McCue v TAC
[2024] VCC 1952
•6 December 2024
kbvxz
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-21-03043
| Joel McCue | Plaintiff |
| v | |
| Transport Accident Commission | Defendant |
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JUDGE: | HIS HONOUR JUDGE GINNANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 8 & 9 July 2024 | |
DATE OF JUDGMENT: | 6 December 2024 | |
CASE MAY BE CITED AS: | McCue v TAC | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1952 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious Injury Application – Motor vehicle accident – lumbar spine – cervical spine – pain and suffering – credit – previous injury
Legislation Cited: Transport Accident Act 1986 (Vic)
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Meadows v Lichmore [2013] VSCA 201; Peake Engineering v McKenzie [2014] VSCA 67.
Judgment: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G. Hevey Mr D. O’Brien | Arnold Thomas & Becker |
| For the Defendant | Mr P. Jens KC Mr L. Howe | HWL Ebsworth Lawyers |
HIS HONOUR:
Introduction
1The plaintiff seeks leave of the Court to enable him to commence a proceeding at common law to recover damages for injuries he suffered in a transport accident on 14 November 2016. The application is made pursuant to paragraph (a) of the definition of “serious injury” contained in section 93(17) of the Transport Accident Act 1986 (“the Act”). The plaintiff seeks a certificate for pain and suffering.
2The account of the motor vehicle accident is that the plaintiff, on 14 November 2016 was stationary in a vehicle, and was rear-ended with force, resulting in injuries to his cervical and lumbar spine.
3The plaintiff was represented by Mr Hevey of Senior Counsel with Mr O’Brien of junior counsel. The defendant was represented by Mr Jens of King’s Counsel, with Mr Howe of junior counsel.
4The particulars of injury filed by the plaintiff were extensive but helpfully refined and expressed by Mr Hevey as “injury to the lower back and/or spine, with the neck as a subsidiary”.[1]
[1] Transcript (“T”) 1, Line (“L”) 28-30.
The Documentary Evidence
5The plaintiff relied on the following evidence:
(a) Three affidavits of the plaintiff dated 19 February 2021,[2] 22 February 2023,[3] and 28 May 2024;[4]
[2] Exhibit P1, Plaintiff Court Book (“PCB”) 11-15.
[3] Exhibit P1, PCB 16-18.
[4] Exhibit P1, PCB 19-21.
(b) Affidavit of Joan McCue dated 20 February 2023;[5]
[5] Exhibit P2, PCB 22-23.
(c) Affidavit of John McCue dated 20 February 2023;[6]
[6] Exhibit P3, PCB 24-25.
(d) Four reports of Dr Ali Mehr, two reports dated 5 December 2017,[7] and two reports dated 1 February 2018;[8]
[7] Exhibit P4, PCB 26-29.
[8] Exhibit P4, PCB 30-33.
(e) Report of Dr Ashish Mordia dated 28 May 2018;[9]
[9] Exhibit P5, PCB 34-36.
(f) Five reports of Dr Ales Aliashkevich dated 2 October 2018,[10] 22 January 2019,[11] 19 February 2019,[12] 21 January 2020,[13] and 26 April 2024;[14]
(g) Report of Dr Sina Niknejad dated 26 June 2024;[15]
(h) Radiology consisting of:
(i)X-Ray of the cervical spine dated 22 November 2005;[16]
(ii)X-Ray of the cervical spine dated 15 November 2016;[17]
(iii)CT scan of the lumbar spine dated 12 December 2016;[18]
(iv)MRI of the lumbo-sacral spine dated 3 August 2017;[19]
(v)MRI of the cervical spine dated 25 October 2017;[20] and
(vi)Weight bearing MRI of the cervical and lumbar spine dated 28 December 2017.[21]
[10] Exhibit P6, PCB 37-38.
[11] Exhibit P6, PCB 39-40.
[12] Exhibit P6, PCB 41-42.
[13] Exhibit P6, PCB 43-44.
[14] Exhibit P6, PCB 45-51.
[15] Exhibit P7, PCB 52-55.
[16] Exhibit P8, PCB 56.
[17] Exhibit P8, PCB 57.
[18] Exhibit P8, PCB 58.
[19] Exhibit P8, PCB 59.
[20] Exhibit P8, PCB 60.
[21] Exhibit P8, PCB 61-63.
(i) Three reports of Dr Gregor Schutz dated 29 November 2019, 21 February 2023 and 30 May 2024;[22]
(j) Report of Professor Peter Gates dated 18 February 2020;[23]
(k) Two reports by Dr Jennifer Flynn dated 24 March 2020 and 25 March 2022;[24]
(l) Two reports of Professor Peter Teddy dated 29 September 2022 and 19 June 2024;[25]
(m) Two reports of Dr Noam Winter dated 9 January 2023 and 31 May 2024;[26] and
(n) Two reports by Mr Myron Rogers dated 8 March 2022 and 9 April 2024.[27]
[22] Exhibit P9, PCB 64-72.
[23]Exhibit P10, PCB 73-80.
[24]Exhibit P11, PCB 81-95.
[25]Exhibit P12, PCB 96-100 & 131-135.
[26]Exhibit P13, PCB 101-108 & 122-130.
[27]Exhibit P14, PCB 136-147.
6The defendant relied on the following evidence:
(a) Report of Mr Michael Dooley dated 9 April 2024;[28]
(b) Radiology consisting of:[29]
(i)MRI of the cervical spine dated 24 October 2007;
(ii)X-Ray of the left ankle dated 5 April 2022; and
(iii)X-Ray of the left tibia dated 5 April 2022.
[28]Exhibit D1, Defendant Court Book (“DCB”) 1-5.
[29]Exhibit D2, DCB 24-26.
(c) Report of Dr Stephen Stern dated 20 February 2023;[30]
(d) Report of Professor Peter Gates dated 18 February 2020;[31]
(e) Two reports of Mr John Waterson dated 21 September 2007 and 15 November 2007;[32]
(f) Two reports of Dr Ashish Mordia dated 27 January 2015 and 28 February 2017;[33]
(g) Extracts of the Meadows Medical Centre clinical records;[34]
(h) Extracts of Westgate Medical Centre Clinical Records;[35] and
(i) AMP Letter of 11 December 2014.[36]
[30]Exhibit D3, DCB 62-69.
[31]Exhibit D4, DCB 70-77.
[32]Exhibit D5, Supplementary Defendant Court Book (“SDCB”) 11-16.
[33]Exhibit D6, SDCB 17-20.
[34]Exhibit D7, SDCB 21-71.
[35]Exhibit D8, SDCB 72-156.
[36]Exhibit D9, SDCB 172.
7The hearing proceeded in the usual way with the plaintiff adopting his affidavits, and with the same standing as his evidence in chief.
Relevant Legal Principles – Serious Injury
8The meaning of “serious” expressed in s 97(17) of the Act was addressed in the following way in Humphries & Anor v Poljak:[37]
To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be serious the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’.[38]
[37] [1992] 2 VR 129 (“Humphries”).
[38] Ibid 140.
The Plaintiff’s Affidavit Evidence
The First Affidavit
9At the date of swearing his first affidavit on 19 February 2021, the plaintiff said he lived alone in a house that was located close to his parents. He appeared to be relatively independent in life.
10The plaintiff deposed that he completed school to year 10, and thereafter a bricklaying apprenticeship, however, he said worked predominantly as a cleaner and labourer.
The Plaintiff’s Pre-Accident Health
11Prior to the accident, the plaintiff was suffering from significant mental health conditions. Sadly, he has a lengthy history of major depressive disorders, including schizophrenia, but that is managed by medication. He deposed to having suffered psychiatric injuries as a result of bullying that occurred during the course of his employment with Hobson Bay Council and that led to him lodge a WorkCover claim, and ultimately to receive damages.
November 2005 Transport Accident
12The plaintiff was also involved in a transport accident as a passenger in his parent’s car on 18 November 2005, and from which he suffered injury to his neck. He deposed to still suffering occasional neck pain from that accident. He said it had not prevented him from working, or engaging in activities of daily living.
Disability Support Pension
13At the time of the transport accident, the plaintiff was in receipt of a disability support pension, due to his inability to work resulting from his mental health problems.[39]
[39] Exhibit P1, PCB 12.
The November 2016 Transport Accident
14The accident occurred on 14 November 2016. The plaintiff deposed that his vehicle “was struck from behind with a significant amount of force.”[40] The plaintiff deposed that his body “was violently thrown around” in the accident and that he immediately experienced a significant amount of pain in his neck and his back. He said the pain in his neck was more severe than he had suffered in the 2005 accident. The plaintiff’s account of the accident was not the subject of challenge.
[40]Exhibit P1, PCB 12, at paragraph [8].
Treatment
15The plaintiff deposed to having been extremely shaken by the accident, but he did not attend hospital, and instead consulted his general practitioner the following day, who apparently told him he had sustained neck and back injuries.
16The plaintiff deposed that since then, he has undergone injections into his neck but they did not provide him with any lasting pain relief and he said he has been told there is no further treatment that is likely to assist him.
17The plaintiff deposed that he no longer takes prescription pain medication, because he is at risk of becoming addicted. He said he suffered an adverse reaction to medication required to manage his psychiatric condition.[41]
[41] Exhibit P1, PCB 13, [12].
18He said he no longer undergoes physiotherapy treatment, as it also failed to provide him with lasting relief. He deposed that he completes various exercises at home, as well as self-managed hydrotherapy. His said his father takes him to a swimming pool in Werribee, but it provides him with only limited pain relief.[42]
[42] Exhibit P1, PCB 13, [13].
Consequences
19In his first affidavit dated 19 February 2019, the plaintiff deposed to suffering significant symptoms of pain in his spine, as well as constant neck and back pain. He said the level of pain in his back fluctuates, but is always present. He said his back is stiff and difficult to move, and he is unable to sit or stand without having to constantly change positions.
20The plaintiff deposed that his lower back injury prevents him from uninterrupted sleep, because it is difficult to find a comfortable position and pain wakes him at night with the result that he is constantly tired and lethargic.
21The plaintiff said he experiences severe neck pain, and this occurs with a greater frequency than he suffered prior to the transport accident. He deposed that as a consequence of neck pain, his driving ability is limited to short distances. He said it is difficult for him to hold his head in a static position. He spends a lot of time in his bed.
22The plaintiff said he has lost the ability to care for himself, and is now completely reliant on his mother. He cannot complete any heavy or repetitive tasks. He cannot carry a washing basket, or vacuum the floor without experiencing a significant increase of back, or neck pain. His lower back pain prevents him from being able to bend, care for his garden, or push a lawn mower.
23He deposed that because of his low back pain he requires his mother’s assistance with shopping, because he cannot push or turn a shopping trolley.[43]
[43] Exhibit P1, PCB 14, [20].
24The plaintiff deposed that his back pain prevents him from riding a bike, which he said was important for him because it assisted him maintain his mental wellbeing and fitness. He said he used to ride his bike with his father four to five times a week, however, he finds that the seated position for bike riding, along with the need to bend his spine results in significantly increased pain, and that his neck pain prevents him from tilting his head upwards whilst riding a bike.[44]
[44] Exhibit P1, PCB 14, [22]-[23].
25The plaintiff deposed that the injuries he suffered in the November 2016 transport accident continue to have significant impacts on his life.[45]
The Second Affidavit
[45] Exhibit P1, PCB 15, [24].
Treatment
26In his second affidavit of 27 February 2023, the plaintiff deposed that he had recommenced psychiatric medication, and was taking 1 x 50 mg of Seroquel per day, 1 x 50 mg of Luvox per day, and 5 mg of Valium as required, to relieve his back pain.
27He said he had commenced to use cannabis oil to relieve his neck and lower back pain.
28He said he was continuing to perform stretching at home and to engage in self-managed hydrotherapy when his father takes him to the swimming pool, however, these activities provide him with only limited relief.
Consequences
29In his second affidavit the plaintiff deposed that the consequences of his injury he outlined in his first affidavit, continue. He deposed that he has pain in the middle of his back. He said he places hot packs on this area of his spine most days.
30The pain in his lower back radiates into his left leg and foot, preventing him from running, and he has increasing pain when he stands or walks for long periods of time.
31He deposed to experiencing sudden onsets of pain into his left leg and groin, and that he has fallen over as a result.
