Oshana v Transport Accident Commission
[2021] VCC 1022
•29 July 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-18-03361
| ARMANDO OSHANA | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 and 10 June 2021 | |
DATE OF JUDGMENT: | 29 July 2021 | |
CASE MAY BE CITED AS: | Oshana v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1022 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – spinal impairment – psychiatric impairment – somatoform disorder
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Humphries & Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Turner v Love & Transport Accident Commission (1995) 21 MVR 314; Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Jayatilake v Toyota Motor Corporation Australia Ltd (2008) 20 VR 605; Forssell v CIP Constructions (Australia) Pty Ltd [2020] VSCA 304; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr G Coldwell with Mr D J O’Brien | Arnold Thomas and Becker |
| For the Defendant | Mr P D Elliott QC with Ms D Manova | Lander and Rogers |
HER HONOUR:
1This is an application brought by Originating Motion by which the plaintiff applies for leave pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) to bring proceedings to recover damages for injuries suffered by him arising out of a transport accident which occurred on 15 August 2014 (“the accident”)
2Section 93(6) of the Act provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3The definition of “serious injury” ultimately relied upon by the plaintiff was pursuant to s93(17)(c) – “severe long-term mental or severe long-term behavioural disturbance or disorder”.
4At the conclusion of the evidence, counsel for the plaintiff withdrew the subparagraph (a) application in relation to a spinal and shoulder impairment.[1]
[1] Transcript (“T”) 70
5In forming a judgment as to whether the consequences of an injury are “serious”, “the question to be asked is: can the injury, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described as at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[2]
[2]Humphries & Anor v Poljak [1992] 2 VR 129 at 140-1
6The Court of Appeal in Mobilio v Balliotis[3] resolved the meaning of “severe”. Brooking JA held, having referred to the considerations mentioned in Turner v Love & Transport Accident Commission,[4] that they were not sufficient to warrant departing from the conclusion at which one would prima facie arrive, namely that the change in language from “serious” or “severe” betokens a change in meaning. Without suggesting the use of any particular adjective to mark the distinction, his Honour said that “severe” was used in the definition as a stronger word than “serious”.[5]
[3] [1998] 3 VR 833 (“Mobilio”)
[4] (1995) 21 MVR 314
[5]Mobilio (ibid) at paragraph [846]
7Winneke P, in Mobilio,[6] agreed with Brooking JA’s reasons and further agreed with him that the word “severe”, where used in sub-paragraph (c) of ss(17) of the Act, was a word of stronger force than the word “serious” where used in the Act.[7]
[6] Mobilio (ibid) at paragraph [833]
[7]Mobilio (ibid) per Phillips JA at paragraph [858] and Charles JA at paragraphs [860-1]
8A chronic pain syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a chronic pain disorder which meets the severe criteria of a claim under definition (c).[8]
[8]Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227 per Ashley J
9The plaintiff relied on a signed statement dated 15 May 2017 and also swore three affidavits. He was cross examined. Further, he relied on affidavits sworn by his brother, Ameir, and his mother, Markaneta, on 2 January 2021. Both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material.
The Plaintiff’s evidence
10The plaintiff is presently aged forty-five, having been born in January 1976 in Iraq. He only did about five years of school and then worked building scaffolds.
11The plaintiff came to Australia in 2003 as a refugee with his parents and his brother. He is unable to read and write and speaks very limited English. He required an interpreter during the hearing.
12His first job in Australia was working at a biscuit factory in Campbellfield as a mixer.[9] He worked there for two or three years until about 2005. He then did causal floorboarding work for a friend. It was not full-time work, and the friend would just call him when he needed him, about three days a week.[10]
[9]T16
[10]T17
13The plaintiff did this floorboarding work until he became his mother’s carer.[11] He was told by a friend that the work stopped.[12]
[11]Carer’s pension commenced in May 2008; T97
[12]T13
14Initially, the plaintiff needed to care for his mother because she was having a knee operation.[13] She also has hypertension, cholesterol, and “a bit of dementia”.[14]
[13]T27
[14]T28
15The plaintiff was about thirty when he became his mother’s carer. This was about ten years before the accident.[15] The carer’s pension was organised through the plaintiff’s general practitioner, Dr Bahnasawi. There are no ongoing certificates required for receipt of this pension.[16]
[15]T27
[16]T64
16Before the accident, the plaintiff cared for his mother on a full-time basis.[17] He used to help her do the cooking but she mainly did it. He did the cleaning. They had a gardener. He put all the clothes in the washing machine. He mowed the lawn and did the dishes.[18]
[17]May 2017 statement
[18]T23
17The plaintiff was asked about the Dorset Rehabilitation Centre (“Dorset”) Team Assessment carried out in August 2019, which included a chart setting out the extent of his pre and post-accident domestic activities. The chart largely described his mother completing a range of household duties before and after the accident. The plaintiff could not remember saying what is detailed on parts of the chart. He did help his mother with the dishes pre accident.[19] While the chart set out that pre accident, his mother did the laundry, he used to assist her as well. He did not remember his mother doing the cleaning pre accident. He did not say she did the gardening or home maintenance before the accident. He had not said things on the chart; it was wrong.[20] It was not just a case of him not remembering.[21]
[19]T25
[20]T26
[21]T27
Post-accident
18The plaintiff struggled to cook and clean, and could no longer help his mother like he used to. His brother helped most of the time with the shopping and heavy lifting and his cousins, who lived nearby, also helped from time to time. These were the plaintiff’s responsibilities before the accident.[22]
[22]May 2017 statement
19The plaintiff was unable to properly care for his mother as his spinal pain and restrictions prevented him from being able to do any type of repetitive tasks or do any heavy lifting. He and his mother now relied on his brother and extended family to assist. This situation was humiliating, as he was proud of the commitment he had made to care for his mother.[23]
[23]October 2018 affidavit
20Currently, the plaintiff is unable to live independently. He relies on his mother, although he tries to contribute as much as he can as she is elderly and struggles. His brother helps with the shopping and cares for their mother, which is humiliating, as the plaintiff should be able to assist her and he feels like he is a burden to his family.[24]
[24]April 2021 affidavit
21The plaintiff is not doing things to care for his mother but he looks after her medication. He takes her to the doctors’ appointments. They go by taxi because he does not drive. They probably go every month when she requires medication.[25] She is affected by dementia and does forget things now. She would forget to take her medication if he did not remind her. She would not be able to manage her medical appointments without his help.[26]
[25]T31
[26]T63
22During the day, the plaintiff lies down on his bed and also sits and watches television, sometimes with his mother. She does the cooking. He gets help from his sister-in-law and brother with other jobs around the house. It is like his mother, brother and sister-in-law are his carer.[27] He is doing absolutely nothing at home, except watching television or lying in bed and sitting. He gets pain actually in his neck and the disc is hurting him.[28]
[27]T41
[28]T55
23He is not doing the dishes now, his sister-in-law and his brother come over and help him. He cannot pick up a dish and wash it because of the pain. “I’ve got a back pain, I’ve got neck, I’ve got my legs hurting me as well.” That stops him picking up a dish and washing it.[29]
[29]T29
24The plaintiff has not done any home maintenance since the accident, and he does not do the laundry or put clothes in the machine. He does not do anything.[30]
[30]T29
25Being his mother’s carer was a temporary situation. He had always planned to return to work and make a contribution to Australia, but that had now been lost. He had been told that the Carer’s Pension is a similar amount to what he would be receiving if he claimed other entitlements. He and his mother were frightened to change this arrangement as any interruption to their income may result in them losing their home and not being able to pay their bills.[31]
[31]October 2018 affidavit
26In cross-examination, the plaintiff initially said it if he went onto another “payment” it would not have actually “been enough for us to survive … Yes, well won’t be enough actually if I changed to another payment … if I changed to another payment … won’t be enough for me.” He then said he did not understand the question. It was his understanding he would get the same amount on the Carer’s Pension as he would on another pension.[32] He receives $900 a fortnight.[33] In the 2019-2020 financial year, his income from the pension was $26,917.
[32]T35
[33]T36
27Pre accident, the plaintiff enjoyed playing soccer and socialising with his friends. He trained for about an hour, two to three times a week, played a match on the weekend and played indoor soccer. He also regularly caught up with friends at bars or cafés.[34] This was an important activity for him, especially after he started caring for his mother full time, as it gave him a chance to leave the house and socialise with men his own age.[35]
[34]T21
[35]2018 affidavit
28The plaintiff could not remember suffering any spinal or shoulder problems prior to the accident and believed he was in good mental health.
The accident
29The plaintiff was involved in the transport accident in Bundoora on 15 August 2014 (“the said date”), when he suffered injuries, including to his neck, lower back and right shoulder, as well as psychiatric injuries.
30In the TAC claim for compensation summary dated 26 August 2014, the following accident injuries were listed:
“Back pain, (R) shoulder pain, cervical pain, major depression, PTSD, anxiety.”
31In examination-in-chief, the plaintiff confirmed he has an issue with his left, not his right, shoulder.[36]
[36]T13
Pain
32As of May 2017, the plaintiff continued to suffer pain mostly in his back, which radiated into his left leg. He sometimes felt numbness in his leg and into his foot. Pain increased with sitting or standing longer than fifteen to twenty minutes. His sleeping pattern was broken virtually every night by pain and discomfort.
33In early 2017, the pain and discomfort in his back had worsened, as he had tried to push himself beyond his restrictions as he was stuck at home all the time. He tended to lose his balance or struggle to walk even a short distance without the pain becoming unbearable. As a result, he relied on a walking stick.
34As of October 2018, he continued to suffer from pain and restrictions in his neck, back and right shoulder from the accident. He also had referred pain into his left leg and numbness in his right leg and foot, a tingling sensation in his fingers and spasms in his back when he stood for prolonged periods. He remained incapacitated for work.
35The pain was constant and kept him awake at night, and often woke him through the night. He was constantly lethargic and irritable with his mother as a result of not being able to sleep. This had impacted on his relationship with his family and he did not believe he could live with a partner or housemates.
36He found it difficult to sit or stand for long periods without a significant increase in pain, and he was constantly uncomfortable and had to change his position.
37As of October 2019, the plaintiff continued to suffer from pain and restrictions in his neck, back and shoulder as a result of his accident injuries. The referred pain into his left leg continued and he also experienced fluctuating numbness in his right leg and foot. He was worried these symptoms would cause him to fall and he often carried a walking stick. He continued to experience spasms in his back when he tried to stand up straight for long periods. He also had difficulties sleeping.
38As of April 2021, the injuries, spasms and referred pain, continue. The intensity and frequency of his referred pain fluctuates and it is constant. His sleep difficulties continue and he often dozes while lying in bed during the day due to exhaustion.
39He uses a walking stick when he has more pain on the left leg, but he did not bring it with him to Court. He denied he was not using it as much because he is getting a bit better. He is definitely not getting better. He is taking some painkillers, which help out.[37]
[37]T54
40The plaintiff agreed, as the Dorset physiotherapist indicated on a diagram, that he had pain all down the left side of his body, right down to his foot from his neck.[38]
[38]T62
Medication
41In 2018, the plaintiff continued to rely on a significant amount of pain medication, with daily prescription medication, including Panadeine Forte three times a day and Brufen twice a day.
42The need for significant amounts of pain medication continued in late 2019. He was then taking Panadeine Forte and Brufen multiple times every day, prescribed by Dr Bahnasawi, whom he saw every three weeks. He continued to require daily medication to control his symptoms of anxiety and depression, taking Effexor as prescribed by Dr Bahnasawi.
