| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KAVIAN -v- MILLER [2005] WADC 143 CORAM : DEANE DCJ HEARD : 2-5 NOVEMBER 2004 DELIVERED : 28 JULY 2005 FILE NO/S : CIV 2704 of 2003 BETWEEN : RAHMAN KAVIAN Plaintiff
AND
CHAD ANDREW MILLER
Defendant
Catchwords: Damages - Assessment - 45 year old butcher/boner - Soft tissue injuries to cervical spine - Involvement of left shoulder and upper limb - Chronic pain syndrome - Residual capacity for work
General damages - Past and future economic loss - Past and future superannuation - Past and future special damages
Legislation: Motor Vehicle (Third Party Insurance) Act
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Result:
Damages assessed Representation:
Counsel:
Plaintiff : Mr B Nugawela
Defendant : Mr T Mason
Solicitors:
Plaintiff : S S Chohaan
Defendant : Jackson McDonald
Case(s) referred to in judgment(s):
Purkess v Crittenden (1965) 114 CLR 164
Southgate v Waterford (1990) 21 NSWLR 427
Case(s) also cited:
Boyes v Collins [2000] WASCA 344
Kschammer v RW Piper & Sons Pty Ltd & Anor [2003] WASCA 298
Thomas v O'Shea (1989) Aust Torts Reports 80-251
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
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1 DEANE DCJ: In this matter the plaintiff alleges that on 28 August 1998 the vehicle which he was driving was struck from behind by a vehicle driven by the defendant and that the accident was caused by the negligence or negligent driving of the defendant. The defendant admits the accident but denies that as a result the plaintiff suffered any injury, loss or damage. It became apparent at trial that the defendant does not take issue with the initial injuries sustained by the plaintiff but says the plaintiff had fully recovered by the time of his return to work on 18 September 1998. The injuries allegedly suffered by the plaintiff as a result of the motor vehicle accident include a flexion/stretch injury to the neck, gash wound to the right forehead, headaches, injury to C4/5 and C5/6 levels of the spine, cervicobrachial or brachiocephalic injury, pain and injury in the left mid and upper cervical facet joint and/or (involving) the left greater occipital nerve. In addition the plaintiff complains of shoulder pain/injury and an impingement injury to the left supraspinatus tendon in the left shoulder region. Finally the plaintiff asserts that as a result of the accident he suffers stress and/or anxiety and/or reactive depression and/or other psychiatric or psychological disturbances. Relevant to his injuries the plaintiff alleges restrictions to his normal social and domestic activities which have led to past economic loss and will continue to result in future economic loss. A claim is made for future medical expenses as well as past and future gratuitous assistance.
2 The defendant denies the plaintiff is entitled to any relief claimed and pleads in the alternative that if the plaintiff has suffered all or any of the injuries alleged, which is denied, then any loss or damage suffered by the plaintiff was caused or substantially contributed to by his subsequent work as a butcher and if the plaintiff has sustained any loss or damage it is as a result of that activity and not the sequelae of the motor vehicle accident. It is apparent that a threshold issue before the Court in this matter is one of causation, if the plaintiff establishes injury, loss or damage.
The plaintiff's evidence 3 The plaintiff was born in Iran on 16 May 1960 and was educated there until the equivalent of Year 12 in 1979. Whilst at school the plaintiff was taught in the Farsi language but studied the English Language for approximately one hour per week. After leaving school he worked for a relative in the construction industry between 1979 and 1982. In 1982 he began a motor vehicle spare parts business in Iran and worked in that occupation until 1986 when he went to work in his father's butcher's shop. In 1993 the plaintiff arrived in Australia as a refugee and
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was placed in detention but released in late 1993 and shortly thereafter was granted permanent residence in Australia. At this time his English was relatively poor and so he commenced a period of study in the English Language in 1994 which lasted for some 510 hours. At the end of this time he believed his English was still poor and so he studied the subject for a further 150-200 hours. The plaintiff's evidence was that he considers his oral skills in the English Language to be better than his written English skills. 4 In 1994 he attended TAFE College at Bentley enrolling in a three month pre-apprentice butcher course but found that he had trouble comprehending the teaching due to his lack of facility in the English Language. Further in his opinion much of what was being taught in the course was material he already knew and understood in the sense that his prior experience working as a butcher in Iran had taught him such things. He was anxious to obtain employment and with some assistance from a teacher in the course, the plaintiff was able to commence work as a butcher with Clover Meats on 27 February 1995. At the end of that year he met his partner, Sheryl Cameron, but as I understood his evidence their relationship was such that they never cohabited for any substantial length of time. Nonetheless they maintained a relationship as a couple and there are two children of the relationship, a son currently aged 8 years and a daughter aged 5 years. 5 On the afternoon of 28 August 1998 the plaintiff who was in his motor vehicle with his two children, was stationary at a stop sign on Roe Highway. It was his intention to turn left on to Tonkin Highway. Whilst his vehicle was still stationary another vehicle collided into the rear of the plaintiff's car causing the plaintiff to strike his right temple area against the window frame of the car door next to him. His evidence was that he received two lacerations to the area, one of which required stitches and he told the Court that he lost consciousness. Though he gave varying estimates to medical practitioners as to the length of time he was unconscious, in the end result the plaintiff was adamant this was the case but he could not be precise as to its duration. His next memory was of a policeman in an ambulance asking if he was alright and requesting that he provide a breath sample for analysis. The plaintiff was taken to hospital where he received treatment including sutures to one of his lacerations and he was discharged about 11.00 pm that evening. 6 Two days later on 30 August 1998 the plaintiff attended his general practitioner, Dr Louie. The plaintiff's evidence was that on that occasion he told Dr Louie the left side of his neck was very sore, that he was
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experiencing headaches and also by that time there was some bruising evident in the area under and around the right eye. He said he told the doctor it was the right side of his face and not the right side of his neck that was injured. As a result Dr Louie certified the plaintiff unfit for work until 13 September 1998. At the expiration of this period the plaintiff's evidence was that he returned to Dr Louie and although the plaintiff denied he was fully recovered or telling Dr Louie this, nonetheless the plaintiff desired to return to work as his job was important to him and he believed that his supervisor at work was unhappy that the plaintiff was having time off work as a result of the motor vehicle accident. 7 On his return to work in September 1998 the plaintiff said he was experiencing difficulty in carrying out his job and had to decrease the overtime he was prepared to do, because of the pain he was suffering. Prior to this time the plaintiff's evidence was that he had enjoyed his job and he had worked up to 65 hours a week including overtime. After his return to work following the accident he could manage only between 40 and 45 hours a week at work and was taking Panadeine Forte as well as Tramil. 8 The work he was required to do was physically demanding in that on occasion it was necessary for him to lift boxes of meat weighing between 20 and 30 kg which were stacked on shelves, the highest of which was some 2 metres from the ground. Once the box had been retrieved it was necessary to take the meat out of it and place the meat on a work bench before boning and cutting it. The plaintiff on occasion was also required to lift meat carcasses weighing up to 50 kg in order to place them on hooks on a rail above his head. 9 In order to cope with his pain at work the plaintiff said he raised his intake of medication but found it increasingly difficult to carry out his job. In March 1999, according to the plaintiff, he was sacked from his position and his supervisor, with whom he had previously had a good relationship, made it plain that he was dissatisfied with the plaintiff's work. 10 In April 1999 the plaintiff returned to see Dr Louie complaining of a cold and sore throat but said on that occasion he also informed Dr Louie that his neck was still sore and he was still taking medication. Dr Louie raised the subject of finalising the plaintiff's claim but, according to the plaintiff, he informed Dr Louie that he was still suffering pain and was concerned at what would occur if the pain worsened. His recollection was that Dr Louie at that point referred him for physiotherapy and to a pain
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specialist. At about this time Mr Kavian said he also had what he described as an MRI scan x-ray. 11 The plaintiff returned to Iran to visit his family between May and August 1999 but on his return to Western Australia was still experiencing neck pain. Whilst in Iran, as I understood the plaintiff's evidence, he underwent some form of traditional treatment similar to acupuncture which would appear to have resulted in some temporary relief. 12 On 1 September 1999 the plaintiff saw Dr Rosenthal and on 10 September 1999 the plaintiff commenced work as a Grade 5 butcher with D'Orsogna. The plaintiff explained that despite still experiencing neck pain he had felt some improvement in his situation on his return from Iran and further he had a strong belief that everybody should work and that it was important to do so. 13 Initially the plaintiff said he enjoyed his job at D'Orsogna and was positive and enthusiastic about his situation, looking forward to attending work each day and considering ways in which he could improve his work situation. He was able to undertake a 65 hour working week and despite experiencing headaches and neck pain he believed he was coping by taking medication which included Panadeine Forte and Aropax or Zoloft for depression. 14 In February 2000 Dr Louie referred the plaintiff to Dr Gee, a pain specialist, and as a result the plaintiff said he undertook an exercise programme which afforded some minor relief to his neck pain and headaches. He participated in the programme after completing work in the afternoons and believed that he did all that was required of him in the programme. 15 When he consulted Dr Rosenthal again in September 2000 the plaintiff informed him that he did not believe he could carry on at work but in fact managed to do so for approximately another 12 months when according to the plaintiff's evidence his condition regarding his neck, shoulder pain and headaches had deteriorated to the point where he was no longer able to pick up meat carcasses and place them on hooks. In addition the nature and amount of medication he was consuming was having a negative affect on him in that he became very forgetful and his concentration was adversely affected. Further his sleep pattern was poor in that he would wake up two to three times a night in pain and on those occasions would take medication and apply cream to his sore neck.
