Souroop v Transport Accident Commission
[2021] VCC 63
•11 February 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01999
| ANTOINE GAEL SOUROOP | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE WISCHUSEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 and 21 January 2021 (via Zoom hearing) | |
DATE OF JUDGMENT: | 11 February 2021 | |
CASE MAY BE CITED AS: | Souroop v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 63 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury – spinal condition – aggravation by transport accident – whether “serious”
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Petkovski v Galletti [1994] 1 VR 436; R J Gilbertsons Pty Ltd v Skorsis (2000) 12 VR 386; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309; Bezzina v Phi [2012] VSCA 161; Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88; Rowe v Transport Accident Commission [2017] VSCA 377
Judgment: Judgment for the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T P Tobin SC with Mr P V Bourke | Maurice Blackburn |
| For the Defendant | Mr W R Middleton SC with Ms R Boyce | Solicitor for the Transport Accident Commission |
HIS HONOUR:
1 In this proceeding, the plaintiff seeks leave pursuant to s93 of the Transport Accident Act 1986 to bring a proceeding for the recovery of damages in respect of injuries to his spine (principally the cervical spine) sustained in a transport accident that occurred on Beach Road, Brighton on 17 June 2014.
2 As the plaintiff had earlier problems arising from degenerative changes[1] affecting the cervical spine which he attributed to a workplace injury that occurred in September 2012, it was common ground that the principles enunciated in Petkovski v Galletti[2] had application. Subsequently, in R J Gilbertsons Pty Ltd v Skorsis,[3] Chernov JA said:
[1]The plaintiff underwent an MRI scan of the cervical spine in August 2013 – Plaintiff’s Court Book (“PCB”) 80 – and again in August 2014 – PCB 82. It was not contended on the plaintiff's behalf that any accident caused difference between the pathology described in the two scans had been identified – Transcript (“T”) 118. Further, Mr Myron Rogers reviewed the two scans and wrote that the later scan showed no new pathology – Defendant’s Court Book (“DCB”) 20.
[2] [1994] 1 VR 436
[3](2000) 12 VR 386 at paragraph [40]
[4]
Further, the plaintiff sustained injury affecting his spine in the course of his employment in March 2015 in a lifting event.
4In the circumstances, the plaintiff bears the onus of satisfying me that the additional impairment attributable to the transport accident-caused injury is “serious” in the required sense.
[4]After considering Petkovski’s Case (supra), at paragraph [40]. See also AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz (2012) 34 VR 309 at paragraphs [31]-[33]; Bezzina v Phi [2012] VSCA 161 at paragraph [23]; Pullicino v Burden’s Plumbing (Vic) Pty Ltd [2019] VSCA 88 at paragraph [90]; Rowe v Transport Accident Commission [2017] VSCA 377
5 For reasons that follow, the plaintiff has failed to discharge the onus he bears of establishing that the transport accident-caused injury has had consequences which satisfy the requirement that they be long-term and at least very considerable.
The evidence
6 In the usual way, only the plaintiff gave viva voce evidence. He was cross-examined on his two affidavits and re-examined. The parties tendered medical reports and clinical records from the court books.[5]
[5]Exhibits 1 and 2
The Plaintiff’s case
7 It was the plaintiff’s case, in his affidavit, that following the workplace injury of September 2012,[6] “… I believe that my neck pain improved after a few months, subject to flare-ups, although I was generally more careful with my neck”.[7]
[6]Which he identified in paragraphs 30 and 31 of his first affidavit – PCB 17
[7]PCB 18
8 The plaintiff affirmed that this was the case early in his cross-examination when he was taken to a history he had given (in December 2020)[8] of complete resolution of earlier neck problems before the transport accident. Of this, the plaintiff said that he believed it was true. He confirmed that he had told the medico-legal examiner that severe neck and referred pains followed the September 2012 neck injury for some weeks, but that he was thereafter able to return to work on normal duties without ongoing back or neck problems.[9] He did allow that he had recently been alerted to the presence of a complaint of neck pain only six weeks before the transport accident, and as to that, said he had had “a flareup”.