43The plaintiff continues to rely on a significant amount of medication to be able to cope with the ongoing pain. He takes 300 milligrams of Effexor per day; 400 milligrams of Effexor[39] and 30 milligrams of Panadeine Forte most days. He tries to limit his medication intake as the defendant has refused to pay for it and he struggles to afford it.[40]
[39] This seems to be an error – Effexor 75 milligrams daily prescribed by Dr Bahnasawi
[40]April 2021 affidavit
44He has not been taking tablets for depression. He has medication for his “nervous system”.[41] He did not know the name of the “nervous tablets”. He takes one in the morning, prescribed by Dr Bahnasawi.[42]
[41]T45
[42]T66
45He has not been advised to cut down Panadeine Forte by his doctors.[43] He takes two types of painkillers. He takes two each. His doctor has never told him he is taking too many.[44]
[43]T46
[44]T47
Treatment
46As of 2018, the plaintiff tried to rehabilitate himself as much as possible. He had been told he would not benefit from surgery. He had a significant amount of physiotherapy without any lasting relief. When he tried home exercises, back pain increased. He tried using heat packs; however, they only relieved the pain for a short time.
47The plaintiff saw Dr Thomas in July 2019, who referred him to Dorset for a multidisciplinary pain assessment, which the plaintiff attended a couple of months later.
48The plaintiff last went to a physiotherapist a long time ago. He was given some exercises, but he does not do them as he does not benefit from them, “it is still sore”. His neck condition worsened when he tried to do them. He stopped doing them a long time ago.[45] Physiotherapy helped for a short period of time, half an hour, maybe forty-five minutes, then the pain came back. He got no long-term benefit from it.
[45]T40
49The Transport Accident Commission (TAC”) cut funding for physiotherapy, which he had for about probably two years after the injury.[46] Physiotherapy was at his doctor’s rooms and paid through Medicare.[47]
[46]T64
[47]T65
50He has been offered injections by Dr Tahir, rheumatologist, but had not had them. He had not heard from Dorset to know whether he was accepted or not.[48]
[48]T59
51The plaintiff continues to try and rehabilitate himself as much as possible. He has tried to stop relying on a walking stick and tries to be as active as possible and increase his endurance by walking to the ATM.
52He currently sees psychologist, Mr Mohammad, monthly for 30-minute counselling sessions, having first seen him on 11 May 2015.
53Mr Mohammad talks to him and tells him how to behave, how to relax most of the time, and also how to talk to people. It has not helped much. It just gives the plaintiff a bit of relaxation when he talks to him.[49]
[49]T37
54The plaintiff has not seen a psychiatrist. He has attempted to do so, however, he has been unable to get an appointment due to COVID-19 and the chronic nature of his condition. He had received the following letter from Dr Ibrahim, psychiatrist, dated 19 March 2021 setting out:
“We have received a Referral from your G.P. for an appointment with Dr Samir Ibrahim. Unfortunately due to the high demand for appointments, Dr Ibrahim has put a temporary hold on all new patients until September 2021.
In very urgent cases, your GP can call and speak to Dr Ibrahim about your situation and we can try and see if we can help you out.”
Mood
55In his 2017 and 2018 affidavits, the plaintiff described ongoing significant symptoms of anxiety and depression resulting from the accident. His mood fluctuated day to day and he tended to feel scared most of the time and could have breathing difficulties, especially if he felt anxious. He had constant nightmares about the accident and panic attacks and found it hard to breath.
56He experienced symptoms of Post-Traumatic Stress Disorder (“PTSD”). He was not able to return to driving due to fear of another accident. He was a nervous passenger and avoided travelling in a car where possible. Being unable to drive had taken away his independence and that had been a significant loss. He preferred to be alone in his room and tried to avoid people as much as possible.
57His personality had changed since the accident. He had no confidence and he avoided people. He had been unable to establish a relationship. He constantly fidgeted and had become a chain smoker. He was angry and fearful all the time, and frustrated by his physical restrictions. He expressed his fear through anger, often breaking items in the house.
58Nothing brought him joy and he no longer Skyped with his siblings overseas. He could not see a future for himself and had lost all hope. His family worrying about him caused him further distress.
59The plaintiff had lost his sex drive and was not interested in establishing a relationship or meeting new people. He did not think he would ever get married or have children.
60He tried to rehabilitate himself by going to a psychologist; however, his symptoms had not improved. He required daily antidepressants to control anxiety and depression.
61During 2019, he continued to suffer significant symptoms of anxiety and depression and also PTSD as a result of the accident. He confirmed his issues with car travel. Panic attacks and nightmares continued. He had become reclusive and preferred to be alone in his room.
62The plaintiff continues to suffer significant symptoms of anxiety and depression as a result of the accident. He experiences symptoms of PTSD, including nightmares, panic attacks, fear, hypervigilance and flashbacks of the accident.
63He is emotional and irritable and prefers to be alone and avoid other people. He often hides when his brother visits and often does not speak with his mother for days.
64The plaintiff was in a relationship at the time of the accident, which failed due to the change in his personality. He became irritable and angry and became preoccupied by pain. Relationship issues continue and he is extremely lonely.
65His mental condition is no good. Lately, it has been getting worse; it is deteriorating.[50]
[50]T53
Work
66In 2018, the plaintiff’s neck and back pain and restrictions had prevented him being able to return to any form of employment. Prolonged postures caused an increase in back pain, as did holding his neck in the same position for too long.
67He wondered what work he would be able to do in the future as he only had limited education, leaving school after five years in Iraq. He did not speak English and could not read and write, and had never been employed in an office. He could not perform the physical work he did before the accident and he worried about the future.[51]
[51]2018 affidavit
68The plaintiff remains completely incapacitated by his accident injuries. The accident injuries to his neck and back prevent him from being able to return to any form of employment. He is unable to predict the frequency and intensity of his ongoing back pain on any given day and he is unable to be a reliable employee.[52]
[52]2021 affidavit
69He is completely preoccupied by the intensity of ongoing pain and restriction that continue as a result of his accident spinal injuries. He struggles to concentrate and is unable to learn new tasks. He has been unable to improve his English skills and there are no realistic employment options available to him.
70He has not looked for a job at all since 2014. There was not a thing he thought he could do. When his case is over, he is going to start looking for a job if he can. He would try if he gets better. He could not work because he has so much pain he cannot even bend. If he stands for a long time he also has pain. Even when he sits for a long time he has pain. When he feels the pain he stands up. The pain is in his neck and his lower back and he pointed to his left leg. There is numbness. There is a lot of pain and it is getting worse.[53]
[53]T58
Activities
71The plaintiff has no social life and has been unable to return to playing soccer, and has no friends.[54] He agreed, as the 2019 Dorset report set out: “Sits down and watches TV. Goes to the coffee shop for one hour/ 1-2 week.”
[54]2021 affidavit
72He is still able to go out for coffee with his friends maybe every two or three weeks and they pick him up to take him to coffee.[55]
[55]T55
73His brother and sister-in-law visit him at home but he does not feel like going to their house to see them and their children. Doing so would not cheer him up.[56]
[56]T57
74He can walk probably half an hour and maybe a bit more. He can walk down the street to buy cigarettes at the shops. He very rarely does the shopping for groceries and things of that nature.[57] He cannot carry anything, “except bread maybe”.[58]
[57]T58
[58]T59
75He spends about $450 a week on cigarettes. “That’s the only thing that I do spend money on – that’s what I do actually, I smoke, cause I’m a smoker.”[59] He denied he had been told by the doctor to cut down on the cigarettes. Smoking is a habit and he feels more comfortable when he smokes and he is not able to quit.[60]
[59]T49
[60]T66
76The plaintiff’s neck pain and restrictions have prevented him from being able to return to soccer. The referred pain into his left leg prevented him from being able to run and he could not change positions or twist without experiencing a significant increase of back pain.
77The plaintiff was driving his Toyota Hilux at the time of the accident. He sometimes drove it to go fishing off a pier for snapper. He no longer goes fishing. He cannot sit at the end of a pier and throw a line into the water because of his back pain and shoulder pain. Before the accident, he went fishing maybe two or three times a month with friends. He had not been at all since his injury.[61]
[61]T64
Lay evidence
78The plaintiff’s mother, Markaneta Binamen, swore an affidavit on 2 January 2020. In general terms, she corroborated the plaintiff’s evidence that he was in good health and played soccer and had an active social life pre accident, and that there was a change in his mood and level of activity and the need for painkilling medication thereafter.
79However, as the plaintiff explained, he has to help her with appointments et cetera as she is suffering from dementia. In those circumstances, her affidavit is of limited assistance.[62]
[62]T94
80Further, her affidavit is somewhat vague as to her knowledge of some major issues in the plaintiff’s life, deposing she believed or understood a number of matters which one would expect to be within her knowledge.
81One significant example was her evidence that plaintiff enjoyed working, although she believed he was unemployed at the time of the accident and that if she recalled correctly, he was her carer then. The plaintiff had not in fact worked since 2008. At the time of the accident, he had not worked for six years and there was no evidence of any steps taken by him to get work, although she deposed that was his intention.
82Further, there was no mention by the plaintiff of him baking “so many cakes for [her] and the family” as she deposed. She “believes” he takes medication and also sees a psychologist every few weeks or so.
83The plaintiff’s thirty-five year old brother, Ameir Yousif, swore an affidavit on 2 January 2020.
84He “believed” the plaintiff was not employed at the time of the accident because he was their mother’s carer. He was living elsewhere, looking after his sick father.
85Before the accident, he “believed” the plaintiff enjoyed working. He knew the plaintiff had goals to continue working, buy a house, get into a relationship and eventually get married and move forward with his life. The accident and its consequences had completely crushed, not only his ability or capacity to work again, but also his spirit for it.
86He confirmed the plaintiff’s evidence as to his social life and his enjoyment of soccer pre accident, adding that the plaintiff used to go clubbing pre accident but no longer did so.[63] He also confirmed the change in the plaintiff’s mood since the accident, his reluctance to socialise and his experience of panic attacks. Post accident, the plaintiff also had issues with sleep and difficulties walking at times, having to use a stick. He did little around the house.
[63]This was not an activity mentioned by the plaintiff
87He believes the plaintiff attends his general practitioner quite often. He is uncertain of the kind of medication he takes, but “there are a lot of them given the large pile of medications we see in his room”.
88The plaintiff does not do much around the house now by way of domestic duties or otherwise. Now that Yousif and his wife are staying at his mother’s house, they are contributing more to household duties, but the plaintiff cannot do much because of his pain and limitations.
89Ever since the accident, he knows the plaintiff has become very worried about his future, his independence being crushed due to his inability to drive, causing his social life to suffer. The plaintiff feels like he cannot enter, let alone maintain a relationship. Mr Yousif also believes the plaintiff feels no one would enjoy his company due to his mood swings, lack of career and physical restrictions. The accident has certainly impacted the plaintiff’s life in many significant ways.
The Plaintiff’s medical evidence
90As the focus was on the ss(c) application for a Chronic Pain Disorder, the plaintiff must establish a compensable physical injury.[64] Medical opinion as to the basis of the plaintiff’s present condition must also be taken into account.
Treaters – physical injuries
[64]Veljanovska v Socobell Oem Pty Ltd (ibid)
Dr Bahnasawi
91The plaintiff’s general practitioner, Dr Bahnasawi, from Cuthbert Medical Centre in Broadmeadows, first saw the plaintiff on 20 August 2015.
92The plaintiff complained of neck and back pain, and on examination, had tenderness in the cervical spine and lumbar spine.