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16 He said as a result of the medication he was taking he developed a rash on his body and informed Dr Louie about this. Dr Louie referred the plaintiff to another pain specialist, Dr Salmon, whom the plaintiff first consulted in approximately May 2001. Initially Dr Salmon administered an injection to the lefthand side of the plaintiff's neck at the C5 facet joint and according to the plaintiff as a result he experienced considerable relief in his shoulder and neck symptoms. This relief lasted for approximately two weeks and then he returned to see Dr Salmon who administered another injection.
17 The plaintiff's evidence was that during this later procedure, which I understood to be under some form of anaesthetic, he awoke and was very distressed. In the end result that second injection, according to the plaintiff, did very little to ease his pain state. 18 On 10 August 2001 the plaintiff again consulted Dr Rosenthal and informed him that he had resigned from his job at D'Orsogna because he had a sore neck. It appears that the plaintiff at about this time also had a problem with his left wrist, described as carpal tunnel syndrome for which he had surgery and in relation to which he had experienced difficulty using a knife, but this is not part of the plaintiff's claim with respect to this action. He said that his neck and shoulder were still stiff despite the treatment from Dr Salmon and he felt frustrated that he could not carry out his work. 19 There was some slight confusion in the plaintiff's evidence as to whether he had resigned before he informed Dr Rosenthal of this intention or whether it was shortly afterwards. He later said in his evidence he believed that he discussed his intention to do so with Dr Salmon who advised that the work at D'Orsogna was apparently exacerbating the plaintiff's neck and shoulder problems and that the plaintiff should consider searching for a lighter form of employment. The plaintiff said upon considering this advice he decided it was correct and took the view that perhaps he should seek employment in a field using computers. 20 After the plaintiff resigned from D'Orsogna he said he continued to consult Dr Louie and Dr Salmon for treatment and to obtain prescriptions for medication. After his resignation the plaintiff was granted a pension through Centrelink. 21 He enrolled in a TAFE course with a view to learning more about computing in February 2002, but found that the course was too complicated and his level of English was not sufficiently advanced for
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him to understand much of what was being taught. He was still taking medication which was controlling his pain to a degree, but he continued to dwell upon his situation as a result of which he began to feel very depressed and as he lacked the energy or motivation to continue in the course he ceased it. It was also expensive, eg in terms of the cost of travel involved. 22 In July 2002 he re-enrolled in the course but in the end result did not return to it course because he felt very tense and depressed as he was always in pain. At this point in time he recalled that he was sleeping a great deal. 23 In his evidence-in-chief the plaintiff told the Court that since his resignation from his employment he spends most of his time at home and that his relationship with his partner and his children has deteriorated markedly. He is unable to provide them with the level of financial support they previously enjoyed and this has created friction within the family unit. His physical pain state prevents him from engaging in play with his children and this is another source of irritation and frustration for him and his family. 24 The plaintiff apparently lives alone and believes that as a result of his medical condition and pain state he has become increasingly socially isolated. 25 He takes approximately three Tramil per day and one or two Aropax anti-depressants per day. In addition he consumes two Panadeine Forte per day for his pain state. 26 The plaintiff claimed that before his motor vehicle accident he enjoyed a range of recreational and social activities such as regular boating, barbeques and gliding on the weekends with friends and family. These activities are now denied to him as a result of his condition and he has sold his boat. He has ceased engaging in gliding because he found that his medication made him feel nervous and anxious which is not a desirable state if one is engaging in that type of physical activity. He believes his medication has made him less inclined to carry out certain activities such as driving long distances and he has experienced an associated loss of confidence. The majority of his time is now spent at home doing very little except sleeping and watching television. Mr Kavian does not believe he is capable of undertaking employment currently due to his age, lack of skill and fitness. Currently his symptoms are a little better, but they fluctuate. The plaintiff said he can undertake a
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little gardening although he mainly uses his right arm to push his lawnmower. He cannot lift using his left arm as it causes left shoulder pain. He can do some shopping on a weekly basis and it would appear that he is still able to drive a motor vehicle, although not as frequently or as easily as prior to the accident. 27 The plaintiff agreed that it was not until quite some time after the motor vehicle accident that he complained of pain in his left shoulder area and said his shoulder started becoming painful when he was working, but only a few doctors related it to his neck problem. The problem arose when he started working for D'Orsogna where he was doing boning work which he agreed placed quite a lot of stress on his shoulder. He denied telling Dr Febbo, the psychiatrist, that he had pain in his left shoulder immediately following the motor vehicle accident or saying something similar to Dr Salmon, rather he claimed he said that since he began work at D'Orsogna his left shoulder became increasingly more painful. Following the plaintiff's initial return to work with Clover Meats after the accident, he denied that he returned to see Dr Louie and told him that his neck problems had resolved, but did recall an occasion when he attended Dr Louie and advised him that as a result of an injection to his neck, which would appear to be the first injection administered by Dr Salmon, the plaintiff felt good and the pain had dissipated. He thought this was perhaps about three weeks after the accident and stressed that he claimed the pain had reduced rather than completely disappeared. Nonetheless his medication continued in the period after he returned to work at Clover Meats and just after he left that job the plaintiff said the only treatment he had in relation to his neck was exercise and some physiotherapy, although he could not remember the exact details of who administered the physiotherapy. There would not appear to be any accounts rendered relevant to physiotherapy treatment for the plaintiff between September 1998 and April 1999. He insisted that during this period although he did not attend Dr Louie he was still taking medication and it was necessary to attend the doctor because he had repeats for the prescriptions which the plaintiff himself paid for. On occasions if he needed a repeat prescription he said he might well go to a different doctor or doctors and when he did so he paid those accounts himself. He did not believe it was necessary to advise Dr Louie, his general practitioner, that he was on occasion consulting other doctors. 28 It was suggested to the plaintiff in cross-examination that he left Clover Meats employ not because he had neck or pain problems but rather there was no work available for him there. He agreed he made two applications for employment with D'Orsogna dated 30 April 1999
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(Exhibit 2(1)) and 31 August 1999 (Exhibit 2(2)) and in the first application the reason he gave for leaving his former employment was "no more work to do". In the second application the reason given for leaving Clover Meats was "closed down". He admitted that this was not the case. The plaintiff explained that he could not tell the truth to D'Orsogna in the sense that he had had a motor vehicle accident and injured his neck which was causing problems with his supervisor at Clover Meats, because in his view if D'Orsogna knew that they would not give him a job. In the end result Mr Kavian admitted that he lost his job at Clover Meats and within a month or so later made his first application for employment to D'Orsogna. He commenced work with them in September 1999. At about this time he consulted Dr Gee who referred him to an exercise programme, but the plaintiff did not believe this was assisting in any way to alleviate his symptoms, despite his adherence to it. 29 Whilst working at D'Orsogna the plaintiff admitted having some problems with a Mr Viti, a co-worker whom the plaintiff believed was harassing him. He was also involved in an incident in the work place with a Mr Pratt. After returning to work in early September 2001 following surgery to his wrist, the plaintiff worked for only a few days before resigning on 8 October 2001. He claimed that this was as a result of left-sided neck and left shoulder problems, rather than because on his return to work he had been removed from the tally system which appeared from the evidence to be an incentive based payment scheme. 30 In relation to Exhibit 2(1) the plaintiff believed that he did not indicate in the space provided on the form that he had suffered a whiplash injury in a motor vehicle accident because he could not recall seeing that document and believed he must have missed that particular question. He was unable to explain why he ticked "No" to a question as to whether at the time he was currently taking any medication, because in fact on the plaintiff's evidence clearly at that time he was doing so. He explained he indicated on the form he was not prepared to undergo a medical examination because once more he believed that would reveal that he was suffering from a neck injury which would have a negative impact on his opportunity of being employed.
