Jovevski v Transport Accident Commission

[2019] VCC 1921

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
Suitable for Publication

SERIOUS INJURY LIST

Case No. CI-18-05023

STOJAN JOVEVSKI	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	HER HONOUR JUDGE K L BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	22 and 23 October 2019
DATE OF JUDGMENT:	26 November 2019
CASE MAY BE CITED AS:	Jovevski v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2019] VCC 1921

REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT

Catchwords:             Serious injury – impairment to the lower back – left shoulder – aggravation – disentanglement

Legislation Cited:     Transport Accident Act 1986, s93

Cases Cited:Richards & Anor v Wylie (2000) 1 VR 79; Humphries & Anor v Poljak [1992] 2 VR 129; Peak Engineering & Anor v McKenzie [2014] VSCA 67; Dressing v Porter [2006] VSCA 215; Kelso v Tatiara Meat Co Pty Ltd [2007] VSCA 267, Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Petkovski v Galletti [1994] 1 VR 436; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309

Judgment:                 Leave granted to bring proceedings for damages.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A D B Ingram QC with Mr P Kelly	Williams Winter
For the Defendant	Mr R H M Attiwill QC with Mr A Coote	Solicitor to the Transport Accident Commission

HER HONOUR:

1 This 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 which occurred on 8 May 2014 (“the said date”).

2 Section 93(6) of the Act provides:

“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”

3       

The definition of “serious injury” relied upon by the plaintiff is under

s93(17)(a) – “a serious long term impairment or loss of a body function”.

4       The body function pursuant to subparagraph (a) primarily relied upon by the plaintiff is the spine, in particular the lumbar spine.[1] There was also an application in relation to the left shoulder.

[1]Transcript (“T”) 99

5       The enquiry under subparagraph (a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then by reference to the consequences of that impairment, to determine whether it is serious and long term.

6       The serious injury defined by subparagraph (a) can have its seriousness measured in part by a mental response to a physical impairment.  What it will not recognise is that the mental disorder can, of itself, constitute or be the producer of the impairment of a body function.[2]

[2]Richards & Anor v Wylie (2000) 1 VR 79

7       In forming a judgment as to whether the consequences of an injury are “serious”, the question to be asked is, can the injury, when judged by comparison with other cases in the range of possible impairments, be fairly described as “at least very considerable and more that significant or marked” – see Humphries & Anor v Poljak.[3]

[3][1992] 2 VR 129 at 140-1

8       The plaintiff swore three affidavits.  He was cross-examined.  He also relied on an affidavit sworn by his daughter, Diana, on 29 April 2019.  Both parties relied on medical reports and other material which was tendered in evidence.  I have read all the tendered material.

The Plaintiff’s evidence

9       The plaintiff is presently aged fifty-nine, having been born in July 1960 in Macedonia.  He migrated to Australia in 1982.  His first job was with Goodyear, later known as Wingfoot Australia Partners Pty Ltd (“the companies”).

10      The plaintiff was employed by the companies for fifteen-and-a-half years as a labourer process worker.  During the course of his employment, he suffered a right shoulder injury and psychiatric impairment in relation to which he made an application for a serious injury (“the work injury”).

11      On the said date, the plaintiff was involved in a rear-end collision, in which he sustained injury to his lower back and neck, as well his non-dominant left shoulder (“the transport accident”).  While stationary, the rear of the plaintiff’s vehicle was struck with great force, pushing it into the vehicle in front.  Repair costs were assessed at $17,000 and in due course the plaintiff was advised his car was a write off.

12      At the time of the transport accident, the plaintiff was in receipt of a disability support pension due to the work injury and subsequent work aggravation, and had, in fact, been on the disability support pension since 9 July 2007.  Hence, the present application is for pain and suffering damages only.

13      While employed with the companies, the plaintiff initially sustained injury to his dominant right shoulder in about February 1995 and subsequently, suffered an aggravation in about 2001 and up to the middle of 2002, when he ceased work. He has not worked since. 

14      The plaintiff’s serious injury application in relation to the work injury was rejected.  Following a County Court hearing in July 2013, the plaintiff was given a serious injury in relation to psychiatric impairment.  WorkCover’s appeal of that decision to the Court of Appeal was dismissed.

15      In July 2014, the plaintiff received a settlement of $200,000, plus retention of impairment benefits in July 2014, in relation to the work injury.

16      As at November 2017,[4] the plaintiff continued to regularly be checked and treated by his long-term psychiatrist, Dr Wahr.

[4]First affidavit

17      Prior to the transport accident, the plaintiff had suffered from intermittent symptoms in his lower back and neck.  The symptoms were, for the most part, not significant, and were mostly of a minimal inconvenience.

18      The plaintiff had little or no treatment for his lower back or neck up until the transport accident.  He did complain to various doctors from time to time of lower back and neck symptoms, but the complaints were not of a significant level to justify any specific treatment, apart from radiological scans of his neck. Had the symptoms been unduly troubling or acute, he believed the probability was that the solicitors advising him with respect to his WorkCover application would have included the back and neck injury as a basis for that historical WorkCover claim.

19      The plaintiff believed the symptoms in his lower back and neck prior to the transport accident were of a nature and degree consistent with the aches and pains that manual workers experience in those areas from time to time.  The nature, degree, extent and permanence of the injury sustained to his lower back and neck in the transport accident were fundamentally different from that which he experienced prior thereto.

20      In consequence of the transport accident injuries, the plaintiff sought almost immediate treatment from his long-term general practitioner, Dr Gorgioski, who continued to review him.  The plaintiff was referred to Dr Symon McCallum, anaesthetist and pain specialist; Mr James Chiu, orthopaedic surgeon; Dr Meena Mittal, pain specialist and anaesthetist, and Mr David de la Harpe, orthopaedic surgeon. 

21      The plaintiff underwent extensive treatment for his transport accident injuries and had a wide range of investigations.  He had acupuncture, chiropractic, occupational therapy, osteopathy, physiotherapy and hydrotherapy.  He was prescribed medication of various types, in addition to the medications Dr Wahr had previously prescribed, and continued to prescribe.

22      As of November 2017, for his transport accident injuries, the plaintiff was taking Voltaren, 50 milligrams, two daily; Panadol, 500 milligrams, as required, normally two per day, and medications prescribed by Dr Mittal, including Pregabalin, Tapentadol and Norflex.  He also used heat packs and a TENS machine regularly.

23      In February 2017, the plaintiff underwent bilateral lumbar L4-5 and L5-S1 diagnostic medial branch blocks organised by Dr Mittal.  On 26 July that year, he had a bilateral L4-5 and L5-S1 radiofrequency neurotomy.

24      Mr Chiu, who was treating the plaintiff for his shoulder injury, suggested an ultrasound-guided cortisone and local anaesthetic injection, but that had yet to be approved by WorkCover.

25      At an early stage, the plaintiff consulted Mr de la Harpe for his diagnosis and assessment.  He advised the plaintiff he did not consider he would benefit from any operation.

26      As of November 2017, the plaintiff suffered from pain in the neck, which came and went in varying severity.  When it was severe, it was unbearable and he suffered a pain like an electric shock.  Sometimes, it was more of a dull ache.  When it was severe, he would rate it as 7 out of 10.  He emphasised that this pain, in nature and degree, was nothing like that he had experienced prior to the transport accident.

27      Those symptoms affected his ability to obtain sleep, driving and operating a car, such as turning his neck to keep a lookout, and if he stood or sat for too long his neck pain worsened.  His neck was also quite restricted in all movements. Symptoms were improved and relieved, if only temporarily, by medication, which helped the plaintiff function to some extent; however, the neck injury pervaded so many aspects of his life and restricted his enjoyment of life generally.

28      Lower back pain was the most severe of the injuries sustained in the transport accident.  It was near constant, fluctuating in severity, but when it was severe it was unbearable and he rated it as 10 out of 10.  The pain was made worse by sitting or standing for too long or trying to bend or stoop.  It was also worsened by walking for any distance, and if he had to do so, he had to take periodic breaks.  The back pain inhibited the plaintiff’s ability to drive or sit in a car for any length of time.  His normal limit was half-an-hour, at which point he had to stop and take a break.

29      The plaintiff also suffered from intermittent pain in the right hip and, on occasion, a burning-type pain in the right foot, which Dr Mittal advised was probably radiated pain from his lower back.

30      The plaintiff then suffered left shoulder pain which came and went.  In a bad phase, it was quite unbearable, again, being 7 out of 10 on the pain scale.  That pain was made worse if he tried to lift any object or place any stress or strain on his left shoulder.  When shopping, he had to be careful about how he lifted objects.  He had to avoid activities involving strain on the left upper limb, which meant that he was restricted in any activity requiring use of that limb.

31      The plaintiff had a small garden at home and, prior to the transport accident, embarked upon gardening activities.  Although he then tried to dabble in the garden, he was more restricted since the injury.

32      Prior to the transport accident, the plaintiff was involved in home maintenance, but since, although he tried maintenance and handyman duties around the home, he was definitely more restricted.  Even if he engaged in the most modest physical activity, he paid for it by the onset of unbearable lower back pain.

33      The plaintiff still endeavoured to do some of the family shopping but had to be very mindful not to lift heavy shopping of excessive weight, or engage in activities which would worsen his lower back pain.

34      Since the transport accident, the plaintiff had suffered an increased level of loss of fitness and a general feeling of being unwell and unfit.  He had put on about 11 kilograms since the accident, which he believed was due to his enforced physical inactivity and the effects of additional medication taken since that accident.

35      Prior to the transport accident, the plaintiff had bouts of being emotionally up and down.  Generally, he had a peaceful and harmonious home; however, since that accident, because of his pain level, particularly in the lower back, he tended to become irritable and moody, and even bad tempered.  He simply became angry, he thought, due to the pain and the frustration.  He had become a more uncommunicative person since the transport accident.  As a result, the quality of his marital and family and friends’ relationships had deteriorated quite significantly compared to the pre-transport accident situation, and that considerably affected both his participation in, and enjoyment of, life generally.

36      As a result of his spinal injury, the plaintiff was also inhibited in walking on uneven or unstable ground or ascending or descending steps.

