Dimitrakis v Transport Accident Commission
[2025] VCC 166
•5 March 2025
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-24-03104
| PETER DIMITRAKIS | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE PILLAY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 February 2025 | |
DATE OF JUDGMENT: | 5 March 2025 | |
CASE MAY BE CITED AS: | Dimitrakis v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2025] VCC 166 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Spine injury – constant pain – functional limitations – retained capacity – bilateral arm numbness – occasional reliance on pain medication
Legislation Cited: Transport Accident Act1986
Judgment: Serious Injury Application Granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R McGarvie with Mr N Horner | Zaparas Lawyers |
| For the Defendant | Mr Paul Elliot KC with Mr J Valiotis | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1Peter Dimitrakis has worked most of his life in the automotive trade, specifically as a panel beater. He suffered injury when his work vehicle was T-boned on 13 July 2021. He argues that this accident has caused him serious injury to the spine, both the neck and lumbar regions, which has left him with impairment consequences which are “serious” in accordance with the definition in the Transport Accident Act 1986 (“the TAA”). While admitting Mr Dimitrakis sustained injury as a result of a transport accident, the defendant argues that the extant injury produces consequences which do not meet that definition. In making this argument, the defendant submits that Mr Dimitrakis’ evidence in respect of his impairment consequences was unreliable, in that it contrasted with medical examination histories, his retained capacities and was substantially inconsistent with video evidence demonstrating him going about his daily activities. The defendant also submitted Mr Dimitrakis was a poor witness, in that he was non-responsive, unreliable, argumentative and prone to exaggeration.
2Overall, while I accept that some of Mr Dimitrakis’ evidence was unreliable and given in a manner that was at times argumentative and prone to exaggeration, on balance, the material does support a finding that the impairment consequences from the extant spine injury are serious in accordance with the TAA. For that reason, I will grant Mr Dimitrakis’ application.
Relevant chronology
3Mr Dimitrakis was born in January 1969. He left school in about 1986 in Year 11 and then began a panel beating apprenticeship. He went on to work in that trade for eight or nine years. Towards the end of that time, he obtained a teaching diploma, so he could work at TAFE in panel beating and the automotive trade. He did that for a few years. He then appears to have returned to his trade until about 2008, when he joined the police force. He worked as a constable in the south eastern suburbs of Melbourne for a few years.[1] He then left and went back to his trade working at a variety of different shops, teaching and running his own panel beating shop.[2]
[1]Affidavit of Peter Dimitrakis sworn 18 April 2023, at paragraph [4]
[2]Ibid
4In March 2021, he started work at Superb Scratch and Dent as an auto-repair technician. This required him to drive constantly between jobs, which he would perform onsite. It was a full-time position.
5He described the accident in the following terms:
“On 13 July 2021, just before 4pm, I was driving a work vehicle. I was at the intersection of High Street Road and Danien Street, in Glen Waverly, when I was T-boned by another vehicle on the centret (sic) driver’s side of my car. I believe that the other car missed a stop sign. After the accident, I felt dizzy but didn’t focus on it much. I worked the next day and then that night I started getting a sore back and neck. I reported the accident to the Narre Warren police station.” [3]
[3]Affidavit of Peter Dimitrakis sworn 18 April 2023, at paragraph [6]
6He returned to work the next day. He saw his treating doctor, Dr Thushari Weerakoon on 15 July 2021 with spinal pain and was referred for x-rays.[4] He did not work from that time, by reason of his back pain, for a period of about eighteen months. I will return to his occupational history, but will proceed to broadly detail the treatment chronology, as it was not contentious.
[4]Plaintiff’s Amended Court Book (“PACB”) 22
7The x-ray was reasonably unremarkable and in August 2021 his treating doctor referred him for CT scanning.[5] This was for right-sided headaches which were ongoing after the motor vehicle accident.
