Marinelli v TAC
[2011] VCC 1183
•11 May 2011 (Revised)
| IN THE COUNTY COURT OF VICTORIA | Revised |
Not Restricted
AT MELBOURNE
CIVIL DIVISION
Case No. CI-10-03560
| JAMIE MARINELLI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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| JUDGE: | HER HONOUR JUDGE K L BOURKE |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 7 and 8 April 2011 |
| DATE OF JUDGMENT: | 11 May 2011 (Revised) |
| CASE MAY BE CITED AS: | Marinelli v TAC |
| MEDIUM NEUTRAL CITATION: | [2011] VCC 1183 |
REASONS FOR JUDGMENT
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Catchwords: Transport Accident Act 1986 – Section 93 – impairment to the left shoulder – impairment to the spine.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Harrison SC with | Nowicki Carbone |
| Mr T Ryan | ||
| For the Defendant | Mr S Blanden SC with | Solicitors for the Transport |
| Dr R McNeil | Accident Commission | |
| HER HONOUR: |
1 This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s.94(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 6 September 2007 (“the said date”).
2 Section 94(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 s.93(17)(a) – “a serious long term impairment or loss of a body function”.
4 The body functions ultimately relied upon by the plaintiff in this application are the spine and left shoulder, the claim in relation to psychiatric impairment being abandoned in closing submissions.
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: see Richards 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 than “significant” or “marked”?: see Humphries v Poljak [1992] 2 VR 129, at 140-1.
8 The plaintiff relied on two affidavits and gave viva voce evidence. He was cross-examined. In addition, 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
Background
9 The plaintiff is presently aged forty four, having been born on 1 July 1966 in Melbourne. He is of Italian descent and remained in Melbourne until he was aged twelve. He then returned to Italy where he was educated to the age of nineteen when he joined the military before returning to Victoria in 1987.
10 The plaintiff married in 1993 and has two daughters, the oldest fifteen and the youngest aged ten.
11 The plaintiff, a self trained chef, has made a living by buying and selling café and food businesses. His income has been supplemented at various times in recent years by Newstart payments.
12 In 2004, the plaintiff and his brother-in-law purchased the Worker’s Café in Preston which they operated as a joint venture until it was sold in 2006.
13 From March 2007, the plaintiff was employed as a chef on a part-time basis at K Queens Road Kitchen, Melbourne. He worked three hours a day five days a week at lunchtimes earning $700 net per fortnight. The plaintiff ultimately intended to purchase the business.
Pre-Accident Health
14 The plaintiff deposed that prior to the said date, he had visited his doctor in relation to a minor incident of depression. He also suffered from minor reflux problems. However, these conditions had substantially resolved prior to the said date.
15 In cross-examination, the plaintiff agreed before the said date he had been “feeling a bit down with just everyday living” and his general practitioner suggested he try anti-depressants. The plaintiff disagreed that he was in fact depressed at that time. He did not take the anti-depressants prescribed because he was having problems with reflux and he also felt he did not need the medication.
16 The plaintiff agreed he was certified unfit for work by his general practitioner Dr Zaky from 23 November 2004 until 23 August 2005 because of depression. He also agreed that Dr Zaky certified him unfit for work for seven months from January 2006 because of gout.
17 The plaintiff agreed there was little reference in his affidavits to depression before the said date and no reference to this time off work.
18 The plaintiff was cross-examined about his work history before and after the accident. The plaintiff agreed that prior to the accident there were extensive periods when he was unemployed.
19 The plaintiff agreed with the following summary of his earnings as shown in his taxation returns.
Summary of the Plaintiff’s Earnings
Financial Year Earnings Source Taxable Income
2001-2002 $2,492.00 Business loan $5,415.00 $7,907.00 DSS 2002-2003 $4,861.00 Newstart $15,428.00 $10,567.00 Income 2003-2004 $7,852.00 Newstart $7,852.00 2004-2005 $5,647.00 DSS $10,058 $2,857.00 Income Financial Year Earnings Source Taxable Income 2005-2006 No return - - 2006-2007 $7,254.00 Newstart $19,202.00 $1,200.00 Income 2007-2008 $7,537.00 Newstart $8,310.00 $5,100.00 Income 2008-2009 $9,355.00 Newstart $8,310.00 $5,100.00 Income The Accident
20 On the said date, the plaintiff was riding his Suzuki motor scooter when a motor vehicle executed a U-turn in front of him causing him to come off his scooter (“the accident”).
21 As a result of the accident, the plaintiff became airborne and landed heavily on the road on his left side, particularly his left shoulder and the side of his head. He felt a sharp pain in his lower back and left shoulder.
22 Police and ambulance services attended the accident scene and after receiving treatment there, the plaintiff was taken by ambulance to the Royal Melbourne Hospital (“the Hospital”). He was seen in the emergency department at the Hospital and then admitted for observation and various examinations were carried out. The plaintiff remained in the Hospital for several hours and was discharged later that day.
23 The plaintiff deposed that as result of the accident he suffered an injury to his nose, spine, both shoulders, teeth and ears. As a result of the consequence of his injuries, he has also developed anxiety, sleeping disturbance, aggravation of reflux, headaches, migraines, mood swings and weight gain.
24 The plaintiff was eager to return to work after the accident. However, upon returning to work on light duties, he had headaches and pain in his mouth. After about a week, pain in his left shoulder, the left side of his neck, his head and lower back worsened to the point of being excruciating and started to affect his work.
25 On 10 October 2007, the plaintiff attended Dr Smith at St Mary’s Medical Clinic, who prescribed painkilling medication and gave the plaintiff a certificate for two weeks off work.
26 On 12 October 2007, the plaintiff went to Thailand on a two week holiday which had been booked three weeks before the accident. During that time he rested with his wife and children.
27 The plaintiff then returned to work. The owner of the business was tolerant of the plaintiff’s injuries but she then sold the business and the new owners were not as lenient in terms of the plaintiff’s restrictions.
28 The plaintiff’s role as a chef manager of that business required him to be on his feet for long periods and also to lift and manipulate various items in the kitchen which required mobility and free use of his back and shoulders. Performing his pre-accident level of activity was extremely painful. He was required to do tasks which were often quite heavy and placed stress on his back, neck and shoulders aggravating his pain severely, such that he would need to take breaks.
29 The plaintiff ceased work at K Queens Road Kitchen in October 2008 as he was no longer physically capable of working there because of his accident injuries.
30 After leaving K Queens Road Kitchen, the plaintiff was unemployed for about four to five months undertaking an intensive rehabilitation regime to cope with his pain.
31 The plaintiff deposed however, being an active person he decided to try and work and he purchased a café in St Albans market in January 2009 for about $50,000 including set up costs. The plaintiff put in his entire savings of $15,000 to $20,000, proceeds of the sale of the Preston café into the purchase, and borrowed the rest of the purchase price from his brother.
32 The business was essentially a coffee and sandwich shop which the plaintiff operated with his wife two and a half days per week and he did food preparation on Wednesdays
33 During 2009, the plaintiff earned approximately $400 net per week from the café. However, his earning capacity was greatly inhibited by his injury pain which greatly reduced his efficiency and eventually proved too great an obstacle to continue working. Despite his best efforts, the plaintiff’s pain proved too great and he had to sell the business at a loss of around $20,000 in October 2009.
34 The plaintiff deposed on 9 December 2009, that since selling that business he had been undergoing fulltime rehabilitation and was unsure what his working capacity would now be.
35 The plaintiff no longer has the ability to work as a chef which requires him to operate cooking equipment with his left hand. As a result of his injuries, he believes he is precluded from resuming his profession. He does not believe he has the capacity to undertake physical work that he was to be able to do before the involving constant lifting, pulling and bending required.
36 The plaintiff is concerned that he will never be able to return to any form of work considering his age, educational, past work experience and his physical injuries.
Treatment
37 On 7 May 2008, the plaintiff was referred by Dr Smith to Dr Ellul, a head and neck specialist, due to persistent nosebleeds. He cauterised the plaintiff’s nose to prevent bleeding.
38 At that stage the plaintiff was also suffering from ringing in his left ear and reduced hearing and Dr Elul recommended formal hearing tests and vestibular tests which were carried out at the Alfred Hospital on 12 June 2008. The plaintiff was subsequently advised by Dr Elul to have a further MRI to investigate a possible hairline fracture at the base of his skull.
