Spence v Paraquad Victoria
[2018] VCC 111
•15 February 2018
| IN THE COUNTY COURT OF VICTORIA AT MORWELL | Revised (Not) Restricted Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-13-04166
| PAUL SPENCE | Plaintiff |
| v | |
| PARAQUAD VICTORIA | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Morwell | |
DATE OF HEARING: | 5-9,12-14 February 2018 | |
DATE OF JUDGMENT: | 15 February 2018 | |
CASE MAY BE CITED AS: | Spence v Paraquad Victoria | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 111 | |
REASONS FOR JUDGMENT
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Subject: ACCIDENT COMPENSATION
Catchwords: Serious injury-pain and suffering-impairment of spine
Legislation Cited: Accident Compensation Act 1985
Cases Cited: Peak Engineering Pty Ltd & Anor v Tony Paul McKenzie [2014] VSCA
67; AG Staff Pty Ltd v Filipowicz & Anor [2012] VSCA 60
Judgment: Application dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P O’Dwyer SC with Mr G Wicks | Maurice Blackburn |
| For the Defendant | Mr P Jens QC with Mr A Saunders | Minter Ellison |
HIS HONOUR:
1 This application has been something of a marathon in this jurisdiction. It seeks paragraph (a) serious injury leave for a spinal impairment arising from a course of employment back in 2003. It is an admitted compensable injury.
2 The hearing ran into a second week in Morwell. A host of medical reports that concern at least two 2003 work incidents in the course of employment as well as two later transport accidents being in March 2009 and August 2015 have been tendered. Documents were still being tendered during final submissions and on the last hearing day. In this case the exercise of determining a serious injury application is even more complicated than most due to not hearing medical opinions explained and clarified about work injury to the spine sustained fifteen years ago and then subsequently aggravated by significant transport accidents in 2009 and 2015.
3 Leave is sought for pain and suffering only as a result of impairment of the function of the spine at cervical, thoracic and lumbar levels. The plaintiff claims he injured these three levels of the spine in the course of his employment in 2003 and in particular in two incidents, in March 2003 and September 2003. On both occasions he was handling disabled patients in the course of his employment as an attendant care worker. When referring to “work” or “2003” I will treat this as one “course of employment” injury application.
4 The evidence establishes that he further aggravated his neck and back in a 2009 transport accident when the car he was a passenger in ran into a brick building at 50 km/h. He swore an affidavit in 2014 seeking a serious injury certificate from TAC. On 26 March 2015 TAC granted a serious injury certificate for the aggravation suffered in that 2009 accident. Then in August 2015 a second transport accident caused further aggravation of his spinal condition.
5 The plaintiff puts his case in two ways. His first submission is that as at March 2009 and prior to the transport accident, his spinal impairment from 2003 was productive of pain and other consequences that entitles him to “serious injury”. Implicit in this is that those conditions would have continued for the next nine years and be current now.
6 His second submission is that the 2003 impairment significantly contributes to the consequences he now suffers following the two transport accident aggravations. This second argument was described in a written handout expressed as follows: “…if it can be established that the effects of the 2009 injury were more severe because of the 2003 injury and/or the 2003 injury had made a significant contribution to impairment following the 2009 injury, than those consequences can be taken into account in considering whether the 2003 injury was a serious injury”.
7 The defendant’s position as to the plaintiff’s first submission was that whatever consequences the plaintiff was suffering from 2003 and in March 2009 prior to the transport accident, they did not amount to serious injury. As to the second submission the defendant maintains that the plaintiff has just failed to establish on the evidence the legal principles there relied on.
8 Comment has been made about the peculiar problems when later events causing injury have to be considered by the court in assessing an original injury.[1] Usually in cases of separate injuries the application before the court concerns an attempt to have a later aggravation injury found to be a “serious injury”. An aggravation can be a distinct “serious injury” as well as the original injury being a distinct “serious injury”. Here the 2009 aggravation injury is an agreed “serious injury” for which a certificate was granted by TAC in 2015 and it is the original 2003 injury the subject of the present application.