32His lower back pain continues to interfere with his sleep, and he is woken because of it. He is constantly lethargic and tired, and finds it difficult to concentrate or learn new tasks.[46]
[46] Exhibit P1, PCB 17, [5]-[7].
33He said that he continues to experience pain in the middle of his neck, and he continues to spend a lot of time lying down to relieve his neck pain.
34He deposed that he often experiences referred pain from his neck into his left shoulder, and he suffers headaches which he attributes as referred pain from his neck, the frequency and intensity of which fluctuates.[47]
[47] Exhibit P1, PCB 17, [9].
35He continues to experience increased neck pain if driving.[48]
[48] Exhibit P1, PCB 17, [10].
36The plaintiff deposed that he still requires assistance from his parents. His lower back pain prevents him from being able to mow his lawns which he said is a significant loss as he regularly performed that task before the November 2016 accident, and he gained satisfaction from a job well done. He explained that it is humiliating for him to have to rely on his father.[49]
[49] Exhibit P1, PCB 18, [14].
37The plaintiff experiences increased lower back pain whilst dressing, and whilst cleaning himself after toileting. His pain continues to prevent him being able to reliably do his own shopping, and he gives money to his parents who shop for him.
The Third Affidavit
Treatment
38In his third affidavit made 24 May 2024, the plaintiff deposed that he still uses cannabis oil to relieve his neck and back pain. He was prescribed methadone, because he became addicted to strong prescription pain medication including oxycontin. He deposed that he no longer takes other medication. He still relies on heat packs to relieve his neck and back pain, and he said that he attends his local pool and undertakes hydrotherapy whenever he can.[50]
[50] Exhibit P1, PCB 21-22, [14]-[15].
Consequences
39In his third affidavit the plaintiff said the consequences he detailed in his first and second affidavits continue subject to the following updates.
40He deposed that the pain in his spine is usually worse in the mornings, and it takes him a long time to get out of bed and often enough he doesn’t bother to do so.
41He no longer drives, because he is paranoid about being involved in another transport accident. He struggles to find the motivation to leave home, and his parent’s home is the only place he consistently visits. He deposed that his father has tried to get him to assist in coaching a soccer team, but he is not motivated to do so.[51]
[51] Exhibit P1, PCB 20, [12]-[13].
42He deposed to having become socially isolated and no longer has any meaningful contact with most of his friends. He avoids leaving his home because of a concern of finding himself in situations where he may have to sit or stand for long periods. He said that a long-term romantic relationship failed after the accident, because it became clear to him that he could not enjoy activities with his partner. He said he struggles to meet new people and he experiences social anxiety at trying to explain his restrictions to others. He said that he is anxious when he is confronted with situations that he anticipates may cause him low back pain.[52]
[52] Exhibit P1, PCB 21, [18].
43He said he continues to experience increased lower back pain when dressing, and cleaning himself after toileting .
Lay Affidavits
44The plaintiff relied on an affidavit from his mother, Mrs Joan McCue dated 20 February 2023, and from his father, Mr John McCue dated 20 February 2023. Mr McCue was cross-examined by the defendant. Mrs McCue’s affidavit was received without objection.
Affidavit of Joan McCue
45Mrs McCue said she provides her son with ongoing care. She deposed that prior to the accident the plaintiff was “very independent” and had moved out of home and had been living on his own. He was able to “manage his affairs and care for himself”.[53]
[53] Exhibit P2, PCB 22, [3].
46She deposed that she visits her son every day and completes many of the things that he cannot do, such as the vacuuming and carrying his laundry basket. She said, “I often have to help him put on his shoes”. [54]
[54] Exhibit P2, 22, [4].
47Mrs McCue deposed that she has observed her son struggling to sit and stand for long periods of time, and that he avoids travelling in the car because he often needs to suddenly stand up to relieve pressure from his spine.
48Mrs McCue said she and her husband shop and cook for their son, due to his inability to cope with heavy lifting, pushing of a trolley, standing for long periods of time and bending to make use of the oven.[55]
[55] Exhibit P2, 22, [5].
Affidavit of John McCue
49Mr McCue deposed that despite the plaintiff’s mental health issues prior to the accident, he had the capacity to live independently. He said the plaintiff previously mowed his own lawn, and theirs when he was living at home but that he now undertakes the task because the plaintiff cannot tolerate back pain that mowing the lawn results in.[56]
[56] Exhibit P3, PCB 24, [4].
50Mr McCue deposed that prior to the accident he would ride a bike with his son along the Werribee River, and Lollipop creek “multiple times most weeks”. He deposed that this shared activity had been “an important part of our lives”.[57] He said that they have not ridden together since the transport accident because of the condition of the plaintiff’s neck and back and the pain he experiences.[58]
[57] Exhibit P3, PCB 24, [5].
[58] Exhibit P3, PCB 24, [5].
51Mr McCue said that he and his wife visit the plaintiff every day and shop for him and assist him with any heavy or repetitive tasks and this was not required of them before the transport accident.[59]
[59] Exhibit P3, PCB 25, [6].
Plaintiff’s Medical Evidence
Treating Practitioner Reports
Dr Ali Kian Mehr
52Dr Ali Kian Mehr is a rehabilitation specialist and pain fellow. The plaintiff tendered four of his reports, two being dated 5 December 2017, and two dated 1 February 2018.
Report dated 5 December 2017
53On examining the plaintiff, Dr Mehr found his gait was normal, but noted that he does not do any bending forwards or backwards out of fear avoidance. The results of neurological examination of the plaintiff’s lower limbs were assessed as normal.[60]
[60] Exhibit P4, PCB 2.
54Dr Mehr found that the plaintiff had a limited range of motion of the cervical spine, with significant tenderness in the lower cervical spine in the midline and paraspinal[61] especially on the left side.
[61] The paraspinal muscles support the spine and power and stabilise movement of the spine.
55Dr Mehr’s opinion was that the plaintiff is suffering from chronic axial lumbar spine and cervical spine pain, which he thought was multifactorial. He found radiation of the pain to the left lower limb, with neuropathic descriptor.
56Dr Mehr commented that the plaintiff had not undergone physiotherapy because he does not like to be touched and is fear avoidant. Dr Mehr thought that the plaintiff had significant psychological stress with some features of PTSD.
57Dr Mehr arranged a weightbearing MRI of the plaintiff’s lumbar spine and a flexion-extension MRI of the cervical spine in order to exclude neural compromise.
58Dr Mehr recommended that the plaintiff commence hydrotherapy and hands-free physiotherapy, and that he change his pain medication from Panadeine Forte to Panadeine Extra, so as to reduce the amount of his consumption of codeine.
Two reports dated 1 February 2018
59In his second report dated 1 February 2018, Dr Mehr recorded that the plaintiff told him that his pain was unchanged, and he had not commenced physiotherapy, because he had been on a vacation.
60Dr Mehr wrote that the MRI scan of the plaintiff’s cervical spine revealed a disc osteophyte complex, with varying degrees of foraminal stenosis[62] inside the cervical spine. He found there was an impression of severe foraminal stenosis on the left side of the cervical spine, with not much change in the flexion-extension position.[63]
[62] A condition that occurs when parts of the spine narrow and cause compression on the spinal nerves.
[63] Exhibit P4, PCB 30.
61Dr Mehr reported that MRI scan of the plaintiff’s lumbosacral spine revealed a minor disc bulge, but it had not resulted in significant canal or foraminal or subarticular recess stenosis. He recorded the plaintiff’s condition was unchanged in a weightbearing position.
62Dr Mehr’s examination found no major neurological deficit in the plaintiff’s arms, although there was some tenderness in the cervical region.[64]
[64] Ibid.
63Dr Mehr believed the plaintiff should commence physiotherapy as soon as possible, especially undertaking strengthening and stretching exercises himself, rather than hands-on therapy. He thought that the plaintiff also required psychological management of his anxiety.
64Dr Mehr commenced the plaintiff on Norflex 100 mg, along with Panadol Osteo, if needed, and he told the plaintiff to stop taking Panadeine Forte.[65]
[65] Exhibit P4, PCB 31.
Dr Ashish Mordia
65Dr Mordia is a psychiatrist, who commenced treating the plaintiff in January 2012. The plaintiff tendered a report from Dr Mordia to the plaintiff’s then solicitor and dated 28 May 2018, which was prepared in the context of the plaintiff’s WorkCover claim for psychiatric injuries sustained during the course of his employment with Hobson’s Bay Council.[66]
[66] Exhibit P5, PCB 34-36.
66Dr Mordia reported that the plaintiff had a history of longstanding Schizophrenia, and had first presented to him with an adjustment disorder and co-morbid depression in the context of workplace bullying and harassment.
67Dr Mordia said that he reviewed the plaintiff on 15 December 2016, subsequent to the November 2016 motor vehicle accident. The plaintiff reported that he had sustained a whiplash injury when his car was hit from behind and that he had been scared to drive since.
68Dr Mordia wrote that the plaintiff had been diagnosed with arthritis of the neck and he had “acknowledged having some anxiety and persisting back and neck pain, however denied any psychotic experiences.”[67]
[67] Exhibit P5, PCB 35.
69Dr Mordia reported that the plaintiff was already quite incapacitated due to psychotic illness and work related anxiety, depression and loss of confidence. However, he said that the transport accident in November 2016 had caused him further symptoms of fear, anxiety and traumatisation that had affected his confidence to drive.
70Dr Mordia reported that as a result of that accident, the plaintiff had reduced mobility and independence, which had further led to a loss of his functionality.[68] He said that his daily routine remained disorganised and that he had poor motivation and experienced significant anxiety.[69]
[68] Ibid.
[69] Exhibit P5, PCB 36.
71Dr Mordia considered that the plaintiff’s prognosis was poor, as his residual anxiety from the workplace injury was persisting at a moderate degree and incapacitating him for sustaining gainful employment. The motor vehicle accident had caused him further symptoms of fear, anxiety and traumatisation, which had served to further reduce his mobility and independence.[70]
[70] Exhibit P5, PCB 36.
Dr Ales Aliashkevich
72Dr Ales Aliashkevich is a neuro and spinal surgeon who assessed the plaintiff at the request of his general practitioner. The plaintiff relied on five of his reports dated 2 October 2018, 11 January 2019, 19 February 2019, 21 January 2020 and 16 June 2024.[71]
[71] Exhibit P6, PCB 37-51.
The First Report dated 2 October 2018
73The plaintiff first attended on Dr Aliashkevich for review in the context of reported severe neck, left shoulder and arm pain and lower back and left leg pain following the motor vehicle accident of November 2016. The plaintiff denied suffering neck or back pain prior to the accident.
74Upon examination, Dr Aliashkevich found normal posture and gait, but reduced movements and strength in his left deltoid muscle, and limited range of movement in his neck. Moderate tenderness was noted on palpation in the upper cervical region, with muscular guarding on the left.[72]
[72]Exhibit P6, PCB 37.
75Dr Aliashkevich wrote that the plaintiff’s cervical and lumbar spine standard, and weight-bearing MRI scans performed on 28 December 2017, demonstrated C4/5 and C5/6 bilateral foraminal stenosis, particularly on flexion. Non-weight bearing examination, demonstrated moderate left-sided foraminal stenosis and severe right-sided foraminal stenosis. Lumbar imaging revealed minor disc bulge but that did not result in significant foraminal or subarticular recess stenosis.
76Dr Aliashkevich’s impression was that about 40-50% of the plaintiff’s pain could be related to foraminal stenosis at C4/5, and about 30% could be attributed to soft disc protrusion at C3/4. He suggested the plaintiff perform flexion/extension x-rays of the cervical spine, and arrange a diagnostic/therapeutic left C4 nerve root clock as the next step.[73]
[73]Exhibit P6, PCB 38.
Report dated 11 January 2019
77Dr Aliashkevich affirmed the findings from his examinations of 2 October 2018.
Report dated 19 February 2019
78Dr Aliashkevich related that the plaintiff underwent a left C4 nerve block on 25 January 2019, but did not experience any difference in his symptoms as a result. The plaintiff reported that the pain in his lower back was unchanged and that on examination the intensity of his pain was around 7/8 out of 10.
79In light of the failed response to left C4 nerve root block, Dr Aliashkevich suggested moving to a left C5 diagnostic procedure, and he thought that a SPECT/CT scan of the plaintiff’s neck would be useful.