37      As a consequence of the transport accident, the plaintiff’s motivation appeared to be diminished and he felt constantly tired and fatigued and without energy.  This situation had deteriorated compared to the pre-transport accident situation.

38      Despite the extensive treatment the plaintiff had undergone, including the bilateral radiofrequency neurotomy, frustratingly, he had enjoyed no relief from pain apart from short relief following the medical procedures.

39      As of February 2019,[5] the plaintiff continued to be treated by Dr Gorgioski two or three times a month.  He monitored the prescription of medication, which included Felodipine, 5 milligrams each morning; Atacand, 16/12.5 milligrams each morning; Lipitor, 80 milligrams each morning; Voltaren, 50 milligrams twice a day; Panadol, 500 milligrams, (one or two, three times daily) and Normison, 10 milligrams, (two tablets at night.)

[5]Second affidavit

40      Dr Mittal referred the plaintiff for a bilateral L4-5 and L5-S1 radiofrequency neurotomy, which was undertaken on 22 January 2019, funded by the defendant.  So far, the plaintiff had enjoyed some modest relief of symptoms following that procedure.

41      In more recent times, the plaintiff had also been referred back to Mr Chiu, Mr McCallum and Mr de la Harpe.

42      In January this year, Mr Chiu wrote to the defendant seeking approval for an ultrasound-guided cortisone and local anaesthetic injection to the plaintiff’s left shoulder and biceps tendon sheath.  This procedure, which was approved by the defendant, was scheduled for 7 February 2019.

43      The plaintiff continued to see Dr Wahr for the previous work injury, every six weeks, and he continued to prescribe the medication as earlier.

44      Dr Mittal had requested the defendant accept liability for a gym and hydrotherapy program, but that had yet to be approved.

45      Because the plaintiff found it beneficial, he attended the local gym on an intermittent casual basis at a cost of $7 to $8 a visit.  Unfortunately, because he was on a pension, he could not afford to attend the gym on a regular basis if he had to pay for it.

46      The plaintiff had also been unable to undertake any further physiotherapy, as the defendant had ceased funding.  A request for a more appropriate bed, supported by Dr Gorgioski, had not been approved by the defendant.  Funding has also been ceased for cream, which the plaintiff was using to help control pain in his spine and left shoulder.

47      The plaintiff continued to use the TENS machine, funded by the defendant, once every day, sometimes in the morning and sometimes in the afternoon or night.  He used if for thirty to forty minutes, which he believed was the maximum safe continuous period to use it.  It gave him temporary relief for a couple of hours.

48      The plaintiff continued to suffer the symptoms described in his 2017 affidavit and there had been otherwise no improvement or deterioration in those symptoms. The effect of the injuries on his range of life activities remained as earlier deposed, save that he now weighed some 20 kilograms more than he did prior to the transport accident.

49      As of 24 September 2019,[6] the plaintiff continues to be reviewed at varying intervals by his general practitioner, by Mr de la Harpe, Mr Chiu, Dr Mittal and Dr Wahr.  He continues to use his TENS machine and is yet to be able to access physiotherapy or hydrotherapy as funding ceased.

[6]Third affidavit

50      Since earlier this year, the plaintiff takes the following medication on a daily basis:  Panadol, 500 milligrams (as directed), Voltaren, 50 milligrams, (one tablet twice daily), Normison, 10 milligrams, (one tablet at night), Panadeine Forte, 500 milligrams/30 milligrams, (one tablet every four hours), Mirtanza, 45 milligrams, (two tablets at night), Quetiapine, 200 milligrams, (one tablet at night), Serenace, 1.5 milligrams, (one tablet at night), Felodipine, 5 milligrams (one tablet each morning), Atacand, (one tablet each morning), and Lipitor, (one tablet each morning).  He continues to use cream and wear a belt to support his back.

51      The plaintiff confirmed the contents of his second affidavit, adding that the pain in his lower back on an average good day is about 6 to 7 out of 10.

52      Following the second radiofrequency neurotomy in January 2019, the plaintiff enjoyed a temporary improvement in his back pain; however, he found from about March 2019, he experienced a gradual but definite deterioration with that pain to the stage that by June 2019, he had difficulty with mobilisation and prolonged sitting or standing.  The symptoms in his lower back remain at this deteriorated status.

53      Because the plaintiff was experiencing significant ongoing left shoulder symptoms, Mr Chiu arranged the injection in March 2019.  The plaintiff later saw Mr Chiu in May and July 2019.  Since then, the pain and movement in and of the left shoulder had improved, although the plaintiff still suffered troublesome symptoms.

54      Dr Mittal suggested the plaintiff, from time to time, and as recently as 23 July this year, undergo treatment by way of spinal cord stimulation. Also, pain management was open to him.  While he had carefully considered these treatment options, the plaintiff’s inclination was to refuse them.  He thought the stimulation was invasive, with risks involving picking up a hospital infection.  Also, the January 2019 radiofrequency neurotomy had proved to give him no long-term benefit and he was concerned he might well have the same negative outcome with the spinal cord procedure.  He was not persuaded a pain management program would make any difference to him and it would be expensive and futile.  He believed that with the medical health he had already enjoyed for some years that he had a good insight into his pain and how to best manage it.

55      The effects of the injuries on the plaintiff’s range of life’s activities remained as earlier deposed, save that he attempted occasionally to cook basic meals and his weight gain was now some 20 kilograms.

56      Since his second affidavit, the plaintiff had attended some local soccer games in which young men in the Macedonian community participate.

57      Since his previous affidavits, the plaintiff has not engaged in any work activity and has not received any income accordingly.

58      The plaintiff was extensively cross-examined about his pain and lifestyle, both pre and post transport accident.

59      The plaintiff described lower back pain pre transport accident was a slight pain and is a lot worse now.[7]  He could not say exactly when it started, but it was probably at least a couple of years before the accident itself.[8]

[7]T12

[8]T13

60      Before the transport accident, there was some slight neck pain, but it is a lot worse now.  He could not tell exactly how long the pain had been there.  There was some pain, but not so much during the year before the transport accident.[9]

[9]T13

61      The plaintiff could not remember to which doctors he complained about pain in his lower back or neck before the transport accident.

62      When asked whether he complained of persisting neck pain to Dr Gorgioski as early as 2003, the plaintiff did not remember exactly when he would have started complaining about the pain.  When the plaintiff was told he had seen this doctor at least six times for his neck pain in the year before the accident, the plaintiff could not say how many times he had complained of neck pain.  He could remember going and complaining, but not exactly how many times.  He was complaining of different pain at different times, but he could not remember exactly. Perhaps he complained in the year before the transport accident of lower back pain, but how many times and when he could not say.[10]

[10]T14

63      When asked about Mr Dunin’s report of the 15 May 2012 consultation, where under “Present History” Mr Dunn noted the plaintiff complained to him of pain in the neck, the plaintiff did not even remember seeing that doctor.  He probably did, but he could not recall when.[11]  He agreed, in the two years prior to the transport accident, he did have pain in his neck, “not as much.”  In particular, he did not know how many doctors he saw and what he said to them.[12]

[11]T14

[12]T15

64      The plaintiff would probably have told Dr Wahr on 3 August 2012 that he had a lot of pain in the shoulder, neck and the back. [13]  He did have pain, but the pain was not as bad as it is now.  He was not saying there was not pain, but he did not remember the “actual situation.”[14]

[13]T15

[14]T16

65      The plaintiff was asked about Dr Wahr’s notes of a consultation on 27 February 2013, when he recorded the plaintiff was in pain in the lower back, the right shoulder, and the neck is the worse.  The plaintiff remembered the right shoulder was always very painful, but there was perhaps pain in the neck and lower back, but how much at that point in time, he could not tell.  He did have pain.  He was not denying there was pain, but not as bad as it is now.[15]

[15]T16

66      The plaintiff was asked about an examination with Mr Brearley in April 2013, where he recorded that the plaintiff continued to have problems with his right shoulder and neck, and also symptoms from his Post-Traumatic Stress Disorder.  The plaintiff agreed, in the twelve months to April 2013, he had problems with his neck and there had been no real change in his condition.  He agreed the pain was more on the right side of his neck at that stage.[16]

[16]T17

67      Neck pain is now constant.  Prior to that it was not.[17]  The plaintiff denied it was persistent pain.  He denied suffering persistent back pain in the year before the transport accident.[18]

[17]T17

[18]T18

68      In the twelve months prior to the transport accident, the plaintiff agreed there was some pain in his neck, but it has been a lot worse after the accident.  It was not constant.[19]  It was not so bad.  There was pain, sometimes more so than others, but it is a lot worse now.[20]

[19]T18

[20]T19

69      The plaintiff did not think that the neck pain before the transport accident was as bad as it is now, and that is why he said earlier neck pain was slight compared to what it is now.  He disagreed the back pain, pre transport accident, was constant.[21]

[21]T19

70      Before the transport accident, the plaintiff did not have any problems with sleeping.  He then said he could not deny he sometimes could not sleep because of his pain.  His sleep was interrupted, but not all the time.  He just kept waking up, but he did not know whether that was because of the pain.[22]

[22]T19

71      The plaintiff could not recall telling Mr Dunin in May 2012 that he slept poorly. He sometimes slept poorly, not all of the time, it varied.  He did not remember. Perhaps he told Mr Dunin in June 2012 - “I don’t sleep”.  If that was recorded, he must have said it, but he did not remember.[23]

[23]T20

72      About two years before the transport accident, the plaintiff agreed he had difficulty sleeping, not as bad, and not all the time.[24]

[24]T21

73      The plaintiff was asked about a disability questionnaire which appeared to have been completed on 15 June 2012.  Section 7, relating to sleeping, set out “Because of pain, I have less than four hours’ sleep”.[25]   Perhaps there were periods when he was sleeping less.[26]

[25]T23

[26]T24

74      Dr Davison reported in June 2013 that the plaintiff’s sleep was disturbed by pain.  Perhaps it was then, he did not know how much the pain was.  That was an issue with his right arm and he could not sleep because of that pain and could not sleep on that side.  But this was not on a regular basis.[27]  Just before the transport accident, the plaintiff managed to get some sleep and things were a lot worse with him now.[28]

[27]T26; Whilst the plaintiff was criticised for not deposing to problems sleeping before the transport accident, he had mentioned this issue in his WorkCover affidavits.