[1]Peak Engineering Pty Ltd & Anor v Tony Paul McKenzie [2014] VSCA 67
9 In my opinion the correct approach is for me to identify the injury to and the impairment of the spine that was suffered in 2003 in the course of employment. The consequences of that impairment must be judged now but I need to assess the situation immediately prior to the 2009 transport accident. I must consider what aggravation was caused to that impairment and the consequences of that aggravation as a result of the 2009 transport accident. I must also consider what aggravation was suffered in the 2015 transport accident.
10 Although the evidence presented about 2015 is limited and in some ways so unsatisfactory that it invites speculation which is of course not allowed. It is impermissible to aggregate or accumulate these three separate 2003, 2009 and 2015 injuries as they must be considered alone. It is not enough to simply say there is a material contribution between the 2003 injury and the 2009 aggravation for which serious injury was granted by TAC on 26 March 2015. [2]
[2]AG Staff Pty Ltd v Filipowicz & Anor [2012] VSCA 60
11 At the outset it is useful and informative to briefly look at that 2015 second transport accident. It is relevant to the plaintiff’s credit and also with respect to causation regarding his current spinal condition. The two affidavits he swore after that 2015 accident do not contain one word about it. Only in cross examination did it emerge that since that second transport accident in August 2015, the plaintiff has undertaken a course of treatment involving invasive spinal implant surgery planned for the near future which is being paid for by TAC following a separate claim based on the 2015 accident.
12 When the plaintiff attended on Dr Dan Bates for treatment at the Metropain Group sometime after the 2015 transport accident, it is recorded as the only cause of spinal pain, disc pathology, and other symptoms. [3] There is no mention at all in Dr Bates’ report about the 2003 work injuries that are the subject of this application.
[3]Plaintiff’s Court book (PCB) 78
13 Mr Spence saw Mr M Khan an orthopaedic surgeon for medico-legal assessments on 6 August 2015 and again in April 2017.[4] The first transport accident in 2009 was commented on. When the plaintiff saw him again in May 2017, a detailed history was taken of the second transport accident on 6 August 2015 when Mr Spence was in heavy traffic and was rear-ended by a Ford sedan which failed to stop.[5] Interestingly, when taken to this passage in cross-examination the plaintiff said “I was in pain heavily again.” [6] The word “again” had significance. Just what the real causal effects the August 2015 second transport accident has resulted in has been basically left up in the air on the evidence in this application. Mr Khan’s views are not based on full and adequate information and without hearing from him a good deal of opinion is not properly explained.
[4]PCB 99,111
[5]PCB 115
[6]T 71
14 There are several medico-legal comments relied on by the plaintiff which seem to point to no awareness that apparently TAC are paying for this recent medical treatment on the basis of the new 2015 transport accident claim rather than the 2009 accident. That is ultimately a matter for TAC and is in no way determinative on causation issues for this court, but it does point to the paucity of the histories and information on which a number of doctors gave opinions.
15 While I am dealing with Mr Khan it is worth noting that he quite specifically said in 2015 that the incident in September 2003 “could be a possible cause” of ongoing back injury and symptoms.[7] Then in 2017 he again said in answer to a specific question that “…his employment and incident in September 2003 could possibly be a cause of your clients” back injury and symptoms.[8] He has deliberately used the language of possibility rather than probability.
[7]PCB 109
[8]PCB 120
16 He then provided a very brief handwritten letter in 2017 in which he said 2003 contributed about 50% of his condition and there was a permanent disability in relation to the condition or injury in 2003 notwithstanding the 2009 accident.[9] How or why he changed his position to now give answers going beyond possibility in that short letter has not been explained. There was no further clinical examination and no indication he was sent any further materials.