Report dated 21 January 2020
80When Dr Aliashkevich next examined the plaintiff on 21 January 2020, the plaintiff reported that he had undergone a C5 nerve block in late 2020, but had not experienced any symptomatic relief. He said he continued to suffer from “severe and intractable pain affecting his neck, left shoulder and arm and also complained about exacerbation of his chronic left dominant lower back and leg pain.”[74] He scored the intensity of his pain as reaching 8-9/10, and he said that he occasionally required the use of Panadol.
[74]Exhibit P6, PCB 43.
81Upon examination, Dr Aliashkevich found that the plaintiff had preserved muscular strength, tone and bulk, but significantly diminished movements in his cervical and lumbar spine. The plaintiff presented with diminished sensation on pinprick testing on the lateral aspect of the right upper arm. Muscular tenderness and guarding were found on palpation of the paravertebral muscles in the mid cervical spine on the left side. Moderate tenderness was also present in the paravertebral muscles in the lumbosacral region.[75]
[75]Exhibit P6, PCB 43.
82Dr Aliashkevich reported that the plaintiff appeared keen to move towards surgery, as his quality of life and mobility was being significantly compromised by persisting pain. The plaintiff requested that Dr Aliashkevich submit a request for surgery approval from the insurer.[76]
[76]Exhibit P3, PCB 44.
Report dated 26 April 2024
83Dr Aliashkevich was asked to provide a diagnosis of the plaintiff’s condition following the November 2016 transport accident. In response, he wrote:
Main diagnosis
- Chronic and intractable neck, left shoulder and arm pain
- Suspected left C5 more than C4 radiculopathy
- Chronic lower back pain
- C4/5 and C3/4 left-dominant foraminal stenosis
- No relief after left C4 nerve root block on 25/1/2019
- No relief after left C5 nerve root block in 2019
- Multilevel cervical spondylosis, exacerbated on weight-bearing MRI
- L4/5 and L5/S1 disc bulges
- History of a motor vehicle accident on 15/11/2016
Other relevant conditions
- History of mental health problems and schizophrenia
- Bodyweight 112 kg[77]
[77]Exhibit P6, PCB 50.
84When asked about the relationship between his diagnosis and the November 2016 transport accident, Dr Aliashkevich reported:
Based on the information provided to me, it would appear that the transport accident on 15/11/2016 was a significant contributor to [the plaintiff’s] complex chronic pain.[78]
[78]Exhibit P6, PCB 50.
85In detailing the plaintiff’s prognosis and a likelihood of further deterioration as a result of the transport accident, Dr Aliashkevich reported that based on his presentation on 21 January 2020, his prognosis was “very guarded.”[79] He commented that the plaintiff had been suffering from chronic neck, left shoulder and arm pain over many years, and which had failed to respond to steroid injections.
[79]Ibid.
86Further, Dr Aliashkevich said that the plaintiff’s mental health issues were strong negative outcome predictors, and he was uncertain if he would achieve meaningful functional recovery. Given the chronic character of the plaintiff’s symptoms, his reduced exercise tolerance and being overweight, he considered that the plaintiff was at risk of progressive degenerative and inflammatory spinal changes.[80]
[80]Ibid.
Dr Sina Niknejad
87Dr Niknejad is one of several general practitioners to have treated the plaintiff at the Westgate Medical Centre. Dr Niknejad prepared a report for the plaintiff’s solicitors dated 26 June 2024.[81] He said the plaintiff had last consulted him 12 months prior to the date of his report. He wrote that he was unsure if he had a complete record of all investigations and treatment performed on the plaintiff, because of the plaintiff’s lack of regular attendance on him for treatment. Nonetheless, Dr Niknejad said he had reviewed documents related to the plaintiff’s 2005 motor vehicle accident that were held by Westgate Medical Centre and which had been provided to him by the plaintiff’s solicitors.
[81] Exhibit P7, PCB 52-54.
88Dr Niknejad wrote that since the transport accident in November 2016, the plaintiff had suffered from chronic neck, shoulder and back pain. He said that his mental health had further deteriorated since the accident, which had “complicated” his condition and his response to treatment. His findings on examination were as follows:
Neck: Restricted movements in all directions, with noted tenderness.
Arms: No muscle wasting or fasciculations; reflexes present but depressed; no detectable weakness.
Lower Back: Mr McCue presents with tenderness over the lumbar spine region, exacerbated with movement. Range of motion was significantly reduced, particularly in flexion and extension. There was no evidence of muscle weakness or sensory deficits in the lower extremities.
Lower Limbs: Symmetric knee and ankle jerks; no weakness observed in legs or feet.
Neurological Examination: Normal light touch and pinprick sensation in upper limbs. Neurological assessments have been consistently unremarkable in multiple evaluations.[82]
[82]Exhibit P7, PCB 52-53.
89Dr Niknejad reported that the plaintiff had documented neck pain since the 2005 transport accident, and that there had been frequent complaints of the same in his medical records prior to the 2016 transport accident and there were complaints of low back pain following the November 2016 transport accident.
90In the circumstances, Dr Niknejad said that whilst it was challenging to attribute the plaintiff’s current neck pain solely to the 2016 accident, his visits to medical practitioners reporting neck pain had been less frequent before the accident.
91Dr Niknejad considered that there had been an exacerbation of the plaintiff’s neck pain following the 2016 motor vehicle accident and he believed that the plaintiff’s chronic lower back pain was directly attributable to the 2016 accident.[83]
[83]Exhibit P7, PCB 53.
92Dr Niknejad offered a guarded prognosis given the chronicity of the plaintiff’s pain and the considerable time that had elapsed since the 2016 accident, and therefore, significant improvement in his condition was unlikely. He considered that although the plaintiff’s symptoms varied in severity, he expected them to persist indefinitely.[84]
[84]Ibid.
93Dr Niknejad reported that the plaintiff’s injuries had profoundly affected his social, domestic and recreational activities, with his chronic pain and complex mental health history having led to lifestyle changes, including excessive drinking and the need for methadone therapy.[85]
[85]Exhibit P7, PCB 53.
94Dr Niknejad concurred with Mr Rogers’ assessment that the plaintiff’s prognosis was poor, given the chronicity of pain, ongoing psychiatric challenges and minimal response to treatments.[86]
[86]Exhibit P7, PCB 54.
Radiology Reports
95The plaintiff tendered several radiology reports, including:[87]
[87]Exhibit P8, PCB 56-63.
(a) An X-Ray of the plaintiff’s cervical spine, dated 22 November 2005, which stated the following:
Normal alignment but some loss of the normal lordosis. Slight narrowing of C6/7 interspace whilst the remainder are preserved as are vertebral body heights. No abnormality of the facet joints.[88]
[88]Exhibit P8, PCB 56.
(b) An MRI of the plaintiff’s cervical spine dated 25 October 2007 which recorded that visualised portions of the brain, cervical and upper thoracic cord had a normal signal, with the alignment of the cervical spine maintained with preservation of vertebral body and disc heights. There were broad based disc bulges without evidence of neural compression or contact with the cord over the levels of C3-4, with normal signal to the cervical and upper thoracic cord detected.[89]
[89]Exhibit P8, PCB 60.
(c) Further X-Ray of the plaintiff’s cervical spine dated 15 November 2016, which found:
Mild osteophyte formation of the neurocentral joints at 4/5 on the right and minimally the left while the remainder are preserved. Endplates, disc spaces and vertebral body heights are maintained. No abnormality of the facet joints.[90]
(d) A CT scan of the plaintiff’s lumbar spine dated 12 December 2016, taken in the context of reported recurrent severe lumbar spine pain radiating to the plaintiff’s left leg, found that the plaintiff’s lumbar vertebral alignment was normal. The discs and vertebral body heights appeared normal, as did the facet joints, and no bone lesion was observed. The conclusion was of a minor central posterior disc displacement at L4/5, small central posterior disc protrusion at L5/S1, and no significant indentation of the theca.[91]
(e) An MRI of the plaintiff’s lumbo-sacral spine dated 3 August 2017, concluded that the lumbar vertebrae were normally aligned and maintained normal cortical height, with no acute fracture seen. All lumbar discs appeared well preserved with no acute disc protrusion, as with the lumbar facet joints. No canal foraminal narrowing, or surrounding tissue injury was seen. The MRI concluded that no cause was found for the plaintiff’s symptoms.[92]
(f) Weight bearing MRI’s of the plaintiff’s cervical and lumbar spine dated 28 December 2017:
(i)The MRI of the cervical spine found that weight bearing did appear to result in an increase in the overall degree of foraminal stenosis at the described levels. Disc osteophyte complexes were noted within the plaintiff’s cervical spine, which presented various degrees of foraminal stenosis.[93]
(ii)The MRI of the lumbar spine was limited in results due to technical issues. It did present minor disc bulges at L4/L5 and L5/L6, but this did not result in significant canal, foraminal or subarticular recess stenosis.[94]
[90]Exhibit P8, PCB 57.
[91]Exhibit P8, PCB 58.
[92]Exhibit P8, PCB 59.
[93]Exhibit P8, PCB 62.
[94]Exhibit P8. PCB 63.
Plaintiff Medico Legal Reports
Dr Gregor Schutz
96Dr Schutz is a psychiatrist and the plaintiff relied on three reports from him dated 29 November 2019, 21 February 2023 and 30 May 2024.[95]
[95] Exhibit P9, PCB 64-122.
The First Report dated 29 November 2019
97Dr Schutz’s outlined the history of the plaintiff’s several psychiatric conditions, including schizophrenia, auditory hallucinations and delusions in 2004, with mood symptoms, the development of a major depressive disorder in 2012 and chronic anxiety with an adjustment disorder as well as traumatisation as a result of workplace bullying.
98Dr Schutz thought that there was insufficient evidence of any current active symptoms of psychosis (i.e. positive symptoms of schizophrenia). He thought that it was the plaintiff’s lack of motivation, cognitive difficulties as well as difficulties maintaining relationships that is likely to have contributed to the negative symptoms of chronic schizophrenia.[96]
[96]Exhibit P9, PCB 70.
99Dr Schutz reported a clear history of a mood disorder, which he classified as recurrent Major Depressive Disorder or recurrent adjustment disorder, with depressed mood. He noted that the plaintiff described his mood as 0/10, and he was tearful, irritable and struggled to concentrate and focus. Dr Schutz reported that the plaintiff told him that he did not shower or get out of bed.
100Dr Schutz said that his notes from January 2016, recorded that the plaintiff was anxious and fidgety and had ongoing stressors. Nonetheless, Dr Schutz considered that it was reasonable to conclude that the plaintiff had suffered an exacerbation of his adjustment disorder with anxiety and traumatisation as a result of the motor vehicle accident. The plaintiff told him that his anxiety was less prominent prior to the accident, and he reported increased driving avoidance, flashbacks, panic attacks and nightmare of the accident.[97]
[97] Exhibit P9, PCB 71.
101Dr Schutz said he did not think that the plaintiff’s schizophrenia was caused or exacerbated by the 2016 motor vehicle accident, however, the plaintiff’s flashbacks, nightmares and anxious avoidance in relation to motor vehicles could be reasonably attributed to the accident.[98]
[98]Ibid.
102Dr Schutz said he believed that that the plaintiff would be vulnerable to depressive relapses even in the absence of stressors. He said that there was a strong biological component to the plaintiff’s condition, and previous episodes would have predisposed him to further episodes of major depression.
103Dr Schutz said he could not exclude the possibility that the plaintiff’s depressive episode at the time of the consultation represented a spontaneous relapse that would have occurred in the absence of a stressor including that of the motor vehicle accident.[99]
[99]Ibid.
104Dr Schutz thought that the plaintiff’s transport-related injuries had stabilised in terms of anxiety, but that his mood was likely to continue to fluctuate, but may improve with changes in treatment.
105Regarding the plaintiff’s prognosis from the plaintiff’s 2019 accident, Dr Schutz reported that the significant majority of the plaintiff’s psychiatric pathology is related to pre-existing factors which had left him struggling with high-level functioning. Dr Schutz said he doubted any further deterioration from the transport-related injuries themselves.[100]
[100]Ibid.
The Second Report dated 21 February 2023
106In his second report, Dr Schutz adopted his November 2016 diagnosis but with some additions.
