Grinham v Transport Accident Commission
[2015] VCC 1815
•14 December 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-14-04806
| ADRIAN GRINHAM | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8-11 December 2015 | |
DATE OF JUDGMENT: | 14 December 2015 | |
CASE MAY BE CITED AS: | Grinham v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1815 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – paragraph (a) injury to neck – impairment of spine –paragraph (c) mental or behavioural disturbance or disorder
Legislation Cited: Transport Accident Act 1986
Cases Cited: Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the plaintiff to bring proceedings for the recovery of damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P Rattray QC with Mr P Bourke | Slater & Gordon Ltd |
| For the Defendant | Ms R Annesley QC with Mr S Smith | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 In the early hours of the morning of 20 September 2008, the plaintiff was asleep in a car driven by his brother. He lost control, and the car collided with a pole. It seems the airbags did not operate and the plaintiff struck the windscreen forcibly with his head, shattering it.[1]
[1]Plaintiff’s Court Book (“PCB”) 200-201
2 Leave is sought for a paragraph (a) injury to the spine, principally the cervical spine, but also including the low back to a much lesser degree. Leave is also sought for a paragraph (c) mental or behavioural disorder that is an aggravation of pre-existing depression and anxiety but with a new element of Post-Traumatic Stress Disorder (“PTSD”). He suffered permanent facial scarring but no paragraph (b) claim was pursued.
3 As to the issues to be determined, the defendant said the only physical injury of ongoing significance, if any, was to the neck, which had resolved. There was no low back injury caused, and the paragraph (c) claim involved an aggravation that after a Petkovski v Galletti[2] analysis, was not “severe”. Some disentangling exercise was suggested, as well as issues as to credit.[3] By the end of the evidence a soft tissue injury to the neck was conceded by the defendant.[4]
[2][1994] 1 VR 436
[3]Transcript (“T”) 15-16
[4]T262
4 Clearly, the collision was major. The plaintiff was conveyed by ambulance to The Alfred hospital Trauma Unit. A CT scan showed a fractured nose, soft tissue cervical spine damage and his brow had to be sutured. Forces applied to the head and upper spine were obviously violent.
5 The plaintiff was forty-three years old at the time of the accident. He was working for National Patient Transport driving patients in accordance with their medical needs. Previously, he had worked for years as a security officer, in aged care as well as doing courier/driving work. He is a well-motivated worker but often had to be content with casual employment positions. I accept he had no difficulty with these other jobs in the several years immediately prior to the accident.[5]
[5]T205-206
6 After the accident, he was off work for six weeks, recommenced part time and returned to full-time driving after about twelve weeks. He had trouble driving due to pain and stiffness in his neck and shoulders, so he was put into the office three days per week and only drove on two days. Prior to the accident, he used to drive 10-hour shifts without difficulty.[6] After about eleven months, the plaintiff was requiring psychiatric treatment for PTSD, anxiety and depression. He was referred to a psychologist, Dr Karen Mansfield, in September 2009 and to a psychiatrist in October 2009, Dr Caroline Manuel.[7] He had been treated over earlier years for depression and anxiety and had a WorkCover claim years earlier for problems of that type regarding an earlier employer. Still, he had worked virtually all his life and had been very active in sport. He had some other health issues, including some physical injuries in the past, including some back symptoms, but I find these were not causing any relevant consequences at the time of the accident.[8]
[6]PCB 11-12
[7]PCB 9
[8]PCB 11, 15
7 Treatment has generally been rather limited. There have really been no treatment options suggested other than conservative forms and no others are suggested now. This has been the norm for the spinal condition and the consequential occipital headaches. Osteopathy with several practitioners took place and various painkilling medications have continued to the present time prescribed by his general practitioner. He has been treated by way of a team approach to pain management at the Victorian Rehabilitation Centre. Physiotherapy has been ordered as recently as in January 2015 but was not taken up. He has had Chinese massage treatment earlier this year and medications have continued.[9] He has encountered alcohol and gambling problems in the seven years since the accident and suffered suicidal ideation, as his mental reaction caused a deterioration in his general health.
