a private patient, receiving helpful treatment monthly to maintain him in a reasonable functional state to allow him to do the odd painting job.
119 As of November 2006, the plaintiff’s condition was partially stabilised. However, Dr Liveriadis thought the plaintiff was in need of more frequent treatment for some period rather than accept what he was forced to accept as a private patient.
120 Dr Liveriadis reported on the final examination on 30 July 2008 that there was moderate limitation of cervical spine movement and quite limited and painful lumbar spine movement.
121 Dr Liveriadis noted the plaintiff could only afford to have monthly treatment which was very inadequate in his condition. That had been the case for the last twenty months and, Dr Liveriadis noted, sure enough, his condition had deteriorated. The plaintiff had to stop his job as a painter because he could not cope and his enjoyment of life had been limited. At that stage, Dr Liveriadis thought the plaintiff’s prognosis remained guarded.
122 Dr Welner, from the Bourke Road Clinic in Clarinda, reported on 10 August 2008.
123 Dr Welner advised that the plaintiff had transferred to the Bourke Road Clinic when his previous general practitioner retired in August 2007.
124 Dr Welner thought that the plaintiff presented as an anxious man with a myriad of symptoms that were generally focussed on his car accident injuries. She noted he tended to somatise his symptoms and they found it hard to agree on a consensus view about the cause of his problems. In her view, even more difficult was the management issue in that the plaintiff felt that continued chiropractic treatment was all that he required for his improvement.
125 Dr Welner diagnosed a soft tissue injury as a result of the accident on 19 April 2005. She noted that currently the plaintiff had also developed a regional pain syndrome with a post traumatic pain disorder. In her opinion it was this component that was a major contributor to the plaintiff’s current ill health and the bulk of his symptomatology. In view of the plaintiff’s significant symptoms and the fact that his usual occupation of painter could be physically demanding, she thought he was not then able to return to full time pre injury employment.
126 Dr Welner felt that patient led physically oriented treatment options pursued so far were not in the plaintiff’s best interests and that she needed to change the focus to the psychological aspects of the plaintiff’s reaction to pain and incapacity. She thought they needed to work on avenues of self awareness and understanding in order to help the plaintiff break the chronic cycle of pain.
127 Dr Welner considered that in the view of the fact it was over three years since the injury and the plaintiff had minimal insight into the patho-physiology of the psychological aspect of his problem, it would be a difficult process. She felt the plaintiff needed a very concerted effort by both an appropriate team of professionals as well as the plaintiff, to be able to change his direction. She thought that would take patience, time and perseverance, but she was keen to implement a new management plan for him, given he was a relatively young man.
128 In addition to working on the psychological focus of sick role management in the plaintiff, she thought it was necessary to engage the services of a rehabilitation consultant to explore long term employment options more suitable to his current work as a painter.
129 Dr Pointon saw the plaintiff at the same clinic first on 23 June 2009, the plaintiff having initially presented at that clinic on 10 August 2007.
130 The plaintiff told Dr Pointon of the accident circumstances and his subsequent treatment. The plaintiff told him that since the accident, he had suffered headaches, stiffness in the neck, lower back, lower limbs and soles of feet associated with a feeling of weakness.
131 For fifteen months, the plaintiff had been unable to resume work. He tried to resume limited work when available, but had been unable to work since March 2009, being unable to do ladder work or to paint above architrave height due to pain and stiffness of the neck, lower back, lower limbs and feet. As a result of those limitations, Dr Pointon thought that the plaintiff was not an attractive proposition to painting contractors.
132 Dr Pointon considered that the plaintiff’s condition was entirely consistent with the accident. He diagnosed soft tissue injury to the neck and lower back and aggravation of pre-existing cervical and lumbar spondylosis complicated by post injury depression. He thought the plaintiff’s pain was partly physical and partly psychological, but that did not diminish the fact that the plaintiff felt it as much as if it were entirely physical.
133 Dr Pointon noted he had encouraged the plaintiff on two occasions in 2009 to commence Zoloft as it had been shown to be efficacious in post injury depression. He noted the plaintiff was very reluctant on the first occasion, but less so on the second, and that that aspect required more encouragement.
134 Dr Pointon commented that the plaintiff’s life was changed entirely after the accident date from a fully functional maintenance painter to one whose capacity was so limited that no contractor really wanted to employ him.