107Dr Schutz wrote that the plaintiff had developed an opioid use disorder over the last two or three years, the reasons for which were unclear but it did not appear to be directly related to the transport accident. The plaintiff told Dr Schutz that he had brought his addiction under control with opioid substitution treatment.
108Dr Schutz maintained his opinion that the plaintiff’s adjustment disorder had been aggravated by the transport accident, but there was insufficient evidence that his relapse of psychotic symptoms had been contributed to by the accident. Furthermore, the plaintiff’s mood disorder had been moderately aggravated by chronic pain, that was secondary to the accident.
109Dr Schutz considered that it was essential for the plaintiff to be re-referred to a psychiatrist and placed on a robust therapeutic dose of antipsychotic medication. However, Dr Schutz was doubtful that there would be any real improvement given the chronic and entrenched nature of his symptoms.[101]
[101]Exhibit P9, PCB 114.
110Dr Schutz said he remained of the opinion that a significant majority of the plaintiff’s psychiatric pathology, was related to pre-existing factors which had led to him struggling with high-level functioning, and it was doubtful that there would be any further deterioration.[102]
[102]Ibid.
111While Dr Schutz reported that there may be some reduction of the plaintiff’s activities of daily living, as a result of the mood contribution from his transport accident, the accident had no substantial impact on the plaintiff’s recreational, social and domestic activities. These, as Dr Schutz stated, appeared to be either pre-existing in nature and substantially contributed to by the plaintiff’s more recent relapse of psychotic symptoms, and increased self-isolation.[103]
[103]Exhibit P9, PCB 114.
The Third Report dated 30 May 2024
112Dr Schutz noted that that the plaintiff tended not to undertake or participate in any hobbies and this remained the case. He wrote that the plaintiff’s pain gets him down and depressed at times, but he had become accustomed to it.
113The plaintiff told Dr Schutz that his back and neck pain was 9/10, and worse with exertion. He said that if he was upset or stressed, the pain increased. Dr Schutz noted that the plaintiff had seen a pain specialist, did not want surgery, and had not undertaken a pain management program. The plaintiff said he was able to shower, dress and toilet himself, but he lacked motivation.
114The plaintiff said he thought that his mental health had worsened, and that he feels stressed and depressed, with no way out. He said he was still hearing voices that put him down, but it appeared that the voices were not present when he was on a therapeutic dose of Seroquel.[104]
[104]Exhibit P9, PCB 118.
115The plaintiff said that he is unable to drive a car, but can travel as a passenger. He avoids public transport as there are too many people. He does not want people to look at him. Dr Schutz reported the plaintiff has some paranoia, and that the plaintiff believes his paranoia is worse since the accident.[105]
[105]Exhibit P9, PCB 119.
Professor Peter Gates
116Professor Peter Gates is a neurologist who provided a report dated 18 February 2020 for the purpose of a permanent impairment assessment. On examination of the plaintiff, Professor Gates found asymmetrical mild reduction in the range of movement of the cervical spine, and a full range of movement of the lumbosacral spine, without asymmetry. There was no tenderness in the cervical or thoracic spine at the site that the plaintiff indicated he was experiencing pain.[106]
[106]Exhibit P10, PCB 76.
117Professor Gates considered that the plaintiff had suffered a whiplash injury, with mid to lower midline thoracic back pain. He assessed a 0% whole person impairment in respect of his physical injury.[107]
[107]Exhibit P10, PCB 79.
118Professor Gates noted that there was documented severe pre-existing impairment due to the plaintiff’s psychiatric illness, severe depression, and anxiety.[108]
[108]Exhibit P10, PCB 80.
Dr Jennifer Flynn
119Dr Jennifer Flynn is an orthopaedic surgeon, who examined the plaintiff on two occasions at the request of his solicitors.
The First Report dated 24 March 2020[109]
[109]Exhibit P11, PCB 81.
120The plaintiff told Dr Flynn that he experienced some pain, but was independent in all personal activities of daily living although he described difficulty undertaking a variety of activities, specifically lifting and household activities. He reported suffering from poor sleep, headaches and difficulty with concentration. He said he was limited in his capacity to participate in activities such as soccer and tennis, and reported pain with prolonged static positioning, including sitting and standing.
121The plaintiff denied a history of symptoms of the lower back prior to 2016. The plaintiff said that in 2005, he was the rear passenger in a car driven by his mother, when another vehicle failed to give way, and collided with their vehicle and this resulted in neck pain but by the time of the transport accident of 2016, his neck was relatively asymptomatic.[110]
[110]Exhibit P11, PCB 82.
122Dr Flynn’s examination of the plaintiff’s cervical spine found normal alignment in the coronal and sagittal planes. There was restricted range of motion and mild midline upper lumbar tenderness. There was no hypersensitivity, and no nerve root tension signs. There was Grade 4 collapsing weakness. Tone was normal and no there was no atrophy. Dr Flynn noted the presence of apparent discomfort with thoracolumbar rotation, and there was decreased range of motion with such movement.[111] There was normal sensation of the hand, normal reflexes and no wasting or atrophy of the upper limb.[112]
[111]Exhibit P11, PCB 83.
[112]Ibid.
123Addressing the question of current and possible future treatment needs, Dr Flynn saw no present reason to consider surgical intervention but that it was possible the plaintiff may require surgical management in the future.[113]
[113]Exhibit P11, PCB 88.
The Second Report dated 25 March 2022
124Dr Flynn adopted her findings from her 24 March 2020 report.
125Dr Flynn said that the plaintiff was taking prescribed medications or analgesia. He had not undergone physical therapy and had no planned treatment.
126Dr Flynn reported that the plaintiff was experiencing posterior midline neck pain with associated stiffness, which he described as worse than a previous episode he had suffered in 2005. He reported frequent headaches of the frontal and occipital regions. He denied pain in the shoulders, and that his back pain was the most problematic, while he continued to experience occasional sharp adductor hip girdle pain when walking.
127Dr Flynn reported no substantial change to the plaintiff’s functional capacity.[114] Dr Flynn thought that the plaintiff’s prospects of a return to his pre-injury status was poor, and was unlikely to occur.[115] Dr Flynn thought that the plaintiff would likely continue to experience some pain and functional limitation, however she did not consider that any deterioration was likely to significantly further impact the plaintiff’s social, domestic or recreational activities.
[114] Exhibit P11, PCB 91.
[115] Exhibit P11, PCB 95.
128Dr Flynn attributed the plaintiff’s current condition of the lumbar spine as significantly contributed to by the 2016 transport accident. She said that the pre-existing changes to the spine have aggravated the cervical condition and contributed to his neck pain. However, the 2005 transport accident appeared to have also contributed to this condition.[116]
[116] Exhibit P11, PCB 95.
Professor Peter Teddy
Report dated 29 September 2022[117]
[117]Exhibit P12, PCB 96.
129Professor Teddy, neurosurgeon examined the plaintiff and found that he exhibited limitations of neck movements, namely 50% flexion and extension, and approximately 25% reduction of tilt and rotation to either side. The plaintiff could bend to touch his upper shins.
130Tilt and reduction of the lumbar spine appeared full, but extension was about 50% of normal. The plaintiff did not want to remove his shoes, so Professor Teddy was unable to test his plantar responses.
131Professor Teddy’s diagnosis included a chronic pain condition involving the neck and lower back, prefacing that there was likely contribution from his mental state and that there was frequent documentation in the plaintiff’s past history of pre-existing neck pain following the 2005 transport accident. It appeared to Professor Teddy that the 2016 accident further aggravated the plaintiff’s cervical spondylosis but without clear evidence of radiculopathy. The plaintiff also presented with evidence of an aggravation of a lumbar spondylosis (mild) also without radiculopathy.[118]
[118] Exhibit P12, PCB 99.
132Professor Teddy considered that on the balance of probabilities, the plaintiff’s ongoing back pain was contributed to by the 2016 transport accident. He believed the plaintiff’s condition had stabilised.
133Professor Teddy also reported that while the plaintiff’s symptoms were likely to persist to varying degrees of severity and frequency for the foreseeable future, he did not think the plaintiff was likely to further deteriorate in direct consequence to the November 2016 transport accident.[119]
[119] Exhibit P12, PCB 99.
134Professor Teddy could not see an indication for direct surgical intervention to either the plaintiff’s cervical or lumbar spine. Surgery to his neck as proposed by way of anterior discectomy and fusion or hybrid surgery, was unlikely to relieve his neck pain. Equally, Professor Teddy thought that surgery to the plaintiff’s lower back lacked good indication in the absence of significant leg pains or neurological abnormalities.
135Professor Teddy said that the plaintiff required ongoing support in terms of both his mental state and from an experienced pain management team to encourage his motivation, improve his mental state and to help establish a more active lifestyle.[120]
[120] Exhibit P12, PCB 100.
Report dated 19 June 2024
136Professor Teddy said that since his consultation in 2022, the plaintiff reported worsened depression. The plaintiff was taking cannabis oil which he said helped his pain and his sleep. He was taking methadone 70 mg per day. There was no future plan for surgery.
137The plaintiff told Professor Teddy that he would like to work again, but he could not return to any form of labouring.
138Professor Teddy reported that the plaintiff continued to exhibit features of a chronic pain condition involving his neck and lower back, and that the 2016 accident appeared to have aggravated cervical spondylosis but without clear evidence of radiculopathy as well as lumbar spondylosis but without radiculopathy.
139Professor Teddy’s prognosis for the plaintiff from his 2016 transport accident remained poor, however, this was largely a function of his psychological and psychiatric state. Further, Professor Teddy reported that the plaintiff was likely to be subject to the natural history of age-related deterioration to his cervical and lumbar spondylosis.
Dr Noam Winter
Report dated 9 January 2023[121]
[121]Exhibit P13, PCB 101.
140Dr Noam Winter is a pain medicine physician and anaesthetist who examined the plaintiff. Dr Winter found that the plaintiff’s cervical spine was limited predominately in extension and rotation, with very minimal flexion in his lumbar spine, with the majority of flexion occurring at the thoracolumbar junction. Dr Winter found that extension was within normal limits, as was rotation.[122]
[122]Exhibit P13, PCB 103
141Dr Winter’s diagnosis of the plaintiff from the 2018 accident was:
1. Lumbar axial back pain, with intermittent radiculopathy;
2. Cervical neck pain of long-standing duration, likely to axial in nature, without radiculopathy; and
3. Psychiatric diagnoses as documented in psychiatric reports.[123]
[123]Exhibit P13, PCB 105.
142Dr Winter believed that the 2016 accident contributed to the plaintiff’s ongoing cervical and back pain and she thought it had contributed to a worsening of the plaintiff’s mental health.[124]
[124]Exhibit P13, PCB 106.
143In Dr Winter’s opinion, any soft tissue injury which occurred at the time of the accident would now have healed, but that sensitisation and pain to the area was maintained, and would likely continue while the plaintiff exhibited fear avoidant behaviours and did not participate in any activities. The plaintiff’s mental health also presented a barrier to him being able to participate in any meaningful recovery to improve his physical functioning.[125]
[125]Exhibit P13, PCB 106.
144Dr Winter saw no need for surgery, interventional techniques or medications to manage the plaintiff’s pain. She described the best treatment modality for the plaintiff would be some form of functional restoration and movement-based exercise program. However, due to the plaintiff’s reluctance to be touched, as well as his anxiety about leaving his house, Dr Winter thought that it was likely the plaintiff would need to see a psychiatrist before endeavouring to engage with any rehabilitation or allied health intervention.[126]
[126]Ibid.
145Dr Winter reported the plaintiff’s condition to comprise a bimodal relationship between pain and mental health, whereby his pain worsens his anxiety and depression, and his lowered mood magnifies aspects of his pain along with his schizophrenia and previous disengagement from mental health supports.[127]
[127]Ibid.
Report dated 31 May 2024
146Dr Winter reported the plaintiff continued to describe very similar pain as he had in December 2022, but he said that his back pain was more severe than his neck pain.[128]
[128]Exhibit P13, PCB 123.
147Dr Winter reported that the plaintiff had moved back to his parent’s house due to his deteriorating mental health.
148Dr Winter reported that since her last consultation with the plaintiff his mental state and degree of deconditioning had worsened.[129]
Mr Myron Rogers
[129]Exhibit P13, PCB 128.