[9]PCB 124
17 The plaintiff saw a Mr Nicholas Hall, neurosurgeon, for treatment commencing in January 2016. There is a brief letter from Mr Hall back to the referring general practitioner which states “Paul did have long-standing symptoms but following a motor vehicle accident in 2009 have worsened cervical and lumbar symptoms.” Mr Hall goes on to say that there was the August 2015 car accident which had “further set off his symptomology.”[10] Then when Mr Hall was asked to provide a formal report to the plaintiff’s solicitors which is much more lengthy, he described the 2009 transport accident saying “in August 2015 he had a further motor vehicle accident which further worsened his symptoms.” [11]
[10]PCB 72
[11]PCB 72
18 What is clearly relevant to both credit and causation is that Mr Hall was treating the patient for TAC accident problems. The surgeon clearly recorded “there were no described symptoms prior to the first accident in 2009.”[12] This must have come from Mr Spence.
[12]PCB 73
19 It is obvious from the rest of his medical report that he felt the two motor vehicle accidents were the principal causes of spinal complaint but he commented further. He said accidents “…both in 2009 and 2015 have likely had a contributory effect to his degenerative disc disease which is the cause of his ongoing symptomology. His long-standing work may have also had a contributory effect.” [13]
[13]PCB 74
20 Mr Hall was vague here and did not really advance the plaintiff’s case very far. He uses the language of possibility and not probability. Whether or not he was talking about the 2003 work trauma or was just talking about some “work” generally is just not clear. When he speaks about “long-standing symptoms” he did not say for how long or where they sprang from. What is clear is that there is no specific mention of the 2003 work injury which the plaintiff must now prove, fifteen years later in 2018, is still resulting in an impairment that has very considerable consequences.
21 It is in my view very damaging to his credit that across the two most recent affidavits the plaintiff has sworn in pursuance of serious injury from the employer defendant he did not mention this August 2015 transport accident. One affidavit was sworn in 2017 and the other in 2018. The 2015 collision appeared in a number of medical reports but a reader of his affidavits would be entitled to expect some account from the plaintiff himself about it, how it aggravated his spine, the treatment it required and how his condition is these days after that aggravation now.
22 This rather selective account of the cause of his various spinal complaints is reflected not only in his affidavits but in what he said to doctor after doctor depending on what was the particular legal cause then being focused on.
23 The second submission relied on by the plaintiff can be disposed of first and in shorter compass. I reject the submission that the effects of the later 2009 transport accident injury were more severe because of what the plaintiff had suffered in the 2003 work injury or that it made a significant contribution to any impairment suffered as a consequence of the 2009 aggravation injury. I find it is simply not proved looking at all the evidence.
24 Mr Spence saw Professor Bittar, neurosurgeon, once for medico-legal assessment in June 2017. He reported that the likely course of the 2003 injury, absent the motor vehicle accident in 2009, was symptoms and disability that “would have remained stable in the long term.”[14] This was of course when the plaintiff was working two jobs and enjoying a full personal life.
[14]PCB 130
25 The high point of the plaintiff’s second submission is Professor Bittar. It comes in a very brief supplementary letter dated 25 January 2018. It reads “…the effects of the transport accident in 2009 almost certainly were substantially greater than they would have otherwise been if he had not had a pre-existing work related injury to his neck and back.”[15] Then followed his comment that there was a “very significant contribution” from the work injury to his current condition.
[15]PCB 148
26 I do not accept these statements. He has significant factual errors underpinning his opinion. His history is inadequate. His understanding that Mr Spence was “significantly symptomatic” from 2003 until 2009 is wrong on the undisputed facts I accept and will refer to later. His understanding that he only worked in a “light physical role” working his two jobs is also wrong. [16] His very late opinion is on its own against a litany of other medical opinions across both court books.
[16]PCB 148
27 This doctor did not have the benefit of further examination. Yet he gives an opinion that to an extent is a new or different opinion. How it fits with his earlier view of the position remaining stable in the long term is hard to see. He does not adequately explain how he came to this later view. Without hearing from him it is not clear what he bases this connection between 2003 and 2009 on.