[9]PCB 20, T21-22
8 The plaintiff last worked on 9 April 2015, when he eventually went off and lodged a WorkCover stress claim but also recorded upper torso pain.[10] Part of the stress picture flowing from the accident involved an allegation and a charge that he was driving the vehicle rather than his brother. In the end, the County Court, on appeal in 2012, found he was not guilty of being the driver.
[10]Defendant’s Court Book (“DCB”) 99-100
9 In September 2010, he also suffered a low-back spasm at work but it settled after some rest and osteopathy and a short time in modified duties.[11] There was also a wrist injury.[12] On the probabilities, those events play no relevant part in his present symptomology. He had also suffered some left shoulder symptoms, intermittent headaches and alcohol problems pre-accident but again, on the probabilities, these did not interfere in any significant way with his work, sport or daily life at the time of the accident.
[11]PCB 12-14
[12]DCB 78
10 Turning firstly to the paragraph (a) impairment of the spine. I accept the plaintiff’s evidence in his first affidavit which was sworn in January 2013 that over five years after the accident, he was still suffering pain and stiffness and reduced mobility in the neck at that time. The pain radiated into the shoulders and he suffered headaches three to four times per day.[13] He was on four Panadeine Forte per day, as well as daily Nurofen and Panadol.[14] He found it difficult to sleep due to neck and back pain but before the accident, he also had problems with sleep on account of depressive symptoms.
[13]PCB 9-10
[14]PCB 11
11 The plaintiff’s second affidavit was in December 2013. He swore osteopathy had ceased earlier in 2013 as the Transport Accident Commission (“TAC”) ceased paying and he could not afford to pay. He continued massages twice per week for his spinal symptoms. Symptoms had continued the same as previously sworn to.[15] Significantly, this was now over five years after the accident that this cervical spinal pain and need for treatment was continuing. Painkillers were still being taken. He struggled to cope with his job, being worked on. I accept his evidence that in spite of these physical symptoms as well as other health problems set out in the affidavits, this well-motivated man kept working:
“I have continued to work full-time as Patient Transport Officer. More recently I have been taking days off on a regular basis due to fatigue. I am struggling to cope with the constant pain and stiffness in my neck, shoulders and back as well as my persistent headaches. I find it difficult to get a good night’s sleep due to ongoing discomfort in my neck and back. This also contributes to my fatigue at work”.[16]
[15]PCB 15
[16]PCB 16
12 His third affidavit was sworn seven years after the accident, in September 2015. His physical and psychiatric injuries continued to deteriorate including the spinal pain.[17] After being on light duties for some years in 2013 and 2014, he just could not cope with the extra duties then given to him, including carrying people on stretchers. This caused the neck and shoulder pain to worsen, spreading into his back.[18] I accept the evidence of him still suffering constant headaches and spinal pain and stiffness all these years later as a result of the transport accident.[19] Of itself this is a very considerable consequence of the impairment of his spine.
[17]PCB 18
[18]PCB 18
[19]PCB 19
13 In October 2014, he was referred by his general practitioner, Dr Lahanis, to Dr Clayton Thomas for pain management and rehabilitation by way of a team approach to his physical and psychiatric symptoms. Physiotherapy was also undertaken but the pain continued unabated. I accept his evidence as at September this year:
“I continued to suffer from constant pain in the back of my head and frequent neck pain and stiffness, shoulder pain and right sided facial pain. The constant pain drives me to distraction, as there is not a single day on which I get any relief from it”.[20]
[20]T19
14 Eventually, in April this year, he ceased work when he “… felt completely burnt out by my pain, stress and state of mind”.[21] He still takes painkillers daily in addition to the medications for his psychiatric symptoms.[22] He still does not sleep very well due to spinal pain but also because of nightmares, and they are a consequence of non- organic problems.[23]
[21] PCB 19
[22]PCB 20
[23]PCB 20
15 There have been other medical problems the plaintiff has suffered including very disturbing mental or behavioural symptoms. On all the evidence, I accept his affidavit evidence only two months ago that the spinal injuries, being principally his neck, together with consequential headaches and radiation into the shoulders “…have severely affected my employment and my domestic, recreational and leisure pursuits”.[24]
[24]PCB 21
16 The constancy and severity of the pain in his cervical spine he suffers now could not be better summed up than in his own words, which I accept:
“I am in pain every day. It stays at about 4 out of 10 for most of the day, but gets as bad as 10 depending on what hurts most that day. I get headaches 2-3 times per day, 30-40 seconds at a time, enough to stop me from doing whatever I am doing. The pain in my neck radiates down into my shoulders. If I move my right shoulder in a particular way, it is excruciating”.[25]
[25]PCB 21
17 Finally, he despondently summed up his situation that immediately follows what he said about the neck pain and consequential radiated pain into the shoulders and headaches:
“I have been going through this for nearly 7 years now. I have been in the same rut for so long that it almost seems normal to me”.[26]
[26]PCB 21
18 I had the advantage of hearing and observing the plaintiff being cross-examined over three days. It was a longer period than is usual in this jurisdiction. He has a very limited memory for detail. There were some apparent inconsistencies between what he said in Court and what was supposedly said to doctors but in the end, he could barely recall what he said to doctors or even remember the doctor at times. I found he was a simple man who was genuine and well-motivated. He was rather stoic about his lot, if anything. His general practitioner, Dr Lahanis, said he was not a complainer.[27] He kept working in pain for over six-and-a-half years from September 2008. He has coped with difficulties, in particular with mental health, with regard to personal, marriage and work issues in his life before the accident. His mental health had needed treatment from a number of practitioners prior to the accident and he availed himself of it. I accept the plaintiff’s evidence. His credit remained unimpeached on any relevant issues.
[27]T250
19 Some health problems after 20 September 2008 have arisen that were related to the accident, and some not. For example he had a minor wrist problem in 2009 and a low back problem in 2010.[28] The constant, which I accept, has been pain in and radiating from the upper spine that followed his head smashing the windscreen. In my opinion, that pain on its own is a very considerable long-term consequence that satisfies the test of “serious injury”.
[28]PCB 14, DCB 97-98, DCB 78
20 Clear though it is that he has been suffering a great deal of mental and behavioural disorder symptoms through the years both before and since the accident, there is sufficient evidence of the organically-based spinal pain and consequential headaches to make a detailed disentangling exercise unnecessary. I find the cervical spine problems are physical in origin and remain so. Adverse mental reactions have just added to his overall difficulties. In time, he has developed pain in other areas such as his hips and knees, but there is clearly a non-organic element to a number of these. His TAC Claim Form signed on 21 October 2008 listed his physical injuries as neck, nose, facial bones, eyebrow facial lacerations, headache and various pain throughout torso.[29] The principal organic injury was clearly to the upper spine or neck area. It has remained so. When he went off work in April 2015, torso pain was still mentioned as affected by his work.[30]
[29]PCB 182
[30]DCB 99-100
21 That neck pain has persisted unabated now for over seven years. Medical opinions differ but there was probably also some minor insult to the low back but not of major impact. The fact that other areas are now also the site of pain, probably of psychological or non-organic origin, does not diminish or take away from the constant cervical spine symptoms I accept are still the major source of his pain and it is organically based and long term.
22 The plaintiff was cross-examined at length about his previous health issues and post accident. He was taken to years of clinical notes and reports. Topics included his mental health, previous employers, marriage problems as well as WorkCover claims for low back and stress.[31] It is beyond dispute he has suffered a minor low back problem, left shoulder and a wrist injury in addition to the injuries from the accident but on all the evidence, they have not caused any long-term or disruptive consequences in regard to work and life generally.
[31]DCB 97
23 His depression and anxiety were obviously problems, especially from about 2003 onwards, that needed treatment including referrals to specialists and medication. In fact the clinical notes show a script for antidepressants was given in the month before the accident.[32] On all the evidence, these other pre and post-accident problems had no significant impact on his capacity pre-accident to work full time, complete courses, enjoy sport and live a normal life helped by the medication.
[32]DCB 82
24 No adverse effect on his credit was established in cross-examination. The plaintiff readily agreed with what he could remember when put to him about years now long past. Often he could not remember, and at times was compliant in agreeing with matters put, that it was obvious he had only the vaguest recall. He agreed at times in about 2010 and 2013, the neck was not the subject of complaint but at other times it was.[33] I found him at all times a genuine and honest witness who did not have a good memory. He was candid without exaggeration.