93In his April 2019 report, Dr Bahnasawi thought the plaintiff had no capacity for work due to the injuries not progressing in a positive manner.
94In his most recent report of February 2021, Dr Bahnasawi diagnosed ongoing neck pain with left C5 nerve compression, lower back pain due to left L4 nerve disc bulging and shoulder pain with left rotator cuff with subacromial bursitis.[65]
[65]There was no bony injury identified with x-ray on the cervical and lumbar spine in March 2019 organised by Dr Bahnasawi
95Current medications included Brufen for back pain, Effexor, 75 milligrams daily, Osteomol paracetamol for back pain, and Panadeine Forte, one to two tablets, four to six hourly, a maximum of eight a day, for neck pain with referred arm pain.
96Dr Bahnasawi noted the plaintiff’s current difficulty with prolonged postures, being able to walk for only 15 minutes and being able to lift a maximum of 2 kilograms. The plaintiff was afraid of driving and unable to do house duties such as cleaning. His mother took care of the house duties since the accident, such as laundry, cleaning, meal preparation, gardening and home maintenance. Head and neck movement was also restricted.
97Dr Bahnasawi thought the plaintiff had no capacity for work but did not specify on what basis.
98He thought the prognosis was poor and had not changed. The injury and mental health conditions had affected the plaintiff’s daily living activities as he found it difficult to complete daily tasks, and was withdrawn due to his depressive state. Before the accident, he was an active person who used to play soccer with his friends and went out for coffee. Now, he could not do much due to his injury and he had no current work capacity.
Mr Wai – physiotherapist
99The plaintiff first saw Mr Wai at Cairnlea Physiotherapy on 4 December 2015, complaining of chronic neck and lower back pain after the accident.
100Mr Wai thought that due to his chronic pain and muscular deterioration, most of the plaintiff’s normal activities of daily living had been affected. His sleep was disturbed. He had a minimal capacity for activities of daily living.
101In his most recent report of June 2019, Mr Wai thought the prognosis for the plaintiff’s condition was poor and that his injury had become chronic. His capacity for work was minimal.
Dr Tahir
102Dr Talib Tahir, rheumatologist, from Coburg Rheumatology Service, saw the plaintiff on referral from Dr Bahnasawi in March 2019 for his ongoing neck, shoulder and lower back pain, with radiculopathy pain of the lower cervical spine and lumbar spine, and left rotator cuff, with subacromial bursitis since the accident. The plaintiff was walking with a stick.
103Dr Tahir and the plaintiff discussed the option for a foraminal injection and/or epidural injection and shoulder injection with Depo cortisone, after which some pain management and physiotherapy would be tried. He thought the plaintiff might need to see a surgeon at some stage. Clearly, this was related to the accident.
104On review on 18 June 2019, Dr Tahir noted the plaintiff was given a prescription for a Xylocaine patch, as he was not keen for the nerve root injection or referral to a neurosurgeon, as he was worried about the outcome.
105Dr Tahir thought, clearly, the accident had affected the plaintiff’s function and quality of life. He was not a candidate for physically demanding work, sitting or standing for long periods of time and should not be involved in any leisure activity.
106On review on 19 September 2019, the plaintiff had ongoing neck and lower back pain with features of C6 and L4 radiculopathy pain with nerve root impingement on the January 2019 MRI scan. Despite having maximum treatment with analgesia and physiotherapy, he still had severe pain. He was referred to a neurosurgeon for consideration of decompression surgery.
Associate Professor (“AP”) Gonzalvo
107AP Gonzalvo, neurosurgeon, saw the plaintiff on 27 May 2019. He noted that the plaintiff had earlier been seen by his colleague, Mr David de la Harpe, in 2016, who recommended conservative management.
108Symptoms had remained essentially unchanged and the most recent imaging studies showed expected degenerative changes in the cervical and lumbar spine. No surgery was indicated and he recommended that the plaintiff seek an opinion from a pain specialist.
109AP Gonzalvo thought that the plaintiff suffered from headaches, neck pain and upper and lower back pain. He suffered from non-specific ill-defined pain issues and also suffered from degenerative changes in the cervical and lumbar spine.
110He thought that the plaintiff would benefit from seeing a pain specialist, as he did not think there was any role for surgery. The plaintiff would also benefit from physiotherapy and core muscle strength exercises.
Dr Thomas
111Dr Clayton Thomas, pain specialist, saw the plaintiff on referral from Dr Bahnasawi in July 2019.
112From the outset, the consultation was difficult, the plaintiff being a man of few words, and it was almost impossible to get a cohesive contextual description of what had happened since the accident.
113On examination, the plaintiff complained of whole left-sided body pain. He indicated that pain was “8 at worst, least, average and right now”. He advised that he was taking 400 milligrams of Brufen intermittently and Prodeine Forte. On Interference Scale, he scored highly. He indicated that the pain was like electricity.
114The plaintiff last worked several years ago when the biscuit factory he was working in closed one of their shifts. He had been looking after his mum and continued to do so.
115On examination, the plaintiff was a cooperative man, walking with a single point stick. Though unaided, his gait looked to be quite symmetrical. He had non-specific tenderness in the cervical spine, left shoulder girdle and lower lumbar spine. Despite this, all movements seemed to be quite good and unrestricted. Neurologically, he presented as being intact. Straight leg raising and hip examination were quite normal.
116Dr Thomas noted a lumbar MRI scan showed a small annular tear on the left at L4‑5 and no obvious nerve root compression. A January 2019 cervical MRI scan was similarly unremarkable. There was left uncovertebral osteophyte and moderate left foraminal stenosis at C5-6 only.
117The MRI scan of the left shoulder was reported to show low grade rotator cuff tendinosis with slight interstitial tear of the supraspinatus. There was large subacromial subdeltoid bursitis. Certainly, Dr Thomas was not convinced there was any evidence from impingement signs.
118He thought there were non-specific pain complaints, and it was difficult to interpret the investigations. Ideally, he wanted a coherent history matched with examination findings and then matched with investigations, but it was not really possible to do that with the plaintiff.
119He diagnosed a possible Somatic Symptom Disorder, adding that the plaintiff seemed to be quite focused on his pain complaints yet did not seem to be overly disabled.
120Dr Thomas noted that the TAC had accepted a referral for a multidisciplinary pain assessment and, as such, he had referred the plaintiff to Dorset. He was not inclined to recommend any interventional-type treatments for him. The plaintiff’s condition had not stabilised and he needed formal rehabilitation. He was not working before the accident. A better indication of his functionality will be determined through the program, at which time prognosis will be determined.
Dorset Rehabilitation
121The plaintiff was assessed by Dorset in August 2019.
122In the Centre Team Assessment, it was noted that pre-injury, the plaintiff was independent in activities of daily living, and his mother completed dishes, laundry, cleaning, meal preparation, gardening and home maintenance. He was independent when driving.
123Currently, in terms of activities of daily living – “Independent. Carer for mother last 4 years since before accident sta[r]ted.” His mother was noted to complete all the tasks she did pre-injury. The plaintiff relied on his brother and other family members for driving.
124Pre-injury, the plaintiff’s routine was playing soccer with friends during the week and going to the coffee shop during the week. Post injury – “Sits down and watches TV. Goes to the coffee shop for 1 hour 1-2 times/week.”
125It was noted under “Vocation,” the plaintiff, prior to 2011, for three years, worked in a biscuit factory prior to his working as a plasterer. He last worked in 2011. There had been attempts to return to work between 2011 and 2014.
126In a diagram as part of the physiotherapy assessment, the whole of the left side of the plaintiff’s body from the neck to the foot was shaded in, indicating the area of his pain. It was noted that he had left-sided body pain “severe”, stiffness and numbness intermittent left side.
127The physiotherapist reported that the plaintiff presented with the aid of an interpreter. He presented with frail effect and reported symptoms that had not abated since his accident. He had trialled many years of physiotherapy without benefit. He had no regular exercise routine. He displayed mildly restricted cervical, thoracic and lumbar movements. He had no neurological symptoms with normal lower limb strength. Walking test was reduced for his age. “He had no goals for treatment and lacked understanding regard the active nature of the program”. Catastrophising scores were highest with disability. No program was recommended at that stage.
128The psychology report set out that the plaintiff presented with significant depressive and anxiety symptoms and did not appear to have many coping strategies to manage his mental health. His activity level was very low and he was quite socially withdrawn. He struggled to identify many psychological goals and broader life goals. He would benefit seeing a community psychiatrist for mental state and medication review and also benefit from seeing a different community psychologist to commence therapy to work specifically on his mood, anxiety and trauma symptoms, given the severity of his mental health condition. He may be suitable for a pain program next year once he experienced some improvement in his mental health and could work towards achieving goals.
Mental state
Ramzi Mohammad
129Psychologist, Ramzi Mohammad, at Western Wellbeing Clinic, reported in February 2020.
130He first saw the plaintiff on 11 May 2015 on referral from Dr Bahnasawi with mixed anxiety and depressive manifestations reactive to the accident.
131The plaintiff told Mr Mohammad that he used to attend many social gatherings with family and friends. Since his injury, he had no longer participated in many of these social activities.
132Upon presentation, the plaintiff appeared to be of normal gait. He responded well and was able to maintain eye contact. The tone of his voice changed as he described his social isolation by virtue of his mood status and physical pain.
133Mr Mohammad thought that the plaintiff suffers from Mixed Anxiety and Depression secondary to an Adjustment Disorder reactive to his accident injury. He was presently receiving psychological care and medication relating to his psychological state. In his counselling sessions, cognitive behaviour therapy was utilised to enhance his coping skills with Depression.
134In January 2020, Mr Mohammad conducted the Beck Depression Inventory to assess the severity of Depression. The plaintiff obtained a total score of 43, indicating a presence of moderate to severe intensity of depressive manifestation.
135During clinical interview, the plaintiff indicated that he had feelings of fear and constant worries of possible impending mishaps, he felt angry and ready for quarrels for no reasonable cause, was isolated and was increasingly developing an aversion to being in public places and social gatherings, was becoming increasingly distracted and lacking in focus and concentration and was dealing with a chronic form of reactive insomnia.
136The plaintiff’s present health conditions are caused by his ongoing dealings with cervical and shoulder pain as an outcome of his accident. From a physical viewpoint, he is incapacitated by virtue of his injury and this enhances an inability to return to work.
137The plaintiff’s condition, particularly his cervical pain, has become chronic in nature without any foreseeable resolution in the near future. This is compounded by reduction in his physical abilities that have rendered him unable to resume gainful employment and participate in social activities.
138The plaintiff has developed secondary psychological conditions such as Mixed Anxiety and depressive manifestations, as he anticipates no positive end to his injury and no restoration of his normal daily activities as to his pre-injury life. His injury is the sole contributing factor to his psychological condition. He will remain essentially in need of medical and psychological care. His condition is chronic and stable and the prognosis must be guarded.
The Plaintiff’s medico-legal evidence
Dr Ales Aliashkevich
139Dr Ales Aliashkevich, neurosurgeon and spinal surgeon, examined the plaintiff in September 2018.
140He noted that since the accident, the plaintiff was unable to care for his mother, and his brother was now her full-time carer. He was unable to work at all. He had not driven since the accident. He has used a walking stick to support himself since around 2015 to 2016.
141The plaintiff presented with a slow and antalgic gait, requiring the support of a walking stick and favouring his left leg.
142On examination, deep tendon reflexes were depressed. There was diminished sensation on pinprick testing in the left arm and hand centred over the C6 dermatome, and in his left leg centred over the L5 dermatome. There was restriction of cervical movement, and significant tenderness on the left side of the neck. Lumbar movements were also restricted, and there was moderate tenderness and muscular guarding on palpation in the lumbosacral region, left more than right.