39 Due to ongoing back and shoulder pain, Dr Smith referred the plaintiff for physiotherapy and hydrotherapy treatment, which he underwent for about three months, but his condition worsened and he ceased both therapies.
40 In January 2008, the plaintiff was suffering considerable stomach discomfort diagnosed as dyspepsia by Dr Smith. He recommended the plaintiff undergo a gastroscopy which he underwent that month. On Dr Smith’s advice the plaintiff ceased taking Panadeine Forte as it was thought to be a cause of his stomach and bowel problems.
41 As the plaintiff was experiencing significant pain and discomfort, in May 2009 Dr Smith again referred him for physiotherapy.
42 Due to the extensive consequences of the accident the plaintiff also began suffering psychologically, particularly because of ongoing pain and his restricted lifestyle. Dr Smith referred him to a psychologist for counselling.
43 The plaintiff’s continued discomfort has got him down. He feels irritable, more angry, he is sleeping poorly and he is worried about his family. The severity of his pain has made him lose interest in recreational and sporting activities.
44 The plaintiff last consulted a psychologist through the LifeCare program in the middle of 2010 and has recently seen Mr Foenander on referral from Dr Smith.
45 On 28 July 2009, the plaintiff saw Ms Hitch, an occupational therapist, who recommended he receive assistance with gardening. Because of his persistent pain and difficulty sleeping, she also recommended a specially designed mattress.
46 In September 2009, the plaintiff was still experiencing chronic pain and again he consulted Dr Smith. The plaintiff was treated with Panadeine Forte and Nurofen, Nitrolingual spray, Durotram XR and Voltaren.
47 Dr Smith recommended a further MRI to determine what treatment was required for the plaintiff’s left shoulder, lower back and neck. Full scans revealed there was some damage to the plaintiff’s left shoulder.
48 The plaintiff continues to consult Dr Smith on a fortnightly basis.
49 In cross-examination, the plaintiff said that he sees Dr Smith regularly because of his substantially high blood pressure but also because of his shoulder, neck and back problems.
50 The plaintiff saw Mr de la Harpe, orthopaedic surgeon in February 2011 for his back and neck condition. Mr de la Harpe advised him that he did not require surgery and he encouraged the plaintiff to continue with physiotherapy. Mr de la Harpe further referred the plaintiff to Mr Richardson, orthopaedic surgeon, whom he was to see on 30 March 2011.
51 The plaintiff saw a physiotherapist at Life Care in St Albans as part of the pain management program for two periods of three months but that treatment “did not quite help to solve his injuries”. Since about October last year, the plaintiff has been seeing Mr Giovannucci, physiotherapist. After an initial ten physiotherapy sessions, a further twelve sessions were approved by the defendant on 15 February 2011.
52 The plaintiff currently takes six to eight Nurofen tablets and one to two Panadeine Forte each day for partial relief of his pain. He also uses Voltaren gel.
53 The plaintiff has developed hypertension since the accident and now takes blood pressure tablets. He has further been diagnosed with a fatty liver for which he takes vitamins.
Activities
54 Prior to the accident, the plaintiff did not have any significant restrictions on his range of movement but he has had problems since that time with everyday tasks requiring mobility with particular difficulties sitting, crouching, squatting and standing.
55 Those restrictions were particularly significant in relation to his work as a chef after the accident and his duties placed stress on his back and neck. He generally had to take breaks every hour and sometimes more frequently to prevent an exacerbation.
56 Because of his pain, the plaintiff’s family relationship has come under a great deal of stress. His relationship with his wife has been difficult and his sex drive is very low as a result of which he has been prescribed Viagra.
57 The plaintiff deposed that prior to the accident he liked to remain healthy and active and he often went swimming or camping, activities he has not been able to continue since the accident because of his pain.
58 Prior to the accident, the plaintiff had a quite good toned figure and was very happy with it. He used to walk three to four times a week for about forty five minutes. He has been less able to exercise since the accident and accordingly has gained about fifteen kilograms, which has caused him to feel depressed.
59 In cross-examination, the plaintiff admitted that he always had been an overweight person and it could have been a possibility he was complaining to Dr Galtieri, his general practitioner at that time, about his weight in 2002/2003.
60 The plaintiff said however, his current weight is probably the highest it had ever been. During 2003-2005 the plaintiff put on weight and may have got to over 100 kilograms but today he weighs in excess of 112 to 115 kilograms. Dr Galtieri was wrong when he recorded the plaintiff weighed 112.5 kilograms in June 2003, saying that perhaps he may have weighed 102 kilograms. The plaintiff agreed it was a possibility in June 2004 that he had complained to Dr Galtieri of weight gain.
61 Prior to the accident, the plaintiff played golf regularly at Keilor Golf Club and Midway, however he has not played since approximately a week prior to the accident as his injuries prevent him doing so.
62 Before the accident, the plaintiff also enjoyed playing tennis socially and he was a member of the Taylor’s Lakes Tennis Club but because of his ongoing pain he is no longer able to play to the extent he once did.
63 The plaintiff’s injuries have also affected his ability to play freely with his children and he no longer participates with them in activities such as kicking a ball.
64 The plaintiff continues to struggle with personal care tasks such as shaving and washing his hair and has pain even when attempting to get dressed, putting on a jumper, a belt or his socks.
65 The plaintiff’s shoulder, neck and lower back pain affect his mobility around the house and his ability to perform tasks. He is now only able to mow the lawn on rotation doing the front lawn one day and then the back lawn on another, whereas before he could mow the whole lawn on the same day.
66 Prior to the accident, the plaintiff was a handyman and did tasks at home such as cleaning the windows and the pergola but he cannot do those activities anymore.
67 The plaintiff’s injuries limit his ability to do other household chores such as taking out the bins and he relies on his wife and daughters to help him. Sometimes he has got to do it himself but not without experiencing intense pain.
68 When he goes grocery shopping, the plaintiff pushes the trolley and standing next to his wife simply makes him feel worthless. He avoids carrying and lifting heavy grocery bags, although he can carry lighter groceries with his right hand.
69 Since the accident, the plaintiff’s pain has caused problems sleeping with difficulty falling asleep and waking regularly through the night with pain and being stressed. He has problems lying on his back. The plaintiff does not have a normal waking time.
70 The plaintiff had to sell his scooter after the accident as he was worried he might be involved in another accident. Even driving a car presents problems because of pain when sitting for long periods and keeping his arm at shoulder level.
71 The plaintiff pays for his own membership and attends the aquatic centre on almost a daily basis and does exercises in the hydrotherapy pool.
72 The plaintiff frequently visits his nephew’s coffee shop in Essendon. The plaintiff also spends time visiting his mother in law in Peter McCallum. In cross-examination, the plaintiff denied that he was having a “cruisy life” at the moment as he is in pain.
73 The plaintiff confirmed in cross-examination that he had had a number of overseas trips since the October 2007 trip to Thailand. The plaintiff returned to Thailand in July 2008 and in August/September of that year, he also went to Vietnam.
74 The plaintiff was not advised to go to Thailand by his doctor but he was advised to sort of “chill out” because he knew after his accident he became very emotionally stressed and uptight and was relying on his wife a lot and he “needed to sort and find himself again.”
75 Travelling economy on those trips the plaintiff always got up and walked around during the time on the plane.
76 The plaintiff went to Thailand again in October 2009, January, July and also in October 2010 when he visited on the way home from a trip to Italy. He is not planning to go away again at the moment but could not really explain why he would change his normal routine of frequent travel
77 The plaintiff owns his house and has a line of credit for $110,000. He paid for these trips himself and also his brother helped him out.
78 In 2009 the plaintiff bought a 300 Chrysler for $30,000 using part of the sale proceeds from the St Albans business.
79 The plaintiff has been in receipt of a Disability Support Pension since October 2010.
Pain and Restriction
80 In December 2009, the plaintiff deposed he continued to have extensive limitations as a result of his back, neck, hip and right hip and left shoulder pain. He continued to experience headaches and migraines and had hearing difficulties with ringing in his right ear, vertigo and chronic nasal problems. He had problems standing and sitting because of his chronic pain. He had difficulty walking normally and he tended to walk with a limp.
