Hizak v Transport Accident Commission

[2015] VCC 821

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-11-01753

JOSIP HIZAK	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	1 and 2 June 2015
DATE OF JUDGMENT:	23 June 2015
CASE MAY BE CITED AS:	Hizak v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2015] VCC 821

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:             Damages – transport accident – serious injury – impairment to the cervico/thoracic spine and right shoulder – psychiatric impairment

Legislation Cited:     Transport Accident Act 1986, s93(4)(d)

Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Richards v Wylie (2000) 1 VR 79; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; De Agostino v Leatch & Transport Accident Commission [2011] VSCA 249; Petkovski v Galletti [1994] 1 VR 436; West v Pac-Rim Printing Pty Ltd [2003] VSCA 68; Papamanos v Commonwealth Bank of Australia [2013] VCC 1491

Judgment:                 Applications dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr B W Collis QC with Mr A D B Ingram	Melbourne Injury Lawyers
For the Defendant	Mr J Ruskin QC with Ms V Nadj	Solicitor for the Transport Accident Commission

HER HONOUR:

1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(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 (“the accident”) which occurred on 13 November 2004 (“the said date”).

2Section 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.”

3The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a) – “a serious long-term impairment or loss of a body function”. 

4The body function pursuant to subparagraph (a) relied upon by the plaintiff is the cervico/thoracic spine and right shoulder.

5The 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.

6In 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 comparisons with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’?” – see Humphries & Anor v Poljak.[1]

[1][1992] 2 VR 129 at 140–1

7The 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.[2]

[2](2000) 1 VR 79

8The plaintiff also brought an application pursuant to sub-paragraph (c) claiming a severe psychiatric impairment.

9The judgment of the Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of “severe”.  Brooking JA held, at 846, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[4] 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”.

[3][1998] 3 VR 833

[4](1995) 21 MVR 314

10Winneke P, in Mobilio,[5] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the 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.)

[5]Mobilio v Balliotis (supra)

11      I accept that a Chronic Pain Syndrome can result in an impairment under subparagraph (c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the “severe” criteria of a claim under definition (c) – per Ashley JA in Veljanovska v Socobell Oem Pty Ltd.[6]

[6][2005] VSCA 227

12The plaintiff swore two affidavits and was cross-examined.  He also relied on an affidavit sworn by his housemate, Bozana Janosevic, on 19 May 2015.  Both parties relied on medical reports and other material which was tendered in evidence.

The Plaintiff’s evidence

13The plaintiff’s most recent affidavit of May 2015 repeats most matters deposed to in his earlier affidavit sworn on 18 April 2011.

14The plaintiff is presently aged seventy-two, having been born in Croatia in January 1943.  He resides with a housemate, Bozana Janosevic, who is some years his senior.

15After about six years of schooling in Croatia and then working as a bricklayer, the plaintiff undertook compulsory military service for eighteen months.

16The plaintiff migrated to Australia in 1970 and worked for a period of time as a bricklayer. Thereafter, he worked as a storeman for a wool store for about ten years, during which time he suffered a lower back injury (“the work injury”).

17In cross-examination, the plaintiff confirmed injuring his back while working in the wool store, and the mechanism of that injury.[7] 

[7]Transcript “T” 13

18Thereafter, the plaintiff returned to work on lighter duties for about three years, including working in a butcher shop and driving a forklift for a number of hours a day.  However, the plaintiff could not find a position which was available on a longer term basis, and in 1985, he went on a Disability Support Pension (“DSP”) until the age of sixty-five, when he commenced receipt of an Aged Pension.

19      The plaintiff confirmed having a problem with his eyes in 1988 and making a claim at that time.[8]  He was then a little bit dizzy and nervous, as he told Dr Chin in 1988 and 1990.[9]  The plaintiff explained he went on a DSP because of his eyes and a little bit of back pain.[10]

[8]5 March 1998

[9]T16

[10]T17

20Before the said date, the plaintiff was able to remain reasonably active, engaging in gardening, bushwalking, fishing, hunting, and kicking a soccer ball with his friends.

21The plaintiff was also involved socially with a group of Croatian families he came to know through his sister. They visited each other’s homes and undertook other social activities such as picnicking.

22      The plaintiff deposed he felt that over the years, he was able to adequately manage any symptoms of lower back pain through occasional physiotherapy and pain-relieving medication.

23      Prior to the accident, the plaintiff thought he was taking Panadol or Panamax for his back, and he had had some massage and injections.[11]

[11]T19

24Until about 2008, the plaintiff’s longstanding general practitioner was Dr Appan in Brooklyn.

25The plaintiff understands that Dr Appan obtained an x‑ray of his right shoulder in October 2002.  He referred the plaintiff to an orthopaedic surgeon, Mr Pianta, after a fall at home some three months earlier, following which he had right elbow and forearm pain.  The plaintiff could not recall attending Mr Pianta, nor could he recall telling him he had trouble using his right hand and arm when he saw him in January 2003.[12]

[12]T27

26The plaintiff also understands that he was referred to Mr Love, orthopaedic surgeon, in 2004.  He could not recall attending, but remembered Mr Love’s name. He understands that there is a note of a history of left shoulder pain since a fall, and that an ultrasound suggested a partial tear. 

27The plaintiff also understands other documents indicate that in 2004, he also saw a physiotherapist, Mr Yeung, in relation to left shoulder impingement.  The plaintiff did not remember having problems with his posture, as noted by Mr Yeung at that time.[13]

[13]T28

28      On the said date, the plaintiff’s vehicle was stationary at traffic lights in Brooklyn when a car suddenly collided with its rear end (“the accident”), causing $3,500 to $4,500 damage. 

29Following the accident, the plaintiff was immediately aware of pain in the base of his skull, neck and between the shoulder blades and in his chest.  He went to his friend’s place, where he had been heading for lunch, and although he stayed for an hour, his pain and dizziness worsened, and he went home.

30The plaintiff subsequently attended Dr Appan, who referred him for x‑rays, but he then told the plaintiff he did not require treatment.  However, the plaintiff continued to experience neck and right shoulder pain, radiating up to his head.

31The plaintiff understands there was an x‑ray of his right shoulder and neck obtained by Dr Appan in November 2004 which showed no specific abnormality, and there was an ultrasound that showed some irregularity in the supraspinatus tendon which was thought to be consistent with a tear.

32Dr Appan referred the plaintiff to a neurosurgeon, Dr Poon, who arranged an MRI scan of his cervical scan.  Dr Poon later told the plaintiff there was a minor problem with one of the discs but no surgery was required to treat his neck condition.

33The plaintiff had chiropractic treatment at Civic Parade Medical Centre in Altona, in particular from April 2005 to the end of 2007, where he saw Dr Gu on a reasonably regular basis.  During that time, the plaintiff was experiencing pain in his neck and shoulders, accompanied by headaches and dizziness, as well as some low back pain.  He understood Dr Gu diagnosed him as suffering from chronic multiple muscular and facet joint strain.

34The plaintiff continued to be troubled with ongoing neck pain, and pain extending particularly down the right side and, to a lesser extent, the left of his neck.  There was pain into the top of his right shoulder and shoulder blade, as well as occasional numbness in his right arm.

35The plaintiff was also suffering from low back pain with radiation into his right hip, as well as some weakness in his right leg.

36Dr Appan was prescribing a variety of medication, including Panamax for pain, as well as Stemetil for dizziness. The plaintiff was also prescribed sleeping medication.

37Dr Appan referred the plaintiff to an orthopaedic surgeon, Mr Li, who sent him for an MRI scan of his neck and right shoulder on 1 March 2007.  When the plaintiff returned to Mr Li after these investigations, he advised he did not believe right shoulder surgery was warranted.  He referred the plaintiff for an orthopaedic assessment with Mr Hunt, orthopaedic surgeon, in relation to his spine.

38After the plaintiff had seen Mr Hunt in about mid-2007, he advised the plaintiff he was suffering from arthritis in his neck, which was causing neck pain and referred upper limb pain. He suggested a neurologist, Mr Hjorth, assess whether there was any nerve entrapment.  The plaintiff understood that nerve conduction studies did not demonstrate this problem.

39When the plaintiff saw Mr Hunt in September 2007, he suggested a referral to Dr Muir at the Barbara Walker Pain Institute (“the pain clinic”) for pain management.  Mr Hunt advised surgery with respect to the plaintiff’s spinal condition would only be contemplated if there was a failure of conservative management.

40In the meantime, before attending the pain clinic, the plaintiff experienced particularly severe neck pain, which led him to attend the Emergency at Williamstown Hospital.  There, he had a CT scan of his cervical spine.

41The plaintiff was initially seen by Dr Kim at the pain clinic in mid-2008.  The plaintiff was then complaining of persisting neck pain radiating to his head and also his right upper limb in particular, as well as some symptoms in his lower back and lower limbs.

42Dr Kim trialled the plaintiff on Pregabalin, which he took for a short time, but found he did not derive any lasting assistance from it.

43Dr Kim also recommended referral to a Croatian-speaking psychologist, but through until early 2010, the plaintiff attended the pain clinic, undergoing physiotherapy and psychological counselling.  He was assessed as suffering from depressive post-traumatic symptoms and symptoms of a Pain Disorder.

44The plaintiff believed he was commenced on anti-depressants at that time, including Aropax. 

45When seen by Dr Muir on 22 October 2008, the plaintiff was assessed as having a decreased sensation of power in his right arm.  Dr Muir continued the use of Pregabalin, and also Tramadol for pain flare-ups.

46In May 2009, the plaintiff started seeing a new general practitioner, Dr Ilic, in North Altona, some time after Dr Appan ceased practising.  The plaintiff was then suffering from persisting pain, and it was thought that the high level of pain was triggering psychological symptoms.

47Accordingly, the plaintiff was referred for counselling to a psychologist, Marianne Love, and continued to see her or another practitioner, Ms Chua, at the same clinic, through until about 2013.

