Milutinovic v Transport Accident Commission
[2022] VCC 2022
•25 November 2022
| IN THE COUNTY COURT OF VICTORIA AT Melbourne COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Serious Injury List
Case No. CI-16-00955
| RUSKO MILUTINOVIC | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 and 11 October 2022, 8 November 2022 | |
DATE OF JUDGMENT: | 25 November 2022 | |
CASE MAY BE CITED AS: | Milutinovic v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2022 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – injury to the neck, shoulder and wrist – psychiatric injury – leave sought for pain and suffering – loss of earnings – aggravation – credibility – previous work injury to low back with psychological condition following assault at work
Legislation Cited: Transport Accident Act 1986
Cases Cited:Johns v Oaktech Pty Ltd [2020] VSCA 10; Rowe v Transport Accident Commission [2017] VSCA 377; Humphries v Poljak (1992) 2 VR 129, 140; Mobilio v Balliotis [1998] 3 VR 833; Richards & Anor v Wylie (2001) 1 VR 79; Transport Accident Commission v Garcia [2015] VSCA 225
Judgment: Leave refused to commence a proceeding for pain and suffering and pecuniary loss damages
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared person | - |
| For the Defendant | Mr S Pinkstone | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Introduction
1In September 1993, the plaintiff, Rusko Milutinovic, was violently assaulted at work by his ex-wife’s new husband. He suffered a low back injury, which forced him out of work. As a consequence of the assault, he also developed significant anxiety and depression, and consulted with a psychiatrist for many years.
2In March 2010, Mr Milutinovic was involved in a transport accident in Coburg. The vehicle he was driving was stationary at a set of traffic lights when hit from behind by a van. His car was propelled forward, sustaining relatively minor damage. When he woke the next day, he was in significant discomfort, with his neck throbbing, a splitting headache, and discomfort in his low back and shoulders. He attended upon his local general practitioner later that day.
3By the time of the transport accident in 2010, Mr Milutinovic had been totally incapacitated for employment for nearly 17 years as a consequence of the 1993 assault.
4In February 2013, Mr Milutinovic presented at the Northern Hospital reporting symptoms of tactile delusions - insects were infesting his nose and throat, and down to his stomach causing constipation. The insects crawling throughout his body caused him to be itchy and anxious, and he was experiencing poor sleep. He was expressing suicidal ideation with plan, but without current intent. He believed the insects got into his body following the transport accident. He reported that he had been experiencing these symptoms for approximately six months prior to presentation.[1] He has been diagnosed with a delusional disorder.[2]
[1] Joint Court Book (“JCB”) 290
[2] JCB 116; JCB 85
5By this proceeding, Mr Milutinovic seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to commence a proceeding for common law damages in respect of injuries he alleges that he suffered in the transport accident. He relies on paragraphs (a) and (c) of the definition of “serious injury” in s93(17) of the Act, in relation to specific injuries to his:
(a) cervical spine; and/or
(b) right shoulder; and/or
(c) right wrist;
and the following conditions:
(d) bilateral hearing impairment;
(e) sleep apnoea;
(f) a neurological condition manifesting itself in dizzy spells and vertigo; and
(g) a psychiatric injury.
6In order to be granted leave, Mr Milutinovic must establish that at least one physical injury is a 'serious long-term impairment or loss of a body function'; or that his psychiatric injury constitutes a ‘severe long-term mental or severe long term behavioural disturbance or disorder’.
7The principal dispute at the hearing concerned the issue of causation in relation to Mr Milutinovic’s delusional disorder.
8Having regard to the evidence as a whole, I do not consider that Mr Milutinovic has established on the balance of probabilities that the development of his delusional disorder was caused by the transport accident. The aetiology is uncertain at best, and whilst there is a temporal association, this falls somewhat short of the requirement of factual causation. The symptoms did not appear until some years after the transport accident. There is no clear opinion as to causation expressed anywhere, save that depression may precede development of such a disorder. This does not assist the plaintiff. There is also an opinion that the depression has been caused by his psychosis; further that Mr Milutinovic’s severe and chronic hearing impairment precipitated a late onset psychotic disorder. Ultimately, I accept the overwhelming opinion of the plaintiff’s treating doctors that, despite a general temporal association, there is no distinct aetiological connection between the transport accident and the onset of the plaintiff’s delusional symptoms.
9For the reasons set out in more detail below, Mr Milutinovic has not otherwise established that he sustained a serious injury in the transport accident within the meaning of the Act.
The Plaintiff’s credit
10The credibility of the plaintiff is a relevant issue in determining the seriousness of the injuries relied upon by Mr Milutinovic.[3] Taking into account his undisputed significant psychiatric condition manifesting in tactile delusions, and his reported lack of sleep in the nights preceding giving evidence, in my opinion the plaintiff did his best to answer questions in a truthful fashion.
[3]Johns v Oaktech Pty Ltd [2020] VSCA 10
11The plaintiff’s credit was not assisted by his attack on the TAC and his treating orthopaedic surgeon, Mr Michael Khan during the course of submissions, which extended to claims of lies and bribery. Nor was it assisted by the tender of a handwritten note of his general practitioner, Dr Habib made on 25 October 2022 said to establish the basis of his attack on the TAC, and others who did not agree with his beliefs as to the consequences of the transport accident.[4]
[4] Exhibit 3, which reads in part, “Rusko need help. He is grossly disturbed, emotionally unbalanced, as his case is dragging too long …”
12His evidence was further compromised by issues with his memory. I also have had regard to the medical evidence as a whole which indicates that Mr Milutinovic has a lack of insight into his psychiatric condition, and that his psychosis impairs his perception of his physical symptoms.
13I accept the TAC’s submission that in terms of his attribution of various symptoms to the transport accident, I should not accept or give any weight at all to any of his evidence as to causation. In other words, I disregard any subjective evidence of the plaintiff attributing injury in any specific sense to the transport accident.
14I accept Mr Milutinovic’s account of the onset and extent of the psychiatric symptoms he experiences, including that he believes his body is infested with insects.
15In light of my findings, the objective evidence in relation to each claimed serious injury must be considered carefully.
Relevant principles
16The seriousness of an impairment is determined by whether the pain and suffering and loss of enjoyment of life consequence, including any pecuniary disadvantage consequence, “when judged by comparison with other cases in the range of possible impairments or losses, (can) be fairly described at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[5]
[5] Humphries v Poljak [1992] 2 VR 129 at 140
17The severity of a mental or behavioural disturbance or disorder is determined by whether the consequences to the plaintiff, when judged by comparison with other cases, in the range of possible mental or behavioural disturbances or disorders, are fairly described as being more than serious to the extent of being severe in accordance with the principles in Mobilio v Balliotis.[6]
[6] [1998] 3 VR 833.
