Polidano v Transport Accident Commission
[2022] VCC 429
•5 April 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-21-00460
| NICHOLAS POLIDANO | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HER HONOUR JUDGE K L BOURKE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 and 2 March 2022 | |
DATE OF JUDGMENT: | 5 April 2022 | |
CASE MAY BE CITED AS: | Polidano v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 429 | |
REASONS FOR JUDGMENT
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Subject:TRANSPORT ACCIDENT
Catchwords: Serious injury – impairment to the spine – organic injury – psychiatric impairment – range – aggravation – credit
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited: Richards & Anor v Wylie (2000) 1 VR 79; Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Barwon Spinners Pty Ltd & Ors v Podolak (2005) 14 VR 622; Transport Accident Commission v Katanas [2017] HCA 32; Petkovski v Galletti [1994] 1 VR 436; Kamel v Transport Accident Commission [2011] VSCA 110; Dordev v Cowan & Ors [2006] VSCA 254; Archer v Garcia [2022] VSC 57; Jones v Dunkel (1959) 101 CLR 298
Judgment: Applications dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S R McCredie with Ms K Karadimas | Ellis Palmos & Co |
| For the Defendant | Mr J L Batten with Ms J Ryan | HWL Ebsworth Lawyers |
HER HONOUR:
Introduction
1This is an application brought by an Originating Motion for leave pursuant to s93(4)(b) of the Transport Accident Act 1986 (“the Act”), to bring proceedings to recover damages for injuries suffered by the plaintiff arising out of a transport accident which occurred on 6 May 2017 (“the 2017 accident”).
2The application is brought pursuant to s93(4)(d) of the Act. Sub-section (6) provides:
“A court must not give leave under sub-section (4)(d) unless it is satisfied that the injury is a serious injury.”
3
The definition of “serious injury” relied upon by the plaintiff is under
s93(17)(a):
“Serious long-term impairment or loss of body function.”
4The body function relied upon by the plaintiff in this application is the lumbar spine. A psychiatric impairment was also claimed pursuant to ss(c).[1]
[1]Transcript (“T”) 341
5The enquiry under ss(a) of the definition focuses attention, first, upon whether the injury has produced an organic impairment or loss of body function, and then, by reference to the consequences of that impairment, to determine whether it is serious and long term.
6The injury will be considered a physical injury under the Act if it is predominantly the product of an organic physical condition.[2]
[2] Transport Accident Commission v Kamel [2011] VSCA 110; Richards & Anor v Wylie [2000] 1 VR 79
7The serious injury defined by sub-paragraph (a) can have its seriousness measured in part by a mental response to a physical impairment. What it will not recognise is that the mental disorder can itself constitute or be the producer of the impairment of a body function.[3]
[3] Richards & Anor v Wylie (supra)
8In 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’”.[4]
[4]Humphries and Anor v Poljak [1992] 2 VR 129 at 140-1
9The word “severe” indicates a more significant injury is required to meet the test in sub-paragraph (c) of ss(17) of the Act, compared to sub-paragraph (a).[5]
[5]Mobilio v Balliotis (1988) 3 VR 833; see also Transport Accident Commission v Katanas [2017] HCA 32
10The plaintiff relied on four affidavits and gave viva voce evidence. He was cross-examined. He also relied on affidavits sworn by his friend, Paul Sessarego, on 6 September 2021, and his partner, Victoria Lyons, sworn 9 September 2021. In addition, both parties relied on medical reports and other material which was tendered in evidence. I have read all the tendered material. CCTV footage of the 2017 accident was also played in Court.
11In addition to issues of range, this application involved an aggravation of both a spinal injury and a psychiatric injury arising from an earlier transport accident in 2014. Also in issue was whether any current spinal impairment is predominantly organically based.[6]
[6]T122
The Plaintiff’s evidence
12The plaintiff is aged thirty, having been born in December 1991. He has lived with his partner, Victoria, since 2018.
13Having completed VCE at the end of 2009, he started full-time work at his father’s company, Panther Bobcat Hire Australia - Panther Earthmoving. He wanted to learn the trade and all aspects of the business so that he could later take it over.
14Initially, he worked on the bobcat and did general maintenance on earthmoving equipment, and moved into other management roles.
15On 26 May 2014, he was involved in a hit and run accident while he was riding his pushbike. He suffered an injury to his lower back (“the 2014 accident”).
16His TAC claim was accepted. He attended Mr Etherington, orthopaedic surgeon, who did not recommend surgery. He had physiotherapy on an “as needs” basis. He also saw Dr Clayton Thomas, consultant in rehabilitation and pain medicine, who told him to use Ketamine cream on his back.
17Although his lower back pain had not completely resolved, he was able to manage his day-to-day life, work, and play sport without too many issues.[7]
[7] Affidavit sworn on 5 May 2020
18In his first affidavit, the plaintiff also deposed that he did not recall having any time off work; however, this was not the case. He did have time off work, as well as altered duties. He was away from work for periods just after the accident and some later periods. He did not recall how much time he had off immediately after the accident.[8] It might have been for some weeks, and then his father started getting him back slowly, just going with him a couple of days for an hour or two to see how he coped until he could get back. That was at the start. Later on, he “imagined” he had just days off. He did return to full-time duties after May 2014, and “definitely” by 2017.[9]
[8]T20
[9]T21
19Initially, when he went back to work, his duties were altered. He did different tasks, with restrictions on lifting, bending and driving. By 2017, he was back to more duties and hours.[10]
[10]T21
20The plaintiff could not recall receiving TAC payments for eighteen months from 3 June 2014 to 25 November 2015.[11] Arnold Thomas and Becker acted for him in relation to the 2014 accident.[12]
[11]Payments totalled $58,714
[12]T48
21The plaintiff saw psychologist, Erica Lurie, in 2015 and 2016. He may have told her when seen on 12 August 2015, that the 2014 accident changed everything and that a year later, he was just doing office duties and driving trucks.[13]
[13] T49
22He disagreed that he became depressed following the 2014 accident, as she described, but he probably had “some extreme sadness” from it. He disputed he was at risk of self-harm, as she reported to his general practitioner in December 2015.[14]
[14]T49
23He agreed that the 2014 accident was significant “but not to the same degree as to what happened now”. He had the treatment that was offered. He may have been totally off work until October 2015, when the TAC made the decision that he had a work capacity.[15]
[15]T50
24He returned to graduated work after the 2014 accident and gradually built up his hours, but could not remember to how many. He could not remember the TAC sending him to a rehabilitation organisation. He definitely did get back to pre-injury hours and duties. He could not say exactly when. It was on the records.[16]
[16]T52
25Certificates leading up to the May 2017 accident “only really” had restrictions to make sure that if he was driving, he stopped and got out and stretched his leg. He agreed with the contents of Dr Chuo’s certificates of 28 February and 6 June 2017.[17]
[17]T83
26He accepted that he was still getting regular physiotherapy in 2015 and 2016, and seeing Ms Lurie, if that was what the records said.[18]
[18]T53
27He did not believe he ever did a pain management course for his 2014 accident injuries.[19]
[19]T54
28He agreed that he had another transport accident in early October 2016, but he did not recall anything major in terms of injury. A few weeks before the 2017 accident, there was an incident at work where a customer grabbed him by the throat. He did not hit the customer.[20]
[20]T53
29The plaintiff was asked at length about the history, recorded Dr Ingram, psychiatrist, whom he saw on 21 October 2015. He “must have told him” that his main physical problem had been one of constant low back pain, and the pain had been with him the whole time, with activity. He was not so sure that he told him of sometimes having numbness in the left leg, because he was pretty confident that he had problems with his right leg.[21]
[21]T56
30The plaintiff must have told him that he had become very limited in what he could do, and could only work for a few hours a week.[22] It could be correct that he told Dr Ingram that he was mostly doing jobs such as tendering or organising other employees and only occasionally being able to do a few hours’ driving and that that situation had been extremely disappointing for him and his father and put the business under significant financial stress.[23]
[22]T57
[23]T58
31He told Dr Ingram he had stopped a range of pre-accident activities and just spent his time watching television at that stage.[24] He had then given up hiking but not walking as a result of the 2014 accident. He had not resumed hiking,[25] but then said that after 2014, before 2017, he went on a few hikes, got back to futsal, but never really rode his bike again.[26]
[24]T58
[25]T80
[26]T81
32He disagreed that it was difficult for him to enjoy himself and there had been a loss of motivation and interest and he had become more withdrawn and tearful.[27] He thought Dr Ingram’s history was “a big dramatization”. He was still able to do tenders and still able to bring in some work. He did not tell Dr Ingram that the family business was crumbling. It never crumbled.[28]
[27]T59
[28]T60
33He agreed that he had had an issue with his back since 2014, “but it had changed since then”. Before the 2017 accident, he was getting spasms but they were different – very different. He has only had osteopathic treatment since the 2017 accident.[29]
[29]T84
The 2017 accident
34On 6 May 2017 (“the said date”), the plaintiff was working as the operations manager and safety officer. That day he was randomly assaulted, while he was alone and trying to close up the yard, by a group of men who intended to steal from the yard. He was punched by them after he refused to turn off the surveillance camera and give them the keys (“the assault”).
35One of the thieves got into a car and the plaintiff bear hugged him in the front passenger seat, as the car was stationary. Then, he grabbed a tight hold on the plaintiff and the driver accelerated and started driving, with him hanging on the side. Half of the plaintiff’s body was dragged on the road, and he was struggling to free himself.
36The plaintiff finally managed to kick himself off when they reached the end of the street. He then remembered a crashing sound when his head hit the bitumen. Somehow, slowly he got back to the yard.
37When first seen on the CCTV footage, the plaintiff was bear hugging the passenger in the front seat. He was hanging onto “the guy” and he had grabbed onto him whilst the car was moving. His arm was pinned behind “the guy’s back” while he was sitting in the front seat. He thought he was probably dragged about two or three courtroom lengths.[30]
[30]T23
38The plaintiff was cross-examined at length about the lead up to the assault and following the accident, and various descriptions of the accident circumstances he had given at hospital after his injury.[31]
[31]T24 ff
39He could not recall giving the history recorded at the Sunshine Hospital. He did not hold onto the bumper so he would not have said that.[32]
[32]T35
40Just the top part of his body, his torso and his arm, was inside the car because the door was still open. He did try to run alongside the car as he was being held. He tried to keep his feet on the ground/ The car was pulling him. He did not accept that he was running at some stage beside the car.[33]
[33]T38
41Before being dragged, he was assaulted by the other men.[34]
[34] T46
42He could not remember telling the ambulance officers that he had chased one of the offenders to his car and been dragged 30-50 metres.[35]
[35]T43
43He declared the contents of his electronic TAC Claim Form to be true and correct. However, probably someone at Panther Earthmoving completed the form on his behalf.[36]
[36]T46
Post-accident
44His parents attended the yard, and the ambulance and police arrived later. He was taken by ambulance to Sunshine Hospital where he was transferred to the Royal Melbourne Hospital, where he was an inpatient for about two-and-a-half weeks, having suffered a head injury and multiple physical injuries.
45His spine took the most impact. He was later transferred to Brunswick Private Hospital (“Brunswick”) for about three weeks. He was under the care of his general practitioner, Dr Chuo, while attending Brunswick as a day patient.
46Dr Chuo referred him to a physiotherapist, whom he saw a couple of times in 2017, and he then transferred to a local physiotherapist in Glenroy. He saw a spinal surgeon, Mr Nair, but he did not recommend surgery.