143Dr Aliashkevich diagnosed the following:
“- Chronic and refractory low back pain and left leg pain
- Chronic and intractable neck, left shoulder, arm and hand pain
- Chronic pain syndrome
- Chronic cervicogenic headache
- Multilevel cervical spondylosis, dominant at C5/6
- Left dominant foraminal stenosis C5/6 and C6 nerve root compression
- Left foraminal annular tear L4/5
- Central sensitisation
- Suspected myofascial pain syndrome
- Depression.”
144He thought the plaintiff would benefit from assessment by a pain specialist, rheumatologist, neurologist and psychologist/.
145He suggested further investigations, and, depending on the result thereof, consideration of diagnostic/interventional pain strategies such as steroid injections or surgery, and to take part in a multidisciplinary pain management program.
146Having regard to the plaintiff’s persisting and refractory pain, neurological signs and symptoms, treatment and medication requirements, and functional limitations, he thought the plaintiff was restricted in lifting and carrying weights over 2 kilograms, regular or vigorous pushing/, reaching, strong gripping and holding, prolonged typing and writing, using heavy tools, walking on uneven ground, driving and prolonged postures et cetera.
147He considered the plaintiff had no current work capacity for any work in a reliable, consistent and productive manner, taking into account his background, his long history of unemployment since around 2013,[66] his inability to care for his mother since the accident, and his persisting signs and symptoms.
Psychiatric
[66]Had not worked since 2008
Dr John King
148Psychiatrist, Dr John King, examined the plaintiff on behalf of both parties in November 2015.
149The plaintiff told Dr King that at the time of the accident, he felt scared.
150As at November 2015, the plaintiff was taking Effexor, 75 milligrams a day, when he felt nervous, generally once or twice a day. He was also taking Prodeine Forte for pain. His cigarette consumption had doubled to fifty cigarettes a day.
151Physical symptoms caused by the accident were all worse on the left side, and included neck, lower back and buttock pain, arm and leg pain.
152The plaintiff told Dr King he led a withdrawn life, and ventured out from home but little. He often had a coffee out of the house, and had a brief walk each morning. He had been too anxious to resume driving, and was now a hypervigilant passenger, and appeared to lead a very limited life.
153The plaintiff said that he was scared all the time, and he had difficulty breathing at times. He described frequent nightmares about the accident where “I died from accident”.
154The plaintiff said that that he had had three jobs for lengthy periods in Australia: the first in a biscuit factory, where he worked for about three years, and he held two other jobs for about two years each.
155In the last year, he had had a girlfriend, but he had split up with her in the last three to four months.
156The plaintiff’s affect during the interview was consistently mildly depressed, and only very modest rapport was able to be achieved. There was no thought disorder. He answered simple direct questions in English. He volunteered little information. He said he saw nothing in the future, and that he did not expect to return to work. There were no suicidal ideas and no psychotic symptoms. Cognition was not formally tested, but he appeared to be without obvious cognitive impairment. Insight and judgment were largely intact.
157Dr King diagnosed chronic PTSD and a Major Depressive Disorder. He noted those diagnoses were speculative, but the best that could be arrived at in the circumstances. Ideally, he thought the plaintiff should be seeing a psychiatrist or a clinical psychologist experienced in diagnosis and treatment of trauma conducted in his own language.
158Dr King noted the plaintiff could not run. He could walk for 10 to 15 minutes and stand for about 20 minutes. He seemed to be able to sit comfortably for an hour during the interview. He was able to attend to personal care. He said he could not sweep, vacuum or use a ladder. Shopping was generally done by his mother or brother, and his mother did the cooking. He had now withdrawn from friends, talked to his brother less, and did not Skype his siblings who lived overseas. His computer skills were poor and he could not use email, but he used Facebook. He said there was no enjoyment in his life, and he rarely went out of the house.
159Dr King feared the plaintiff’s current disabled state would continue in the future and hence the prognosis was poor. He noted the plaintiff could not read or write, had limited skills speaking English, and had gained no benefit from having psychological counselling in Arabic. He even took his anti-depressant medication inappropriately. Ideally he should be seeing a psychiatrist who could speak to him in his own language.
Dr Lester Walton
160Dr Lester Walton, psychiatrist, first saw the plaintiff in October 2018.
161The plaintiff told him that he was on his way home from playing a game of soccer when he had the accident. He said he was shocked. He thought “I thought he killed me”. He became aware of pain affecting his chest and neck particularly.
162The plaintiff complained of ongoing pain affecting his neck and back, which he described as severe, three or four times a day for up to an hour. He also had intermittent pain affecting his left arm. Specific questioning elicited that at least at times, his complete hemibody may be engulfed in pain.
163The plaintiff advised that he had avoided driving since the accident because he was too fearful. Subjective anxiety was accompanied by uncontrollable shaking. He reported generalised anxiety about so many things.
164The plaintiff had become intolerant of others and when angry, was given to breaking inanimate objects. He had been depressed to a point where he had entertained some suicidal thoughts, but had made no attempt.
165Sleep was poor. He was left with daytime fatigue. He complained of forgetfulness.
166In parallel with maximal neck pain, the plaintiff experienced headaches.
167The plaintiff was unemployed prior to the accident and had not resumed remunerative work. He had also forsaken playing soccer and most of the time was at home. While he remained his mother’s official carer, it was actually his brother who did most of the work. However, he paid her bills.
168The plaintiff was involved in a relationship for a year but, with him becoming argumentative after the accident as well as his social withdrawal, the relationship failed.
169On examination, the plaintiff appeared tense. He struggled with simple arithmetical tasks, but was correctly orientated in time and place, and there was no obvious deficit in memorising. The impression was of him simply being ill-educated, perhaps of lowish intelligence but not intellectually disabled. There were certainly no psychotic features.
170Of his future, the plaintiff indicated “‘I don’t have anything in my mind for the future. I hate everything now. I feel really sick since the accident.’”
171Dr Walton thought the principal diagnosis was that of a PTSD with parallel significant depressive problems induced by the accident and its consequences. However, the picture was rather more complicated, in that it seemed that the plaintiff’s original physically-based pain had not become psychogenically elaborated, hemibody pain being unlikely to have a simple physical explanation. Cultural factors likely were relevant, as was the plaintiff’s limited education.
172Noting extended psychological counselling seemingly with limited benefit, it was difficult to see that simply continuing it would be of much further assistance. It was entirely appropriate that the plaintiff was prescribed an antidepressant medication. Dr Walton noted that the plaintiff was on a relatively modest amount and perhaps being reviewed by a treating psychiatrist would not be misplaced. That said, he would not anticipate any dramatic change in the plaintiff’s symptoms simply by altering the pharmacological regimen. Psychiatric symptoms had stabilised.
173As the plaintiff had been out of work for so long, the likelihood of resuming any type of gainful employment was remote. His continuing physical and psychiatric symptoms signalled to him that the plaintiff was totally incapacitated, even if that was not entirely the case objectively. Suffice to say, the plaintiff was suffering from a very substantial partial incapacity for work on psychiatric grounds alone. His persisting depression robbed him of motivation towards participating in work, social and leisure activities, as well as depriving him of enjoyment. Irritability marred interpersonal dealings and his persistent insomnia left him fatigued. There had been sustained lowered libido.
174On re-examination in December 2019, the plaintiff said he believed his neck pain had become worse but could not provide any particular reason for that. He also suffered from ongoing back pain, and pain affecting his left shoulder. Medication provided only temporary relief.
175There was ongoing irritability, with the plaintiff tending to target his mother in this regard. There were persisting suicidal thoughts and ongoing depression. There had been no change to the pattern of insomnia.
176The plaintiff complained that he was forgetful for recent events. There had been no change to headaches.
177He described much the same inactive life, stating that he sat at home and his mother did everything. He did not contribute to the running of the house.
178On examination, the plaintiff appeared tense and subdued, stating “I feel pain. I’m no good.” There was the same pattern of some difficulties with arithmetical tasks but otherwise he remained cognitively intact. There was nothing indicative of psychotic disturbance. Of his future, the plaintiff simply stated “Nothing” consistent with ongoing depression.
179Dr Walton’s diagnosis remained that of PTSD and parallel depressive symptoms. The previous very widespread possibly psychogenic pain seemed to have diminished. He believed the plaintiff was properly described as having sustained a psychiatric injury caused by the accident.
180While there possibly was an element of the plaintiff catastrophising the seriousness of his physical and psychiatric injuries, objectively he was suffering from substantial partial incapacity for all work on psychiatric grounds, as before. Overall, the prognosis psychiatrically was rather poor. He suspected that the plaintiff’s current range of symptoms would persist for the foreseeable future.
Dr Nigel Strauss
181Dr Nigel Strauss, psychiatrist, first examined the plaintiff in August 2020 with the assistance of an interpreter.
182The plaintiff told Dr Strauss that he did factory work in Australia until about two years before the accident, when he became his mother’s carer.
183The plaintiff said that at the time of the accident, he had been in a relationship for about a year and a half but, following the accident, his behaviour had changed and he was easily irritated and often agitated, and the relationship deteriorated. He had not been in a relationship since.
184The plaintiff told Dr Strauss that he was not rendered unconscious in the accident, but he was in shock and sat in his car for some time after it came to a standstill, before others helped him out of the car. An ambulance attended but the plaintiff was reassured that he did not need to go to hospital, even though he had back and chest pain at the time. He rang his brother, who took him home, and he saw a doctor a day or two later.
185The plaintiff told Dr Strauss that he was then taking three types of tablets – two for pain and one for nervousness and depression.
186The plaintiff reported generalised quite extensive pain involving his lower back and neck, left shoulder and arm. He also had headaches and paraesthesia in both the left arm and left leg. He said he had not really improved since the accident and the pain had spread.
187The plaintiff reported that his level of activity had decreased significantly since the accident and his brother had taken over their mother’s care. The plaintiff spent most of the day lying on his bed, not coping with anything and with anxious and depressed thoughts in his head. He no longer did the housework or cooking, which was done by family members. He rarely went to the shops and had not driven since the accident.
188The plaintiff advised that he preferred to stay alone in his room and he only went for a walk occasionally. He talked to his mother at times. He no longer played soccer.
189The plaintiff told Dr Strauss that he was emotional and irritable and preferred to be alone. He said he was quite depressed and lacked motivation and energy. He sometimes cried and occasionally had fleeting suicidal thoughts, but would not act on them. His sleeping was poor. He had lost weight and his cigarette consumption increased from about 15 to 25 cigarettes a day. He was very fearful in cars. He said he still had nightmares involving the accident every two or three weeks, and he had flashbacks on a weekly basis.
190On mental state examination, the plaintiff’s tone was like a depressed individual but he was not overly emotional. He spoke of negative and depressed thoughts. His insight seemed quite limited and he was preoccupied with extensive pain affecting him throughout his body. From his description of his behaviour, it appeared he lacked motivation and his behaviour was very limited and restricted.
191Dr Strauss thought there was no evidence of any psychosis or delusions or thought disorder, but the plaintiff’s thinking was negative and self-preoccupied, and he sounded as if he had low self-esteem. He spoke of flashbacks and therefore had a significant perceptual abnormality.
192Dr Strauss was provided with the plaintiff’s statement and his 2018 and 2019 affidavits, together with reports from the plaintiff’s treaters and psychiatric medico-legal reports from Dr King, Dr Walton and AP Doherty.