48Because of persisting problems, Dr Ilic referred the plaintiff back to Mr Hunt in 2013. He organised an x-ray and ultrasound in April that year.  He also organised an MRI scan of the cervical spine on 21 May 2013.

49When the plaintiff returned to Mr Hunt in June 2013, he advised he could not be sure surgery would improve the plaintiff’s level of symptoms and that the plaintiff should continue with pain management techniques as best he could.

50The plaintiff has continued under Dr Ilic’s care on an ongoing basis.  His present medication regime is Panamax for pain, two to six tablets a day, depending on his pain level.  He also takes 75 milligrams of Lyrica in the morning and 150 milligrams at night.  In the past, the plaintiff has also used medications including Aropax as an anti-depressant.

51The plaintiff’s pain is constant but variable.  He notices it mostly in his neck and particularly down through the right side of the neck into the right upper limb and down as far as his hand.  The left-sided symptoms are not as bad.

52In examination-in-chief, the plaintiff confirmed he is right handed and he can move his right arm 75 to 80 degrees.[14]

[14]T13

53The plaintiff also notices lower back symptoms extending down on occasion through his right buttock into his right leg.  He has pains down his right leg which are “like fire” and he also gets cramps in that leg.

54The plaintiff also has headaches and a little bit of chest pain.[15]

[15]T31

55The plaintiff believes that as a result of the constant variable pain he suffers, he also developed psychological symptoms which he understands are related to the accident.

56Having regard to the duration of the plaintiff’s symptoms, particularly in his neck and down through his right shoulder and upper limb, he believes they are likely to persist permanently.

57The plaintiff finds his sleep is disturbed, and he continues to have nightmares relating to the accident.  His sleep is also disturbed because of his pain.

58The plaintiff does drive, but he is cautious driving.  He avoids driving past the accident scene.

59The plaintiff had another transport accident in September 2014.  It caused more pain, especially in his head, and for three months he had “very high pain”.  He also had pain in the neck and back, and between the shoulders.[16]

[16]T30

60The plaintiff no longer feels physically fit enough for activities he used to enjoy such as bushwalking or fishing.

61      Before the accident, the plaintiff did a bit of watering in the garden, and still does.[17]

[17]T19

62      Prior to the accident, the plaintiff accompanied his friends on shooting trips to Werribee but he did not shoot.

63      Prior to the accident, the plaintiff went fishing on the Altona pier a couple of times a week.  He tried fishing once since the accident but got a headache and felt dizzy and has not fished since.[18] 

[18]T20

64      The plaintiff has about 20 budgies in a large cage at home. Since the accident, his housemate looks after the birds as he cannot help.  Before the accident, he helped a little bit.[19]

[19]T30

65      The plaintiff’s diabetes is not a big deal for him.[20]  He continues to have problems with his eyes.[21]

[20]T21

[21]T29

66Since the accident, socially, the plaintiff’s life has become increasingly restricted.  He is restricted in his ability to sit and stand for prolonged periods.

67The plaintiff walks for exercise.  He does not walk as much as he used to.  He now has neck problems when walking.  He also has problems with his right leg from the hip down.  His leg feels numb.[22]

[22]T29

68The plaintiff has noticed his mood has been affected.  Since the accident, his memory and concentration have been adversely impacted.  He was very sad when his sister and brother died.[23]

[23]T21

69The plaintiff finds he is tearful and has lost his sense of purpose in life.  He takes anti-depressants for partial relief of his symptoms.[24]

[24]Contrary to earlier part of the affidavit, where he said he had taken Aropax in the past.

70The plaintiff also suffers ringing in his ears.  He has undergone hearing and ear assessments, but has been advised that this symptom is unrelated to his ears or hearing, and is likely to be caused by his neck injury.

Lay evidence

71The plaintiff’s housemate and carer, Bozana Janosevic, swore an affidavit on 19 May 2015.  She and the plaintiff have resided together in a non-marital relationship since about 1992.  A deed of agreement between them prior to the accident provided that she paid the plaintiff about $60 a week for her share of household expenses.

72After the accident, the plaintiff began to complain of increasing neck and shoulder pain extending down the right side of his body, and he was prescribed various medications.

73The plaintiff complained of difficulty sleeping, and that had continued over a long period of time.  She had noticed he was uncomfortable with sitting or standing for extended periods.  There had been some depression by reason of his longstanding pain.

74Because of the plaintiff’s circumstances, Ms Janosevic began to attend to more and more of the household activities such as cooking, cleaning and gardening, and she therefore stopped contributing to household expenses.  Given her advanced age, she has family assistance to do the additional household work.  She also assists in transporting the plaintiff to some of his medical appointments when he needs help.

75Ms Janosevic has observed the plaintiff to be in genuine pain, which has persisted despite treatment.  She is also aware he attended the pain clinic, with limited lasting benefit.  On one occasion, she could recall he attended the Emergency Department at Williamstown Hospital because of his neck pain.

76The plaintiff’s lifestyle activities have been considerably interrupted by reason of his injury.  He had stopped working by the time of the accident because of low back problems.  However, he remained actively involved in activities such as gardening and having a social kick of soccer.  He enjoyed fishing and hunting, and also bushwalking.

77Prior to the accident, the plaintiff was also socially involved in the Croatian community.  He helped her, sharing in domestic tasks around the house.  After his injuries, the plaintiff’s capacity to participate in such a wide range of activities has been significantly impaired, and he is now rarely involved in any of those activities, and remains dependent on her to perform domestic tasks.

Investigations

78Dr Appan organised a right shoulder and right elbow x‑ray on 17 October 2002.  It was reported the glenohumeral joint appeared enlocated.  No joint pathology was identified, and there was no indication of a bone or soft tissue lesion.

79On 26 November 2004, Dr Appan organised a cervical spine and right shoulder x‑ray.  It was reported the glenohumeral relationship was normal.  There was no acromio­clavicular joint diastasis.  No rotator cuff calcification was demonstrated, and there was no spurring of the lateral margin of the acromion and no bone injury.

80      The right shoulder ultrasound showed some irregularity at the superior aspect of the supraspinatus tendon.  There was a hypoechoic defect within the supraspinatus consistent with a tear.  It was noted this may be full thickness tear.  There was a little fluid in the subacromial bursa, and the subscapularis and infraspinatus tendons were intact.

81      In the cervical spine, it was reported there was anterior inclination and some reduction of lordotic curve at C5‑6.  No definite disc space narrowing was evident.  Obliques showed anterior osteophytic foraminal lipping at C3‑4 on the right, with foraminal narrowing.  It was noted there may be some anterior foraminal lipping at C2‑3 on the left.  There was some ossification of the ligamentum nuchae at C5 level.

82      Dr Poon organised an MRI scan of the plaintiff’s cervical spine in May 2005.  It was reported there was nominal central disc displacement at C6‑7.  It just contacted the cord.  There was no cord effacement or signal alteration, and no signs of fracture or dislocation.

83      Mr Li organised an MRI scan of the plaintiff’s cervical spine and right shoulder on 1 March 2007.

84      It was reported that there was exit foraminal and central canal stenosis of varying degrees.  There was moderate to severe right exit foraminal stenoses at C3‑4 and C4‑5.

85      It was reported there were tendinopathy changes involving the supraspinatus and infraspinatus tendons, and there was no definite tear.

86      Dr Ritchie at the Emergency Department of Williamstown Hospital organised a CT scan of the plaintiff’s cervical spine on 8 May 2008.

87      It was reported there was mild right C3‑4 facet joint degeneration. There was small paracentral C6‑7 disc protrusion of dubious clinical significance.

88      Mr Hunt organised an MRI scan of the plaintiff’s right shoulder in April 2013 to investigate to cuff pathology.

89      It was reported there was an articular surface tear involving the posterior infraspinatus tendon without retraction of the tendon or the myotendinous junction.

90      Mr Hunt organised x-rays of both shoulders in April 2013.  It was reported there were signs of degenerative change involving the AC joints, more marked on the right.

91      Mr Hunt organised an MRI scan of the cervical spine in May 2013.  It was reported there was multi-level degenerative change of the cervical spine, most severe involving C3‑4, where there was severe narrowing of the right exiting foramen and likely impingement of the exiting C4 nerve root.

Treaters

92      The plaintiff’s general practitioner, Dr Appan, saw him on seventy occasions between 16 November 2004 and 27 February 2008.  He did not report on the plaintiff’s accident injuries.  Dr Appan is now deceased.

93      The plaintiff first saw Dr Gu, chiropractor, on 12 April 2005.  The plaintiff then complained of a painful neck and shoulder associated with headaches, as well as low back pain.  These symptoms apparently started after the accident and had been accompanied by headache and dizziness, and the plaintiff sometimes had nightmares. 

94      On examination, the plaintiff presented with moderately poor posture and there was a moderate loss of normal curvature and range of motion in his cervical and thoracic spine.  There was palpable paravertebral muscle tenderness from the cervical to the lower lumbar spine.

95      Dr Gu thought, as a result of the accident, the plaintiff suffered from chronic multiple muscle strains and facet joints fixation in his upper back and lower back, and deterioration of underlying degenerative changes in the cervical and thoracic spine.

96      The plaintiff was seen intermittently from 12 April 2005 to September 2006 on twelve occasions, and had a gradual improvement.  As of the latter date, Dr Gu thought the prognosis was dependent on the quantity of treatment and rehabilitation, and was limited by his condition’s chronic and underlying degenerative nature.  He noted the plaintiff’s condition then fluctuated quite wildly.

97      In his May 2010 report, Dr Gu noted the plaintiff had not experienced any significant improvement from prior treatments, the last visit being in August 2008.

98      As a result of the accident, Dr Gu thought the plaintiff suffered from chronic moderate pain – spondylosis of cervical spine syndrome deteriorated by whiplash, post-traumatic multiple facet joints dysfunction from cervical to lumbar spine associated with musculo­ligamentous strain, deterioration of underlying degenerative changes in the spine, post-traumatic tear right of supraspinatus, infraspinatus associated with right subacromial bursitis and post-traumatic subsequent insomnia and depression.