135 In a later report Dr Pointon noted the plaintiff had tried to resume limited work when available but had been unable to work since March 2010. Up to that time, the plaintiff was working intermittently two to three days a week up to five to seven hours a day but he was unable to do high ladder work.
136 Dr Pointon noted the plaintiff had been trying to obtain lighter work via Centrelink, noting he had done clerical work with the State Public Service from 1976 to 1984.
137 At the time he last saw the plaintiff on 28 April 2011, Dr Pointon conducted the Hamilton Depression Rating Scale as objectively as possible. The plaintiff’s score was 19 consistent with moderate depression.
138 In cross-examination, Dr Pointon had available to him some details of the plaintiff’s medical history when he first saw the plaintiff in July 2009. However, he had not seen the entry of 24 July 2004 in Dr Rudski’’s notes which set out a complaint by the plaintiff of a stiff neck, headaches and stress.
139 In terms of his history, the plaintiff told Dr Pointon that he was a maintenance painter. He was not aware the plaintiff had suffered significantly from symptoms prior to the accident, although he found there was an x-ray which showed the plaintiff did have cervical spondylosis.
140 The plaintiff had been put on Zoloft before he saw Dr Pointon but told him he did not want to take it and preferred natural remedies. Dr Pointon encouraged the plaintiff to take Zoloft on two occasions and he was less reluctant to do so on the second occasion. Dr Pointon thought then that the plaintiff may have started to see the point of his argument that it would benefit him to take that medication.
141 Dr Pointon agreed the plaintiff’s symptoms were significantly psychologically driven. In his view, it was difficult to differentiate or to apportion the difference between the psychological and physical components but he felt there was a somatic pain disorder that was taking place and which was not being addressed. He explained it was a manifestation of the plaintiff’s depression.
142 Dr Pointon confirmed he thought the plaintiff had a psychological condition namely a pain disorder. There had been an event in his life which had precipitated the disorder. Dr Pointon would not agree the plaintiff had recovered from the physical problem and his ongoing problem was the pain disorder. He could say that because the two became intertwined. Dr Pointon confirmed the plaintiff had clinical depression and that there had been an aggravation of a pre-existing degenerative condition showed by radiological evidence. He agreed that the pre-existing condition could have been symptomatic before the accident if the plaintiff had seen a doctor complaining of headaches and neck pain at that time.
143 Dr Pointon agreed once those degenerative conditions had started and become symptomatic, the expectation was that they would continue. Dr Pointon could not say the plaintiff had no symptoms before the accident but noted the plaintiff was effectively working satisfactorily and the accident seemed to have changed his life.
144 After March 2009 the plaintiff was not working and he was unable to find work he could do. However, this was not due to any deterioration in his condition at that time nor was it due to an increase in treatment.
145 In terms of current treatment, the plaintiff sees Dr Pointon about five times a year. Under Medicare a patient is entitled to five physiotherapy treatments a year at the referral of his general practitioner.
146 Dr Pointon saw the plaintiff as being a pretty straight forward man who was basically very honest. He did not know why the plaintiff was reluctant to have hydrotherapy.
147 Dr Pointon has not prescribed any medication to the plaintiff for pain, explaining because of chronic pain of this nature, he is reluctant to prescribe anything above paracetamol for fear of addiction. Meloxicam, an anti- inflammatory, which was quite good with cervical and lumbar spondylosis, had been tried by the plaintiff and it had caused abdominal symptoms and discomfort.
148 Dr Pointon agreed that he was not going to prescribe more significant medication because he thought the plaintiff’s pain was not caused by physical pathology. He had thought of referring the plaintiff to a psychiatrist but had not, because he felt he could work it out with the plaintiff.
149 Dr Pointon thought when a finite end point came to the matter, the healing process, could start no matter what the settlement terms. If the plaintiff was no longer subjected to doctors, lawyers and insurers, he thought the plaintiff would get better over months. Dr Pointon was hopeful the plaintiff could then return to some sort of satisfactory level of part time work.
150 Dr Pointon agreed the tingling complained of by the plaintiff did not fit a classical dermatomal pattern. Dr Pointon had not found any wasting on examination. He had not sent the plaintiff to a pain management program “because he did not want to receive him back on opiates.”
151 On re-examination, Dr Pointon confirmed he accepted the plaintiff had a psychiatric condition and also some pre-existing degenerative change in his spine. The genesis of the plaintiff’s problems was the traumatic event. Before the accident it was his understanding the plaintiff could work in a largely unrestricted fashion as a painter and do normal daily activities.