18To the extent there are psychological factors that amplify Mr Milutinovic’s symptoms, for example, in relation to his shoulder injury, that amplification may not be considered as part of the physical injury.[7]
[7] Richards & Anor v Wylie (2001) 1 VR 79
19A mental response, however, to an impairment or loss of a body function may be taken into account in determining whether the loss or impairment of a body function can be fairly described as ‘serious’. In Richards & Anor v Wylie,[8] Winneke P said:
“If, as a result of an injury, a person loses a limb, it will, no doubt, often occur that one of the consequences of such a loss or impairment will be the development of a mental response to that impairment or loss. That is one of the consequences which, along with others, the Court will need to evaluate in determining whether the loss or impairment of a body function, when judged by comparison with other cases in the range of possible impairments or losses, can be fairly described as ‘serious’ ... Such a response, as I see it, would be an expected consequence of an impairment or loss of a body function of the sort to which I have referred ... Thus, the ‘serious injury’ defined by sub-paragraph (a) of sub-s.(17) can, I think, have its seriousness measured in part by a mental response to a physical impairment. What it will not recognize is that the mental disorder can itself constitute or be the producer of the impairment of a body function.”[9]
[8] Supra
[9] (Ibid) at 87-88. See also Buchanan JA at 90. See also Transport Accident Commission v Garcia [2015] VSCA 225 at paragraph [27]
The evidence
20Milutinovic relied upon his affidavits sworn 24 October 2019 and 20 May 2021 (prepared by his previous solicitors, Slater and Gordon); and an affidavit of his wife, Milomirka Milutinovic, sworn 24 May 2021. The TAC tendered an affidavit of the driver of the other vehicle involved in the transport accident, Maher Mousa, sworn 1 June 2021. By joint tender, a number of medical reports and other relevant documents were tendered, including a serious injury application form; the Particulars of Injury, dated 18 January 2021; relevant radiology; clinical notes part of the Joint Court Book (“JCB”). The plaintiff also tendered a statutory declaration made by him on 2 November 2022 which attached a copy of North Western Area Mental Health Service progress note dated 9 November 2015[10] annotated with handwritten notes of his treating general practitioner, Dr Mir Mohammed Habib.
[10] JCB 304
21No financial documents were tendered, it not being in dispute that the plaintiff had not worked since an industrial incident in 1993. At various times the plaintiff was on a disability support pension, but he is currently on the old age pension, being aged 72 as at the date of the hearing.
22The application proceeded with the plaintiff’s oral evidence, assisted by the Court. He was cross-examined about the contents of the affidavits sworn by him, and other relevant issues, including as to the reliability of his evidence. Two weeks after the conclusion of oral evidence, the TAC filed written submissions.[11] I received oral submissions from Mr Milutinovic on the third day of the hearing,[12] having allowed him a period of two weeks to consider those submissions.
[11] Dated 25 October 2022
[12] 8 November 2022
23I have read all of the material tendered by the parties, and will refer to the evidence to the extent necessary in the course of these Reasons.
24Although notionally the claim relied upon loss of earnings, for the reasons set out below the plaintiff has not established any loss of earnings due to his longstanding back and psychiatric condition which resulted in him not undertaking any employment for many years prior to the transport accident. I do not accept Mr Milutonivic’s evidence that he was “ready to get back to work” at the time of the transport accident. Notwithstanding his stated desire, any return to work was unrealistic, and not supported by any medical evidence to the effect that he had any capacity for employment at that time.
25Whilst not a unanimous view, a number of doctors certified Mr Milutinovic as having capacity to manage his affairs in relation to this proceeding.[13] The hearing proceeded on this basis. It was apparent from his submissions to the Court however that the plaintiff has no insight into his delusional disorder, and remains convinced that insects infest his eyelashes, and crawl over his face and body, inside and out.
[13] JCB 81; JCB 104; JCB 118
Summary of findings in relation to principal claims
Psychiatric condition
26In relation to Mr Milutinovic’s psychiatric condition, the opinions are relatively clear that whilst there is a correlation between the onset of some depressive symptoms and ruminations secondary to the transport accident, no doctor treating Mr Milutinovic has been able to pinpoint a direct aetiological correlation between the onset of the accident and the development of his delusional disorder, which dominates the clinical picture.
27I have no doubt at all that Mr Milutinovic is significantly affected by his psychiatric condition, including his delusional disorder, to the extent that he does not often leave his home. I am not persuaded however that the transport accident has made anything other than a minor contribution to his overall presentation, which is not sufficient to satisfy the test of serious injury set out in the Act.[14]
[14] See Rowe v Transport Accident Commission [2017] VSCA 377, where the Court stated:
28Taking the evidence as a whole, Mr Milutinovic was not able to discharge the burden of proof in establishing that any impairment caused by the transport accident was severe. This is so notwithstanding that his delusional disorder is undoubtedly severe in the relevant sense. The obstacle the claim faces is that the accident only played a minor role, if any, in its development. His underlying depressive symptoms, to the extent specific consequences were identified relating to those symptoms:
(a) pre-existed his transport accident; and
(b) any transport accident-related aggravation to or exacerbation of his pre-existing depressive condition does not meet the narrative test.
Cervical spine and right shoulder; right wrist
29Following the transport accident, Mr Milutinovic had limited treatment for his right shoulder and his cervical spine (see below), but was referred by Dr Habib to see his treating orthopaedic surgeon, Michael Khan in July 2010. Mr Khan has treated the plaintiff since April 1994, initially in relation to his workplace injury the previous year.
30I accept the opinion of Mr Khan that Mr Milutinovic sustained soft tissue injuries to the cervical spine and right shoulder in the transport accident; and further that his carpal tunnel syndrome in the right wrist became symptomatic since the transport accident, precipitated by it.[15]
[15] Report dated 17 July 2011: JCB 56
31In his report to Dr Habib dated 29 July 2010,[16] Mr Khan observed the plaintiff was “60 years of age and looks very fit and sturdy. In fact he was walking quite briskly when I followed him outside in the street without him being aware of the fact.” On clinical examination Mr Khan stated, “in fact his only problem seems to be mild tenderness in the acromio-clavicular joint of the right shoulder. He has an ache in the back of his neck, extending down from lower part of the neck down to upper thoracic spine. He has mild stiffness and ache in his lower back. There is some crepitus in the right shoulder.”[17]
[16] JCB 53
[17] Ibid
32Mr Khan referred the plaintiff for an ultrasound of the right shoulder adding: “I do not think there is any indication for surgery of his right shoulder. It should settle down with the passage of time. He has a type 2 acromion in the plain x-rays of the shoulder and this could be causing some irritability of the rotator cuff and degenerative changes in the acromio-clavicular joint.”[18]
[18] JCB 54
33A right shoulder ultrasound was performed on 10 September 2010 along with a CT of the right shoulder and cervical spine.[19] Mr Khan reviewed the plaintiff in November 2010, and his opinion at that time was that the condition of his neck and shoulder was essentially naturally occurring degenerative change, and that the symptoms should settle down.[20] Ultimately he opined in his report dated 17 July 2011 that the transport accident “flared up” the pre-existing degenerative conditions in his neck and shoulder.[21] In Mr Khan’s opinion there are significant non-organic aspects of his injuries to the cervical spine and lumber spine, and right shoulder.[22]
[19] JCB 281
[20] JCB 55
[21] JCB 60
[22] Report dated 17 July 2011, JCB 61; JCB 67
34The plaintiff did not see Mr Khan from 16 September 2010 until 4 years later on 15 December 2014, complaining of pain in his neck going down to the right shoulder, upper arm and forearm, with pins and needles in the fingers of the right hand. He had good range of movements of his neck and no sign of radiculopathy.[23] There is no up to date report from Mr Khan, and the plaintiff has not had a treating surgeon since last seeing Mr Khan in 2014. The plaintiff has had only limited physiotherapy treatment which ceased years ago.[24] There are no reports from any physiotherapist or other allied health practitioner.