47The plaintiff was referred to Dr Raju Yerra, neurologist, who gave him an L5 nerve block injection in his lower back, which gave him short-term relief.
48The plaintiff used a wheelchair for months after the surgery and also used crutches for at least a year until sometime in 2018, because his left leg was giving out on him.[37] As there has been some improvement in his back since 2017, he is no longer in a wheelchair or using crutches or a walking stick.[38]
[37]T40
[38]T80
49In 2018, he was referred to a team of specialists at Precision Brain and Spine, where he underwent a pain management program and saw a psychiatrist. A nerve stimulator was then suggested but the plaintiff was not happy to have this procedure.
50He sought a referral to Dr Clayton Thomas, pain specialist, whom he saw in about July 2019. Dr Thomas suggested a Ketamine infusion, which the plaintiff had in September that year. This procedure gave him some relief for three months. The pain was manageable and allowed him to do his exercises again.
51As at May 2020,[39] the plaintiff had been seeing Ms Lurie about once every two months. She had earlier seen him after the 2014 accident.
[39] First affidavit sworn on 5 May 2020
52He was also then seeing an exercise physiologist, Lisa Bufalino, who gave him home exercises and he did a clinical form of Pilates at her clinic. He was no longer having physiotherapy because it did not give him relief. Instead, he was having osteopathic treatment with Angelica, which had been good for him. He saw both Lisa and Angelica once a week at the same clinic, but the COVID-19 pandemic had impacted on the frequency of some of his treatment.
53He was then taking one to two Endone tablets a day, Effexor every day, up to eight Panadol a day, and up to six Nurofen. He otherwise took Seroquel, Nexium and Quick-Eze when needed.
54He had sustained injuries to his whole spine, but his lower back and left leg were the worst from the 2017 accident. He also had Post-Traumatic Stress Disorder (“PTSD”), anxiety and depression.
55Dr Thomas performed a second Ketamine infusion in about June 2020. It was beneficial at the time but had worn off, and his back pain returned to its pre-second infusion level.
56As at 16 May 2021,[40] the plaintiff continued to see his general practitioner, Dr Chuo, monthly and also Ms Lurie about twice a month. She was recommending that he attend a PTSD clinic and see a psychiatrist.
[40] Second affidavit
57He continued to see Angelica, his osteopath, on average weekly. He no longer saw Lisa, because after the Ketamine infusions were wearing off, his back pain flared up when they did exercises.
58He was then taking one to two Endone tablets a day, and up to six Nurofen. He had cut down his Panadol intake and might have taken between two to six a week. He had also stopped taking Effexor and instead was taking Setrona, 50 milligrams a day. He took Seroquel, Nexium and Quick-Eze when needed, and sometimes took Valium, 5 milligrams, maybe once a fortnight to help him sleep.
59He had a third Ketamine infusion in May 2021 performed by Dr Lim. It was less beneficial than the previous ones, and he felt it wore off quickly.
60After this infusion, Dr Lim referred him to pain management at North Eastern Rehabilitation. The weekly treatment varied because of the pandemic but, overall, the program consisted of a wide range of treatment which the plaintiff continued until the end of November/start of December 2021.
61After this program, he continued to see the psychiatrist from the program, Dr Tobie Sacks. He had also gone back to Erica, but appointments had been sporadic.
62Currently, he sees Dr Chuo monthly. He has gone back to Dr Thomas for pain management, and continues to see Angelica when he can get in – about once a week.
63He is currently taking Endone, Ibuprofen, Sertraline and sometimes Seroquel, Diazepam and Panadol, but no longer takes Targin or Effexor. He had been taking Effexor since the 2014 accident and took other drugs when needed. He was prescribed Endone after the 2014 accident – he was not taking it regularly before 2017, just if he had a flare-up.[41]
[41]T78
64He had had an endoscopy and his doctor suggested he take Nexium more frequently to help his stomach, and look after his diet. Those issues had settled down.
Post-accident work
65Due to his injuries, he had been unable to return to pre-injury work. He received WorkCover payments for 130 weeks.[42]
[42] Weekly payments from May 2017 to 12 November 2019 totalled $149,670
66He never worked for Panther Earthmoving again after the 2017 accident.[43] He sat in the new excavating machine, but never drove it.[44] He tried to negotiate with Allianz to organise some suitable employment. When it was then put through Allianz, it never eventuated.[45]
[43] T62
[44] T62
[45]T71
67He could not take over the family company as had been planned, and his employment was officially terminated as of 30 June 2019. The termination by his father was friendly. There was no fight or argument.[46]
[46]T76
68His father’s business never “crumbled” as Dr Ingram described, and Panther Earth Moving “still exists, but it’s not operating”.[47] He believes his father sold up the last of the equipment in the first half of 2021.[48]
[47] T60
[48] T85
69The plaintiff’s taxable income in the 2016 financial year of $58,824 represented back payments from TAC plus earnings at Panther Earthmoving.[49]
[49]T87
70His taxable income of $122,525 in the 2017 financial year was wages from Panther Earthmoving, as well as commission.[50]
[50]T88
71He could not explain why the gross amount he declared in the 2018/2019 financial year was $121,789, when he did not return to work for Panther Earthmoving after 6 May 2017.[51]
[51]T70
Panther Security
72The plaintiff first started looking for alternative employment between 2017 and 2018. He did not register with a labour hire company. He was just trying to talk with Allianz to organise alternate duties within Panther Earthmoving.[52] He did speak to other people in the industry.[53]
[52]T72
[53]T73 and T75
73In about August 2019, he started his own company which was under the family trust “NVGP Family Trust”, trading as Panther Security. He was a director but had only been working part time up to twenty hours a week as certified.
74Panther Security was set up to do risk assessments and auditing for the construction industry, and also supplied parts to the earthmoving industry. This was different to Panther Earthmoving. The plaintiff had tried to use the skills he had earlier learned that also fitted within his physical restrictions.
75Doing yearly risk assessments required someone going to a client’s site. He chose to go to sites depending on the equipment that needed to be assessed. He had lost some customers who required certain equipment to be assessed that he could not do because of his low back injury. He had also lost work because some sites required drug tests to go onsite, which he had failed because of his Endone intake.
76When he initially set up his company, Victoria was working full time, but by 2020 she had a full-time job outside the company and helped out with the business after hours.
77The plaintiff had been extremely fortunate to have his friend, Paul, who had been helping him do more of the physical parts of the job – a lot of this being free of charge, but he needed to start paying him properly. Paul’s involvement allowed the plaintiff to manage the online part of the business.
78As of May 2020, the plaintiff did not believe that he was capable of working full time, even in his own business, because of his low back injury. He did administration/office duties from home during the week. He could work at his own pace and whenever he felt up to it. He was still only doing part-time hours and was unable to work full time.
79On good days or weeks, he did some local assessments close by which he could physically cope with. Victoria had gone with him to do a couple, but it was hard for him to get her to do them given she had a full-time job. Otherwise, she continued to work with him part time, mostly on the weekends or in the evenings, and she helped process online orders.[54]
[54]May 2021 affidavit
80Paul was working with him until the end of March 2021, when he wanted to pursue further studies. That made things harder for the plaintiff, as Paul was doing a lot of onsite assessments for him, together with the more physical parts of the job.
81In an average week, the plaintiff does five risk assessments, charging $90-$150 per job. He does not accept work which involves onsite or heavy lifting.[55] He would not say his business was profitable. He is not able to do enough work.[56]
[55]T94
[56]T96
82He did not know what the gross income of Panther Safety was in the period ending 30 June 2021, or how much contractors were paid in that period. He could not say what the gross monthly income from sales was in October to December 2021. He disagreed that there would be no reason why he would not be working thirty to forty hours online. He has difficulties working on a computer and also concentrating. His back “spasms out” and then it starts causing problems.[57]
[57]T78
2019 road rage incidents
83The plaintiff had an incident in August or September 2019, when an erratic driver wound down his window and started verbally abusing him and then pulled out a handgun and threatened him. The plaintiff freaked out, slammed on the brakes and got away from him. He filed a police report.
84He was not physically injured in this incident, but he suffered stress and anxiety, which he dealt with. His psychologist helped with this, and he felt okay from that incident at that stage.
85On 17 December 2019, he was returning a client’s vehicle when he encountered two cars street racing. From out of nowhere, they threw an aerosol can onto his windscreen. He stopped and jumped out to take photos of their registration numbers and they jumped out of their cars and started physically assaulting him and stole his phone and wallet. He had bruising to his head and chest and suffered a black eye.
86He was lucky that his back was not re-injured in this assault. He saw a different psychologist as he could not get an appointment with Erica. He felt like he had recovered from that incident.
87He agreed that these road rage incidents increased his anxiety and stress at the time, and caused him to go to his doctor for treatment.[58]
[58]T79
Pain
88As at May 2020,[59] lower back pain was present every day, and it became so painful sometimes that he lost concentration, as his mind was on the pain. That pain referred down his left leg and gave him a lot of grief. His leg became weak and sometimes it gave out. It caused him to fall, and he tried to be near things so he could hold on to support himself.
[59] First affidavit
89He had pins and needles and altered sensation down his left leg, and sometimes the pain even radiated up his spine from his lower back and he had pain in the middle back and neck.
90He was previously very active and eager to work, and he spent a lot of time in the yard and often worked six days a week. Not being able to work full time had affected him mentally and he worried about his future. He was also heavily affected by the Endone and other medication. On many days, that medication made him feel down, slurry and unable to concentrate. It was as if he was drunk. This was another reason he had struggled to work full time.
91As at May 2021,[60] there had been no real change in his condition.
[60] Second affidavit
Activities
92He had bought an automatic car in August 2019, as he was struggling to drive a manual. He drove locally in his Kia Sportage to see clients but had to be careful because of his medication. He avoided long drives.
93Before the 2017 accident, he used to ride his bike, but could no longer do so because of his low back pain. He also went hiking with his youth group at Werribee Gorge and Dandenong Ranges about twice a month but had not attempted to do so since the 2017 accident, as he would not be able to climb or walk on uneven terrain.
94He used to play futsal weekly with friends. He no longer played because of his injury. He had tried once since the 2017 accident to kick a ball with his friend at home but could not do more than a couple of kicks without pain.
95As time had gone by, his left leg has significantly weakened and he did not have the confidence in it, as he worried it would give way and cause him to fall. He had accepted that he cannot play sport as a result.
96He tried to go for walks on his doctor’s suggestion but needed to go somewhere where there was a railing to hold onto or go with Victoria. He had a little Staffordshire dog which helped him with his mental health. Generally, Victoria needed to walk the dog because, if it pulled the lead, it hurt the plaintiff’s back.
97As at May 2021, the plaintiff still went walking at the football pitch but was trying not to rely on the railing as much, as Lisa suggested it could assist him with his balance. He also went for a walk around the block when he felt up to it.
98Since the 2017 accident, he had been overseas twice. First, at the end of 2018, he and Victoria went to Ireland to visit her family, stopping in Thailand for about a week on the way.
99Before this trip, he attended his general practitioner as he required a letter from him to give to Customs about the type of medication he was taking. He had pain and discomfort on all flights and his activities were limited and restricted because of back pain.
100He went to Fiji with Victoria in December 2021 for about eight or nine nights. His father helped him with his luggage at the airport, and in Fiji, the plaintiff arranged for porter’s assistance. He took his normal medication throughout the trip. He had pain and discomfort on his flights and his activities were limited and restricted because of back pain. He did some light swimming in the resort lagoon and found the water to be helpful for his back pain.