Report dated 8 March 2022
149Mr Rogers is a neurosurgeon, who undertook an independent medical examination of the plaintiff. Mr Rogers reported a restriction of movement of the cervical spine in all directions. He said he asked the plaintiff if he would undertake movement of his lumber spine, and the plaintiff declined.
150Mr Rogers diagnosed the plaintiff’s condition as follows:
(i) Chronic pain condition involving the neck and low back
(ii) Psychiatric/Psychologic disorders; referring to Dr Greg Schutz expert opinion. [130]
[130]Exhibit P14, PCB 140.
151In regard to the plaintiff’s neck and back pain, and its relationship to the 2016 accident, Mr Rogers reported that the plaintiff’s neck pain:
began after the 2005 accident and in the Westgate Medical Centre notes there are multiple references to episodes of neck pain occurring prior to 2016. In relation to the low back pain there is no entry in the Westgate Medical Centre clinical notes of complaints of this symptom prior to the transport accident of 14 November 2016.[131]
[131]Ibid.
152Mr Rogers thought there was no realistic chance of any improvement to the plaintiff’s chronic pain condition associated with his neck and low back, given his symptoms had been present since 2016.[132]
[132]Ibid.
153Mr Rogers reported that he was concerned that the plaintiff had decided not to continue with the medications prescribed for his schizophrenia and depression and had expressed his reluctance to resume contact with his psychiatrist and psychologist.[133]
[133]Ibid.
154Mr Rogers said that plaintiff had not worked for 11 years, and taking into account his current condition (physical and psychological), he found he did not have capacity for employment, and he did not see him ever returning to any form of employment.[134]
[134]Exhibit P14, PCB 141.
Report dated 9 April 2024
155On examination, Mr Rogers reported that the plaintiff’s movements of the cervical spine were restricted in all directions and he said that his neck felt stiff when he tried to move it. All movements of the lumbar spine were restricted and the plaintiff told Mr Rogers that his back felt stiff. Mr Rogers reported that there was no muscle spasm but there was tenderness in the midline at the level of the lumbo-sacral junction.[135]
[135]Exhibit P14, PCB 144.
156Mr Rogers said that that another vehicle incident the plaintiff was involved in on 7 April 2022 resulted in a ‘rolling’ of the plaintiff’s ankle in a ditch and required surgical fixation, but did not have any impact on the plaintiff’s current condition.[136]
[136]Exhibit P14, PCB 146.
Defendant’s Medical Evidence
Mr Michael Dooley
157Mr Dooley is an orthopaedic surgeon, who examined the plaintiff at the request of the defendant’s solicitors on 2 April 2024, and produced a report dated 9 April 2024.[137]
[137]Exhibit D1, DCB 1.
158The plaintiff reported to Mr Dooley that following the accident on 14 November 2016, he became aware of ‘soreness and stiffness’ in his back, had seen his doctor and obtained a referral for radiological scans.[138] Subsequently, he had treatment by way of physiotherapy and an injection to his neck, and told Mr Dooley that the injection did not help him.
[138]Ibid.
159The plaintiff reported that he was suffering from ongoing neck and back pain. He said he was using cannabis oil to treat his neck pain. He told Mr Dooley that he did not want to undergo surgery.[139]
[139]Exhibit D1. DCB 1.
160Mr Dooley recorded that the plaintiff lived alone and rarely left the house although he lived nearby to his parents, and that he was not driving but would sometimes go for a walk with his father. He said his mother would come to his home to help him with cleaning, cooking, and other domestic duties. He said that in the past, he had been active and played soccer.
161On physical examination, Mr Dooley recorded:
Cervical Spine
Tenderness along the dorsum.
Flexion is to 40 degrees and extension is to 30 degrees. Lateral flexion to the Ieft and to the right is to 20 degrees. Rotation to the left and to the right is to 40 degrees.
Power, tone, sensation and reflexes are intact in the upper limbs.
A full range of motion of both shoulders.
Lumbar Spine
No deformity. There is tenderness of the low lumbar region.
Flexion is to 50 degrees and extension is to 15 degrees. Lateral flexion and rotation to the left and to the right are to 20 degrees.
Straight leg raising is to 50 degrees on both sides. At this level, Mr McCue complains of low back pain. This pain persists with passive flexion of the knees and hips.
Power, tone and sensation are intact in the lower limbs. The left ankle jerk is reduced. There is a good range of motion of both hips.[140]
[140] Exhibit D1, DCB 2-3.
162Mr Dooley considered that the plaintiff had sustained soft tissue injuries to the cervical and lumbar spine regions as a result of the motor vehicle collision in November 2016. He thought that the soft tissue injury involved some aggravation of underlying and naturally occurring degenerative disc change and that the injury to the lumbar spine involved a musculoligamentous sprain/strain.
163Mr Dooley recorded that following the accident, the plaintiff complained of ongoing significant neck pain, at times was aware of upper limb pain and complained of ongoing low back pain. Although anterior decompression and fusion surgery of the cervical spine had been recommended, the plaintiff did not proceed with it. He had neck injections, which he said did not improve his pain. He described suffering from major disability, by way of ongoing neck, and to a lesser degree ongoing low back pain.
164Mr Dooley wrote:
Accepting the soft tissue injuries that Mr McCue sustained in the motor vehicle accident, it is my view that the constancy and intensity of his ongoing pain and his described disability are greater than one would expect to see for his organic condition. I believe that he has had a psychological reaction to his situation and that this reaction significantly influences his ongoing symptoms. From an orthopaedic point of view, there is no valid reason as to why Mr McCue cannot increase his activity in general and undertake regular low impact exercise. He should be able to walk reasonable distances regularly. He needs to improve his fitness and stamina. He would benefit from increasing his social contact and should be encouraged to join his father in the coaching of a soccer team. Clearly, it is important that his mental health is treated appropriately. In my view there is no indication to consider surgery in the management of Mr McCue’s cervical spine or lumbar spine.[141]
[141] Exhibit D1, DCB 3.
165Mr Dooley considered that the plaintiff’s orthopaedic condition could be treated with self-managed exercise and a fitness programme. He believed that from an orthopaedic point of view only, the plaintiff had physical capacity to carry out light physical and clerical work.
Dr Stephen Stern
166The defendant relied on a report from psychiatrist Dr Stern dated 20 February 2013. The report was obtained in the context of the plaintiff’s earlier WorkCover claim for bullying against Hobson Bay City Council and was addressed to the defendant insurer.[142]
[142]Exhibit D3, DCB 62-69.
167Dr Stern took a social history that the plaintiff lived with his parents in their house, spent most of his time at home in his room, had lost his friends and only drives locally.
168Dr Stern listed the plaintiff’s present complaints as:
1. Depression, anxiety and panic.
2. Disturbed sleep with nightmares.
3. Lack of energy.
4. Reduced concentration.
5. Avoidance.[143]
[143] Exhibit D3, DCB 64.
169Dr Stern diagnosed the plaintiff with a major depressive disorder and chronic schizophrenia. He considered that the major depressive disorder was related to the plaintiff’s victimisation at work from December 2010 to March 2011. He noted that the plaintiff was first diagnosed with Schizophrenia in 2004, but that there was no real psychosis at the time of his report. He considered that the plaintiff was then psychiatrically unfit for all work. However, he thought his psychiatric condition would improve in the future and the plaintiff ought to be reviewed in 6-12 months.
Professor Peter Gates
170The defendant also separately tendered and relied on the report of neurologist Professor Gates dated 18 February 2020.[144]
[144]Exhibit D4, DCB 70-77.
171As discussed in the context of the plaintiff’s tender, Professor Gates considered that as a result of the November 2016 transport accident, the plaintiff suffered a whiplash injury with midline lower cervical pain and mid to lower midline thoracic back pain.
172Professor Gates noted that:
There is documented severe pre-existing impairment due to his psychiatric illness with severe depression and anxiety. His treating psychiatrist, Dr Mordia has documented significant deterioration from the psychiatric point of view following the second motor vehicle accident and Mr McCue's father confirms that his son deteriorated significantly in terms of his functional independence and is now largely housebound and at times bedbound due to his psychiatric illness.[145]
[145] Exhibit D4, DCB 76.
173On the basis that it had been three years since the 2016 accident in which the plaintiff had sustained a whiplash injury and back pain, Professor Gates considered it unlikely that the plaintiff’s symptoms would resolve. He noted however, that the plaintiff had made a complete recovery from the 2005 motor vehicle accident and that it had not contributed to his current presentation.
Dr John Waterston
174The defendant relied on two reports of neurologist Dr Waterson dated 21 September 2007 and 15 November 2007.[146] These reports were prepared in relation to the November 2005 transport accident.
[146] Exhibit D5, SDCB 11-16.
The First Report dated 21 September 2007
175Dr Waterson wrote that in the three months following the 2005 accident, the plaintiff spent a lot of time in bed, before his symptoms started to slowly improve over several months. The plaintiff reported that he had improved since then, but still experienced some moderate to severe symptoms.
176Dr Waterson reported that the plaintiff often woke with a stiff neck and, later in the day, would usually develop a moderately severe frontal headache. He was relatively pain-free on other days. The plaintiff was taking Panadeine Forte which Dr Waterson stated helped him a little. The plaintiff had felt depressed occasionally since the accident and still felt anxious when travelling in a car.[147]
[147] Exhibit D5, SDCB 12.
177On examination, Dr Waterson found that the plaintiff’s cervical spine movements were mildly painful and there was some mild restriction of movement in lateral flexion to both sides however there was no spinal tenderness.[148] Dr Waterson noted that an X-Ray performed on 22 November 2005 had showed no obvious abnormality.
[148] Exhibit D5, SDCB 12.
178Dr Waterson thought that the plaintiff had a minor cervicothoracic spine impairment, characterised by a nonuniform loss of range of motion.[149] He did not consider that the plaintiff’s cervical spine injury had stabilised, because he had not had any adequate treatment. He considered that the plaintiff may be helped significantly by some manipulative physiotherapy.[150]
The Second Report dated 15 November 2007
Dr Waterson was provided with a copy of an MRI report of the plaintiff’s cervical spine performed on 25 October 2007, which reported broad-based disc bulges at C3/4, C4/5, and C5/6.[151] There was no evidence of any spinal cord or nerve root compression and the spinal cord had a normal signal.
Dr Ashish Mordia
[149]Dr Waterson rated the plaintiff’s cervicothoracic impairment as DRE category II.
[150] Exhibit D5, SDCB 13.
[151] Exhibit D5, SDCB 15.
Report dated 27 January 2015
179In a report to CGU described as a ‘supplementary report’, Dr Mordia said that he did not believe the plaintiff had made any progress with regard to a return to work. Dr Mordia admitted that because of his anxiety and self-confidence issues his motivations for gainful employment remained low, but that there was some capacity to participate in retraining.[152]
[152] Exhibit D6, SDCB 18-19.
Report dated 28 February 2017
180Dr Mordia reported to the plaintiff’s GP Dr Fotakis, that the plaintiff continued to manage in the community with residual psychosis (occasional paranoia especially in crowds but denied any “voices”) and low grade anxiety. Most days he does not have any other social network/outlet beyond that of his parents and sister. Dr Mordia thought the plaintiff’s borderline intellectual functioning and concrete thinking makes any therapeutic work difficult.[153]
[153] Exhibit D6, SDCB 20.
Cross-Examination of the Plaintiff
181The plaintiff said he takes methadone every morning. He said his methadone is supervised by his medical practice. He said that on occasions he will administer his medication on what he described as a ‘takeaway basis’ if he cannot get to the practice, but this depended on having built up his doctor’s trust and by producing clean urine tests.[154]
[154] T11-12, L28-2.
182The plaintiff agreed with Mr Jens when he suggested to him that prior to the November 2016 accident, he was self-sufficient, living in his own home on the disability support pension, and attending to his own needs domestically.[155]
[155] T12, L10-17.
183The plaintiff agreed that he had been living between his parents’ home and his own home on and off since the 2016 accident, and that he had purchased his own home in 2014.[156]
[156] T13, L10-13.