[8]To Mr Peter Wilde, orthopaedic surgeon – PCB 164. To similar effect is the history recorded by Professor Richard Bittar – PCB 141: “He confirmed that he was asymptomatic for a considerable period of time leading up to the subject transport accident”
[9]T12
9 In short form the plaintiff’s affidavit account of the consequences of the transport accident injury was of:
· neck pain radiating down both arms averaging 7 to 8 out of 10, worse at other times and never better than 5 out of 10
· interference with sleep because of neck pain waking him
· aggravation of symptoms by prolonged neck postures
· the taking of Lyrica, Voltaren, Nurofen, Nuromol and Panadol
· limitation of computer use to 10 minutes at a time
· limitation on his work capacity to four-hour shifts
· difficulty with studies associated with his retraining
· difficulty driving, cleaning, gardening, lifting and dressing.
10 The plaintiff also gave some detail of the loss of sporting activities of which he swore:
“… At the time of the accident I felt that I had basically recovered from my knee injury and also what was a relatively minor neck and lower back problem from the control room work, compared to what I have now. I had always loved Kung Fu and believe that I would have gone back into that and would probably be instructing others, especially my own kids. I would not have been able to return to running, but I would be able to do a lot more with my kids in terms of games and physical activity.”[10]
[10]PCB 20, paragraph 49. The assertion of recovery from the knee injury cannot be reconciled with Dr Roberts’ notes of knee-caused pain and sleep disturbance, and of difficulty with aspects of his employment on numerous occasions up until the day before the transport accident – DCB 64-65 Reports of knee pain and difficulties with work related to knee problems continue to appear in Dr Roberts notes until February 2016 – DCB 68
11 The plaintiff also attributed the loss of his employment as a corrections officer in December 2017 to the transport accident caused injury,[11] though his account of this is somewhat obscure. In paragraph 14 of his affidavit, the plaintiff stated:
“In about late 2015 I was involved in an altercation with a female prisoner, during which I was threatened and, following which, I felt completely unsupported by my employer. My duties were changed after that to computer based work, even though I was coping with normal duties with my right knee. I then struggled with the computer work due to my ongoing neck injury and ended up taking a lot of stress leave.”[12]
[11]PCB 21, paragraph 52
[12]PCB 15
12 Next, the plaintiff set out the treatment he underwent in 2016, the investigation of a right shoulder problem in May 2017, and then, in paragraph 19, stated:
“In about December 2017, my employment as a corrections officer was terminated.”[13]
[13]PCB 16
13 Later still in the affidavit, the plaintiff said:
“Losing my job of fifteen years due to my injury has had a profound financial impact on our family. It has also derailed my career ambitions. It has also greatly affected my sense of self.”[14]
[14]PCB 21
14 No clear statement of how it was that the neck injury led to the termination of his employment was in evidence.
The condition of the Plaintiff’s spine after the work-caused injury of 2012 and before the transport accident
15 I should begin with my assessment of the credibility and reliability of the plaintiff’s evidence as to these matters. In cross-examination, the plaintiff readily made concessions that he must have said the things which were attributed to him, whether in medical or medico-legal histories, or in more cursory form in the typed clinical notes which were tendered. He conceded also that those earlier histories were likely to have been truthful, on occasions offering a failure to recall as the explanation for differences between them and his affidavit account.
16 Even taking a favourable view of whether the plaintiff’s account was the product of a genuinely held belief as to how things were, or the product of an untruthful attempt to bolster the case he puts here, the clear impression created in his affidavit, and in a number of the medical histories, is of substantial recovery from the workplace injury of September 2012, and the persistence of much worse symptoms dating from the transport accident this case concerns.
17 In my view, at the very least, the plaintiff’s evidence on this subject was demonstrated to be quite unreliable. Where they are at odds, it is my view that a more accurate account of the plaintiff’s symptoms, and of his (then) genuinely believed attribution of the causes of them, is to be found in the earlier medical reporting and in the clinical notes.
18 In my view, the evidence establishes as a matter of probability that the plaintiff continued to suffer from neck pain with some referral up until the time of the transport accident. In my view, this conclusion is well supported by the clinical records, by the histories recorded by Dr Reid and Dr Aliashkevich in 2013, and by the very clear clinical note of his problems recorded by one of the treating general practitioners on 6 May 2014 – about six weeks before the transport accident.
19 Dr Reid saw the plaintiff in May 2013 in respect of the onset of neck pain on 23 September 2012. He obtained a detailed history of the sudden seizing up of the plaintiff’s neck with shooting pains when turning to look at a monitor, transient hand tingling and the development of headaches. Of his present condition, the history was of continuous pain in the neck with an inability to sleep, headaches, the use of a soft collar at home and the taking of Nurofen, Panadol, Mobic, and occasionally Voltaren for this pain. A mild reduction in the range of neck movements was recorded in the examination findings.