81 The plaintiff then required medication because he was on his feet everyday working and at home, in order to function at a reasonable physical level, even though he was reluctant to take medication.
82 Because of his medication intake, the plaintiff had problems with his bowels and Dr Smith recommended ceasing Panadeine Forte because it had been identified as the cause of dyspepsia.
83 In his most recent affidavit sworn on 18 February 2011, the plaintiff deposed that he suffered ongoing left shoulder, neck, head and lower back pain and migraines.
84 His lower back pain goes into his left buttock down the left leg to the knee. The left sided leg pain is in the form of pins and needles and goes down to his foot where he occasionally feels cramps. Also his left leg occasionally feels weak.
85 The plaintiff’s back is very stiff in the morning and it is hard to put his shoes on. These back symptoms are worse with prolonged sitting or standing or walking longer distances. Often the plaintiff has a limp when he gets up from a sitting or standing position. The plaintiff is able to bend to some degree but he tends to avoid any bending or lifting as it aggravates his back pain.
86 The plaintiff experiences a pulling sensation and pain from the back of his head and upper neck producing migraines. The pain in his neck goes down the left side and into his shoulder and he has a flare up when he lifts objects weighing more than a few kilograms.
87 The plaintiff continues to suffer constant left shoulder and left shoulder blade pain and his movement is restricted. He is unable to raise his left arm above elbow height without discomfort and activities involving his left arm cause pain. He predominantly uses his right hand to manoeuvre the steering wheel because of his left arm pain. Also if he opens a door he uses his right hand because rotation of the left arm increases shoulder discomfort.
88 The pain level in his left shoulder is at most times six or seven out of ten and rarely below that level and it is worse in the mornings. The pain radiates down to his hand where he experiences pins and needles in his fingers.
Lay Evidence
89 The plaintiff’s wife, Carmel Marinelli, swore an affidavit on 18 February 2011.
90 Mrs Marinelli deposed that prior to the accident, the plaintiff was a healthy man who enjoyed working as a chef. Now he is often in pain and cannot do what he wants to do. He frequently has to stay home and rest to relieve his symptoms and his activities have been markedly restricted because of pain.
91 Mrs Marinelli and the plaintiff had a good relationship prior to the accident with a normal family life. As a result of his injuries, the plaintiff no longer enjoys the same activities and he has trouble doing physical things like dancing. He has pain sitting at a restaurant for prolonged periods.
92 As a result of his injuries, the plaintiff struggles to complete household duties that he used to do. He has trouble preparing meals such as a salad. His symptoms start to hurt when he stands for prolonged periods to cook a meal.
93 The plaintiff tries to do other jobs around the house but he has trouble. His ability to tend the garden has been greatly diminished. Before the accident he was able to lift heavy items around the house such as garbage bins but is now unable to take the bins out. She now has to do it. Since the accident the plaintiff also has had great difficulty lifting all but the lightest of items. He continues to mow the lawn but it takes him longer to do so.
94 Mrs Marinelli has noticed that the plaintiff often limps when he gets out of bed first thing in the morning and is usually able to walk around better after he has moved around a bit. They have difficulties being intimate. The plaintiff is often in pain and it is not the same as it was before the accident.
95 The plaintiff finds it frustrating that he was perfectly healthy before the accident and is now limited in what he can do. Since the accident his mood and demeanour has changed and he often seems depressed and pessimistic and has lost a lot of energy and motivation.
96 The plaintiff’s relationship with his daughters has suffered as a result of his injury and he cannot play or interact with them as often as he used to because of pain. This situation seems to upset him.
97 As a result of his injuries the plaintiff takes a lot of medication. He does exercises and stretches at home to relieve his pain. She is concerned that despite taking medication the plaintiff still seems to be in pain.
Video Surveillance
98 The defendant admitted that there was a total of twenty hours’ surveillance undertaken over four days in January 2010 and a further twenty hours of surveillance undertaken in February 2011 over three days.
99 The investigator’s report set out that at 1.08 pm on 18 January 2011, the plaintiff was observed entering premises in Richmond where he ascended the steps, displaying a limp. At 1.53 pm, the plaintiff was noted to have crossed the roadway limping heavily, then moving out of sight, having walked approximately 80 to 100 metres.
Vocational Evidence
100 The plaintiff was referred for an Australian Government Job Capacity assessment on 9 February 2010, at which time he was assessed by Mr Besanko, clinical psychologist.
101 Mr Besanko reported that the plaintiff had been diagnosed with chronic pain/soft tissue injuries to his back, nose and left shoulder and also depression and anxiety.
102 Based on the available medical opinion, the plaintiff was assessed to have a work capacity of eight to fourteen hours per week with the intervention of the Disability Employment Network.
Treating Doctors
103 Dr Smith from St Mary’s Medical Clinic in St Albans has treated the plaintiff since July 2004. Dr Smith reported that before the accident there was a history of intestinal problems, gastro oesophageal reflux, mild depression and anxiety, gout and atypical chest pain. The plaintiff’s only regular medication before the accident was Nexium.
104 Dr Smith saw the plaintiff after the accident on 10 October 2007.
105 The plaintiff advised him that since the accident he had suffered from lower back, neck, right hip and left shoulder pain. He had problems with his teeth and had difficulty hearing. He had seen several specialists who had not been able to significantly help him and he had had various forms of treatment but to no avail.
106 Dr Smith noted that the plaintiff’s chronic pain resulted in problems with prolonged standing and walking normally and he had had to leave work because of his pain. The plaintiff had become depressed and his family relationships had suffered. He was limited in the medication he could take because of his intestinal problems and he required daily medication for pain and stiffness.
107 Dr Smith noted the plaintiff had had to give up normal employment. He was also no longer able to participate in sporting hobbies such as tennis and golf. Further, his mental health had deteriorated since the accident and he now had significant depression and anxiety with some features of a Post-Traumatic Stress Disorder (“PTSD”). The plaintiff had chronic fatigue and irritability with a tendency to become frustrated and angry easily affecting his family relationships. The plaintiff slept poorly and his mood fluctuated at times.
108 Dr Smith noted the plaintiff’s physical injuries caused pain in his back, neck and left shoulder in particular. He had significant changes on an MRI of his spine with degeneration and some mild canal stenosis and disc bulging.
109 Dr Smith considered that the accident had exacerbated those changes, noting there was no complaint at all of back or neck pain prior to the accident.
110 Dr Smith thought the plaintiff suffered discogenic and ligamentous strain to his cervical and lumbar spine in the accident which continued and had aggravated degenerative change.
111 Dr Smith noted an MRI scan of the plaintiff’s left shoulder also showed rotator cuff injuries and a tear to the posterior labrum. He thought the plaintiff’s headaches were predominantly cervicogenic with exacerbation from stress and frustration following his dealings with the defendant.
112 Dr Smith considered the plaintiff’s pain was organic in nature and supported by his radiological findings and specialist opinions.
113 Dr Smith noted since the accident the plaintiff had put on approximately sixteen kilograms due to inactivity and his weight gain aggravated his gastro- oesophageal reflux and also contributed to development of hypertension.
114 Noting current physiotherapy, Nexium and hypertension medication and Nurofen for pain, Dr Smith suggested the plaintiff required a multidisciplinary pain management treatment program. In the past he noted that the plaintiff had been referred to Dr Thomas and also participated in a LifeCare plan that was not of benefit.
115 Dr Smith thought the plaintiff’s injuries had stabilised and that he was currently not fit for work.
116 Dr Smith noted that there was no evidence of any of these problems with the plaintiff before the accident except for a previous episode of mild depression (which he considered had understandably been aggravated by the plaintiff’s chronic pain and health problems since the accident) and gastro-oesophageal reflux which had also been aggravated.
117 Dr Smith thought the plaintiff’s injuries were likely to be permanent and that his prognosis was guarded. Dr Smith considered that the plaintiff was unable to work and that he was limited in his everyday daily activities and remained in chronic pain.
118 The plaintiff was referred to Spinal Management Clinics Victoria by Dr Smith for a pain management program in September 2009. The plaintiff was initially assessed by for the program on 6 October 2009 when it was noted he had a complex clinical scenario including moderately severe cervical and lumbar disc function in association with poor control of stabilising muscles.