[5]PACB 23
8His condition was not improving. His treating doctor referred him to a neurosurgeon, Associate Professor Richard Bittar. He consulted with him in September 2021. At the time he saw AP Bittar, he presented with ongoing neck and intrascapular pain, pain radiating through both triceps into his forearms and hands, pins and needles into his forearm and hands, weakness of his upper limbs and numbness and pins and needles in his legs, which were frequently giving way.[6] AP Bittar referred him for nerve conduction studies with Mr Ng. In addition, AP Bittar also referred him for an MRI scan. I interpolate to note the plaintiff attempted the MRI scan, but was claustrophobic, so it did not proceed.
[6] PACB 38
9Briefly, the nerve conduction studies did not show anything untoward, save for, perhaps, bilateral carpal tunnel syndrome. AP Bittar reviewed him again on 11 October 2021, noting he had improvement of about 20 per cent and discussed surgery with Mr Dimitrakis.[7] Mr Dimitrakis considered his symptoms were not severe enough to warrant surgery and declined the offer.
[7] PACB 39
10Overall, AP Bittar considered he had an aggravation of cervical spondylosis with neck pain and bilateral upper limb neurological symptoms. He considered that the examination findings were consistent with cervical radiculopathy. He was referred on to a chiropractor, Dr Thompson. Dr Thompson saw Mr Dimitrakis for three sessions in the latter part of 2021. There was no improvement and so referred him onto Dr Robert Gassin, a pain specialist. He had one session with Dr Gassin, but this did not improve his situation and he did not proceed further. He was considered by his treating doctor to be improving and compliant with treatment.[8]
[8]Defendant’s Court Book (“DCB”) 37
11Throughout 2022, it appears he did not work, but continued a program of gym work, sauna, stretching and some physiotherapy.[9] His physiotherapist continued to note ongoing neck pain, headaches, bilateral lower limb and upper limb difficulties, and functional limitations.[10]
[9]PACB 43
[10] Ibid
12He was reviewed by Dr Anthony Menz, a medico-legal defendant orthopaedic specialist in September 2022.[11] Dr Menz took a history that the lumbar pain had improved about 50 per cent, which was somewhat consistent with the notations of AP Bittar and also Mr Dimitrakis’ treating doctor. However, he continued on with neck pain, taking Nurofen and Panadeine Forte regularly.[12] At the time of reporting, Dr Menz did not have any radiological investigations made available to him.[13]
[11]DCB 20
[12] DCB 22
[13] DCB 23
13Returning to the occupational chronology. Towards the end of 2022 and the start of 2023, Mr Dimitrakis returned to work. It must be noted that all doctors and physiotherapists at this stage, were opining that he should not return to his old position, given his ongoing symptoms and what they considered to be his functional limitations. Mr Dimitrakis’ evidence is that he tried a few jobs in mobile panel beating, wheel repairs and also a sales position at Repco.[14] In each of these jobs, he found he could not cope with the work due to his spinal pain. This is significant, as Mr Dimitrakis’ evidence at trial was that financially he was struggling at this stage, hence his attempts at return to work. It is also significant that he did attempt to return to panel beating against instruction from his treating practitioners because it shows willingness and determination to work despite his injuries. However, he was unable to cope with these jobs.[15] He particularly deposed that the sales position required him to be seated frequently and this was difficult on his back and so he was not able to pursue that role.[16]
[14]Affidavit of Peter Dimitrakis sworn 18 April 2023, at paragraph [8]
[15]Affidavit of Peter Dimitrakis sworn 28 November 2024, at paragraph [5], DCB 32
[16] Transcript (“T”) 29 Line (“L”) 28–30
14Relevantly, at this time he also bought another car because, in evidence, he said he was unable to operate the clutch on his Caddy van easily and so moved to an automatic vehicle, a BMW X1.