[23] Report of Mr Khan to Dr Habib dated 17 December 2014: JCB 66
[24] T53-T54
35Mr Milutinovic has not undergone any surgical procedure on his right shoulder nor a manipulation under anaesthetic. There is no objective evidence of cortisone injection.[25] No surgery is indicated for either his neck or right shoulder. The absence of such treatment or any indication of it tends against a finding of serious injury in relation to the right shoulder.
[25]At T55 the plaintiff said there was an injection into his right shoulder. He agreed it was many years ago and could not recall the details
36The principal consequences identified by Mr Milutinovic in relation to his right shoulder injury are that:
(a) it affects his sleep; and
(b) as he is unable to hold a fishing rod, he is prevented from undertaking this activity which he previously enjoyed with his wife.
37I note that his sleep was already affected by his serious low back injury in 1993. I accept that fishing is an important recreational activity for Mr Milutinovic, however on its own, it is not sufficient to demonstrate serious injury. The medical evidence in general does not indicate in any event that the plaintiff would be unable to cast or hold a fishing rod as a consequence of the transport accident.
38Whilst I accept that he may have pain in his shoulder which affects his ability to paint or otherwise maintain his home and garden, there is insufficient objective evidence to isolate the effects of the transport accident from his pre-existing lumbar spine injury and the naturally occurring degenerative change in his cervical spine and shoulder. Mr Milutinovic was 72 years of age as at the date of the application.
39There are also non-organic aspects to his injuries.
40I find that the medical evidence has not sufficiently disentangled[26] the consequences of the pre-existing back condition from any ongoing symptoms in his right shoulder or cervical spine, whether considered in isolation or in combination.[27]
[26] Peak Engineering & Anor v McKenzie [2014] VSCA 67 at paragraphs [23[-[25]
[27]Some evidence suggests that the loss of function of the right shoulder may be related to the cervical spine
41Mr Milutinovic underwent surgery to the right wrist in 2020, which improved his ongoing symptoms, although he is left with some numbness and weakness. He finds it hard to hold a pen in his right (dominant) hand. I find that the injury to the right wrist is not serious within the meaning of the Act.
Other potential claims
42Whilst no formal amendment was sought or made to the particulars of injury, the case proceeded on the basis that the plaintiff’s claim for serious injury included bilateral hearing impairment, dizziness and vertigo, and sleep apnoea.
43I find that any hearing loss experienced by the plaintiff is unrelated to his transport accident. The evidence reflects that Mr Milutinovic at undergone three separate middle ear operations on his right ear prior to the transport accident;[28] and whilst he had surgery in 2014 to the left ear for a similar issue, there is no evidence from his treating doctors or otherwise as to the causative link between the transport accident and his hearing condition. To the contrary, the evidence is clear that it is unrelated.
[28] JCB 87
44The report of Mr Robert Webb, consultant Otolaryngologist dated 17 May 2013,[29] concludes that there was no evidence of a head injury in the transport accident, and that in the context of an extensive past history of middle ear disease on both sides, it is not possible to distinguish any effects on his ears that could be attributed to the accident.[30]
[29] JCB 206
[30] See also report of Richard Kennedy dated 22 April 2013 at JCB 86; report of Dr Avdo Zahirovic, Ear, Nose and Throat Surgeon dated 8 November 2010 at JCB 68
45On 8 April 2014, Mr Milutinovic suffered a stroke and was referred to St Vincent’s Hospital. He has made a reasonable recovery but since then has experienced some forgetfulness and impairment of memory. There is no evidence to establish that the stroke suffered by Mr Milutinovic was accident related. In this respect I have had regard to the outpatient reports of Dr EB Tomlinson, neurologist, dated 15 April 2014[31] and 15 July 2014.[32]
[31]JCB 91
[32]JCB 93
46Since the transport accident Mr Milutinovic claims he has experienced episodes of dizziness and vertigo. On the evidence before me, it is more probable than not that the plaintiff:
(a) had been experiencing symptoms of dizziness since the workplace assault 1993;[33] and
(b) has suffered from vertigo and unsteadiness since his stroke in 2014.
[33] Report of Dr Khan dated 17 July 2011 to Slater & Gordon records that “he suffers from ringing in ears and dizziness. He had symptoms of this earlier when I saw him some years since 1993.” at JCB 56.
47Again, there is insufficient evidence to establish a causative link between the transport accident and the plaintiff’s episodes of dizziness and vertigo.
48The claim that his sleep apnoea is transport accident-related must also be put to one side having regard to the report of Dr Eli Dabscheck, Sleep Disorders and Respiratory Physician, dated 13 August 2019. Comprising the only relevant medical evidence, Dr Dabcheck’s opinion is that the plaintiff’s obstructive sleep apnoea and subsequent need for CPAP machine is not related to or caused by the transport accident.[34]
[34] Report of Dr Dabscheck at JCB 277
The transport accident
49The TAC accepts the plaintiff was involved in a transport accident on 16 March 2010 when the Honda CRV he was driving was hit from behind by a Mitsubishi Express van driven by Mr Mousa.
50Mr Mousa provided a sworn affidavit which went unchallenged.[35] Mr Mousa’s evidence is that the collision was minor, the impact low and the damage to both vehicles minimal. The plaintiff was cross-examined on Mr Mousa’s evidence that the damage to the plaintiff’s vehicle consisted of a scratch or crack to the plastic rear wheel cover.[36] The plaintiff disagreed, however his answer was vague and non-responsive, stating his vehicle was taken to the panel beaters and they (the panel beaters) paid for the damage.[37]
[35] See Mr Mousa’s affidavit at JCB 38
[36] T24, L11
[37] T24, L14-17
51The TAC submits that the plaintiff’s account of the circumstances of the accident is unreliable. The plaintiff claimed that he was ‘in shock; and didn’t speak to the defendant for ‘about half an hour maybe’.[38] It submitted that the plaintiff’s account of being ‘in shock’ for half an hour and otherwise describing the accident as a big stress[39] is highly improbable on the evidence of Mr Mousa, particularly given that no ambulance or police attended the scene, both vehicles were evidently drivable with minimal damage, and the plaintiff’s conduct in the ensuing days of attending Mr Mousa’s residence to ask for money. Further, it submits that the plaintiff was evasive and claimed he could not recall speaking to Mr Mousa nor attending his house in the days after the accident.[40]
[38] T22, L20
[39]See for example the history to Associate Professor Matkovic in his report dated 1 December 2016: JCB106
[40] T23-24
52On the evidence before me, bearing in mind that this is a gateway hearing in relation to the question of serious injury, I make no findings in relation to the circumstances of the transport accident, save that on the evidence before me it appears to have been relatively minor, involving fairly low impact between the vehicles involved. Nevertheless, I am satisfied as set out above that Mr Milutinovic sustained soft tissue injuries in the transport accident; and that because he was suffering from depression and anxiety as a consequence of his assault at work some years prior, the stress of the accident may have been significant to him.