152 In terms of the accident, he described how the plaintiff was literally bowled over and very shaken by being knocked by a vehicle. Dr Pointon considered the plaintiff had a level of degenerative disease which could be consistent with an aggravation of soft tissue injury, but now he thought the plaintiff had been left with an overlay of somatic pain disorder and it was difficult for Dr Pointon to differentiate which was more important, but he thought both were present.
153 Dr Pointon thought it was possible, having been given the history of the plaintiff not working and then having problems working after the accident, that there had been aggravation of a pre-existing degenerative change.
154 Dr Pointon thought the somatic component would recover on the settlement of the plaintiff’s claim and that the physical component could possibly do so.
155 Dr Pointon did not think the plaintiff was a man who struck him as deliberately exaggerating his symptoms. He always found the plaintiff to be very straightforward. He considered the plaintiff was a very quiet, genuine, self deprecating, humble man who did not appear to overstate his symptoms.
The Plaintiff’s Medical Evidence
Medico-Legal
156 Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff in February 2008. The plaintiff told him his ongoing problems were neck stiffness, headaches and his lumbar spine was somewhat sore.
157 In terms of past history, the plaintiff told him he had a hernia repair and said specifically he had not had any trouble with his neck, back or shoulders.
158 On examination of the cervical spine, there was some restricted movement. There was half a centimetre of right upper arm wasting. The tendon reflexes and power were normal. The plaintiff complained of tingling and numbness in multiple variable spots within the arm, which were not in any anatomical distribution.
159 There was also restricted lumbar spine movement. There were no focal neurological signs and no wasting of the lower limbs.
160 The plaintiff told Mr Doig that he had about thirteen months off work after the accident and that he was slowly easing himself back in until June 2007 when he could not cope.
161 Mr Doig diagnosed soft tissue injuries to the cervical and lumbar spine which he thought were consistent with the accident.
162 Mr Doig noted the advice that the plaintiff had a crushed vertebrae was wrong as there was no evidence of that condition. Mr Doig thought it would be wise, in view of the widespread tingling and numbness the plaintiff described, that he see a neurologist.
163 Mr Doig thought that the plaintiff’s prognosis was actually poor, noting he had been out of work for about eight months. He thought the plaintiff needed to be assessed by a neurologist in order to ensure that there was not an organic cause for that, and then a pain management program with the aim of returning the plaintiff to work which he thought would be of benefit to the plaintiff.
164 The plaintiff was examined by Mr Flanc, vascular and general surgeon, initially on 29 October 2007, then on 29 October 2008 and finally on 29 April 2011.
165 On the first examination the plaintiff said the neck pain was his most severe. He also had constant low back pain and pain over the front of both knees.
166 The plaintiff told Mr Flanc he was last employed about a month before the accident. He did not work for a year thereafter and his back pain improved to some extent. He started employment under another house painter, Vic Laroca Painting, with whom he worked full time for four months until he could not perform because of his injury and he resigned in mid 2007. Since then he had done occasional work lasting one or two days for home residents.
167 On examination there was slight tenderness at the base of the neck and there was severe limitation of flexion and moderate restriction of extension. There was no deformity and no local tenderness in the lumbar spine with moderate restriction of extension. There was no visible wasting of the upper or the lower limbs.
168 Mr Flanc noted it was quite difficult to obtain a concise history of the plaintiff’s injuries as he seemed quite anxious and claimed to have a poor memory and also his symptoms were quite widespread. Mr Flanc thought the mechanism of injury was probably whiplash in type and that it probably aggravated a pre- existing disc degeneration of the cervical spine. He considered the plaintiff’s shoulder complaints were a continuation of his neck pain.
169 Mr Flanc noted the plaintiff had mild degenerative disease of the lumbar spine and it was likely the accident resulted in an aggravation of this pre existing condition. Whilst the plaintiff had some pain radiating in his lower legs, the diagnosis was not clear and Mr Flanc doubted whether there was enough evidence to diagnose a radiculopathy.
170 He thought the plaintiff’s symptoms were being influenced by non organic factors. He thought the plaintiff’s condition had largely stabilised and at that stage he was not fit for full time work as a house painter but he might be able to cope with that work on a part time basis, not involving above shoulder work.
171 On re-examination the plaintiff considered his condition had not changed. There was still slight tenderness at the base of the neck and there was a slight improvement in flexion but extension had become more restricted.