193Dr Strauss thought it appeared that the plaintiff’s physical and psychological functioning had deteriorated quite significantly since the accident, before which he had an active and busy life, looking after his mum and playing soccer.
194The plaintiff stated that since then, he had suffered extensive pain and, on the basis of all the information provided, Dr Strauss believed that he suffered a Somatic Symptom Disorder. In other words, a good deal of his physical symptomatology was now psychologically-based on an unconscious level.
195He could not detect any evidence to suggest that the plaintiff was deliberately overexaggerating his problems, and he was not sure why AP Doherty reached that conclusion. He was satisfied that the plaintiff was a genuine man who suffers from genuine incapacitating symptoms. He has psychologically-based pain on an unconscious level in the form of a Somatic Symptom Disorder. He also suffers a good deal of Anxiety and Depression and a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. He has not coped well with the effects of the accident, which was quite frightening for him. His Anxiety and Depression were intimately related to his physical symptomatology.
196The plaintiff had also developed a chronic PTSD and, in particular, Dr Strauss noted that he no longer drove a car and also continued to suffer from nightmares and flashbacks.
197In summary, he thought the plaintiff had three psychiatric conditions, including a Somatic Symptom Disorder, a Chronic Adjustment Disorder and a chronic PTSD. His injuries were consistent with the stated cause and no other factors appeared to be causative.
198In his view, the plaintiff was now totally and permanently incapacitated for work on psychiatric grounds alone, noting he had not worked for six years[67] and he was doubtful that the plaintiff could be rehabilitated. His prognosis was poor.
[67]He had then not worked for twelve years
199The plaintiff’s level of activity and quality of life in relation to domestic, social and recreational pursuits remained significantly reduced as a consequence of the effects of the accident. Dr Strauss doubted whether the plaintiff could fully care for his mother now, considering his reduced level of activity, and he needed assistance from his brother.
200Dr Strauss thought that the plaintiff should continue with psychological treatment and continue taking his psychotropic medication indefinitely.
201Dr Strauss re-examined the plaintiff in May this year. He was provided with the general practitioner’s February 2021 report.
202The plaintiff advised that he had not improved since last seen. He continued to live with his elderly mother and received some form of carer allowance, but was less able to look after her. He helped her with her medication and helped organise her appointments, but most of the domestic chores were done by his sister-in-law and brother. His mother cooked and his other relatives did the shopping. He could not do any heavy tasks around the house because of pain and he no longer drove. He continued to suffer from neck, lower back and shoulder pain.
203He said he rested for most of the day and could not sit or stand for long periods, and could not walk for more than 20 minutes. He is not looking for work and could not work because he is in too much pain. He watches television and smokes heavily.
204From a psychiatric point of view, the plaintiff described himself as being depressed and occasionally tearful. He denied any suicidal thoughts or attempts, but said he did not enjoy life. His sleep was broken because of pain and he overthought at night and occasionally had bad dreams. He said his memory and concentration were not as good as they used to be.
205On examination, the plaintiff was not very emotive and he sat quietly. He walked slowly. He was reasonably helpful and cooperative. Speech was normal according to the interpreter. He was mildly depressed and anxious. His thinking was preoccupied with his various physical and psychological symptoms, and his thinking was negative. There was no evidence of any psychosis or delusions or thought disorder. Perception was normal and insight was limited. His memory and concentration were adequate and he was orientated in time, place and person.
206Not much had changed, although the plaintiff was marginally better than when he was last seen.
207Dr Strauss thought the plaintiff still suffers from a Somatic Symptom Disorder and hence at least some of his physical presentation is psychologically based on an unconscious level. There was nothing at interview to suggest the plaintiff was deliberately overexaggerating his problems.
208He continues to suffer from a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, and has PTSD symptoms. All these are related to the accident.
209Treatment should continue on the level suggested.
The Defendant’s medical evidence
Treaters
Dr Karlov
210In December 2013, the plaintiff was first seen by Dr Karlov, consultant physician, on referral from Dr Bahnasawi, with complaints of neck and lower back pain.
211On examination, the plaintiff had a positive SLR at 80 degrees to the right but no neurological deficit.
212Dr Karlov organised an MRI scan of the cervical and lumbar spine in December 2014 and October 2015.
213In March 2016, Dr Bahnasawi, again referred the plaintiff to Dr Karlov, with the presenting problem of neck pain, pain at side of neck radiating to both arms, and “numbness++” in both hands.
214Dr Karlov advised Dr Bahnasawi in October 2016 that the plaintiff’s lumbar and cervical lesions were not severe but his pain was out of proportion with the findings. The plaintiff had seen Mr de la Harpe, who felt the lesions were not severe enough to warrant surgery and, again, the complaints are more severe than the objective findings.
215The plaintiff was tired on waking and all this suggested a Central Pain Syndrome. He was on a dose of Effexor, so it was not possible to give him tricyclic antidepressants but he might benefit from Gabapentin with Lyrica as a second choice. He was under the TAC so it might be possible to send him to a pain clinic.
216Dr Karlov organised a localised bone scan with SPECT and low dose CT scan in November 2016. There was no evidence of active facet joint arthropathy seen in the cervical, thoracic or lumbar spine. Other explanations for the symptoms described are not apparent.
217Dr Karlov also organised an MRI scan of the cervical spine, lumbar spine and left shoulder in January 2019.
Mr de la Harpe
218Mr de la Harpe, orthopaedic surgeon, wrote to Dr Karlov in June 2016 thanking him for the referral.
219He advised no surgery was required, and recommended the plaintiff continue with conservative management.
Home medicine review report and management plan
220This plan was completed by a pharmacist and the plaintiff’s general practitioner in November 2019. The reason for the referral was that the plaintiff was currently taking five or more regular medicines.
221It was noted that Effexor was being taken twice daily, whereas the general practitioner stated it should be taken once. The plaintiff was taking ibuprofen three times a day, paracetamol twice daily, codeine three times a day, and rosuvastatin one time.
222It was also noted that the plaintiff was encouraged to quit smoking at each medical consultation, as he smoked 24 cigarettes a day.
Dr Mohammad
223Dr Mohammad’s treatment notes from 11 May 2015 to March 2019 were identical. save for a number of entries in 2015, when it was noted the plaintiff was preoccupied by his pain. Each entry read – “ong[o]ing mixed anxiety and … [depressive] manifestations, he is preoccupied with pain, relaxations techniques applied” (sic).
224Dr Mohammad noted that the plaintiff’s appearance and general behaviour, thinking, perception, cognition, memory, insight, orientations, affect, speech and appetite were normal. He smoked 45 to 50 cigarettes a day. He denied suicidal ideation. There were anxiety symptoms of tension, sweating and palpitation. Mood included depressed, reactive Depression. Attention and concentration was noted as being forgetful. Sleeping, initial insomnia, light sleeper, broken sleeping pattern. Level of social interaction was noted as high, low, avoidance.
225Presenting conditions were ongoing Mixed Anxiety and depressive manifestations. He was preoccupied with pain. Relaxation techniques were applied.
Medico-legal evidence
Dr David Elder
226Dr David Elder, consultant in occupational and environmental medicine, saw the plaintiff twice, initially in October 2015, and then in November 2016.
227When the plaintiff was first seen for an AMA assessment, Dr Elder did not think his condition had stabilised.
228The plaintiff gave a straightforward description of the accident. After a few minutes, he was able to extricate himself. Police and an ambulance were called. He was checked out by the ambulance, but they did not believe he required any intervention, and he stated it was too early to feel the pain. He had no immediate symptoms, but stated that about three or four days later, he developed neck and low back pain.
229The plaintiff described neck and low back pain, both of which disturbed his sleep and gave rise to headaches.
230He was then taking Panadeine Forte, and had also been prescribed Effexor. He was seeing his general practitioner every two weeks, and had seen a specialist two weeks earlier.
231Dr Elder noted the plaintiff had, for the last three years, been a carer for his mother and received an allowance. She had recently had a knee operation. The plaintiff stated he did not have to dress or shower her, but he did the shopping et cetera with her. Presently, his brother was doing those tasks.
232Before that, the plaintiff worked in a biscuit factory as an operator for three years, and was unemployed before that.
233On examination, there was a full range of motion in the lumbar spine, with only mild discomfort at the extremes of extension and lateral flexion. The plaintiff could demonstrate a seated straight leg raise without any discomfort, and neurological examination was normal.
234Dr Elder thought the plaintiff had neck pain with radicular features but no sign of radiculopathy. He had complaints and symptoms only, with no clinical signs of injury in the lumbar spine.
235On re‑examination, the plaintiff said his neck was pretty much the same, but his low back had then worsened, and it still radiated into both legs. His sleep was now mostly disturbed by low back pain. He was then taking Panadeine Forte and Effexor.
236Dr Elder asked him what care he provided to his mother in order to qualify for the Carer’s allowance, and he stated “none”. His brother visited and did the household chores, and his mother did all the internal chores. He told Dr Elder he had been informed by his solicitor that he did not need to cancel the Carer’s Pension, as he wished to do, now that he was not providing care.
237Once again, Dr Elder could not elicit any sitting, standing or specific restriction.
238On examination, the plaintiff demonstrated a reduced range of motion in his lumbar spine, being unable to touch his toes, but, inconsistent with that, he was able to demonstrate a seated straight leg raise without any discomfort. Neurological examination was normal.
239The plaintiff had continuing complaints of mechanical neck and low back pain with no clinical evidence of radiculopathy. There was no other unrelated injury or condition.
Mr Gary Speck
240Mr Gary Speck, orthopaedic surgeon, examined the plaintiff in January 2019.
241The plaintiff told him of the accident when a car came through and hit his vehicle on the passenger side. He was able to self-extricate, and ultimately spoke with the ambulance and went home. He did not feel particularly sore, except perhaps some soreness across his chest, but over the next few days noted more neck and back pain, more on the left than the right, and increasing in severity.
242The symptoms had persisted in the same area but increased in severity and spread out somewhat over the region of the mid back as well. The symptoms were currently in the neck, and he had a “pins and needles” feeling in the left arm which extended down the front and back to the hand, but without a specific anatomical distribution. They fluctuated in unison with similar symptoms in the lower limb on the front and back of the left leg, predominantly below the knee.
243The severity of symptoms fluctuated in terms of the predominance of back or neck, but currently the neck was more severe, with the plaintiff rating it at 8 out of 10, and the back at 7. Originally after the accident, it was 5 out of 10 for each.
244Prior to the accident, the plaintiff enjoyed soccer on a social basis and fishing in the river, but he did not play soccer any more, and did not do any fishing, because he could not even carry his gear.
245He did not do any of the house cleaning or home maintenance, and others did the lawn. He previously would have helped with the cleaning and taken his mother out to appointments and driving. He had no car, and had not been driving. This seemed to be more related to psychological factors.
246The plaintiff told Mr Speck that after coming to Australia, he spent two years doing an English course, then three and a half years at a biscuit factory, then joined with a relative in a flooring business. He had ceased that at the time of the accident, and had been his mother’s Carer for a couple of years at least, prior to the accident.
247Mr Speck thought the plaintiff had sustained soft tissue injuries to the neck and low back. His current presentation, however, was consistent with a Pain Syndrome with exaggerated restrictions and widespread pain which had increased in severity over four and a half years.
248The prognosis for the soft tissue injuries in the presence of degenerative change in the cervical and lumbar spine was good, and he would expect resolution within three months of the accident.