[33]DCB 69 and 75
25 Over 40 pages of social media, Facebook and Twitter messages were tendered.[34] He was asked many questions about them. Most were nonsensical and probably were written when the plaintiff was drunk or on the way to being drunk. Constantly in this jurisdiction social media extracts are tendered. They often carry no real probative value regarding relevant facts nor influence credit. That is the case here.
[34]DCB 105-113, 146-177
26 It is obvious that photographs, some as old as 1999, and quite inane comments are posted just to try and be funny or provoke a comment from someone or other. The plaintiff said it was a poor attempt to get someone to “talk to him”. The experience in this case and the constant tender of this sort of material in court books in this jurisdiction tends to reinforce that is all these extracts show. That is, they are quite a sad attempt to look attractive, busy, important or good fun. I did not find these documents bore any real relevance to the issues in this case.
27 It is apparent that his present situation is rather desperate with widespread pain suffered in many areas of the body that reflect a good deal of non-organic pain. The psychological reaction obviously became a more overwhelming factor in his present symptomology in time. The fact there are widespread pain areas does not detract from the fact he still suffers constant organic neck pain with radiating shoulder and headache symptoms. It is a consequence on its own that is “very considerable”. His worsened mental health has just added to that constant physical pain still continuing for over seven years since its onset.[35]
[35]PCB 19
28 It is noteworthy, and it is uncontested evidence, this man played senior football until he was forty-two years old in 2006. He was also a fast bowler, playing cricket until he was thirty-eight or thirty-nine years old. These activities are consistent with the probabilities that he was a man who was in good physical health and had a strong, mobile spine prior to the accident. There was no impediment to a very vigorous sporting life and full-time work. I do not need evidence to be satisfied there are few sporting activities that put greater demands on the spine than fast bowling. At times, he was also driving daily from Bendigo to Melbourne to work for Chubb. At other times, he was working full time and studying in a course. He also played social golf at times, swam and rode a pushbike. I accept the evidence points to a man suffering no problems of significance with his spine prior to the accident, though he did have mental and emotional stresses and symptoms that required treatment that enabled him to cope.
29 Dealing with the medical evidence of the treaters, it starts with The Alfred hospital report. It recorded a closed head injury and facial laceration and noted CT scanning of the face and cervical spine. No abnormality was shown but the report is consistent with concerns about the head and cervical spine by hospital staff.[36]
[36]PCB 34
30 The general practitioner, Dr C Lahanis, wrote to the TAC on 24 May 2010. He said that his patient, since 2007, came in on 16 October 2008 regarding the accident. He noted two 10 x 15-centimetre indentations in the windscreen, with a closed head injury resulting, together with a fractured nose and multiple facial laceration, leading to permanent scarring. He recorded two cervical vertebra factures on MRI at The Alfred, requiring analgesic and osteopathic. He said in his oral evidence that the two-fracture diagnosis came from the hospital but when shown the scanning, he conceded there were no fractures.[37]
[37]PCB 36, T166
31 The relevant physical diagnoses included soft-tissue neck injury whiplash caused solely by the accident with no pre-existing history. Panadeine Forte was prescribed as a strong analgesic, as was Mobic, a non-steroidal anti-inflammatory.[38] The doctor also recorded aggravation of pre-existing depression and anxiety. Team care arrangements were made to manage the various conditions, but “…the main goal of this care plan is reduce headaches, neck and back pain secondary to motor vehicle accident in 2008”.[39]
[38]PCB 37
[39]PCB 35B
32 In his final report in July 2015, the general practitioner said the patient “continues to suffer with pain and stiffness and painful reduction of range of movement” with respect to the neck injury. The doctor said it interferes with his ability to drive, and thus affects his capacity as a patient transport driver. Also neck spasms and stiffness interrupted his sleep.[40] Dr Lahanis also recorded continuing low back pain related to the accident. In his oral evidence, he went away from this in regard to causation with respect to the low back while being adamant about the cervical spine whiplash.[41]
[40]PCB 38
[41]T166, 242-243
33 Dr Lahanis referred the plaintiff to Dr Clayton Thomas in 2014 for a team management approach to the pain and psychological problems. He also gave a referral for physiotherapy in January 2015. This is plainly consistent with ongoing organic spinal pain, whatever the additional psychological symptoms. He provided a gloomy prognosis, given the accident was now about seven years ago:
“Given the duration that has passed since the accident and the persistence of the abovementioned symptoms which have stabilised without any steady significant deterioration or improvement, I believe it is safe to say that the injuries described above as well as their severity and level of debility is likely to be permanent.”[42]
[42]PCB 39
34 In the witness box, Dr Lahanis confirmed the anti-depressant prescription in August 2008, a month before the accident. He recorded, on 8 January 2009, that ever since the accident, there was increasing frequency and severity of headaches in the temples, behind the eyes, towards the occiput, with associated neck stiffness.[43] He also confirmed from the notes that he referred the plaintiff for PTSD symptoms on 6 August 2009 due to a “severe motorcar accident on 20 September 2008”.[44] He also pointed out, when taken through the notes, an increase in the anti-depressant medication in January 2010 and the diagnosis of PTSD.[45] It was an increasing problem for his patient from the accident after the start of 2010.