20 In July 2013, some ten months after the workplace problem began, the plaintiff was referred to a neurosurgeon, Dr Aliashkevich, for refractory right-sided brachialgia and neck pain and suspected cervical nerve root compression.[15] Dr Aliashkevich found tenderness and restricted right rotation and recorded a history that conservative treatment, including non-steroidal painkillers and remedial therapy, had failed to provide satisfactory relief, and that “currently, he was rating the intensity of his pain as varying around 6/10. Looking to the right side and driving a car aggravated his symptoms. Currently, he was taking Citalopram and Endep”.[16]
[15]Complaints at the time were of “predominantly right sided neck pain extending into his right arm and radiating into his right hand, associated with a feeling of tingling in his forearm and fingers.” PCB 36
[16]PCB 36
21 On review following MRI scan[17] on 28 August 2013, Dr Aliashkevich recorded that the plaintiff’s condition remained unchanged, noting that disc bulges and facet joint changes were seen on the MRI. Dr Aliashkevich wrote[18] that surgery was not indicated and a referral for consideration of medial branch block/radiofrequency treatment was recommended – although the plaintiff was not sure this had ever taken place.
[17]PCB 80
[18]PCB 38
22 Between 2012 and 2014, the plaintiff attended a general practitioner, Dr Ian Roberts of RACGP Health. Dr Roberts’ clinical notes[19] record persistent knee pain throughout 2013 and 2014,[20] such that the plaintiff was having a number of difficulties with work, persistent difficulty with sleep and referrals to a psychiatrist. His presentations are noted as being attributable to knee pain and frustration with workplace career issues affected by his knee problems. These continued to be recorded up until the day before the transport accident. The notes show that anti-inflammatories and increased doses of Endep were prescribed in this period.
[19]DCB 58-68
[20]Less frequently in that period appear complaints of neck pain and arm symptoms
23 In the years before and after the transport accident, the plaintiff was also seen by general practitioners at the Wells Road Medical Centre.[21] Initially seen for knee problems, Dr Miao recorded an attendance for neck pain with radiculopathy in July 2013, for which a specialist referral was made. Following the clinical notes in 2013 shows some overlap between neck pain with right-sided radiculopathy, and a possible diagnosis of carpal tunnel syndrome on the right. The notes record that he was referred for physiotherapy in September 2013 in respect of his neck pain.[22]
[21]The clinical notes appear at DCB 172-179
[22]DCB 174
24 On 6 May 2014, about six weeks before the transport accident, Dr Mariappan of the Wells Road practice recorded this:[23]
[23]DCB 177
“Neck pain for the past few months. Has gone worse this week. No particular trigger for the worsening. Aching pain + 7/10 pain – on the worst 5/10 pain on the best. Wearing[24] off the pain relief effect makes the pain worse. No particular relieving factor. Pins and needles in his right arm. No motor weakness. No bowel or bladder symptoms. No injury to his neck. Acute onset of pain - without any particular injury.”[25]
Conservative management was recommended and a medical certificate for that day, 6 May 2014, was written.
[24]It is not clear whether this should be read as “weaning off” or “wearing off” the pain relief. In either event, Dr Roberts’ notes make it clear that the plaintiff was taking medication for significant knee problems at this time.
[25]When this consultation was first raised with the plaintiff in cross-examination, he offered the explanation that “it was just a flareup” – T11, though he later accepted the accuracy of the note – T24
25 Pausing here, the pre-transport accident medical correspondence and clinical notes lead me to conclude that the plaintiff’s accounts of substantial recovery from the September 2012 problem, much less of being “asymptomatic”, before the transport accident, are improbable.
26 Further, in contrast to the plaintiff’s more recent histories, and his evidence in this case, are earlier records of his belief as to the onset of his neck problems, and their continuity, recorded in 2014 and 2015. Those histories do not support the plaintiff’s account of recovery from the September 2012 neck problems, and record that the plaintiff continued to attribute his neck problems, in substantial part, to the workplace event of September 2012.
27 Only a month or so after the transport accident, it is recorded that he sought from Dr Peng a “supportive letter” as the plaintiff felt the neck pain was related to his job.[26] A similar request is noted by Dr Roberts on 29 July 2014.[27]
[26]DCB 178
[27]DCB 65
28 After management of the plaintiff’s condition was taken over by the Advantage Medical and Dental Clinic in late 2014, he was referred by Dr Ramsurrun of that clinic to Mr Raleigh, orthopaedic surgeon.[28] In the referral, Dr Ramsurrun referred to neck issues at work for a period of four years, worsened by a motor vehicle accident the year before.