Background
53The plaintiff is now 72 years old, having been born in April 1950 in Serbia. He completed high school, and undertook miscellaneous works prior to emigrating to Australia. He has been married to his third wife, Milomirka Milutinovic since 2001. He has two adult sons to a previous marriage.
54On arrival in Australia in or about 1979, he undertook a course in electrical work at RMIT, and thereafter worked as an electronics repairman, performed process work at Ford and was a maintenance electrician at Ericsson for about nine years.
55Mr Milutinovic has not worked since the 1993 assault,[41] and from 1996 until recently transferring to the age pension, was in receipt of a disability support pension from Centrelink.[42] As a consequence of the incident, Mr Milutinovic suffered very significant ongoing pain, disability and loss of function of his lumbar spine, extending to sleep interruption and the need for regular medication including Panadeine Forte.[43] He suffered from anxiety and depression for which he received treatment from a psychiatrist, Dr Minas; and was traumatised with symptoms of nightmares and flashbacks.[44] As a result of the assault, he was not working at the time of the transport accident.
[41] T25, L16
[42] See report pf Mr Khan dated 29 July 2010, CB 53
[43] JCB 359-360; T40; T42-T43
[44]Report of Dr Nathan Serry, dated 18 September 2013, JCB 135
56On 16 March 2010, Mr Milutinovic was driving along Bell Street in Coburg. His vehicle was stationary at traffic lights at the intersection with Elm Grove, Coburg when his car was hit from behind by a van driven by Mr Maher Mousa. His car was propelled forward. Immediately, he was in a state of shock but composed himself. The onset of neck and shoulder pain was almost immediate, and he developed a headache. The incident occurred at approximately 7:30pm, and on the next day, upon waking in significant discomfort, he attended his general practitioner who prescribed painkillers and referred him for radiological investigation.
57Over the next few months, although his low back pain settled, he continued to be troubled by ongoing stiffness, pain and discomfort in his neck and right shoulder. He initially tried to manage his injuries with rest and painkillers but there was no improvement in his symptoms.
58His general practitioner referred him for x-ray and CT scans which were essentially normal, noting the presence of degenerative change in both his cervical spine and right shoulder.[45] An ultrasound of his shoulder disclosed a possible small partial thickness supraspinatus tendon tear.[46]
[45] JCB 280-281
[46] JCB 281
59In an affidavit sworn 24 October 2019, Mr Milutinovic states that in about August 2010, he was referred to a psychiatrist due to his symptoms of increasing anxiety and depression, and was told he was suffering from Post-traumatic Stress Disorder (“PTSD”).[47] No report from the psychiatrist was available to confirm this diagnosis, or any relationship with the transport accident.
[47] Affidavit of the Plaintiff, paragraph 15
60The plaintiff underwent x‑rays to his low back, neck and right shoulder which did not reveal any fractures, but some disc space narrowing at C6/7 level.
X-ray lumbar spine
“The alignment of the lumbar spine is within normal limits. Sacroiliac joints have normal appearance. There are prominent marginal osteophytes arising from vertebral endplates however disc spaces are well maintained. There is no evidence of anterolisthesis.”
X-ray right shoulder
“No bony or joint abnormality is present and there is no rotator cuff calcification.
…
Normal study”
X-ray cervical spine
“There is mild scoliosis in the cervical spine with convexity towards the left side. There is no evidence of cervical ribs.
There is mild narrowing of the disc space at C6-7 level as well as marginal osteophytes arising from vertebral endplates are noted at C5-6 and C6-7 levels. Elongated soft tissue calcification is noted posteriorly in the neck.”[48]
[48]JCB 281
61Over the next few months, his low back pain settled down, but Mr Milutinovic continued to be troubled by ongoing stiffness, pain and discomfort in his neck and right shoulder. He experienced episodes of dizziness and vertigo. He initially tried to manage his injuries with rest and painkillers but there was no improvement.
62He was referred to orthopaedic specialist, Mr Michael Khan, who recommended further radiological investigations. He was also referred to a psychiatrist, Dr Wijesinghe, due to his increasing symptoms of anxiety and depression. He saw Dr Wijesinghe three or four times, and was told he was suffering from PTSD.
63I interpolate here to note that there were no reports available from the plaintiff’s previous treating psychiatrists, Dr Minas, or Dr Wijesinghe.
64On 10 September 2010, Mr Milutinovic underwent ultrasound investigation of his right shoulder and CT scan of his right shoulder and neck. These scans showed a partial supraspinatus tendon tear, and chronic tendinopathy of his right shoulder. There was multilevel degenerative disc disease identified in the scan of his neck.
CT scan of extremity
Ultrasound right shoulder
“… Biceps effusion. Subscapularis and supraspinatus chronic tendinopathy. Possible small partial thickness supraspinatus tendon tear.”
CT scan cervical spine
“… No bony fracture. Upper cervical degenerative facet disease. Multilevel degenerative disc disease. Mild central canal stenosis at C7IT1 disc level. Multilevel bilateral foramina! stenosis particularly involving the left C3/C4, left C6/C7 exit foraminae.”
CT scan right shoulder
“… Early degenerative change acromioclavicular joint. No bony fracture.”[49]
[49]JCB 282
Nerve conduction study
“… There is electrophysiological evidence of a median neuropathy at the right wrist. There is no evidence of an ulnar neuropathy on the right. EMG studies are normal. There is no evidence of a radiculopathy affecting the right cervical roots.”[50]
[50]JCB 284
65Mr Milutinovic returned to see Mr Khan in November 2010, as he was concerned with developing symptoms of pins and needles, tingling and numbness into the fingers of his right hand. Mr Khan told the plaintiff he did not require surgical intervention, and instead recommended that he continue with conservative treatment.
66Throughout this period, the plaintiff experienced ongoing neck and shoulder pain, with vertigo and dizziness. He gave evidence that all of this weighed on his mind, and he developed insomnia, finding sleep difficult also due to his pain. He was prescribed Valium for sleep, and Stemetil to help with the dizziness.
67There were no other significant findings on radiological investigation, save for CT scan of the cervical spine in 2016 and MRI scan in 2021 of the cervical spine confirming advance multilevel degenerative changes; and mild central disc bulges in the mid to lower cervical spine without canal narrowing; foraminal narrowing at a number of levels.[51]
[51]JCB 285, 286 and 288
68The plaintiff’s evidence as to his ongoing symptoms is as follows:
“16.Over the next couple of years I battled on as best I could but there was very little change in my symptoms. My neck and right shoulder caused considerable interference with my daily activities and I could not return to my pre‑injury hobbies of fishing, gardening and swimming. My mood also continued to fluctuate considerably and I became quite depressed, irritable and down.