99      Results from treatment were limited.  Since late 2006, the plaintiff’s conditions had worsened and fluctuated, and the treatment had only helped him to relieve temporal pain.

100     Dr Gu noted the plaintiff continued to suffer from constant pain, mostly in his right neck, radiating to the shoulder, and associated with tingling and numbness in his right hand, as well as headaches and dizziness, and also some lower back pain associated with weakness in the right leg.  On that last visit, there was some permanent impairment.  Dr Gu thought the plaintiff’s condition would worsen without continuing treatment.

101     Dr Poon, neurologist, reported to Dr Appan in April 2005, having been referred the plaintiff with right arm and neck pain following the accident, and a history of a hernia repair.

102     On examination, there was a full range of neck movement.  The plaintiff’s upper limb examination was unremarkable, except he had some difficulties abducting his right shoulder due to pain.  Dr Poon noted the tear of the right supraspinatus tendon shown on x‑ray and that he had arranged for an MRI scan of the cervical spine, in particular to exclude a right C6 or C5 radiculopathy.

103     On examination following that investigation, Dr Poon noted the scan showed a minor C6‑7 disc protrusion and did not require surgical decompression.

104     Dr Poon reassured the plaintiff there was no evidence of significant disc protrusion.  He thought treatment was essentially symptomatic management with mobilisation, physiotherapy and simple analgesia.  He considered it might be worthwhile also to refer the plaintiff to a rheumatologist concerning steroid injection into the right supraspinatus tear.

105     In a letter of 6 February 2007, Mr Li thanked Dr Appan for referring the plaintiff with residual right neck and right shoulder pain and stiffness, and right upper limb altered sensation.

106     On examination, Mr Li noted the plaintiff demonstrated a diminished range of motion of neck motion in all directions.  There was restriction of shoulder movement with pain and dysrhythm, and mild weakness of the rotator cuff.

107     Mr Li advised he was unsure of the plaintiff’s underlying pathology, but suspected he had a combination of cervical spine degeneration and possible nerve root impingement.  He also may have some rotator cuff pathology or secondary arthritis.

108     Following further investigations, Mr Li noted the CT scan of the neck and shoulder were normal.  The MRI scan of the cervical spine demonstrated right C3‑4 and C4‑5 foraminal stenosis, and the MRI scan of the right shoulder demonstrated tendinopathy of the supraspinatus and infraspinatus.

109     Mr Li thought the plaintiff’s symptoms were arising from his neck and, as such, he would refer him to a spinal surgeon.

110     Following referral of the plaintiff, Mr Hunt wrote to Mr Li in April 2007.

111     Mr Hunt advised that, on examination, the plaintiff had a normal cervical lordosis.  He was tender in the mid-cervical region bilaterally, flexion, extension and rotation were reduced and all movements exacerbated by neck pain but did not give any radiculopathy pain.  There was reduced sensation to light touch in the right upper limb in the C5 to C1 dermatomes, but the left upper limb was normal.  There was no evidence of muscle wasting in the upper limbs.

112     Mr Hunt thought that the MRI scan of the cervical spine showed multiple-level cervical spondylosis, and moderate to severe foraminal stenosis on the right at C3‑4 and C4‑5.

113     Mr Hunt considered that the plaintiff suffered axial neck pain, with radiation into the right upper limb, with MRI evidence of foraminal stenosis at C3‑4 and C4‑5.

114     Mr Hunt advised he had explained to the plaintiff he had arthritis in his neck which may be giving rise to symptoms of neck and upper limb pain.  He thought it would be worthwhile to have him reviewed by a neurologist to determine whether there was any objective evidence of nerve compression in the form of nerve conduction studies for cervical radiculopathy and would refer him to Mr Hjorth in that regard.

115     Mr Hunt reported to the plaintiff’s solicitors in April 2008, noting he saw the plaintiff on 6 September 2007 and viewed nerve conduction studies which excluded carpal tunnel, ulnar neuropathy, and did not show any evidence of denervation of the C5 to C8 innervated muscles. 

116     Mr Hunt subsequently arranged for the plaintiff to see Dr Muir at the pain clinic.  Noting the MRI findings, Mr Hunt advised it was possible that the pain features the plaintiff presented with are consistent with the stated cause, namely the accident.  He noted the plaintiff’s pain symptoms seemed to then be dominating his life and therefore he could not realistically see the plaintiff returning to work unless it was possible to successfully treat his pain symptoms.

117     Mr Hunt believed the plaintiff’s prognosis in terms of recovery from his pain symptoms was relatively poor.  The MRI could explain the plaintiff’s symptoms; however, Mr Hunt had elected for conservative treatment, as he was not convinced surgery would be successful.  He had referred the plaintiff to the pain clinic, and noted it might be possible the plaintiff may need surgery in the future if there was a failure of conservative management.  He thought the plaintiff had received appropriate treatment to date.

118     Mr Hunt wrote to Dr Ilic, having seen the plaintiff again on 4 March 2013.

119     Mr Hunt noted the plaintiff described pain and stiffness in the cervical region for which he took Panadol.  He did not describe a strong radicular component of the pain symptoms; however, they came down over the shoulders bilaterally.  Mr Hunt thought it difficult to determine how much pain was coming from the shoulders themselves – particularly the right, which was more symptomatic – and how much was as a result of referral from the neck.

120     The plaintiff found his normal activities were restricted, and he described pain as mild to moderate, but it could be severe at times.

121     On examination, the plaintiff had a reduced cervical lordosis. There was tenderness over the cervical spine and there was restriction of movement.

122     There was no muscle wasting of the right shoulder, and there was some limitation of movement.  Impingement signs were equivocal, and Mr Hunt could not really assess that due to significant muscle spasm and pain on arm movement.

123     Mr Hunt thought there were axial neck and right shoulder pain symptoms ongoing in time.  He recommend an MRI scan of the neck and x‑rays of the right shoulder to help clarify the pathology.

124     Following examination on 20 June 2013, the MRI scan had been reviewed and Mr Hunt thought it helped to explain the plaintiff’s right-sided axial neck and shoulder pain symptoms, and also possibly pain coming from the occipitocervical region at the top of his head.

125     Mr Hunt confirmed he thought conservative treatment was appropriate in relation to those conditions.

126     Mr Hunt reported again in February 2015, not having seen the plaintiff since the 20 June 2013 examination. 

127     Mr Hunt diagnosed complex presentation with axial neck pain and right upper limb pain.  He thought clinical presentation was consistent with the possibility of foraminal stenosis of C3‑4 and C4‑5, most likely to be causing the plaintiff’s symptoms and documented on MRI.  In addition, at C5‑6, there was also evidence of a pathology with advanced degenerative change at this motion segment, again, with the possibility that this level may also have been contributing to the plaintiff’s symptoms of axial neck and right upper limb pain and impingement syndrome (subacromial bursitis and rotator cuff tendinitis) involving the right shoulder, with clinical manifestations of reduced forward flexion and abduction in central rotation.

128     Given the worsening of symptoms post accident, Mr Hunt thought it possible the axial neck pain symptoms the plaintiff has may have occurred as a result of an aggravation of a pre-existing cervical spondylosis.  He noted the possible diagnoses of impingement syndrome or a frozen shoulder in terms of the shoulder presentation. 

129     Mr Hunt thought it could be very hard to dissect out which pathology was the dominant one with patients with pain in both the neck and shoulder.  However, in the plaintiff’s case, with the presence of a reduced range of motion, restricted motion of the cervical spine, and pathology in the cervical region which matches the symptoms, it was likely that he had dual pathology driving his symptoms. He believed the plaintiff’s symptoms had stabilised. He considered the plaintiff had a reduced ability to perform activities of daily living and a reduced capacity for work and household and domestic tasks.

130     Mr Hunt provided a further report on 1 June 2015, having been provided with Civic Parade Medical Centre records of the late Dr Appan, radiology of the cervical spine of 26 November 2004 and records of the Williamstown Hospital. He was also provided with reports from Mr Love and Mr Pianta pre-dating the accident.

131     Confirming his earlier opinion, Mr Hunt noted that the plaintiff’s history and the plaintiff himself tended to support a previous history of axial neck pain symptoms.  It was more than likely that the symptoms had been aggravated as a result of the accident.  If he had not had the accident, it was unlikely, in Mr Hunt’s view, the plaintiff would have the symptoms of the same severity.

132     In addition, Mr Hunt thought the mechanism of the injury, being a rear-end collision, did not really support development of the rotator cuff involving the right shoulder, but a sudden jolt in a car to a shoulder with pre-existing rotator cuff disease may cause it to become symptomatic as a result of the accident.  Therefore, in his opinion, the plaintiff suffered more right shoulder pain than he did prior to the accident.

133     Dr Kim from the pain clinic wrote to Mr Hunt in July 2008, noting the primary goal for the plaintiff’s attendance was to reduce his pain and better manage his depression. 

134     Dr Kim diagnosed chronic pain and widespread functional impairment, depression and some Post-Traumatic Stress Disorder (“PTSD”) component, with increasing social isolation, and an uncertain aetiology of the pain with possible central sensitisation. 

135     Dr Kim decided to trial the plaintiff on Pregabalin, and recommended he continue with Paracetamol. The plaintiff was referred to the pain clinic physiotherapist, and a suggestion was made that his general practitioner refer him to a Croatian-speaking psychologist.

136     When assessed in March 2009 by Ms Chen, psychologist at the pain clinic, she thought it became clear the plaintiff continued to suffer significant depressive and post-traumatic symptomatology which had led to further social isolation and decline in functioning. 

137     The plaintiff attended the Western Hospital Neurosurgery Department in November 2008.  The neurosurgical Registrar discussed his case with the neurosurgical consultant, Mr Jithoo.  They thought it was most likely the plaintiff had a Complex Regional Pain Syndrome, and would review him after further scans.

138     The plaintiff was reviewed by Mr Jithoo in January 2009.  Mr Jithoo then noted a comprehensive MRI scan of the brain and cervical and lumbar spine was performed, which, apart from showing minor spondylitic changes, was essentially normal.