249Mr Speck thought passive and interventional therapies were not likely to be required for the plaintiff. The ongoing use of simple analgesics and supportive psychological strategies were appropriate, as was encouraging the plaintiff to undertake more physical activity and maintaining his aerobic fitness. A multidisciplinary medical rehabilitation or pain program offered the best opportunity for improving his level of function.
250Mr Speck noted the plaintiff’s restriction of activity meant his level of fitness had diminished, and his suggestion that to even lift a plate would be, or could be, too heavy was an extreme form of limitation. He expected, physically, on the basis of his neck and low back problems, the plaintiff would be able to undertake work where he could change his posture as necessary, not have to undertake repetitive bending, lifting, or carrying weights greater than 5 kilograms at bench height, would be an initial starting point for a return to work.
251The plaintiff’s comment that even carrying his fishing gear would be too heavy for him to get it to the river was severe, and out of keeping with the findings on examination and observation during the interview, as he indicated that he could only sit for half an hour in response to a questionnaire but sat for over an hour without obvious discomfort.
252Mr Speck thought psychiatric assessment was essential, and referral to a multidisciplinary medical rehabilitation program would be an appropriate direction to go in terms of both determining if any psychological and physical improvement could be made, as well as being the best option for objectively assessing the plaintiff’s level of capacity.
253A multitude of reports with which Mr Speck had been provided did not cause him to amend, add, or alter his earlier opinion.
254On re‑examination in February this year, the plaintiff was cooperative. He reported his pain had continued to be in the same area as previously, with pain in the left side of the neck extending intermittently into the left upper extremity, and his low back extending intermittently into the left lower extremity. He described the neck pain as burning and stabbing, and to the left of midline. It was 8 out of 10 on the day he was seen, and can vary from 2 to 8, and could extend downwards towards the shoulder blades.
255Upper extremity symptoms were present when there was more severe neck pain, and could go into his head. Sometimes those symptoms encompassed the whole of the upper extremity and the fingertips. Movement of his neck could increase all the symptoms.
256The back pain was also left sided, and the plaintiff indicated during examination, mid to lower sacrum and to the left of the buttock is the area of pain. It was also burning and stabbing, and would extend in the left extremity down to the toes.
257In answer to a questionnaire, the plaintiff indicated back and neck pain when he had been walking, sitting, or standing for more than half an hour. He was observed to sit for 45 minutes prior to moving without any evidence of discomfort. He described the back pain as 6 out of 10 and could go up to 8.
258He said the symptoms in his spine were not activity-related, but present constantly.
259Mr Speck thought the plaintiff’s current presentation was consistent with a Chronic Pain Syndrome with exaggerated restrictions and widespread pain which had increased in severity over six and a half years. He presented with left upper extremity and left lower extremity total limb pain and sacral and neck pain.
260His physical findings were not indicative of any ongoing organic injury, with good movements of the neck and thoracolumbar spine and unrestricted abduction of the shoulders. It was pleasing to note the plaintiff no longer used a stick.
261Medical imaging had not identified any significant pathology arising from the accident, with no structural damage or disco-ligamentous injuries identified.
262Mr Speck believed the soft tissue injuries to the neck and low back resolved within six to twelve weeks of the accident and the plaintiff’s current presentation was one of Somatic Symptom Disorder or Chronic Pain Syndrome.
263No operative treatment was indicated or interventional treatments. The plaintiff should be encouraged to maintain good aerobic fitness, activity, stretching, and recognising the lack of underlying organic pathology was important in him progressing and returning to normal activity. Management of his chronic pain, Somatic Symptom Disorder, should be advised by an appropriate expert.
Associate Professor (“AP)” Bruce Love
264AP Bruce Love, orthopaedic surgeon, examined the plaintiff in November 2019.
265The plaintiff told him he was the driver of a vehicle, wearing a seatbelt, which was struck from the passenger side in a collision. There were no immediate major symptoms, but he quickly developed what he described as being left side of the neck, left shoulder, and lower back symptoms.
266The plaintiff described pain at the left side of his neck, with any motion aggravating the symptoms. He had pain in the midline of the lower back, aggravated by prolonged sitting or standing, and any tasks involving lifting of weight would produce symptoms in the left shoulder. Although he was using a walking stick, he did not use it regularly.
267The plaintiff lived with his mother and did very little other than stay at home. He was on Centrelink.
268On examination, there was near full range of movement of the cervical spine, with tenderness in the left side but no significant restriction of rotation. There was no neurological abnormality in either upper or lower limbs. His left shoulder had a marginal restriction of motion to about three-quarters of normal, but the right shoulder movement was full. The lumbar spine was mobile, and there was no restriction of straight leg raising.
269The principal finding on the January 2019 cervical spine MRI was some C5‑6 broad-based disc bulging with minor indentation of the cervical cord. The lumbar MRI revealed a small L4‑5 disc protrusion with minor compression of the left L5 nerve root. The left shoulder MRI reported low-grade rotator cuff tendinitis and subacromial bursitis of a mild degree. A SLAP tear was noted.
270While the plaintiff described symptoms relating to the neck, left shoulder and back, there was minimal objective evidence, either on clinical examination or radiology, to describe an obvious pathological lesion as a result of the accident.
271The symptoms had been present for some five years, and on the basis of the history, there had been no diminution of symptoms, nor had the plaintiff responded to any form of treatment.
272AP Love concluded the plaintiff was decompensated as a result of the accident and had adopted the role of passive non-involvement in his care. His absence of employment now for some seven years[68] was a pessimistic sign with regard to functional daily activity and employment. He thought the plaintiff should be assessed by an appropriately trained psychologist. The plaintiff might be able to be rehabilitated if he could be engaged in a program in his own language aimed at increasing mobility and addressing psychological issues.
[68] It was eleven years
273AP Love thought the plaintiff had had musculoligamentous soft tissue injuries of the neck, left shoulder and back relating to the accident.
274He did not think that the plaintiff had a current work capacity. In the absence of any current treatment providing meaningful improvement in his symptoms, his prognosis was poor.
Psychiatric
Associate Professor (“AP”) Peter Doherty
275AP Doherty first saw the plaintiff on 6 March 2018.
276The plaintiff told him about the circumstances of the transport accident and that he was not at fault. He was turning right and another car came through the intersection, colliding with his vehicle on the passenger side. He told AP Doherty immediately “I was harmed”, and that an ambulance came to the scene. For some time he did not feel pain in his back or neck. On the second day after the accident, he did.
277The plaintiff advised he was last in paid employment about four years ago, before the transport accident. He left that paid job and was unemployed and was a Carer for his mother at the time of the accident. That had been the case for two or three years prior to the accident. His last employment was installing flooring.
278In terms of care for his mother, the plaintiff contacts her on the telephone. He helps her obtain services like going to the doctor.
279The plaintiff told him he had no children and was not in a current relationship. He arrived in Australia in 2003 and studied English. He worked in a biscuit factory for three and a half years. He was on nightshift, and eventually stopped that. Then he started looking after his mother and was her Carer. He had had relationships but had never had any problems with them.
280The plaintiff confirmed he was taking Effexor, 75 milligram, three times a day. He was seeing a psychologist because he became depressed and had bad feelings and sadness. He had not got better and there had been no improvement.
281The plaintiff told him over the three and a half years since the accident he was getting worse, describing pain in his back and neck, and that he could not sleep. His depression was increasing, and there was pain in his body, neck, back and left shoulder.
282The plaintiff reported that he got on very badly because he became bored, he could not sleep, and could not see anyone. He did not feel like being with anyone. He had nightmares all the time, in which he saw people being killed and accidents. The nightmares woke him, and then he stayed awake all night, and his mother asked him what was wrong.
283He was not back to driving because he could not drive, he was frightened and terrified, and even as a passenger was so.
284The plaintiff advised there were no external factors unrelated to the transport accident.
285The plaintiff told AP Doherty – “My thinking kills me.” It was mostly about the accident, how it affected his life. He said he had “turned into nothing”.
286The plaintiff got up each day at 7.00 or 8.00am. He sat around, lay down and went for short walks. He went to the shops to buy cigarettes, 10 minutes away. His mother did the household chores because he could not do things, and she and other family members cooked for him.
287He sometimes watched movies and television, but had given up his interests, losing interest in everything, like playing soccer and things like that.
288Sometimes relatives came to the house, but he stayed in his room. He rarely went out with a friend. It was difficult, and he could only walk for short distances.
289His current pain was in his lower back, neck and left shoulder. He described limitations and reduced tolerances. He could not “lift any stuff” and had no power in his arms. He reported his right shoulder was now getting numb, and quantified the current level of pain at 9 out of 10.
290He described his mood at zero out of 10, zero being the lowest possible. He said he did not have a good mood and was sad, depressed all the time, because of the accident. When asked about his anxiety, he said he was tense and got tenser as time went on. When asked about panic attacks, he said he had them, and he felt overwhelmed often. They were brought on because he thought about how his life had changed, and that made him very distressed.
291He said he used a walking stick all the time. His left leg became numb and he could not move. He started using the walking stick a year after the accident.
292When asked about memory and concentration, the plaintiff reported it was very bad, and he forgot things. He said that he could not work because of the pain and his depression, and that everything prevented him from working.
293The plaintiff presented limping into the interview room, using a walking stick. He appeared tremulous. He was well dressed in casual clothes, and good apparent personal care was evident.
294He was short on information, giving minimal answers. There was mild irritability and disgruntlement evident. He gave minimal content to his answers. There was variable but generally very poor eye contact, and rapport was impossible to establish. There were no tears or distress, and he was not obviously mistrustful.
295There were no obvious pain-related behaviours, though the plaintiff quantified his pain at 9 out of 10. He stayed in the chair throughout the interview, and only looked at the interpreter. His mood was low, and he quantified it at zero out of 10. There was probably a downturn in the quality of mood evident at interview. Affect was appropriate and congruent, subdued, and there was reduced range.
296There was no thought/form disturbance, no features of psychosis. The plaintiff reported persistent features of traumatisation with avoidance, fear, trepidation and increased vigilance when in a car.
297His perceptions appeared to be of normal intensity when examined, and did not appear to be heightened. There were no illusions, dissociation or hallucinatory phenomena. There was no flashback phenomenon.[69] He was alert, aware, orientated and in clear consciousness, and there appeared to be no cognitive impairments due to organic factors. There was the complaint of the subjective impairment of memory.
[69] The plaintiff seems to report flashbacks on this examination
298AP Doherty concluded insight was not impaired by a psychiatric condition, but judgment may be impaired by a psychiatric cause.
299In terms of diagnosis, the predominant claim was that of pain, predominantly located in the back and neck, but also right arm. The plaintiff complained of being depressed, stressed with a cessation in driving. There were features of traumatisation, in that he was too scared to drive, and wary and vigilant and alert as a passenger.
300However, there was exaggeration and overstatement, with extraordinary self-report of levels of pain and depression, claiming his mood was zero out of 10 and his pain level was 9. The plaintiff reported significant functional limitations. AP Doherty noted degenerative findings in the cervical and lumbar spine.
301Putting the available information together, the plaintiff has pain symptoms, some mood symptoms, and symptoms of traumatisation following the accident. He also exaggerated and overstated his level of impairment.
302AP Doherty thought there was present a diagnosable Adjustment Disorder with Depressed and Anxious Mood with features of traumatisation. He noted Dr King’s assessment in November 2015 of PTSD and Major Depressive Disorder.
303AP Doherty thought the plaintiff would not meet the usual diagnostic criteria for PTSD, as the nature and circumstance of the accident is not of such severity to make the essential criteria.
304He gave consideration as to whether or not there was a pain-related psychiatric condition, and in his opinion, there was not.