[28]PCB 38
29 Dr Raleigh recorded the first problems in September 2012, made worse by the motor vehicle accident, and suggested referral to a neurosurgeon, Associate Professor Goldschlager.
30 Professor Goldschlager saw the plaintiff in February 2015 and took a history of neck and right upper extremity pain since 2012:
“… He says this commenced during his work in the control room at the prison where he needed to look up at monitors which were above his head, necessitating a lot of extension and lateral flexion of his neck. He has had significant neck pain and right upper extremity pain since then. The upper extremity pain has settled down and is not bothering him too much. He is on Lyrica for this. He has had an EMG by Dr Russell Rollinson which he tells me demonstrated right carpal tunnel syndrome. He also had a car crash in 2014 which made things worse. He has no symptoms of cervical myelopathy.”[29]
[29]PCB 47
31 This history, in particular of “significant neck pain and right upper extremity pain since then”, recorded only seven months after the transport accident, stands in stark contrast to the case the plaintiff puts here. When taken to that part of the history,[30] the plaintiff did not quarrel with its accuracy.
[30]T39: [Professor Goldschlager] says, ‘This commenced during his work in the control room at the prison where he needed to look up at monitors which were above his head, necessitating a lot of extension and lateral flexion of his neck. He’s had significant neck pain and right-upper-extremity pain since then.’ Is that accurate? --- Ah, if - if it’s in the notes, yeah.
32 The plaintiff was referred by Professor Goldschlager to Dr Smith of the Metropolitan Pain Group.[31] Dr Smith also took a detailed account of the onset, in September 2012, of work-caused neck and arm pain, resulting in “constant pain” presently rated at 8 out of 10. Almost as an aside, the history notes that a year earlier there had been a road traffic accident in which the plaintiff had “jarred his neck”.[32] Dr Smith’s examination revealed a “mild decrease in the range of movement of his cervical spine”.[33]
[31]PCB 55
[32]PCB 55
[33]PCB 56. A similar finding was recorded by Mr Reid in May of 2013
33 Another illustration of the variability of the emphasis the plaintiff has given to the various episodes of neck pain is found in the report of Scott Bednarz, physiotherapist.[34] In that report, a history taken by a Dr Jon Ford on 26 March 2020 is set out. In the history, of symptoms following the control room set up problem, it is recorded that “the symptoms settled but there were ongoing fluctuating symptoms thereafter managed by medication”. Of the transport accident, the history included “There was a few weeks off work and the symptoms again settled. … There was a requirement for intermittent time off work after this injury.” Following the lifting of the milk tray in March 2015, the history records “the symptoms persisted and ‘strong painkillers’ including pregabalin[35] were prescribed. There was a greater requirement for time off work although in the main he continued work.”[36]
[34]PCB 74
[35]It appears as though pregabalin (Lyrica) had been prescribed earlier. Dr Roberts noted that he was taking it “from outside this practice” on 1 and 16 October 2014 (DCB 66), but the prescription of it is not seen in the Wells Road Clinic’s notes in evidence.
[36]Cf the history Professor Bittar recorded (PCB 141) - “This flare up was treated with physiotherapy, and these symptoms returned to their baseline levels.”
34 Examination of these accounts given by the plaintiff both before and after the transport accident this case concerns, in my view, casts grave doubt upon the plaintiff’s assertion in his evidence, and in counsel’s submissions, that his September 2012 work-caused neck and arm symptoms were not much of a problem, if at all, by the time the transport accident occurred. Rather, the accounts he gave both before and after the transport accident, point more strongly to a conclusion, and a belief by the plaintiff at those times, that his neck problems had been continuous since September 2012, and that they were significant.
35 For these reasons I am unable to accept the plaintiff’s account of the nature and extent of his pre-transport accident neck symptoms. In those circumstances, identifying the additional impairment caused by the transport accident is difficult.