139     Mr Jithoo advised he had discussed with the plaintiff in detail that, given the duration of his symptoms, and limited MRI features, surgery would not benefit him.  He further outlined the plaintiff should continue with treatment at the pain clinic, and suggested gentle exercise and low dose anti-depressants. The plaintiff was then discharged from the neurosurgery clinic.

140     The plaintiff first underwent physiotherapy at the pain clinic in October 2008. When Dr Muir saw him later that month, the plaintiff was experiencing pain in the occiput of the right neck, with radiation into the shoulder, interscapular area, and right arm, and a numbness of the ulnar border of the right arm.

141     On examination, the plaintiff appeared to have decreasing sensation and power of the right arm not consistent with a discrete anatomical lesion.  He also reported decreased range of cervical movement.

142     The plaintiff made minimal physical progress and presented with considerable distress.  In January 2009, he reported improvement with Pregabalin. The plaintiff used Panadol when there were flare-ups.  He had refused cervical injections.

143     On review in March 2009, the plaintiff was on Lyrica, but a low dose because of the side effects, and he was reporting distressing nightmares and sent to the multi­disciplinary review at the clinic.  That review demonstrated the presence of significant PTSD symptomatology and depression, as well as social isolation secondary to anxiety about leaving home.  Fear avoidance and damage and cure focus were also major themes.

144     At the last review at the pain clinic in early 2010, the plaintiff was finding a new medication, Tegretol, was of some use.  He had been referred to a psychologist and was finding some progress had been made.

145     Dr Ilic took over the plaintiff’s care in May 2009, and first reported in April 2010.

146     Dr Ilic referred the plaintiff to psychologist, Ms Love, due to the severity of psychological problems reported by him, and an anti-depressant, Aropax, was commenced.

147     Dr Ilic thought the plaintiff’s ongoing neck, shoulder and arm pain was mainly neuropathic in nature but had a physical component, with evidence of cervical spine pathology on MRI.  He believed further psychological treatment would be crucial.  He then anticipated definite symptoms which would require pain management, physiotherapy and psychological treatment.

148     Dr Ilic most recently reported in September 2014.  He noted the referral to Mr Hunt due to ongoing symptoms, the 2013 MRI scan and the ultrasound of the right shoulder.  He also noted the referral to Mr Leung, rheumatologist, who agreed with Mr Hunt that a non-operative approach was the best option.

149     Dr Ilic noted the plaintiff had ongoing neck, shoulder and arm pain, with evidence of cervical spine pathology on his MRI scan related to the degenerative process and stenosis of C3‑4.

150     The plaintiff was currently on a combination of oral medications consisting of Aropax, Lyrica and paracetamol. He needed continuous support and reassurance.

151     Dr Ilic thought the plaintiff had really complex and disabling symptoms, noting he had not worked for a number of years prior to the accident.

152     Dr Ilic thought the plaintiff had an underlying degenerative cervical pathology of cervical and thoracic spine which was, to some degree, aggravated by his accident, and that the accident had also had an impact on his mental state.

153     Mr Cory Prout, physiotherapist, of Physiohealth wrote to Dr Ilic in February 2013 thanking him for referring the plaintiff.  He advised that he would seek funding from the defendant for the plaintiff to access the required treatment.

154     Dr Leung, rheumatologist, wrote to Dr Ilic in October 2013 thanking him for the referral, noting the plaintiff was suffering symptomatic multi-level cervical disc disease (most severe at right C3‑4), with supraspinatus and infraspinatus tendinopathy.

155     Dr Leung advised he agreed with Mr Hunt in a non-operative approach to the plaintiff’s chronic pain. In light of the plaintiff’s good response to Lyrica, Dr Leung recommended and prescribed that for neuropathic pain management.  He would recommend referral back to a pain management service locally, which would enable a multi­disciplinary approach to pain management including physiotherapy, hydrotherapy and psychosocial.  He would also recommend ultrasound-guided steroid injection in the right subacromial space and AC joint, which may alleviate some of the plaintiff’s symptoms.

156     Ms Marianne Love, psychologist, reported in October 2010 that she had seen the plaintiff nineteen times since 19 January 2010. He advised he was significantly affected by his pain, and he reported experiencing significant grief and loss concerns.  Sessions had focused on managing his symptoms of low mood and pain levels and management.

157     Ms Love then thought the plaintiff required ongoing treatment, and it was anticipated he would require a further twelve sessions to help him adjust to his current level of physical limitation and managing his pain.

158     Ms Chua, at the same clinic, reported in March 2011, having started to see the plaintiff on 29 January 2011. 

159     During initial sessions, the plaintiff noted slight improvement in pain levels and improvement in the frequency of nightmares relating to the injury.  Despite this, his symptoms continued to significantly impact on his daily activities. 

160     Based on the information provided by the plaintiff, Ms Chua thought the plaintiff presented with symptoms consistent with PTSD and depression.  She considered his progress was likely to be slow, and he should have continuing psychological treatment focusing on improving his quality of life.

Medico-legal evidence

161     Mr Stephen Doig, orthopaedic surgeon, examined the plaintiff on behalf of the defendant in December 2006.

162     Mr Doig noted, at the time of the accident, the plaintiff was not fit and well.  He gave a history of significant low back pain prior to the accident which had been present for many years.  He advised he could not carry or lift.  The plaintiff said he thought the accident might have made him slightly worse, but he was not certain about that.   He had a past history of a hernia.

163     On examination, there was a global decrease in power of the right upper arm and no wasting.

164     Mr Doig concluded that the plaintiff’s neck and shoulder problems could be attributed to the accident, as the plaintiff specifically denied having troubles before then.

165     Mr Doig noted the plaintiff had significant pre-existing and unrelated conditions affecting his current presentation.  There was ongoing back pain prior to the accident markedly affecting his presentation. 

166     The plaintiff advised he had not been improving, and he had had chiropractic treatment for about two years.  Mr Doig thought the plaintiff’s shoulder should be further investigated, and that there were no other forms of orthopaedic treatment then necessary.

167     The plaintiff was examined by John O’Brien, orthopaedic surgeon, on 16 June 2008.

168     The plaintiff then stated he had constant pain over the posterior aspect of his neck, worse on the right than the left.

169     In terms of previous history, the plaintiff told Mr O’Brien he had not worked for ten to fifteen years due to back pain related to a work incident, and had been on a DSP since that time.  The plaintiff said he did not do any housework; however, he remained capable of all activities of daily living, and would dress himself, and he drove.

170     On examination, the plaintiff was noted to move relatively freely, but before the examination, he was reluctant to move his right arm, and demonstrated a variable antalgic right-sided limp.

171     There was a marked reaction to palpation over the posterior aspect of the cervical spine, and significant tenderness over the right trapezius.  There was quite marked reaction to palpation around the entire region of the right shoulder.  There was global weakness in the right elbow, wrist and fingers, and muscles of the right arm, and some restriction of cervical spine movement.

172     Mr O’Brien had available the November 2004 x‑ray and the 2007 MRI scan of the cervical spine.

173     Mr O’Brien concluded the plaintiff presented with subjective signs associated with marked restriction of movement in the neck and right shoulder which in fact were somewhat variable, which would suggest there were some non-organic factors influencing presenting physical signs.

174     Mr O’Brien thought it would appear the plaintiff had experienced aggravation of pre-existing lumbar spondylosis without any neurological compromise.  Restricted movements of the shoulder, in light of the MRI findings of tendinopathy, suggested the plaintiff had some rotator cuff limitation which he thought was consistent with the accident. 

175     Mr O’Brien considered the history suggested the presence of chronic pain, and it would seem that the plaintiff had been previously been referred to a chronic pain management program.  Given this history, Mr O’Brien suggested the prognosis was poor.  He thought it seemed some non-organic factors were influencing the clinical course; thus, it was difficult to determine the severity of any ongoing disability.

176     Having been provided with reports from Mr Rush of December 2006 (free range of shoulder movement) and Dr Kim of July 2008, Mr O’Brien noted that the shoulder MRI scan of March 2007 demonstrated some abnormality, and thus, it was certainly possible that emerging pathology had resulted in restriction of movement.  He would have to accept the plaintiff did his best to actively move the shoulder joint, and one would expect it likely there was some organic pathology.

177     The plaintiff saw Mr Robert Dickens, orthopaedic surgeon, on behalf of the defendant in November 2011. 

178     The plaintiff then described ongoing neck problems with associated headache and chest pain.  He also complained of thoracic pain involving numbness in his right leg.

179     On examination, the plaintiff had neck pain involving the whole of his neck associated with a restricted range of movement.  He had pain right down the right arm and described it as being weak, and he was aware of pins and needles and numbness involving the whole of his right arm.  He described pain in the thoracic spine, and denied any lumbosacral pain.

180     The plaintiff said his general health was good.  He was a diabetic; however, that was not a great trouble.  Mr Dickens noted the back injury causing the plaintiff to go off work and ultimately go on a DSP.

181     On examination, there was tenderness of the cervical spine and restricted movement.  There was a collapsing response in the upper limbs to neurological testing.  There was restricted right shoulder movement.

182     Mr Dickens thought it appeared, as a result to the accident, the plaintiff suffered a soft tissue injury to his cervical and cervicothoracic spine.  The plaintiff denied any lumbosacral injury. There was no evidence of radiculopathy in either upper limb.  A non-organic component was suggested to the physical signs, with Mr Dickens noting Mr Hjorth had made a similar assessment. 

183     Mr Dickens also thought that what was shown on investigations would be compatible with findings expected in someone of the plaintiff’s age.

184     On that basis, Mr Dickens believed the plaintiff may have caused some minor aggravation of his cervical and thoracic spine pathology which was underlying constitutional degenerative pathology. The plaintiff had restricted right shoulder movement, and evidence on ultrasound of a rotator cuff tear.  Mr Dickens noted it was impossible to say whether that was a normal finding of a supraspinatus pathology in the general population or it was a direct injury to the shoulder.  He had elected to accept it was accident related.