[28]T26

75      In terms of current sleeping, when it was suggested that he had difficulty sleeping because of pain in his right shoulder, the plaintiff explained it was more so the lower back and left shoulder now.  He then conceded his right shoulder pain still gives him some difficulties.[29]

[29]T28

76      The plaintiff agreed, pre transport accident, he had significant difficulty driving because of his right shoulder and could not really drive for longer than twenty minutes.[30]   He can drive thirty to forty minutes.  There has been an improvement with his right shoulder so he “kind of manages more to use both arms rather than one, as back then”.[31]

[30]T28

[31]T29

77      At the time of the transport accident, the plaintiff did not have much of a garden.  He did not attend to any home maintenance because of his right arm injury.  He only did light shopping.  He agreed, to a certain degree, before the transport accident he was very lethargic, “not a great deal”.  He could not do much.  He had spent a lot of time each day lying on the couch watching television.[32]

[32]T30

78      The plaintiff agreed that he had significant weight gain from about 2006, but over the time, even in recent times, he thought he gained weight.[33]

[33]T30

79      The plaintiff was taken through various clinical notes as to his weight on medical examinations.

80      Dr Wahr recorded, on 7 April 2006, the plaintiff weighed 93.8 kilograms.  On 27 March 2014, he recorded 102.3 kilograms.  The plaintiff now weighs about 120 kilograms.[34]

[34]T31

81      When he deposed in November 2017 that he thought he had put on 11 kilograms since the transport accident, the plaintiff must have weighed himself.[35]

[35]T31

82      On 22 November 2017, Dr Wahr recorded the plaintiff weighed 107.8 kilograms.  That was probably correct as recorded.  On 2 January 2019, he recorded the plaintiff weighed 112 kilograms.[36] 

[36]T32

83      When it was suggested to the plaintiff that he gained about 10 kilograms since the transport accident, he said he could only estimate himself, but the doctors would have accurate figures – “it is what it is”.  He has gained a lot of weight, he is a lot slower and he gets told that he had put on a lot of weight.  He suggested he had put on 20 kilograms because “that is the way he felt and going back to what he was and what he is, that is what it is”.[37]

[37]T33

84      The plaintiff was asked about his reference in his most recent affidavit to attending soccer matches since he swore his second affidavit in February 2019 and also asked about Dr Firestone’s note in his August report, that in good weather and if he is not in pain, he attends the soccer weekly.[38]  The plaintiff stated he had been going to the soccer for many years since he came to Australia.[39] 

[38]T34

[39]T37

85      The plaintiff was asked whether, by the time of the transport accident, he had become very argumentative and very irritable.  He did not know about the latter.  He was taken to his WorkCover affidavit, sworn 25 July 2013, where he deposed as follows: 

“I have continued to feel depressed and stressed at my inability to work and the pain and disability that I suffer. I am very frustrated at having to stay at home instead of working and supporting my wife. Despite seeing Dr Wahr I have difficulty coping with my problems of living on Centrelink, and have become very irritable and argumentative. I am very worried about the future.”

86      The plaintiff explained the situation would then have been maybe he was uncomfortable and irritable with his family members at home.[40]

[40]T40

87      Prior to the transport accident, the plaintiff had difficulty standing, but not a lot.  He had difficulty sitting but, again, not as much as now.  He agreed he had problems with standing for long periods before the transport accident because of pain in his shoulder, with his arms hanging down.  He could not sit in one spot for longer periods and had to lie on the couch because of pain in his right shoulder.[41]

[41]T41

88      Prior to the transport accident, the plaintiff had difficulties walking, “but not as bad as it is now”.[42]  Before that accident, “his body just did not feel right” and he could not cope to walk long distances, but now it is much worse and he has to take more frequent breaks.[43]  He thought he did not feel right before because it was the pain in his right shoulder and also the medication he was taking. 

[42]T41

[43]T42

89      The plaintiff agreed, to a certain extent, before the transport accident, the pain in his neck and back also caused difficulties standing and sitting, maybe, but not so much.  He agreed it also caused him pain walking before, but not so much.[44]

[44]T42

90      Before the transport accident, the plaintiff had difficulty lifting things with both hands because of the pain in his right shoulder.[45]

[45]T43

91      The plaintiff could not recall Mr de la Harpe asking him in 2015 whether he had any back pain prior to the transport accident.  Maybe he asked him.  He could not remember telling him there was no past history of back pain.  When asked whether he agreed he had some back pain prior to the transport accident, the plaintiff said he was not undergoing any treatment, or anything for it.[46]  He did not remember and could not be 100 per cent, whether he had an interpreter when he saw Mr de la Harpe in June 2015.[47]

[46]T43

[47]T45

92      The plaintiff disagreed that he told Dr Firestone on 30 July 2019 that nine months after the shoulder injection, his left shoulder no longer distressed him.  It was not as bad as it was and the injection had been beneficial.  At this point of time, it is better.[48]

[48]T44

93      In re-examination, the plaintiff explained, before the injection, shoulder pain varied anywhere from 7, perhaps even 9 out of 10 at times.  About a month or two after, it was about 5 or 6 and now, perhaps a little bit lower, pretty much around that, maybe 5 or 6.[49]

[49]T45

94      On a scale of 1 to 10, before the transport accident, the plaintiff’s back pain was about 2 or 3, and after it had escalated to about 7, and at worse times, even to 10.  Presently, perhaps today, 7 or 8.  Today is pretty much an average, and he wears a support belt that gives him some support in the back and changing his position makes it better.[50]

[50]T46

95      Before the transport accident, the plaintiff’s neck pain would have been 2 to 3 out of 10 and after it 7 to 9; at times 10.[51]

[51]T46

96      Currently, the plaintiff cannot sleep because of pain in his lower back.  He has pain in the left arm.  In the neck, sometimes he gets pain, sometimes in the right shoulder. This is the pain that causes the interruption in his sleep. The right shoulder pain is quite dull, so probably 2 to 3 out of 10 at present.[52]

[52]T46

97      The plaintiff repeated that he does not have much of a garden, but he tries a little bit here and there, whatever he can.  If he were to do something, he would find it difficult to bend or twist, or do that sort of movement.  It is harder for him to do things after the transport accident than before.[53]  He then said he hardly did anything in the garden, it is not much of a garden.  He could not do anything; even if he wanted to, he could not do much.[54]

[53]T47

[54]T48

98      The plaintiff did some work around the house before the transport accident, “not a lot, but some”.  He has tried, but cannot do much, or lift heavy things after the transport accident because of the pain in his lower back and arm.[55]

[55]T49

99      The plaintiff can drive thirty to forty minutes, but not more than that, because of pain in the lower back and also his left arm, and he needs to stop and have a rest.[56]

[56]T49

100     The plaintiff has probably gone to fifteen or seventeen soccer matches this year.  He has pain when he goes; he stands; he sits; he leans.  The pain is mainly in his lower back.  It interferes with his enjoyment, but he feels he needs to get out there and be with his friends, which is helpful.  He was able to sit, stand and walk more before the transport accident.  He cannot do as much now.  His walking distance is shorter and his sitting tolerance is less.[57]

[57]T50

101     Before the transport accident, the plaintiff was taking medication for his right shoulder injury, but now he takes it for his lower back and that seems to help his arm as well.  His doctors changed his medication.

102     The plaintiff was taking Voltaren and Panadol before the transport accident for his right shoulder.  He now takes Panadol, Voltaren and sleeping tablets, which have started after the transport accident. His doctor has recommended he take Panadeine Forte, one tablet every four hours. He did not think he took it before the transport accident.  As far as the plaintiff knew, he was taking one Voltaren before and now takes two. [58]

[58]T51

103     The plaintiff continues to use a TENS machine and heat packs, and he still applies cream to his shoulder and lower back.  His mental state depends on the level of pain, “so there is some form of impact”.[59]

[59]T52

WorkCover affidavit

104     In his affidavit sworn on 21 March 2011, the plaintiff deposed to ongoing problems with his right shoulder since the work injury.

105     The plaintiff deposed that the injury to his shoulder had had a severe effect on his ability to perform day-to-day activities.  He still did as much as he could around the house by relying mainly on his left hand.  He struggled to mow the lawn and painting was now not possible.  He was not able to do any tasks requiring over shoulder use of his right arm.  He drove, but gripping and twisting actions and turning to look behind brought on more pain, and restricted the time he could drive.  The continuing pain had made him reluctant to attend soccer matches, which he used to love doing before, and he had become very lethargic and spent a lot of each day lying on the couch, watching television.  He did try and exercise by walking around the block as much as possible.

106     The plaintiff was then seeing Dr Gorgioski about every fortnight.  He prescribed Di-Gesic and Panadeine Forte for shoulder pain, and the plaintiff also took Panadol.

Lay evidence 

107     The plaintiff’s daughter, Diana, swore an affidavit on 29 April 2019.  She has lived with the plaintiff all her life and is presently studying beauty therapy.

108     Diana was also involved in the transport accident.  She is unable to work and is having treatment for her accident injuries.

109     Diana had seen a big change in the plaintiff since the transport accident, mainly due to his lower back pain.  She recalled he had some back pain from time to time prior thereto, but nothing like the pain she has seen him have since.  She did not believe he had ongoing treatment for back problems prior to the transport accident.

110     Diana confirmed that since that accident, the plaintiff has complained very regularly to her about lower back pain and she is aware of treatment he is having now that he was not having before the accident.  She has also seen him more depressed due to back pain and has become more irritable, moody and quite bad tempered.

111     Diana confirmed she had seen the plaintiff with left shoulder pain, which she did not recall him having before the transport accident.  Due to his lower back pain, the plaintiff had problems with mobility and sitting and standing.

112     The plaintiff’s right shoulder pain continued, as well as the psychological problems he had had pre-accident. He also had neck pain, with the added problems of serious lower back pain, and a left shoulder problem from the transport accident made him more depressed, and left him in an increased state of pain. 