172 There was no deformity or tenderness of the thoracolumbar spine and extension was zero due to low back pain.
173 Mr Flanc confirmed his view as to the plaintiff’s neck injury and doubted whether the occasional numbness of the left hand represented any neurological abnormality, noting Professor Davis considered that the plaintiff had a non-verifiable radiculopathy.
174 Mr Flanc confirmed his view as to the diagnosis of low back pain and the fact there was no evidence of any radiculopathy. He also confirmed the views as to the plaintiff’s employability.
175 The plaintiff told Mr Flanc on re-examination in 2011 his symptoms had not changed since 2008. He said in about 2009 he had worked for another painter for about two days a week, but only lasted two months. For the last year he had been mowing a friend’s lawn about once every three to four weeks.
176 On examination of the neck there was no tenderness, and movement was still restricted by pain. There was no deformity or tenderness of the lumbosacral spine and again there was limitation of forward flexion with zero extension.
177 Mr Flanc confirmed his previous diagnosis and stated that the plaintiff’s continuing disability was still significantly related to the physical aggravation of his condition. He thought the plaintiff’s condition had stabilised and his continuing treatment should involve management of his chronic pain and probably psychological support.
178 Professor Stephen Davis, neurologist, examined the plaintiff in June 2008. On examination, muscle tone was normal and there was no focal weakness, although the plaintiff did complain of pain. Reflexes were sluggish but intact with flexor plantar responses.
179 The plaintiff told Professor Davis that the pin prick felt generally blunt. Professor Davis found that there were no objective sensory features to suggest neuropathy.
180 Professor Davis thought the plaintiff sustained soft tissue injuries in the accident and presumably he had exacerbated pre-existing cervical and lumbosacral spondylosis. Professor Davis found some evidence of nerve compression in the cervical spine on MRI scan, although there was no definite neural entrapment or major disc herniation on the lumbosacral MRI scan.
181 Professor Davis thought hence the plaintiff’s symptoms probably reflected a degree of “non-verifiable radiculopathy” in both the cervical and lumbosacral regions, but there were no objective signs and he thought certainly management should be conservative.
182 Professor Davis considered that the plaintiff’s condition had stabilised and that he was able to work provided he avoided heavy lifting or repeated bending.
183 Although there were no hard neurological signs, Professor Davis recommended the plaintiff have a nerve conduction study performed. He noted of course, if the plaintiff did have any evidence of peripheral neuropathy, this would not be due to the accident but due to another medical condition which would require further investigation. He thought peripheral neuropathy on balance was unlikely but it did require exclusion.
184 Dr Paul Kornan, psychiatrist, examined the plaintiff on 5 December 2007 and 20 April 2011.
185 Following the first examination, Dr Kornan diagnosed a pain syndrome with psychological factors and a specific anxiety phobia about cars, travelling and further accidents. At that time he thought the plaintiff should attend a psychiatrist and have counselling and some psychotropic medication. He considered that the plaintiff had a noticeable pain syndrome with psychological factors and it did seem that it was incapacitating him at that time from work. Dr Kornan thought at that stage, if the plaintiff’s psychiatric state remained at its current level, then that would impact on his capacity for work and also his lifestyle.
186 On re-examination, Dr Kornan noted the plaintiff’s voice was of rather anxious tone but of appropriate volume. There was no dysarthria. There was no slurring of speech or raised internal verbal pressure features. There still appeared to be some problems with memory and concentration, probably more related to personality factors. There was no disorder of perception and no indications of recurrent nightmares, flashbacks or hallucinations.
187 In Dr Kornan’s view, the plaintiff’s judgment was influenced by his personality and his overall presentation. There was ongoing subjective distress, anxiety and depression and anhedonia. The plaintiff’s behaviour showed he was someone who lacked confidence and self esteem, but he was able to maintain eye contact. There were no psychotic features.
188 Dr Kornan thought the plaintiff’s psychiatric ill health presentation had been caused by the accident and after effects. He thought the plaintiff presented with a pain disorder with associated psychological factors and a specific phobia (fear about further accidents and especially about being a pedestrian with getting in and out of cars).
189 From a psychiatric point of view, Dr Kornan thought the plaintiff’s pain disorder did disable him from employment, except to the extent he was capable of some minimal tasks in that he was able to do just some occasional part time employment. Dr Kornan felt the treatment by a psychiatrist now could do little more than perhaps prevent downward fluctuations. In his opinion, little could be done for the plaintiff, except have supportive measures as was occurring from a local doctor who may wish to try him on some psychotropic medication from time to time.