119 Whilst at the spinal clinic, the plaintiff underwent assessment by Dr Middleton, occupational medicine; Dr Ford, musculoskeletal physiotherapist; and Mr Ruddock, psychologist.
120 Dr Middleton on initial assessment thought it was difficult to determine if there was true clinical radiculopathy due to the plaintiff’s inconsistent behaviour on examination, noting there was no clear radiological mechanism for radiculopathy in any case. He noted radiologically the plaintiff however had significant left shoulder pathology, the degree of which was difficult to ascertain due to muscle guarding and elevated pain focus. He thought there was almost certainly a degree of maladaptive central processing, common in chronic pain syndromes. He also thought there was a high likelihood that at least a component of the plaintiff’s pain was neuropathic in origin. He noted there was a moderate level of inconsistency which was likely to have had a significant impact on response to treatment and return to normal activity to that date.
121 Dr Middleton last reported on 23 March 2011.
122 Noting it was two years since the accident, Dr Middleton thought there were signs and symptoms that indicated recovery from a physiological point of view especially in the lumbar spine. He felt the plaintiff suffered with a chronic lumbar spine strain which now aggravated the L5-S1 facet joints, greater on the left than the right.
123 Dr Middleton felt there was evidence to indicate there was some degree of sciatic pain following the injury, as was borne out by objective findings of reduced reflexes in the left leg.
124 He considered the plaintiff suffered with a chronic strain of the cervical spine, resulting in secondary vascular headaches. He also felt that there may have been neural impingement at that time and the plaintiff now had ongoing neuropathic pain extending to left shoulder.
125 Dr Middleton thought the plaintiff suffered with a left rotator cuff syndrome with impingement with the MRI pointing to a small lateral tear in the left glenohumeral joint.
126 Due to the plaintiff’s chronic pain over the previous two years, Dr Middleton believed he suffered with Complex Regional Pain Syndrome Type 1 (“CRPS”), together with what he felt may be some neuropathic pain in the left shoulder. He thought the plaintiff had a strained left acromioclavicular joint and finally the plaintiff suffered with anxiety and depression due to the ongoing symptoms and frustrations associated with the accident.
127 Dr Middleton noted he referred the plaintiff to Mr Evans, orthopaedic surgeon in relation to his shoulder problem. He noted Mr Evans reported to him that he had difficulty in identifying the absolute cause of the plaintiff’s underlying shoulder pain, suggesting there may be a neurogenic component, given the widespread tenderness and burning nature of the pain which was extending distally into the plaintiff’s arm.
128 Dr Middleton noted as suggested in the ultrasound there was the presence of capsulitis associated with mild stiffness where the MRI scan showed some fluid in the actual shoulder joint.
129 In summary, Dr Middleton stated the plaintiff suffered with a left rotator cuff syndrome with impingement secondary to subacromial bursitis resulting in a small supraspinatus full thickness tear. Dr Middleton thought the plaintiff may also have suffered a traumatic injury to the glenohumeral joint, resulting in a small level tear.
130 Clearly having suffered with continuous chronic pain over the years, Dr Middleton considered the plaintiff had developed a CRPS Type 1, with the likely presence of neuropathic pain. He thought the plaintiff also suffered with a chronic adjustment disorder with anxiety in particular, but also some degree of depression due to the frustrations associated with the accident.
131 Dr Middleton believed there was an underlying organic representation of the plaintiff’s pain and suffering which had been amplified because of its ongoing nature and chronicity resulting in the amplification as seen in CRPS Type 1. Dr Middleton noted some people would regard the pain amplification as being non-organic. He did note some reports of sensory changes with a non- anatomical distribution and noted that may represent some degree of non- organic pain behaviour.
132 At the time of his assessment for the Network Pain Management Program, Dr Middleton considered that there were clearly major organic pain symptoms relating to the left shoulder and neck, resulting in secondary vascular type headaches and he noted in regard to the lumbar spine the proportion of pain being organic was not as pronounced. If he were to quantify organic pain, it would exceed two thirds in regard to the shoulder and neck and a half in relation to the lumbar spine.
133 Dr Middleton thought the plaintiff should have his shoulder re-assessed by Mr Evans and noted the plaintiff needed ongoing treatment, both psychologically and psychiatrically and from a rehabilitation point of view, an effort to provide him with further skills to enable him to attain sedentary type work should be provided. He thought there was still a causal connection between the plaintiff’s physical injuries and the accident and that the accident remained a
134 Mr Strintzos, physiotherapist, reported to Mr Evans, orthopaedic surgeon, in December 2009 whilst the plaintiff was involved in the program. Mr Strintzos repeated the maladaptive central processing comments that were included in the earlier report complied by Dr Middleton and asked Mr Evans to provide his opinion with regards to the plaintiff’s left shoulder pathology.
135 In the pain management follow up report, six months after the program, the plaintiff reported stable pain and mood levels with reducing treatment over the last six months. Compared to initial assessment, the plaintiff reported his pain levels had not improved, although he felt stronger and functional tolerance had been improved. Despite such functional improvement, the plaintiff continued to report ongoing moderate severity cervical lumbar and left shoulder pain.
136 As of February 2010, Mr Strintzos noted from a mood perspective the plaintiff’s depression, anxiety and stress symptoms had remained stable since being discharged and he did not require specific treatment from a psychological perspective.
137 Mr Strintzos then thought the plaintiff had a work capacity with the following restrictions; namely, two hours a day three days a week; lifting limit of 5 kilograms; no sustained or repeated forward bending or twisting; not sitting for longer than fifteen minutes or standing or walking; and no prolonged shoulder level work.
138 Mr Strintzos further reported on 28 March 2011.
139 He considered there were clearly organic and non-organic factors associated with the plaintiff’s presentation. He noted at initial assessment there was a moderate level of inconsistency, which was likely to have had a significant impact on the plaintiff’s response to treatment and return to normal activity. There were non-organic signs on Waddell testing.
140 Mr Strintzos thought it was impossible to quantify the respective contributions of organic and non-organic causes to the plaintiff’s presentation.
141 In his opinion, the plaintiff did not require any further treatment for his lumbar and cervical spine injury. Further, he considered that injection or physiotherapy treatment may be indicated for the plaintiff’s shoulder injury at the discretion of an orthopaedic surgeon, noting that Mr Evans did not believe that surgery would benefit the plaintiff following his review in December 2009.
142 Based on his last review of the plaintiff on 4 August 2010, Mr Strintzos did not think that the plaintiff’s injuries had stabilised and considering his pathology he expected that with time the plaintiff would slowly symptomatically improve.
143 He considered the plaintiff’s spinal and shoulder injuries were not permanent in nature but cautioned that statement by saying that due to the chronic nature of the plaintiff’s injuries, the presence of psychosocial issues, non-organic behaviour and very slow progress to date, improvements in the short to medium term were likely to be very slow.
144 In his view, when discharged, the plaintiff had a limited work capacity for sedentary duties on reduced hours and the plaintiff himself did not believe he could return to work and was receiving a disability pension.
145 Mr Strintzos thought the plaintiff’s injuries should not restrict him from performing social and light domestic activity. He considered the plaintiff would not be capable of performing heavy domestic tasks or his pre-injury recreational activities, such as tennis and golf.
146 Mr Strintzos thought the plaintiff was suitable to seek work of a sedentary nature that did not require frequent or repetitive bending, lifting greater than five kilograms repetitively prolonged above shoulder level work, or prolonged static posture.
147 Dr Ford, physiotherapist, recommended on 3 February 2010 that the plaintiff continue to be certified as unfit until medico-legal and claims related issues were resolved. He thought it would be appropriate depending on the plaintiff’s progress to consider vocational assessment.
148 Mr Ruddock, psychologist, recommended as at 3 February 2010, the plaintiff have additional individual psychological sessions due to ongoing significant psycho-social factors.
149 Mr Evans reported to Dr Middleton on 11 December 2009.
150 On the basis of his consultation with the plaintiff on that date, Mr Evans advised he was not entirely sure what was the cause of the plaintiff’s underlying shoulder pain. He suspected there may be a neuropathic component to the plaintiff’s pain, given the widespread tenderness, the burning nature of the pain and the problems he was getting more distally in the limbs.
151 In his view, this may represent a form of CRPS. He noted the changes on MRI scan did not really fit with the plaintiff’s clinical picture, although having said that he thought the plaintiff did have some weakness of his rotator cuff and he was now getting secondary impingement.