113     Diana sometimes attends medical appointments with the plaintiff to do the interpreting.  She is aware of the extensive treatment he has had for his lower back and left shoulder.  She also goes to Dr Wahr’s appointments and knows the plaintiff complains to him a lot more about lower back pain than before the transport accident.

114     Diana believes the plaintiff has put on quite an amount of weight since the transport accident, and is much less active, and his general level of fitness have declined.  He is much less physically active around the home, with handyman activities, their small garden and the like.

The Plaintiff’s medical evidence

Treaters

115     When Dr Gorgioski reported in September 2017, he advised that he had seen the plaintiff regularly since the transport accident.  The initial complaints were left-sided neck pain, headache and lower back pain.  The plaintiff had restricted movements of his neck in all directions and restricted movements of his lumbar spine.

116     The following investigations were organised: 

·        cervical CT scan in 21 June 2012 and June 2014

·        a lumbar CT scan in June 2014, and

·        an MRI scan on 23 April 2015.

117     The plaintiff was referred to pain management specialist, Dr Mittal.  He continued to see Dr Wahr and was also examined by Mr De la Harpe and Mr Chiu regarding his left shoulder.

118     As of September 2017, the plaintiff still had restricted movements of his neck in all directions and lumbar spine.  Treatment had been conservative.  He was on Panadol, Voltaren and Panadeine Forte, Nexium for indigestion, and medications prescribed by Dr Wahr. He was also being treated with hydrotherapy and physiotherapy.  He had had an L4-5 and S1 diagnostic medial branch block, with very minor pain relief, in June 2017.  He also had radiofrequency neurotomy.

119     Dr Gorgioski noted the plaintiff did not have previous injury to his neck and lower back, and following the transport accident, he suffered from Post-Traumatic Stress Disorder, aggravated by an alleged transport accident; whiplash of his neck with aggravated degenerative changes of the cervical spine and degenerative disc; aggravated degenerative changes of his lumbar spine and disc injury to L3-5 and L4-5 and soft tissue injury to the left shoulder.

120     Dr Gorgioski then thought the plaintiff should continue with conservative treatment for an indefinite period.

121     Dr Gorgioski reported in April 2019 that he had seen the plaintiff regularly and he still complained of neck pain, which was increased by movements, and left shoulder pain, for which he had an injection or cortisone.

122     The plaintiff still complained of lower back pain, that he could not sit for long periods and drove a car for short distances. He said he could not do heavy housework, like vacuuming, and he could not do any gardening since the transport accident.

123     The plaintiff became very anxious and angry and could not sleep.  He complained of headaches because of the pain and frustration at not being able to do normal things.

124     The plaintiff had been looked after for his lower back pain and general condition by Dr Mittal.

125     Dr Gorgioski noted the plaintiff still had restricted movements in all directions as well as restricted shoulder movements.  His lumbar spine had marked stiffness of paravertebral muscles, with limited extension and flexion.

126     Dr Gorgioski’s diagnosis had not changed.  He had known the plaintiff since the transport accident and he thought his conditions were stable and permanent. Conservative treatment was required for an indefinite period and the plaintiff was not fit for any work for which he was qualified or experienced.

127     In his October 2019 report, Dr Gorgioski noted the plaintiff still complained of anxiety, insomnia and headaches, for which he was receiving treatment from Dr Wahr.  He also complained of neck pain, aggravated by movements.

128     On examination, the plaintiff had restricted movement in all directions.  He complained of left shoulder pain, with restricted abduction and rotation.  He complained of persistent lower back pain radiating to his legs, aggravated by prolonged sitting, standing and bending.  The range of movement was flexion, 45 degrees, extension 10 degrees.

129     The plaintiff told Dr Gorgioski he did not do anything around the house.  He could not do gardening or mow his lawn.  He drove short distances.  He was still treated with Panadol and Voltaren for pain management, and Temazepam for sleeping.

130     Dr Gorgioski concluded, in his opinion, all of the plaintiff’s complaints and impairments were related to the transport accident.

131     The plaintiff was referred by his general practitioner to Mr de la Harpe, orthopaedic surgeon, who first reported in June 2015.  The plaintiff told him there was no past history of back pain prior to the transport accident.

132     On initial examination, the plaintiff said his pain was aggravated by prolonged sitting and standing, and all activity.  He was then taking Panadeine Forte, Voltaren and Serenace.  He was having physiotherapy.  He lived with his family, who did most of the domestic chores.

133     On examination, the plaintiff had a slow guarded gait, there was 45 degrees flexion and 10 degrees extension of the lumbar spine.  Knee jerks were present at the knee and absent at the ankle.  The MRI scan revealed multilevel degenerative change without nerve compression.

134     Mr de la Harpe then did not think any surgery was indicated and suggested continuing conservative management.

135     Mr de la Harpe next reviewed the plaintiff on 17 January 2019.  The plaintiff then complained of ongoing back pain with varying intermittent non-dermatomal leg pain. 

136     Mr de la Harpe noted the plaintiff had undergone three radiofrequency denervations, which he found helpful, and was due for another one the following week.  His medications included Felodipine, Atacand, Lipitor, Voltaren, Panadol, Normison, Panadeine Forte, Mirtazapine, Serenace and Quetiapine.  He had occasional hydrotherapy.  He was not able to do much in the way of domestic chores.

137     On examination, the plaintiff stood in a forward flexed position and had a slow guarded gait.  There was 45 degrees of lumbar flexion and 10 degrees of extension, limited by end range of movement pain.  There was no neurological abnormality in the lower limbs.

138     Mr de la Harpe concluded the diagnosis would seem to be that of degenerative and mechanical lower back pain without specific radiculopathy or nerve root compression. He thought the plaintiff presented as being totally incapacitated, however, there was no neurological abnormality in his lower limbs. 

139     Mr de la Harpe considered it likely the transport accident aggravated a pre-existing multilevel degenerative condition in the lumbar spine, possibly causing the pre-existing symptoms to worsen due to trauma, aggravating the pre-existing degenerative change.

140     Noting the plaintiff did not have a capacity for any employment, Mr de la Harpe thought his condition now would restrict his social, domestic and recreational activities, in so much as he would be limited in sitting time and standing for about thirty minutes.  Walking distance would be impaired and he would not be able to run, climb ladders or undergo activities which involved bending, or repetitive bending or squatting, and it was likely these restrictions on his recreational and social activities would be permanent.

141     Conservative management, while not likely to cure his problem, may give the plaintiff temporary symptomatic relief.

142     The plaintiff was first referred to Mr Chui, shoulder surgeon, by Dr Gorgioski on 31 July 2015, complaining of ongoing neck, shoulder and lower back pain subsequent to the transport accident.  Mr Chiu noted, prior to that time, the plaintiff had not experienced any shoulder or neck pain.

143     There were subsequent reviews in August and September 2015, following which Mr Chiu wrote to the defendant to ask for approval for an ultrasound guided cortisone and local anaesthetic injection to the left shoulder subacromial space, which was aimed to be both diagnostic and therapeutic. 

144     Mr Chiu felt the plaintiff had subacromial bursitis as well as adhesive capsulitis and was further investigating any neck involvement.  When seen, there was significant pain and restriction in range of motion, which impaired the plaintiff’s ability to function with day-to-day activities.

145     On examination, the plaintiff was complaining of significant pain diffusely in his left shoulder, neck and lower back, affecting all aspect of his life, and he was finding it extremely difficult to cope with day to day activities.

146     Three weeks post the injection, which was carried out in January 2019, Mr Chiu reported there had been a positive response in the plaintiff’s symptoms, and he organised a review in four to six weeks.

147     On review on 5 April 2019, there had been an ongoing positive response in the plaintiff’s symptoms. Given the ongoing excellent response, Mr Chiu recommended a conservative approach.  The plaintiff reported he still had pain, but that had improved.

148     Mr Chiu diagnosed left shoulder subacromial bursitis and partial thickness tearing of the rotator cuff, with possibly an element of adhesive capsulitis and possibly chronic pain syndrome.

149     In his September 2019 report, Mr Chiu noted he last saw the plaintiff on 4 July 2019.  Overall, the plaintiff’s left shoulder had improved.  Given the plaintiff was happy with his current symptoms, he preferred a conservative approach.  Mr Chiu considered the plaintiff’s left shoulder problems had a substantial organic basis.

150     Dr Mittal, pain management specialist, reported in 2017 and July 2019.

151     On the first visit, the plaintiff reported that his lower back pain and left shoulder pain had progressively worsened since the transport accident.  He also reported having ongoing left shoulder pain.  Treatment to that stage had included physiotherapy twice a week, with oral analgesics.

152     The plaintiff was then taking: Paracetamol, one g bd (twice daily); Voltaren, 50 milligrams bd; Panadeine Forte, one g bd; Serenace nocte; Nexium; APO-Quetiapine, two tablets nocte; Remeron nocte, and Gaviscon. 

153     Dr Mittal noted the lumbar MRI scan of 23 April 2015.

154     Dr Mittal then thought, in respect of his lumbar spine, the plaintiff was suffering:

(i)overlying musculature pain, given that he had generalised tenderness in that region and was fairly deconditioned with respect to core based stability;

(ii)facet joint arthropathy;

(iii)underlying discogenic pain; and

(iv)lower limb pain, most likely referred from the lower back.

155     Dr Mittal organised a CT SPECT of the lumbar spine to ascertain the location of facet joint arthropathy.  She also recommended the plaintiff commence Pregabalin, 75 milligrams twice daily, to reduce some of the sensitisation.  He also could use heat packs and TENS machine at night.  She recommended ongoing physiotherapy and believed he would be a good candidate for a multidisciplinary pain management program. 

156     Dr Mittal suggested the scan suggested, showed evidence of degenerative arthritis at the L4-5 disc region and both sacroiliac joints.

157     There were subsequent examinations in August, November and December 2015; January, February, March and December 2016 and January, February and June 2017.

158     As at July 2017, Dr Mittal concluded the plaintiff was certainly debilitated by the injuries he had sustained, particularly to his lower back and bilateral lower limbs.  In her view, he certainly had pathology that explained his underlying pain.  She considered there was considerable dysfunction and that it had also affected his recreational, social and domestic life significantly.