[43]DCB 80
[44]PCB 35
[45]DCB 77
35 The general practitioner’s September 2009 Management and Team Care Plan was repeated in 2012, and both advised regular general practitioner visits, osteopathy, and analgesic medications for the spinal problems.[46] In Court, he said he produced a further care plan in January 2015 but he did not have a complete copy of it however it was a further referral for musculoskeletal spinal problems.[47] This time, physiotherapy for neck, back, and shoulder pain, rather than osteopathy, was referred by the general practitioner. Among other notes of importance was one that the neck was getting worse as at 21 December 2011 and Mobic was prescribed.[48]
[46]PCB 35C–D and 35E–F
[47]PCB 35G
[48]DCB 72
36 It was clear from the general practitioner’s oral evidence that the computer-driven notes record mostly the major problem the patient presents with. Accordingly, the attendances when the neck is not recorded do not, on the probabilities, mean it was not mentioned but rather it was, in all likelihood, not the main reason for the attendance. The patient has clearly not complained regularly about neck symptoms as the main problem but the notes over seven years demonstrate its continuance.
37 There had been no complaint of neck pain before the accident, according to the general practitioner. Notes of an assault in January 2008 were read to the Court, but it led to short-term upper body injuries only. Through 2012 to 2015, he continued to treat the plaintiff for neck pain, pain management, and PTSD, as well as other mental health issues. There were no referrals to orthopaedic or specialist neurological practitioners for an opinion by the general practitioner. He mentioned times in 2010 and 2013 when the neck was not the subject of complaint.[49]
[49]DCB 69 and 75
38 Notes confirm the neck giving more trouble at certain times than other times but there are consistent references to its presence. For example in December 2011, the notes record the neck “getting worse” and symptoms are recorded “…ever since the mca, never before head smashed into windscreen”.[50] I must judge the consequences now, and another general practitioner, Dr O Hanna, recorded on 20 April 2015 “…neck pain for many years causing ongoing headache”.[51]
[50]DCB 72
[51]DCB 64C
39 The last attendance on Dr Lahanis was mid 2015 before the plaintiff moved back to Bendigo.[52] That last note recorded:
“Persisting neck pain and stiffness affecting ability to turn head driving affects sleep and wakes stiff spasming neck muscles also randomly through the day.”[53]
[52]DCB 64B and C
[53]DCB 64B
40 He also recorded sharp stabbing debilitating headaches several times a day at that time. Clearly, after many years, the ongoing neck symptomatology is of very major proportions. The general practitioner had cleared the plaintiff to return to premorbid duties back in September 2008, but that optimism was clearly unfounded, as time and his own clinical notes have demonstrated.