17.Eventually, in early 2013 I was referred to the North Western Mental Health Service due to an escalation in my depression and anxiety. I saw the CATT team there and I began taking antidepressant and antipsychotic medication.”[52]
[52]JCB 24
69In terms of the disposition of this application, the attendance on the CATT Team at North Western Area Mental Health Service (“NWAMHS”) was significant, because it records for the first time a history of delusional symptoms relating to the presence of insects in Mr Milutinovic’s body, nose and throat, causing him to become irritable and experience poor sleep.
70The history was recorded by a Dr Elizabeth Rose at the Eye and Ear Hospital in East Melbourne, as follows:
·“He reports tactile delusions that insects are going into his nose and throat and down to his stomach causing constipation.
·Rusko is becoming irritable due to these delusions and is experiencing poor sleep.
·He has been experiencing these Sx [symptoms] for approximately 6/12.”[53]
[53] JCB 290
71Mr Milutinovic then presented at NWAMHS, where his symptoms are recorded as follows:
8 February 2013 – “Rusko reports a one year deterioration in MS [mental status] characterised by delusions that he has insects crawling out his body causing him to be itchy and anxious. He believes these insects are having an impact on his physical health and that they are in his lungs and may cause him to stop breathing. He believes these insects got into his body following a MVA three years ago.
Rusko has started washing his hair twice a day to try and stop these ‘insects’ and has very hot showers in an attempt to stop them from breeding. He has also tried eating very spicy and hot foods to try and get them out of his stomach. Rusko also expressed suicidal ideation with plan but no current intent.”[54]
[54] Ibid
72In June 2013, Mr Milutinovic was referred to Associate Professor Matkovic for pain symptoms in the right shoulder and neck. He told Associate Professor Matkovic that:
“The insects came after the stress of the accident”, and that “a noise like bees is present in his head. … He feels there are insects including mosquitoes in his nose and under the skin are laying eggs. They do travel under the skin to other sites. The insects travel through the middle ear and are causing infections. …. He wants to see a doctor or find the nest of the insects to eliminate them. … He sweats a lot and has to wipe his hands on a towel when driving. His skin is oily. He thinks that insects are responsible. … He said, “I shit like an animal in many small pieces” once per week and is not able to do so more often.”[55]
[55] JCB 89
73Associate Professor Matkovic concluded that Mr Milutinovic had somatic delusions due to a psychosis, and that neurological investigation was not necessary or appropriate (following examination including observations which detected restricted movement of the right shoulder, but other findings were normal).[56]
[56] JCB 90
74The plaintiff commenced seeing a psychologist, Mona Shafiq, in or around October 2020, and takes medication including Latuda and Desvenlafaxine for his psychiatric condition.
75In January 2021, the plaintiff attended Dr Hazem Akil, neurosurgeon, for his neck pain. He was referred for a MRI, and upon review with Dr Akil, was informed that pain management rather surgery was indicated.[57]
[57]JCB 31, Plaintiff’s affidavit sworn 20 May 2021 at paragraph 15
Aetiology of the plaintiff’s delusional disorder
76The TAC conceded that Mr Milutinovic suffers from a delusional disorder,[58] however disputed that it was caused by the motor vehicle accident.
[58]Transcript of hearing (“T”) 4, Line/s (“L”) 4
77The aetiology of the plaintiff’s delusional disorder has been considered in detail by two consultant psychiatrists: Dr Nathan Serry on behalf of the plaintiff; and Dr Timothy Entwistle at the request of the TAC. Various treating doctors have also commented on the aetiology of the delusional disorder: Dr Nalaka Kolamunna (psychiatric registrar), Associate Professor Zlatko Matkovic (neurologist), Dr Habib (general practitioner), Dr Mukund Rao (psychiatrist), Dr David Muirhead (psychiatrist) and Dr Shreedhar Gowda (psychiatrist).
Dr Nathan Serry, consultant psychiatrist
78Dr Serry examined the plaintiff on behalf of the plaintiff’s solicitors on 6 occasions and produced 8 medico-legal reports between 2010 and 2021.[59]
[59] Report dated 5 November 2010 at JCB 124; report dated 18 September 2013 at JCB 131; supplementary report dated 19 September 2013 at JCB 141; report dated 9 September 2014 at JCB 143; report dated 26 February 2018 at JCB 153; supplementary report dated 10 May 2016 at JCB 163; report dated 21 July 2020 at JCB 164; report dated 5 May 2021 at JCB 175.
79In Dr Serry’s initial report dated 5 November 2010, he diagnosed the plaintiff with a PTSD, identifying symptoms consistent with a generalised anxiety disorder with secondary depression, which he opined were probably subsumed under the PTSD.[60] He opined that the PTSD was a result of the subject accident, noting that the plaintiff has suffered a “quite marked psychiatric reaction to the subject accident.”[61] In this report Dr Serry assessed the plaintiff as having a whole person impairment of 25 per cent, with 5 per cent pre‑existing, 10 per cent direct post-traumatic anxiety, and 10 per cent secondary component being a reaction to the physical injuries sustained in the subject accident and the associated pain and limitations, with a guarded prognosis.
[60] JCB 128
[61] JCB 129
80It is notable that in this report Dr Serry records Mr Milutinovic describing, prior to the diagnosis of delusional disorder, what appeared to be a tinnitus-like sensation with some reduction in hearing, and that he constantly had the sound of bees inside his head.[62]
[62]JCB 125
81Upon review of the plaintiff on 18 September 2013, Dr Serry noted that Mr Milutinovic had deteriorated and was now reporting the presence of insects inside his body since an episode of the flu. Dr Serry noted:
“He stated that ever since that episode of the flu, these insects have been present inside of his body and move around, under his skin, going up to his nose and eyes and inside his head.”[63]
[63] JCB 133
82Noting his previous diagnosis, Dr Serry recorded that in the context of a further deterioration in presentation, Mr Milutinovic now presented with a delusional disorder and a major depression with anxious features including features of traumatisation. Dr Serry also recorded a possible diagnosis of chronic pain disorder “associated with psychological factors and a general medical condition”.
83On 26 February 2018, following a further examination, Dr Serry’s diagnosis was as follows:
“3.8 Diagnosis
Your client does appear to have had pre-existing anxiety, depression and traumatisation symptomatology after a 1993 assault and in the context of quite significant difficulties with the Family Court.
In terms of the psychotic illness arising from the subject accident, your client in my opinion presents with a delusional disorder with comorbid depression along with anxious features including features of traumatisation.