159     Dr Mittal then thought the plaintiff’s level of impairment was likely to be permanent.  She noted they were still trialling interventional pain management to assess the response; however, it was unlikely to provide the plaintiff with 100 per cent relief of symptoms. 

160     On 2 February 2017, the plaintiff underwent bilateral lumbar L4-5 and L5-S1 diagnostic medial branch blocks.  Three weeks post procedure he had a 60 per cent of reduction in the first twenty-four hours, which would account for a positive diagnostic test.  He felt that block also assisted him with his mobility, as well as function, and Dr Mittal received approval for a bilateral L4-5 and L5‑S1 frequency neurotomy of the medial branch nerves which ultimately took place on 26 July 2017.

161     Dr Mittal noted the plaintiff reported good benefit from that procedure, with significant reduction of lumbar spine pain, however, over the previous two to three months, as of September 2018, the pain had gradually been increasing. 

162     The plaintiff’s medications then included Quetiapine; Remeron; Panadeine Forte; Paracetamol; Voltaren; Gaviscon and Norflex prn.  He continued to have a slightly antalgic gait and was overweight.  She requested Dr Gorgioski refer him to a dietician, and she also obtained consent for repeat radiofrequency neurotomy.

163     The plaintiff underwent that procedure on 22 January 2019 under the care of Dr Weekes. 

164     On 18 March, the plaintiff reported a 50 per cent reduction in lower back pain, but reported it had been gradually increasing again.

165     The plaintiff was then seen in July 2019, when he complained of progressively worsening back pain with problems with mobilisation, prolonged sitting and prolonged standing.  Dr Mittal did not believe he had a positive response to the second radiofrequency neurotomy performed in January 2019.  She spoke to him about a neuromodulation and spinal cord stimulation.  She also discussed pain management, which the plaintiff declined.

166     On the most recent visit on 23 July 2019, Dr Mittal spoke to the plaintiff again about spinal cord stimulation, but he declined to proceed with the procedure and she told him there was very little she could do to assist him, and referred him back to Dr Gorgioski.

167     Dr Mittal believed there was a substantial organic basis to the plaintiff’s lower back injury – paravertebral muscle spasm, bilateral facet joint arthropathy in the lumbar spine, discogenic pain and sacroiliac joint arthropathy.

168     Dr Mittal was unsure what Mr Speck determined as soft tissue injuries, but certainly the plaintiff’s prognosis with regard to his injuries was “very poor”.  She noted the plaintiff had undergone extensive treatment, including medication and physiotherapy, as well as interventional pain management, and had responded very poorly.  He had declined other suggested treatment and, overall, she noted his lower back injury had been refractory and, as a result, believed he had poor prognosis.

169     Dr Mittal did not believe the plaintiff required neurotomy every year.  His second procedure was unsuccessful and did not provide him with the standard nine to twelve month benefit.

170     Dr Mittal disagreed with Mr Speck’s analysis of the plaintiff’s injury, particularly labelling them all as soft tissue injuries, and also dictated that soft tissue injuries have an excellent prognosis.  That is certainly untrue, and the in the plaintiff’s case, his prognosis is extremely poor.  She also disagreed that the plaintiff has a somatic pain disorder.  She thought there was an underlying organic cause for his presentation and these had been made quite obvious in investigation findings.

171     Dr McCallum reported in September 2017.  He saw the plaintiff in May 2016, in Dr Mittal’s absence, and last saw him in July that year.

172     Dr McCallum agreed with Dr Mittal’s opinion, in which there will be a muscular component to the plaintiff’s pain, with central sensitisation.  He thought the plaintiff’s pain may be discogenic in origin.  In his view, the plaintiff’s pain was more likely to come from the facet joints rather than the sacroiliac joint, and that is why he changed the procedure that was requested.  He also agreed that the plaintiff’s lower lumbar pain was most likely to be referred from his back.  He was under the impression from the history provided and from the consultations, that the plaintiff’s back pain was made much worse following the transport accident.

173     When Dr McCallum saw the plaintiff, he was quite disabled by pain.  He thought the injury is not minor and neither was it life threatening.  It would probably be moderate in severity, but the disability caused was significant.

Investigations

174     The plaintiff had a CT scan of his lumbar spine on 5 June 2014, following which it was reported there was L3-4 to L5-S1 mild to moderate degenerative disc disease.  There was moderate L3-4 and L4-5 central canal stenosis.

175     There was an MRI scan of the lumbar spine on 23 April 2015.  It was reported disc abnormalities were demonstrated within the lumbar spine.  At L3-4, there was mild canal stenosis and minimal contact of the traversing left L4 nerve root.  At L4-5, once again, minimal encroachment on the anterior aspect of the traversing left L5 nerve root was noted by disc.

176     A nuclear bone scan study was carried out in July 2015.  There was evidence of degenerative arthritis noted in the L4-5 disc region and in both sacroiliac joints.  Increased tracer activity was noted in the inferior part of the sacroiliac joints, which also raised the possibility of inflammatory sacroiliitis.

177     Dr McCallum organised a weightbearing MRI scan of the lumbosacral spine in May 2016. 

178     At L5-S1, there was a considerable decrease in disc height and disc signs, indicating advanced degenerative disc disease with no evidence of disc herniation, central spinal canal stenosis or nerve root impingement.

179     At L4-5, there was degenerative disc disease with a moderate reduction in disc height.  Broadbased posterior central disc bulging contacts the right and left L5 nerve roots in the lateral recesses and slightly impinges on the spinal cord.  There was bilateral facet arthropathy.  No significant neural foraminal compromise. 

180     At L3-4, there was disc desiccation with reduced T2 disc signal and prominent broadbased disc bulging.  There was prominent broadbased posterior central disc bulging indenting the anterior thecal sac and compromising the lateral recesses bilaterally. There was mild central spinal canal narrowing, with a contribution from ligamentum flavum hypertrophy.

181     At L1-2 and L2-3, there was disc desiccation without evidence of disc herniation or nerve root impingement.

182     It was reported there was multi-level degenerative disc disease as described, with broadbased posterior central disc bulging at L3-4 and L4-5 as described.  There was mild central spinal canal narrowing at L3-4, with a contribution from ligamentum flavum hypertrophy.

The Plaintiff’s medico-legal evidence

183     The plaintiff was examined by neurosurgeon, Dr Aliashkevich, in May 2019.

184     Dr Aliashkevich noted the plaintiff’s medical history included intermittent lower back and neck pain related to his heavy manual work.  The symptoms were mostly of a minimal inconvenience to him.  These were investigated, but did not require any significant treatment.  At the time of the transport accident, the plaintiff had been receiving a disability support pension for his work shoulder injury since 9 July 2007.

185     On examination, the plaintiff complained about lower back pain which comes and goes.  It fluctuated in severity, but when it was in the severe phase, it was unbearable, and the plaintiff rated it 10 out of 10, and on an average good day 6 to 7 out of 10.  The plaintiff also had left shoulder pain which comes and goes, and when it was in a bad phase, it was quite unbearable at 8 out of 10, and on a good day 4 to 5 out of 10.

186     The plaintiff advised he regularly takes Voltaren, two tablets a day; Panadeine Forte, one table four hourly, and Panadol as directed.  He also took Normison to help with sleeping and he took medication for his psychiatric condition.

187     Dr Aliashkevich noted the plaintiff weighed 114 kilograms and he had gained over 20 kilograms since the transport accident.

188     The plaintiff advised that as a result of his ongoing pain, he was limited in his domestic, social and recreational activities.  He did not do cooking or laundry as this was done by family members.  If he needed to, he tried to cook something basic.  His younger daughter acted as his carer.  He found it hard to look after his hygiene, but did it himself. 

189     The plaintiff tried to do some of the family shopping but had to be very mindful not to lift in excess of 5 kilograms.  He avoided walking for more than twenty minutes without needing to take a break.  He was inhibited in walking on uneven or unstable ground, and using steps.  He could sit and stand for between twenty to thirty minutes and could drive for up to thirty.

190     Dr Aliashkevich noted, prior to the transport injury, the plaintiff enjoyed his small garden at home.  He now tries to do some gardening.  He was involved in home maintenance and is now definitely more restricted.  If he does engage in even modest physical activity he has unbearable lower back pain.  The plaintiff felt that, since the transport accident, because of the level of his pain he tended to become irritable, moody and even bad tempered.  That had affected the quality of his relationships.  He felt constantly tired, fatigued and lacking motivation.  His current hobbies included some socialising and attending soccer games.  He did not do those activities as much as before.

191     On examination, the plaintiff had slow gait with stiff posture.  He was wearing a supportive lumbar belt.  He was able to stand on his heels or toes, but struggled with squatting more than halfway because of pain.  Movements in the lumbar spine were restricted, with flexion possible to only 45 degrees, extension to 5 degrees, and lateral bending possible to only 10 degrees to both sides.  Tenderness was found on palpation in the mid-lumbar and interscapular region without muscular guarding. 

192     Having regard to the plaintiff’s history and mechanism of the stated transport accident, chronic and refractory character of back pain since the accident, failed long-term relief after conservative treatment, acceptance by the insurer of liability for the medial branch blocks and radiofrequency neurotomy, clinical examination, available radiological results and available medical documentation, general practitioner’s notes and the reports of other specialists, Dr Aliashkevich considered the stated injury as a materially contributing factor to a significant exacerbation of a pre-existing degenerative condition of the lumbosacral spine.

193     Dr Aliashkevich agreed with Mr de la Harpe’s opinion that it was likely the transport accident had aggravated a pre-existing multilevel degenerative condition in the plaintiff’s lumbar spine, possibly causing the pre-existing symptoms to worsen due to the trauma aggravating the pre-existing degenerative change.

194     In relation to the transport accident, Dr Aliashkevich diagnosed chronic and refractory lower back pain, chronic and intractable left shoulder pain, Chronic Pain Syndrome, suspected central sensitisation, multilevel lumbar spondylosis, dominant at L4-5, posterior central bulging at L3-4 and L4-5 and mild degenerative central spinal canal narrowing, lumbar facet arthropathy, increased metabolic uptake at L4-5, more than L5-S1 intervertebral discs and both sacroiliac joints and suspected sacroiliitis. 