305The plaintiff came to the interview using a walking stick and limped. He gave the 9 out of 10 pain report. There were no concomitant pain-related behaviours to match his self-report of the pain level. AP Doherty thought there was not disproportionate or excessive concern about pain, and what concern there was did not cause significant interference in daily activities.
306He thought an Adjustment Disorder would fade over time. There was some evidence of this, although the plaintiff had not returned to driving. He claimed persistent features of traumatisation for reasons that were unclear, noting there were no immediate serious injuries at the transport accident and he did not attend a doctor for days after.
307The individual forecast for outcome was not favourable. The plaintiff was illiterate in English and had a poor command of the spoken word. He had a very patchy employment history. He had been on a Carer’s Pension. It was unclear what care he did provide or the justification for it. The expectation was that there would be not much progress in the future.
308AP Doherty thought the limitation on return to work had to do with pain-related symptoms and functional limitations. It appeared to him that the psychiatric symptoms caused a limitation on the plaintiff’s capacity for full-time employment but do not take it away fully. The plaintiff would require a vocational assessment before any assessment could be made on his suitability for work. There were significant barriers preventing him from finding employment, with a language barrier, caring responsibilities, his skill base being unclear, and persistent pain and functional limitations.
309It was unclear if the plaintiff had any intention of returning to employment or motivation to do so. His psychiatric condition would not incapacitate him for work.
310AP Doherty thought the plaintiff’s mental state interfered minimally in social and leisure activities.
311On re‑examination on 27 March 2019, the plaintiff reported that his psychological reaction was getting worse over time. He said he sometimes dreamt of people dying from an accident. He told AP Doherty he had not driven since the accident because there had been a build-up of fear, even when he is a passenger.
312The plaintiff said because of the psychological effect, he cannot do anything. When compared to how he was before the accident, he said that now he no longer practiced sports and did not play soccer. He added that he was not going out with friends now.
313The plaintiff told him he had difficulty falling to sleep, and the quality of his sleep was not good. His thoughts caused him to wake up. He might get up at about 5.00am, and occupies the day sitting at home, and did not do anything. He took care of phone calls for his mother, and she did the rest for herself. He did some household chores, and before the accident did all of them. Now his brother and mother helped out, doing the shopping, and she made the meals.
314He reported his pain was mostly across his neck, his low back and left shoulder. The current level was 8 out of 10, and the worst was in his neck. He could walk for half an hour only, and had to use a walking stick, and had been doing that for the past three years because of the “pain in his back neck” which went down into his left leg. Sitting was difficult. He bended very slowly.
315His mood was not good, quantifying it at zero out of 10, saying his brain was not working properly and he was frustrated and bored. He said his motivation and energy were not very good. He described his level of anxiety as 10 out of 10. He had panic attacks when someone was challenging him.
316Presentation on mental state examination was not dissimilar to the last examination. The plaintiff had a good understanding of English. His predominant problem was one of pain. There appeared to be a secondary psychological reaction with clinically significant mood symptoms. A diagnosis of Adjustment Disorder was appropriate.
317AP Doherty considered again whether or not there was a pain-related psychiatric condition present which now would be titled Somatic Symptom Disorder with predominant pain, persisting. He thought there was not one diagnosable. Though the predominant symptom was one of pain, there was not the expression of excessive concern, disproportionate to the known physical pathology, and any concern there was, was not causing significant interference in social and occupational functioning.
318His views had not changed from his June 2018 report. He thought the plaintiff does not meet the usual criteria for a PTSD condition. It was not a serious transport accident and there were mild features of traumatisation which persist. There were minor features of increased arousal and some avoidance. In his opinion, the traumatisation fitted within the diagnosis of Adjustment Disorder with features of traumatisation.
319In his opinion, there was a diagnosable Adjustment Disorder with Depressed and Anxious Mood with features of traumatisation describing the effect of the accident. His views as to prognosis were as before, and there had not been much change in the mental state.
320There was a section in his report where he described the plaintiff’s previous and current lifestyle, including work and study, recreation, social interactions, activities of daily living, and significant relationships.
321The plaintiff told him he was more active socially and had interests and hobbies before the accident. He was, however, unemployed and in receipt of a Carer’s allowance. Following the accident, he said his social and personal activities were significantly reduced. He continued to get the Carer’s allowance, and there was now not much care being provided by him to his mother. In fact, she does various things, including household chores, for him.
322The psychiatric condition related to the accident did not incapacitate the plaintiff for work. He says he does not drive due to a build-up of fears and also pain. That would be a mitigating factor to obtaining employment. There is interference with domestic and leisure activities, significantly so in the domestic and leisure activities, based on self-report.
323AP Doherty provided a supplementary report commenting on Dr Lester Walton’s 2018 and 2019 reports.
324It was unclear to him that Dr Walton made any attempt to justify his diagnosis in his 2018 report, noting Dr Walton made no comment in the mental state examination about anxiety, mood or perception.
325He commented that the reports by Dr Walton were brief. The mental state examination was incomplete. The reasons for making diagnoses were not justified. When the plaintiff presented to him, he was limping and using a walking stick. The plaintiff’s appearance was not commented on by Dr Walton.
326AP Doherty continued to hold his view that the plaintiff does not suffer a pain-related psychiatric condition or a PTSD. He wrote there was a serious transport accident and there are mild features of traumatisation which remain present.
327In his opinion, there remains a diagnosable Adjustment Disorder with Depressed and Anxious Mood with features of traumatisation. That psychiatric condition best describes and accounts for the effect of the transport accident on the plaintiff’s psychological state.
328AP Doherty was subsequently provided with a report from psychologist, Mr Mohammad, dated 10 February 2020, who had diagnosed Mixed Anxiety and Depression secondary to an Adjustment Disorder.
329AP Doherty reviewed his earlier reports where he diagnosed the plaintiff as suffering from an Adjustment Disorder, confirming he came to the view there was no diagnosable pain-related psychiatric condition and no diagnosable PTSD condition.
330AP Doherty noted that Mr Mohammad was also of the view that the appropriate psychiatric diagnosis relevant to the transport accident was that of an Adjustment Disorder and that he made little, if any, mention of pain or traumatisation.
331The only inconsistency noted was when he examined the plaintiff in March 2019, the plaintiff was carrying a walking stick and limped, but Mr Mohammad noted there was a normal gait.
332On re-examination on 28 January 2021, the plaintiff advised he was taking one capsule of venlafaxine daily and continued under the care of his general practitioner and had monthly counselling. His lawyer had advised him to obtain a referral to a psychiatrist.
333The plaintiff now presented without a walking stick, without any pain-related behaviours. He had dropped out of the pain management program. He quantified his current level of pain at 7 to 8 out of 10, mood at zero out of 10 and anxiety at 10 out of 10
334On mental state examination, the plaintiff’s thoughts focussed on pain and he reported a fear of driving. His perceptions appeared normal, he was alert, orientated and in clear consciousness. There appeared to be no cognitive impairments.
335AP Doherty again gave consideration to whether or not there was a PTSD condition. There were no significant features of traumatisation apart from the plaintiff not driving a car, confirming he disagreed with Dr Walton as to the plaintiff having a diagnosis of a PTSD.
336AP Doherty continued to hold his view as to the previous diagnosis. There appeared to be a diagnosable Adjustment Disorder relevant to the accident. There were, however, motivational problems that were there before the accident. The plaintiff ceased work prior to the accident and took to caring for his mother, yet there is very little care necessary to be provided. His motivation to return to a more appropriate community adaption is low.
337The plaintiff’s psychological treatment for the last five or six years is supportive, non-critical, and not focused on outcome improvement, and provides no therapeutic benefit. He is now taking an anti-depressant in a low dose, and appears to have been on Effexor, 75 milligrams, since shortly after the accident for years. He is not attending a psychiatrist, and there is no need to.
338The plaintiff told him that his sporting, social and other interests had changed significantly since the accident but added that he had no social life before the accident and none after it. The history is that he was doing very little before the transport accident and very little after it.
Overview
339All medico-legal psychiatric examiners agree the plaintiff has suffered a psychiatric injury in the accident. The issue in dispute is the nature of that condition and whether the consequences thereof meet the “severe” definition.[70]
[70]T102
340The high point of the plaintiff’s case is Dr Strauss’ relatively recent diagnosis of a Somatic Pain Disorder – in addition to a PTSD and an Adjustment Disorder found by other examiners.
341A Pain Syndrome can result in an impairment under ss(c) if a plaintiff can establish a sufficient causal link between an initial compensable physical injury and a Chronic Pain Disorder which meets the severe criteria of a claim under definition (c).[71]
[71]Veljanovska v Socobell Oem Pty Ltd [2005] VSCA 227 per Ashley J
342It is not in issue that the plaintiff suffered a compensable injury to his spine and left shoulder in the accident.[72] In those circumstances, he has satisfied the first requirement as directed by the Court of Appeal in Veljanovska v Socobell Oem Pty Ltd.[73] He must then establish any impairment related to any resultant pain syndrome is severe.
[72]T101
[73]Supra
343The plaintiff did not proceed with his application pursuant to ss(a) in relation to his physical impairment. While he has undergone investigations and treatment for spinal issues, overall, the medical evidence was not particularly supportive of ongoing organic consequences that were serious as at the date of hearing.
344In summary, Dr Karlov thought the plaintiff’s pain was out of proportion to the clinical findings. Dr de la Harpe thought the lesions were not severe enough to warrant surgery.[74]
[74]T89
345In May 2019, AP Gonzalvo reported that the plaintiff was suffering from non-specific ill-defined pain issues and also degenerative change in the cervical and lumbar spine.
346Dr Thomas, in July that year, found nonspecific pain complaints and had difficulty interpreting the investigations. He thought there was a “possible” Somatic Symptom Disorder and noted the plaintiff seemed quite focussed on his pain complaints but did not seem to be overly disabled.
347Dr Aliashkevich included in his list of diagnoses “Chronic Pain Syndrome”, and the remainder of the diagnoses described were simply taken from the imaging description.[75]
[75] Mr Speck’s opinion in his report dated 15 January 2020
348Having found minimal evidence to describe an obvious pathological lesion as a result of the accident, Mr Love concluded the plaintiff was decompensated as a result thereof and had adopted the role of passive non-involvement in his care.
349Mr Speck’s physical findings were not indicative of any ongoing, underlying organic injury and he thought there was a soft tissue injury which should have resolved within six to twelve weeks of the accident.
Credit
350As Maxwell P said in Haden Engineering Pty Ltd v McKinnon:[76]
“… the weight to be attached to the plaintiff’s account of the pain experience will, of course, depend upon an assessment of the plaintiff’s credibility.”
[76] (2010) 31 VR 1 at paragraph [12]
351While I was not addressed specifically in relation to credit, I had some concerns about the plaintiff’s credit, particularly in relation to his evidence about his receipt of the Carer’s Pension. While he deposed to staying on this benefit after the accident as he would receive the same amount on another pension, initially in cross-examination, he said he would get less on another pension. Further, while he admits his mother is his carer now, he has not contacted Centrelink to advise that he no longer provides care for her.[77]
[77]T117
Current psychiatric condition
352The plaintiff has described, in addition to pain and restriction in his spine and left shoulder, ongoing significant symptoms of anxiety and depression as a result of the accident. He deposed to experiencing PTSD, including nightmares and flashbacks of the accident, and has been unable to return to driving because of fear of further accidents. He is emotional, irritable and unable to socialise.
My observations
353I must take into account all the evidence when considering whether the plaintiff’s current psychiatric impairment is severe. It is not trial by doctor,[78] and my observations of the plaintiff in the witness box are also relevant to my determination of this issue.