He also seems to have a separate somatic symptom disorder with predominant pain, persistent and of moderate severity, this relating to your client’s headaches, neck pain and right shoulder pain. Whilst it is unusual to have a persisting delusional disorder and somatic disorder, I do in this case see the two conditions as separate. The somatic symptom disorder arising from the initial soft tissue injuries and the delusional disorder arising in association with the distress your client experienced post-accident and to some extent given pre-existing vulnerability.”[64]
[64]JCB 158
84In his report of 21 July 2020, Dr Serry stated that it remains his opinion that the transport accident which occurred on 16 March 2010 was a significant contributing factor to the claimant’s psychiatric injury and impairment.[65]
[65] Report at JCB 164
85In 2021 his diagnosis is as follows:
· delusional disorder with comorbid depression, with anxious features and with features of traumatisation;
· somatic symptom disorder with predominant pain, persistent and of moderate severity;
both of which accident related.[66]
[66] Report at JCB 175
86As at the date of his most recent report dated 5 May 2021, Dr Serry recorded Mr Milutinovic taking the following medications:[67]
·Panadeine Forte
·Nexium
·Temazepam 10 mg nocte
·Alepam
·Latuda 80 mg b (atypical antipsychotic)
·Pristiq 100 mg per day
·Naproxen
·Aspirin.
[67]JCB 176 and 177
87I accept that as expressed by Dr Serry, a feature of Mr Milutinovic’s psychiatric condition is that he attributes any difficulties he is presently experiencing to his motor vehicle accident. I am cautious about Mr Milutinovic’s subjective account of his pain, and place no weight on his subjective views relevant to causation.
88The opinion of Dr Serry is the high point of the objective evidence in relation to the connection between the transport accident and his undoubtedly severe delusional disorder.
Dr Timothy Entwisle, consultant psychiatrist
89Dr Timothy Entwisle examined the plaintiff on behalf of the defendant’s solicitors on 3 occasions and produced 6 medico-legal reports between 2012 and 2021.[68]
[68]Reports dated 14 June 2012; 18 January 2016; 22 January 2016; 12 November 2018; 11 May 2021; and 4 June 2021.
90In his initial report dated 14 June 2010, Dr Entwisle diagnoses Mr Milutinovic with an adjustment disorder with features of an adjustment disorder with depressed and anxious mood. Mr Milutinovic denied having any psychiatric history. He reported to Dr Entwisle that he was very distressed following the breakdown of his marriage to his previous wife and estrangement to his children. However, he did not disclose receiving any formal psychiatric treatment.
91In his second report dated 18 January 2016, Dr Entwisle modified his diagnosis in light of the plaintiff’s deterioration to delusional disorder (somatic type). Mr Milutinovic described a belief that his body is infested with microbes which could not be seen with the naked eye. He reported this infestation occurring in his lung and that these microbes would crawl up his windpipe, out of his nose, and infect his eyes. He also reported noticing other members of the public being infested by these microbes. With regards to causation, Dr Entwistle opined:
“… the apparent onset of the illness roughly coincided with the road traffic but also with renewed contact with his sons and it was likely that he was distressed at finding out about their drug-related problems which acted as a stressor as well in the development of his illness. It was also considered possible that the road traffic accident acted as a general stressor; however it was hard to see a direct aetiological role and it was not the only factor contributing to his ongoing illness and symptoms.”[69]
[69] JCB 234
92Upon considering relevant clinical records from NWAMHS, and the progress notes of Dr Habib, ultimately Dr Entwisle expressed the opinion that Mr Milutinovic’s current psychiatric condition is not related to the transport accident and is explained by non-accident pre-existing factors.[70]
[70] JCB 224, 235, 237
Dr M Habib, general practitioner
93Mr Milutinovic has consulted Dr Habib since 1986. Dr Habib first records the plaintiff’s mention of insects a report dated 19 December 2013.[71] Dr Habib accepts the plaintiff’s reports of psychological symptoms, but was not able to diagnose the plaintiff:
“The last issue is the stress and emotional trauma this accident has left on him. He is unable to sleep, gets up with pain and the movement of insects. there is no doubt that this man has problems which we are unable to understand.”[72]
[71] JCB 74
[72] JCB 75
94Dr Habib later diagnoses severe psychosis and somatic delusions, noting that the plaintiff has become obsessed with the idea that he will not get better. Dr Habib comments that “he comes to see me many times, and I'm afraid I cannot do much to help him.”[73]
[73] JCB 79
95In relation to the insects and pain and burning feeling in the brain, Dr Habib says, “There is no doubt in my mind that I am unable to clinically assess his problem properly to come to a rightful diagnosis.[i] He could not find any medical condition to explain the problem of the insects.[ii]
Dr Nalka Kolamunna
96Dr Kolamunna, a psychiatric registrar at NWAMHS, provided a report to Dr Habib dated 27 February 2013.[74] The plaintiff described to Dr Kolamunna a two year history of insects infecting his body. Dr Kolamunna diagnosed depression with psychotic features with a differential of delusional disorder, somatic type with secondary depression. Dr Kolamunna observed that “his depressive symptoms may have precipitated following incapacitation due to MVA”.[75] He also noted various increased vulnerabilities to mental illness, including a biological vulnerability for depression given the white matter pathology according to CT brain likely due to microvascular origin; and hearing impairment which can predispose to late onset psychotic disorder. Dr Kolamunna also commented that he has anxious and dependent style personality with somatic attribution contributing to maintenance of sick role and illness behaviour.[76]
[74] JCB 85
[75] Ibid
[76]Ibid
Associate Professor Zlatko Matkovic
97Dr Habib referred the plaintiff to a neurologist, Associate Professor Matkovic, who assessed the plaintiff in June 2013. His report dated 15 June 2013 records the following history:
“He feels there are insects including mosquitos in his nose and under the skin are laying eggs. They do travel under the skin to other sites. The insects travel through the middle ear and are causing infections. Surgery was done on the right ear three times 15 years ago for infections. …He wants to find a doctor who will find the nest of insects to eliminate them.”
His belief is that the insects have also travelled to the lungs and have caused him trouble with breathing. He also feels that they are responsible for the pain in the heart.
He sweats a lot and has to wipe his hands on a towel when driving. His skin is oily. He thinks that insects are responsible.
He wanted medicine to make the insects come out or be killed . If he does not find such treatment in Australia, he will go overseas. He has discussed this topic with Centrelink to find out if they would fund such a trip.”
98Associate Professor Matkovic concluded the plaintiff “has somatic delusions … due to a psychosis” and that “neurological investigation is not necessary nor appropriate.” He recommended anti-psychotic medications and further management from a psychiatrist.[77]
[77] JCB 89
Dr Shreedhar Gowda
99Dr Shreedhar Gowda, a psychiatrist, treated the plaintiff at the NWAMHS from 2013 onwards. In a report dated 29 April 2014,[78] Dr Gowda records that the plaintiff presented with a three-and-a-half-year history of somatic delusions of having micro insects in his body. Dr Gowda diagnosed a psychotic illness, most probably Schizophrenia with a differential diagnosis of delusional disorder and comorbid depression. The plaintiff told Dr Gowda that he had a motor vehicle accident prior to the onset of his symptoms. Dr Gowda was of the view that Mr Milutinovic developed depression secondary to the somatic hallucinations of having micro insects in his body and his delusional belief of those insects affecting his body organs. Although recording a history of injury in a motor vehicle accident, he noted that the plaintiff’s symptoms of chronic pain in his neck and shoulder are due to his psychosis. Dr Gowda did not otherwise provide any opinion on causation.