195     In Dr Aliashkevich’s view, the plaintiff’s back injury sustained in the transport accident had affected his enjoyment of life and recreational, social and domestic activities, to a significant extent. Based on the plaintiff’s complaints, he would assess his residual lower back symptomatology and consequence to his injuries in the transport accident as being moderate on a good day and significant on a bad.

196     Given the longevity and nature of the plaintiff’s problems since the transport accident, Dr Aliashkevich thought his back symptomatology was likely to remain permanent without significant improvement or worsening.

197     In Dr Aliashkevich’s opinion, and based on the results of the plaintiff’s radiological investigations, the most likely organic basis to his chronic lower back pain related to aggravated L4-5 more than L4-S1 intervertebral disc degeneration with increased metabolic uptake on SPECT – CT.  There was also a possibility of exacerbated degeneration of the facet joints and sacroiliac joints contributing to his pain.

198     Dr Aliashkevich agreed with the views of Dr Mittal and Dr McCallum.

199     Dr Aliashkevich provided a supplementary report was provided, as a professional Macedonian interpreter was unable to attend on the first examination after the plaintiff’s daughter acted as an interpreter instead.

200     Dr Aliashkevich concluded there were no discrepancies between the plaintiff’s history obtained using a professional interpreter and his previous report, hence his opinions, expressed previously, remained unaltered.

The Defendant’s medical evidence 

201     Dr Gorgioski’s clinical notes of the plaintiff’s attendances from 1993 to February 2019 was tendered by the defendant. The plaintiff was cross examined about entries in 2013-2014 relating to largely cervical complaints.

202     There were a number of reports available from the plaintiff’s treating psychiatrist, Dr Wahr, dating back to 31 March 2006. He last reported prior to the transport accident on 13 March 2013. The plaintiff also cross-examined about a number of these entries.

203     When seen on 25 May 2012, Dr Wahr noted the plaintiff reported having a lot of pain.  He said he did not sleep.  He was nervous and depressed.  The plaintiff’s daughter told Dr Wahr the plaintiff was irritable at home.

204     When seen on 14 June 2012, the plaintiff weighed 103.7 kilograms.  On 20 July 2012, he weighed 101.6 kilograms.  About the pain, he said “way too much”.  About sleeping he said, “No I can’t sleep at all as I’m sick”.  He was very nervous and said “even more now”.

205     When seen on 3 August 2012, the plaintiff weighed 102.5 kilograms.  He told Dr Wahr he had massive headaches and did not know what was wrong with him.  He had a lot of pain in the shoulder, neck and back. He said he could not sleep.  He was very nervous.  On examination, he had a depressed anxious affect.

206     When seen on 23 August 2012, the plaintiff weighed 103.7 kilograms.  He said he had big problems with sleeping, was very nervous.

207     When seen on 30 September 2012, the plaintiff weighed 100.4 kilograms.  He said he was pretty much the same and tried to be better.  About pain, he said “it’s a lot everything hurts”.  About sleeping he said “sometimes I can’t sleep at all”.

208     When seen on 4 August 2012, the plaintiff weighed 103.6 kilograms and Dr Wahr warned him about his weight. The plaintiff had a lot of pain.  About sleeping he said “I try not so much”.  He advised he felt more stressed out.  On examination, he had an anxious and depressed affect.

209     When seen on 25 October 2012, the plaintiff weighed 100.8 kilograms.  He was pleased with his weight loss.  The pain was still there and he needed tablets.  His nerves were worst.  He said “he slept and he didn’t it varied.  Depression was the biggest thing.”

210     When see on 15 November 2012, the plaintiff weighed 100.7 kilograms.  He reported he had a lot of pain.  He could not sleep, he was thinking about everything, he was depressed but not suicidal.

211     When seen on 6 September 2012, the plaintiff weighed 104.2 kilograms.  On 27 February 2013, he weighed 95.8 kilograms.  He said he was in pain, the lower back the right shoulder, the neck is the worst.  About sleeping, he said “not much I walk around the house”.  He was depressed, but not suicidal.

212     At that stage, Dr Wahr diagnosed an agitated depressive reaction constituting a 50 per cent impairment, which was work-related, and thought the plaintiff could not work in any capacity.

The Defendant’s medico-legal evidence

213     The plaintiff was examined by Mr Gary Speck, orthopaedic surgeon, in April 2019, with the assistance of an interpreter and Mr Speck provided a supplementary report in August this year.

214     The plaintiff told Mr Speck that he suffered onset of pain across the left shoulder and neck, and subsequently added he had back pain from the time of the transport accident.

215     The plaintiff complained of back pain across the whole of his lower back, which increased with activities.  He described it as about 8/10 during the examination. The left shoulder and neck pain moved together.

216     Mr Speck noted, prior to the transport accident, the plaintiff’s day activities were the same as subsequent.  He was restricted, and would watch television, go to the shops, and go shopping with the family or on his own. He would not undertake housework, cooking or cleaning at the moment, but had not done this prior to the transport accident.  He noted it was difficult for him with his right shoulder pain, which he said continued to give him trouble, with it being 6-7/10, and predated the transport accident.

217     The plaintiff said he had not undertaken any maintenance around the house and got people in but, again, this reflected the restrictions already placed on him by his right shoulder injury.  He had trouble with his personal care, for example, with the toilet, because of his right shoulder prior to the transport accident, and continued to have the same difficulties.

218     Mr Speck commented that the current symptoms and physical findings do not reflect ongoing pathology in the neck, nor is there any evidence of radicular pain.  Restriction of shoulder movements, and involuntary restriction of neck movement was noted, for example, on rotations, and would suggest there is a magnification of disability in the presentation.  The lower back symptoms were not consistent with any significant ongoing underlying organic pathology.  He thought Somatic Symptom Disorder would be an appropriate consideration and psychiatric assessment in that regard would be appropriate.

219     In addition to cervical investigations, Mr Speck, had available, the June 2014 lumbar CT scan, the April 2015 MRI scan and the weight bearing MRI scan of May 2016.

220     Mr Speck diagnosed soft tissue injury in the region of the left shoulder related to the trapezius muscle and soft tissue exacerbation in the lower back in the presence of a Chronic Pain Syndrome.  In terms of a diagnosis attributable to any pre-existing or unrelated condition, Mr Speck thought there was the presence of a chronic pain syndrome with widespread complaints of back, neck and shoulder pain over a protracted period, with associated disability.

221     In Mr Speck’s view the prognosis for the soft tissue injuries was excellent and the pre-existing chronic pain syndrome was unlikely to have changed.  He thought any soft tissue injuries relating to the transport accident had resolved, and there was no specific change following that accident and the restrictions for the plaintiff.

222     Mr Speck provided a supplementary report when asked, further, to opine in relation to the impact of the transport accident on the plaintiff’s back condition and relationship to his current situation.  He was provided with reports from Dr Weekes, Mr de la Harpe, Dr Mittal, medico-legal reports from Dr Firestone and clinical records of the Precision Brain Spine and Pain Centre (Dr Mittal).

223     Mr Speck commented, although all the reports addressed the plaintiff’s current situation, a number of them assumed he had no back problems prior and did not consider the degree of disability he already had, related to both his back and right shoulder, such that he was on a disability pension for them.  He did have psychiatric care and attention with Dr Wahr, however, that practitioner also provided treatment for the plaintiff’s Chronic Pain Syndrome and provided certification for his disability support pension in terms of his back and right shoulder condition.

224     In particular, Mr Speck noted Dr Wahr’s Certificate of Permanent Incapacity, dated 8 February 2013, which set out the plaintiff was suffering from lower back injury, agitated depression, stomach problems and right shoulder problems. Back pain was described in multiple visits with Dr Wahr from 1 August 2011.  There was specific reference to back pain on 26 October 2007, 13 August 2008, 30 April 2009, 3 August 2012 and 27 March 2014.

225     Mr Speck was comfortable with the diagnosis of Chronic Pain Syndrome.  As noted in his report, the plaintiff exhibited marked restriction of movement when being specifically measured, compared to when being casually observed.

226     Mr Speck believed his description of the effect of the transport accident as a soft tissue injury being an exacerbation in the context of his pre-existing longstanding back complaints was consistent with Mr de la Harpe’s aggravation, because that practitioner had no acknowledgement of pre-existing back pain, only degenerative change noted on imaging.

227     Mr Speck commented that Dr Aliashkevich’s proper diagnoses, which encompassed all the anatomical descriptors provided in the imaging reports and procedures.  Mr Speck noted the imaging changes were all of a degenerative nature and there was no clear evidence of any of them being caused or specifically aggravated in the transport accident, which was of a sufficiently minor degree that the car was drivable afterwards and the plaintiff was able to proceed in the same vehicle.  There are no localising clinical features, and treatment aimed at the facet joints as a source of his pain have been unsuccessful and discontinued.

228     Mr Speck noted that on 15 June 2012, there was a disability score of 70, which was in the severe range in terms of lumbar back disability.

229     Mr Speck noted all of the reports discount any significant proceeding back condition, fail to recognise and acknowledge the plaintiff was already diagnosed with a chronic pain syndrome, and had significant disabilities in terms of his level of function due to his back condition, right shoulder, mental condition and Chronic Pain Syndrome.

230     Accordingly, Mr Speck saw no reason to change his view that the plaintiff may have had an exacerbation of his lower back pain with the transport accident, but no measurable change in his pain in terms of the site requirements for treatment or levels of activity.  Various interventions had been undertaken, but ultimately accepted, as noted in Dr Mittal’s report, have been unsuccessful, and pain management with medication being the appropriate future pathway for treatment of his chronic pain syndrome and back condition, which pre-existed the accident.

231     Mr Speck noted the reports provided, other than Dr Firestone’s, failed to acknowledge the longstanding Chronic Pain Syndrome, as well as longstanding back pain.  Careful review of the plaintiff’s level of function, medications before and after the transport accident, and the nature of that accident, as well as findings on examination, led to the conclusion that, at most, the plaintiff had a soft tissue exacerbation of his back condition at the time of the transport accident.