28 The task for me is to judge the position in February 2018 and determine what if any impairment of the spine he is now suffering as a result of the 2003 work traumas and what are the consequences of any such impairment.
29 The final task is that all the consequences that have been established as resulting from the 2003 injury must then be judged by comparison with other cases in the range of impairments of body functions in order to decide whether they can be fairly described as being at least a very considerable.
30 A short statement of facts not in dispute is useful in considering the plaintiff’s first submission that he had “serious injury” spinal impairment as at March 2009 before the transport accident and it continues to the present day. The plaintiff is 62 years old and after being injured in 2003 he was off work for a time. In 2002/2003 he earned $28,304 prior to his spinal injury. He returned to the personal care industry after about eighteen months off but not doing the heavy physical tasks. He worked for two care employers earning $62,911 in 2006/2007 and $83,240 in 2007/2008. Then in March 2009 the first transport accident occurred. He said in evidence he was on track at that time to earn more than $90,000 for 2008/2009. He was working more than 40 hours per week.[17] He has not returned to any employment in the nine years since.
[17]Defendant’s Court Book (DCB) 184, Transcript (T) 14,16-17
31 He described his return to care work in 2005 in enthusiastic terms. He said in 2007 and 2008 “it was fantastic.”[18] At another point he said he loved his work. This is not a pain and suffering case where there was any loss of job satisfaction upon his return to lighter work in the care industry in 2005.
[18]T 18
32 He underwent extensive treatment and investigations following the 2003 work injury but this treatment largely stopped in 2004 and 2005. There was very limited treatment then undertaken until the 2009 transport accident.[19] He kept seeing a chiropractor and a psychologist but little else. Pain killing medication had been ceased and he was only taking some intermittent anti-inflammatories. Then the 2009 transport accident changed all this. Specialist and many other conservative and surgical practitioners became involved. Narcotic painkillers were prescribed and his pain has been such that he is now awaiting spinal implant surgery funded by TAC. At the present time he is on Fentanyl patches, Tramadol and Panadeine Forte but of course the 2015 accident has also occurred now.[20]
[19]T 14
[20]T 76
33 Prior to the 2009 transport accident he had also returned to a number of his former leisure pursuits. He had been swimming every second day, performing daily exercises at one stage and had got to the point where he could work more than full time hours. He said “I was concentrating on staying fit enough to remain at work.”[21] He had been able to return to engaging in sexual activity. He enjoyed a new relationship. He was able to do some light fishing. He was keeping his weight down whereas after the transport accident he put on some seventeen kilos at one stage. He even bought a “tinny” fishing boat sometime around 2007 and 2008 and towed it for five hours on several occasions to East Gippsland and fished on the lakes.[22]
[21]DCB 184
[22]T 83-84
34 I will make some comments later about the plaintiff as a witness but I can say at this point that I accept his evidence that he still suffered some pain in his spine at different levels leading up to the 2009 transport accident. I do not find it was significant. It did not stop him working long hours in two jobs. He had virtually ceased medical treatment. He was engaging in a number of physical pursuits he enjoyed. On the probabilities this situation would have remained except for the consequences that have followed when the vehicle he was in ran into the brick wall at 50 km/h on 11 March 2009 and then he was rear-ended in 2015.
35 It is important to note that not only had he returned to work after eighteen months off, but he got the stage of holding down two jobs by 2005 for two different employers and with much longer hours than before the transport accident.[23] The type of the people he was caring for was different. There was none of the lifting needed for the Paraquad patients but in his second job which he started in 2005 with “On Call Personnel”, there was a range of demands on his capacity. He was dealing with people who had a spectrum of disabilities such as autism and included mentally ill offenders. Some had no verbal skills and very few social skills and he would take them out in public at times and restrain them from antisocial behaviour. He generally dealt with a range of patients whose demands could lead him into positions of aggression and danger.[24] On any view it was a challenging job that he performed and enjoyed.