190 Dr Kornan concluded, if anything, the plaintiff’s pain responses seemed to be even more marked than previously. He thought the plaintiff was incapacitated for employment due to his pain disorder which was of a psychiatric nature.
Investigations
191 A CT scan of the plaintiff’s lumbosacral spine was organised by Dr Rudski on 9 September 2005.
192 It was reported that there was long standing minor degenerative disc disease at L1-2. There was also minor degenerative disc disease at L2-3. At L3-4 level there was profuse mild annular bulging of the disc, which it was reported was almost certainly longstanding. There was minimal degenerative disc disease. There was also minor degenerative disc and apophyseal disease at the L5-S1 level. There was no disc prolapse or other abnormality.
193 A CT scan of the cervical spine taken on 14 June 2005 showed no bony injury or dislocation and normal alignment. There was chronic degenerative disc disease at the C5-6 and C6-7 level.
194 A CT scan of the lumbosacral spine of the same date showed very minor degenerative disc disease in the mid lumbar spine. No other abnormality or bony injury was detected.
195 Dr Pjesivac organised an MRI scan of the plaintiff’s cervical and lumbar spine on 23 October 2007. It was reported that there was mild C3-4 to C6-7 central canal stenoses. There was also right C5-6 and left C6-7 foraminal stenoses compressing the exiting right C6 and left C7 nerve roots respectively. In terms of the lumbar spine, there was mild L2-3 to L5-S1 central canal stenoses and left paracentral L2-3 and posterior central L3-4 annular tears.
The Defendant’s Medical Evidence
196 Dr Wong examined the plaintiff on 21 May 2004. He noted a history of headaches for years and that the plaintiff was a nervous person. He also recorded that the plaintiff was not keen on having a brain CT scan.
197 On 24 July 2004 the plaintiff reported intermittent stiffness in the neck and headache to Dr Rudzki. Twelve subsequent entries in the clinical notes until September 2004 set out similar complaints.
198 The defendant relied on a report from the plaintiff’s general practitioner, Dr Rudzki, dated 24 August 2005 in which he noted gradual improvement in the plaintiff’s condition, although at that stage the plaintiff was not ready to consider any return to work. Given the steady progress with treatment, Dr Rudski anticipated a full recovery.
199 Dr Eaton, occupational physician, examined the plaintiff for medico legal purposes on 19 September 2005.
200 The plaintiff was then complaining of sensation and ache and tightness of both thighs, knees and calves. He had intermittent neck tightness and described headaches once or twice monthly and stated he did not experience significant lower back pain or stiffness.
201 The plaintiff described a prior history of intermittent lower back and neck pain of short duration. He had previously consulted a physiotherapist in regard to neck pain and the symptoms were not ongoing.
202 On examination of the head and neck there was no evidence of deformity or muscle spasm. There was a moderate reduction in the active range of cervical spine movement.
203 There was no evidence of deformity or muscle spasm in the thoracolumbar spine and active range of motion was within normal limits having regard for age. Neurological examination was normal in both the upper and lower limbs.
204 Dr Eaton diagnosed soft tissue injuries to the cervical, thoracic and lumbar spine, left and right knee, both upper limbs and bruising of the right knee.
205 Dr Eaton considered that the effects of the accident had now resolved and that the residual symptoms reported by the plaintiff were likely to arise from residual deconditioning. He thought there was evidence of pre-existing degenerative pathology involving the cervical and lumbar spine regions evident on radiology. In his view, pathology did not appear to have been substantially aggravated as a result of the transport accident injury. Because of the deconditioning, Dr Eaton thought the plaintiff should undergo an exercise program and also hydrotherapy.
206 At that stage Dr Eaton thought the plaintiff was limited with respect to his ability to undertake some of the heavier aspects of his usual job and that after reconditioning, he could resume normal work activity.
207 Dr Lefkovits examined the plaintiff in July 2006, May 2008 and most recently in August 2010.
208 Dr Lefkovits noted that the plaintiff had a past history of vague neck and back problems for which he would occasionally attend a masseur or physiotherapist. Such problems did not interfere with his function as a self employed painter and decorator.
209 Since the accident, the plaintiff had complained of some residual nuisance twinges in his neck and back, tingling in the soles of his feet and a pulling sensation in the right thigh.