232     Dr Firestone, psychiatrist, reported in August 2019, having seen the plaintiff on 30 July.

233     The plaintiff told Dr Firestone that about nine months earlier, his left shoulder was injected and no longer distressed him.  Pain was now confined to the lower back, where there was a constant dull pain which could be sharp at times if he twisted his back.

234     Dr Firestone noted the medication prescribed by Dr Wahr pre-transport accident, and that the dosage of antidepressant had been increased to 90 milligrams from 75 milligrams, and a second major tranquilliser had been added at a low dose, Quetiapine, 200 milligrams at night, which was sedating.

235     The plaintiff advised his other medication was for pain; every four hours he took Panadeine Forte and took Panadol as required, and also Voltaren, a sleeping tablet.

236     Dr Firestone noted, the most significant medication change post-accident, was certainly from Panadol tablets for pain to the opiate, Panadeine Forte.

237     Dr Firestone found no psychiatric injury definitely attributable to the transport accident, however, he tended to agree with Dr Shan and Mr Williams that a chronic pain syndrome was present from the WorkCover accident and that the transport accident had aggravated that condition, and the plaintiff now required significantly more pain medication.

238     Dr Firestone’s own impression was that the plaintiff was an honest reporter.

239     Dr Firestone thought the plaintiff’s outlook was guarded for change and his condition appeared to have stabilised.  In terms of the effect of any psychiatric injuries attributable to the transport accident on the plaintiff’s daily activities, Dr Firestone thought aggravation of chronic pain limits activities.  The plaintiff’s earlier diagnosed Chronic Pain Syndrome continues to affect his activities as before.  His pre-existing Chronic Pain Syndrome made the plaintiff incapable of work as an unskilled and illiterate labourer.

240     Dr Firestone provided a supplementary report, having been provided with Dr Wahr’s clinical notes and review of recent specialist reports.

241     Dr Firestone noted that the reports were in agreement that the diagnosis, whatever it was called, Chronic Pain Syndrome or Central Pain Sensitisation – which a psychiatrist using DSM-5 would call a Somatic Symptom Disorder with Predominant Pain which is Persistent – is present and the outlook is poor.

242     These diagnoses fall into two groups.  The treating doctors at Precision Centre see the outlook as poor and acknowledge that Chronic Pain Syndrome is present, but consider surgical interventions may, nevertheless, be of assistance.

243     Mr Speck and Mr de la Harpe, who are not involved in treatment, do not differ in diagnosis and prognosis, but recommend no surgery.  He noted those two specialists found no evidence that the transport accident caused increase of chronic pain.

244     However, Dr Wahr’s notes lead to a different opinion, describing pain as 10/10 on 2 January this year. 

245     The last medication record available just before the accident of 6 March 2014, was for the antidepressant Mirtazapine, 75 milligrams; Haloperidol, 1.5 milligrams, but the Quetiapine at the low dose of 25 milligrams only.

246     Dr Wahr’s most recent entry of 2 January this year shows medication then with Mirtazapine of 90 milligrams daily and with two antipsychotic medications, Haloperidol, 1.5 milligrams and Quetiapine, 200 milligrams daily.

247     Dr Firestone noted, thus, sedation had considerably increased, and on that basis alone he was obliged to hold with his expressed opinion that a chronic pain syndrome was present for the WorkCover accident and the transport accident had aggravated that condition.

The Defendant’s submissions

248     It was submitted the plaintiff had not made out an aggravation of a degenerative condition in the lumbar spine in the transport accident.  Even if he had done so, he had not identified the actual impairment to the body function that followed and there has been no real engagement in relation to that issue by the plaintiff’s experts or treaters.  In those circumstances, the plaintiff could not successfully undertake the analysis required in Petkovski.[60]

[60]T55; Petkovski v Galletti [1994] 1 VR 436

249     There were also matters that had to be taken into account in accordance with Peak Engineering & Anor v McKenzie.[61]It was submitted there had been no attempt to disentangle and that was really “a stark matter” in this case.[62]

[61][2014] VSCA 67

[62]T56

250     Counsel for the defendant focussed on the plaintiff’s complaints of lower back pain prior to the transport accident.  It was submitted a complaint of pain post accident by itself might not be sufficient for serious injury.[63] Further, it was submitted that the treatment and medication undertaken in this case are not such that would constitute serious consequences.[64]

[63]See Ross AJA in Tatiara Meat Co Pty Ltd v Kelso (2010) VSCA 12 at paragraph [46]

[64]T60

251     It was submitted Dr Gorgioski’s notes clearly set out complaints of neck and back pain before the transport accident, particularly in the year before.[65] Reference was made to entries on 14 July 2003, five entries in 2013, and entries in January and February 2014 of complaints of persisting neck pain, problems with range of movement and complaint of lower back pain, neck pain persisting.[66]

[65]T61

[66]T71; only low back pain complaint was on 31 January 2014

252     The medico-legal reports and treaters reports were questioned, given what was submitted to be an inaccurate history of the plaintiff’s pre-accident spinal condition.  Dr Aliashkevich picked up the words “intermittent pain”, but did not address the issue further.  Mr de la Harpe noted there was no prior back pain.[67]  Dr Mittal also discounted the presence of spinal pain pre transport accident, as did the plaintiff in his evidence-in-chief.[68]

[67]T62

[68]T63

253     In those circumstances, the question was asked, “can you determine from those matters that the car accident resulted in an aggravation of a degenerative condition?”  Those who say so do not give a reasoning process and have the wrong history.  It was submitted the plaintiff was unable to establish on balance the transport accident has resulted in an aggravation of the degenerative condition.[69]

[69]T65

254     There was also criticism of the plaintiff’s case in that no witness delineated what he still experiences in terms of a Chronic Pain Syndrome from what relates to the transport accident.  While Dr Firestone thought the plaintiff’s Chronic Pain Syndrome had been aggravated, there is no application under sub-paragraph (c).[70]

[70]T69

255     It was submitted disentangling had not been done by the plaintiff in evidence-in-chief or in reply.  In those circumstances, the Court was only left with the vaguest evidence.  It was submitted there was no attempt made in the formation of a case in giving evidence-in-chief to actually identify a proper and forensic reasoned way in which the Court could undertake any necessary delineation.[71]

[71]T73

256     Further, Mr Speck’s view that the plaintiff’s day-to-day activities were basically the same before the transport accident as afterwards was relied upon.[72]  Also, the plaintiff is now actually going to a fair bit of soccer; fifteen to seventeen games a year.[73]

[72]T68

[73]T80

The Plaintiff’s submissions

257     Counsel for the plaintiff relied on Dr Firestone, who considered the transport accident aggravated a Chronic Pain Syndrome, following which the plaintiff required significantly more pain medication.  He also thought the plaintiff was an honest reporter.  It was submitted those factors all pointed to the plaintiff as a witness of truth.[74]

[74]T95

258     While the Court, in Peak, gave direction as to the need for disentanglement, there are cases where disentanglement between multiple injuries is unnecessary, because each injury is, on its own, clearly compensable.[75]  It was submitted this is a case where there was clearly a compensable injury to the lumbar spine which obviated the need to undertake disentanglement.[76]

[75]See paragraph [25]

[76]T95

259     Also, there can be multiple serious injuries with the same consequences stemming from them, as the Court held in Dressing v Porter.[77]

[77][2006] VSCA 215

260     Reliance was also placed on Dodds-Streeton JA’s comments in Kelso v Tatiara Meat Co Pty Ltd[78] where her Honour noted that, where chronic pain was a prominent feature of the appellant’s case, the endurance of permanent daily pain requiring frequent medication, must, according to ordinary human experience, raise a real prospect of a “very considerable” consequence.

[78](2007) 17 VR 592

261     The plaintiff’s evidence is that Panadeine Forte and Voltaren has doubled and he has described a much more significant level of pain since the transport accident.[79]  As of September this year, he had increased the dosage and type of medication he was taking earlier in the year.[80]  He now has to take sleeping tablets, although he had problems with sleep before. He now has difficulty bending and twisting.[81]  He has pain when attending the soccer.[82] 

[79]T98, T117.  Dr Firestone confirmed the increased dosage

[80]T104

[81]T99

[82]T100

262     It was submitted, to the extent there was an aggravation of a Chronic Pain Syndrome as found by Dr Firestone, it was relied on for the limited purpose expressed in Richards & Anor v Wylie.[83]

[83]Supra

Overview

Credit

263     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[84]

“… 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. … .”

[84](2010) 31 VR 1 at paragraph [12] and paragraph [11]

264     Counsel for the defendant submitted the plaintiff was not a reliable historian in terms of his pre-accident lumbar pain.  The positive wrong history to Mr de la Harpe could not be explained by the lack of an interpreter.[85]

[85]T75

265     Further, it was submitted what the plaintiff was telling the Court in a subjective way in his evidence-in-chief was not right in basically all respects.  His evidence about his sleeping before the transport accident was not the whole truth.[86]  His  evidence about gardening and home maintenance was unsatisfactory,[87] particularly when Dr Gorgioski recorded, on 10 July 2013, before the transport accident, the plaintiff did not do any work around the house and was only able to do light shopping.[88] The plaintiff’s evidence of weight gain was also unsatisfactory, as was his evidence about his emotional state before the transport accident when one looked at his WorkCover affidavit.[89]

“On the one hand, the plaintiff runs a WorkCover case, painting a picture of himself in a certain way, and then he comes before the Court and does not deal with those impacts, expect for in a very minor way.  To say everything has changed could not be further from the truth.  It is not just a question of a slight misstatement, the fact is he gave clear evidence and ran a case before the Court only a year before the accident of his various difficulties.”[90]

[86]T74

[87]T76

[88]T77

[89]T78

[90]T79

266     It was submitted the plaintiff’s affidavit did not set out any of the consequences that might be attributed to the work injury.[91]  While he mentioned intermittent lower back and neck pain, he did not attribute any consequences to that pain prior to the transport accident. He made no mention of a range of matters before that accident, when it was pretty clear he had pre-existing difficulties with all matters, such as sleeping, gardening, home maintenance, driving, shopping, fitness, emotions, standing, walking and lifting.[92]

[91]T71

[92]T72

267     It was submitted the plaintiff is an unreliable historian.  In the course of the evidence, he sought to downplay the pain in his lower back and neck prior to the transport accident and downplayed any pain and suffering consequences as a result thereof.  He did not deal with this issue at all, except for in a very minor way, and that reflected poorly on his credit.[93]  Further, his evidence sought to downplay the pain being caused by his right shoulder injury, when he was asked in re-examination to compare his pre and post-transport accident condition.[94]

[93]T89

[94]T90

268     In those circumstances, it was submitted there could not be a more difficult case to determine, given the state of evidence that had been led.[95]

[95]T75

269     In response, counsel for the plaintiff submitted the plaintiff was a witness of credit. This was a very significant transport accident with significant physical forces involved, which were consistent with the severity of the symptoms the plaintiff has complained of since.[96]

[96]T92

270     It was submitted, the plaintiff who gave evidence through an interpreter, did so as a straightforward and honest witness.  He did not evade answering questions or prevaricated when he did answer them – normally the hallmarks of an honest witness.[97]  In any event, the absence of an interpreter might be the explanation for some of the defendant’s criticism.