[23]T 27
[24]DCB 129,T36-38
36 The other job that he performed satisfactorily at the time of the 2009 transport accident involved night care work when he would be on his own. At times he would need to resuscitate patients who got into emergency situations.[25] Both jobs required significant capacity and he demonstrated that capacity for some years prior to March 2009. Between 2005 and 2009 he took no time off work.[26]
[25]T 35-36, 40
[26]T45
37 It is informative to look at what experienced specialists were saying about his spine between 2003 and 2009. Mr D Brownbill, neurosurgeon, examined Mr Spence in March 2004. He found a full range of movement and in a very detailed report stated that apart from avoiding heavy lifting there had been a fairly satisfactory recovery at that early stage. This report only describes minimal problems and consequences even at that early stage.[27]
[27]DCB 81-85
38 Mr Dohrmann, a treating surgeon, saw Mr Spence several times throughout 2004 and he commented on improvement several times. In October 2004 he said the patient was “likely to gradually improve”.[28] Again, apart from avoiding heavy work, there was really no other issue in terms of consequences flowing from the 2003 spinal injury in this treating specialist’s opinion.
[28]DCB 89
39 The neurologist, Professor Balla, also saw Mr Spence in 2004. He did not think there was any permanent impairment from spinal complaints and apart from avoiding heavy lifting of patients there was really nothing recorded by way of consequences.[29]
[29]DCB 93
40 I accept these 2004 opinions of Mr Brownbill, Mr Dohrmann and Professor Balla. They indicate that there were no consequences of any significance at that stage and apart from avoiding heavy work, Mr Spence was well down a path of improvement and recovery. They are opinions consistent with him returning to work the next year in 2005 and indeed taking two jobs at the one time for the next four years or so up to the 2009 transport accident. They are also consistent with his return to physical leisure activities and personal matters such as sexual activity in the years before 2009.
41 In the end, judging the situation as at March 2009 and what if any impairment the 2003 spinal condition resulted in, it was probably the plaintiff himself who best summed up the situation after being challenged in cross examination about what he had said to TAC doctors. He agreed in court that the 2009 transport accident had stopped him working the job he loved and that “I was a very happy individual before I had the car accident, but I’d worked hard to get back into work and I was enjoying myself at work”.[30] At another point he probably described accurately that the consequences of 2003 were largely in the past when he said that before the 2009 transport accident “I had managed my pain and got my happiness back.”[31] He repeated he was “managing his pain” when challenged about what he had told another TAC doctor.[32]
[30]T 49
[31]T 74
[32]T 45
42 I find the spinal pain he was suffering in the years immediately prior to the March 2009 accident was not significant. That pain did not produce any pain and suffering consequences that were very considerable. He was enjoying a relatively normal life at work and elsewhere.
43 He was asked at length how his social life had been impacted by the various injuries to his spine. At times in cross examination he was a little reluctant to agree that prior to 2009 that part of his life had been largely restored. In the end, when pressed, he volunteered and I accept as probably accurate that after the 2003 injury “I build-up. I managed my pain and I got the happiness back in my life. I had a partner. I was managing my pain and I was interacting in a lot better than what I was straight after that injury. “[33]
[33]T 53
44 It is often said somewhat kindly in this jurisdiction that a plaintiff has “put his best foot forward”. Unfortunately this was the case here. It is a great advantage to be able not only to hear but also observe a witness give evidence over a number of hours. I found Mr Spence put a very different emphasis on the nature of his injuries and disabilities at different times. He was a selective witness and thus unreliable. Depending on whether he was describing problems to the WorkCover doctors or whether he was describing symptoms to the TAC doctors, and which of the two serious injury applications he was dealing with at the time, coloured the information he provided. This impacted adversely on credit but also meant a lot of the medical opinions are flawed.