Domestic
101As at May 2020, he tried to do some light house duties but suffered later, given his difficulty with movements that required twisting, bending or stooping. Victoria did the heavier work. He went shopping with her, but she carried most of the bags. He did things within his limitations and modified his gardening so he could cope.
102Victoria injured her shoulder in 2020, so it had been difficult for them at home, as she used to do a lot. Accordingly, they relied on family assistance. His general practitioner had also requested home help and gardening assistance from WorkCover, which had been approved, and they were trying to find a cleaner and gardener.
103He had to alternate between standing and sitting to find a comfortable position, as his back pain flared with certain movements. When it was bad, he lay flat on the floor for about an hour to help stretch his back. That happened every second or third day, and he used a heat pack.
Sleep
104As at May 2020, he had issues with sleeping, and most nights woke from pain and struggled to get back to sleep. He took Seroquel when he had too many nights of bad sleep, only if he knew he did not have to work. It knocked him out for a couple of days, and he did not function well. He had had to sleep with his feet flat on the bed and knees up. He often used heat packs and sometimes, Victoria rubbed his back.
105He woke from nightmares almost every night and screamed in his sleep. He woke up in a fright, or as though something was happening. He did not feel well rested and felt drowsy every day.
106His sex life had reduced significantly. He had a loss of libido, but the medication also caused dysfunction issues. They were quite sexually active before the 2017 accident, but it had greatly impacted on their relationship. He also had a problem with leakage randomly. His injury had placed a toll on their relationship, and they argued a lot.
Mental
107As at May 2020, psychologically, he was significantly affected and felt depressed and anxious. He was often irritable and frustrated. He became angry that he had been a victim and, without trying to sound racist, he felt scared whenever he saw Middle Eastern-looking men when he was out, because the group that assaulted him looked like that.
108His mind was like a yo-yo, and he found that hard to manage. He did not like being around too many people or anyone outside his group. His memory and concentration were affected, and he lost his train of thought easily. He was not the person he used to be, and that was what he found hardest to deal with.
109He also carried a lot of guilt about how his situation had affected his father, who was struggling with depression because of what had happened to the plaintiff in the 2017 accident. His father was not operating the business anymore and had sold most of it. It hurt the plaintiff to see his father in this state. Their dream of him taking over the family business had been taken away.
110He continues to feel depressed and has been in quite dark places since swearing his first affidavit. He struggles to cope mentally from the 2017 accident. His depression had worsened, and his anxiety had heightened even more since May 2020.
Surveillance film
111The plaintiff agreed that on the four days he was filmed,[61] he was shown boarding and driving his car, stepping up into and down from the cabin of an excavator, operating an excavator using both hands, driving a tipper truck and bending forward from the waist. The bags of cement he was shown lifting would weigh between 15-20 kilograms. He was filmed undertaking landscaping duties in his front garden. His father came over to landscape on the dates shown.[62]
[61]26 June, 1, 2 and 4 July 2019
[62]T65
112On 26 June 2019, he was filmed holding a circular saw in his left hand and a battery in his right, carrying pieces of steel meshing which weighed about a couple of kilograms.[63]
[63]T66
113On 1 July 2019, he was working at his own house. He agreed the film which he had seen showed him and his father doing a range of activities at his house, including driving a tipper truck and lifting bags of cement, leaning and retrieving material from a vehicle, operating an excavator in his front yard using both controls.[64]
[64]T63
114His father pushed him and said, “come on, let’s see what you can do”, and that is what the plaintiff tried to do.[65]
[65] T69
115He disagreed that he exaggerated his level of restriction when he saw Dr Slesenger compared to what was shown on the film.[66]
[66]T67
Summary of the Plaintiff’s taxation returns
Financial Year ending 30 June Employer Gross Taxable Earnings 2014 Panther Bobcat Hire (Aust) Pty Ltd as trustee for the Polidano Family Trust $62,765.00 2015 Panther Bobcat Hire (Aust) Pty Ltd as trustee for the Polidano Family Trust
TAC payments – $58,714 to October 2015
$11,499.00 2016 Panther Bobcat Hire (Aust) Pty Ltd as trustee for the Polidano Family Trust $58,824.00 2017 Panther Bobcat Hire (Aust) Pty Ltd as trustee for the Polidano Family Trust $122,525.00 2018 Panther Bobcat Hire (Aust) Pty Ltd as trustee for the Polidano Family Trust $87,870.00 2019 Panther Bobcat Hire (Aust) Pty Ltd as trustee for the Polidano Family Trust
WorkCover payments $149,670 – 130 weeks – May 2017 – November 2019
$97,311.00 (Panther)
$24,656.00
(supplementary income)
2020 Trustee for the NVGP Family Trust and Allianz Australia Workers Compensation $44,439.00 (WorkCover payments) 2021 Trustee for the NVGP Family Trust $27,198.00
Company taxation returns
NVGP Family Trust, trading as Panther Safety
Financial Year ending 30 June
Business Income
Business Expenses
Total income after expenses
2020
$72,688.92
$66,689.72
$5,999.20
NVGP Family Trust
Financial Year ending 30 June
Business Income
Business Expenses
Net small business income after reconciliation
2020
$80,027.00
$74,028.00
$3,987.00
2021
$143,507.00
$169,059.00
$35,575.00
Lay evidence
Paul Sessarego
116The plaintiff’s friend, Paul, swore an affidavit on 6 September 2021 confirming the plaintiff’s regular complaints of back pain post the 2017 accident, his struggles with bending and lifting, declining futsal, hikes and coming out for dinner, requests for him to help him with the more physical aspects of the job like assessments, walking slower and being less mobile than prior to the 2017 accident.
Victoria Lyons
117The plaintiff’s partner, Victoria, swore an affidavit on 9 September 2019. They first met at a Halloween party in 2015.
118Up until and at the time of the 2017 accident, the plaintiff worked long hours, sometimes ridiculously long, with his dad, and was in and out of excavators and trucks every day.
119After the 2017 accident, she recalled they had a discussion about what work he would be able to do because of his back pain and restrictions. When he set up Panther Safety, he could not lift boxes or move stock, and made mistakes with paperwork as he could not concentrate properly, all due to back pain.
120Because of his back pain, he is not as active as before the 2017 accident. They are unable to go on long walks anymore, go hiking, do fun activities that young couples should, and their intimate life has been affected.
The Plaintiff’s medical evidence
Pre 2017
Treaters
Mr Greg Etherington, spine surgeon
121Mr Etherington first saw the plaintiff in March 2015 with respect to his lumbar and leg symptoms.
122Mr Etherington noted the 2014 accident circumstances. Thereafter, the plaintiff was discharged from the Sunshine Hospital. He had a variety of aches and pains in a number of places, however, most settled. About two weeks later, he started to notice persistence of pain in the left side of his lower lumbar spine, for which he saw an osteopath, with no definite improvement, and subsequently had physiotherapy from August 2014.
123On examination, the plaintiff’s main problem was lower lumbar pain, which, if severe, could radiate slightly to the right, and also up and down. Treatment then included some Voltaren, and possibly Panadol.
124The plaintiff had limited lumbar flexion and extension and both movements were uncomfortable. Neurological examination was normal.
125Noting the August 2014 CT scan and the February 2015 MRI scan, his impression was the plaintiff’s symptoms were consistent, with degenerative changes in the lumbar spine, and it was not then possible to say exactly where the pain was coming from.
126Mr Etherington organised a further CT scan and x-ray. The scan showed good disc height and the bone quality was reasonable. There was no spondylosis at any level. There was some minor facet arthropathy at L4-5 and, to a lesser extent, L5-S1.
127Overall, he reassured the plaintiff there were no disasters going on. Specifically, there were no fractures, either old or new, in the area, and there was no other indication for surgery.
128The difficult part was to say, what was the cause of the plaintiff’s pain? Unfortunately, Mr Etherington could not be more specific. Although there were degenerative changes present, it was not 100 per cent possible to say where the pain was coming from. He suggested some pain management treatment in Footscray.
Post 2017 accident
Mr Nair, neurosurgeon
129Mr Nair saw the plaintiff at Dr Chuo’s request in August 2017.
130The plaintiff walked in to the examination with the aid of a four-wheeled frame, however, even without that frame, he was able to take steps and walk short distances. He was not able to co-operate with testing for range of movement. He had a non-dermatomal pattern for almost whole limb pins and needles on the left lower and upper limb.
131Lumbar MRI scans showed a small disc at L4-5, which was not causing severe neural impingement. Previous scans done at the Royal Melbourne Hospital showed fractures at C4 and a spinous process fracture at the thoracic level that had been treated conservatively.
132Although the plaintiff had extensive symptoms, Mr Nair could not find any co-related pathology to explain all of that and the plaintiff certainly did not need surgery. The only suggestion was that the plaintiff explore the possibility of having a nerve conduction study by Dr Yerra to rule out any peripheral nerve causes and, of course, being referred to a pain specialist for enrolment of a pain management program.
Dr McCallum, pain physician and specialist anaesthetist - Precision
133Dr McCallum first saw the plaintiff in July 2018.
134In a letter to Dr Chou dated 18 July 2018, he advised that the plaintiff then described central lower back pain, worse on the left than the right, going down his left leg.
135“Past medical history” was said to be “Nil”.
136On examination, Dr McCallum thought the plaintiff’s back pain was going to be musculature in origin. He probably had a left-sided radicular pain, but that did not match the MRI scan findings, as that was on the other side, noting that at L4-5, there was a right paracentral disc bulge, resulting in right L5 contact.
137The plaintiff had been diagnosed with PTSD and seemed to be depressed and anxious. Dr McCallum suggested a range of treatment regimes.
138In his August 2018 report, Dr McCallum advised Dr Chuo that the weight-bearing MRI scan showed no change in the standing position. The plaintiff was then walking two laps of the oval, not using a crutch, but holding onto the rail and using a crutch at other times.
139He suggested a range of recommendations for treatment and noted the plaintiff was potentially a candidate for spinal cord stimulation in the future.
140In October 2018, Dr McCallum reviewed the nerve conduction studies, which were normal.
141The plaintiff’s pain was then still mainly in the lower back, and he had some left leg pain with odd sensation. He seemed very anxious on that attendance. Dr McCallum made a number of treatment recommendations.
142In his last report of November 2018 to Dr Chuo, Dr McCallum advised that the plaintiff had been approved for the pain rehabilitation program assessment and he would like to see him after the completion of that program.
Professor Peter Teddy – neurosurgeon
143Professor Teddy saw the plaintiff on referral from Dr McCallum in September 2018.
144The plaintiff used a crutch because his left leg tended to go on him and he was not working. Any activity caused him to stay in bed for two days at a time. He thought he was unable to do anything.
145The plaintiff’s pain was pretty constant, although it fluctuated in severity. He described numbness in his outer thigh, with radiation to the great toe, mainly on the left.
146On examination, the plaintiff walked with a crutch and a mild limp. He described hemisensory blunting, including to the face, but his corneal responses were normal. The lumbar spine MRI showed degenerative changes at L4‑5 and L5-S1 without clear neural impingement at either level. He did not think the plaintiff warranted any form of neurosurgical intervention.
Dr Clayton Thomas – rehabilitation and pain management specialist
147The plaintiff was seen on referral from Dr Chuo in July 2019, having previously been seen in 2016 on two occasions.