185     Mr Dickens concluded there was a significant abnormal illness response associated with the plaintiff’s presentation.  As such, he believed it unlikely the plaintiff would become symptom-free with time, despite the fact that the natural history of many people with degenerative disc pathology is for them to improve rather than deteriorate.

186     Dr Stockman, rheumatologist, examined the plaintiff in December 2014.

187     In addition to the accident circumstances and injury, Dr Stockman noted a second transport accident on 21 September 2014.  Dr Stockman noted that accident exacerbated all the pre-existing pain, and there was then a new pain in the left arm and forearm. 

188     Dr Stockman thought it seemed the exacerbation following the second transport accident was temporary; the plaintiff felt his pains were back to what they were prior to that accident, except for his left arm.

189     On examination, the most severe pain was in the neck associated with occipital headaches. The plaintiff also complained of low back pain and constant ringing in his right ear.

190     The plaintiff said he had no difficulty with personal hygiene.  He did some shopping, but did not do heavy lifting.  Prior to the accident, he was able to cook, clean, and walk long distances.

191     On examination, there was marked limitation in cervical spine movements and movement caused pain.  There was also tenderness in the cervical area.

192     Dr Stockman diagnosed cervical spondylosis, disc degeneration as seen on the MRI, and pain in the right shoulder and arm due to the rotator cuff tendinopathy, with a component of right arm pain due to radiculopathy as seen on the MRI.

193     Dr Stockman considered there appeared to be significant psychological problems, namely anxiety and depression, and he thought it best to seek a psychiatric opinion.

194     Dr Stockman thought the accident had caused, or at least significantly aggravated or accelerated, spondylosis/disc degeneration, and had probably caused a rotator cuff lesion in the right shoulder.

195     Dr Stockman considered that the plaintiff’s injuries had stabilised and he should continue on his current medication regime.  He thought there were secondary injuries of anxiety and depression. 

196     Dr Stockman noted the plaintiff’s reduced capacity to perform household tasks and tasks in the garden and that he could not walk long distances.  He considered the plaintiff’s impairment was permanent.

197     Dr Blombery, consultant physician in vascular disease, examined the plaintiff in March 2015.

198     The plaintiff then complained of ongoing neck pain.  There was also pain between the shoulders and right arm pain.

199     On examination, the plaintiff was a depressed-looking man who moved relatively freely.  There was right shoulder tenderness.  There was a lot of opposing muscle spasm when he tried to move his shoulders.

200     In the cervical spine, there was restriction of movement and subjective reduction in light touch sensation in the entire right arm and leg.

201     Dr Blombery thought the accident resulted in previously asymptomatic degenerative changes in the cervical spine becoming symptomatic. He considered there may also be some right-sided nerve root pressure which was contributing in the plaintiff’s right upper limb.

202     Dr Blombery thought it was difficult to explain the right leg and right foot pain.  He noted the plaintiff had quite marked secondary depression and anxiety as a consequence of this injury, and that was tending to enhance his pain experience. 

203     In addition to the previous asymptomatic degenerative changes becoming symptomatic, Dr Blombery thought there was also a process of a component of a non-specific Pain Syndrome present in the affected area where there was sensitisation of pain-nerve pathways, both in the periphery as well as the brain and spinal cord, with non-painful stimuli become interpreted by the cerebral cortex as being painful – central sensitisation.

204     Dr Blombery thought the prognosis was poor, given the duration of symptoms.  He considered the injuries had stabilised.  He thought the plaintiff had developed anxiety and depression as a consequence of his injuries.

205     Dr Blombery concluded the plaintiff had a Pain Syndrome with sensitisation of pain-nerve pathways.  He thought the majority of that was organic, but it did appear to have a non-organic contribution, attributing 70 per cent organic and 30 per cent non-organic.

206     Dr Blombery disagreed with Dr Fraser’s September 2014 report in which he stated that he thought that the symptomatic aggravation had resolved.  On balance, Dr Blombery thought, noting that the plaintiff had no previous neck problems, had the plaintiff not had the accident, his neck would have remained relatively asymptomatic.

207     Mr Khan, orthopaedic surgeon, examined the plaintiff in March 2015.

208     Mr Khan noted the plaintiff was in receipt of a DSP with a history of diabetes and also depression.  Mr Khan also noted the second transport accident.

209     On examination, the plaintiff reported aches and pains in his arm and neck, and also suffering from nightmares.  He could sit for only an hour, and after standing for one or two hours, he became increasingly dizzy.

210     On examination, the plaintiff walked with a stoop, but could manage to dress and undress independently.  He was complaining of pain over the right side of his neck, but also some pain on the left side of the midline, going down to the top of the shoulder blade.  He had pain in the front and outer aspect of the right shoulder, and intermittent pins and needles in the right hand. Movements of the thoraco lumbar spine were grossly globally restricted.

211     Whilst noting the plaintiff’s previous back, eye, and disability problem, Mr Khan thought the plaintiff was reasonably well and mobile until the accident.

212     Mr Khan considered there was a cervical spine injury.  He also commented that the plaintiff had sustained a non-organic or psychological aspect of his injury, and was thought by a psychologist to be suffering depression and PTSD.

213     Mr Khan considered the plaintiff had flared up pre-existing degenerative changes in the acromio­clavicular joint and had developed post-traumatic chronic supraspinatus tendinopathy with chronic subacromial bursitis.  This condition limited his ability to do anything requiring repetitive elevation of the right arm, pushing and pulling, or lifting weights of more than five kilograms.  Mr Khan considered the plaintiff might need appropriate analgesic medication in that regard.

214     Mr Khan thought the plaintiff had flared up pre-existing multi-level cervical disc degeneration and had developed intermittent referred pain down his right upper limb.  He had aggravated pre-existing right-sided exit foraminal stenosis in the cervical spine, in particular at C3‑4, and also flared up multi-level minor disc degenerative changes in the mid-thoracic spine.

215     Mr Khan did not think the long-term prognosis was favourable, given the plaintiff’s age and the duration of his symptoms. He thought he had developed secondary injuries, such as anxiety and depression, and he had decreased capacity to take part in activities of daily living. He considered the plaintiff’s condition had stabilised.

216     Dr Nigel Strauss, psychiatrist, first examined the plaintiff in December 2006.

217     The plaintiff told him he did not lose consciousness in the accident, but immediately thereafter, he felt neck discomfort and discomfort in his right shoulder and arm, and he also felt dizzy.

218     The plaintiff had been left with neck pain and headaches, as well as right shoulder pain and right arm weakness. He said the accident had depressed and upset him.  He was tearful at times, but not suicidal.

219     Dr Strauss noted it was difficult to know whether the plaintiff was suffering from chronic depression before the accident due to the work-related injury that had led to him being on a DSP.

220     Dr Strauss was not sure of the plaintiff’s organic state, and could not say that any of his pain was psychologically based, but it did remain a possibility in this case, and he would be prepared to review any reports on the plaintiff’s organic condition. He concluded the plaintiff was suffering from a moderate psychiatric reaction which had stabilised.

221     On review in October 2010, the plaintiff was then seeing a psychologist every two weeks, and the pain clinic program had essentially finished.

222     The plaintiff reported trouble sleeping, and frequently dreamed about the accident, but denied flashbacks.

223     On mental state examination, the plaintiff was emotionally mildly anxious and depressed and preoccupied with his upper body pain.  His thinking was negative, but there was no evidence of psychosis.

224     Dr Strauss concluded that it was unfortunate the plaintiff remained preoccupied with the accident.  Again, Dr Strauss noted there did not appear to be any psychiatric problems of significance before the accident.

225     The reports that were made available to Dr Strauss suggested the plaintiff’s upper body pain did have an organic basis, but he had no doubt that the pain was being exacerbated by the plaintiff’s underlying psychological distress involving symptoms of anxiety and depression. 

226     Dr Strauss thought the plaintiff had a mild Chronic Pain Disorder associated with the medical condition and psychological factors.  The plaintiff also had some very mild post-traumatic stress symptoms, and certainly a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood.  Dr Strauss thought those psychiatric problems resulted from the accident and no other apparent factor.

227     Dr Strauss believed the accident had resulted in quite severe consequences in the plaintiff’s life and he had suffered a marked psychological deterioration.  He considered the plaintiff’s prognosis was not good, despite a large amount of treatment.

228     On re-examination on 23 March 2011, Dr Strauss thought nothing had changed. He confirmed his diagnosis of a Mild Adjustment Disorder with Anxiety and Depression and post-traumatic stress symptoms due to the accident.

229     There was a further re‑examination in December 2014.

230     On re-examination in December 2014, the plaintiff then told Dr Strauss of the second transport accident which aggravated his pains and concerns. The plaintiff complained of significant headaches, neck pain, right shoulder pain, and pain and paraesthesia and weakness down his right arm.  He still had a good deal of dizziness. He was then taking two 25-milligram tablets of Lyrica daily, two Aropax, medication for diabetes, and five Panadol a day for pain.

231     On mental state examination, the plaintiff was mildly anxious and depressed.  His thinking was negative and concerned, but there was no evidence of any psychosis, delusions or thought disorder.

232     Dr Strauss thought the plaintiff’s condition remained stable, and that he continued to be affected by a Chronic Pain Disorder associated with a medical condition and psychological factors, a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and post-traumatic stress symptoms.

233     Dr Strauss considered predominantly, the plaintiff’s psychiatric problems related to the accident, although he noted the plaintiff had previously been getting a DSP pre accident because of chronic back pain, and that might have had some relevance to his ongoing psychiatric problems.

234     Dr Strauss thought the plaintiff’s psychiatric problems were of a mild to moderate severity.  He did not think he needed any further treatment apart from psychotropic medication.

235     Dr Strauss was provided with further material in March 2015, including reports from Dr Ilic September 2014, Dr Entwisle October 2014, Dr Fraser, and also from the Western Hospital.