41 The general practitioner’s evidence supports an ongoing painful neck with occipital headaches more than seven years after the accident, still requiring active treatment as late as mid 2015. It is an organic injury. A further MRI scan of the neck was requested.[54] Further radiology did take place on 4 June 2015 and in the report back to Dr Lahanis disc protrusions at C3-4 and C5-6 were recorded.[55]
[54]DCB 64B
[55]PCB 31
42 I accept the general practitioner’s evidence, both in his notes, reports and oral evidence, as supporting my finding of pain and stiffness being ongoing consequences of the impairment of the cervical spine that could be fairly described as “at least very considerable”. He did not agree in oral evidence that the low back symptoms were caused by the accident but had no doubt about the neck.[56] In Court, Dr Lahanis said he always deferred to specialists.[57] The relevant specialty in regard to the neck lies in orthopaedics.
[56]T242-243
[57]T246
43 Dr Clayton Thomas saw the plaintiff on four occasions between November 2014 and May 2015 for treatment. He found the patient cooperative, with widespread tenderness in a large number of areas of the body, together with disabling headaches. Stress, depression and overuse of alcohol were very much at the forefront of what Dr Thomas seemed to be reporting on in 2015 as his advice on treatment was sought.[58] He referred the plaintiff to the Victorian Rehabilitation Centre for Multidisciplinary Team Assessment towards a pain-management program.[59] Diagnostically, he thought the plaintiff suffered from “widespread pain since the accident on 20 September 2008”.[60]
[58]PCB 79–84
[59]PCB 82
[60]PCB 83
44 The report does not assist greatly, as Dr Thomas does not report very specifically about the areas of pain, but speaks of a general widespread pain complaint that seemed to be partly physical but predominantly non-physical in terms of what he was presented with. I have not heard from Dr Thomas by way of explaining his views. As a pain specialist, he was treating the overall patient and not deciding a serious injury application. There is no suggestion of any lack of genuineness, just an emphasis by Dr Thomas seemingly more on the psychological import than the organic, but I do not read his report as in any way being dismissive of the organic injuries.
45 The present general practitioner is now Dr Regina Clark after the plaintiff returned to live in Bendigo in mid-2015. She prescribed several painkillers for his “chronic pain” as well as the psychiatric problems.[61] She did not furnish any opinions in her two brief documents, but clearly pain persists.
[61]PCB 198–199
46 The plaintiff also saw a Dr Chan in Bendigo at times, but Dr Chan was his original general practitioner pre-accident and his involvement in treatment following the accident has been virtually nil.[62]
[62]PCB 195
47 I accept the body of evidence from the treaters supports a finding of ongoing neck pain still requiring medication and treatment. That evidence supports my finding of a cervical spine impairment that has caused a very considerable consequence in terms of pain, still present more than seven years since the accident.
48 The plaintiff’s medico-legal evidence commenced with the orthopaedic surgeon, Mr Peter Moran, who first saw the plaintiff in September 2009. He also had the considerable advantage of seeing the plaintiff and reporting five-and-a- half-years later, in July 2015. Both reports are very clear, and I accept them.
49 In 2009, Mr Moran recorded that the neck pain referred into the right shoulder, and that the headaches were occipital. The report stated:
“I found no evidence of exaggeration or of abnormal illness behaviour.”[63]
[63]PCB 151
50 Significantly, Mr Moran recorded the objective sign of symmetrical paravertebral muscle spasm. Restricted neck movement with provocation of pain was also noted, while the lumbar spine examination was closer to normal. He found permanent AMA percentage impairments at both the cervical and lumbosacral levels. He alone among the doctors gave some analysis of the accident in terms of the forces:
“Mr Grinham was involved in a high speed, high energy transport accident, this resulting in being subjected to marked deceleration forces, along with angular and rotational stresses particularly on his neck but also on his lower back.”[64]
[64]PCB 152
51 His view was:
“I considered your client to have a genuine and significant degree of functional impairment of the neck and lower back, but at this stage there is no evidence of neurological impairment.”[65]
[65]PCB 153
52 Mr Moran thought the collision would accelerate the degenerative process in the spine and may curtail physical work capacity. The –
“… occipital frontal headaches are almost certainly a referred symptom from the upper cervical spine.”[66]
[66]PCB 153
53 The condition, in his view, had substantially stabilised.
54 Nearly six years later, Mr Moran had the benefit of seeing the plaintiff again in July 2015. He recorded:
“The neck pain was reported as the most distressing symptom and is present 24/7.”[67]
[67]PCB 154
55 It radiated into the shoulders, and some lower back pain persisted. As he had noted six years earlier, Mr Moran again found the man depressed, but within “that framework I found no evidence of exaggeration nor of abnormal illness behaviour”.[68] Mr Moran’s opinion, which I accept, was that:
“Mr Grinham has intractable neck and back pain and right shoulder pain.”