152 Mr Evans noted patients with long standing shoulder pain and poor function tend to have a deconditioned rotator cuff and hence poor glenohumeral joint control which could lead to secondary impingement. Mr Evans did not think that the rotator cuff weakness was the plaintiff’s primary problem but thought it was a consequence of his ongoing shoulder pain. He noted there may also be an element of capsulitis at play, as the MRI scan showed some fluid in the shoulder joint and the plaintiff had mild stiffness; again, he thought it was difficult to know whether this was a primary or secondary problem.
153 Mr Evans suggested in terms of further management that a hydrodilatation would be the first place to start to try and relieve any pain that may be coming from the glenohumeral joint and to try and improve the range of shoulder motion. The plaintiff should then return for physiotherapy treatment and if still getting discomfort related to his rotator cuff, then a cortisone injection into the subacromial space would be the next thing to try.
154 Mr Evans hoped this would break the cycle of pain and poor function and that the plaintiff could then do further strengthening work with the physiotherapist. Mr Evans also thought that assistance by a specialist in CRPS would be beneficial as they may be able to make some further recommendations in terms of helping the plaintiff’s pain control. He did not think surgery would benefit the plaintiff’s shoulder and if anything it would tend to make his rotator cuff weaker.
155 Mr Giovannucci, physiotherapist, has been treating the plaintiff since 21 October 2010.
156 The plaintiff reported to him moderate cervical spinal pain aggravated by lifting, reading and driving. He reported moderate headaches which came frequently and disturbed sleep. He reported moderate lumbar spinal pain with pins and needles to the lower limbs aggravated by lifting, walking, sitting and standing. He reported left shoulder pain aggravated by lifting, pushing, pulling and carrying activities.
157 On examination, cervical spine movements were restricted and painful. There was tenderness over C0-1, C1-2 spinal segments, over the trapezius, splenius capitis and scalenus posterior muscles. Neurological examination of the upper limbs was normal.
158 The MRI scan of the cervical and thoracic spine of 14 September 2009 and the MRI of 21 September 2009, MRI of the left shoulder of 21 September 2009 were noted.
159 In Mr Giovannucci’s opinion, the plaintiff had sustained discogenic and musculo-ligamentous strain of the cervical spine and an aggravation to the pre-existing degenerative changes which had become chronic. He thought the plaintiff sustained discogenic and musculo-ligamentous strain of the lumbar spine which also aggravated pre-existing degenerative change which also had become chronic.
160 Further, the plaintiff sustained a full thickness, two to three millimetres tear of the supraspinatus muscle, labral tear and subacromial bursitis of the left shoulder which had become chronic.
161 Mr Giovanucci considered that the radiological films showed an organic basis for the plaintiff’s complaints.
162 In his view, the plaintiff’s pain and suffering had an organic basis. He considered the plaintiff’s clinical presentation demonstrated a chronic spinal pathology and was evident in his spinal sensitisation processes. There was evidence of an organic pathology of the left shoulder, both radiologically and on clinical examination. He considered there was an organic contribution to the pain and suffering that the plaintiff experienced.
163 Mr Giovanucci thought the plaintiff should continue with therapy exercises over the next three months.
164 He considered the plaintiff’s injuries to his spine and left shoulder had resulted in a permanent impairment. In his view, the plaintiff was totally incapacitated for his pre-injury work and may be suitable for light sedentary work.
165 Further, he thought that the plaintiff’s left shoulder and spinal dysfunction were precluding him from participating in golf, tennis and soccer, and precluded him from extended walking. The plaintiff’s employment activities were restricted due to decreased tolerance for lifting, pushing and pulling activities, postural restriction of standing and sitting tolerances.
166 Mr de la Harpe, orthopaedic surgeon, examined the plaintiff on 11 February 2011 on referral from Dr Smith.
167 Mr de la Harpe noted that since the accident the plaintiff had suffered mainly what he referred to as migraine headache, tension in the neck, left shoulder pain, diffuse back pain, non-dermatomal left leg pain and some paresthesia down the left arm.
168 The plaintiff told Mr de la Harpe he had not been able to go back to work since the accident having tried to return to work a few days per week but not being able to then cope because of pain.
169 On examination, there was no neurological abnormality in the upper and lower limbs. The MRI scan of the cervical, thoracic and lumbar spine showed some age related changes but no surgical lesion.
170 There was lumbar flexion to 75 degrees and 10 degrees of extension.
171 Mr de la Harpe did not feel any surgery would benefit the plaintiff and that he needed to continue physiotherapy and also hydrotherapy.
172 Mr de la Harpe asked Professor Richardson to have a look at the plaintiff’s rotator cuff tear.
173 Mr de la Harpe’s examination findings were that of slightly decreased range of movement to the lumbar spine without any neurological abnormality in the limbs.
174 He believed the plaintiff’s current condition was that of chronic pain without significant radiological evidence of damage.
175 Mr de la Harpe noted that the radiological films did not demonstrate an organic basis for the plaintiff’s complaints in so much as there was no surgical lesion, no evidence of fracture, dislocation or acute soft tissue injury.
176 Mr de la Harpe believed the plaintiff now had chronic pain issues and noted he was not qualified to comment as to whether there were any non-organic contributors to the pain except to say that there was no surgical lesion present.
177 Mr de la Harpe suggested continued conservative treatment was appropriate and that some further management in the setting of a multidisciplinary rehab team may be appropriate.
178 Mr de la Harpe could not say whether the plaintiff’s injuries were likely to persist into the foreseeable future so much as there seemed to be no surgical lesion on the MRI scans to explain the plaintiff’s current incapacity.
179 Mr de la Harpe considered the plaintiff’s current capacity for work was limited by his now chronic pain syndrome and that his situation had impacted on his social, domestic and recreational activity. He believed the plaintiff’s general prognosis was somewhat guarded as he had made poor progress since the injury despite conservative management.
180 Mr Foenander, clinical psychologist, saw the plaintiff on 28 March 2011 on referral from Dr Smith. The plaintiff told him that he was lucky to be alive after the accident and that he had suffered so much pain and agony since that time.
181 The plaintiff reported psychological symptoms of sleep disturbance, irritability, mood swings, anxiety attacks, loss of libido, difficulty with concentration and attention, forgetfulness and loss of confidence, and suicidal ideation at times.
182 The physical symptoms reported were recurring pain in the left shoulder, neck, lower back and headaches.
183 On mental status examination, Mr Foenander found the plaintiff’s behaviour during interview was best characterised as having been marked by continuous movements and restlessness.
184 The plaintiff’s level of responsiveness appeared to show the effects of pain and his level of psychological distress appeared to be moderate. The plaintiff’s mood was anxious, depressed and irritable. His affect was appropriate to the content of the discussion. He reported current feelings of moderate depression and indicated he had experienced frequent episodes of depression over the past six months. He reported sleep disturbance, irritability, sadness and fatigue.
185 The plaintiff’s thought processes were logical and coherent. Content of thought focussed on his concerns regarding the presenting problem. The plaintiff reported abnormal pain sensations.
186 Dr Foenander thought the diagnosis was of a chronic pain disorder due to both medical and psychological factors. In addition, he thought the plaintiff suffered from an Adjustment Disorder with mixed anxiety and a depressed mood. He noted there was no previous medical or psychological history for himself or any of his family of origin to account for his current illnesses.
187 Dr Foenander noted that chronic pain disorder was now regarded as a disease in its own right for which there is no cure and required ongoing multidisciplinary treatment for the foreseeable future.
188 Dr Foenander noted the plaintiff’s main incapacity would be a combination of physical and psychological contributions to his pain problems and depressed mood and that the duration of his incapacity seemed indefinite.
189 Dr Foenander concluded the plaintiff required ongoing treatment due to his significant pain and depression and his extremely fragile psychological state. The future proposed and recommended treatment was pain management, including physical and psychological treatment which would need to be co- ordinated by his general practitioner and physiotherapist.
190 He considered the plaintiff’s long term prognosis was guarded in view of the history and relatively slow response to treatment and that he remained vulnerable to decompensate during periods of increased stress and pain and was currently in the process of doing so.