[78]Jayatilake v Toyota Motor Corp Australia Limited [2008] VSCA 167 per Ashley JA at paragraph [17]
354The plaintiff’s presentation in Court was not florid or exaggerated. He did not moan or grimace and had rather a flat affect when giving evidence.
355In response to my comments to this effect, counsel for the plaintiff submitted that situation was supportive of part of the diagnosis, in the sense that the plaintiff’s mood came across as very flat and unemotive. He certainly was not hysterical. He gave a consistent presentation with doctors and in the witness box. He was doing his best.[79]
[79]T99
356As counsel for the defendant submitted, there were no tears or distress and there was no obvious pain-related behaviour in the plaintiff’s presentation in the witness box. He was somewhat detached from the concept of pain. He talked about it in a fashion of there being pain.[80]
[80] T82
357I accept the plaintiff was not showing the type of obvious pain-related behaviours often seen with a diagnosis of a Somatoform Pain Disorder.[81] Catastrophising was apparent however when he was examined at Dorset in 2019.
[81]T79
358The defendant does not have to prove there was exaggeration on the plaintiff’s part. The plaintiff has to prove a diagnosable psychiatric condition in terms of a Pain Disorder.[82]
[82]T105
359Although there was an exaggeration of restrictions and overstatement of pain and anxiety levels, there were no significant psychiatric issues on AP Doherty’s most recent mental state examination.
360It is difficult to see on the plaintiff’s presentation to Dr Strauss, on either examination, what was the basis of his diagnosis of a Somatoform Disorder – other than to say Dr Strauss’ view that at least some of the plaintiff’s presentation was psychologically based on an unconscious level and that the plaintiff was not deliberately overexaggerating his problems.
361However, in my view, the plaintiff did overstate his level of restriction in the witness box and when examined by AP Doherty and Mr Speck when describing how he could not even pick up a plate and he did nothing around the house. It seems extraordinary that his mother, with all her health issues, is now the plaintiff’s carer, together with his other relatives.
Medico-legal evidence
362The only psychiatric evidence in this case is from medico-legal examiners.
Dr King
363In 2015, a year or so after the accident, Dr King, who examined the plaintiff on behalf of both parties, diagnosed chronic PTSD and a Major Depressive Disorder. In that examination, he made no mention of any pain behaviour on the plaintiff’s part.
Dr Walton
Dr Walton, who examined the plaintiff in 2018 and 2019 on behalf of the plaintiff’s solicitors, diagnosed a PTSD with parallel depressive symptoms on both occasions. While on the first examination, he found very widespread “possibly” psychogenic pain, it had diminished on re-examination. He did not diagnose a Pain Disorder on either occasion although noting on re-examination there “possibly was an element of the plaintiff catastrophising the seriousness of his physical and psychiatric injury”.
Dr Strauss
364Dr Strauss, who examined the plaintiff on behalf of his solicitors, however, on examination in 2020 and 2021, diagnosed a Somatic Symptom Disorder, a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood and post-traumatic “symptoms”.
AP Doherty
365AP Doherty, who examined the plaintiff on the defendant’s behalf on three occasions in March 2018, March 2019 and January 2021, disagreed with the diagnosis of PTSD and Somatic Pain Disorder, concluding the plaintiff was suffering from an Adjustment Disorder with Depressed and Anxious Mood.
Overview
366There is no dispute the plaintiff has a diagnosable psychiatric condition, but the diagnosis and severity thereof is in issue, with AP Doherty at the “lower end of the range” and Dr Strauss as “the high point”, and the only practitioner who considered there was a Somatic Pain Disorder.
367Significantly, in this case, treating psychologist, Mr Mohammad, who has seen the plaintiff consistently since 2015, makes no mention of that diagnosis. His clinical notes detail complaints of anxiety and depression on every monthly attendance since then, although in 2015, he also noted on a couple of attendances the plaintiff was preoccupied by pain. Mr Mohammad simply diagnosed Mixed Anxiety and Depression secondary to Adjustment Disorder and made no mention of a Pain Disorder. His report is also somewhat outdated, compiled eighteen months before the hearing.[83]
[83]T71
368Further, the plaintiff’s general practitioner, Dr Bahnasawi, made no mention of pain behaviour or nightmares/flashbacks in his numerous reports, simply noting ongoing anxiety and depression.
369While relied on by the plaintiff, rehabilitation medication specialist, Dr Thomas, thought the diagnosis of a Pain Disorder was “possible”, noting the plaintiff seemed to be quite focused on his pain complaints, yet he did not seem to be overly disabled. Although an experienced pain doctor, he was not inclined to recommend any interventional type treatment for the plaintiff.[84]
[84]T91
370While Mr Speck diagnosed a Pain Disorder, clearly, he thought the plaintiff was exaggerating his level of disability. Further, in my view, Mr Love’s comment that the plaintiff had adopted the role of passive non-involvement was not consistent with a psychiatrically based Pain Disorder.[85]
[85]T105
Is there a psychiatric Pain Disorder?
371The only definition of a Somatic Disorder is Dr Strauss’ brief comment – “in other words, a good deal of his physical symptomatology was now psychologically based on an unconscious level”.
372Dr Strauss is an outlier – in his diagnosis of a Pain Disorder – when he saw the plaintiff for the first time six years after the accident. While it was submitted by counsel for the plaintiff that these types of disorders often take a while to develop, there was no medical evidence to that effect.[86]
[86]T103
373While he diagnosed a Somatic Symptom Disorder, Dr Strauss only thought “at least some of the plaintiff’s physical presentation was psychologically-based on an unconscious level”. He also diagnosed an Adjustment Disorder and Mixed Anxiety and Depressed Mood – psychiatric conditions found by the other examiners.
374Dr Strauss did not provide any path of reasoning as to how he diagnosed a Pain Disorder, only saying there was no exaggeration on the plaintiff’s part. He seems to have accepted all of the plaintiff’s complaints, finding he was not exaggerating and then coming to the Somatic Pain Disorder diagnosis without much, or any, explanation.
375I accept the defendant’s submission that on the plaintiff’s presentation to Dr Strauss, his Pain Disorder diagnosis would be questioned, in that the plaintiff was reasonably helpful and cooperative, speech was normal, mildly depressed and anxious.[87]
[87]T86
376AP Doherty, however, has seen the plaintiff three times from 2018 to 2021. He may have not been provided with the plaintiff’s affidavits, but on each examination, he took a very detailed history of the plaintiff’s complaints and restrictions and was aware of the range of matters the plaintiff deposed to.[88] I share AP Doherty’s view that the plaintiff had a relatively inactive life before the accident and nothing much had changed thereafter.
[88]T83
377AP Doherty did give consideration as to whether or not there was a pain-related psychiatric condition present. He thought there was not. He explained there was no non component pain-related behaviour to match the plaintiff’s self-reported pain level. There was not disproportionate or excessive concern about pain, and what concern there was, did not cause significant interference in daily activities.[89]
[89]T81
378He clearly explained why there was not a Somatoform Pain Disorder, although the plaintiff rated his pain highly and his mood very low, concluding that there was no obvious pain-related behaviour.[90] He positively found exaggeration an overstatement.[91]
[90]T79
[91]T80
379AP Doherty also embraced Mr Mohammad’s opinion. While AP Doherty acknowledged the plaintiff reported significant pain symptoms, the rest of the picture does not fit a Somatic Pain Disorder, as Dr Strauss found.[92]
[92]T82
Consequences
380In my view, to succeed in his application for psychiatric impairment, the plaintiff had to establish a Somatic Pain Disorder and that the consequences therefore are severe. That condition can be the only explanation for what the plaintiff describes as significant restrictions from what started off as a soft tissue injury, at best aggravation of degenerative changes, and should have resolved within months, as Mr Speck stated.[93]
[93]T72
381I do not accept that diagnosis.
Is there PTSD ?
382Counsel for the plaintiff submitted there was a situation consistent with PTSD, with the plaintiff saying how frightened he was and not having gone back to driving since the accident.[94]
[94]T108
383Although there are some features of PTSD, particularly the plaintiff’s inability to drive since the accident, I do not accept that any current PTSD symptoms are severe.
384The accident circumstances could not be described as frightening. While the plaintiff has mentioned flashbacks and nightmares to medico-legal examiners, there is no mention of these issues by either Dr Bahnasawi, and, more importantly, treating psychologist, Mr Mohammed, in their reports.
385Dr Strauss only found PTSD “symptoms”, not a full blown PTSD, and thought the other diagnoses were stronger.[95] AP Doherty clearly says it is not PTSD.[96]
[95]T109
[96]T77
386The most appropriate diagnosis, in my view, is an Adjustment Disorder, as diagnosed by the treating psychologist, AP Doherty, and, to some extent, Dr Strauss.
Consequences
387Counsel for the plaintiff submitted the plaintiff’s life has changed considerably, with former fitness, socialisation, getting out of the house and fishing, and now that has gone.[97] He had a work capacity before the accident, even though he was not working, and that capacity has now gone, as Dr Strauss opined.
[97]T116
388It was submitted the impairment is long term as it has been going for seven years since the accident.[98]
[98]T120
389I do not accept that there has been a major change in the plaintiff’s lifestyle since the accident, with very limited activity before. The only activity that seems to have been taken away from him by his accident injury is playing soccer and training, but he was only playing socially, not on a higher competitive level. Further, it is unclear what, if any, affect the accident had on the plaintiff’s ability to engage in household duties.
390Prior to the accident, the plaintiff did not leave a particularly active life, “caring” for his mother, going out for coffee with his friends, socialising, and playing social soccer with his friends. Neither lay witness mentioned the plaintiff having a girlfriend at the time of the accident.
391The plaintiff had not worked for at least six years before the accident and had not taken any steps to return to the workforce, despite he and his family’s affidavit evidence that was his intention.
392Mr Mohammad does not comment on any work incapacity due to psychological issues, focussing on the plaintiff’s physical condition. Dr Bahnasawi does not explain what condition causes the plaintiff’s incapacity for employment.
393Dr Strauss’ view that the plaintiff was never going to work again was not adequately explained and was based on his diagnosis of a Pain Syndrome which I do not accept.
394Taking this evidence into account, I am not satisfied the work consequences of any present psychiatric impairment are severe.
Treatment
395As counsel for the plaintiff submitted, there was an early recognition of the plaintiff’s mental problems with a psychological referral within twelve months and prescription of Effexor relatively early.[99]
[99]T101
396However, whilst counselling and anti-depressant medication have continued, the plaintiff’s general practitioner and treating psychologist have not seen it necessary to refer him to a psychiatrist. The very belated attempt to organise an appointment with Dr Ibrahim this year was unexplained.
397While in paragraph (c) application, physical consequences of a mental disorder can be relied upon,[100] I do not accept the submission by the plaintiff’s counsel that treatment for the plaintiff’s physical condition can be taken into account, particularly as I do not accept there is a Pain Disorder in this case.
[100] Forssell v CIP Constructions (Australia) Pty Ltd [2020] VSCA 304; Noori v Topaz Fine Foods Pty Ltd [2018] VSCA 323
398Taking into account all the evidence, while there may be mood and pain behaviours, they do not get to the level of a Symptom Disorder.[101] Further, I do not accept the plaintiff suffers from PTSD. In my view, his presentation is consistent with an Adjustment Disorder, as his long-term treater has diagnosed.
[101]T85
399The consequences of that condition do not meet the high threshold of “severe”.
400Accordingly, the application is dismissed.
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