184The plaintiff agreed with Mr Jens that he had suffered workplace bullying in 2010 to 2011, and that as a result of the bullying he ceased working due to the stress and anxiety it had caused him. He agreed that a claim was made against his employer, as well as a claim on his superannuation insurance scheme for a total and permanent disablement. The plaintiff said the monies he received from the bullying claim had assisted him in purchasing his home in 2014.[157]
[157] T13-14, L14-5.
185The plaintiff said that he had lived in his own home between March 2014 and November 2016.[158] He said that his parents do not own their home, but live in a granny flat at his brother’s house.[159] He said he will sometimes sleep on the couch in the living room of the granny flat.[160]
[158] T14, L11-17.
[159] T15, L17-23.
[160] T16, L4-11.
186The plaintiff confirmed that prior to the transport accident he had regularly attended as a patient at both Westgate Medical under the care of Dr Sina Niknejad, as well as Meadows Medical Centre under the care of Dr Aufgang.[161] The plaintiff said he had been taking methadone on a daily basis prior to the 2016 car accident.[162]
[161] T16, L22-31.
[162] T19, L5-6.
187Mr Jens suggested to the plaintiff that the first report from Dr Schutz, outlined the trigger for the plaintiff’s mental deterioration in 2010 as the workplace bullying he experienced while employed by Hobson Bay Council. Dr Schutz described how the plaintiff “was abused by a range of individuals and called a “rat” and a “dog”, and workers would bark at him all day”. Dr Schutz reported that the bullying lasted for three to four months before the plaintiff stopped work and had an accepted WorkCover claim.[163] The plaintiff agreed with the account put to him by Mr Jens.
[163]T20, L11-20.
188Mr Jens put to the plaintiff that Dr Schutz reported that he had told him he was living at his parents at the time of the motor vehicle accident.[164] The plaintiff denied that he was living with his parents at that time.[165] He said he must have been mistaken.[166] He said his “head was probably stuffed. I sometimes I don’t even listen to, I can’t even, it goes right through me…I just lie blind and go, ‘yep, yep’ and I just say whatever. It doesn’t mean it’s true.” Mr Jens suggested to the plaintiff that it did not mean it was not true, and the plaintiff said, “I guess so.”[167]
[164]T21, L 3-4.
[165]T21, L8-9.
[166]T21, L24-26.
[167]T21-22, L27-2.
189Mr Jens suggested to the plaintiff that he told Dr Schutz that his parents managed all his finances and had done so since the workplace bullying as is reflected in the report by Dr Schutz dated 29 November 2019 who wrote:
In terms of a typical day, Mr McCue seldom showers or gets out of bed. He does not see friends at all. He reports that he does no hobbies. He reports that his parents manage his finances and this has been since his WorkCover injury. [168]
[168] Exhibit P9, PCB 67; T22, L3-6.
190The plaintiff agreed with the financial arrangements referred to, but again denied that he had been living with his parents at the time of the November 2016 accident.
191Mr Jens directed the plaintiff to a letter from Dr Mordia dated 27 January 2015, to insurers about his workers' compensation claim:
Joel is 34 years old, soon to be 35…single man, with a longstanding history of schizophrenia, and he currently presents with an adjustment disorder and comorbid depression and anxiety in the context of workplace bullying and harassment. He lives alone with his parents and brother in Wyndham Vale…[169]
[169]T25, L 3-8.
192The plaintiff said he recalled that he did not purchase his house until March 2015 when he received his WorkCover payment.[170] When again asked if he was living with his parents in January 2015, he said, “I was living with my brother, not my parents. That’s my brother’s house.”[171] The plaintiff went on to explain that he was “living with my brother for a couple of years before I bought my house”.[172]
[170]T25, L 10-13.
[171]T25, L17-18.
[172] T25, L24-25.
193Mr Jens put to the plaintiff that he was seeing Dr Mordia regularly. The plaintiff agreed that he was seeing him when he was on WorkCover, but had stopped seeing him over 10 years ago.[173]
[173] T25-26, L26-3.
194The plaintiff was taken by Mr Jens to Dr Mordia’s letter to Dr John Fotakis, dated 28 February 2017,[174] who had been the plaintiff’s general practitioner at the time, and which read:
Joel has a history of Schizophrenia and co-morbid depression and anxiety in the context of workplace bullying. He is currently on DSP from Centrelink.
His symptoms have fluctuated over the course of my involvement, despite adjustment of his medications.
[174]Exhibit D6, DCB 20.
He is staying between his own house and his sister’s house. Recently, his house was broken into again, when he was at his sister’s house. This has been a source of stress as some of his medications were also stolen.[175]
[175] T26, L4-15.
195The plaintiff said that his house was broken into while he was babysitting his nieces, and he was babysitting at his sister’s house at the time his house was broken into.[176]
[176] T27, L6-16.
196Mr Jens directed the plaintiff to his affidavits recounting his use of methadone and cannabis oil for pain. The plaintiff said he has taken methadone for years on a very regular basis, and that this sometimes required a couple of prescriptions a month from his doctor, but that at least every month he needs to attend on the doctor for the methadone, which had been the case for over 10 years.[177]
[177] T33, L16-24.
197Mr Jens suggested to the plaintiff that from time to time he has resorted to the use of heroin, with which the plaintiff agreed and this had occurred when he had “tapered off methadone or come off it too quickly and it has made me relapse”.[178] Mr Jens put to the plaintiff that in October 2015 he had had a relapse and had again taken heroin. Mr Jens pointed out to the plaintiff that in May 2022, his doctor noted he was taking heavy doses of heroin. The plaintiff said he “went back on methadone and I have been clean ever since. I went back on methadone from May 22 and I’ve been clean since”.[179] Mr Jens asked the plaintiff how long he had been on heroin from May 2022, and the plaintiff said he did not know, but “I’d probably done about a six month relapse, maybe”.[180]
[178] T33, L25-29.
[179] T34, L4-9.
[180] T34, L10-12.
198Mr Jens suggested to the plaintiff that prior to the accident he regularly attended the Westgate Clinic, for reasons unrelated to his drug use and relapses. Mr Jens suggested to the plaintiff, and the plaintiff agreed, that a year and a half prior to the accident in November 2016, that on most of the occasions he attended Westgate Clinic, he was regularly obtaining prescriptions for medications including Panadeine Forte.[181]
[181] T35-36, L23-2.
199The plaintiff said he was prescribed Panadeine Forte as a painkiller because of his injuries from the 2005 accident. He said, “I got addicted to pain meds, too, so they stopped that. That’s why they stopped it completely”.[182]
[182] T36, L4-9.
200Mr Jens asked the plaintiff how much Panadeine Forte he was being prescribed by his doctor, and he said, “Ah, 20 a month”. The plaintiff added that, “There’s no way I was getting more than that 25”.[183]
[183] T36, L28-29.
201When asked why he was taking Panadeine Forte, the plaintiff said, “Well, obviously, because I’m an addict…that’s why I took it, because I – like, it’s got opiates in it”.[184]
[184] T37, L5-6.
202When Mr Jens suggested to the plaintiff that he was taking Panadeine Forte for pain, the plaintiff said, “Not really…He then said, “I took – because I just told you, I’m an addict”.
203When Mr Jens suggested to the plaintiff that at this time he was reporting neck pain to his doctor, the plaintiff said, “Well, how else are you meant to get, um, pills from the doctor?” Mr Jens asked the plaintiff whether one method of obtaining pills from his doctor was to tell him that he was in pain, and the plaintiff said, “No, one time; then you go and you get your repeats. You don’t really say anything, do you?”.
204When Mr Jens again put to the plaintiff that up until November 2016 he was regularly receiving prescriptions for Panadeine Forte for neck pain, the plaintiff said, “Ah, I don’t know, can’t remember”. The plaintiff also said, “Well, I’m just explaining, I just went in there for repeats; I didn’t say why.”
205The plaintiff said that in 2015 and 2016 in addition to attending on his general practitioner at the Meadows Clinic to obtain methadone maintenance treatment, he was also attending at the Westgate Clinic to receive other medications including Panadeine Forte.[185] The plaintiff said that at this time he was also obtaining prescriptions for Valium either from his psychiatrist or from his general practitioner. The plaintiff said he was taking Luvox and Seroquel before the car accident.[186]
[185] T39, L17-26.
[186] T40, L2-4.
206After putting to the plaintiff some of his doctor’s consultation notes made before the 2016 car accident, Mr Jens suggested to him, and he agreed, that he obtained his prescriptions for Panadeine Forte because he had told his doctor from time to time that he was having neck pain.[187]
[187] T41, L27-30.
207Mr Jens suggested to the plaintiff that therefore, some 11 years after the motor vehicle accident of 2005, the plaintiff was reporting that he was still experiencing neck pain from it.[188]
[265]T96, L26-31.
Defendant’s Submissions
251Mr Jens submitted that the primary issue for determination is the psychiatric and psychological condition of the plaintiff, both before and after the motor vehicle accident in November 2019 and that is because of the serious effects the same have proved to have had on the plaintiff. Mr Jens referred to Professor Teddy who expressed agreement with Mr Rogers as to the significant role that the plaintiff’s psychiatric condition plays.
252Mr Jens submitted that the report from Dr Aliashkevich, who Mr Jens noted, had last examined the plaintiff on 21 January 2020, spoke to the plaintiff’s cervical spine, but with just a passing note being made to the lumbar spine. Mr Jens submitted that in any event, Dr Aliashkevich’s four reports are of no assistance to the plaintiff, as they are brief, largely repetitive and out of date .[266]
[266]T107-108, L18-11.
253Mr Jens submitted that the plaintiff’s general practitioner had noted the significance of the pre-injury cervical spine history, making it problematic to reach a determination as to the extent of any role the motor vehicle injury had to it. [267]
[267] T108, L22-27.
254Mr Jens submitted that that the plaintiff’s general practitioner was wrong to have said that the transport accident played a role in the plaintiff requiring methadone.[268] Mr Jens submitted that one can see from the plaintiff’s methadone clinic notes, an extraordinary amount of attendances and consequent prescriptions for methadone up to November 2016.[269]
[268]T111, L10-14.
[269]T111, L16-18.
255Mr Jens submitted that the plaintiff’s psychiatric condition, which extends back at least 15 years and has involved schizophrenia in the mid 2000’s, has played a role in the plaintiff’s presentation, and that this was demonstrated in his presentation during cross-examination.
256Mr Jens submitted that recourse to the clinical records of the Meadows Medical Clinic and of Lichmore was unhelpful to the plaintiff because it is almost impossible to disentangle the symptoms that were reported by the plaintiff compared to role that is played by his psychiatric state, when compared to what was reported by those doctors who dealt with the plaintiff’s physical injuries.
257Mr Jens referred to Dr Mordia’s report dated 18 May 2018[270] that post-dated the November 2016 accident and that included that “the workplace injury had already significantly affected his self-confidence”…“his prognosis is poor”, and that the plaintiff’s “daily routine remains disorganised with poor motivation and significant anxiety”.[271]
[270]Exhibit P5, PCB 34.
[271]Exhibit P5, PCB 36, T120, L5-11.
258Mr Jens referred to Dr Aliashkevich’s report dated 2 October 2018, and submitted that Dr Aliashkevich predominately addressed the plaintiff’s cervical spine, but made no comment in relation to the plaintiff’s lower back pain[272]. Dr Aliashkevich’s pain management plan for the plaintiff was specific and exclusive to the cervical spine.[273] Mr Jens also referred to Dr Aliashkevich’s report and subsequent pain management plan dated 22 January 2019, and submitted that one would not discern from it, that the plaintiff had an injury to the lumbar spine. Mr Jens emphasised Dr Aliashkevich’s further report dated 19 February 2019[274], he submitted it made no mention to any management of the plaintiff’s cervical spine.[275] Mr Jens referred to Dr Aliashkevich’s report dated 21 January 2020[276], in which he requested further imaging of the plaintiff’s cervical spine, but made no mention of it in terms of a need for any treatment and/or plan of management.[277]
[272]Exhibit P6, PCB 37.
[273]T122, L20-24.
[274]Exhibit P6, PCB 41.
[275]T122-123, L27-1.
[276]Exhibit P6, PCB 43.
[277]T123, L2-10.
259Mr Jens referred to Dr Rogers’ report dated 8 March 2022[278], which recorded that he had no doubt that the plaintiff had significant psychosocial factors that stet both to his current chronic pain and life circumstances, however, Dr Rogers referred to the report by Dr Schutz, given Dr Rogers does not have expertise in psychiatry or psychology.[279]
[278]Exhibit P14, PCB 136.