Medico-Legal Evidence
191 Dr Leonard Rose, consultant in legal medicine, examined the plaintiff on 14 February 2011.
192 On examination, Dr Rose noted the plaintiff walked with an antalgic gait and demonstrated significant pain behaviour throughout the consultation. The plaintiff sat with the lean of his neck and back to the left and seemed unable to sit comfortably for more than about five to ten minutes and frequently got up from his chair and walked with a significant limp.
193 There was a marked decrease in the normal range of cervical movement in all facets. There was a decrease in the range of movement of the left shoulder joint with crepitus being obvious throughout the attempted movement and tenderness throughout the shoulder joint and left shoulder girdle.
194 There was a marked tenderness over both sides of the neck and over the left scapula, trapezius muscle and supraspinatus. The acromioclavicular joint was particularly tender, as was the coracoid process.
195 There was a marked decrease in the range of thoraco lumbar spine movement but the plaintiff could only straight leg raise on the left to 15 degrees and on the right 30 degrees. He demonstrated a markedly positive response to Dr Rose’s attempts to flex his knees while he was in a prone position.
196 Dr Rose diagnosed multilevel disc degeneration and possible disc prolapse with possible internal disruption of one or more of the lumbar intervertebral discs. He thought the plaintiff was suffering from a whiplash type injury to the cervical spine and a rotator cuff injury which according to the investigations provided, indicated multiple internal tears of the left rotator cuff. Further, the plaintiff experienced severe low back pain which appeared to be related to multilevel disc degeneration and possible disc rupture.
197 Dr Rose believed the plaintiff suffered from significant cervicogenic headaches which related to the cervical spine injury and he considered there was a possibility that some of the plaintiff’s neck pain related to disc degeneration.
198 Given the nature of the original incident and the symptoms referrable to numbness and tingling of the left hand and wrist, Dr Rose believed it was possible that the plaintiff had suffered a traction injury through at least part of his brachial plexus and that nerve conduction studies should be carried out.
199 Dr Rose noted surprisingly the plaintiff appeared to have coped reasonably well with these multiple disabilities. He thought the plaintiff did not appear to have suffered from any significant levels of depression, although he had coped poorly with the onset of severe irritability and inability to enjoy whatever quality of life he now had.
200 Dr Rose thought there had been significant interference in the plaintiff’s capacity to be employed and he believed that unless there were massive changes in the near future, the plaintiff’s chances for employment were extraordinarily restricted.
201 Dr Rose thought the plaintiff had suffered significant organic damage as a direct result of the accident. He was concerned the plaintiff had never been referred to a pain management specialist. Dr Rose also sought assessment by an anaesthetist experienced in carrying out nerve blocks – a procedure which he thought might be worthwhile.
202 Dr Rose considered the plaintiff to be suffering from significant injuries to his neck, lower back and left shoulder. He thought the pain and neurological complaints may relate to nerve compression or nerve traction injury in the plaintiff’s left shoulder and the left side of his body. He thought it was possible there may be some more significant underlying pathology in the nerve roots of the cervical spine and that should be investigated in nerve conduction studies. Dr Rowe believed the plaintiff had suffered from injury to the left rotator cuff and shoulder girdle, and even if there were no tears those injuries would have been associated with some degree of rotator cuff syndrome.
203 He thought the plaintiff had suffered from injuries to the lower back consistent with multilevel disc degeneration and again there was the possibility of nerve compression or possible internal disc disruption. He thought the cervicogenic headaches arose from the plaintiff’s neck injury.
204 While he had not reviewed the actual films, Dr Rose believed that various radiological reports demonstrated an organic basis for the plaintiff’s complaints. He believed the plaintiff’s pain and suffering was directly attributable to the organic basis of his injury and he did not believe there were any non-organic contributions to the pain and suffering which the plaintiff experienced.
205 Dr Rose thought the plaintiff’s injuries were likely to be permanent and continued to preclude and restrict him in relation to social, domestic, recreational and employment activities. In particular, he believed the plaintiff had a significant left shoulder injury and also that the lower back complaint would also contribute significantly to restrictions. He thought the plaintiff’s general prognosis was poor.
206 Dr Weissman, psychiatrist, examined the plaintiff on 13 January 2011.
207 When asked about his previous psychiatric history the plaintiff told Dr Weissman he had never suffered from any formal psychiatric problems but occasionally felt down at times in the past.
208 On mental state examination, the plaintiff was somewhat circumstantial and over inclusive, although Dr Weissman noted he tried to be most cooperative. His speech was fluent and he spoke with some pressure of speech and was quite voluble. The quality of his affect was tense, frustrated and mildly irritable and mildly to moderately anxious and depressed.
209 The plaintiff’s thought stream was increased but there was no formal thought disorder. The content of his thinking revealed occasional flashback images of blood coming out of his nose at the accident scene but otherwise no regular thoughts about the accident itself. The plaintiff expressed and reported mild to moderate mixed emotional symptoms, themes and features to do with being tense, very frustrated, irritable and mildly to moderately anxious and depressed. There was some pain focus and preoccupation.
210 There were no formal abnormalities of perception. The plaintiff had some symbolic mood congruent bad dreams. There were no bad dreams about the transport accident per se. There was scooter motor bike related anxiety, avoidance and phobia with some transport related anxiety symptoms, hyper- vigilance, hyper-arousal, jumpiness and an increased startle reflex.
211 The plaintiff’s insight and judgment were characterised by low self-esteem and confidence and elevated responsiveness to reminders and triggers of the accident and some elevated health concerns.
212 Dr Weissman thought the plaintiff definitely experienced mild, primary or direct post-traumatic stress and anxiety symptoms and features of traumatisation, although he accepted that those symptoms and features were only mild and the plaintiff did not satisfy all of the diagnostic criteria for a full blown PTSD. Further, he considered the plaintiff’s symptoms and objective signs on mental state examination satisfied the diagnostic criteria for a chronic adjustment disorder with depressed and anxious mood of mild to moderate intensity or severity.
213 Finally, Dr Weissman agreed there was some pain focus and preoccupation with elevated health concerns. Diagnostically he thought the plaintiff was also suffering from some symptoms and features of a chronic pain disorder associated with psychological factors and a general medical condition. By and large Dr Weissman thought the plaintiff’s psychiatric condition had stabilised.
214 Dr Weissman did not think the plaintiff was totally incapacitated for work, however he did not believe the plaintiff had a full capacity for fulltime work. He also thought the plaintiff required pain management and that he would benefit from seeing an experienced clinical psychologist for anger management and also benefit from a therapeutic trial of anti-depressant medication.
215 Dr Weissman thought the plaintiff’s psychiatric prognosis was somewhat guarded and uncertain. He thought the plaintiff should be referred to an independent psychiatrist in about nine to twelve months time.
The Plaintiff’s Investigations
216 An MRI scan of the cervical and thoracic spine was carried out at Dr Smith’s request on 14 September 2006. It was reported there was no acute abnormality demonstrated of the cervical spine. A right paracentral disc bulge was seen at the C5-6 level, causing minimal thecal indentation without any obvious caudal or neural compression.
217 There was no significant abnormality demonstrated in the thoracic spine.
218 An MRI scan of the left shoulder was organised by Dr Smith on 21 September 2009. There was a small full thickness tear of the mid supraspinatus tendon demonstrated. Small left shoulder joint effusion and left subacromial bursitis was noted. There was a small posterior superior labral tear with orthopaedic surgical review recommended. There was no further rotator cuff tendon abnormality identified.
219 An MRI scan of the lumbar spine taken on 21 September 2009 showed mild central canal stenosis at L3/4 and L4/5 levels with mild left L4/5 foraminal stenosis. There were degenerative changes at the L5/S1 level facet joints and there was no convincing anterior spondylolisthesis or pars defect noted in the lumbar spine.
220 Dr Middleton organised shoulder investigations on 13 October 2009. On x-ray the glenohumeral articular spaces were normal and there was no evidence of any previous fracture in either shoulder. The bones, joints and soft tissues were normal. In particular there was no obvious pathology in the region of the left AC joint.
221 The reporter on the left shoulder ultrasound noted that he was aware a recent MRI showed some damage to the supraspinatus tendon but on ultrasound, apart from mild heterogeneous change through the supraspinatus tendon, no rotator cuff tear or calcification was seen.