236     Dr Strauss noted there appeared to be some debate as to the cause of the plaintiff’s current physical symptomatology and whether or not it was accident related, but, in his opinion, the accident was still relevant in the case, particularly from a psychological perspective.

237     Dr Strauss noted Dr Entwisle concurred with the diagnosis of a Pain Disorder which was part of Dr Strauss’s diagnosis.

238     Dr Strauss believed some of the plaintiff’s pain was psychologically based on an unconscious level. Approximately 50 per cent of his pain was on this basis, and the remainder probably organically based and related to various genuine physical changes and conditions. 

239     Dr Strauss continued to believe that amongst his problems, the plaintiff had a Chronic Pain Disorder associated with a medical condition and psychological factors, and Dr Strauss still believed the accident remained significant in relation to causation in this case.

240     Dr Entwisle, psychiatrist, examined the plaintiff in October 2014 on behalf of the defendant.

241     Dr Entwisle noted the plaintiff denied any previous psychiatric history, but Dr Entwisle was aware the plaintiff had attended Dr Polonowita in 1992, having seen her report in which she set out she thought the plaintiff was malingering and did not suffer from a psychiatric illness. 

242     Dr Entwisle noted the plaintiff underwent psychological treatment with two female psychologists whose treatment helped, but he could not specify in what way.

243     On examination, the plaintiff appeared somewhat anxious, and tended to minimise other historical elements such as his former back injury.  His affect was preoccupied and restricted, and his memory and concentration was intact.

244     Dr Entwisle noted it was the plaintiff’s account that he had been severely impacted upon by the accident, and he continued to report depressive symptoms.  He spoke of being let down by others who had robbed him, and as such, his social interactions were limited.  In all, his account was provided with a strong injury focus and there was evidence of embellishment.  He was briefly tearful at one stage, and he continued to report dreams of being killed in the accident.  He acknowledged some improvement in his symptoms as a result of treatment at the pain clinic.

245     Dr Entwisle thought the plaintiff had what appeared to be a Pain Disorder and a reaction marked by some mild depressive symptoms and alleged traumatising features.  In his view, there were functional factors operating in the plaintiff’s case (marked abnormal illness behaviours).  He thought the role of psychological factors was significant. He noted the plaintiff walked in a halting way, and there was a strong illness conviction.

Claim documentation

246     The plaintiff completed a Transport Accident Commission Claim for Compensation on 10 December 2004. The initial medical certificate from Dr Appan set out injury to the right shoulder and arm.

The Defendant’s medical evidence

247     Dr Polonowita wrote to Dr Appan in May 1992, thanking him for referring the plaintiff. Dr Polonowita noted the plaintiff had been a forklift driver, and claimed, following a work accident, he had gone blind.  The plaintiff said he had been to several specialists and they had found nothing wrong with him.  He said they would not speak the truth, and that one of his solicitors had run away with his money.

248     Dr Polonowita reported the plaintiff said, because of all that, he was going crazy.

249     Dr Polonowita advised the plaintiff did not suffer from any psychiatric illness and he was malingering.

250     Dr Appan wrote to the defendant on 5 March 2008, forwarding Dr Polowonita’s 1992 letter.  Dr Appan advised the plaintiff consulted him on 16 November 2004 and told him he was involved in the accident.  Dr Appan noted he had seen the plaintiff seventy times from that date until 27 February 2008.

251     Dr Appan requested the defendant decide what it had to do.  He asked that it please not tell the plaintiff what he had told him, as he may get a full brick thrown through his window every day.

252     Mr Hjorth, neurologist, saw the plaintiff on 5 July 2007 on referral from Mr Hunt in relation to his right arm pain.

253     There was a restricted range of cervical movement and the right shoulder on examination.

254     Mr Hjorth thought the plaintiff had suffered a whiplash injury which, by usual standards, did not seem to be particularly severe, and he would have expected a few days off work or a few weeks, but here, three years later, the plaintiff was still totally disabled. 

255     Mr Hjorth thought assessment was difficult because of language problems and it was possible he was overlooking something; however, the dominant effect of the whiplash injury had been to cause depression and demoralisation. 

256     Mr Hjorth had not seen any investigations, and noted that the nerve conduction test was normal.  He did not think of any way the plaintiff could be treated apart from general support and general pain management.

257     The plaintiff attended the Emergency Department of the Western Hospital on 8 May 2008 with severe neck pain.  A CT scan was undertaken at that time.

258     The plaintiff’s general practitioner, Dr Ilic, wrote to psychologist, Marianne Love, in January 2010 thanking her for seeing the plaintiff.  He noted the plaintiff suffered a soft tissue neck injury in the accident and since then, had developed depressive symptoms.  There was significant social isolation and associated anxiety.  The plaintiff was unable to go to family events and parties, and felt down, with an ongoing low mood and crying.  He had vivid dreams and nightmares.

259     Dr Ilic’s primary diagnosis was anxiety and depression.

Medico-legal evidence

260     The plaintiff was examined by orthopaedic surgeon, Mr Jonathan Rush, in December 2006.

261     The plaintiff told him that over the past two years, he had continued to have pain on both sides of his neck, particularly the right, with some radiation of the pain down to the top of the right shoulder and, to a lesser extent, the left.  The low lumbar back pain was not a major problem for him.  He had some difficulty with lifting anything heavy.

262     Dizziness and dizzy attacks continued to be a concern for the plaintiff.

263     On examination of the cervical spine, there was no deformity and no significant tenderness either in the spine or associated muscle groups.  There was some painful limitation of movements of the cervical spine with some dysmetria.  There was a full range of motion of both shoulders.

264     Mr Rush thought the plaintiff had suffered a non-specific soft tissue injury to the cervical spine, and a possible soft tissue injury to the right shoulder, noting most of that pain was referred, however, from the neck.  He thought there was some ultrasound evidence of a possible torn rotator cuff tendon, but this might have been present for a long time, and clinically, there was no evidence of a rotator cuff tear or tendonitis.  There was persistent intermittent dizziness and cervicogenic headaches.

265     Mr Rush noted associated with those symptoms, there had been a psychological reaction to the accident, with ongoing anxiety and depression.

266     Mr Rush would have expected some improvement in the plaintiff’s symptoms, but he denied it was the case.  With regard to prognosis, he thought, regarding the cervical spine, dizziness and headaches, they would continue indefinitely.  Mr Rush regarded the condition as stabilised.

267     Mr Robert Marshall, general surgeon, examined the plaintiff on 3 April 2008.

268     The plaintiff advised that ever since the accident, he had had continuing problems with pain in his neck, headache, chest pain and sleeplessness.  He also continued to complain of pain in his chest and right shoulder.

269     On examination, Mr Marshall noted the plaintiff presented with a very severe degree of abnormal illness behaviour and complained of extremely generalised pain.  He appeared with what appeared to be a rigid paralysis of the right arm, and seemed completely unable to move his fingers, wrist, elbow, or shoulder.  The plaintiff was nevertheless able to sit without difficulty, and during the further course of the examination, it was clear his apparent limitation of movement was much less than seemed apparent on first sight.

270     Mr Marshall thought the plaintiff’s current symptoms could not be explained on the basis of any organic injury.  He thought there was no clinical or radiological evidence of any significant injury, and he did not believe the plaintiff’s symptoms could be attributed in any physical sense to the accident.  In his view, there was no possible physical explanation for the apparently very severe disability involving the plaintiff’s entire right arm.

271     Mr Marshall thought the plaintiff was clearly in very poor health, and suffering from diabetes and hypertension.  He was unaware of any psychosocial issues that might be impacting on the plaintiff’s presentation, but it was clear the plaintiff had been deeply immersed in an injured role for many years. 

272     In summary, Mr Marshall believed the plaintiff’s presentation could only be explained on non-physical grounds.  He did not believe any further treatment was appropriate or necessary, and noted that most of the medication the plaintiff was taking was quite unrelated to any physical injury.  He thought the defendant did not have any liability for ongoing treatment or medication.

273     Dr Kevin Fraser, rheumatologist, examined the plaintiff in September 2014. 

274     On examination, movements of the cervical spine were somewhat restricted and the plaintiff complained of pain in the extremes of range. Shoulder abduction and flexion were restricted, but otherwise movements were normal, and the plaintiff complained of pain at the extremes of the range.

275     Dr Fraser did not consider there were any ongoing accident-related injuries.  He thought the plaintiff had age-related degenerative changes affecting his cervical spine and right shoulder.

276     In Dr Fraser’s view, it may be that the plaintiff sustained soft-tissue injuries and/or symptomatic aggravation of pre-existing degenerative changes as a result of the accident, but he considered any such injuries had long since resolved, and the plaintiff’s condition now, about ten years after the accident, was the same as it would have been regardless of it.

277     Dr Fraser noted the overreaction on physical examination, including findings such as non-anatomic diffuse sensory loss in the right arm and right leg; however, left no doubt that non-organic factors were largely responsible for the plaintiff’s current presentation.

278     Mr Dickens, orthopaedic surgeon, re‑examined the plaintiff in May 2015, having previously seen him in November 2011.

279     The plaintiff indicated his ongoing accident-related problems in his cervical spine, radiating from there into his thoracic spine but not affecting his lower back.  He complained of headaches and ringing in the right ear. He had difficulty sleeping, and was dreaming and crying. 

280     The plaintiff advised that the whole of his right body was now affected and his right leg was weak, and he had cramping in the calf and no feeling in the right leg.  The plaintiff indicated turning his neck caused pain in his head, dizziness, and headaches.  The severity of neck pain on a Visual Analogue Scale was 9 out of 10, always there at that intensity.  The plaintiff advised he could not use his right arm because of the weakness.

281     The plaintiff described weakness in his right thigh and calf.  He also indicated he had cramps, and his left leg sometimes collapsed.

282     Since the second transport accident, the plaintiff had had increasing symptoms, but nothing new except for soreness in the right buttock.

283     On examination, there was a moderate restriction of cervical movement and there was tenderness over both trapezius muscles.  There was a global loss of sensation in the right arm, and the plaintiff was reluctant to allow movements of that arm.