15In this context, in April 2023, Mr Dimitrakis swore his first affidavit. He deposed to having neck pain all the time and requiring physiotherapy once per week.[17] He avoided medication, but occasionally took Nurofen, probably two times a week, and otherwise relied on regular saunas, physiotherapy, stretches and going to the gym.[18] He deposed to back pain most of the time, radiating into his feet, and pins and needles associated with it. As above, he deposed to having ongoing problems sitting and tried to avoid standing for too long, or bending. Particularly, he deposed to having to lean on a trolley when he shopped. This was heavily contested in cross-examination and I will return to this issue. In August 2021, notes from his treating doctor referred to by Dr Joseph Slesenger, indicate that the work Mr Dimitrakis was doing was causing his symptoms to flare up and he needed to see a physiotherapist regularly to deal with pain in both his neck, arm and lower back.[19]
[17] Affidavit of Peter Dimitrakis sworn 18 April 2023, at paragraph [18]
[18] Affidavit of Peter Dimitrakis sworn 18 April 2023, at paragraph [19]
[19]DCB 37
16His treating physiotherapist at the time reported similar symptoms of neck pain, headaches, dizziness, and fatigue.[20]
[20] PACB 43
17In January 2024, he found another job at Capital S.M.A.R.T in Mulgrave as an inspector. This job involved him inspecting the finished body work on cars which had panel work done to them. He gave evidence he had to inspect twelve cars a day and maybe do a bit of light buffing. He was not required to do any heavy lifting work and specifically was not required to go underneath the cars to inspect them. He deposed to having a feeling of some pressure associated with this job, but he was financially obligated to work and needed to push on as best he could. His treatment regime was much the same as described above.
18In about March 2024, Mr Dimitrakis came under video surveillance at shopping centres, outside his gym, at work, and also at a picnic. I will return to the video surveillance in the assessment of Mr Dimitrakis’ claim.
19He was reviewed by Dr Slesenger, a medico-legal occupational physician, in March 2024. Dr Slesenger took a history that Mr Dimitrakis’ symptoms had improved significantly and his neck and back pain had mostly resolved. The accuracy of this commentary was contested by Mr Dimitrakis.
20He saw Dr Menz later in 2024, who recorded that Mr Dimitrakis continued to have improvement in his lower back and only occasionally took Nurofen. [21] He found an excellent range of motion in the spine. He was then examined by Dr Eman Awad, a medico-legal specialist for the plaintiff, in November 2024. She recorded an improvement since the initial onset of pain, but also recorded ongoing constant pain in his trapezius and scapular area.[22] She considered Mr Dimitrakis could not return to his old job, which was consistent with all reporting to date. In December 2024, Mr Dimitrakis saw Dr Raf Asaid, a medico-legal orthopaedic specialist, on behalf of the plaintiff. He recorded significant ongoing neck pain with limited range of motion, but a much better situation in the lumbar spine.[23]
[21]DCB 56
[22] PACB 61
[23]PACB 70
Issues
Was the plaintiff a reliable witness?
21The defendant attacked the plaintiff’s evidence on the basis that he was overall an unreliable witness: specifically, that he was prone to exaggeration. This was said to arise in a number of different areas of his evidence.
22Starting with the video evidence. As I briefly set out above, this was taken in about March 2024. One tranche of that video evidence was of the plaintiff shopping at a shopping centre. In that video evidence he was shown walking down a flight of stairs to leave the shopping centre. His physiotherapist had recorded that he was somewhat unsteady when using steps.[24] It was put to the plaintiff that he did not use the handrail or move in any abnormal manner descending the stairs. The plaintiff gave evidence that he was “wobbly.”[25] I am entirely unclear what the plaintiff meant by that statement, given that he descended the stairs in what looked to be an entirely normal manner.
[24] PACB 45
[25] T66, L15
23The second point the defendant took was in relation to the plaintiff’s evidence given in cross examination, which was that in the last few weeks his back pain had flared due the weather, requiring him to take some twenty-two Nurofen over the last two weeks.[26] It was put to the plaintiff that this was an exaggeration, as his affidavit evidence was that he only required such pain medication several times a week.[27] It was suggested this was inconsistent with taking almost eleven tablets each week. There is not too much in this point, as eleven tablets taken over the course of a week is not much different to taking Nurofen several times a week. I do not think much turns on this, if there is any inconsistency at all.
[26] T86, L4 –7
[27]Affidavit of Peter Dimitrakis sworn 28 November 2024, at paragraph [8]
24It was further elicited in cross examination that the plaintiff only recently had been taking a few days off work to deal with a flare-up of his back pain.[28] This is a more substantial point, as there is nowhere in his affidavit material where he had deposed to needing such days off during the last year to deal with back pain. It seems unlikely that throughout the course of an entire year of work he had not had some days off work for back pain and this had only become an issue in the last few weeks prior to trial. I accept that this represents some inconsistency in his evidence.