222 The supraspinatus, infraspinatus and subscapularis tendons were of good thickness with mild thickening of the overlying bursa.
223 Shoulder movements were restricted and painful which the reporter noted would appear to be due to a combination of some impingement and probably some capsular contraction following his trauma.
The Defendant’s Medical Evidence
224 The defendant tendered notes from Dr Galtieri detailing the plaintiff’s problems with weight prior to the accident.
225 In July 2002, the plaintiff was complaining of a lack of motivation and needed to lose weight. On 13 June 2003, he was unable to lose weight and still lacked motivation. He then weighed 112.5 kilograms. In June 2004 it was noted the plaintiff was eating poorly, had gained weight and was having epigastric discomfort and was put on Nexium for reflux.
226 Mr Dickens, orthopaedic surgeon, first examined the plaintiff on 10 August 2009 and re-examined him on 17 May 2010.
227 On re-examination, the plaintiff told him that he was still having problems with his left shoulder, back and neck and also that his migraine headaches had become quite a problem.
228 The plaintiff advised the severity of his pain on a visual analogue scale was six out of ten, at worst eight and at best four. The plaintiff complained of pain in the left shoulder with a burning sensation associated with restriction of left shoulder movement, however, he said that had improved since it was significantly worse eighteen months ago.
229 The plaintiff complained of lumbosacral pain going down to the left buttock and down the back of the left leg to the knee, and also a locking sensation in the knee. He described his pain as seven out of ten and said it was his worst problem.
230 When Mr Dickens asked the plaintiff to move his neck, there was a quite gross restriction of movement, although Mr Dickens thought it improved when the plaintiff was distracted. The plaintiff was tender in the upper cervical spine region, particularly down the left side of his neck and there was some muscle spasm palpable and visible. There was no spinal deformity.
231 Power testing in the upper limbs was globally restricted on the left and the plaintiff also had altered sensation of a non-anatomical distribution including sensation changes down the posterior aspect of the scapula area. Mr Dickens thought this was inconsistent and did not conform to any particular dermatome.
232 In the left shoulder there was flexion of 100 degrees with an extension range of 50. Abduction was to 100 degrees and adduction to 20 with external rotation 50 degrees and internal rotation 30 degrees.
233 On examination of the lumbosacral spine there was obvious palpable muscle spasm with rotation. The plaintiff had a flexion range of fingertips to the knees but virtually no extension. Rotation was restricted and it was quite markedly less to the right when compared to the left. There was obvious palpable muscle spasm with rotation.
234 Neurologically in the lower limbs the reflexes were normal but the plaintiff had sensory change which again was not anatomical involving the whole of the upper thigh region, front back and sides but normal sensation below the knee. There was global weakness of the left limb when compared to the right.
235 Mr Dickens thought the plaintiff had soft tissue injuries to the cervical and lumbar spine and had pathology in the rotator cuff of his left shoulder.
236 Mr Dicken noted the MRI studies indicated that there were degenerative changes in the cervical and lumbar region which he thought, of course, were normal for the plaintiff’s age group and it would appear that the plaintiff may have produced some aggravation of that underlying pathology. Mr Dickens believed the injuries were consistent with the accident and there was no pre- existing condition.
237 Mr Dickens noted that the treatment had been conservative and more recently the plaintiff had had investigations and was convinced now that he had a serious problem with his left shoulder because of the MRI.
238 Mr Dickens would have expected soft tissue injuries, in the presence of proceeding degenerative changes, to resolve with time. He got the impression the plaintiff was injury focused and that there were non-organic components to his ongoing symptomatology which made predictions for his prognosis for his spinal injuries somewhat difficult.
239 Mr Dickens noted added to that was the plaintiff’s complete deconditioning and lack of exercise combined with an increase in weight which again would mitigate against him developing improvement in his spine.
240 Mr Dickens did not believe there was place for surgery for any of the plaintiff’s lesions and that weight reduction and self help with fitness were the only things likely to result in improvement. Combined with that would be the need for the plaintiff to understand that with an appropriate weight reduction program he was likely to make a full recovery. Mr Dickens suspected the plaintiff doubted that and when you spoke to him, the plaintiff was convinced his opportunities to return to work were nil.
241 Noting the plaintiff’s ability to run his own business in the past, Mr Dickens suspected the plaintiff would be able to do sedentary work such as office work and static work such as a security guard. Mr Dickens thought that the plaintiff was not an unintelligent man and he was sure there would be some form of work he could do.
242 Unless he went through a massive rehabilitation program, including weight reduction and exercises, Mr Dickens could not see the plaintiff returning to work as a chef.
243 Mr Dickens’ impression was that the plaintiff was injury focussed and certainly doing very little in the way of self help. Physically he believed the plaintiff could work but he thought there were other non-organic factors which were precluding him from returning to work. Unfortunately without an improvement in his general conditioning and attitude Mr Dickens suspected the plaintiff may well persist in his non working role for a long time into the future, maybe indefinitely.
244 Having seen the two DVDs, Mr Dickens commented that they in no way altered his opinion.
245 Dr Littlejohn, rheumatologist, examined the plaintiff on 10 February 2011.
246 Dr Littlejohn reviewed the MRI of the plaintiff’s left shoulder and the lumbar spine taken on September 2009 and the MRI of the cervical and thoracic spine taken 14 September 2009.
247 On examination, the plaintiff walked with a limp favouring his left side. There was pain behaviour in that he needed to stand and move regularly throughout the interview and he grimaced and winced throughout the examination.
248 There was a mild reduction in movement of the cervical and lumbar spine. The plaintiff was abnormally tender to the left of the midline and the upper quadrant, including the neck, chest wall, arm as well as lower back and legs.
249 The plaintiff had normal range of motion of shoulder girdles and joints to the upper limbs as well as hips and joints of the lower limbs. Neurological examination was normal.
250 Dr Littlejohn noted the plaintiff had clinical features of a chronic pain syndrome principally affecting left upper and lower quadrants. He noted that could be described as a regional pain syndrome in those areas but the plaintiff also fulfilled the American College of Rheumatology Diagnostic Criteria for fibromyalgia.
251 Dr Littlejohn could not define any specific tissue damage injury to the plaintiff’s neck, shoulder, lower legs or back to explain his persisting pain and abnormal sensory findings but he believed the plaintiff had a pain syndrome which related to psychosocial input and sensitisation of pain nerves within the brain and spinal cord as the mechanism.
252 Dr Littlejohn considered the prognosis for improvement of the plaintiff’s chronic pain was guarded, noting he had had some symptoms for some time; however he noted those symptoms were always potentially reversible. He thought surgery was not required and he considered other treatments which may be beneficial were regular exercise and psychological management.
253 In Dr Littlejohn’s view the pain syndrome interfered with the plaintiff’s ability to work and his domestic and leisure activities. He thought there should be further review from a pain management team focussed mainly on psychology.
254 Having viewed the two DVDs, Dr Littlejohn did not change his diagnosis of chronic pain syndrome, but he noted the videos did indicate that the plaintiff had the ability to take in a wide range of domestic activities without obvious problem and this would translate to a wide range of work activities as well.
255 Dr Littlejohn concluded that the film images would confirm to him the observation he made in his report of the potential reversibility of that type of pain syndrome and he indicated that this was highly likely to be the case with the plaintiff given further time and addressing of his psychological inputs into the problem.
256 The plaintiff was examined on two occasions by a psychiatrist, Dr Entwisle, initially on 6 July 2009 and more recently on 18 January 2011.
257 Following the initial examination Dr Entwisle found the plaintiff to be suffering from a pain disorder with associated psychological and medical factors.
258 On the most recent mental state examination the plaintiff appeared anxious and tense. His speech was pressured and he spoke in a loud voice. There were no unusual notions or ideas. Relevant issues related to the plaintiff’s sensitive and anxious predisposition, the experience of pain following his accident and his ongoing issues of strain and tension in the household due to his various preoccupations and concerns.
259 Memory and concentration were intact. There were no perceptual abnormalities and insight was present. The earlier diagnosis was confirmed with Dr Entwisle commenting that the plaintiff’s emotional symptoms continued despite various forms of treatment.
260 In Dr Entwisle’s view, the pain disorder had impacted upon the plaintiff’s ability to work and also upon his domestic and leisure activities.