45 I will not deal with every one of the forty six or so reports tendered in the detail often required in these applications because in the end, only limited weight can be given to most of them. This is because the plaintiff had often given doctors a very limited and often slanted history about work and transport accidents.
46 Leaving aside the reality that histories to doctors can be inaccurately recorded at times, his two latest affidavits are silent about the 2015 transport accident claim on which TAC are paying treatment for regarding spinal pain.[34] He has been assessed and is presently awaiting major spinal cord implant surgery. Another example was the absence in affidavits of any mention of running as an interest. In re-examination an attempt was made to introduce evidence about the suggested impact on an interest in distance running that was entirely new in focus and emphasis. I did not find it persuasive and do not accept the suggestion it was a loss to him due to the 2003 injury.
[34]T 66-68,72
47 The need for medication was another topic on which evidence varied according to the particular accident in focus at the time. Prior to the 2009 accident he said he was only taking “occasional Advil” in his affidavit to TAC seeking a serious injury certificate.[35] In his 2017 affidavit seeking a certificate for the work injury, it had become “daily Advil” and by his 2018 affidavit it was Advils four times a day.[36] In the witness box his evidence was equivocal but at one stage he said he had to take it “heavily” before the 2009 accident.[37] This was another important topic in a pain and suffering claim on which I did not find the plaintiff consistent and reliable.
[35]DCB 184
[36]PCB 20,21c
[37]T10
48 Taking his evidence on its own, it is difficult to draw any conclusions even on the probabilities as to what if any impairment he was suffering from the 2003 condition prior to the aggravation in March 2009 for which he obtained a serious injury certificate. He of course carries the onus of proof.
49 As for the plaintiff’s second submission, I have already stated the 2003 trauma has not been proved as playing any part in making the 2009 condition more severe nor has 2003 made any significant contribution to the consequences of the 2009 injury.
50 The two court books given to the court contained over fifty reports and letters from doctors leaving aside something like a dozen radiological documents. Counsel edited these books somewhat and ultimately forty six reports/letters were still tendered as well as many pages of clinical notes. They have all been considered and I will provide brief comments only. Many suffer from very inadequate histories of spinal injuries. Many of them predate the 2009 transport accident and many others the 2015 accident. Also some are just so out of date they do not assist and more recent opinions are more helpful now if they are based on full and proper history.
51 I will deal with them in the order they have been presented in the respective court books starting with the treating practitioners. Mr M Houghton, chiropractor, first treated the plaintiff in March 2003.[38] He reported in May 2006 of a return to full-time work and the need for occasional chiropractic treatment say for another “12 treatment twelve visits.”[39] He then reported very briefly in 2017 and after the 2009 transport accident, he said the chiropractic treatment continued as before and did not generally vary. But he did say there had been one noticeable difference in that there was a distinct change in the area of treatment post that transport accident in the sense of the right side of the cervical spine now being a focus as well as the left side.[40] He made no mention at all of the 2015 transport accident. His clinical notes were also tendered and show he last treated the patient in July 2009.[41]
[38]PCB 27
[39]PCB 33
[40]PCB 34
[41]PCB 34s
52 These notes show chiropractic treatment for his spine through the years leading up to 2009. Some of the visits do not read as treatment for spinal matters but other health issues however the level of attention is consistent with him needing chiropractic help from time to time in order to work his two jobs and lead an active life outside his work. It is interesting that at his last two visits some months before the 2009 transport accident, the chiropractor recorded he “felt better” and was “now better”.[42] The notes also indicate that after the 2009 transport accident aggravation there was a marked increase in the level of complaints and the treatment regime.
[42]PCB
53 He stated in a short 2017 letter to the plaintiff’s solicitors that with respect to symptoms “… my opinion is that these would be most likely be directly related to the original injuries covered by WorkCover.”[43] There is no mention at all of the part played by the 2015 transport accident that has led the plaintiff to be on the verge of spinal implant surgery. Accordingly I do not accept Mr Houghton’s views are soundly based. He has not been given a full history. Importantly it is almost nine years since he last saw the plaintiff. There is no evidence the plaintiff’s solicitors sent him any up-to-date medical material or even the plaintiff’s TAC serious injury affidavit to assist him deal with the large gap of nine years since he had last seen Mr Spence.