[28] T24, L10–13
25Further to this point, the plaintiff gave evidence that by reason of his ongoing back pain, when he commenced at his latest job, he had been provided with a certificate by his physiotherapist which put him onto light duties.[29] This is referred to briefly in his physiotherapist’s report.[30] While this is not in his affidavit, he did depose that his employer was aware of his restrictions.[31] The plaintiff then gave evidence that he had not given the certificate to his employer, as it was just a verbal agreement that he had with them that he was to be on lighter duties.[32] It could be understood that an employee starting a new job would not want to immediately indicate his compromised physical position by providing a physiotherapist’s certificate placing him on light duties. However, it does not make sense that he would tell them of his reduced physical state and come to an arrangement about his light duties and yet continue to hide the certificate. On this point there is some minor inconsistency in the plaintiff’s evidence.
[29] T69, L11
[30] PACB 47
[31] Affidavit of Peter Dimitrakis sworn 28 November 2024, at paragraph [5]
[32] T69, L15-16
26Another point occurs in relation to the plaintiff’s mobility. This was said to be shown by two things.
27First, in his affidavit the plaintiff had deposed to requiring a trolley to lean on when he walked about the supermarket.[33] He had deposed to this in his first affidavit and confirmed it in his second affidavit, and further adopted both affidavits as true and correct at the beginning of his evidence. However, the video evidence of the supermarket visits showed him using a basket and not requiring a trolley at all. This certainly represents an exaggeration of his physical incapacity and an unreliability in his evidence.
[33]Affidavit of Peter Dimitrakis sworn 18 April 2023, at paragraph [26]
28The second part of this is as to his ability to walk without a limp. The plaintiff was adamant that he at times walked with a limp, and that it could be seen on video.[34] In particular he referred to the last video of him at a family picnic. He said it demonstrated him walking with a limp. I have watched the video again in chambers and was unable to discern any such limp.
[34] T85, L8; T85, L27
29A further area of inconsistency arises from the plaintiff’s evidence given in the witness box as to the loss of his arm strength and the reduction in the size of his right arm.[35] This is not consistent with the examinations performed by any of his doctors, and particularly Dr Slesenger’s notation of the measurements of his right arm circumference.[36] I do not accept the plaintiff’s evidence on this point, and consider it demonstrates a real inconsistency and unreliability in his evidence.
[35] T37, L11
[36] DCB 35
30Dealing with the video evidence as a whole. I consider the video evidence of him in the supermarket is broadly consistent with the evidence the plaintiff deposes to. That is, that when he shops he uses a basket, it normally has only a small number of items in it,[37] and on occasion he swaps arms to alleviate the pain, particularly in the right side.[38] In another surveillance video, it shows him attending the gymnasium, however the footage only shows him at the front of the gymnasium. Nothing can be drawn from this.
[37] T33, L6-8
[38] T30, L22-23
31It is quite clear that the plaintiff has a lean muscular build. The defendant submitted this showed that he had managed to stay in very good athletic shape despite his injuries and limitations. Implicitly it suggested that even though he was limited functionally, he was obviously doing substantial amounts of gym work to be able to maintain such a physique, and this constituted a significant retained function.
32It must be recalled that the plaintiff gave evidence that he was always a fit muscular individual with a lean build.[39] He had a strong interest in gym work prior to the relevant injury. Furthermore, his main treatment modality has been gym work, both to stretch and strengthen. In the circumstance where his condition was improving initially and he had not taken up the option of surgery, the plaintiff was left with no other treatment modality than to maintain his physical health, and it could be accepted that all medical practitioners would have encouraged that. Therefore, his attendance at the gymnasium by itself is not inconsistent with the film. In fact, he had informed all doctors, medico-legal and his treaters, that that was exactly what he was doing. He further gave evidence that at the gym he did lift weights, but made it clear that he could not lift weights as he used to.