261 The plaintiff told Dr Entwisle of attending a Life Care counsellor until July 2010 to assist him with pain and whilst there was no overall improvement in regard to his experience of pain, he found the treatment both supportive and of benefit.
262 Dr Entwisle was forwarded the surveillance report from Maurice Kerrigan and Associates dated 24 January 2011 and two DVDs.
263 Dr Entwisle noted the plaintiff was able to board, drive and alight from a car to walk a reasonable distance, pay for purchases at the market and put items in a trolley without obvious restriction.
264 He noted to some extent that was consistent with the plaintiff’s description of his daily activities. He noted consistent with that description and also with the film it would appear the plaintiff’s level of physical activities was not particularly limited. As he had indicated in his report, he thought the plaintiff continued to report various anxious concerns about his health which may not in fact reflect the true state of same.
Overview
265 This application was initially brought in relation to both orthopaedic and psychiatric impairment. In closing submissions counsel for the plaintiff withdrew the application pursuant to sub-section (c).
266 Whilst the claim in relation to the spine was not abandoned, submissions from the plaintiff’s counsel related to the left shoulder impairment with it ultimately being submitted that it was the most significant of the plaintiff’s physical impairments.
267 I am satisfied that the plaintiff suffered a tear to his left rotator cuff and also soft tissue injuries to his lower back and neck in the accident.
268 Whilst there is some difference of medical opinion as to the nature of the plaintiff’s left shoulder problem, the consensus is that it is accident related and followed him being knocked from his scooter onto his left side by a motor vehicle.
269 Although non-organic factors feature in medical opinion relating to the plaintiff’s spinal injuries, there are findings in this regard to a much lesser extent in relation to the left shoulder injury where it is accepted there is definite pathology as reported on the MRI of the left shoulder taken on 21 September 2009.
270 This investigation showed a small full thickness tear of the supraspinatus, small left shoulder joint effusion, left subacromial bursitis and small posterior labral tear.
271 Dr Smith and Mr Giovannuci diagnosed the plaintiff’s condition in similar terms and considered that his condition was organically based. Whilst largely leaving consideration of the plaintiff’s shoulder condition to Mr Richardson, Mr de la Harpe believed the plaintiff had suffered a rotator cuff tear in the accident.
272 Although Mr Evans did not think that the rotator cuff weakness was the plaintiff’s primary problem he thought it was a consequence of his ongoing shoulder pain. He considered there may also be an element of capsulitis at play, as the MRI scan showed some fluid in the shoulder joint and the plaintiff had mild stiffness.
273 Dr Middleton diagnosed left rotator cuff syndrome with impingement secondary to subacromial bursitis resulting in a small supraspinatus full thickness tear. Also he thought the plaintiff suffered a traumatic injury to his glenohumeral joint resulting in a small labral tear.
274 Whilst he also diagnosed CRPS and a Chronic Adjustment Disorder, Dr Middleton considered there was an underlying organic representation of the plaintiff’s pain and suffering with two thirds thereof relating to his left shoulder being organic in nature.
275 Mr Strinzi thought that radiologically the plaintiff had significant left shoulder pathology - the severity of which was difficult to ascertain due to muscle guarding and elevated pain focus.
276 Dr Rose diagnosed a rotator cuff injury with multiple internal tears of the left rotator cuff shown on investigations. He believed the plaintiff had suffered from injury to the left rotator cuff and shoulder girdle, and even if there were no tears, those injuries would have been associated with some degree of rotator cuff syndrome. He considered the plaintiff’s condition to be organically based.
277 Dr Littlejohn diagnosed CRPS/fibromyalgia without really discussing the specific shoulder pathology or the investigations available in relation thereto.
278 Mr Dickens thought there appeared from investigation reports to be pathology in the rotator cuff of the left shoulder. On his first examination, Mr Dickens made no findings as to any abnormal illness behaviour, commenting on re examination there was such a presentation and that the plaintiff was injury focussed.
279 Accepting the preponderance of medical opinion, I am satisfied that the injury to the plaintiff’s left shoulder has produced an organic impairment.
Consequences
280 The issue is then whether the consequences of that impairment are serious and long term.
281 Prior to the accident, the plaintiff had not had any problems with his left shoulder. Since that time, I accept he has had continuing pain radiating down his left hand to his fingers where he experiences pins and needles.
282 The plaintiff is unable to move his left arm above elbow height without discomfort and he predominantly uses his right hand for ordinary every day tasks such as driving and opening doors.
283 As these problems have persisted for nearly four years, I consider the impairment to the plaintiff’s left shoulder is long term.
284 The plaintiff continues to take medication with six to eight Nurofen tablets and one or two Panadeine Forte for his back and shoulder injuries and he still requires physiotherapy treatment from Mr Giovannucci.
285 Whilst the plaintiff’s spinal injuries may also result in problems with work and social activities as Ashley JA said in Grech v Orica Australia Pty Ltd (2006) 14 VR 602 at para 58, a consequence may have a multiplicity of causes including a multiplicity of compensable injuries.
286 Provided the plaintiff establishes that the subject compensable injury to his left shoulder materially contributes to the impairment and its consequences and will continue to do so in the long term, then the role of other injuries does not preclude a court concluding there is the appropriate casual link between the compensable injury and the consequences relied upon.
287 The plaintiff’s work history prior to the accident was one of buying rundown takeaway food businesses and then selling them, having done this on six occasions prior to the accident.
288 It was submitted that the plaintiff’s employment capacity had been affected by his shoulder injury in that he is no longer capable of doing the physical work involved in building up those businesses to sell.
289 Whilst the plaintiff was not working full time at the time of the accident, working five days a week at lunchtimes when K Kitchen operated, and he had an extended period of time off work prior to the accident for depression and later gout until January 2007, the plaintiff was not physically restricted in his capacity to work as a chef at K Kitchen prior to the accident.
290 Since the accident, the plaintiff’s left shoulder injury has affected his ability to perform heavier duties as a chef or sandwich bar attendant requiring use of both arms carrying stock and other items as well as cooking and carrying heavy utensils and food items.
291 I accept the plaintiff had difficulty with his duties on his return to K Kitchen after the accident which caused him to cease that job when less sympathetic owners took over the business. The plaintiff then tried operating the business at St Albans and could not cope after nine months or so, selling the business at a loss and has not worked since.
292 The plaintiff is no longer involved in any work activities and he has been in receipt of a disability pension since October last year.
293 Whilst I accept that the plaintiff has some capacity for part time light work as suggested by psychologist Mr Besanko and also the plaintiff’s treating physiotherapist, he does not have the capacity to do the heavy duties involving constant lifting, pulling and bending required of a chef or a sandwich shop operator.
294 Because of his left shoulder condition, the plaintiff continues to have problems with personal care tasks such as shaving and washing his hair and getting dressed. His is restricted in his ability to do household duties and maintenance tasks he was able to carry out before the accident. He assists his wife with the shopping but she plays the major role in that regard.
295 The plaintiff’s evidence was unchallenged as to the effect his injuries have had on his home life and his ability to interact with his young children as
296 Similarly, the plaintiff’s evidence as to the interference with his sporting activities, such and golf, tennis and camping, resulting from his shoulder injury was also unchallenged. The plaintiff’s left shoulder injury would not have impacted on his ability to frequently travel overseas.
297 I accept that the plaintiff had problems with his weight before the accident and do not consider that to be a consequence of his accident injury.
298 Whilst there was surveillance taken of the plaintiff over an extended period, no film was shown to the Court. There was no other lay evidence challenging the plaintiff’s evidence as to his level of restriction and disability. His evidence is this regard was corroborated by his wife who was not cross-examined.
299 When considering the pain and suffering consequences, I am also entitled to take into account, the expected mental consequence of the plaintiff’s physical injury as Winneke P described in Richards v Wylie supra such as depression and frustration at the inability to do various activities and enjoy life generally. Clearly the plaintiff continues to experience problems of this nature as Dr Smith confirmed in his recent report.
300 Taking into account all the evidence, I am satisfied the plaintiff has a serious injury in relation to his left shoulder and leave is granted to bring proceedings for damages in relation to the transport accident.
301 Having found the plaintiff has a serious injury in relation to his left shoulder, I am not required to consider the application insofar as it relates to his spinal injuries.
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