148Dr Thomas noted the treatment undertaken since the 2017 accident.
149On examination, the plaintiff had predominantly lower backache, with some pain in both legs, with it more constant in the left. He had some lower back tenderness, and back movements were fairly limited in all domains. Neurologically, he was normal.
150On the July 2019 examination, Dr Thomas thought there was nonspecific lower backache, most likely related to the L4-5 disc segment. The plaintiff presented as suffering from a mechanical back problem. There was some left leg pain, probably referred predominantly from his lumbar spine.
151They discussed reducing the plaintiff’s Endone, as he was keen to get off it. They discussed the plaintiff’s work situation and the fact that his company had closed down since the assault. The plaintiff was hopeful of being able to set up another business, merely advising on the use of earthmoving equipment, not so much hands on, and seemed to be very positive.
152Dr Thomas advised he would write to the insurer for an inpatient Ketamine infusion, opioid weaning, and would review the plaintiff again at that stage.
153Dr Thomas also detailed his treatment in 2016, having first seen the plaintiff on 1 February 2016.
154The plaintiff saw Dr Thomas from July until March 2021, when he came under the care of Dr Lim.
155Dr Thomas again reviewed the plaintiff in January 2022, when he advised the most recent infusion was not quite as effective. They spoke about a further infusion, which was likely to be mid-year at the earliest. Dr Thomas thought there was certainly no curative treatment.
156In his most recent report dated 24 February 2022, Dr Thomas advised the plaintiff’s solicitors of the first examination in February 2016, after the incident in which the plaintiff developed his lower back pain.
157There was then a gap in consultations, with the plaintiff next being seen in July 2019 following the assault at work in relation to which a number of spinal fractures had been diagnosed. Dr Thomas was not aware of the road rage incident. Overall, he thought the 2014 injury was significant. The second injury was more significant, rating 40 per cent for the first and 60 per cent for the second.
158From a treatment perspective, the plaintiff required some treatment after the 2014 accident, but more significant treatment after the 2017 accident. There were restrictions with the 2014 accident, but more from the 2017 accident, making a similar apportionment.
Dr Angelica D’Alessandri – osteopath
159Dr D’Alessandri has been treating the plaintiff since May 2019 in relation to the 2017 assault.
Dr Tzy Ning Chuo – general practitioner, Medical One Sydenham
160Dr Chuo has provided a number of reports since 2019, having first seen the plaintiff in relation to his injuries on 6 June 2017.
161In his most recent report of February 2022, Dr Chuo listed, from most severe to less severe, the following complaints: Chronic lower back pain radiating up to mid and upper back and when flare is severe can radiate up the left side to neck and shoulder; anxiety; PTSD, which includes flashbacks and nightmares with disrupted sleep; heightened anxiety and agitation, triggered by being around construction sites and equipment, or around people of the same ethnic group as his assailants; and depression symptoms such as low energy and motivation levels, impaired memory and concentration, and left leg paraesthesia.
162Dr Chuo diagnosed a Chronic Pain Syndrome involving the lower back following injury to the thoracolumbar spine as a result of the 2017 accident. The condition is definitely long term and there is no curative treatment. He also diagnosed a mixed mood disorder, anxiety, depression and PTSD.
163Current medications include analgesic medications (Ibuprofen, 400 milligrams three times a day; Paracetamol, one gram four times a day; has needed Oxycodone, 5 milligrams; antidepressant, Sertraline; Quetiapine, 25 milligrams at night to help with sleep and occasional Diazepam for anxiety).
164Dr Chuo thought the plaintiff would require ongoing treatment by a psychologist, psychiatrist, osteopath and pain specialist, to manage his chronic pain, PTSD and anxiety and depression. His injuries had substantially stabilised.
165The plaintiff reported he was currently able to manage ten to fifteen hours of work a week, trying not to trigger his back pain. Dr Chuo thought the plaintiff’s work capacity was affected by both his physical and psychological conditions. While it was difficult to quantify the extent of each injury, it was probably about 60 per cent physical and 40 per cent psychological.
166The plaintiff used to have ambitions to inherit his father’s company and do onsite work that required a lot more physical capacity than he currently has. He had to give up on that employment and resort to his current one, which was nowhere near what he wanted to originally do.
167The plaintiff was only able to manage minimal housework and had to have help from his family. He cut down with hanging out with his friends and was not able to play sport like he used to. These restrictions were permanent.
Precision Ascend Pain Management Program
168The plaintiff was involved in the program from 25 February to 14 April 2019, involving psychology, physiotherapy and a pain specialist. There was a follow up attendance on 21 August 2019.
Dr Lim – consultant in rehabilitation and pain medicine
169Dr Lim wrote to Dr Thomas in June 2021 advising he had arranged inpatient admission for the plaintiff to actively engage in a pain rehabilitation program, assisted by a Ketamine infusion.
170He noted the plaintiff had suffered persistent back pain since a motor vehicle accident in 2014, when he let go of a person trying to steal his car as an accomplice was driving the car off, causing him to fall onto the ground. He apparently subsequently had a gun pointed at him in 2017 during an alleged road rage incident.[67]
[67] Wrong history
171Two previous Ketamine infusions reduced the plaintiff’s pain, but only temporarily.
172Dr Lim then thought the plaintiff suffered from a combination of persistent mechanical back pain; the development of central sensitisation which continued to amplify and perpetuate his pain, and associated with reduced coping resilience due to having experienced two traumatic events and, in the process, developed symptoms of PTSD; and not having a clear appreciation of the combination of the above, in particular, central sensitisation. Importantly, once that was established, there was no cure for it and therefore no cure for chronic pain. Therefore, the plaintiff’s expectations of his chronic pain had to change from cure to pain control while restoring a more appropriate, not necessarily normal, level of functioning.
173Dr Lim noted WorkCover came to the party and agreed to fund the second week of inpatient stay. As part of his pain rehabilitation, the plaintiff was referred to Dr Sacks, pain consultant psychiatrist.
174At the time of discharge, the plaintiff had a better appreciation of the co‑contributing factors to his pain, and as well had commenced utilising the self-help knowledge and skills. He had elected to return to the NERC to complete his pain rehabilitation as an outpatient.
175In late June 2021, Dr Lim advised Allianz that he was delighted to find the plaintiff had been continuing to utilise the basic self-help techniques and strategies he had learnt in the course.
176In November 2021, Dr Lim wrote to Dr Thomas following a Telehealth review of the plaintiff. He noted that following the recent team meeting, the conclusion was the plaintiff’s external focus of control was far in excess of his internal. That meant that his mindset was still more in passive treatment, rather than being able to take on the responsibility of learning and effecting self-treatment management.
177Therefore, he ceased the NERC pain rehabilitation program for the time being and the plaintiff would continue to see his own psychologist as well as Dr Sacks. Dr Lim would continue to track the plaintiff’s progress through regular meetings with Dr Sacks.
Erica Lurie – psychologist
178Ms Lurie provided a number of reports, having seen the plaintiff since October 2015.
179On the third session, they commenced chronic pain education and she encouraged him to have his pain reviewed by Dr Thomas. Given the plaintiff’s high level of stress and risk of self-harm,[68] he required consistent and regular psychological treatment.
[68] Letter to Dr Sajdak dated 18 December 2015
180Ms Lurie provided a further report in October 2017. Testing then indicated extremely severe symptoms of depression, anxiety and stress. The plaintiff was then attending a rehabilitation program at Brunswick and seeing her for psychological treatment, on average, twice monthly.
181She thought the plaintiff then met the criteria for a Pain Disorder associated with psychological factors, and a general medical condition, a Major Depressive Disorder and PTSD.
182The plaintiff had symptoms of pain as a result of the 2014 accident and, despite this, returned to work five to six days a week with an adjustment of duties, to accommodate gradual increase in hours and duties. He did not go to pain management as he did not want to take time off work.
183The symptoms of PTSD were new in response to the May 2017 assault which she believed added significant stress. As a result of the assault and resulting theft of property, it appeared that the family business in which the plaintiff was employed would close, resulting in irrevocable financial loss and significant emotional stress for his entire family.
184Following the assault, the work depot was broken into again and additional property vandalised. She understood property of the business was stolen and vandalised six to seven years earlier, which was a significant financial setback for the business. Given that series of events, it was unlikely the family business would survive and that, in itself, would be a significant loss for the plaintiff and his family.
185The assault occurred at a time when the plaintiff felt he was just recovering from his 2014 accident injury and could once again contribute more fully to the business.
186She was unable, at that stage, to predict the expected duration of the plaintiff’s incapacity.
187In her January 2020 report, she noted that despite the setbacks with the business, the plaintiff worked hard at his physical and psychological rehabilitation to increase his functional capacity in terms of work. By April 2018, he expressed frustration with the delay in his return to work, as he was always motivated to return.
188Significant pressure was placed on Panther Earthmoving by WorkCover’ return to work providers to return the plaintiff to hours that were unsustainable for the business. Given the existing financial losses, the demands of the claim and the impact on the mental health of the plaintiff and his family members, Panther Earthmoving ceased trading. That, in itself, was another significant loss for the plaintiff and his family.
189The plaintiff believed it was best he return to a form of self-employment that could accommodate his physical limitations and provide flexibility in his return to work. He did so in mid 2019, given his payments were ceasing and, at that stage, was struggling at times to maintain twenty hours a week. It was at this time he was authorised to have a Ketamine infusion, from which he had significant benefit, and he withdrew from Endone.
190In the process of dissolving Panther Earthmoving, an earthmoving machine was brought to the plaintiff’s house prior to its sale. Given his reduced pain and keenness to challenge his physical capacity, he climbed onto the machine and shifted garden soil on his property, which was captured on surveillance footage by the insurer. Following this footage, the IME occupational physician concluded there was no organic basis for the plaintiff’s spinal injury, and he was capable of returning to his pre-injury role and hours.
191In terms of diagnosis, at the time of the November 2017 assessment, the plaintiff was at risk of self harm. He met the criteria for a Pain Disorder associated with a medical condition and psychological factors, a Major Depressive Disorder and a PTSD.
192She thought the plaintiff was performing the maximum number of work hours he was capable of.
193Symptoms of pain continued, with associated depression, anxiety, adjustment and trauma symptoms.
194Symptoms of pain continued to limit the plaintiff’s work capacity and maintained his emotional distress which, in turn, aggravated his pain. His physiological and mental distress was triggered by seeing Middle Eastern men, those similar in appearance to his attackers, and motor vehicles similar to those used by his attackers, and also being on his own.
195While acknowledging it was beyond her expertise, in her opinion, an increase in work hours was currently impossible to predict.
196Testing on 29 June 2021 showed emotional distress remained extremely high, with symptoms of depression, anxiety and stress, all in the severely extreme range. The plaintiff’s confidence to actively self-manage his pain had improved, and his tendency to catastrophise was reduced.
197In her detailed report of January this year, she noted the plaintiff currently reported ongoing and persistent symptoms of physical pain associated with physical and functional limitations, a sleep disturbance, difficulty establishing a daily routine, difficulty with ADLs, daytime fatigue from his medication and difficulty with attention when problem solving. Emotional distress in response to pain was high.
198She thought the plaintiff currently met the criteria for a Pain Disorder, a PTSD, and an Adjustment Disorder with symptoms of depression and anxiety.
199The plaintiff had seen Ms Lurie five times since July 2021, during which time he increasingly described symptoms of dissociation with little capacity to engage in strategies to manage this. He had commenced an outpatient rehabilitation program at North Western Rehabilitation Centre on 13 September 2021. Two months later, his pain program was suspended, as his progress was affected by his poor mental health.