[39] T76, L20-22
33He was cross-examined about his ability to bench-press 70 kilograms, which was similar to what he could do previously.[40] However, I do not accept the defendant’s submission on this point that he regularly bench-pressed 70 kilograms. This is because he made it clear that while he “could” do this, it was not something that he did regularly or even attempted to do, because it was at the outer range of his reduced capacities. He made the point that he did much lighter weights now of perhaps greater repetition. I accept the plaintiff’s evidence on this point and find no inconsistency between his physique as shown in the video and his evidence and histories recorded in the medical reports as to attending the gym.
[40] T76, L29-31; T77, L1-4
34It was also suggested that it was inconsistent with ongoing problems that the plaintiff could work a nine-hour day and then go to the gymnasium four or five times a week immediately after work. However, I accept the plaintiff’s evidence that at the end of the day he was often stiff and sore, and so the gymnasium and the sauna located there offered a way to gain some respite from these pains. Furthermore, he explained, by using up one hour of gym time he could avoid the worst of the peak hour traffic. That was particularly important to him, because sitting in a car in traffic aggravated his lower back pain.[41] The answers that the plaintiff gave were rational and cogent, and fitted with the evidence contained in the medico-legal and treating material. I accept them.
[41] T26, L5-9
35It was also suggested that if he had difficulty driving, then it was curious that he had bought another motor vehicle in late 2023, being a BMW X1. This was also because it placed extra financial pressure on him at a time when he had given evidence that he was struggling financially. I would reject this submission. The plaintiff’s evidence was that the Caddy van was a manual vehicle which, if driven for lengthy periods of time, caused increasing lower back pain. The vehicle that he bought was an automatic.[42] This was much easier to drive than the manual. This was particularly necessary, as he had to drive about an hour to see his father in San Remo who was suffering from cancer. I accept the plaintiff’s evidence on this point. It is consistent with the surrounding circumstances that the plaintiff would attempt to alleviate one of the sources of his pain and discomfort, being the manual vehicle, by purchasing another vehicle which was an automatic. This was particularly the case where he had a reason to drive the long distance to San Remo. I do not accept the defendant’s submission.
[42] T71, L12
What has the plaintiff retained?
36Allied to the above submissions the defendant made, it also submitted that the plaintiff had retained a number of capacities which were indicative of the fact that he did not have a serious injury, and was also inconsistent with some of his evidence.
37One of those areas was in respect of the gym, which I have dealt with above.
38Another area the defendant submitted showed a retained capacity, but was also inconsistent with the overall evidence, was the recordings of the plaintiff’s improvement. The plaintiff’s evidence is that after the initial onset of injury he did experience improvement. This can be seen by the recording of AP Bittar towards the end of 2021 when he recorded something of a 20 per cent improvement.[43] Similarly, the treating doctor recorded an improvement in his symptoms around this time. The plaintiff’s first affidavit also deposes to an improvement in his condition.
[43] PACB 39
39The defendant then put specifically that he had exaggerated his pain to Dr Slesenger in respect of his lower back pain in 2024 when he first saw him.[44] I do not accept that to be the case, given that Dr Slesenger was clearly reporting on the initial onset of pain in the paragraph the defendant relied on in cross examination. That much is apparent from the tenses used in expressing his opinion. As to the general notion that the plaintiff’s pain had improved by a set percentage as noted by both Dr Slesenger and Dr Menz, the plaintiff’s evidence overall was consistent on this point. I find that he had experienced general improvement since the initial onset of injury, and that his pain went up and down on a day-to-day basis. As a result, he required ongoing physical therapy, occasional medication, and physiotherapy treatment.
[44]T46, L18-24
40The plaintiff’s evidence is really to the effect that while there has been improvement, there has been an ongoing pain and functional limitation effect from his injury. That is not a matter that can be reduced to an accurate percentage by simply looking at one doctor’s history on one particular day, but must be a matter that the Court assesses having regard to all of the evidence in historical context. I do not accept that there is any significant or material inconsistency in the plaintiff’s evidence in respect to his improvement, and particularly in respect of the various recordings of percentage improvement as recorded by Dr Slesenger and Dr Menz.