284     The right shoulder had marked reduction in mobility, with the plaintiff indicating that limitation was because of pain going up from the shoulder into the right side of his neck.  There was no shoulder wasting.  Passive movements were more than what was demonstrated to formal testing.

285     Mr Dickens thought the injuries resulting from the accident were soft tissue injury to the cervical and thoracic spine. There was no evidence of radiculopathy. There was evidence of a right hemianesthesia to sensory testing. The right shoulder had restricted mobility, with evidence on MRI of arthritis in the acromio­clavicular joint and a tear of the rotator cuff with associated tendinopathy and associated subacromial bursitis.

286     Mr Dickens believed the plaintiff’s injuries to the cervical and thoracic spine and right shoulder soft tissue were consistent with the accident.  He thought the MRI of the cervical spine was not particularly concerning, but did not have the previous study to compare.  He thought the radiologist’s comments were a bit of an overcall, because he thought the findings were relatively satisfactory for a person of the plaintiff’s age.

287     Although there had been an accident subsequent to the last consultation, Mr Dickens thought that did not appear to have produced any dramatic change to the overall situation.

288     Mr Dickens noted the plaintiff had physical signs of a right hemi-sensory alteration, which was an anatomical impossibility.  He also got the impression there was voluntary resistance to movement affecting the right side of the body, making assessment of what was genuine or non-genuine findings extremely difficult to determine.

289     Mr Dickens noted the changes seen on the most recent investigations were not significantly different to those reported on in his previous assessment. In his view, normally many of those patients do improve, and may even have periods of complete freedom of symptoms.  He believed the fact that this was not the outcome in the plaintiff’s case would suggest the possibility of the development of a Pain Disorder or Syndrome impacting on his presentation.

290     Mr Dickens was inclined to agree with the view of the psychiatrists that an apportionment of 50 per cent non-organic was not unreasonable.

Overview

291     Applications in this case were brought in relation to the cervico-thoracic spine, the right shoulder, and a psychiatric impairment on the basis of a Chronic Pain Disorder.

Credit

292     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[25]

“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”

[25](2010) 31 VR 1 at paragraph [12]

293 Whilst there was surveillance recently undertaken and the film thereof not shown,[26] and Dr Entwisle was the only examiner who commented that the plaintiff was embellishing his symptoms, I did not find the plaintiff to be a reliable witness.

[26]T32

294     There were inconsistencies noted between the plaintiff’s level of movement on casual observation and formal examination on many occasions.

295     The plaintiff minimised the extent of his pre-injury back condition, which was obviously significant, and described other unrelated health problems in similar terms, focussing solely on the accident related conditions.

296     Post-accident, the plaintiff has at times denied any lumbar problems, but on other occasions, described significant ongoing problems of this nature.[27]

[27]The plaintiff denied lower back problems when examined by Mr Dickens in 2001 cf viva voce evidence and complaint to Dr Stockman

Impairment to the cervico- thoracic spine and right shoulder

297     There is no dispute the plaintiff suffered physical injury in the accident. [28]

[28]T47

298     As counsel for the defendant conceded, the plaintiff’s case is “not absolutely in dispute”, in that it is agreed he was injured and suffered soft-tissue injury to his neck, and possibly his right shoulder. 

299     Counsel for the defendant submitted the issue would be quite complex in working out the extent to which the claimed injuries were, first, organic; and second, related to the accident.  That would involve a consideration of whether the real driver in the pain that is claimed is psychiatric, thus outside Richards v Wylie.[29]

[29]Supra; T10

300     It was submitted the plaintiff’s condition is now not organically based or is degenerative in nature.  His condition is one of abnormal illness behaviour which is more properly dealt with under clause (c).[30]

[30]T33

301     In response, counsel for the plaintiff submitted there was a serious injury pursuant to clause (a) in relation to which Richards v Wylie factors – the plaintiff’s expected reaction to these physical injuries – could be taken into account.[31]

[31]T8

302     The primary submission was that when the plaintiff was involved in the accident, he was sixty-one, with some low-back pain and some eye problems. As a result of the accident, he had neck pain, described by the plaintiff as his worst problem, superimposed on that pre-accident condition, together with a shoulder injury, making his right arm virtually useless.  It was submitted each of these impairments, on an organic basis, satisfied the Humphries’ test.[32] 

[32]T62

303     I must be satisfied, as at the date of hearing, the organically based, accident-related consequences of the plaintiff’s physical injuries are “serious”.

304     As counsel for the defendant submitted, it is difficult to fix on what are the organic consequences, because there are multifactorial causes of the injury.[33]

[33]T39

305     Taking into account those other causes which include degenerative disease, non-organic factors, the plaintiff’s significant pre-existing lumbar condition and other non-accident related conditions, I cannot be satisfied that the plaintiff has a serious injury in relation to the accident pursuant to clause (a).  

The basis of any accident-related physical impairment

306     The plaintiff’s previous general practitioner Dr Appan, now deceased, who saw him seventy times after the accident until February 2008, has not reported as to his views of the relationship of the accident to the plaintiff’s presentation during that time. 

307     It is apparent that Dr Appan referred the plaintiff to Dr Poon, neurologist, in April 2005 and Mr Li, orthopaedic surgeon, in 2007.  Neither commented upon any relationship between the accident and the plaintiff’s condition.

Degenerative disease

308     Counsel for the defendant submitted the preponderance of medical evidence was the pain the plaintiff suffers was, to some extent, organic, in that it was degenerative changes which he would have had regardless of the accident.[34]

[34]T11

309     Reliance was placed on the decision in De Agostino v Leatch & Transport Accident Commission[35] where the Court of Appeal held that if a degenerative condition is the driver of a Chronic Pain Disorder, such condition is non-compensable.[36]

[35][2011] VSCA 249

[36]T56

310     Counsel for the plaintiff submitted there had been a deterioration in multilevel degeneration throughout the cervical spine and there was also tendinopathy involving both the supraspinatus and infraspinatus tendons.  It was agreed, to some extent, that would be age related but it was submitted there was evidence those changes were aggravated and accelerated by the accident, superimposed on a soft-tissue injury.[37]

[37]T61

311     Clearly, there is medical support for the view degenerative disease plays a significant role in the plaintiff’s present neck and right shoulder conditions. 

312     In 2006, Mr Doig noted the presence of degenerative changes and concluded the plaintiff’s neck and shoulder problems could be related to the accident [emphasis added].

313     In 2007, Mr Li was unsure as to the underlying pathology but suspected the plaintiff had a combination of degeneration and some possible impingement, and he may have pathology by way of the rotator cuff, noting there was some involvement of the shoulder in the neck problem [emphasis added].[38] 

[38]T35

314     Mr Hunt, in his 2008 report, noted it was “possible” pain features in the plaintiff’s cervical spine were consistent with the accident.  Having last seen the plaintiff in June 2013, he reported it was quite possible that the shoulder and neck pathologies had been aggravated by the accident [emphasis added].[39]

[39]T36

315     In his June 2015 report, Mr Hunt assumed the plaintiff had neck pain pre accident.  The basis for this assumption is unclear.  He then reported that the plaintiff’s symptoms had been aggravated by the accident, in the absence of which he thought it was unlikely the plaintiff would have had symptoms of the same severity.

316     Dr Ilic thought the plaintiff had really complex and disabling symptoms, noting he had not worked for a number of years prior to the accident.  He thought the plaintiff had an underlying degenerative cervical pathology of cervical and thoracic spine which was, to some degree, aggravated by his accident, and that the accident had also had an impact on his mental state [emphasis added].

317     Whilst acknowledging initial soft tissue and or symptomatic aggravation of degenerative changes as a result of the accident, Dr Fraser did not consider there were any ongoing accident-related injuries.  He thought the plaintiff had age-related degenerative changes affecting his cervical spine and right shoulder.

318     Mr Dickens thought there was underlying degenerative pathology which was, to some degree, aggravated by the accident [emphasis added].[40]

[40]T48

319     Dr Stockman thought findings in the most recent cervical MRI would be consistent with the plaintiff’s age rather than the accident.[41]

[41]T44

320     Dr Fraser did not consider there were any ongoing accident-related injuries and that the plaintiff had age-related degenerative changes affecting his cervical spine and right shoulder.

Non-organic

321The plaintiff describes his present pain as constant but variable.  He notices it mostly in his neck and particularly down through the right side of the neck into the right upper limb and down as far as his hand.  Left-sided symptoms are not as bad.  He has told some examiners that his right upper limb is totally numb.[42]

[42]Dr Marshall, Dr Elder, Mr Dickens, Dr Fraser and Dr Blombery

322     A number of medical practitioners have found non-organic factors in the plaintiff’s presentation over the years since the accident.

323     In 2006, Mr Rush noted there had been a psychological reaction to the accident, with the plaintiff experiencing ongoing anxiety and depression.

324     In September 2007, Mr Hjorth diagnosed a whiplash injury which did not seem to be particularly severe.  He noted the dominant effect of that injury had been to cause depression and demoralisation.

325     In April 2008, Mr Marshall thought the plaintiff’s symptoms could not be explained on the basis of any organic injury.

326     Mr O’Brien noted the presence of non-organic signs on examination in 2008. In July of that year, Dr Kim thought the aetiology of the plaintiff’s pain was uncertain with possible central sensitisation

327     In October 2008, Dr Muir thought decreased power and sensation of the plaintiff’s right arm was not consistent with a discrete anatomical lesion.  On review in March 2009, he noted significant PTSD symptomatology and depression, and social isolation.

328     In early 2009, Mr Jithoo thought a low dose anti-depressant was appropriate with gentle exercise.

329     As of January 2011, Ms Chua, thought the plaintiff presented with symptoms consistent with PTSD and depression. She considered his progress would be slow and the focus of treatment should be on improving his quality of life.