The condition of the Plaintiff’s spine after the transport accident
36 The next day, the plaintiff was seen by Dr Peng complaining of headache, neck stiffness and an inability to turn his head. Panadeine Forte was prescribed. On 23 June 2014, Dr Peng recorded persistent pain and restricted movement and ordered an x-ray and prescribed further Panadeine Forte. The plaintiff was seen again for similar complaints on 25 June 2014 and 27 June 2014. On 4 July 2014, the neck pain was noted to be “on and off”, that physiotherapy “was making progress” and that there was a full range of motion. Next, there was the attendance referred to in paragraph 22 of these reasons, and then further neck symptoms are recorded on 29 July 2014, 27 August 2014 (when a further MRI scan was ordered (on a history of neck pain on and off for 1.5 years)). The tendered Wells Road clinical records end on 2 September 2014.
37 No report from either of the general practices the plaintiff attended before and soon after the time of the transport accident was in evidence. No explanation for this omission was offered.
38 On 1 December 2014, the plaintiff started seeing a new general practitioner, Dr Ramsurrun. The plaintiff was referred by Dr Ramsurrun to Mr Raleigh, and, as noted earlier in these reasons, Mr Raleigh referred the plaintiff to Professor Goldschlager, who, in turn, referred the plaintiff to the Metro Pain Clinic for radiofrequency ablation.
39 Before this could take place, the plaintiff suffered injury to his neck in employment whilst lifting a crate of milk. It appears that he was referred for physiotherapy following this episode and his progress thereafter is recorded by Mr Luwor, physiotherapist.[37] Mr Luwor noted that little progress was made over the next two months, and in his second and third letters, notes that the plaintiff was awaiting cervical injections.
[37]PCB 49-51
40 Medial branch blocks were performed on two occasions in August and September of 2015,[38] the second of them reducing the plaintiff’s pain by 50 per cent.[39] Approval was eventually obtained for radiofrequency neurotomies, and they were performed by Dr Paul Verrills in July 2016.[40]
[38]Reports of the procedures – PCB 84-85
[39]PCB 57
[40]PCB 86
41 The procedure produced no lasting improvement and the plaintiff was then referred by the Metro Pain Clinic to Advance Healthcare in March of 2018.[41]
[41]The plaintiff’s treatment by Advance Healthcare is set out in their reports (PCB 69-76). There, the plaintiff underwent a pain management program. His progress is described in the discharge report of February 2019 at PCB 72
42 From late 2019, the plaintiff has been attending Dr Wong of the Hall Road Medical Centre though no detail of the treatment provided appears in Dr Wong’s report.[42]
[42]PCB 77
43 In August 2020, the plaintiff began attending a chiropractor in Frankston.[43]
[43]PCB 79
44 A review of the medical records and reports that bear upon the treatment of the plaintiff’s cervical pain following the transport accident, and the medical histories that the plaintiff gave, particularly in the first twelve months following the transport accident, leaves me quite uncertain, much less satisfied on the balance of probabilities, of the nature and extent of any additional impairment that the transport accident may have caused. Review of that material shows that, initially at least, there were more frequent complaints of neck pain, and that the plaintiff did come to cervical injections and radiofrequency denervations. However, like treatment had been proposed in respect of very similar symptoms by Dr Aliashkevich back in August 2013, and they were not carried out until after the plaintiff had sustained further neck injury in the milkcrate lifting event in March 2015. On some of the histories at least, the consequences of the milkcrate lifting event were still being experienced by the plaintiff at the time the injection procedures began. Further, no new signs or symptoms were recorded, and no difference between the degenerative changes identified on the “before and after” MRI scans is identified in the extensive medical reporting.
45 In my view the variability in the plaintiff’s accounts, and the demonstrated unreliability of the evidence contained in his affidavits, and of the histories recorded by the medico-legal examiners who support the case he puts here, leaves me unable to be satisfied on the balance of probabilities as to the nature of the injury sustained in the transport accident, and as to what if any additional impairment of cervical and spinal function was sustained as a result of it.