[43]PCB 34
54 Mr S Doig, orthopaedic surgeon, reported more than fifteen years ago in December 2003. Apart from saying the major problem was in the cervical spine his two brief letters offer nothing relevant to assessing any consequences arising from 2003 now.
55 Mr P Dohrmann, neurosurgeon, first saw the plaintiff in 2004 and lastly in 2005. His opinion was optimistic overall but it is now of no great weight being almost thirteen years since he saw the patient. In any event the surgeon thought Mr Spence was likely to improve with conservative management and surgery was unlikely to be necessary.[44] These were very early days but there is nothing that could be construed as supporting any ongoing serious problems from the 2003 injury. Some earlier comments have already been made about his material.
[44]DCB 88-89
56 Mr B Kimpton, treating psychologist, has primarily reported on mental health issues. As to the consequences of the organic spinal impairment his reports do not take the matter very far.[45] He noted the improvement in his patient by 2006 was such that indicated a man coping well. [46] Mr Spence had successfully managed his back and neck injury and had a good prognosis prior to the 2009 transport accident.[47] He does record continuing pain over many years, which I accept, but he does not support any finding of an organic impairment separate from the psychological impact suffered in 2003 that could be said to be producing consequences that are now very considerable in 2018.
[45]PCB 39,52f
[46]PCB 49
[47]PCB 52
57 Many pages of his handwritten notes were tendered. A lot are illegible. His reports are clear enough without having to guess what some brief handwritten notes indicate. I am not assisted by the notes. Overall his lengthy reports describe a very pessimistic and gloomy prognosis about a patient who had a downturn mentally after the 2009 transport accident. That downturn was in stark contrast with the patient who had been working and coping well in terms of relationships and leisure activities and life generally prior to the car running into the brick wall. This evidence is consistent with my conclusion that prior to the 2009 accident there was pain, but there were no pain and suffering consequences from 2003 that could be described as at least very considerable.
58 What is also apparent from these notes is that Mr Spence was having significant mental health issues that required regular visits to the psychologist. I accept he noted complaints of physical pain but he is a professional only in the mental health area. He is no more qualified to give a physical injury opinion than a lay witness noting a complaint of pain. In the end whatever the real origin of the problems that led him to keep seeing the psychologist on a regular basis, the plaintiff was coping before March 2009 with both work and life outside work and these notes do not assist in pointing to an organically based spinal impairment that in 2018 meets the test.
59 Across the notes of the chiropractor and the psychologist it appears that Mr Spence was paying for a lot of this conservative treatment out of his own pocket. Why this would be so when he had an admitted compensable injury in 2003 covered by WorkCover has not been explained in affidavits nor was he taken to it in oral evidence. It invites an inference that in his own mind some of the problems he was attending for were not related to employment, but the fact is he was just not asked about that in court so I draw no inference.
60 Mr P Chan, neurosurgeon and spinal surgeon, first treated the plaintiff in June 2009 and last reviewed him in October 2015. He recorded “He described his current injury and re-aggravation of symptoms to have dated back from the recent car accident of 6 August 2015. The onset of his current symptoms are thus consistent with the stated cause.”[48] Without hearing from Mr Chan and doing the best I can, he does not support 2003 producing very considerable consequences now although there is clear equivocation about just what he was saying. What is clear is that in 2009 and after 2015 there was a real change in the spinal injuries compared with Mr Spence between 2003 and 2009. From left sided symptoms previously, the transport accidents had caused very significant right sided symptoms both in the spine and referred into the limbs.