200From a psychological point of view, she thought the plaintiff’s mental health injuries had stabilised.
201In terms of history, the plaintiff had attended four psychological sessions with her for the 2014 accident and recovered sufficiently to return to pre-injury hours and duties. At that time, he was emotionally resourceful and continued to contribute to the family business, choosing not to go to pain management, as it would mean time away from the business.
202From her ongoing treatment of the plaintiff, she thought the 2017 accident had by far the most profound psychological impact on him, and the pain and suffering consequences deposed to are consistent with her treatment. The plaintiff’s psychological and psychiatric consequences were in response to the workplace assault in 2017.
203The road rage incidents in 2019 compounded the plaintiff’s symptoms of PTSD and reinforced his experience it would happen again.
204The plaintiff’s capacity for employment is impacted upon by chronic pain, trauma symptoms and grief for the losses associated with his injury. He is incapacitated for employment for the foreseeable future. His injuries would significantly affect his ability to engage in his ADLs, social and recreational activities for that time.
Dr Katherine McQuillan – psychiatrist
205The plaintiff was seen by Dr McQuillan in September 2018 following referral by Dr McCallum, pain specialist.
206She diagnosed a partially treated Mixed Mood Disorder (anxiety, depression, PTSD). Although he was not keen for medications overall, she suggested the plaintiff continue with Venlafaxine, 150 milligrams, and he was agreeable to maintain that until a suitable time for trying to reduce it.
207She wrote to D Chuo in November 2018, having reviewed the plaintiff that day. She advised that overall, he was maintaining an optimistic mood managing his anxiety. He was pleased a pain management program had been approved.
208The family business continued at a low level and the plaintiff was awaiting occupational therapy review to assess what roles provisions were required for him to be able to work.
Investigations
209Following the 2017 accident there was a CT scan of the brain, spine, chest, abdomen and pelvis on 6 May 2017.
210It was concluded there was a minimally displaced fracture of the left tip of the C4 spinous process. Probable minimally displaced fractures of the T10‑L5 spinous processes and left transverse processes of L2‑L4. No acute intracranial haemorrhage. No significant thoracoabdominal visceral injury.
211On 8 May 2017, there was an MRI scan of the whole spine at the Royal Melbourne Hospital. It was concluded there was a small degenerative L4‑5 central disc bulge, resulting in contact of both descending L5 nerve roots in the subarticular recess and mild bilateral neural exit foramen stenosis.
212Following an MRI scan of the spine and spinal cord on 4 July 2017, it was concluded “There is no convincing evidence of previous vertebral trauma, is the previous vertebral fracture level known?” No evidence of STIR hyperintensity in any of the vertebral bodies, or posterior elements to suggest any residential marrow oedema. Thoracic and cervical canals are widely patent throughout. The spinal cord shows normal signal and volume throughout. A right paracentral disc protrusion at L4‑5 does mildly indent the traversing right L5 nerve, are there any symptoms in this radicular distribution?”
213Following an MRI scan of the lumbar spine organised by Dr McCallum on 8 August 2018, it was reported there was mild to moderate degenerative change of L4-5 disc and minimal degenerative change of L5-S1 disc. There was moderate canal narrowing at L4‑5 level and minimal canal narrowing at the other lumbar levels.
214There was moderate narrowing of bilateral L4 and bilateral L5 exit foramina with abutment but not impingement of the exiting nerve roots. There was mild narrowing of the bilateral L3 exit foramina and no definite evidence of neural impingement seen. On the weightbearing MRI scan, there was no further increase in the degree of canal or exit foraminal narrowing.
215Nerve conduction studies and needle EMG of the lower limbs in August 2018 were normal. There was no electrophysiological evidence of L4 or L5 lumbar radiculopathy in either leg.
216Following an MRI scan of the cervical, thoracic and lumbar spine organised by the osteopath in July 2019, it was concluded that there was L4-5 broadbased disc protrusion producing mild to moderate central canal and lateral recess stenosis. No other neurocompressive lesion had been demonstrated.
217Dr Thomas’ PICC line insertion was carried out on 12 September 2019.
218There was a bone scan organised by Dr Lim in May 2021, following which it was reported there was no major osteoblastic cause of lumbosacral back pain identified. In particular, there was no major facet irritation demonstrated.
Medico-legal evidence
Dr Murray Gee occupational physician – Bridge Street Clinic
219The plaintiff was assessed by Dr Gee in June 2018.
220On examination, the plaintiff walked with a single walking stick on the left side. He reported constant pain in his back, with radiation in a band-like sensation down his buttocks. He noted left-sided weakness.
221By that stage, the plaintiff had had an epidural block. He was currently on Endone, Effexor, Seroquel and Panadol, two to three daily. He had previously been on Targin but weaned himself off it.
222The plaintiff reported a previous trauma with a pushbike accident in 2014, which caused grazing and bruising over multiple parts of his body, and a disc bulge. He said he had a couple of months of rehabilitation and had recovered from that accident over three months.
223On examination, the plaintiff reported constant pain, which restricted his ability to do activities of daily living. He mobilised with a single stick in his left hand. He reported psychological symptoms which were distressing to him, and reported a sensation of giving up hope, given that he was still struggling physically a year after the assault.
224He thought the plaintiff was still severely impaired by his residual deficits. He was recovering from multiple spinal fractures at C4, T10-12, L1-5, and had a central disc bulge at L4-5.
225The plaintiff had sustained serious physical injuries following the assault/robbery which was the sole cause of his current physical and psychological impairments. He had restricted mobility and now chronic pain from his injuries.
226The plaintiff did not have a current capacity to return to pre-injury duties or hours. He did have a capacity to return to a small function of his pre-injury duties at reduced hours.
227Dr Gee agreed with the return to work plan of March 2018, with the plaintiff having a capacity to return to work on restricted duties with increasing hours over four weeks, starting on an immediate basis.
228The plaintiff was fit for solely sedentary office-based duties. He was able to mobilise for short periods and would require an automatic car. He could then return to modified duties. He thought the plaintiff could benefit from seeing a pain management specialist.
Associate Professor Bruce Love – orthopaedic surgeon
229Mr Love first saw the plaintiff in July 2021.
230The plaintiff then principally described pain radiating from the lower lumbar back and when spasms resulted, the entire spine was painful, all the way to the neck. There were occasional episodes of numbness in the left leg with sensory changes, and intermittent and sensory changes in the left hand.
231Previous treatment included three Ketamine injections, each of which had provided marginal benefit, although the most recent was the least effective. The plaintiff was awaiting approval for further funding for physiotherapy.
232On examination, there was minor tenderness on palpating the spine and paraspinal region from the lower lumbar to the upper thoracic region. Flexion and extension were extremely restricted due to pain. Lateral flexion was least affected. Straight leg raising was limited to 60 degrees bilaterally, but no neurological abnormalities were detected.
233The MRI scans of June 2017 and August 2018 revealed similar findings, with significant desiccation at L4-5 with a moderate disc protrusion impacting on the adjacent nerve root and, to a lesser degree, disc degeneration at L5-S1 and lesser disc protrusion.
234From the plaintiff’s description, it could be reasonably accepted the spinal symptoms were as a consequence of the 2017 event. The radiology pointed to obvious pathology in two lumbar discs, and it could be reasonably accepted they were responsible for the plaintiff’s current symptoms. He was pessimistic about the plaintiff’s future, four years having passed since the accident.
235He did not gain the impression that the plaintiff suffered physical injury as a result of 2019 incidents, but it was possible that the May 2014 accident had initiated the described abnormalities in the lower lumbar spine. It was important to note that, following the 2014 accident, the plaintiff had not made a full recovery in terms of symptoms and that daily function was not grossly affected.
236The plaintiff’s physical symptoms related to the lower lumbar spine. He had degenerative disc disease at the two lower levels producing the physical symptoms. The 2017 accident aggravated what may have been pre-existing changes in the lower lumbar spine and current physical injuries were still related to that accident.
237The plaintiff’s physical injuries had substantially stabilised, although one could not predict the very long-term future.
238Mr Love suggested ideal management would be supervised by a physiotherapist with a regular self-management program and access to regular hydrotherapy. It might be reasonably accepted the plaintiff had reached maximal medical improvement.
239The 2017 accident had had a severe impact on the plaintiff’s work capacity, following which he was absent from work for two years. At the time of the accident, he was employed in his father’s excavator business, which had now closed. The plaintiff had started his own business, and there were symptoms which impacted on his capacity to perform that work reliably.
240The plaintiff principally stated the impact of his injury on current work related to his inability to stand for long periods or drive for long distances, which was a requirement of his current employment.
241Mr Love provided a further report in February this year, having read the plaintiff’s May 2021 affidavit, noting treatment by Dr Thomas in the form of Ketamine injection fusions, the second of which bought about temporary relief.
242He also considered Mr Pai’s report and the detailed descriptions of the radiology predating and subsequent to the 2017 accident. He thought that the changes that had been described by way of the 2014 CT scan and the 2015 MRI scan were describing constitutional changes of a subtle degree which cannot be attributed to any particular event.
243The plaintiff had stated that the symptoms that arose from the 2014 accident had virtually resolved by the time of the May 2017 occurrence.
244His impression was that the assault in May 2017 contributed to the aggravation of any condition that may have existed in the neck. However, he judged the transport accident after the assault and then being dragged along the road, was contributing to the majority of symptoms.
245The restrictions in the plaintiff’s functional capacity were, in the majority, a consequence of the 2017 accident. Activities of daily living and restrictions on social and recreational pursuits were, in the majority, a result of the 2017 accident.
Dr James Chan – occupational physician
246Dr Chan first examined the plaintiff in February 2022.
247The plaintiff gave a history of the 2014 accident and its sequelae. He advised that, after a few months to a year, his lower back pain significantly reduced to the point that he resumed all normal daily activities, coped with work with no restrictions, and returned to sport and ceased using the cream. He would have lower backache that would come and go, depending on activity. That would settle down with rest, occasional physiotherapy or simple analgesia. On recall, he thought these flare ups lasted a day or two and may have occurred every few months, but never resulted in any time off work, or prevented him from playing Futsal or hiking.
248Dr Chan detailed the plaintiff’s treatment post 2017. He also noted the plaintiff reported being terminated from his employment, officially in June 2019, and realised he could not take over his father’s company, as planned. Later that year, his father sold off all the equipment and vehicles and ceased to operate, and the plaintiff started his own company in August 2019, working twenty hours per week.
249Dr Chan noted the two road rage incidents in 2019.
250On examination, the plaintiff reported pain on awakening, averaging 5 out of 10, increasing up to 9 out of 10, with flare ups, and needing to take stronger medication. He reported pain and difficulties with back movement and lifting anything over 5 kilograms and prolonged sitting making his lower back pain worse. He also reported, psychologically, he struggled, and while counselling had helped, he was not coping well, and had worsened overall over the last few years.
251From the 2017 accident, there was aggravation of degenerative changes of the lumbar spine, development of secondary chronic pain in the mid to lower back and left leg, and development of secondary psychological symptoms, best assessed by a psychiatrist.
252Dr Chan noted the plaintiff had pre-existing symptomatic lower back symptoms of a mild nature following the 2014 accident, with no recorded limitation on his ADLs and hobbies prior to 2017, no lost time off work, and no limitation on his capacity for work, apart from the occasional day where he would be careful with tasks for a day or two every few months.