210 On initial physical examination there was no evidence of ongoing soft tissue injury. Whilst Dr Lefkovits thought the plaintiff may have suffered some aggravation of his constitutional disorder, he believed the plaintiff had recovered from the soft tissue injury.
211 On re-examination in April 2008 the plaintiff told Dr Lefkovits he was working between three and four days a week as a painter and having difficulty with overhead work. His headaches had subsided although at times he would still get some radiation of pain to his shoulders. He also continued to have low back discomfort.
212 Examination of the cervical spine revealed minimal muscle spasm and significant loss of extension with tenderness of the thoracolumbar spine and a mild significant loss of range of motion.
213 Dr Lefkovits thought there had been little change since the first consultation with the continuation of significant nuisance symptoms. He thought it likely the plaintiff continued to suffer soft tissue injuries and aggravation of degenerative changes as a consequence of the accident.
214 On the final consultation, the plaintiff advised his situation had become basically entrenched and essentially unchanged.
215 At that time, on examination of the plaintiff’s neck there was no muscle spasm and only minimal tenderness on palpation of the paraspinal muscles. The plaintiff had significant voluntary resistance to extension but intact flexion and rotation bilaterally. There was no neurological weakness. There was no significant deformity and the plaintiff had a good range of pain free movement of his back.
216 Dr Lefkovits thought the significant nuisance symptoms were likely to stay long term and that simple treatment with Panadol Osteo and ongoing home exercises would improve the plaintiff’s performance. He thought taking the plaintiff’s signs and symptoms on face value, he would accept the plaintiff’s ability to paint at or above shoulder level would be severely compromised and that prolonged standing and frequent bending could cause discomfort.
217 Having seen the April 2011 dvds, Dr Lefkovits did not change his view noting that the plaintiff was not shown engaging in overhead activity in the film.
218 Dr John King, psychiatrist, examined the plaintiff for medico-legal purposes on 14 May 2008.
219 On examination, Dr King noted the plaintiff was a difficult historian as he was very anxious and hesitant in answering questions. His affect was of a highly anxious man. There was no thought disorder, though the content of the plaintiff’s thought was a preoccupation with physical symptoms and he repeatedly told Dr King he had collapsed vertebrae.
220 Dr King thought the plaintiff did not suffer from depression. In his view, the plaintiff suffered from post traumatic stress disorder and also an adjustment disorder with anxiety, the latter caused by the physical symptoms with which he had struggled consequent on the accident.
221 In balance, Dr King thought it would not be helpful to attempt to treat the plaintiff psychologically or psychiatrically, noting so intense was his focus on the physical symptoms caused by the accident. He thought probably referral to a pain management clinic where the plaintiff could be treated by a multi disciplinary team would be the treatment of choice.
222 Dr King considered the prognosis for the plaintiff’s current state was to continue indefinitely. He noted although the plaintiff was highly anxious he was very somatically focussed. The plaintiff did not recognise that he had emotional difficulties, preferring to understand everything in physical terms, thus making it difficult to help with his anxiety.
Video Surveillance
223 There was eight minutes of video taken of the plaintiff ‘s activities on 7 and 8 April 2011.
224 At 8.48 am on 7 April, the plaintiff was shown at the front of his house carrying a step ladder in his right hand and a bucket in his left. He stood on the top of the step ladder resting on the side fence of his premises holding the bucket on the top of the ladder and using a tool to place something on the top of the fence.
225 Moments later, the plaintiff stepped down from the ladder carrying the bucket. He then lifted the ladder, placed it down and then carried the ladder in his right hand while carrying the bucket in the left and walked out of the laneway.
226 Later that morning the plaintiff was shown pushing a wheelie bin onto the nature strip and bending forward to check the letterbox.
227 The film on the following day showed the plaintiff driving his car and walking around.
228 There was not any significant level of activity, let alone any overhead activity shown on the short film.
Overview
229 I accept that the plaintiff suffered soft tissue injuries to his cervical and lumbar spine in the accident - a diagnosis generally accepted by the medical practitioners in this case, although Dr Eaton found such injuries had resolved.
230 As counsel for the defendant conceded “there may be an aggravation of soft tissue injuries affecting the lumbar and cervical spine without radiculopathy or explanation for significant symptoms affecting the plaintiff’s arms or legs flowing from those conditions”.
231 I also accept that the plaintiff also suffered an aggravation of a pre existing lumbar and cervical spondylosis in the accident.
232 The issue for determination is whether that spinal injury has produced an organic impairment and then by reference to the consequences of that impairment, whether it is serious and long term.