The medical evidence
31 Dr Louie has been the plaintiff's general practitioner for approximately six years and he prepared a number of reports relevant to his treatment of the plaintiff relevant to this matter, Exhibit 3(1-9).
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Mr Kavian presented to Dr Louie on 30 August 1998 complaining of right sided headache and neck pain. He obtained a history from the plaintiff regarding the motor vehicle accident, including that there was no loss of consciousness. Later in a report dated 19 September 2002 Dr Louie confirmed the initial report of right sided headache and neck pain but qualified it by saying that the pain reported was generalised neck pain occurring through the entire neck on both sides but this had localised to the left side on review on 2 September 1998. 32 There was an initial diagnosis of soft tissue injuries to the face and neck for which physiotherapy and acupuncture, as well as Panadeine Forte were prescribed. Mr Kavian exhibited significant improvement in the range of neck movement and pain, although he still had restrictions to normal range of movement and pain preventing him returning to work until 14 September 1998. On 18 September 1998 the plaintiff told Dr Louie that all his neck symptoms had completely settled and a full range of movement of the cervical spine was noted. As a result all physiotherapy treatment and medication were ceased and the claim deemed appropriate for closure. In his report of 22 September 1998 Dr Louie was of the opinion the plaintiff suffered no pre-existing injuries or conditions explaining his condition. On 21 April 1999 in a brief report Dr Louie noted the plaintiff's chronic neck pain had recently worsened and a diagnosis of soft tissue neck injury requiring physiotherapy and medication was made. In a report of 4 June 1999 the witness was of the opinion that the plaintiff's persistent headaches and left neck pain may be attributed to his motor vehicle accident and would appear to have been present prior to 14 April 1999. Dr Louie felt the complaints were consistent with a soft tissue injury to the neck, associated with tension headaches resulting from muscle spasm of the scalp muscles and the soft tissue injury of the neck specifically relating to injury of the neck itself. X-rays of the cervical spine performed on 28 August 1998 showed no significant abnormalities and repeat x-rays on 18 May 1999 showed only minor degenerative changes at level C4-5 with no other bony abnormality. As a result of the purported chronicity of his symptoms Mr Kavian was referred to Dr Gee, a pain management specialist. Dr Rosenthal, an occupational physician, was also involved as part of a multi-disciplinary pain management programme. 33 In October 2001 Dr Louie noted chronic neck pain due to the motor vehicle accident and said poor response to treatment rendered the plaintiff unfit for work until 30 November 2001. The plaintiff was also referred to Dr Ponchard, an exercise physiologist, as well as a psychologist, Mr Schneider, but with little benefit. He was also referred to Dr Salmon,
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a pain specialist, relevant to his complaints of continuing left neck and shoulder pain. An MRI scan conducted in March 2001 revealed no significant neural compression. An x-ray guided left C5 sleeve injection and C4-5 facet joint injection gave some transient relief but the complaints of left neck and left shoulder pain continued. On 5 February 2002 an ultrasound of the left shoulder revealed evidence of impingement with bunching of the supraspinatus tendon on abduction. 34 In his report of 13 February 2002 Dr Louie felt that Mr Kavian was suffering from major depression secondary to chronic pain and subsequent unemployment. In his view the plaintiff's injuries prevented him from returning to work as a butcher from which position Mr Kavian had resigned in October 2001. Whilst he was of the view that the plaintiff's chronic neck and shoulder pain would result in a degree of residual disability, Dr Louie felt there could be slow improvement of symptoms over time. In his opinion the symptoms of left-sided neck pain would be directly related to the motor vehicle accident. He was also of the view that the plaintiff's shoulder symptoms were a separate pathology from the neck symptoms, but were also likely related to the motor vehicle accident. He could not exclude the possibility that there was referred pain from the neck injury into the shoulder girdle region on the left side. 35 Dr Louie initially prescribed Aropax for the plaintiff's complaints of depression but said Mr Kavian now takes one Efexor per day for that problem. As at October 2001 when the plaintiff resigned from his job at D'Orsogna Dr Louie felt it would have been difficult for Mr Kavian to continue in that occupation. Overall he felt the plaintiff was a highly motivated patient who was genuine and keen to return to work. Nonetheless he agreed the plaintiff made no initial complaint to him of symptoms relating to his shoulder and this did not occur until some time after the plaintiff had returned to work. Certainly by 18 September 1998 when the plaintiff did return to work Dr Louie noted that the neck pain had completely settled and there was no reference with respect to any other symptoms continuing at that time so it was for that reason that medication and physiotherapy were ceased. Between 18 September 1998 and 14 April 1999 although the plaintiff consulted Dr Louie regarding other matters there were no consultations relevant to the motor vehicle injury, albeit Dr Louie's habit would be to enquire as a matter of course from the plaintiff how he was progressing in that regard. He was unaware that the plaintiff, in the interim, had received any further treatment for neck pain or headaches or that the plaintiff had lost his job at Clover Meats shortly prior to attending Dr Louie on 14 April 1999 and complaining of a return of left-sided neck pain. There was no mention at
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that consultation of any shoulder problems or symptoms. Simply to put matters in context Dr Louis confirmed that on 10 September 2001 after surgery to correct the symptoms of carpel tunnel syndrome, which is not part of the claim before the Court, the plaintiff was still complaining of pain and was referred for further relevant treatment. In that respect he was certified fit to return to work from 8 October 2001 but he was otherwise certified totally unfit for work on that date due to his chronic neck pain. 36 As at the time of trial Dr Louie considered the plaintiff's symptoms had not improved significantly but rather had remained constant and he felt the plaintiff's activities as displayed on the video tape surveillance film were consistent with his capacity to perform light duties. He also considered that the plaintiff's depression was both consistent and constant and in that sense he disagreed with the psychiatrist Dr Febbo's diagnosis on the point. 37 Unfortunately part of Dr Louie's medical file in relation to the plaintiff both with respect to the workers' compensation claim for the carpel tunnel syndrome and the motor vehicle accident was missing relevant to a period that seems to cover about a year from November 2000 to November 2001. Nonetheless, the first specific mention of shoulder symptoms to him by the plaintiff was on 30 October 2001. His conclusion that the plaintiff was suffering from short term memory impairment and concentration was based only on reported symptoms rather than any tests or clinical observations on the part of Dr Louie.