[68]PCB 155
56 He ended by stating rather emphatically:
“I would consider that this gentleman has suffered significant structural injuries to the neck and back on a background of degenerative change that had caused him relatively mild symptoms prior to the transport accident, and had not in any way inhibited his ability to maintain full-time employment.”[69]
[69]PCB 156
57 Mr Moran also commented that the plaintiff had shown significant motivation in maintaining employment in the years since the accident. He thought the condition had deteriorated to the point where the plaintiff was unlikely to return to work. It was stable.
58 I accept all the opinions Mr Moran expressed about the cervical spine impairment. He was placed best of all orthopaedic specialists in this case to make a proper assessment of the plaintiff over almost six years. I find Mr Moran’s views support a finding that the plaintiff has suffered a “serious injury” with respect to the impairment of his cervical spine.
59 Mr Kevin King, orthopaedic surgeon, also saw the plaintiff twice, firstly in early 2012 and over two years later, in July 2014. In the first report, he thought damage to the discs in the cervical and lower back had occurred, along with ligamentous structures. These injuries explained the spinal pain and its persistence.[70] He also said:
“Although there is an element of depression and anxiety present I can detect no exaggeration.”[71]
[70]PCB 151
[71]PCB 142
60 Mr King said the plaintiff was strongly motivated as to work. He would continue to suffer neck and back pain. Mr King found a permanent AMA percentage impairment of the spine.
61 When Mr King saw the plaintiff in 2014, his opinion was basically unchanged after correcting some matters largely of history. Mr King said it was “an acute injury to the cervical spine” with damage to discs and ligamentous structures at multiple levels. The low back injury he referred to in less serious terminology, but nevertheless accepted there had been insult to the thoracolumbar areas. Clearly, his opinion was that the plaintiff’s problems were basically in the cervical region. He found the plaintiff to be “a sensible well-motivated man, whose condition has stabilised”.[72] Again, he found no evidence of exaggeration at this second examination.
[72]PCB 158
62 I accept Mr King’s medical opinions about the neck and his appraisal of the plaintiff as a well-motivated genuine man without exaggeration. Mr King’s evidence supports my finding of “serious injury” in terms of the long-term cervical spinal impairment.
63 The defendant sought reports from three orthopaedic surgeons. They all suffered the disadvantage of only seeing the plaintiff on one occasion. Nevertheless, they all seemed to accept an organic cervical spine injury.
64 Mr Rodney Simm saw the plaintiff in 2010. He found him cooperative at examination.[73] He diagnosed a cervical spine injury that was an unresolved soft-tissue injury and possibly an unresolved aggravation of pre-existing degenerative pathology at C5‑6. He thought the neck symptoms relatively mild, and conservative treatment by way of analgesics was appropriate. He still gave a permanent AMA percentage impairment of the cervical spine, so it was clearly an organic permanent percentage loss he was assessing.
[73]DCB 5
65 Mr Simm noted the psychological impact of the injury that he thought was profound and needed treatment.[74] While he thought the neck symptoms were mild, Mr Simm agreed:
“The cervical spine injury would probably prevent him from undertaking unrestricted heavy manual work.”[75]
[74]DCB 6–7
[75]DCB 6
66 He thought the injuries were stable. I read these as comments about an organic neck injury.
67 Mr Michael Fogarty, in August 2014, diagnosed a soft-tissue injury to the neck, as well as the facial and head injuries.[76] He said neither pre-existing disease or injury nor post-accident disease or injury influenced the position. I agree with that comment. He found the prognosis good, but seemed to agree with the suggestion that the injuries interfere somewhat with the plaintiff’s domestic and leisure activities. No other treatment needed to be considered, and the treatment and medication provided had been appropriate, he thought.[77] He did not see the plaintiff again.