[279]P14, PCB 140, T125-126, L28-2.
260Mr Jens referred to the report by Dr Rogers, that the plaintiff’s prognosis was very poor, there would be no improvement of his chronic pain state, and that none of the treatments that were provided to the plaintiff following his November 2016 car accident has resulted in any symptomatic improvement. Dr Rogers said he thought this was unsurprising considering the plaintiff’s existing psychosocial conditions. Dr Rogers commented that it was of concern that the plaintiff decided not to continue with the medication prescribed for his schizophrenia and depression, and of his reluctance to resume contact with his psychiatrist and psychologist.[280]
[280]P14, PCB 140, T126, L4-14.
261Mr Jens submitted that Professor Teddy in his 19 June 2024 report[281] endorsed the opinions expressed by Dr Rogers.[282]
[281]Exhibit P12, PCB 135.
[282]P12, PCB 135, T126, L14-18.
262Mr Jens submitted there is a genuine question if the plaintiff is suffering from an identifiable organic condition as opposed to a psychiatric condition.[283] Mr Jens referred to Dr Schutz’s report dated 30 May 2024, in which he noted that “there has been an emergence of psychotic symptoms, almost certainly the result of nonadherence with long-term antipsychotic medication”.[284] Mr Jens submitted the plaintiff’s issues are all psychiatric, and not related to physical injuries claimed by the plaintiff.
[283]T126, L22-26.
[284]Exhibit P9, PCB 120, T127, L8-11.
263Mr Jens relied on Dr Schutz who said:[285]
I would summarise that his adjustment disorder has been aggravated by the transport accident. This is insufficient evidence that his more recent episodes of psychotic symptoms have been contributed to by the accident. His mood disorder has been moderately aggravated by chronic pain, which is reportedly secondary to the accident….In terms of prognosis, this is mixed. I would state, it would be essential that Mr McCue be re-referred to a psychiatrist and placed on a robust therapeutic dose of antipsychotic medication. I would state that such interventions…there may be some improvement in his condition. I am doubtful if there will be any improvement beyond that, given the chronic and entrenched nature of his symptoms. [286]
It remains my opinion that a significant majority of his psychiatric pathology is related to pre-existing factors, which have led to him struggling with high-level functioning. There is a minor need, as a result of the 2016 injuries…[287]
[285]Exhibit P9, PCB 120-121.
[286]T127-128, L22-7.
[287]T128, L15-19.
264Mr Jens referred to the multiple reports that the plaintiff once used to play soccer, and tennis before the accident, however, tennis was not part of the plaintiff’s affidavit history.[288]
[288]T129, L6-10.
265I asked Mr Jens what the defendant’s position was in respect to the radiology which potentially showed some state of affairs in relation to the plaintiff’s lumbar spine. Mr Jens submitted that none of the treating doctors make record of it being significant, and that this was just a finding.[289] Mr Jens submitted that the radiology did not identify radiculopathy or the like and Mr Jens referred to Dr Mehr’s report dated 5 December 2017[290], who made a comment that the plaintiff’s post-accident CT was normal.[291]
[289]T130, L11-15.
[290]Exhibit P4, PCB 26.
[291]T130, L 17-25.
266I asked Mr Jens what the defendant’s position was in respect of Dr Flynn’s diagnosis of the plaintiff which referred to “chronic lumbar axial pain with radicular leg pain”. Mr Jens submitted that the better view is that expressed by Professor Teddy in his recent report dated 19 June 2024, that there was an “aggravation of lumbar spondylosis” and that “it’s mild and it is without radiculopathy”.[292]
[292]P12, PCB 134, T130-131, L26-5.
267Mr Jens referred to Dr Dooley’s report dated 9 April 2024 of soft tissue damage to the plaintiff’s lumbar spine.[293]
[293]D1, DCB 3.
268Mr Jens submitted it is clear that the plaintiff’s father was of the view that his son was in a very bad way pre-accident and he required ongoing assistance from day to day. Mr Jens emphasised that Mr McCue now assists the plaintiff with his garden maintenance less than before the accident.[294] Mr McCue said he would mow the plaintiff’s lawn once a fortnight before the accident, and now he mows the lawn every three weeks.
[294] T135, L 21-30.
Plaintiff’s Submissions
269Mr Hevey submitted that much of what the plaintiff had been suffering before the November 2016 motor vehicle accident was slowly but systematically being overcome. He referred to the plaintiff’s statement that “in 2015 and 2016 I was getting my life back together”.[295] Mr Hevey submitted that the plaintiff’s account proved true, when assessed according to the evidence of the plaintiff and his father as it pertained to their bicycle riding, as well as by clinical entry by Dr Lachlan from Westgate Medical Centre.
[295] T140, L3-8.
270Mr Hevey referred to notes of a surgery consultation the plaintiff had on 19 May 2016 with Dr Koghar from the Meadows Medical Clinic, and approximately six months before the motor vehicle collision, it recorded that the plaintiff was off his methadone programme of 35 milligrams daily, and that he had not ‘used’ which Mr Hevey contended should be understood as a reference to heroin.[296] The notes included that the plaintiff was very keen to decrease his methadone intake, with the doctor noting that the plaintiff was aware that decreasing it too soon had a higher chance of relapsing into heroin use.[297]
[296] D7, SDCB 48, T142, L21-24.
[297] D7, SDCB 48, T142, L25-27.
271Mr Hevey submitted that while the plaintiff relapsed into heroin use in November 2015, and in February and March 2016, the note of consultation from 19 May 2016 included that the plaintiff was walking for one hour a day and was cycling.[298] Mr Hevey submitted this was consistent with the evidence from the plaintiff and his father who said that they rode bikes four to five times a week, and wherever they could.
[298] D7, SDCB 49, T142, L30.
272Mr Hevey submitted that the plaintiff’s father impressed as an honest and credible witness, who was doing the very best to assist his son throughout all of his difficulties in life.[299]
[299] T143, L1-9.
273Mr Hevey further emphasised the plaintiff’s evidence that he had been able to play kick-about in a park in Werribee, on a Sunday with his friends, whom he named.[300]
[300] T143, L12-16.
274Mr Hevey submitted that the plaintiff, with his numerous difficulties, was trying to get on with his life as reflected by the plaintiff’s move back in, or move into, his own home, which was purchased in March 2015 and that reflected the fact of the plaintiff trying to get on with his life, throughout 2015 and 2016.[301]
[301] T143, L22-28.
275Mr Hevey addressed the plaintiff’s neck. He submitted that the notes of the treating clinic at Westgate Medical Clinic provide an indication of continuing and ongoing pain and the prescribing of Panadeine Forte but that during cross-examination the plaintiff provided a different account of his use of Panadeine Forte prescriptions, and described himself as an addict, and would use one month’s prescription in three to four days.
276Mr Hevey submitted that after the injury from the previous transport accident in 2005, the plaintiff experienced some minor neck pain. It appeared that he then continued to complain of neck pain because of his addiction and so as to obtain Panadeine Forte. However, once the transport accident of 14 November 2016 occurred, the pain to the plaintiffs neck was immediate, and Mr Hevey submitted initially the plaintiff’s neck pain was hurting more than this back, with his back pain coming on gradually.
277Mr Hevey submitted the plaintiff complained of the pain being worse in the morning but he testified that he has learned to live with the pain because Panadeine Forte is no longer prescribed by his treating doctors because of his risk of addictions.[302]
[302] T145, L10-15.
278Mr Hevey submitted that whether or not the plaintiff experienced neck pain before the November 2016 accident, there should be no doubt that the plaintiff’s neck pain has worsened as a result of the accident.[303] Mr Hevey relied on the fact that Dr Aliashkevich injected the plaintiff’s neck on the left hand side, at C4 in February 2019. Mr Hevey observed that although the nerve block injection did not provide the plaintiff with relief, it was serious enough at that stage, despite the plaintiff initially rebuffing the procedure, for him to proceed with it and constitutes objective evidence that the plaintiff was experiencing genuine difficulty with the neck. [304]
[303] T145, L16-18.
[304] T145-146, L19-3.
279Mr Hevey submitted that I should also be satisfied that all of the medical evidence is to the effect that there was an injury to the lumbar spine as well caused by the November 2016 accident. Mr Hevey referred to Dr Niknejad’s report from Westgate Medical Centre dated 26 June 2024[305] in which he indicated that the plaintiff’s back and spine conditions were significantly influenced by the November 2016 transport accident, and Mr Hevey submitted the persistence of chronic pain in the plaintiff’s neck and lower back underscores the direct impact of the accident on his ongoing health issues.[306]
[305] P7, PCB 53, T146, L11.
[306] P7, PCB 53, T146, L22-23.
280Mr Hevey submitted the reports of Dr Aliashkevich referred to the treatment provided for the plaintiff’s neck, but he also referred to the plaintiff suffering lower back pain.[307] Mr Hevey referred to Dr Alekseevich’s report dated 21 January 2020 and the investigations he said had been undertaken.[308] Mr Hevey referred to the plaintiff experiencing sleep disruptions post-accident, as noted by Dr Schutz who referred to the plaintiff’s accident-related nightmares.[309]
[307] P6, PCB 43, 48-49, T146, L24-31.
[308] P6, PCB 43, T147, L11-13.
[309] P9, PCB 67, T147, L19-31.
281Mr Hevey referred to Dr Winter’s report who diagnosed the plaintiff with lumbar axial back pain with intermittent radiculopathy, and cervical neck pain of longstanding duration like-axial in nature without radiculopathy. Dr Winter considered that the transport accident contributed to the plaintiff’s ongoing cervical and back pain.[310]
[310] P13, PCB 128, T148, L29-30.
282Mr Hevey urged me to be satisfied that the plaintiff was a credible witness, who endeavoured to do his best to remember what had transpired over the last 14 years of a very troubled life, and in trying to remember specific dates, and come to grips with those issues that had beset him during that time.[311] On the matter of the plaintiff’s reliability, Mr Hevey submitted that the plaintiff readily acknowledged potentially adverse considerations such as experience of neck pain prior to November 2016 and his addiction to Panadeine Forte, that obviously makes the assessment of its requirement to genuinely treat the neck pain from the November 2016 accident, problematic.
[311] T154, L24-30.
Analysis and Findings
283The plaintiff’s task is to establish on the balance of probabilities that the November 2016 transport accident resulted in an organic injury to the function of his spine with particular emphasis to his lumbar spine, and that the same has brought with it, consequences that are in comparison with other cases, fairly described as “very considerable” and certainly more than ”significant” or “marked”. It is not necessary, and it would be wrong, to proceed on a basis that in order to succeed the plaintiff need be able to prove serious injury to a particular segment of the spine as opposed to a compensable injury to the spine as a single body function as a result of the transport accident.
284It is obvious that the plaintiff has needed to navigate a difficult path in seeking to satisfy his burden of proof. The complications that the plaintiff’s application presents, almost all stem from the reliability that I am able to place on his evidence, because of the following considerations:
(a) First, the plaintiff has very unfortunately suffered from drug addiction that has included heroin, and of methadone treatments as an aid to assist him with his addiction, but he has suffered also from relapses. On the day of the hearing, the plaintiff said he taken methadone early in the morning. I have taken this fact into account in assessing the manner in which the plaintiff gave his evidence, and which was not always straightforward and he grappled at times to deal with the cross-examination conducted by Mr Jens.
(b) Second, in addressing the cervical spine and the effects on him of it as a result of the November 2016 accident, the evidence is that the plaintiff had previously suffered neck pain as a result of the November 2005 transport accident.
(c) Third, the plaintiff’s evidence was that the pain in his neck had largely settled before the 2016 accident with the pain that remained from it bearing no comparison to the experience of pain in his neck that he suffered immediately following the 2016 accident.
(d) Fourth, the plaintiff’s evidence of the state of his cervical spine, and in particular his neck pain, is muddied by the fact that clinical attendances before the November 2016 accident record him presenting to doctors seeking prescriptions for Panadeine Forte ostensibly to manage neck pain.