253Following the 2017 accident, symptoms were constant, affecting his ADLs and hobbies, and limiting his functional capacity for work. The prognosis was guarded to poor. The aggravation from the 2017 accident continued and was still related.
254The plaintiff had fractures and other pathology noted in his vertebral spine following the 2017 accident that were not present before. He had ongoing pathology noted at L4-5, which had become more symptomatic following the 2017 accident.
255Dr Chan thought the plaintiff did not have the capacity to perform his full pre-injury duties in the earthmoving and construction industry on a full-time basis. He had the capacity to do his sedentary work, which he was presently doing at twenty hours a week.
256These incapacities and restrictions were likely to continue for the foreseeable future, unless the plaintiff had any interventions from his pain specialist, or surgery resulted in improvement in his functional tolerances.
Dr Brendan Hayman – psychiatrist
257Dr Hayman first examined the plaintiff in August 2021 on Zoom.
258In terms of the 2014 accident, the plaintiff said he had physiotherapy, saw Mr Etherington and Dr Thomas, but only required Ketamine cream on his back. He did not have any interventional approach. He said he had some low-grade pain but did not require any regular analgesia.
259The plaintiff ultimately could not return to work after the 2017 accident, given his pain, which was a significant blow, as he had planned to take over his father’s business. In this setting, the business closed in 2019, and the plaintiff commenced his own company that year, working part time, twenty hours a week.
260Currently, the plaintiff continued to have constant lower back pain, with periodic exacerbations. He experienced spasms down the left posterior leg and described paraesthesia of both legs. He was taking Endone, one to two a day and Nurofen, eight a day.
261Dr Hayman noted the plaintiff’s psychiatric history after the 2014 accident, engaging psychologist, Erica Lurie, and being commenced on the antidepressant, Effexor, 75 milligrams. The plaintiff believed he was doing well at the time of the 2017 accident and, indeed, had wanted to come off Effexor but, by that time, had been advised by his general practitioner to remain on it.
262Dr Hayman thought that, following the 2017 accident, there had been significant psychological sequelae. This related to chronic pain, but also the nature of the accident, with the assault.
263In addition to re-engaging with his psychologist, the plaintiff had seen Dr Hanna and Dr McQuillan, psychiatrists, and in more recent months had seen Dr Toby Sacks. He had largely been managed with the antidepressant, Effexor, up to 225 milligrams per day, but his condition was worsening despite this medication, and had been changed to Sertraline and Seroquel.
264Dr Hayman noted the two road range incidents in 2019. Those incidents were upsetting, but nowhere near as significant as the 2017 assault, when someone had come specifically to rob the plaintiff.
265Following the 2017 accident, the plaintiff had lost trust in general and was generally fearful. He described the development of post-traumatic anxiety and depressive symptoms. He had had nightmares and flashbacks since the accident. His day was very much dominated by his experience of pain. He often felt his life was not worth living and was getting very little enjoyment from it.
266Pre-morbidly, the plaintiff was an active man, with work being his life and being involved in his father’s business since a young age. He also played social futsal, went out with friends and attended a church youth group. He was no longer able to play futsal or attend a youth group. He was less interested in socialisation, and he was irritable and easily angered.
267Dr Hayman thought the plaintiff had developed features of a PTSD and also a Somatic Symptom Disorder with predominant pain. His pain was disproportionate to that expected from the nature of the injuries sustained and was a major focus for him. He had also developed a Major Depressive Disorder consequent to his pain and his issues. There was also a sense of aggrievement, given what had happened in his life. He felt he missed out on his future, both with regard to work, but also in general.
268Although the two 2019 road rage episodes were distressing, the plaintiff’s main psychological issues related to the 2017 accident. He had appropriately engaged in psychological and psychiatric treatment, having seen three psychiatrists and having ongoing counselling. He remained on antidepressant medication and was on a low dose of the anxiolytic/sedative/antipsychotic Seroquel. He continued to suffer from PTSD, a Somatic Disorder, with predominant pain and a Major Depressive Disorder.
269Dr Hayman thought the plaintiff presented with a significant degree of invalidity, which was concerning in such a young man. The plaintiff should remain under the care of his pain psychiatrist and psychologist and Dr Hayman would support a specialist PTSD program.
270He thought the plaintiff’s work capacity had been significantly affected, in part, relating to his physical state and also his psychological. That being said, his experience of pain was greatly informed by his Somatic Symptom Disorder with chronic pain. His concentration was also impaired. He found it difficult to sit for prolonged periods. He doubted the plaintiff could work longer than twenty hours per week given his current limitations.
271Having been provided with Dr Neill’s January 2022 report and the plaintiff’s most recent affidavit, Dr Hayman thought it very difficult and somewhat arbitrary to dissect between the two aspects of the 2017 event. Both issues were traumatic. If he had to apportion between the two sequential aspects, he apportioned them equally 50 per cent.
272He disagreed with Dr Neill’s view that the plaintiff suffered an aggravation of Somatic Symptom Disorder with predominant pain, and a subsyndromal PTSD and pre-existing Major Depression. Based on his assessment, the plaintiff’s issues were both primary and consequent to the events and injuries in May 2017.
273The plaintiff was greatly fearful following the assault and that continued to impact him with symptoms of PTSD. He had both psychological and physical sequelae from the circumstances of the accident.
The Defendant’s medical evidence
Treaters – pre accident
Clinical notes
274On 13 May 2015, Dr Sajdak reinforced Mr Etherington’s advice for the plaintiff to attend a pain management clinic in Footscray.
275On 10 June 2015, the plaintiff attended Dr Rohatgi for a TAC certificate of capacity. He was doing part-time modified duties and did not feel ready to increase hours as yet. There was a trial of Lyrica the following month.
276On 17 November 2015, Dr Sajdak noted the plaintiff had been at work and working good hours, “has not had any days off due to back pain at the moment- he feels that his back is a bit aggravated since yesterday, was in machine and truck doing work, overall feels things a bit easier since last month”.
277On 19 July 2016, the plaintiff attended Dr Chuo for ongoing TAC certificates, was on modified duties, and no limit to work hours.
278On 23 July 2016, he attended for a chronic back condition which was worse lately with more hours.
279On 11 October 2016, he attended for the usual TAC certificate, and he mentioned a motor vehicle accident two weeks earlier where he claimed to have zoned out.
280On 7 March 2017, it was noted that the plaintiff was physically assaulted while at work. He was choked for 10 to 15 seconds. He tried to push the offending client/customer away from him.
342He noted that the plaintiff never started Endep, which was reasonable, and he continued on Effexor, Nexium and Targin, with Endone usage significantly decreased. The plaintiff had been to Mr Nair for another opinion.
343Dr Yerra was pleased with the plaintiff’s progress and had noted he had done remarkably well. He expected him to continue to do so.[69]
Medico-legal
[69] Does not seem to know anything about the 2017 assault
Dr Joseph Slesenger – occupational physician
344The plaintiff was last seen by Dr Slesenger in October 2019, having earlier been seen in February that year.
345On the first visit, the plaintiff advised of ongoing mid to lower back pain which was severe, constant, aggravated by activity, cold weather, and associated with left leg pain and numbness which was variable. The plaintiff advised he could walk for ten to fifteen minutes, stand for twenty and sit in one position for thirty to forty. He was not able to drive due to a combination of medication side effects and weakness in his left leg. He was then taking Endone, Effexor, Valium, Seroquel, Nurofen and Paracetamol.
346The plaintiff advised he had not returned to work.
347Following the first examination, Dr Slesenger diagnosed thoracolumbar spinal injury resulting in lower thoracic and lumbar spinal fractures, resulting in chronic lower back pain with evidence of left-sided radiculopathy; head injury; sexual dysfunction; and psychological dysfunction.
348He thought the plaintiff could not return to pre-injury duties or alternative duties and recommended a further review.
349On re-examination, the plaintiff had completed a pain management program and was under the care of Dr Thomas, his psychiatrist, physiotherapist and exercise physiologist. He advised there had been limited changes in his symptoms, with ongoing moderate to severe pain in the thoracolumbar spine radiating to his leg, and continuing numbness. He also advised his psychological symptoms persisted with ongoing depression and anxiety.
350The plaintiff reported there had been some improvement in his function as he could sit, stand and walk for about thirty minutes.
351The pain management program at Precision Health resulted in limited improvement in symptom control, and the plaintiff was awaiting a Ketamine infusion due to take place in September 2019 under Dr Thomas.
352The plaintiff advised of no changes in his social circumstances, although he had started to do some light housework. He engaged in some light gardening and confirmed he had driven an excavator at his home over three days in June 2019 while doing landscaping with his father.
353The plaintiff had not returned to work but had set up a company that specialised in risk auditing of plant and equipment and was due to start that role in the next week.
354Dr Slesenger had available DVD surveillance footage of the plaintiff on 26 June and 1 July 2019.
355Dr Slesenger was now of the opinion that the accident-related thoracolumbar spinal impairment had resolved. In support of that opinion, he noted the plaintiff had returned to performing a task which included driving an excavator. There was an inconsistency between the moderate to severe restriction to range of lumbosacral spinal movements demonstrated at evaluation and the range of movements shown on film. There were also non-organic features on evaluation including non-myotomal weakness and non-dermatomal sensory loss.
356Taking all those factors into consideration, he thought there was no organic basis for the plaintiff’s physical, thoracolumbar spinal impairment. The current spinal condition was no longer materially contributed to by the index accident.
357The plaintiff did not require further passive treatment, and in terms of his thoraco-spinal impairment alone, had the capacity to return to pre-injury role work in pre-injury hours, without restrictions. He thought the plaintiff was capable of returning to work in the roles of operations manager, sales representative, facilities officer, truck driver, or occupational health and safety adviser, on a physical basis.
Mr Pai – orthopaedic surgeon
358Mr Pai examined the plaintiff in January 2022.
359In terms of the 2014 accident, the plaintiff told him that he managed to get back to work within a few weeks and was doing modified work for nearly six months to a year, then almost fulltime work until the subject accident.
360On examination, the plaintiff reported constant pain in the mid-lumbar region and the pain was a spasm sort of pain, and he had noticed it radiating more to the neck and both shoulders. He also said he had radiating pain, but his description of the radiation was not radicular and was in the whole of the left leg. He said he had noticed some different sensations in the left side of his face and left arm, more in the forearm and hand. He stated all of the pain in the lumbar region was the one which was still causing significant symptoms for him, and he also subjectively felt weakness in the muscles on the left side.
361When the plaintiff was seen by neurosurgeons, Dr Nair and Professor Teddy, they felt there were many atypical signs and the plaintiff’s CT SPECT scans were normal, and his MRI scans suggested degenerative changes in most of the lumbar spine but mainly at L5-S1.
362There was no doubt that the plaintiff had significant decreased movement in his back when asked to move his spine for assessment than when not observed, which could not be explained with the structural pathology of disc degeneration. The plaintiff had voluntary give in his left leg and had decreased sensation in the whole half of the left of the body. Considering the plaintiff’s clinical course, atypical findings on his assessment and MRI findings, his ongoing symptoms could not be explained on the basis of a structural pathology and were consistent with widespread, chronic back pain.
363There was no doubt the plaintiff had a widespread pain syndrome. The diagnosis was non-specific backache. There was no doubt he had multiple changes on the MRI, consistent with disc degeneration well established in 2015, but his description of symptoms were not concordant with the MRI findings and his ongoing symptoms for four years could not be explained on the basis of structural pathology caused by the accident.