233 As counsel for the plaintiff conceded, the plaintiff’s treating doctor, Dr Pointon was not convincing in defining the case in terms of these requirements pursuant to subsection (a).
234 I found Dr Pointon to be a highly credible witness who genuinely cared for the plaintiff’s welfare and gave a real insight into the plaintiff’s condition having seen him regularly over the last two years.
235 Counsel for the defendant relied on Dr Pointon’ opinion, in particular, his comment that he does not prescribe medication for the plaintiff as he considered the plaintiff’s condition is not physically based.
236 Whilst Dr Pointon was not prepared to make an apportionment between the physical and psychiatric components of the plaintiff’s presentation, comments of this nature make it clear that Dr Pointon considers the plaintiff’s condition to be predominantly psychologically and psychiatrically based. Consistent with this view, Dr Pointon has not seen fit to refer the plaintiff to an orthopaedic specialist despite his ongoing spinal complaints.
237 Dr Pointon’s predecessor Dr Welner held similar views, in 2008, diagnosing a regional pain syndrome with a post traumatic pain disorder, which she thought was the major contributor to the plaintiff’s ill health and the bulk of his symptomatology.
238 Dr Kornan shared this view from a psychiatric perspective diagnosing a pain disorder with associated psychological factors.
239 Although Dr King reached a different diagnosis of post traumatic stress disorder and adjustment disorder with anxiety, he did not believe it would be helpful to attempt to treat the plaintiff psychiatrically or psychologically, so intense was his focus on the physical symptoms caused by the accident. In his view the plaintiff was very somatically focussed and he did not recognise that he had emotional difficulties preferring to understand everything in physical terms.
240 Although finding the plaintiff suffered soft tissue injuries, the plaintiff complained to Mr Doig on examination of widespread tingling and multiple variable distributions which Mr Doig considered required an assessment by a neurologist. On assessment by neurologist Professor Davis, there were no objective neuroloigal signs and he diagnosed a degree of “non verifiable radiculopathy.”
241 Whilst Mr Flanc considered the plaintiff’s continuing disability was significantly related to the physical aggravation of pre existing disc degeneration in the lower back, he thought continuing treatment should involve management of the plaintiff’s chronic pain and probably psychological support.
242 I am not satisfied that there is an ongoing impairment that is organically based in this case. At an earlier stage there was a relevant relationship between the plaintiff’s injury and pain however that pain has became wholly or at least substantially psychogenic in nature and cannot be properly characterised as falling within subsection (a) - see West v Pac Rim Pty Ltd (2003) VSCA 68.
243 I accept however that a chronic pain syndrome can result in an impairment under sub section (c) if a plaintiff can establish a sufficient casual link between an initial compensable physical injury and a chronic pain disorder which meets the severe criteria of a claim under subsection (c) – per Ashley JA in Veljanovska Socobell Oem Pty Ltd (2005) VSAC 22.
244 For the purposes of an application under Section 93 the plaintiff’s claim is then properly assessed pursuant to sub section (c), not sub section (a).
245 In those circumstances for the application to succeed the plaintiff must establish that the consequences of this impairment are severe.
246 The judgment of the Court of Appeal in Mobilio v Balliotis [1998] 3 VR 833 resolved the meaning of “severe”. Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission (1995) 21 MVR 314, that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.
247 Winneke P, in Mobilio, agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of sub-s.(17) of the Transport Accident Act, was a word of stronger force than the word “serious” where used in that Act: (see also Phillips JA at 858 and Charles JA at 860 to 861 to similar effect.)
248 I am not satisfied however that the consequences which the plaintiff claims are accident related are serious, let alone severe.
249 Whilst there is no requirement to establish economic loss in monetary terms under the Act, unlike an application pursuant to the Accident Compensation Act, a plaintiff may be able to establish other serious injury consequences in relation to employment.
250 In this case, counsel for the plaintiff submitted that as a result of his spinal injuries, the plaintiff is no longer capable of doing the full range of painting work he did prior to the accident, in particular overhead painting work on ladders. It was submitted that this consequence alone satisfied the serious injury definition in Humphries v Poljak.
251 Clearly the plaintiff could not point to a specific wage loss in this regard. His earnings before the accident were variable and relatively low and he conceded they did not represent full time work and that the part time nature of his work fitted in with his lifestyle choices.