41The defendant particularly pointed to the retained capacity the plaintiff had to work 45 to 47 hours per week in what they term to be a physical job. It can be accepted that the plaintiff works these hours. He gave significant reasons for doing so: primarily, his need to work to pay off his home and stave off the bank. It is also necessary to understand that all doctors accept that he cannot do his old job as a panel beater, or for that matter any job which involves substantial lifting and bending.[45] Rather, he is limited in the work that he can do.
[45] PACB 32; PACB 41; PACB 45; PACB 49; PACB 55; PACB 63; PACB 71
42The defendant also called in aid a video which showed him carrying a bumper-bar while at work, and then another video which showed him going onto the ground at the side of a car and reaching in to get something from underneath it. Both activities were said to be inconsistent with the picture presented in his affidavits and to doctors. A few things can be said about these tranches of video. The video of him at work lifting the bumper-bar was, on his evidence, a reasonably unusual thing, and the bumper-bar in fact weighed only 3 to 4 kilograms.[46] He gave evidence that he did no assembly work with it, and simply carried it to place it on a rack.[47] I accept that evidence, as the video was of only short moment and showed him in a way which was entirely consistent with what he had deposed to and what was recorded in medical evidence. In fact, all the medico-legal specialists who had seen the video considered this was within his range of capacities. The other video, which showed him in a social setting going to the ground to the side of a car and reaching under, he explained was a one-off situation where he had dropped something under the car and needed to go and get it.[48] There might have been debate as to whether or not such activity was performed “comfortably”, but once again the video was of short moment, showing one action at one particular time, not repeated actions which would be required in an occupational setting. I do not place much weight on this video itself.
[46] T74, L6
[47] T74, L15-16
[48] T75, L26-28
43It was also broadly suggested that the plaintiff had in fact matched his earning capacity in his current job. The only job that he had had over the last eight years of similar earning capacity was that which he was engaged in at the time of the accident, which would have allowed him to earn a salary of around $100,000. It was then put to him that he was not performing that job well, and was terminated from it by reason of his poor performance. That submission must be rejected. The evidence called in aid by the defendant from a statement of Mr Petkovski, the plaintiff’s manager at the time of the accident, was simply that he had issues with the plaintiff’s work performance, and not that he had been terminated by reason of his work performance. It was made quite clear in Mr Petkovski’s affidavit that the only reason the plaintiff was terminated was that they had no light duties available for him some 18 months after the accident.[49] Further, in evidence, the plaintiff categorically denied the assertions made in Mr Petkovski’s affidavit. There is no contextual material such as warning notices or corroborative statements from other workers which would support the defendant’s position. In that circumstance, I do not accept the defendant’s submission.
[49] Affidavit of Bob Petkovski, sworn 11 September 2023 at [11]
44Furthermore, while the plaintiff is currently working a full-time position at between 45 and 47 hours per week, the focus is really on his impairment consequence, which is the loss of functional capacity. That, according to all the doctors and the plaintiff himself, is that he has a reduced functional capacity such that he cannot do his trade and the vast majority of positions which he has previously done throughout his working life, either by reason of being a mobile repairman because he cannot sit in a car for long periods, or the manual labour associated with panel beating in a shop. To lose the capacity to do his trade I find is a significant loss.
45The defendant also submitted that the plaintiff could do a range of social tasks which were enjoyable for him. They pointed to video surveillance which showed him at a picnic having an enjoyable time. That video often showed him moving about at a picnic ground, bending repeatedly at the waist to examine a fuse box with others, and sitting on the ground at times. The video also showed him stretching repeatedly through his legs, and also rubbing his back. Overall, the video clearly showed the plaintiff having difficulties with his physical function during the course of the outing, such he had to stretch and rub his back to alleviate his pain. So, while he can participate in these activities, this is not inconsistent with his affidavit evidence, and in fact is consistent with it: that he has ongoing constant pain and limitation.