(e) The plaintiff agreed with Mr Jens that on various dates in 2009, 2010 and 2011, the Panadeine Forte he had sought to obtain for his neck was because of his drug addiction.[312] This pretence by the plaintiff extended into more recent times. In a clinical record from the Westgate Clinic on 18 September 2016, that is just 2 months before the November 2016 accident, it is recorded, ‘Needs Panadeine Forte for his neck pain’.
(f) The plaintiff said of the state of his neck and attendances for prescribed pain medication after the 2005 accident but before the 2016 accident that: “it did hurt, yeah, but it wasn’t that bad; I was just saying that to get the…medication”.[313]
(g) During the plaintiff’s cross-examination, I asked him to clarify if he meant that he did not in fact suffer from a neck problem as a result of the 2016 accident. He said that his neck did hurt “further on down the track, and then it did not hurt”. When I asked him if his neck hurts currently, the plaintiff said that it does. I then asked him when the change from experiencing no neck pain but claiming neck pain in order to sustain his drug habit, to neck pain becoming a problem for which he genuinely required medication occurred. The plaintiff said, “pretty much as soon as the car hit me, and my neck, my body went like that. It hurt straight away, it started hurting.”[314]
[312]T62, L11-20.
[313]T53-54, L26-2.
[314]T61, L1.
285Plainly, in light of the plaintiff’s variable evidence on the matter of the state of his neck before November 2016, and the consequences by way of pain and suffering and impeded function claimed as attributable to the cervical spine as a result of the November 2016 accident, the question is whether I can be satisfied of the truthfulness of his evidence? Mr Hevey urged me to accept the plaintiff’s evidence and to assess him as reliable based on his willingness to give unhelpful answers to his own cause.
286The plaintiff has laboured from a long and difficult mental history and drug addiction and has admitted to giving a false reason to doctors at times to obtain drugs because of his addiction. Of necessity, I must be cautious in the assessment of other parts of the plaintiff’s evidence. But the need to be cautious does not mean that all of the plaintiff’s evidence must be treated as unreliable and unsatisfactory or false. The fact that driven by his opioid addiction the plaintiff lied to doctors at times about neck pain in order to obtain prescriptions for Panadeine Forte need not inevitably result in him not being believed on his account of worsening pain to the segments of his cervical as well as lumbar spines as a result of the November 2016 accident.
287I was told that the plaintiff made no claim for injury to his neck from the 2005 accident, and this state of affairs impresses me that the pain to his neck from the 2005 accident was not genuinely great.
288I am satisfied that there is some evidence that in the wake of the 2005 accident, and in the course of 2016, but prior to November 2016, that the plaintiff was making some strides in getting his life back on course. A note of attendance on Dr Laughlin on 16 May 2015 when a prescription for Panadeine Forte was written includes, that the plaintiff was experiencing neck pain only once in a while and that he had moved house recently and his neck pain flared up a little while moving. By this stage the note records that the plaintiff was off WorkCover from the bullying injury at Hobson Bay Council, and “Life getting back.” A note of entry dated 19 May 2016 records the plaintiff having recently gone off the methadone program and being stable for the past month against a backdrop of relapses in the previous November, February and March, and it was also recorded that he was walking for one hour a day and was cycling.
289I am satisfied the physical consequences of the 2005 accident to the cervical spine was relatively minimal but that the plaintiff was amplifying the frequency and severity of his neck pain before the November 2016 accident in order to procure prescription medication.
290I accept the plaintiff’s evidence that he experienced immediate pain in the neck following the November 2016 transport accident. Subsequently, on 25 February 2019, Dr Aliashkevich saw reason to administer a nerve block injection into the left side at C4 but it gave the plaintiff limited relief.
291I have taken into account that Professor Gates reported that the plaintiff had related the experience of mid low level back pain the morning of the accident that has persisted. He reported evidence of a minor disc displacement or bulge at L4/5 and L5/S1.
292Dr Aliashkevich in his report of 21 January 2020 reported L4/5 and L5/S1 disc bulges as well as multilevel cervical spondylosis, exacerbated weight-bearing MRI.[315]
[315]Exhibit P6, PCB 43.
293Dr Winter, in his report dated 31 May 2024 in addressing the plaintiff’s physical condition from the November 2016 accident, diagnosed the plaintiff with lumbar axial back pain, with intermittent radiculopathy and cervical neck pain of long-standing duration, likely axial in nature, without radiculopathy.[316]
[316]Exhibit P13, PCB 126.
294I have taken into account that Dr Rogers reported that although there were repeated references to neck pain in the Westgate Medical Centre clinical notes after the 2005 accident and before the 2016 accident, as far as low back pain is concerned, there were none prior to the 14 November 2016 accident.
295Dr Niknejad, the plaintiff’s treating general practitioner at the Westgate Medical Centre, candidly said in his report dated 26 June 2024 that:
Mr. McCue's neck pain has been documented since a 2005 accident, with frequent complaints noted in medical records prior to the 2016 incident. Conversely, complaints of low back pain appear to have emerged following the November 2016 MVA. While it is challenging to attribute his current neck pain solely to the 2016 accident, his visits for neck pain were less frequent before this incident, indicating a likely exacerbation. His chronic lower back pain is directly attributable to the 2016 accident.
Ongoing Condition:
Mr.McCue's current back and spine conditions are significantly influenced by the November 2016 transport accident. The persistence of chronic pain in his neck and lower back underscores the direct impact of the accident on his ongoing health issues.[317]
[317]Exhibit P7, PCB 53.
296I see no reason to doubt the genuineness of the plaintiff’s account of his lumbar pain that he related to Dr Aliashkevich and that he recited in his report dated 26 April 2024 that:
He also complained about exacerbated left-dominant lower back and leg pain. He scored the pain intensity reaching 8-9/10 and occasionally required Panadol. [318]
[318]Exhibit P6, PCB 49.
297On the basis of the foregoing matters, I am satisfied that the preponderance of medical evidence is that there was an injury to the plaintiff’s lumbar and cervical spines as a result of the transport accident of November 2016.
298I am not persuaded by the evidence that the alternative opinion as expressed by Mr Dooley should be adopted. Mr Dooley diagnosed injury as a result of the 2016 transport accident as a soft tissue injury that caused some degree of aggravation of underlying and naturally occurring degenerative changes. However, this fails to address the fact of the asymptomatic lumbar spine prior to November 2016. Neither can his opinion reflect my conclusion about the truth of the matter as it relates to the pre-existing cervical pain before the November 2016 accident and the plaintiff’s recourse to it being driven by his addiction. Moreover, I am not satisfied that the plaintiff’s “psychological reaction to his situation” as it was described by Mr Dooley,[319] is the reason to account for the plaintiff’s amplified pain and so is not physically driven. Rather, I am satisfied of the existence of an organic injury to the plaintiff’s spine as a result of the 2016 accident, with pain and physical limitations that have accompanied it and that have impeded on the admittedly limited, but nonetheless significant enjoyments of life that the plaintiff had, and that I am satisfied on the evidence were improving, prior to November 2016.
[319] Exhibit D1, DCB 3.
299As to the consequences to the plaintiff of the injury sustained in the November 2016 accident, Dr Winter recorded that the plaintiff told him that he was far more active prior to the accident, enjoyed activities such as walking and he wasn’t scared to go outside to meet people. He went on to say that as a result of the 2016 accident the plaintiff does not exercise, requires assistance for basic domestic activities of daily living and rarely leaves his home, and has suffered worsening anxiety and had moved back in with his parents which was a source of conflict and guilt for the plaintiff.
300Dr Schutz has referred to the plaintiff experiencing transport accident-related nightmares.[320] He reported too, that pain affects his sleep.
[320] P9, PCB 67, T147, L19-31.
301The plaintiff’s parents both gave evidence that speaks to the extent of domestic assistance their son has required since the November 2016 accident and that they have understood as driven by the effects physically on their son because of pain. I have taken account of the considerations that Mr Jens urged on me stemming from Mr McCue’s evidence and that should lead me to conclude that prior to the November 2016 accident and injury, the lack of the plaintiff’s enjoyment of life and participation in recreational pursuits and need for domestic assistance and of interrupted sleep because of his mental health, are hardly distinguishably the worse. The defendant’s submission was understandable, but I am satisfied that the changes wrought by the November 2016 transport accident are markedly different. In reaching this conclusion, I recognise that the evidence did not disclose that the plaintiff’s life before the 2016 accident was one rich or abundant with activity, but by the same token, it seems to me that for someone with little to begin with, the loss of and or further reduction or degradation of the same is capable of being assessed objectively as very considerable. I am satisfied in this application that this is the correct decision.
302I am satisfied the plaintiff has identified that as a result of the November 2016 transport accident he has suffered a substantial organic injury that is the basis for the pain and suffering consequences on which he relies.
303The defendant referred to the decision of the Court of Appeal in Meadows v Lichmore[321] who approved the following approach:
. . . serious injury applications raising issues of this kind are effectively approached in a two-step manner. The first step is to ask whether there is a substantial organic basis for the pain and suffering consequences relied on. If the answer to that question is affirmative – and, of course, the pain and suffering consequence has satisfied the statutory criterion – then the applicant will succeed without the need for any ‘disentangling’ of the physical contributions to the pain and suffering from the psychological contributions.[322]
[321]Meadows v Lichmore [2013] VSCA 201.
[322]Ibid [21].
304The Court continued:
If, however, that first question is not – or cannot be – answered affirmatively, then the applicant will need to take the next step in ‘disentangling’. That is, the applicant will need to be able to separate the physical contribution to the pain and suffering from the psychological, in order to be able to satisfy the Court that the pain and suffering consequences attributable to the physical injury satisfy the statutory test.[323]
[323]Ibid [22].
305I am satisfied that a need to disentangle the physical contributions to the plaintiff’s pain and suffering as a result of the November 2016 accident from a psychological contribution does not arise. Neither in light of the facts that I am satisfied the plaintiff has proved, does the application give rise to the principles expressed in Peake Engineering v McKenzie[324] as was referred to in passing in final address by the defendant.
[324] Peake Engineering v McKenzie [2014] VSCA 67.
306I can, and I have had regard to, the emotional consequences associated with the secondary effect on the plaintiff as a result of the transport accident. He has nightmares of the accident and they wake him and disturb his sleep. He has anxiety. He had a relationship that appears to have failed after the November 2016 accident and because of him feeling limited in what he could offer. The assistance required for the plaintiff from his parents is not of a character or content that absent the plaintiff’s earlier effects from bullying or his schizophrenia, and with the latter appearing to have been long managed by medication, would not be required. His mother deposed to the physical limitations on the plaintiff’s ability to shop and use a trolley unassisted as did the plaintiff. Despite the anomaly the defendant relied on in regard to Mr McCue’s evidence of the extent of gardening he performs for his son, and if it is greater or lesser than before the 2016 accident, I prefer Mr McCue’s account when he said it was not as much in the past as has been required of him since the transport accident.[325] The loss of amenity the plaintiff enjoyed and the benefits emotionally and physically of being able to ride bikes with his father is a matter of significance. The inability to have a kick about with and remain connected socially with friends because of pain is also a loss that I am satisfied is directly attributable to the organic injury to the spine at both segments as a result of the November 2016 transport accident and his restriction on driving is a further imposition on his independence. I am not satisfied that the contentions put to the plaintiff under cross-examination of having been behind the wheel of a car for long drives was established.
[325]T93, L10-14.
307The effects on the plaintiff of the injury to his spine has not remediated over time despite interventions that have included nerve block injections. Surgery is unlikely. Mr Jens asked the plaintiff if he had sought any medication for his lower back pain, and the plaintiff said that he uses supermarket Panadol. He said that he has not been to the doctors for a while, and not for over a year, with the last couple of doctor appointments being via telephone.[326] In managing his injury, the plaintiff is unfortunately limited in terms of strong pain relief for his spine. The suite of modalities to manage pain that might be ordinarily expected are limited. He is no longer prescribed Panadeine Forte because of his prior addiction and the risk of relapse to him associated with it. The plaintiff said that his pain is eased by his methadone replacement program and the use of cannabis oil and by the application of heat packs to his neck and back.
[326]T70, L24-31.
308I accept that the plaintiff is likely to continue to suffer pain and limitations to his activities of daily living for the foreseeable future.
309For the reasons expressed the plaintiff is entitled to the relief sought in his Originating Motion. I will hear the parties on the form of final orders.
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