330     In 2013, Dr Leung recommended referral back to a pain management multidisciplinary service.

331     Mr Dickens noted the anatomical impossibility of the plaintiff’s right-sided complaints.[43] He thought the accident would not have made a substantial variation on the radiological appearances and that psychological and non-organic factors were playing a part, but he was inclined to think the view of the psychiatrists of 50/50 was not unreasonable.[44]

[43]T50

[44]T51

332     Whilst Dr Stockman diagnosed cervical spondylosis and rotator cuff tendinopathy, he thought there were significant psychological problems with anxiety and depression.

333     Mr Blombery thought there were degenerative changes and that there was a component of non-specific Pain Syndrome of sensitisation of nerve pathways, a condition which in his view was 70 per cent organic and 30 per cent non-organic.[45]

[45]T42

334     Mr Khan is most supportive of the plaintiff in relation to this issue.  Whilst he thought the plaintiff had developed secondary illnesses such as anxiety and depression, he concluded that in the accident, the plaintiff flared up pre-existing degenerative changes in the acromio­clavicular joint and had developed post-traumatic chronic supraspinatus tendinopathy with chronic subacromial bursitis.

335     In my view, the consequences of any organically-based impairment to the plaintiff’s neck or right shoulder are not serious, given the widespread nature of his complaints involving the whole of the right side of his body, and in more recent times, also the left side of his body.

336     As Winneke P stated in Richards v Wylie,[46] it is 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 (a).[47]

[46]Supra

[47](supra) at paragraph 16

337     In my view, the plaintiff’s psychiatric response to his physical injuries goes beyond that envisaged by Winneke P.  As at the date of hearing, the plaintiff’s pain is largely psychogenic in its basis and thus any impairment cannot be properly categorised as falling within clause (a).[48]

[48]West v Pac-Rim Printing Pty Ltd [2003] VSCA 68 at paragraph 27

Pre-existing

338     In addition to establishing an ongoing organic basis for any impairment, the plaintiff must also establish that the accident-related consequences of his physical injury are “serious”.

339     It was the plaintiff’s case that at the time of the accident, he had learned to manage his back injury.  He avoided heavy lifting because it was painful, and he only had intermittent physiotherapy if the pain became bad.  The only medication he was then taking then was for gastric complaints.[49]

[49]T6

340     However, in cross-examination, the plaintiff said he thought he was taking Panadol or Panamax at the time of the accident and he had also undergone massage and some injections.

341     Clearly, the plaintiff had spinal problems relating to his lower back of some significance prior to the accident.

342     In Petkovski v Galletti,[50] 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.  ... .”

[50]Supra

343     I accept the lumbar spine was a significant pre-existing, unrelated condition.[51]

[51]T46

344     Despite the plaintiff’s attempts in cross-examination to minimise his pre-accident back problems – describing “a little bit of back pain” as one of the reasons for the DSP – it is clear from Mr Doig’s history on examination in 2006, that the plaintiff then had ongoing back problems.  He was unable to work and he could not carry or lift.  He had a reduced capacity because of this pre-accident injury.[52]

[52]T58

345     As Mr Doig noted, there was ongoing back pain prior to the accident markedly affecting the plaintiff’s presentation and there were other significant pre-existing and unrelated conditions affecting his presentation at that time.

346     Although Mr Khan thought the plaintiff’s neck and shoulder condition limited the plaintiff’s ability to do a range of activities, the plaintiff was unable to lift or carry as a result of his back problem prior to the accident.

347     Whilst Ms Janosevic acknowledged in her affidavit that the plaintiff was off work with a lower back injury at the time of the accident, she did not mention any of the restrictions the plaintiff described to Mr Doig.  Further, plaintiff’s evidence is that pre-accident, his gardening was minimal, not an activity in which he was actively involved as Ms Janosevic deposed.

348     Prior to, and post-accident, there were ongoing requirements for certification for a DSP (until age of sixty-five in 2008) – certification which presumably was provided by Dr Appan, who has not reported in any relevant detail as to the plaintiff’s pre-accident and accident-related condition.[53]

[53]T40

349     In addition, in the years shortly prior to the accident, the plaintiff had problems with his eyes, left shoulder and right arm.[54] 

[54]T57

350     Dr Appan arranged right shoulder x-rays in October 2002 and referred the plaintiff to Mr Pianta for right arm and hand pain in early 2003.

351     Further, the plaintiff attended Mr Love in August 2004 with left shoulder pain and an ultrasound at that time suggested a partial tear. The plaintiff was referred to a physiotherapist, who noted the plaintiff had problems with his posture at that time.

352     Whilst there may be no evidence of any consequence prior to the accident of any significant signs or symptoms involving the neck or right shoulder, I do not accept, as submitted by counsel for the plaintiff, that thereafter, there was a “dramatic change” in the plaintiff’s condition.[55]

[55]T60

Post-accident

353     The plaintiff has had conservative treatment from a range of medical practitioners from which he has obtained no real benefit.

354     The plaintiff saw Dr Appan many times following the accident until 2008.  He referred the plaintiff to Dr Poon in February 2005 and to Mr Li in February 2007.  Mr Li then referred the plaintiff to Mr Hunt for treatment of his cervical spine. 

355     The plaintiff was treated by Dr Gu, chiropractor, from April 2005 until 2007.

356     Mr Hunt referred the plaintiff to Dr Hjorth, neurologist, in July 2007.  The plaintiff attended the pain clinic on a number of occasions between July 2008 and early 2010.

357     In late 2008, the plaintiff attended the Western Hospital, where he saw neurosurgeon, Mr Jithoo.

358     The plaintiff continues under the care of his general practitioner, Dr Ilic, who he has seen since 2010.  He prescribes Lyrica and Panamax for pain relief. The plaintiff presently takes Panamax, two to six tablets per day, and Lyrica, twice daily.  He was taking painkilling medication like Panamax for his lower back pain prior to the accident.

359     Dr Ilic referred the plaintiff to Dr Leung, rheumatologist, in October 2013.  He suggested further pain management and a steroid injection into the shoulder and prescribed Lyrica.

360     Whilst the plaintiff complains of sleep disturbance due to pain, he is not presently being prescribed medication to help him sleep.

361     The plaintiff claims his walking ability has been affected by his neck pain. However, he also has problems walking due to the numbness in his right leg which is not accident related.

362     Prior to the accident the plaintiff accompanied his friends on hunting trips to Werribee. He did not actually hunt or shoot. He has not been on such trips since the accident but there is no evidence his friends have continued this activity at Werribee or elsewhere in recent times.

363     Since the accident, the plaintiff has tried fishing on one occasion but became too dizzy and had to stop.

364     The plaintiff continues to suffer from a range of unrelated conditions which impact on his enjoyment of life.

365The plaintiff described lower back symptoms extending down, on occasion, through his right buttock into his right leg – with pain “like fire”.  He also gets cramps in his right leg.[56]  Dr Blombery found this right leg pain and pain in the right foot, difficult to explain.

[56]Complaints on examination with Dr Stockman in December 2014

366The plaintiff gets also headaches and a little bit of chest pain.[57]  His eyes are still a problem and he experiences ringing in his ears.  He also has left shoulder problems which he has described to various practitioners.[58]

[57]T31

[58]Mr Hunt 2013 and Mr Khan 2015

367Taking into account all the evidence, I am not satisfied that any organically-based accident-related consequences of any impairment to the plaintiff’s cervical spine or right shoulder are “serious” in terms of Humphries v Poljak.[59]

[59]Supra

Psychiatric impairment

368     In my view, the plaintiff, whilst initially suffering physical injury to his upper spine and right shoulder, now presents principally with a non-organic condition in the form of a Chronic Pain Disorder.

369     In those circumstances, the plaintiff’s application is more appropriately considered under clause (c) in relation to a severe psychiatric impairment.[60]

[60]T43; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; primary submission by counsel for the defendant

370     However, I do not consider the psychiatric consequences relating to the accident – post-traumatic stress, Chronic Pain Disorder, or any of the various diagnoses – can be properly described as a “severe”.

371     In opening, when asked whether an application was being made pursuant to clause (c) for a Chronic Pain Disorder, counsel for the plaintiff conceded there that there had been counselling for about a year and that was about the only treatment the plaintiff had had.  He had some pain management at St Vincent’s Hospital in 2010 and 2011 and other than medication, he had had no psychiatric counselling or any similar treatment[61] – an announcement described by counsel for the defendant as “generous”.[62]

[61]T10 – the plaintiff was prescribed Aropax for some time after 2010 by Dr Ilic. It was still prescribed in September 2014.  It is unclear from the recent affidavit whether he still takes Aropax

[62]T57

372     Later in the hearing, counsel for the plaintiff later confirmed reliance was in fact placed on clause (c).[63]

[63]T12

373     Counsel for the plaintiff’s submission in relation to clause (c) was very brief.  If it was decided the plaintiff’s complaints were driven by psychological issues, given the fact he had pain and there was virtually no movement of his right dominant arm, that would qualify as “severe” under clause (c), but the primary submission was in relation to an organic impairment under clause (a).[64]

[64]T63

374     I do not accept this submission in relation to psychiatric impairment.

375     Whilst the plaintiff described tearfulness and having lost his sense of purpose in life, he has not been referred to a psychiatrist, and counselling ceased in 2013.

376     In this case, there are none of the features at the more severe end of the spectrum of psychological disorders such as hospitalisation, significant psychiatric treatment and medication and the more serious symptoms including suicidal ideation or attempts and psychotic symptoms.[65]

[65]Judge O’Neill in Papamanos v Commonwealth Bank of Australia [2013] VCC 1491 at paragraph 68

377     The only psychiatric opinion available is from medico-legal examiners.  Both Dr Entwisle and Dr Strauss diagnosed a Pain Disorder in terms of a mild to moderate severity.[66]

[66]T45,T57

378     Dr Strauss apportioned approximately 50 per cent of the plaintiff’s pain as being psychologically based on an unconscious level and the remainder probably organically based and related to various genuine physical changes and conditions.   

379     Accordingly, I am not satisfied the consequences of any psychiatric impairment are “severe” and the plaintiff’s application pursuant to clause (c) is also dismissed.

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