Inconsistency with examinations
46The defendant also pointed to inconsistencies between the plaintiff’s evidence and histories given to various doctors. For example, Dr Slesenger had taken a history of normal range of motion and gait. This was obviously contrasted with that of Dr Awad particularly. As I have indicated earlier, the reporting of medico-legal practitioners who have seen the plaintiff on one particular day at one particular time is of limited value. In this regard, the opinions and recordings of regular treating practitioners often assumes much more importance. In this case, his physiotherapist at BIM records examination findings and functional limitations over a course of time and many different treatment sessions. I prefer that evidence, and it informs the overall assessment of the case in a much more powerful way than simply the recordings of those doctors who have seen the plaintiff on one occasion at one particular point in time.
47I was urged by the defendant to accept the opinion of Dr Menz that essentially there was no injury extant to the spine, and the plaintiff now had something resembling almost full functional capacity with very limited ongoing pain. I do not accept Dr Menz’s opinion. It is inconsistent with the treating material from AP Bittar from 2021, the treating doctor who admittedly has only limited material, and the serial reporting of BIM, the physiotherapists.
48I also note specifically that Dr Menz had no history of the attempts of Mr Dimitrakis’ return to work in a variety of different positions prior to settling on this last job that he is in. That history is particularly critical because it demonstrates the plaintiff’s willingness to work and ongoing problems finding suitable employment that could accommodate his back injury. That is particularly powerful practical evidence of the severity of the pain and functional problems the plaintiff faces. A proper appreciation of that material is necessary to opine on his ongoing pain and functional limitations. I place little weight on Dr Menz’s opinion as a result.
49Similarly, I was urged to accept the opinion of Dr Slesenger. The plaintiff gave evidence that his appointment with Dr Slesenger was a patronising experience.[50] Putting that to one side, however, I note that Dr Slesenger has recorded that the plaintiff’s current duties are moderate to heavy.[51] On the evidence I have accepted of the plaintiff, his job could in no way be described in that manner. It contains no lifting of heavy objects and no consistent requirement to lift moderate weight on a repetitive basis. I find that incorrect appreciation substantially weakens the opinion that he has expressed.
[50] T44, L14-15
[51] DCB 40
50It will be apparent from that, that I place more weight on the treating practitioners in this matter to inform my assessment of his medical condition. They are more in line with the opinions of Dr Awad and Dr Asaid, whose evidence overall I do accept as it is more consistent with that medical material and also the plaintiff’s occupational history.
51When looked at overall, the plaintiff has the ability to work in a lighter position for 45 to 47 hours per week. It is not productive of a significant financial loss at present. However, it is incontrovertible that he has a significantly reduced functional capacity and particularly a reduced capacity to do the job that he obtained trade certification in, has taught at TAFE, and has been involved with for the majority of his life. In addition to that, he has lost the ability to be a mobile auto technician, which was his allied trade for many years. These are very significant limitations that he has had to live with now for nearly four years. They will be with him for the future.
52In addition, while he has retained the ability to do a range of social and physical activities, these are also compromised. They are compromised by the need to take occasional medication and the need to constantly stretch. It is certainly true that his reliance on medication is not high. However, he is required to attend at the gym, almost daily, to both stretch and remain in shape and to use the sauna very regularly to keep his symptoms in check. [52]
[52]Affidavit of Peter Dimitrakis sworn 18 April 2023, at paragraph [19]
53I also record my finding that he has constant pain in the neck particularly extending into the arms. It is at a moderate level. I accept the same is the case for his lower back.[53] This is consistent throughout the reporting since 2021 which I accept, and his evidence on this point I accept also. As I have said previously, that constant pain requires limited medication but almost consistent physical therapy some four years after onset to keep it at bay and allow him to function. That is not insignificant. Thus, while he can do such things as go on a picnic, a trip to Bali, and social outings with his partner, these are all compromised to some extent by the ongoing need to manage the constant pain and functional limitations. This can be seen at the picnic, for example, by the need to rub his back and to stretch.
[53] DCB 29; DCB 30
54I do accept, however, that the plaintiff is not as functionally limited as some of his evidence suggests. However, the remaining matters that I have referred to above and which I accept from him are, in my opinion, impairment consequences which are more than significant or marked. For those reasons and assessing the evidence overall, I will grant the plaintiff’s application.
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