38 Dr Tannenbaum, a qualified psychiatrist, gave evidence relevant to his review of the plaintiff and subsequent report of 19 August 2004 (Exhibit 3(21)). His diagnosis was of a severe major depression, to the point where the plaintiff in his opinion is quite dysfunctional as evidenced by reporting that he spent his day in bed and neglected matters of personal and general hygiene. He regarded the plaintiff as being very poorly motivated but said there was not enough information to establish a diagnosis of personality disorder. Nonetheless, in his view the plaintiff's disorder appeared to directly relate to the motor vehicle accident and its consequences. He believed that although the pain precipitated the depression, the perception of pain was worse due to the depression which existed. He could not assess if there were any cultural factors which impacted upon the plaintiff and his situation or his perceived situation. As to any differentiation between the plaintiff's alleged neck symptoms and
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alleged left shoulder symptoms Dr Tannenbaum said that perception of the plaintiff's pain state was largely shoulder and neck based.
Dr Salmon 39 Dr Salmon has specialist qualifications in anaesthesia and in the related separate specialty of pain management. He told the Court that in a substantial proportion of patients seen in this field, the symptoms are not resolvable by intervention, so the focus is on creating a skill level to enable the patient to function as well as possible in their given condition, which in turn aims at providing them with the best quality of life available to them in combination with a reduction in reliance on medication. In his capacity as a pain management specialist Dr Salmon reviewed the plaintiff on a number of occasions and prepared a number of reports which were put before the Court. 40 In May 2001 whilst there were degenerative changes seen on MRI at C-5 and C5-6 there was no significant neural compression. After examination Dr Salmon was of the opinion that the plaintiff's pain related predominantly to mid cervical segment dysfunction with facet joint symptoms and left C5 neural sensitisation. He also believed that there was a significant degree of associated psychological disturbance, including depression. The plaintiff reported struggling to keep working as a butcher at the time. Mr Kavian also requested stronger analgesic medication such as morphine and was prescribed up to 8 Tramadol tablets per day as well as up to 75 milligrams of Amitriptyline at night. Dr Salmon's evidence was that the plaintiff dated the onset of his pain from the motor vehicle accident, although he stated that the pain level fluctuated considerably over periods. It increased consistent with aggravation related to work activity. Dr Salmon was also concerned in prescribing medication for the plaintiff to avoid, if possible, side-effects of lack of concentration and poor memory. When Dr Salmon reviewed the plaintiff on 15 August 2001 Mr Kavian reported an improvement in his mood state after seeing a clinical psychologist, although he was still struggling with continuing to work as a butcher. At that time it was agreed to proceed to an x-ray guided left C5 sleeve injection and a C4-5 facet injection. This had the effect of abolishing the shoulder pain and significantly reducing the neck pain but that relief was only temporary. 41 The witness considered that the plaintiff's condition at that time would be easier to manage if he were not undertaking heavy manual work as a butcher and so Mr Kavian agreed to search for lighter work options and continue his exercise programme. In September 2001 when Dr Salmon reviewed Mr Kavian he was anticipating being able to return
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to work after bilateral carpel tunnel decompressions but complained that his left neck, shoulder and upper arm pain had grown worse over the preceding few weeks. On examination there was marked tenderness over the mid cervical segments and left C5 nerve root region. The left brachial plexus stretch testing was very restricted and pain provoking. At that time Mr Kavian was taking six Mersyndol Forte tablets per day, three Tramadol tablets a day, one Aropax tablet and 25 milligrams of Amitriptyline a day. He was also given Epilim to trial by Dr Salmon and advised to minimise repetitive stretching actions affecting the neck and shoulder region. On the basis that the sleeve and facet joint injections provided significant albeit temporary relief to the plaintiff Dr Salmon felt this confirmed there was significant C5 mediated pain and he further felt that the left shoulder pain was connected with the left-sided neck pain and there was a typical pattern of pain referral from C4-5 for the shoulder and upper arm. He did not detect any separate pathology within the shoulder joint itself and felt that the major component of the plaintiff's symptoms related to his neck. Unfortunately, that treatment in the form of injections could not be maintained on a periodic basis as it was impractical to do so and there were associated risks with the procedure. An alternative to sleeve injections was to carry out an epidural injection but this is technically difficult to administer in the cervical region. He did not recommend repeated delivery of a drug such as Cortisone because it has negative side-effects on the patient if done regularly. 42 In September 2001 Dr Salmon booked the plaintiff for a left C5 pulsed radio frequency ganglionotomy and repeat sleeve and facet injections in the hope of obtaining a more sustained reduction in symptoms. He explained in some detail what this treatment involved and said that pulsed radio frequency is preferable to heat lesioning particularly when one is dealing with major nerve roots but one has to be very critical about controlling the heat levels because one cannot afford to do major damage to the nerve roots. 43 When he reviewed the plaintiff on 9 October 2001 after these procedures, Mr Kavian complained of ongoing pain in the region, although Dr Salmon felt that it was not uncommon for there to be an aggravation in the first week or so following the procedure. Overall he felt it was positive that the plaintiff has resigned from D'Orsogna because the vigorous physical activity was making it difficult to positively deal with the plaintiff's pain state. 44 As at 2 November 2001 the plaintiff reported that his left-sided neck and shoulder region pain had improved significantly following his
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resignation from D'Orsogna in conjunction with an ongoing exercise programme. He had reduced his intake of medication but remained taking one or two Tramadol per day. It was unfortunate in Dr Salmon's view that there was no funding for the plaintiff to continue receiving psychotherapy, as he agreed with Dr Tannenbaum that depression enhances the perception of pain which in turn exacerbates the depression and he considered this mechanism was operating in the plaintiff's case. In February 2003 when Dr Salmon reviewed the plaintiff he reported continuing pain symptoms in the left side of his neck and shoulder. A recent ultrasound study of the left shoulder indicated some possible impingement of the left supraspinatus tendon but no evidence of bursitis or tear of the tendons. The plaintiff was informed upon enquiring about an injection into the rotator cuff that he would have to see a rheumatologist or orthopaedic surgeon for that type of treatment. Such treatment in Dr Salmon's opinion could cause the neural pain to flair and in the meantime he recommended continuing exercise sessions and Tramadol analgesic medication. 45 The plaintiff reported continuing pain symptoms in early August 2002 but overall seemed to be making some progress albeit that he was not undergoing physiotherapy based treatment at the time, which Dr Salmon felt would have been important and beneficial. On review in January 2003 Mr Kavian continued to complain of left neck and shoulder region pain and so he was referred for physiotherapy and advised to continue exercise management strategies. Dr Salmon could not say if physiotherapy was undertaken. He believed as at June 2003 the plaintiff's condition had deteriorated since the procedures performed by Dr Salmon, or at the very least his condition was not improving from the plaintiff's own reports. The plaintiff appeared to be positive relevant to undergoing some intensive cognitive behavioural pain programmed treatment as recommended by Dr Rosenthal if funding was available for it. This is a combined programme of biological and psychosocial treatment usually running for 12 days over a four week period supervised by a team of pain management specialists, psychologists, physiotherapists and an occupational therapist. Dr Salmon said on outcomes assessed for the programme about 60 per cent of patients undertaking the programme returned to full-time employment albeit that this will often occur over a long period of time and is not necessarily the same type of employment in which the person was previously engaged. In Dr Salmon's opinion the plaintiff would have been a suitable candidate for this type of biopsychosocial management programme at least in theory. He did not believe that the plaintiff was consciously exaggerating his condition for