364It was more than likely the plaintiff had pre-dated, disc-related changes, which were not uncommon, even in the asymptomatic population in a younger age group, but he had a consistent injury event in the 2017 accident which more than likely caused aggravation in the context of underlying pre-dated changes noted on MRI.
365It was more than likely the plaintiff had an aggravation of his pre-existing spinal spondylosis following the 2014 accident. His ongoing symptoms could not be explained on pre-existing conditions. The main factor was the development of pain sensitisation since the 2017 injury, and he had been appropriately referred for pain management.
366He apportioned the plaintiff’s incapacity resulting from the 2017 assault, 50 per cent, and 50 per cent to the transport accident.
367The plaintiff’s prognosis was poor as it had now been five years since the onset of symptoms and he had significant widespread pain-related desensitisation, which were outside Mr Pai’s expertise. The plaintiff’s impairment could not be explained on the basis of structural changes noted on MRI. Treatment had been appropriate. The prognosis was poor, and it was unlikely the plaintiff would be able to do normal work.
368Presently the plaintiff was working only two hours a day and in his own business, where he sold machinery and the job was mainly on a computer, but sometimes packing the keys of the machinery, and he was doing work at his own pace. There was no medical contraindication for him to increase his hours to thirty a week over the next three months. It was difficult to predict whether the plaintiff would be able to increase his hours considering chronicity of symptoms, but it would likely improve his prognosis and general wellbeing.
Dr Timothy Entwisle – consultant psychiatrist
369Dr Entwisle saw the plaintiff in June 2019.
370He then found the plaintiff to be suffering from PTSD and an Adjustment Disorder with Depressed and Anxious Mood, secondary to pain, and incapacity.
371Later, having seen the July 2019 DVDs showing the plaintiff working on machinery, moving freely, associating with people, and driving a motor vehicle, he did not consider the plaintiff’s presentation at examination was consistent with that capacity. It caused him to change his opinion regarding the plaintiff’s capacity for suitable employment and he thought that the plaintiff had a capacity to undertake suitable employment options such as those suggested.
Dr Diane Neill – psychiatrist
372Dr Neill examined the plaintiff in January 2022 on Zoom.
373She summarised in great detail all the medical evidence and the plaintiff’s pre-incident certificates of capacity. She noted that as of 28 March 2017, there was a trial of five hours a day, maximum of seven hours a day, due to flare-ups, restricted for significant phases to office work and phases of incapacity for work, 7 until 12 March 2017.
374In terms of work history, the plaintiff said it was his understanding that he would take over operating his father’s business, but there was no formal agreement or timeline in place at any time.
375The plaintiff advised that following the 2014 accident and back injury, he had a couple of weeks off work and made a return to work doing his normal duties, and fairly quickly built up to fulltime.
376The plaintiff told Dr Neill that at the time of the 2017 accident, he had made a full recovery from the injuries sustained in 2014, being back pain, possibly sciatica and depression, and had not had any treatment for that accident since late 2015, other than continuation on anti-depressant medication. Further, he had resumed his full-time duties in the family company – machine operator, truck driver, administration, managerial duties.
377She noted the discrepant history obtained from contemporaneous medical reports in this regard, with the plaintiff continuing to be issued certificates of capacity for modified duties including phases of time off work, such as ten days in March 2017, and phases of being restricted to office work.
378In her opinion, the plaintiff is suffering from aggravation of Somatic Symptom Disorder with predominant pain, long term use since at least 2014 of maintenance narcotic analgesia, traumatic stress features currently subsyndromal for PTSD, and pre-existing chronic Major Depressive Disorder with Anxious Distress.
379She thought the assault contributed to a minor degree to the plaintiff’s symptoms, with the accident contributing to a substantial degree.
380As best could be estimated from the documentation, the plaintiff’s level of functionality, from a psychiatric/psychological viewpoint, was at least mildly impaired, possibly moderately so, following the 2014 accident.
381As best as could be estimated from the documentation, the plaintiff’s ability to engage in a range of activities of daily living from a psychiatric/psychological viewpoint was at least moderately impaired at that time, noting the Dorset records from April to June 2016 which reported difficulty in multiple domains of everyday domestic, leisure, general health and work tasks, and that the plaintiff had largely relied on his mother for domestic support, but had virtually ceased all household contribution.
382Those records also reported the plaintiff had ceased his former activities of football, cycling, hiking, rock climbing, fishing and youth group, and was less socially active with mates.
383From the clinical records, as a consequence of the 2014 accident, the plaintiff was taking the anxiolytic, Diazepam, to assist sleep, seeing a counsellor in about mid‑2015, in October 2015 was commenced on the anti-depressant, Venlafaxine, and continued until 6 May 2017, consulting Ms Lurie from November 2015 and obtaining psychological rehabilitation in conjunction with physical rehabilitation through Dorset in 2015 and 2016.
384The plaintiff’s psychiatric injuries associated with the 2014 accident had not completely resolved prior to the 2017 accident.
385The plaintiff’s capacity for employment was significantly affected by pre-existing and unrelated injuries and conditions, including:
· Somatic Symptom Disorder with predominant pain and long-term use of maintenance narcotic analgesia
· Chronic Major Depressive Disorder with anxious distress.
386With respect to the claimed psychiatric and psychological injuries, the plaintiff’s work capacity was affected by:
· aggravation of Somatic Symptom Disorder with predominant pain, long term use since at least 2014 of maintenance narcotic analgesia
· traumatic stress features currently subsyndromal PTSD.
387She thought the plaintiff has a capacity for employment for at least twenty hours per week within the limits of his physical condition and skills, training and experience.
Overview
388While the plaintiff was cross-examined at length as to the 2017 accident circumstances, it is not in issue that he suffered a spinal injury in that accident. Counsel for the defendant focused on the issue of the nature and extent of injury and identification of injury but, ultimately, conceded that the plaintiff was injured in a transport accident.[70]
[70]T115
389On the said date, there were two discrete events – an assault, and later, the plaintiff being dragged along by an unidentified vehicle, falling to the ground and suffering injury in a transport accident.
390While Mr Pai, orthopaedic surgeon, and other examiners[71] were asked to apportion the percentage of injury caused by the assault and also the transport accident, the likelihood is – as the CCTV showed – that the major contributor to the plaintiff’s injury was the transport accident, when he fell to the ground while holding onto the passenger in the moving vehicle.
[71] Dr Hayman in a report dated 15 February 2022; Dr Neill in a report dated 14 January 2022
Credit
391As Maxwell P said in Haden Engineering Pty Ltd v McKinnon,[72] “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”.
[72] (2010) 31 VR 1 at paragraph [12]
392Counsel for the defendant submitted the following matters raised issues as to the plaintiff’s credit:
· His differing versions of the 2017 accident circumstances,[73]
· Attending Dr Yerra seven weeks after the accident in a wheelchair[74] and seeing Dr Nair in August 2017 using a walking frame.[75]
· Filmed while driving the excavator in June 2019 when he was still getting certificates of capacity.[76]
· His taxable income in excess of $120,000 in the 2016/2017 and 2018/2019 financial year when he had not returned to work after the May 2017 accident.[77]
· The conflicting evidence as to when and why Panther Earthmoving ceased trading.[78]
[73]T114
[74] In his report dated 30 June 2017
[75] T124
[76]T117
[77]T118
[78]T120
393Counsel for the plaintiff did not address credit directly but submitted little weight should be given to the surveillance film. The plaintiff’s explanation for his activities on film that he was trying to convince his father he could do things, should be accepted.[79] Further, Dr Chuo did not attach much significance to the activities on film, noting the plaintiff had to take increased amounts of opioid analgesics on those days to undertake those activities.[80]
[79]T140
[80]T142
394In my view, the most significant credit issue was the plaintiff’s understatement of the consequences of the 2014 accident in his affidavits and histories to doctors – in particular, his work situation and the level of spinal restriction thereafter.[81] In those circumstances, contemporaneous evidence from examiners in that period is of particular importance.
[81]T123
395I was also concerned at lack of corroboration of the plaintiff’s evidence in circumstances where his evidence was unclear as to his role in Panther Earthmoving before and after the 2017 accident and his termination in 2019. There was no explanation why his father, a crucial witness in this regard, did not provide an affidavit supporting the plaintiff’s application. In those circumstances, it can be inferred that any affidavit from his father would not have assisted the plaintiff’s application.[82]
[82] Archer v Garcia [2022] VSC 57; Jones v Dunkel (1959) 101 CLR 298
396While the surveillance footage was not shown, the plaintiff agreed he was involved in a wide range of activities over the four days he was filmed, including driving an excavator and carrying out a range of physical tasks without apparent restriction in his front garden. This included lifting bags of cement which weighed between 15-20 kilograms. This level of activity was far greater than the plaintiff reported to various examiners.
Spinal impairment
397As the plaintiff injured his back in the 2014 accident, this is an aggravation case and the principles in Petkovski v Galletti[83] apply.
[83] [1994] 1 VR 436
398In this application, where there is a pre-existing back condition, I must consider what the evidence discloses as to the plaintiff’s pre-accident spinal condition and determine whether any additional impairment resulting from the 2017 accident is serious and permanent.
399In Petkovski v Galletti,[84] the Full Court of the Victorian Supreme Court accepted the proposition that –
“A comparison must be made of the condition of the applicant immediately before the accident with his condition thereafter and an assessment made of the extent of that additional impairment and if that additional impairment was not serious so it was said then leave must be refused. … .”
[84] Ibid
400Counsel for the plaintiff relied on the facts in Petkovski v Galletti, where a further reduction in work hours following the subsequent accident was found to be a serious consequence. It was submitted that by mid-2016, the plaintiff had more or less returned to full-time work with restrictions which were really self-imposed.[85]
[85]T135
401Employment consequences were the focus of the plaintiff’s application.[86] It was submitted that the plaintiff’s work now is very much more light sedentary work than he was doing pre-injury and which he was not able to return to.[87] He has earned less since the 2017 accident as his taxation returns indicate.[88]
[86]T133
[87]T143; GP’s notes and Victoria Lyons’ affidavit
[88]T134
402Clearly, the plaintiff understated the employment consequences of the 2014 accident in his affidavits, initially deposing he had not time off work after that accident. However, he corrected his affidavit at the start of the hearing in this regard, conceding he had time off immediately after the accident and for shorter periods later on.
403The plaintiff received TAC payments until November 2015. He was still restricted in his duties in his father’s business immediately before the 2017 accident and never returned to full-time unrestricted duties before the said date.[89] Victoria Lyons is clearly wrong deposing the plaintiff was sometimes working “ridiculous” hours before the 2017 accident.
[89]T121
404While he maintained he ultimately returned to full-time normal duties, there was no corroboration in this regard. There was no affidavit from his father addressing the plaintiff’s pre-2017 accident condition and his work capacity at that time or later on. Also, the evidence relating to the operation of Panther Earthmoving pre and post the 2017 accident, and the plaintiff’s involvement in that company, was unclear.[90]
[90]T133
405Further, as early as February 2016, Dr Thomas thought the plaintiff had a significant injury to the lower back, with ongoing pain and left sciatica, and that returning to earthmoving was less than ideal, although the plaintiff was committed to that course.
406Dr Chuo was still providing certificates of capacity for the plaintiff’s 2014 accident injury as at February and June 2017. While Dr Chuo obviously treated the plaintiff for his spinal condition before the 2017 accident, he does not comment on the plaintiff’s spinal condition at that time in any of his reports – although noting on his 2017 certificate – ongoing lower back pain since the 2014 accident.