46 In submissions, by reference to the plaintiff’s declining earnings,[44] it was submitted that I should find that this loss of income was a consequence of transport accident caused spinal injury. As to these matters, the plaintiff’s account was somewhat vague. Professor Bittar recorded:
“In late 2015, he was involved in an altercation with a female prisoner. This altercation was verbal, and he experienced considerable workplace stress as a result of that, as well as his ongoing symptoms and his requirement to take frequent days off. He took significant stress leave and other sick leave and eventually his position was terminated.”[45]
[44]PCB 191
[45]PCB 141
47 The history recorded by the medico-legal psychiatrist, Dr Tagkalidis, is to similar effect.[46]
[46]PCB 130
48 Dr Roberts also recorded difficulties in the workplace on a number of occasions, both before and after the transport accident, and usually noted that such problems were related to stress, or to knee pain. In February 2016, Dr Roberts noted:
“[R]ecently seen by a psychiatrist Re: ongoing stressors at work concerns about alteration to his duties feels that he is being moved to particular hours and duties as a result of his knee injury when he was doing all normal duties last year without problems
insomnia some increase in alcohol intake - try to modify this.”[47]
[47]DCB 68
49 The reason for this visit was noted to be right knee pain.[48]
[48]Dr Roberts also recorded threats from a prisoner in December 2015 – DCB 68
50 Having regard to the view I have formed of the credibility and reliability of the plaintiff’s account of the state of his neck at times past, and to earlier accounts he has given as to the circumstances in which his employment ended, I am not satisfied on the balance of probabilities that any decline in his earning capacity, or the end of his employment as a prison officer, results from any transport accident caused spinal injury.
51 In a further affidavit of 19 November 2020,[49] the plaintiff recounts financial difficulties the family has encountered and his difficulty with the pursuit of his own business. He states that his neck problem continues to cause difficulty with sleep, waking him constantly, that his neck pain remained his worst problem, that he continues to take a variety of medications, and as to his current state, he swore:
“I am conscious of my neck pain all day every day. I wake with pain and stiffness, it builds during the day and is at its worst when I lie down at night. I feel that I have to be so careful with everything that I do and that my normal interaction with my family has effectively been shut down. I am desperate to get back to work to support my family, but I am worried that I am just going nowhere.”[50]
[49]PCB 24
[50]PCB 28
52 There was in evidence an affidavit sworn by the plaintiff’s wife in November 2020.[51] In it, Mrs Souroop makes no comment at all about the relative importance and effect of the incidents of injury and neck pain revealed by the other evidence. Much of her affidavit details the effect upon her and the children of the plaintiff’s current pain.
[51]PCB 30
Medical and medico-legal reports
53 In evidence were two medical reports from the plaintiff’s long-term treating psychiatrist, Dr Cooray, who had been managing the plaintiff for symptoms of depression and anxiety since May 2011. The context of her engagement with the plaintiff was continuing problems with his knee and difficulty regaining his pre-injury work capacity. Dr Cooray noted that his depressive symptoms worsened following the transport accident this case concerns.
54 In evidence was an opinion of the Medical Panel dated 16 February 2018 in which the Medical Panel answered a question as to the degree of whole person impairment from which the plaintiff suffered as a result of an “accepted injury”. In its reasons for the opinion,[52] the Panel noted that it was accepted that the worker suffered injury and developed a psychiatric condition with a designated date of injury of 17 June 2014. The Medical Panel recorded the history the plaintiff gave, which was that the plaintiff’s neck pain was manageable by 2013 following the 23 September 2012 problem, that he did not thereafter require painkillers, and that his neck movements were normal by the time of the transport accident. Accepting the plaintiff’s history of pre-transport accident symptoms and of his range of movement, and applying the Medical Panel’s understanding of the mechanism and severity of the accident “which involved whiplash due to sudden deceleration of his car hitting a tree”[53] in the transport accident, the Medical Panel concluded there was an aggravation of spondylosis as a result of the transport accident.
[52]PCB 173
[53]Cf. the transcript of the plaintiff’s account of the accident circumstances – T13-14
55 Of interest also is the Medical Panel’s psychiatric assessment. The history[54] recorded knee-caused pain and its interference with lifestyle and employment opportunities as the cause of ongoing depression for which the plaintiff was being treated at the time of the transport accident. The Panel recorded the onset of panic attacks after threats by prisoners in October 2015, and the consequential interview with the general manager who had told the plaintiff that he was no longer suitable to work in that section. The Medical Panel’s history included that the plaintiff was then shifted to data entry, and lost income, and that this may have resulted in higher medication levels as well. The Panel recorded that in July 2016, he was made a job offer working in wet and cold conditions, which led to his general practitioner putting him off work. No mention of neck pain as a cause of the end of his employment is recorded. At the time the Medical Panel saw the plaintiff, he was drinking three bottles of whisky a week and The Medical Panel recorded the plaintiff’s apparently considerable anxiety about reprisals from the prisoners with whom he had had the altercation in 2015, and his distress at the termination of his employment.