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secondary gain but felt that poor language skills were a major barrier to re-training and rehabilitation and that there were some cultural components which could influence the plaintiff's perception of his pain state and its distribution. He did not consider however that this was particularly so in the plaintiff's case as he had attempted to remain in employment but working as a butcher had exacerbated his symptoms in the end result. 46 Although Dr Salmon took a history that the plaintiff had been unconscious for half an hour following the motor vehicle accident he did not think the length of time of lack of consciousness was relevant, nor was length of initial hospitalisation. He did say however that if the plaintiff's symptoms had completely disappeared for a long period and he had returned to work it would make the causative connection between the accident and the subsequent complaints more tenuous. Nonetheless, it was his understanding that the plaintiff had suffered persistent symptoms, albeit they had become more severe over time. In the plaintiff's case Dr Salmon felt that his work as a butcher was an ongoing aggravating factor in his symptomatology as it was a physically stressful occupation. If the plaintiff had no shoulder pain initially and just neck pain Dr Salmon felt that working as a butcher could be relevant to the aggravation of his symptoms. Like Dr Louie this witness had no recollection of being told that the plaintiff used cannabis for pain relief albeit that the drug is thought to have some efficacy for chronic pain states and certainly it can affect concentration and memory adversely. 47 He disagreed with Dr Rosenthal's assessment that the plaintiff's problem was just a facet problem because Dr Salmon believed there was evidence of nerve root sensitivity and for that reason the sleeve injections were a rational treatment. Unlike some medical practitioners Dr Salmon did not use what are often referred to as the "Waddell" tests or signs but prefers to look for inconsistencies in history, presentation and behaviour. This he believes is a more effective and reliable method of isolating those patients who might be described as "malingerers" in his opinion, as is pain programme treatment participation. He also felt that the difference between findings on formal examination and findings on informal examination or observation of patients is rather simplistic and can be misleading due to anxiety states which patients often suffer when asked to perform such manoeuvres. In his view range of movement does not bear a strong relationship to disability because he does not consider that there is a direct relationship between pain in the spine and restriction of movement. He did not believe it was inconsistent in the surveillance video tapes that the plaintiff was using his left arm at times nor was there
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anything in his presentation on that film that was strikingly incompatible with the patient history or Dr Salmon's evaluations of the plaintiff. In this regard he disagreed with the conclusion that Dr Rosenthal reached relevant to the video film that "the level of activity seems quite inconsistent with the disability and symptom severity claimed." 48 Dr Salmon's recommendation for future treatment were that the plaintiff engage in a cognitive behavioural pain programme, preferably after his claim has been resolved, as the physical effects of his injury prevent him from working as a butcher. He did not find any remarkable inconsistencies in the plaintiff's range of movement during his dealings with him. Dr Salmon's view was that participation in the "Achieve" programme would assist the plaintiff to realise maximum function in the sense of there would be a prospect that Mr Kavian would return to some form of employment although it would be unlikely that it would involve working as a butcher. 49 The plaintiff was also reviewed by Professor Mastaglia on 12 August 2004. He took a history that at the time of the motor vehicle accident there was no loss of consciousness but the plaintiff did feel somewhat dizzy and shaky and apparently collapsed to the ground for a few minutes. He noted that within a few hours of the accident the plaintiff developed pain, stiffness and limitation of movement of his neck as well as pain in the left shoulder region and a headache. These symptoms intensified over the next few days. On examination the plaintiff's neck movements were restricted, in particular, lateral flexion to the right and rotation to the left were reduced to approximately 95 per cent of normal. There was also predominantly left-sided neck pain accompanying this movement. A review of the MRI scans caused Professor Mastaglia to note that there was no evidence of nerve root compression or stenosis of the spinal canal, although a 2002 x-ray of the left shoulder showed minor left-sided acromio-clavicular joint degenerative change and there was also ultrasound evidence of impingement of the supraspinatus tendon on shoulder abduction and mild joint arthropathy. 50 Professor Mastaglia's diagnosis, according to his report and evidence, was of a significant musculo-ligamentous soft tissue injury to the lower cervical region of the spine and to the left shoulder joint and suprascapular region which resulted in ongoing neck, shoulder pain and headaches. Referred pain from the C5-6 level of the neck to the arm can be diminished or abolished with a facet block and certainly the witness was of the view that the plaintiff was almost certainly suffering referred pain in the suprascapular and shoulder area as well as the upper arm from
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the C5-6 level. The prognosis for the plaintiff's recovery, particularly the time elapsed since the accident and the fact that he was left hand dominant was poor. Recommended treatment included physiotherapy or acupuncture and perhaps cervical facet joint and greater occipital nerve blocks to the left side for the complaints of headache. Professor Mastaglia believed that left shoulder pain referred from the neck region could occur within variable lengths of time depending on the nature of the injury and could be delayed by weeks or even several months. Even if it were the case that there was no history of left shoulder pain between the accident in 1998 and 2001, Professor Mastaglia believed the problem could have its origins in the plaintiff's continued use of his left arm being his dominant arm or the accident may have activated a degenerative process of the C5-6 facet joint which worsened over time. He did agree, however, that if the immediate after effects of the motor vehicle accident dissipated over about a three week period and the plaintiff then returned to work for approximately seven months before complaining of similar symptoms to his general practitioner, that the nexus between the motor vehicle accident and those later continuing symptoms would be somewhat tenuous. Professor Mastaglia also agreed that as he did not review the plaintiff until some six years after the accident he was at some disadvantage and had to rely on the history as related to him by the plaintiff as well as preceding medical reports. 51 Whilst it was more usual for so-called soft tissue injuries to resolve over a period of weeks or even months they can persist in cases where the injury has been severe or if a degenerative process is precipitated by the initial injury or if there is a super-added factor such as ongoing physical activity or further trauma. In all of the circumstances Professor Mastaglia said he would find it difficult to say if there were any major inconsistencies between the actions he viewed the plaintiff performing on the surveillance tapes and his assessment of the plaintiff and his physical restrictions. He was doubtful that the plaintiff could return to work as a butcher and agreed with Dr Salmon's view that it would be more appropriate for the plaintiff to perhaps engage in something such as the intense "Achieve" programme. 52 By consent two reports from a psychiatrist, Dr Sam Febbo, exhibits 15(1) and 15(2) were tendered on behalf of the defendant. Dr Febbo first reviewed the plaintiff on 29 January 2001 and took a history that immediately after the accident the plaintiff had no recall for a couple of minutes and experienced neck pain, stiffness, left shoulder pain as well as some bruising and facial swelling. The plaintiff advised Dr Febbo on review that he was experiencing pain on the left side of the
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neck radiating into the left shoulder and suffering from headaches a couple of times a week. At time of review although the plaintiff said he felt low regarding his financial situation he nonetheless continued to go out and enjoy himself and felt that his separation from his partner was a positive factor. Whilst he continued to work as a butcher at D'Orsogna, the plaintiff was unhappy that since his motor vehicle accident he had had to reduce the amount of hours he worked, particularly on the tally system, and this had had a negative financial impact on him. Despite taking the anti-depressant Aropax the plaintiff did not present with a psychiatric condition or disorder at time of review and any significant depressive symptoms that he may have suffered earlier in time had improved in Dr Febbo's opinion albeit continuation of Aropax was recommended for the following six months. 53 In June and August 2002 Dr Febbo reviewed the plaintiff again, reporting there had been a gradual improvement in his condition albeit his pain level fluctuated. He continued to complain of pain in his neck and left shoulder radiating into his left arm which worsened on activity. He informed Dr Febbo that he could undertake tasks such as lawn mowing but used only one hand to do that. Once more Dr Febbo was unable to find evidence suggesting presence of depressive or anxiety disorder and concluded that the plaintiff was not incapacitated as a result of a psychiatric condition. Certainly, from a psychiatric perspective, in Dr Febbo's opinion, the plaintiff was not prevented from returning to work as a butcher. Dr Febbo again advised that it would be appropriate for the anti-depressant medication to be continued for the following six months as any depressive symptoms suffered by Mr Kavian were being treated appropriately in that manner. 54 Dr Bowles, an occupational medicine specialist, had reviewed the plaintiff and issued two reports being exhibits 15(3) and 15(4). The first review occurred on 2 April 2002 when Dr Bowles took a history of the motor vehicle accident and matters pertinent to the plaintiff's work and social history. At the time Mr Kavian reported suffering headaches, neck soreness and stiffness and left arm immobility. The neck problems were left-sided and the pain was exacerbated on activity. He reported difficulty in turning his head, particularly to the left and he also reported problems around his left shoulder area which restricted rotation. On informal examination the plaintiff exhibited no signs of restriction or impairment. He was, however, reluctant to actively move his left shoulder above the horizontal despite exhibiting a full range of movement passively. Impingement testing did not reproduce discomfort around the subacrominal region. Dr Bowles' report stated he did not see any causal