[97]T93

271     Further, it was never is issue that at some stage over the past the plaintiff had intermittent spinal pain.[98]

[98]T94

272     Whilst I accept the plaintiff largely focussed on his transport accident injuries as the cause of his current pain and restrictions, largely downplaying the role played by the work injury in this regard, the fact remains that following the transport accident, the plaintiff has experienced ongoing significant lumbar pain which was not present to that degree before the transport accident and since then, has required significant invasive treatment which continues. It is not simply a case of subjective complaints.

Pre-transport accident health

273     Counsel for the defendant submitted the precise nature of the plaintiff’s injuries and resulting impairment were in issue.[99]  There was obviously an aggravation of an existing injury and it was critical for the resulting impairment to be identified.  There was obviously existing pain in the lower back prior to the transport accident.[100]

[99]T7

[100]T8

274     It was submitted it was a substantial case of disentanglement.  What were the pain and suffering consequences prior to the transport accident?[101]  While it was not going to be a substantial credit case, it was still very much in issue, as the plaintiff said these were things affecting him in his daily life and attributed all of them to the transport accident.[102] Also, the doctors’ opinions were dependent on the histories given by the plaintiff.[103]

[101]T9

[102]T9

[103]T9

275     In Petkovski v Galletti,[104] 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.  …”

[104](ibid), followed in AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309

276     Clearly, the plaintiff had difficulty with a range of activities before the transport accident due to his work injuries- psychiatric and to his right shoulder.

277     The plaintiff had been unable to work for many years and has been in receipt of a disability pension since 2007.  A range of activities were affected by his right shoulder pain – sleep, mobility, fitness, driving, gardening, home maintenance. His mood and emotions were significantly affected by his psychiatric condition.

278     Further, the plaintiff had some spinal complaints, principally to his cervical spine as noted by Dr Gorgioski in the year before the transport accident.  Whilst he reported low back pain to psychiatrist, Dr Wahr, in 2012-2013, in his list of complaints, there was only one mention of lower back pain by the plaintiff during that period to Dr Gorgioski. Further, the plaintiff had no spinal treatment before the transport accident with investigations of his cervical spine only.[105]

[105]Cervical CT scan 1 June 2012, Cervical MRI scan 21 June 2012

The spinal injury – identify and organic

279     The preponderance of medical opinion is that the plaintiff suffered an organically-based lumbar injury in the transport accident – in general terms, an aggravation of a degenerative lumbar condition.

280     I accept there is a new, organically-based, injury to L4-5 relating to the transport accident, which has required quite extensive treatment.[106]  Post accident, the plaintiff has complained of constant, more significant spinal pain, particularly in the lumbar area.[107]

[106]T57, T97

[107]T58

281     As counsel for the plaintiff submitted, the L4-5 problem was a “new player on the block”.  The focus is on the lumbar spine, which is the predominant cause of pain now.[108]  It was submitted that was seen as a new injury, albeit an injury by way of aggravation of largely asymptomatic degenerative change.  It was not said there were not any symptoms at all pre accident, but it was fairly asymptomatic.[109] All of the plaintiff’s treaters consider that the pathology has been demonstrated, in particular, in a weightbearing MRI scan of 2016.[110]

[108]T7

[109]T4

[110]T5

282     Dr Gorgioski thought the plaintiff had aggravated degenerative changes of his lumbar spine and disc injury to L3-5 and L4-5 in the transport accident.

283     Dr Mittal, with whom Dr McCallum agreed, believed there was a substantial organic basis to the plaintiff’s lower back injury[111] – paravertebral muscle spasm, bilateral facet joint arthropathy in the lumbar spine, discogenic pain and sacroiliac joint arthropathy.

[111]T114

284     Dr Aliashkevich agreed with Mr de la Harpe’s opinion that it was likely the transport accident had aggravated a pre-existing multilevel degenerative condition in the plaintiff’s lumbar spine, possibly causing the pre-existing symptoms to worsen due to the trauma aggravating the pre-existing degenerative change.

285     Mr Speck is alone in his view that there is no ongoing pathology and that lower back symptoms are not consistent with any significant ongoing underlying organic pathology.[112] 

[112]T69

286     It appears Mr Speck considered as at the time of the transport accident the plaintiff had longstanding back pain and that there was no measurable change in his pain and need for treatment thereafter – a view I reject.

287     Mr Speck did not adequately explain his view that there had been a soft tissue exacerbation in the low back “in the presence of a chronic pain syndrome” and that the soft tissue injuries have an excellent prognosis.[113]  It is also clear from the plaintiff’s ongoing complaints that the plaintiff’s prognosis is in fact extremely poor, as Dr Mittal described.

[113]T66, T68

288     Further, in my view, the significant investigations and treatment suggested and undertaken by the plaintiff is indicative of there being an organic lumbar condition, as Dr Mittal explained.   

Pain

289     As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[114] the evidentiary basis of the pain assessment will ordinarily comprise, inter alia, what the plaintiff says about the pain (both in court and to doctors).

[114]Supra at paragraph [11]

290     I accept that as a result of the transport accident, the plaintiff has experienced more significant pain in the lower back and intermittent right thigh pain. Despite some improvement following the second radiofrequency neurotomy in January 2019, he has experienced a gradual but definite deterioration, with continuing pain, difficulty with mobilisation and prolonged sitting or standing. 

291     Dr Gorgioski confirmed these ongoing complaints by the plaintiff of persisting lower back pain radiating to his legs, aggravated by prolonged postures and bending, with restricted range of movement.[115]

[115]T107

292     In addition to this general practitioner, a number of examiners have found restriction of lumbar movement on recent examination.  Mr Speck is the only examiner who questioned the genuineness of the restrictions consistently demonstrated by the plaintiff on examination.

293     The pain assessment by the Court also includes what the plaintiff has done about his pain.[116]

[116]T58; Haden (ibid) at paragraph [11]

294     Post transport accident, the plaintiff has engaged in a range of treatment – specialist referral, acupuncture, chiropractic treatment, osteopathy, hydrotherapy and physiotherapy.  He continues to use heat packs and a TENS machine, and wears a lumbar support

295     In more recent times, under the care of Dr Mittal, the plaintiff has undergone bilateral lumbar L4-5 and L5-S1 diagnostic medial branch blocks in February 2017 and in July 2017, bilateral L4-5 and L5-S1 radiofrequency neurotomy. Dr Weekes performed a bilateral L4-5 and L5-S1 medial branch radiofrequency neurotomy in January 2019.

296     Dr Mittal has discussed neuromodulation and spinal cord stimulation with the plaintiff but he is not keen to go ahead with these procedures.  Dr Mittal has also sought funding from the defendant for a gym program and hydrotherapy. 

297     Whilst it is somewhat difficult to ascertain precisely the pre and post-accident medication prescription regime, counsel for the defendant conceded the main difference seemed to be an increase in Panadeine Forte[117] – the plaintiff now taking one tablet every four hours.

[117]T85

298     Dr Firestone noted the plaintiff had required significantly more pain medication following the transport accident.

299     Post transport accident, the plaintiff was also prescribed a range of other medication by Dr Mittal for pain relief including Endone, Pregabalin (Lyrica), Tapentadol (opioid pain medication) and Norflex (muscle relaxant).

300     Whilst counsel for the plaintiff submitted a range of activities had also been affected by the plaintiff’s transport accident lumbar condition, I do not accept that the plaintiff’s ability to engage in these activities has been affected in any significant way. It is not the situation that all the plaintiff’s complaints and impairments are related to the transport accident, as Dr Gorgioski recently opined.

301     Mobility, driving sleep, gardening and home maintenance were among the range of activities significantly compromised before the transport accident.  I do accept, however, lower back pain causes an additional problem with sleep since the transport accident.  Lumbar pain has also further restricted the plaintiff’s mobility and ability to maintain prolonged postures.

302     The plaintiff’s expected mental response to his lumbar pain and restrictions can also be taken into account when assessing the seriousness of his impairment pursuant.[118]   

[118]Richards & Anor v Wylie (supra)

303     However, the main consequences of the transport accident injury are significant lumbar pain and restricted movement and the range of treatment required on an ongoing basis for lower back pain.[119]  In those circumstances, as counsel for the plaintiff submitted, there is no significant issue with “disentangling.”

[119]T58

304     Taking into account all the evidence, I am satisfied the consequences of the aggravation of the plaintiff’s degenerative lumbar condition in the transport accident are “serious”. Despite treatment, there has been no significant improvement in his level of pain and complaint, and further treatment has been suggested by Dr Mittal.[120]  In those circumstances, I accept that this impairment is long term.

[120]T113

305     Having granted leave in relation to the plaintiff’s lumbar spine, I am not required to consider further the left shoulder impairment application.

306     Accordingly, I grant leave to the plaintiff to being proceedings for damages in relation his transport accident injuries.

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