407In my view, the plaintiff’s spinal pain from the 2014 accident had not resolved at the time of the 2017 accident.
408His spinal pain interfered with a range of activities, not only work. As the Dorset report set out a year earlier, the plaintiff had constant backache and numbness in legs. He had limited sitting and walking tolerances and still had significant symptoms of depression. His domestic, sporting and social activities were restricted. He had been a young active man enjoying a range of activities but post 2014 accident, he just watched movies.
409As at the said date, the plaintiff continued to be prescribed painkilling medication – for his 2014 accident injuries – Mobic and Panadeine Forte, and was prescribed Endone at various times.
410His physiotherapist requested a reinstatement of funding for physiotherapy as at 9 May 2017 in relation to his 2014 TAC claim because of the plaintiff’s increasing difficulties managing ADLs and duties.
411Also of relevance when considering the aggravation issue, when seen by Dr Elder for medico-legal purposes in relation to the 2014 accident, Dr Elder concluded that the plaintiff’s presentation was inconsistent, noting abnormal illness behaviour, and he was unable to find any clinical sign of injury in any part of the spine. Earlier, in April 2015, treater, Mr Etherington, could not say what was the cause of the plaintiff’s pain.
412Taking these matters into account, I am satisfied that the plaintiff had ongoing spinal/pain issues as at the said date.
Are the consequences of any additional spinal impairment relating to the 2017 accident “serious”?
413Clearly, there was a new radiological finding with the fractures on the May 2017 CT scan, but these have not been the subject of any specific treatment and examiners who have considered the fractures, have not attached any particular significance to them.
414As counsel for the defendant submitted, the fractures shown on recent investigations are “incidental”.[91]
[91]T125
415The plaintiff had extended periods of hospitalisation following the 2017 accident; however, there was no further specialist referral other than for pain management, which has included three Ketamine injections, the most recent by Dr Lim.
416The need for infusions was relied upon heavily by counsel for the plaintiff as indicative of treatment for an organically-based condition.[92]
[92] T130
417However, the injections took place in a pain management context and have given the plaintiff little benefit, the most recent having worn off quickly. This situation may be explained by the diagnosis by Dr Neill of a Somatoform Pain Disorder. As counsel for the defendant submitted, the treatment had to logically follow the diagnosis, and that had not occurred here.[93]
[93]T123
418The plaintiff’s medication regime has not changed significantly since the said date. He continues to be prescribed Endone and other painkilling medication as before.
419He commenced osteopathic treatment after the 2017 accident and continues to see Dr D’Alessandri on a weekly to bi-weekly basis.
420While the plaintiff claims he has a limited work capacity and is only able to work twenty hours a week in his own business, as discussed earlier, he had a restricted capacity for manual work as a result of the 2014 accident.
421His explanation for an increased taxable income in 2017 and 2019 when he did not return to Panther Earthmoving after May 2017 was unsatisfactory and uncorroborated. There is limited evidence of that company’s operation pre and post the 2017 accident to assist the plaintiff’s application in terms of any pecuniary disadvantage consequences.
422While Dr Chan thought the plaintiff had a limited capacity for work as a result of the 2017 accident, he did not have an accurate history of the plaintiff’s ongoing problems form the 2014 accident.[94]
[94] Dordev v Cowan & Ors [2006] VSCA 254
423Given my findings as to the plaintiff’s spinal condition pre-2017 accident, I am not satisfied as a result of the 2017 accident, that there has been any interference with his ADLS or leisure activities that could be described as “serious” for the purposes of this application.
Predominant organic basis
424In any event, any additional spinal consequences of the 2017 accident must be predominantly organic, to be considered under his clause (a) application.
425Counsel for the defendant submitted it was inescapable in the presentation of the totality of the evidence that the plaintiff’s present condition is non-organic now – the dominant or substantial presentation is non-organic.[95]
[95]T117
426In this regard, the defendant relied on the plaintiff’s presentation to a number of examiners in a very disabled fashion in a wheelchair, using a walking frame or a crutch.
427Further, there had been no acknowledgment by the plaintiff of any real improvement after the infusions.[96]
[96] T123
428In terms of medico-legal opinion, more recently, in October 2019, having seen the surveillance film and having found an inconsistent presentation on examination, Dr Slesenger thought there was no organic basis for the plaintiff’s physical impairment and that there is no longer a material contribution by the 2017 accident.
429There was also reliance on psychiatrist, Dr Neill’s view that the plaintiff is suffering from a Somatic Pain Disorder.
430Dr Hayman also thought the plaintiff’s pain was disproportionate to that expected from the nature of injuries suffered and was a major focus for the plaintiff.
431Counsel for the plaintiff submitted a diagnosis of non-specific or specific mechanical back pain[97] does not stop it from being a real physical injury.[98] The fractures were relied upon.[99] The three injections were supportive of there being a genuine organic injury.[100] In any event, the defendant acknowledged that the plaintiff has a degenerative back.[101]
[97]Dr Thomas
[98]T129
[99] T130
[100]T130
[101] T126
432Taking into account all the evidence, I am not satisfied any current spinal impairment is predominantly organic. There is little support for the plaintiff in this regard.
433While diagnosing mechanical back pain and of the view that the plaintiff’s ongoing symptoms are most likely related to the L4‑5 level, Dr Thomas did not comment on the fractures.
434Medico-legal examiner, Mr Love, while not mentioning the fractures, thought there were significant findings on the MRI scan, post 2017 accident, involving L4‑5, but he had not seen any previous investigations which had been noted by other examiners like Mr Etherington in 2015, who found the plaintiff’s symptoms at that time were consistent with degeneration. The plaintiff also told Mr Love that the symptoms from the 2014 accident had virtually resolved by the time of the 2017 accident.[102]
[102]A similar history was given to Dr Chan and Dr Hayman. Dordev v Cowan & Ors (supra)
435As early as the post-accident examination by Mr Nair, neurosurgeon, in August 2017 which the plaintiff attended on a walking frame, there was a non-dermatomal pattern of sensory disturbance. He did not share Mr Love’s view of the MRI findings. Significantly, he found extensive symptoms but could not find any correlated pathology to explain them.
436Dr Li found the distribution of sensory symptoms rather unusual when he saw the plaintiff in 2017.
437That year, Dr Yerra thought they were not dealing with any significant organic condition which could be causing his symptoms.
438The plaintiff attended Professor Teddy in September 2018 on a crutch, and had a mild limp. There were some inconsistencies on that examination and Professor Teddy thought the lumbar MRI simply showed degenerative changes. He did not think the plaintiff warranted any form of neurosurgical intervention.
439Pain management specialist, Dr McCallum, considered the plaintiff’s condition to be muscular in origin but noted the MRI findings were on a different side to the plaintiff’s symptoms.
440Although diagnosing central sensitisation, Dr Lim recently commented that the plaintiff was no longer suitable for the pain management program because of his lack of focus on recovery.
441Mr Pai had no doubt the plaintiff had a widespread Pain Syndrome, diagnosing non-specific backache. There was no doubt the plaintiff had multiple changes on the MRI, consistent with disc degeneration well established in 2015, but his description of symptoms were not concordant with the MRI findings and his ongoing symptoms for four years could not be explained on the basis of structural pathology caused by the accident.
442Taking into account this medical opinion and the plaintiff’s inconsistent presentation on examination, I am not satisfied that any current spinal impairment related to the 2017 accident has a predominant organic basis.
443The application also fails on this basis.
Psychiatric impairment – pre 2017 accident
444The plaintiff also had a psychological sequelae to the 2014 accident, although he made only brief mention of it in his affidavit, simply noting that Ms Lurie psychologist had treated him for the 2014 accident.
445He started seeing Ms Lurie for counselling in late 2015. At that time, she found symptoms of stress and depression in the extremely severe range and catastrophising thinking high – chronic pain education – high levels of stress and risk of self harm. In her October 2017 report, she confirmed this history adding a new diagnosis of PTSD symptom relating to the 2017 accident.
446Ms Lurie did, however, note in her 2022 report relating to the 2017 accident that the plaintiff attended for four psychology sessions in relation to the 2014 accident, and recovered sufficiently to return to pre-injury hours and duties – a history which was inaccurate.
447In October 2015, Dr Ingram felt the plaintiff was suffering from a Chronic Adjustment Disorder with Depressed Mood, his main problem being his chronic back pain, which seemed to be improving only slowly. He thought the plaintiff’s depression was moderately severe and it was appropriate he go onto antidepressants.
448As at the said date, the plaintiff was still taking the anti-depressant, Venlafaxine 150 milligrams daily, as a result of his 2014 accident condition, it having been first prescribed in October 2015.
449The plaintiff also had counselling as part of the pain management programs at Dorset in 2015 and 2016.
450As Dr Neil concluded, having read all the relevant material, as at the said date, the plaintiff’s level of functionality from a psychological/psychiatric viewpoint was at least mildly impaired, possibly moderately so as at the said date.
A severe aggravation?
451I must be satisfied that as a result of the 2017 accident, there has been a severe aggravation of the plaintiff’s pre-existing psychiatric condition.
452Since the 2017 accident, there has been little change in the plaintiff’s treatment regime. His anti-depressant medication has not changed with ongoing prescription of 150 milligrams of Effexor. There is also a low dose of Seroquel, as Dr Hayman described.
453Post the 2017 accident, the plaintiff resumed seeing Ms Lurie, who added PTSD to her earlier diagnosis of depression and anxiety relating to the 2014 accident. She continues to see the plaintiff on a monthly basis.
454As mentioned earlier, Ms Lurie thought the psychological problems relating to the 2014 accident were severe when she was treating the plaintiff in 2015/2016 and seems to downplay those problems her more recent reports relating to the 2017 accident.
455There has been very limited psychiatric treatment with a referral to Dr McQuillan by pain specialist, Dr McCallum, with examination in September and November 2018. On the first attendance, she diagnosed a partially treated mixed mood disorder (anxiety, depression, PTSD).
456The next attendance with a psychiatrist was six months ago when the plaintiff saw Dr Sacks, again as a part of a pain management program. Dr Sacks has not provided a report.[103]
[103]T127
457On a medico-legal basis, Dr Hayman, in August 2021, diagnosed PTSD, a Somatic Symptom Disorder with predominant pain, and a Major Depressive Disorder. However, he had a limited history of the plaintiff’s anti-depressant medication regime and ongoing psychological problems as at the said date.
458On a more detailed history, Dr Neill, in January this year, diagnosed aggravation of Somatic Symptom Disorder with predominant pain, long-term use since at least 2014 of maintenance narcotic analgesia, traumatic stress features currently sub-syndromal for PTSD, pre-existing chronic Major Depressive Disorder with anxious mood and unrelated.
459I accept the plaintiff is suffering the condition diagnosed by these two psychiatrists but prefer Dr Neill’s analysis based on the more accurate history of the plaintiff’s pre 2017 accident psychiatric state.
460Any claimed interference with work or other activities is largely physically based and does not have a psychiatric basis. In any event, the plaintiff is still able to run his own business, working twenty hours per week.
461While the plaintiff’s complaints of pain are disproportionate to any physical injury and he is suffering a Somatic Symptom Disorder, taking into account all the evidence, I am not satisfied the consequences of any 2017 accident-related aggravation meet the high threshold of “severe”.
462Accordingly, the application pursuant to clause (c) is also dismissed.
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