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relationship between the current left-sided neck pain and headaches reported by the plaintiff and the motor vehicle accident in 1998. In his opinion these problems were age related. On the history he obtained from the documentation it appeared to Dr Bowles that by September 1998 all the neck symptoms had completely settled and a full range of movement in the cervical spine had returned. It was not until June 1999 (as he understood it) that Dr Louie indicated Mr Kavian was complaining of left-sided neck pain and headaches. In Dr Bowles' opinion the left upper limb girdle complaints did not necessarily have to arise as a result of a causal event because there was some mild age related radiological changes which could be exacerbated by physical activity. Further, the plaintiff's predicament could be explained through a broader biopsychosocial model and indeed he could not discount associated psychological issues contributing to the plaintiff's complaints and difficulties. There was, however, subacromial bunching shown on ultrasound and for that reason Dr Bowles advised against the plaintiff repetitively using his left arm at or above the head, but this was the only physical restriction he would place on Mr Kavian undertaking any form of employment. He did not believe the plaintiff was suffering from any complaints that could be causally linked to the motor vehicle accident and for that reason he did not see that any ongoing treatment was required. 55 Dr Bowles said it was his habit generally to look at x-rays films and accompanying reports and in this instance he had reports relevant to the left shoulder and the ultrasound of the left shoulder, as well as a copy of the March 2001 MRI report relevant to the cervical spine. He accepted he would defer to the radiologist's report or assessment but not to the assessment of, for example, Dr Salmon or even necessarily the opinion of Professor Mastaglia. He disagreed with the diagnosis of C5 neural sensitisation as well as with the diagnosis of C4-5 facet joint pathology and whilst he accepted that pain is referred from for example, the central neck structure into the left upper limb, he didn't believe that was occurring in the case of the plaintiff. 56 Mr Batalin, an orthopaedic surgeon of considerable experience, also reviewed the plaintiff in November 2001 and again in February 2002 issuing reports being exhibits 15(5) and 15(6). The plaintiff informed Mr Batalin that he lost consciousness for about five minutes following the motor vehicle accident and that he suffered pain in the right neck and right shoulder. He received partial relief from his first facet joint injection but not the second injection and on review complained of continuous left-sided neck and left shoulder pain aggravated by movement.
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57 Mr Batalin noted during discussion that the plaintiff was very animated and freely moved his head and neck as well gesticulating with both upper limbs. However, on formal assessment his gait pattern was somewhat slow and deliberate and his neck movements revealed a 35 per cent restriction. Head and neck flexion were also limited, but using indirect methods Mr Batalin noted good, near normal range of cervical movements both to the right and left. When the plaintiff removed his socks Mr Batalin noted his head and neck flexion was 60 degrees and in the prone position extension was between 45 degrees to 50 degrees on each side. There was no cranial nerve abnormality or objective sensory deficit to touch, pain or pressure stimuli. On examination Mr Batalin could not exclude the possibility of left shoulder rotator cuff syndrome but he was somewhat hampered on the first review as the plaintiff did not bring any investigations such as x-rays or MRI reports to the appointment.
58 When he returned on 29 November 2001 Mr Kavian brought some but not all of these materials with him. However, Mr Batalin could review the cervical spine x-ray and CT of the cervical spine taken in May 1999. He also reviewed an MRI of the cervical spine taken in March 2001. In Mr Batalin's opinion the plaintiff had evidence of minor degenerative C4-5 and C5-6 disc disease, explicable by and consistent with age. There was no evidence of significant spinal trauma. One could postulate a soft tissue strain neck injury but retrospectively it was impossible for Mr Batalin to confirm this. There were some signs of left shoulder painful arc syndrome but this had not been formally confirmed. Despite some lack of investigative reports, Mr Batalin saw no difficulty in the plaintiff engaging in work which did not require him to elevate his left upper limb above shoulder height or subject his neck to prolonged hyperflexion or hyper-extension. He arranged for the plaintiff to have an x-ray and ultrasound of his left shoulder which occurred on 5 February 2002. The plain x-rays showed no evidence of injury and the ultrasound was within normal limits, exhibiting no evidence of rotator cuff tendon damage. There was no evidence of subacromial bursitis or ultrasound evidence of impingement. This excluded the possibility of any injury to the plaintiff's left shoulder, albeit there was radiological evidence of minor degenerative C4-5 and C5-6 disc disease consistent with age. He queried the possibility of environmental factors affecting the plaintiff's perception of his symptoms. 59 Mr Batalin's impression was that having had a month or so off work the plaintiff had residual problems in his right shoulder and that's what he documented. The time at which the plaintiff developed and complained of left shoulder symptoms was significant in Mr Batalin's opinion because
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if they were at a latter stage, that is, after the right shoulder symptoms had settled there was less likely to be a relationship between the motor vehicle accident and the left shoulder symptoms. He further noted that the plaintiff informed him he was unable to go shopping or to play sports and this would have been in response to specific questioning by Mr Batalin of the plaintiff. In his opinion if he were to see normal neck movement and no major restriction using indirect (and in his view more reliable methods of assessment) then the injury was unlikely to be significant. Mr Batalin conceded there are many factors that influence an individual's perception of pain. For example, a depressed person will notice pain more than one who is not depressed and there are also cultural differences as some cultural groups find it acceptable to show a great deal more pain than actually exists. He could not, however, say with certainty that the plaintiff was consciously exaggerating his symptoms for financial gain. Mr Batalin did query Professor Mastaglia's acceptance of C5 neural sensitisation in the plaintiff's neck, as he said this diagnosis does not provide an accurate answer and in essence raises more questions than it answers. In Mr Batalin's opinion if one is simply left with soft tissue injury neck strain then a graduated return to work is an essential part of the rehabilitation process, but if one has degenerative changes in the cervical spine these in their own right would present a negative factor as far as carrying out heavy work such as boning work in the meat industry. 60 Dr Rosenthal specialises in the medico-legal and rehabilitative aspects of compensable injury and has a special interest in pain medicine. He reviewed the plaintiff on four occasions and provided a number of reports, exhibit 15(7) to exhibit 15(11), as a result. The plaintiff informed Dr Rosenthal that after the motor vehicle accident there was an immediate onset of neck pain. Plain x-rays of May 1999 were reported as normal but a cervical CT scan of that date showed minor degenerative changes at C4-5. On examination the plaintiff was very tender over the left C2-3, C3-4 and C4-5 facet joints as well as over the left trapezius above the scapula. There was full forward cervical flexion and extension but mild restriction and end range pain with rotation, more so with lateral flexion in both directions. There was slight restriction of left shoulder movement due to myalgic pain but no indication of any upper limb neurological deficit. Dr Rosenthal diagnosed a cervical strain of at least moderate severity, with clinical evidence of left-sided facet joint irritability following upon capsular ligamentous strain. He concluded the plaintiff was symptomatic but not incapacitated and capable of working full time relevant to his existing skills and past experience. Whilst physiotherapy was no longer recommended Dr Rosenthal felt that a trial of facet joint