[78]JCB 95: Report to Slater & Gordon Lawyers
Dr David Muirhead
100Dr David Muirhead, psychiatrist, also treated the plaintiff at NWAMHS. In a report to the plaintiff’s solicitors dated 3 November 2016, Dr Muirhead records that Mr Milutinovic was “troubled by multiple symptoms that he attributes to his neck injury” and that “he believes the insects have infested him due to stress caused by the car accident”.
101Dr Muirhead’s mental state examination included the following: “believes that his problems are due to Motor Vehicle Accident (MVA) and subsequent stress. Unable to reality test against his delusional beliefs.” [79] Dr Muirhead diagnosed the plaintiff as suffering from Delusional Disorder with secondary depression and somatisation. He noted the plaintiff “presents with chronic pre-occupation with multiple somatic symptoms that he attributes to MVA and wants to pursue compensation for this”.
[79] JCB 101
102Dr Muirhead provided the following opinion on the issue of causation:
“The apparent onset of his illness coincides with his MVA but also with renewed contact with his sons and it is likely that his distress at finding out about their abuse and drug problems acted as a significant stressor in the development of his illness. It is possible that the MVA also acted as a general stressor and may have contributed to the development or exacerbation of his mental health problems but it is hard to see a direct aetiological role and it is clearly not the only factor contributing to his ongoing illness and symptoms.
It should be noted that due to the nature of his mental illness his understanding about the aetiology of the suffering he experiences is not based on reality …”.
103Dr Muirhead reiterated this opinion in his later report dated 31 May 2018: “It should be noted that due to the nature of his mental illness his understanding about the aetiology of the suffering he experiences is not based on reality…”
Dr Mukund Rao
104The plaintiff was treated by a third psychiatrist at NWAMHS, Dr Mukund Rao. Dr Rao provided a report dated 18 March 2020[80] in which he recorded the following history:
“ruminates about the fact that he is not in regular contact with his children, and that they often tried to ask him to get back together with his ex-wife (their mother). He reports that his sons use drugs and re reports to be quite concerned by this……[he] also reports of feeling extremely preoccupied by his case with TAC”.
[80] JCB 114
105Dr Rao noted the plaintiff expressed “chronic delusions of being infested with micro insects”, and made a diagnosis of delusional disorder with secondary depression and multiple somatic symptoms.
106With respect to the relationship between this diagnosis and the transport accident, Dr Rao opined that “it is very difficult to pinpoint a direct aetiological correlation between the onset of his accident and the development of his delusional symptoms.”[81]
[81] JCB 117
107In a further report dated 18 March 2020, Dr Rao provided the following opinion on causation:
“It is very difficult to pinpoint a direct aetiological correlation between the onset of his accident and the development of his delusional symptoms. There has been a clear correlation between the onset of the accident, and depressive symptoms and the rumination secondary to the same.”[82]
[82]Ibid
Ms Mona S Shafiq
108Treating psychologist, Ms Mona S Shafiq, expresses a general opinion that Mr Milutinovic received psychological injuries from the transport accident which greatly impacted his wellbeing and emotional health. That view appears to relate to severe depression with feelings of hopelessness, a personality disorder,[83] and post-traumatic stress. Her report does not identify the development of any delusional or psychotic symptoms. It is not clear how many times she saw Mr Milutinovic over the period from October 2020 to April 2021 on a mental health treatment plan.[84]
[83]JCB 119
[84]Ibid
Neck and right shoulder
109In relation to the neck and shoulder injuries, the plaintiff had significant pain and disability prior to the transport accident, as a consequence of the assault by his wife’s former husband in 1993. Whilst there have been additional symptoms, I am unable to rely upon Mr Milutinovic’s account of his difficulties due to his delusional disorder and other features of his psychiatric condition which make it difficult to distinguish any aggravation to his previous condition, or the extent of the difficulties he now faces as a result of the transport accident.
110In relation to his right shoulder, the objective evidence shows that there was an apparent initial aggravation to underlying degenerative change, including a tear to the supraspinatus tendon, with symptoms of pain and discomfort.
111Mr Milutinovic’s uncontested evidence was that he does not fish anymore, an activity he previously enjoyed with his wife.[85] His oral evidence included that he cannot hold his fishing rod in his right hand.[86]
[85] JCB 35
[86] T12, L21-25
112The objective evidence of treatment notes and reports disclosed that in over twelve years since the transport accident, the plaintiff has had little if any specific treatment for his right shoulder or neck condition subsequent to the initial radiological scans undertaken in 2010.
113In addition to the referral to Mr Khan, there were several referrals to a neurologist, Associate Professor Matkovic, in June 2013,[87] December 2016[88] and September 2017.[89] Associate Professor Matkovic did not find any neurological problems and noted in his most recent report of 21 September 2017: “many of his symptoms are likely to relate to his psychiatric condition”.[90]
[87] JCB 89
[88] JCB 109
[89] JCB 112
[90] JCB 113
114Consistent with the views of the treating neurologist, Mr Michael Dooley (who assessed the plaintiff in 2016 and again, most recently, in April 2021)[91] opined that whilst the plaintiff may have suffered soft tissue injuries in the transport accident, at the present time psychological factors significantly influence his ongoing symptoms and dominate his clinical presentation.
[91] See report dated 9 May 2016 at JCB 26 and report dated 28 April 2021 at JCB 384
115Whilst significant, overall I do not consider that his neck and/or shoulder injuries satisfy the narrative test. In reaching this conclusion, I rely on the opinion of his treating doctors, including Associate Professor Matkovic that neurological investigation was not necessary or appropriate for his injuries; and Mr Khan’s opinion that “the condition of his neck and upper limbs are essentially due to degenerative changes”.[92] Given the extent and weight of the evidence available from Mr Milutinovic's treating doctors, including his neurologist who is of the opinion that his chronic pain is as a result of psychosis but not any organic injury, I place little weight on the opinions of orthopaedic surgeon Mr Stephen Doig who examined and reported on the plaintiff on a number of occasions,[93] and found more significant accident-related symptoms than other doctors were prepared to allow based on Mr Milutinovic’s subjective reports of pain and disability. Mr Doig's opinions are otherwise consistent with my findings of soft tissue injury to the right shoulder and a soft tissue injury to the cervical spine.[94]
[92] JCB 55
[93] 2 June 2011, 9 September 2014, 12 July 2018, 22 April 2021 and 17 May 2021
[94] Report dated 17 May 2021, JCB 204
116Further, I do not consider any aggravation to or exacerbation of his pre-existing degenerative disease to have been sufficiently disentangled by Mr Doig so as to identify particular consequences to Mr Milutinovic which satisfy the narrative test.
The right wrist
117Mr Milutinovic developed pain and swelling in his right hand and wrist in or around August 2020, and had surgery to the right wrist on 2 October 2020 to treat a large ganglion in the flexor compartment of his forearm compressing his median nerve (right carpal tunnel release surgery). Although he still has some pain in the hand and some numbness, particularly in the middle finger, that has improved since the surgery.[95]
[95]See the plaintiff’s history to Mr Stephen Doig at JCB 201
118In his report dated 17 May 2021, Mr Stephen Doig, after considering a history of the right wrist and surgery, was of the view that it was “not relevant to” his assessment of transport accident-related injuries.