[76]DCB 42
[77]DCB 43
68 Mr Michael Dooley also only saw the plaintiff once, and that was in August 2015. As with Mr Simm and Mr Fogarty, there was no criticism of the plaintiff’s presentation at examination or genuineness. He found restriction of cervical spine motion. Mr Dooley diagnosed a soft-tissue cervical spine injury involving musculoligamentous damage and aggravation of degenerative disc disease. The plaintiff reported ongoing neck pain, but also “now has widespread pain throughout his body”.[78] Mr Dooley clearly felt there were psychological issues at play, as the level of pain pointed to these features on top of what he seemed to accept was organically-based neck pain. He accepted ongoing symptoms from the soft-tissue neck injury, but much of the presentation in August 2015 was due to the psychological condition.[79]
[78]DCB 48
[79]DCB 49
69 From an orthopaedic point of view, Mr Dooley accepted there was ongoing cervical spine pain and the plaintiff would find some difficulty with heavy domestic activities. He would not expect the plaintiff to be able to engage in active impact leisure pursuits. These comments are in the context, as I read them, of organic orthopaedic injury. The injuries were stable.[80]
[80]DCB 49–50
70 Without hearing from any of these three surgeons who reported to the TAC, I read their reports as not criticising the genuineness or reliability of the plaintiff, as accepting organic injury to the cervical spine, together with a psychological condition coming in on top of the physical injury. While the width and extent of the symptoms are now added to by the psychological effects, the surgeons are all of the view the organic impairment is still productive of symptoms.
71 Neurologist, Professor Stephen Davis, also reported to the TAC in December 2010. He found a permanent AMA percentage impairment for the cervical spine injury, but no organic pain damage.[81] He saw a man with severe depression which appeared to have been much worse after the accident.[82] He has not seen the plaintiff for five years.
[81]DCB 157N
[82]DCB 157O
72 I do not agree with the defendant that the plaintiff’s back complaints lead to a disentangling exercise between it and the neck being required. There is a strong body of medical evidence and from the plaintiff of a distinct cervical spine impairment causing neck pain and radiated pain into the shoulders as well as occipital headaches. This is an impairment quite localised and separate from his low back symptoms. Symptoms discrete to the neck have been recorded by health practitioners from the moment when an ambulance officer noted: “spinal immobilization cervical collar type stiff neck, cervical collar short” together with pain in the neck. [83]
[83]DCB 62
73 Then the Alfred Hospital focus was on the head and neck.[84] The first visit to the gp on 16 October 2008 had the same focus. The TAC claim form on 21 October 2008 is similar in emphasis on the neck.[85] When one goes up to the last attendance on a treater, almost 7 years later in mid 2015, spinal complaints are still all to do with the neck.[86]
[84]PCB 81-82
[85]DCB 88
[86]DCB 64 B and C
74 In my opinion there is no disentangling exercise required between the neck and low back nor with respect to other sites of pain. The plaintiff has clearly proved a constant neck problem that is still causing very considerable consequences on its own, as it did from the outset.
75 I reject the submission that the neck injury has resolved. One needs to look no further than the attendance on Dr Lahanis in mid 2015 when further radiology was sought and back to January 2015 when a third care plan was issued. The main goal of the plan was to “reduce headaches, neck and back pain”.[87] I also disagree there was any relevant pre existing neck condition. A reference to neck appeared in the Dr Lahanis’ notes. That was in January 2008 in the context of an assault when he was principally injured in the back with some arm grazes. The neck is never mentioned again until the accident attendance. There is just no evidence of any ongoing impairment or symptoms at the time of the accident to be disentangled.
[87]PCB 35 F and G
76 Viewing the evidence overall, I am not satisfied an ongoing low back injury was suffered in the accident but the long-term organic cervical spine impairment has been proved as a “serious injury”.
77 A large number of reports from psychologists and psychiatrists have been tendered. I do not propose dealing with them in any detail. In view of my finding the plaintiff has discharged the onus in regard to the paragraph (a) spinal impairment, there is no need to comment further on the paragraph (c) claim. It just remains to say that there has been a clear aggravation of pre-existing depression and anxiety, together with a new element of PTSD as a result of the accident, but there is no necessity to discuss that claim any further. Similarly, I will not deal with the doctors engaged to investigate any organic brain injury.
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