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injections would be justified. Dr Rosenthal told the court that if it were the case that after a three week period off work there was a return to work for a seven month period, which was apparently pain free, that would create a doubt in his mind as to the causal relationship between the motor vehicle accident and the plaintiff's current complaints of left-sided neck and arm pain with associated restriction on movement. 61 When Dr Rosenthal next reviewed the plaintiff in mid-September 2000 he reported fluctuating symptoms but continued left-sided neck and suprascapular pain with associated frontal headaches which was consistent with the plaintiff's earlier presentation. He believed that the clinical findings indicated persisting cervical pain and dysfunction which was causally related to the motor vehicle accident. There were secondary psychological problems requiring ongoing anti- depressant medication and perhaps some further counselling. Nonetheless, the plaintiff was not prevented from continuing to work as a butcher and further there was scope for continued improvement in his symptoms. 62 On review in early August 2001 Dr Rosenthal noted the plaintiff complained of bad left-sided neck pain with suprascapular referral and accompanying headaches, as a result of which Mr Kavian indicated he was going to leave his employment as a butcher. The reported chronic neck pain imposed a residual disability in the order of 10 per cent loss of function of the cervical spine, which the doctor thought may be successfully treated with further facet joint blocks but further nerve root sleeve injections were not recommended. There was a prospect of a further improvement over time. Certainly, from the perspective of musculoskeletal medicine Dr Rosenthal did not think Mr Kavian's decision to leave work because of his motor vehicle accident related injury was justified. 63 He reviewed the plaintiff again on 2 April 2003 noting a summary of his treatment by other medical practitioners and associated professionals since the last review. On examination at that fourth consultation Dr Rosenthal was of the opinion there was significant abnormal illness behaviour with inhibition of left shoulder movement beyond 50 per cent of the normal range in all planes. There was scalp and trapezial tenderness to light palpation causing knee flexion. There was also inhibition of cervical rotation by 50 per cent bilaterally, although Mr Kavian tolerated full extension and flexion when distracted. He also commented that in the context of talking about the C5 sensitisation that Dr Salmon commented upon, that condition usually becomes apparent within the first year after injury or insult to the nerve system. From a
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physiological perspective Dr Rosenthal was of the view that the prognosis for the plaintiff's recovery was not totally pessimistic, given there was no cervical fracture, major disc pathology of foramenal compression or overt clinical evidence of nerve injury. He could not speak so optimistically, however, from a psychiatric perspective but conceded that was not his field of expertise. In his opinion the prognosis was guarded whilst there remained outstanding medico-legal issues in the plaintiff's case. He did not believe the physical effects of the plaintiff's injury reasonable prevented him from continuing to work as a butcher. He believed that Mr Kavian's subjective pattern of worsening was quite inconsistent with the natural history of a cervical strain injury. In Dr Rosenthal's opinion the video surveillance film that he saw did not equate with a subjective level of disability because he didn't believe the activity he saw was something that one with chronic neck pain could sustain or, indeed, would even entertain undertaking. He noted, however, that in the end the surveillance film and anything that could be interpreted from it was essentially a matter for the court. 64 On initial review by Dr Rosenthal a pain diagram, exhibit 16, completed by the plaintiff did not indicate any upper limb complaint as in pain distribution from that area. Unlike Professor Mastaglia, Dr Rosenthal did not consider the degree of degenerative change in the plaintiff's neck to be of major significance or importance. It existed but was not a clinically correlative change. He did not disagree, however, that as well as undertaking a supervised exercise programme the plaintiff could be an appropriate candidate for engaging in a cognitive behavioural therapy programme such as the "Achieve" programme. He agreed that the plaintiff's reported tenderness in C2-C5 was a type of pathology which was consistent with a flexion type injury to the neck or a whiplash associated disorder. Dr Rosenthal believed that although the plaintiff complained of headaches and referred pain into the suprascapular region, he nonetheless could work as a butcher and the fact that the plaintiff decompensated in a functioning sense was attributable largely to his psychological state and not as a result of a musculoskeletal disorder. This does not deny a physical injury has occurred and indeed is valid, but other factors such as psychological and occupational factors have intervened. The witness conceded relevant to the video surveillance film that the plaintiff had not advised him he never used his left arm or that he could not flex his neck at all. 65 It is the case that Dr Rosenthal did not have a complete understanding of the nature of the plaintiff's work as a butcher. He presumed that Mr Kavian's work involved cutting up meat, serving
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customers and perhaps manufacturing smallgoods. He assumed the plaintiff was not handling large bodies of beef. He said if the plaintiff was involved in boning then it was not surprising he had developed carpel tunnel syndrome due to the physically vigorous and repetitive nature of that activity. He placed emphasis however on the fact that historically the plaintiff had returned to boning work and continued to do it for quite some time after the motor vehicle accident.
The plaintiff's work history at D'Orsogna 66 Mr Iverson is the boning room supervisor at D'Orsogna Smallgoods. In that capacity he runs the boning room which includes supervising a staff of about 34 people and being involved in production planning. He was working in the boning room as a leading hand when he met the plaintiff and thereafter he saw Mr Kavian on a daily basis. Whilst there the plaintiff did become involved in a problem whereby at times he did not clean the bones of a meat carcass thoroughly and that was brought to Mr Kavian's attention by Mr Iverson who asked him to re-do the task. The plaintiff reacted by indicating that Mr Iverson should not worry about it but that, of course, was not acceptable to Mr Iverson. He was aware that Mr Kavian had a medical problem with his wrists and on a few occasions he cut himself at work but he did not know that the plaintiff had been involved in a motor vehicle accident, nor did Mr Kavian complain to him relevant to problems with his neck or shoulder. The plaintiff was working on the tally system whereby he was paid by units rather than on an hourly rate but as his work did not improve to required specifications the plaintiff was removed from that particular work and reverted to an hourly pay rate. On the day Mr Iverson informed the plaintiff that this was to occur he said Mr Kavian left the company later that morning. Mr Iverson's recollection was that this was on 5 September 2001 which is incorrect as it is clear that the plaintiff did not resign until about one month later. The witness did not regard himself as the best friend of the plaintiff (as Mr Kavian asserted in his evidence) but nonetheless he said at work they were friendly until things started to go wrong. He said although the plaintiff was motivated at work he was focussed on making money and consequently he took shortcuts, which is why Mr Iverson had to speak to him. 67 Although Mr Iverson was not responsible for following up workers' compensation related claims of employees in his area if there was an employee with a physical problem it was his responsibility to look after staff and ensure that if there were problems in the employee carrying their physical work related tasks the person concerned was moved to a task
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where the problem was not being aggravated. It was he conceded not possible to remember the complaints of each one of the staff who were under his supervision although he had a responsibility to look after staff if he knew that the individual had a problem. 68 Mr Burgess commenced working for D'Orsogna Smallgoods as a human resources manager in June 2000 and at that time the plaintiff was employed as one of 14 butchers in the boning room under the supervision of Mr Iverson. The only difficulties that Mr Burgess was aware of relevant to the plaintiff's health involved four workers' compensation claims. Three related to relatively minor cuts and finger infections, with a major claim on 15 August 2000 for carpal tunnel relevant to both wrists. After surgery for this problem the plaintiff returned to work on 8 October 2001 but resigned voluntarily on that day, citing problems with his shoulder arising from a previous motor vehicle accident. Mr Burgess noted that during the course of the return to work periods relevant to the carpal tunnel syndrome operations, this shoulder injury was mentioned and documented as a reason for some of the leave that the plaintiff took from work during the rehabilitation period. There was, however, no mention of a pre-existing injury of this nature on the application for employment form. 69 On 16 January 2001 the plaintiff cut his right index finger in the boning room and at the time was not wearing protective stainless steel mesh gloves which was part of the requisite safety equipment. Mr Burgess issued a disciplinary written warning to the plaintiff two days later regarding the incident. On 17 May 2001 the plaintiff was suspended from work for two weeks without pay and voluntarily participated with an anger management workshop during that period because he was involved in an altercation with a co-worker from the boning room. Mr Burgess sent a letter to the plaintiff dated 5 September 2001 advising him that after his carpal tunnel syndrome surgery he was considered medically fit to return to work on light duties from 10 September 2001 and Mr Kavian did so. On 5 October the plaintiff was certified fit to return to normal duties but on 8 October 2001 he resigned. Mr Burgess does not deal with what might be described as the micro-management of a worker's compensation claims but he liaises with insurers, rehabilitation providers and doctors relevant to workers' compensation claims made by employees. 70 He accepted that cuts to fingers in the course of butchering work is an occupational hazard but said it can be reduced by the wearing of appropriate personal protective equipment such as gloves or a glove.