119I accept that Mr Milutinovic has had symptoms in his right wrist since the motor vehicle accident, for which he was referred for nerve conduction study on 13 October 2010 at the request of Mr Khan.[96] That study identified median neuropathy at the right wrist.
[96]JCB 284
120There was no initial complaint of injury to the wrist in Mr Milutinovic’s claim for compensation summary dated 7 July 2010, which listed injuries as shoulder pain, neck pain and headache.[97] In his affidavit in support of his application, Mr Milutinovic swore that by the time he underwent nerve conduction study, he had developed pins and needles, tingling and numbness into the fingers of his right hand, and it was for this reason he returned to see Mr Khan for further review on 11 November 2010. Mr Khan informed him that he did not require any surgical intervention, and instead recommended he continue with conservative treatment.[98]
[97]JCB 9
[98]JCB 23, Affidavit of the plaintiff, paragraph 13
121Mr Khan’s report of 17 November 2010 records the symptoms of swelling over the carpo-metacarpal joint of the thumb on the right hand.
122In a later report to Mr Milutinovic’s solicitors dated 17 July 2011, his opinion was as follows:
“Mr Milutinovic had been involved in a motor vehicle accident in which he had sustained injuries to his neck and injuries to the right shoulder and arm and had flared up the pre-existing condition of his lumbar spine with aggravation of pain in his lower back and stiffness in his lumbar spine. As a result of these injuries he has flared up the C5-6, C6-7 and C7/T1 disc degenerative disease with spondylitic changes pre-existent to the accident. He had a minor stenosis of the nerve root canals on the right side at C3-4 and bilateral at C3-4 and C5-6 levels, and again on the right side at C6-7 and bilaterally at C7/T10 levels.
He has flared up degenerative arthritis in the acromioclavicular joint of the right shoulder and had signs of chronic rotator cuff tendinopathy in the right shoulder. He had been found to have symptoms from carpal tunnel syndrome in the right wrist which has become symptomatic since the accident on 16 March 2010 and has been precipitated by the above accident.”[99]
[99] JCB 60
123Mr Michael Dooley’s opinion is that symptoms in relation to carpal tunnel syndrome are separate from the motor vehicle accident,[100] but it is unclear as to whether or not Mr Dooley had the benefit of previous investigations. It seems likely that he did not on the face of his report.
[100]JCB 387
124I find that his residual symptoms since surgery of some numbness and weakness, and difficulty holding a pen, do not support a finding of a 'serious long-term impairment or loss of a body function', particularly when judged by comparison with other cases in the range of possible impairments or losses.
Bilateral ear conditions
125Mr Milutinovic wears hearing aids, and has been almost deaf without them for a period of four years due to recurrent infections in the middle ear.
126There is no evidence that his condition of cholesteatoma of the right ear is accident related, it being a cyst, typically occurring as a result of chronic ear infection, and in the context of multiple operations on the right ear in the past. Mr Milutinovic saw Richard Kennedy in April 2013 and gave a history that the left ear had become a problem due to pain. Mr Kennedy identified sensorineural hearing loss (age related) and possible cholesteatoma.[101] He gave various histories to other doctors of surgery on his right ear for infections prior to the motor vehicle accident. There is no evidence that the motor vehicle accident, nor indeed the insects, have caused infection to his middle ear or deterioration in hearing.
[101]JCB 87
127I find that his left ear condition is unrelated to the transport accident.
128His sinuses were investigated by CT scan in March 2016, which was suggestive of prior bilateral mastoidectomy, and a condition of mild degenerative change at the temporomandibular joints. It was otherwise normal with only minor mucosal thickening in the sinuses.[102] There was also a history of attempts to eradicate his insect infestation through plugging his nostrils, washing the nostrils with warm water and spraying insecticide.[103] He was given advice at the time that his balance problem was related to his left ear problem.[104]
[102]JCB 286
[103]JCB 296, history to Northern Health 11 October 2013
[104]Ibid
129I accept the opinion of treating otolaryngologist, Mr Robert Webb, who examined the plaintiff at the request of his solicitors in May 2013, that there was no head injury in the transport accident and no direct injury to his ears, and that Mr Milutinovic has an extensive history of middle ear disease which is not related to the accident.[105]
[105]JCB 206
130I also take into account the report of Dr Avdo Zahirovic, ear, nose and throat surgeon, dated 8 November 2010. On examination, Dr Zahirovic recorded normal results in respect of the left ear, and a history of mastoidectomy in respect of the right ear. Audiology results were variable and inconsistent, and Dr Zahirovic was unable to form any conclusion from the audiogram conducted on that day. [106]His assessment was that Mr Milutinovic’s main problem was that of an anxiety disorder, and that he did not need any special investigation from an ENT point of view. Dr Zahirovic reassured Mr Milutinovic that his ears were as healthy as they can be.
[106]JCB 68
Conclusion
131I accept the overwhelming opinion of the plaintiff’s treating doctors that, despite a general temporal association, there is no distinct aetiological connection between the transport accident and the onset of the plaintiff’s delusional symptoms.
132With respect to the medico-legal opinions, I find that despite both Dr Serry and Mr Entwisle assessing Mr Milutinovic both prior to and after the onset of these symptoms, neither is persuasive. Whilst supportive to the plaintiff’s claim, Dr Serry’s opinions do not disclose any sufficient path of reasoning as to the aetiological link between the accident and Mr Milutinovic’s tragic condition. His opinion is that the delusional disorder arose “in association with the distress experienced post-accident and to some extent given pre-existing vulnerability.” I accept the TAC’s submission that this explanation is less than satisfactory. Dr Serry does not address the influence of pre-existing and/or unrelated factors on the plaintiff’s presentation, or otherwise grapple with the question of causation sufficiently. Any reliance upon the trauma of the transport accident itself is also problematic given my findings above that it was a relatively minor collision, and the absence of objective evidence or of histories provided to doctors of any symptoms of trauma following it.
133Likewise, I find Mr Entwisle’s definitive opinion that Mr Milutinovic’s severe delusional disorder is completely unrelated to the transport accident difficult to accept.
134In the circumstances, I find that none of the physical or psychiatric injuries alleged by Mr Milutinovic satisfy the test of serious injury in s93 of the Act.
135The plaintiff’s application is dismissed. I will hear the parties with respect to costs.
“[82] …As s93 of the Act requires, and this Court has made plain in Petkovski, Skorsis, Filipowicz and De Agostino, the task of a judge hearing an application under s93(4)(d) of the Act requires the judge to identify an injury that occurred as a result of the transport accident in question and then to determine whether that injury is serious in the defined sense.”
“[86] …Section 93 of the Act does not permit one to look at whatever minor contribution may have been made to a condition by a particular transport accident, then ask if the total condition is serious and then determine that the injury suffered in the transport accident is itself serious because it is a cause of the total condition.”
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