252 Further, as counsel for the defendant pointed out, on the plaintiff’s return to work after the accident, in the 2006/7 financial year he had his highest level of earnings in recent years, although he said he worked with difficulty. There was however, no evidence of the plaintiff requiring increased medication or treatment during that time.
253 The plaintiff’s level of work in my view depends on the availability of jobs. This has always been the case both before and after the accident. He has not painted since March 2010 because no one has offered him work. He could do two or three days if offered but he would struggle. This level of work is not dissimilar to the hours the plaintiff worked pre accident.
254 I am not satisfied in these circumstances that a reduced capacity to do overhead work, in the absence of any corroborating evidence in this regard, is a serious consequence.
255 Further, the plaintiff has the capacity and work experience to engage in other types of work, particularly clerical duties. His situation therefore differs from other plaintiffs who may only be trained to work in a limited field for whom such a restriction would have greater consequences.
256 In this case, as there is evidence of neck problems prior to the accident, I must consider what the evidence discloses as to the plaintiff’s prior condition and determine whether the additional impairment resulting from the accident is serious and long term.
257 In Petkovski v Galletti [1994] 1 VR 436, the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. …”
258 In the year before the accident, the plaintiff attended Dr Ristevski a dozen times between July and September 2004 complaining of intermittent neck stiffness and headaches having seen Dr Wong with similar complaints in May that year.
259 The plaintiff’s first affidavit gave an incomplete picture of his pre accident situation as did his history given to a number of medico legal examiners.
260 I am mindful of what was said by the Court of Appeal in Dordev v Cowan [2006] VSCA 254 in relation to the plaintiff’s credit in this type of case. As Chernov JA said at para 14 of his judgment, a plaintiff’s credibility is relevant not only to whether his evidence should be accepted but it is also relevant to the reliability of the medical evidence because the opinions of the doctors are essentially dependent on the credibility and reliability of the history given to them by the plaintiff.
261 Accordingly, in this case what appear on their face to be medico-legal opinions supportive of the plaintiff’s claim must be looked at in the light of my views as to the plaintiff’s credit.
262 Professor Davis knew nothing of those relatively recent neck complaints having only been given a history of very mild low back pain pre accident. Mr Flanc had no detail of any pre accident spinal problems and Mr Doig was told by the plaintiff specifically that he had no troubles with his neck or back before the accident. Dr Lefkovits was told by the plaintiff that he had neck and back stiffness not of any significance pre accident.
263 These histories do not include any mention of numerous attendances for neck pain and headaches as recently as six months before the accident date.
264 The plaintiff’s evidence was that his headaches since the accident were “so unpredictable” but he deposed they happened once a fortnight. Clearly before the accident, the plaintiff had headaches of some severity which on occasion caused him to vomit - a situation confirmed by his wife, who without explanation in cross examination, said the plaintiff had not suffered headaches since the accident.
265 Whilst the plaintiff has continued under the care of his general practitioner since the accident, the treatment provided particularly of more recent times has been more in the form of support from Dr Pointon to deal with psychological issues. Dr Pointon has not seen the need to prescribe medication because of the non physical nature of the plaintiff’s complaints and the plaintiff only takes over the counter medication. No specialist referral or further physical treatment has been suggested.
266 Although the plaintiff claims his ability to run and exercise has been affected by his accident injuries, Mrs Cortese confirmed that the plaintiff experienced similar restrictions on such activities due to his spinal condition before the accident.
267 In considering the pain and suffering consequences, I am permitted to take into account the expected mental consequences of the plaintiff’s physical injury as described by Winneke J in Richards v Wylie (supra), such as frustration and depression at the inability to do various activities and enjoy life generally.
268 In this case however, the plaintiff’s response psychiatrically goes further than these matters and is more properly assessed under subsection (c).
269 As Winneke P stated in Richards v Wylie supra at paragraph 16, it was erroneous to allow the consequences of a mental disturbance or disorder to govern or even intrude into the finding of impairment or loss of body function under section 93(17)(a). Such a condition does not fall to be governed by subsection (a) but rather by subsection (c).
270 Issues of permanency also arise in this case. In Dr Pointon’s view the plaintiff’s condition will improve on the finalisation of his claim - regardless of the terms of settlement - when the plaintiff is no longer ”subjected to lawyers, doctors and insurers.”
271 Taking into account all the evidence, I am not satisfied that the impairment to the plaintiff’s spine is serious and long term.
272 Accordingly, the plaintiff’s application is dismissed.
- - -
0
3
0