[54]Beginning at PCB 177
56 In evidence were a number of medico-legal reports as to the significance, in the plaintiff’s presentation, of the injury sustained as a result of the transport accident. Broadly, the conclusions the specialists reached on this question varied, depending upon whether or not they accepted the history the plaintiff gave to them of resolution of the earlier symptoms before the transport accident.
57 Shortly, Dr Lee, orthopaedic surgeon, who saw the plaintiff five weeks after the transport accident, was of the view that he had sustained a new injury that would have been sustained regardless of earlier problems. Dr Lee referred to the earlier neck problems, almost in passing, as “some work-related issue with his neck prior to the accident. He had to look at the computer all day with the neck in an awkward position. He has already recorded his complaint.”[55]
[55]PCB 147
58 Professor Bittar, as already noted, had a history that the plaintiff was asymptomatic for a considerable period of time leading up to the transport accident. In a later report,[56] written without re-examining the plaintiff just before the hearing of this application, Professor Bittar reviewed other medical reports in the case and the clinical notes in evidence here. Professor Bittar then wrote that even if the plaintiff did have symptoms leading up to the transport accident, there was increased treatment following it, and so he remained of the view that the transport accident had been the dominant contributing factor.
[56]PCB 139-145
59 Dr Lefkowitz[57] had a history of painful limitation of neck movements, recurrent radiation and pain radiating down the thoracic spine subsequent to the issue with the computer monitors, and that the symptoms were reduced to “nuisance symptoms in the neck and back” at the time of the transport accident. Nevertheless, Dr Lefkowitz did not think there was much to find on examination, and noted that the plaintiff’s demonstrated movements on examination were variable. He noted that the July 2013 x-ray was consistent with the presence of muscle spasm at that time, and with the degenerative changes seen on the MRI scans. He felt the plaintiff’s presentation was not organic and that the plaintiff should be fit for most duties in a full-time capacity.
[57]DCB 4-8
60 Mr Wilde[58] took a history that following the neck injury at work on 23 September 2012:
“… He alleges that for some weeks, he experienced severe neck pain with somatic referral to the shoulders and low back pain but after physiotherapy and time off work, he was able to return to work on normal duties, without ongoing back or neck symptoms.”[59]
[58]PCB 164-169
[59]PCB 165
61 Mr Wilde thought that this history was supported by an examination of the clinical notes.[60] Of his current symptoms, Mr Wilde recorded that he rated his neck pain as ranging between 4 out of 10 and 8 out of 10. Mr Wilde, in his summary, recorded the plaintiff’s account of complete resolution of the 2012 neck symptoms[61] and, accepting the account of continuous symptoms since the transport accident, concluded that he had suffered a lasting aggravation of pre-existing cervical spondylosis.
[60]For reasons already set out, it is my view that the notes do not support this conclusion
[61]DCB 12
62 Mr Myron Rogers, neurosurgeon, examined the plaintiff and a number of the clinical records that are in evidence here. Mr Rogers made a diagnosis of Chronic Pain Syndrome associated with his chronic neck pain, and wrote that there was no role for surgical intervention. Mr Rogers noted that the plaintiff had been assessed by neurosurgeons both before and after the transport accident and wrote that although the plaintiff had told him he did not have significant neck pain prior to the transport accident, this proposition was difficult to reconcile with the clinical note of May 2014 from the general practitioner, and the record of symptoms made by Mr Barclay Reid in May of the year before. Mr Rogers concluded that it did not appear to him that the transport accident made the symptoms any worse.
63 In my view, the opinion of Mr Rogers is to be preferred, as the conclusion he reaches is supported by close examination of the pre-transport accident clinical records, and by the plaintiff’s own estimation of the significance of the pre-transport accident symptoms given in histories in the year or two following the transport accident.
64 For these reasons, the plaintiff has failed to satisfy the onus he bears of establishing the nature and extent of his pre-transport accident spinal symptoms, of identifying the additional impairment the transport accident has caused, and of establishing that the additional impairment is “serious” in the required sense.
65 The application is dismissed.
- - -
‘He had a car crash which made things worse.’ But that’s an accurate description, is it not, by him that, since the control room in 2012, you had significant neck pain and right-upper-extremity pain ever since? Isn’t that accurate? --- Ah, well, if - if - yeah, if it’s what it says in the notes.
There’s no reason to dispute it, is there? --- I guess not. I don’t know. Um, I mean, I’m just reading from what - I - I don’t recall what I said; I’m just reading what the note says.
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