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Overall Mr Burgess regarded the plaintiff as being as motivated as the average worker in the work environment.
Evidence of plaintiff's activities on video surveillance film 71 Two video surveillance films of the plaintiff's activities on 21 and 22 February 2002, Exhibit 7, and again on 24 April 2002, Exhibit 8, were tendered at trial. It would appear from material before the Court that the films were the result of rather lengthy surveillance and in the end result in my view the contents do not add in a significant or meaningful way to the evidence before the Court. It should be noted that the plaintiff is left hand dominant and it is the case, as counsel for the plaintiff submitted, that Mr Kavian never claimed he was totally unable to move his left limb. Further Dr Louie and Dr Salmon both said there were no inconsistencies between the plaintiff's complaints of disability to them and his clinical presentation compared to the material contained on the surveillance videos. As opposed to this, both Dr Bowles and Mr Batalin simply said the material they viewed confirmed their clinical assessments. 72 At times it is difficult to see exactly what the plaintiff is doing in various parts of the film and certainly at one point relevant to Exhibit 8, on the day in question it would seem that the plaintiff did attend the pharmacy shown on the film and purchase Tramal and Aropax and this is not at all clear from the video. It does not appear from the film that the plaintiff engaged in any long term activity using his left limb and for much of the time appears to engage in relatively modest physical activity. There are times when he clearly appears to favour the use of his right limb being his non dominant limb, for example when he is standing on a ladder fastening what appears to be some form of covering over a garage or pergola area. At another point he does appear to bend and stretch his left arm across his upper chest area before getting down. There are times when the plaintiff disappears from view behind a garden bench and it is difficult to see what he is doing at that stage. On one occasion he is seen to emerge carrying a chair in his right arm and then carrying something in his left arm which he extends for a brief time. At another point he uses his left limb to close a car boot and later leans against the carport using his left limb. He is also seen bending over a lawnmower and pushing it with both arms out of the carport but he seems to pull start it with his right arm before mowing. Whilst shopping he moves a basket from one arm to another but it does mostly involve the use of his right limb. When he is wheeling a bin he tends to favour his right limb but overall the distinct impression is that the plaintiff in the video surveillance film does not use
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or tend to use his left limb or turn and rotate the left side of his neck in a sustained or vigorous manner.
Findings on the evidence 73 It is common ground that the plaintiff was involved in a motor vehicle accident on 28 August 1998. In my view in the end result little turns on whether or not the plaintiff lost consciousness at that time. There would seem to be some discrepancy in the history he gave to various medical practitioners regarding this question but considered in the context of the history he gave as a whole the discrepancy does not reflect adversely on the plaintiff's credibility. It should be noted that English is not the plaintiff's first language and this could conceivably at times lead to some confusion either in his understanding of a question or in the understanding of his reply to the person asking the question. However, overall in my view the plaintiff in his evidence was not difficult to understand and none of the witnesses would appear to have experienced any significant difficulties in communicating with the plaintiff on the occasions that they spoke to him or had dealings with him. 74 Although Dr Louie made a note of right sided headache and neck pain on initial consultation he later clarified this by saying the neck pain reported was generalised throughout the neck, but by 2 September 1998 it had localised to the left side and thereafter left sided neck pain became the focus of the plaintiff's complaint. It would appear that the initial report insofar as it referred to right sided pain was confined to a reference to right sided headache. He further said that the left sided neck pain would in his opinion be directly related to the motor vehicle accident. For about three weeks following the accident the plaintiff underwent physiotherapy, acupuncture and was given anti-inflammatory and pain killing medication. This would appear to have been successful in resolving the immediate symptoms so treatment was ceased when the plaintiff returned to work. 75 From the plaintiff's evidence and the chronology of relevant events filed it would appear that the plaintiff over the years has had a consistent work history both in Iran and after his arrival in Australia, despite having to overcome a significant language barrier. He commenced work as a butcher with Clover Meats in early 1995, some two years after arriving in Australia and having attempted to improve his English skills. Therefore he had been working consistently and it seemingly without any particular problems at Clover Meats for three and a half years at the time of his motor vehicle accident. It is also the case that after he left Clover Meats in somewhat unclear circumstances, he maintained a desire to continue to
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be employed in the meat and butchering industry. In my opinion against this background it is plausible that the plaintiff was not truthful in his applications for employment with D'Orsogna in the sense that he did not reveal that he had had a motor vehicle accident or was struggling in carrying out his work as a butcher at Clover Meats, because he feared that if a prospective employer knew this was the case they would not employ him. For the same reason I accept the plaintiff's evidence as to why he refused to undergo a medical examination if required to do so by D'Orsogna. It is also the case that between March 1999 when the plaintiff left Clover Meats and September 1999, when he commenced work at D'Orsogna he was not employed but for four months of that period he was on holiday in Iran. 76 Certainly between September 1998 when he returned to work and April 1999 the plaintiff did not seek medical assistance for what he says was his ongoing pain state, nor was there evidence called from work colleagues or family and friends to the effect that he complained to them about his condition. He did however nominate the name of the supervisor he worked with at Clover Meats, who according to the plaintiff was dissatisfied with his work because the plaintiff due to his pain state was finding it difficult to carry out his job. In my view this is a credible explanation particularly when one considers that for three and a half years prior to this there is no indication that Clover Meats were in any way dissatisfied with the plaintiff's work performance. His evidence was that he worked there long hours in order to earn overtime no doubt to improve his financial situation and that of his young family. In this regard I accept the submission on behalf of the plaintiff that he did not fail to mitigate his loss. I also accept that there is no evidence to the required standard that any neck or shoulder pathology after 18 September 1998 was caused solely by the work which the plaintiff continued to undertake at Clover Meats. 77 While there are no physiotherapy accounts for the period between September 1998 and April 1999 or no details of who administered physiotherapy but he said he went next door (seemingly a reference to his place of work) for physiotherapy during that period. In relation to medication he said that in effect it was not necessary to return to Dr Louie for prescriptions because the prescriptions that he had originally for Aropax and Tramadol had four or five repeats on them or enough to last him for three or four months. Further that he went to see different doctors, for example at Medipoint in Southridge near his home. He paid for those consultations out of his own pocket. It is also the case that according to Exhibit 13 a Health Insurance Commission notice of past
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benefits, the plaintiff on 3 December 1998 did attend a Dr Dewar. This apparently followed an incident at Clover Meats where the plaintiff cut his finger and required medical attention. Part of the medication he was prescribed for that injury he said assisted in alleviating his neck pain. Further, Exhibit 12, a tax invoice receipt shows that on 22 February 1999, whilst the plaintiff was still employed at Clover Meats, he attended a Dr Wang who prescribed among other things two Panadeine Forte tablets to be taken four times a day as required. Again, whilst this would not appear to have been medication prescribed for neck pain, its effect as I understood the plaintiff's evidence was that it too was effective in alleviating that pain. Although the plaintiff did consult Dr Louie for other matters between September 1998 and April 1999, given the plaintiff's attempts to cope with his condition and what I accept was his desire to avoid further time off work until he left his job there in March 1999, in my view it does not reflect adversely on his credit that he did not complain to Dr Louie about his ongoing problems arising from the motor vehicle accident during that period. 78 The plaintiff had a poor attendance record at a computer course in which he enrolled in February 2002. He re-enrolled in the hope of completing it in July 2002 but did not attend due to lack of concentration at the time. It is not clear whether in telling Dr Febbo in either June or August of 2002 that he was "managing well" at the computer course, the plaintiff used those exact words or it was Dr Febbo's interpretation because in his report, Exhibit 15(2) Dr Febbo notes "I love the computer" a remark apparently attributed to the plaintiff. Certainly at that time the plaintiff advised Dr Febbo he worked at the computer often for a number of hours therefore one could not necessarily conclude that the plaintiff actively misled or lied to Dr Febbo about the computer course. |