[48]PCB 63
61 Dr M Gayner, treating psychiatrist, reported in May 2009 but he has no history of the 2015 transport accident. He described chronic pain that saw “an intensification of his back pain accompanied by altered sensation in both arms” as a result of the 2009 transport accident.[49] He referred to 2003 and 2009 as both being “significant physical injuries”.[50] In spite of that statement he does not make out a case of organically based pain now in 2018 as a result of the 2003 work injury.
[49]PCB 55
[50]PCB 55
62 The East Doncaster general practitioner, Dr Evers, reported in 2010 and there is no history of the 2015 accident. Her report is of no assistance now.[51]
[51]PCB 64
63 She referred Mr Spence to an anaesthetist, Dr T McCarthy, in 2010. Dr McCarthy said “his more recent problems relate to a TAC claim (2009)”.[52] No present consequences from 2003 can be deduced from this out of date report.
[52]PCB 65
64 Three general practitioners from Lakes Entrance have provided materials and they are Doctors Nakkeeran, Kwee and Tadrous. The first of those reported in February 2015 and gave a very vague history as to where the spinal problems stemmed from in describing “ongoing work and accident related health issues since 2009”.[53] August 2015 of course postdates this report. What “work” is referred to is not in any way described. Also it is too brief and vague a report to support 2003 consequences now that could be said to be very considerable.
[53]PCB 67
65 In October 2015 Dr Kwee reported he was being “treated for chronic neck and back pain secondary to an accident in 2009” [54]and that back pain had been exacerbated by “another” transport accident on 6 August 2015. The patient had “been struggling more with his depression” after this second transport accident but the report does not advance the matter in terms of organic spinal symptoms caused by the 2003 injury.[55]
[54]PCB 70
[55]PCB 70-71
66 Dr Tadrous most recently reported only last month and very briefly. She said “Mr Spence had sustained a neck and lower back injury through a work related injury in September 2003 which I understand is well documented. He continues to have chronic neck and lower back pain…”[56] She thought his condition was permanent. These comments come in a context of her report in 2016 that the 2015 accident exacerbated his pain as well. Her colleagues of course at Lakes Entrance had reported about the 2009 aggravation. It is not clear what consequences Dr Tadrous attributed to 2003 but I do not read them as very considerable standing alone and away from the 2009 and 2015 aggravations.
[56]PCB 82
67 None of the Lakes Entrance practitioners say very much about the 2009 spinal injury for which the plaintiff had been granted serious injury. The only mentions were by Dr Kwee about “chronic neck and back pain secondary to his accident in 2009.”[57] Later on when talking about the 2015 accident, which she called a “second MVA”, she must have had 2009 in mind. If so what occurred in 2009 and what are its effects and consequences now? These three general practitioners, even taken collectively, do not say. Their brief reports are so deficient in history and explanation that I only give them very limited weight. They do not document anything like a full factual basis on which to found solid opinions. All the referrals from this Lakes Entrance practice have been for TAC accidents. These doctors do not advance the plaintiff’s case about work.
[57]PCB 70
68 Mr N Hall gave a number of reports and I have already commented on the vagueness incumbent in his opinions. It is not necessary to discuss his views further other than to say they do not make clear what if any consequences are now present from the 2003 trauma.[58] His opinions are essentially all directed to 2009 and 2015 accidents.[59] In fact he stated “There were no described incidents prior to the first accident in 2009”. [60] He then went on to say that “long-standing work” may also have had a contributory effect but it is an unexplained opinion and cannot be followed logically on the material in his reports. In the end it is only expressed as a possibility and not a probability.
[58]PCB 71a-77
[59]PCB 73-74
[60]PCB 74
69 Just two weeks ago on 18 January Dr D Bates from Metropain Group reported his group would proceed to a spinal cord stimulator being inserted into Mr Spence.[61] There is no evidence that is clear or acceptable about the role, if any, the 2003 work injury is presently playing in the symptomology leading to such an invasive surgical procedure fifteen years later. His material reads as though it is all due to the “onset of new pain” in the spine following the August 2015 transport accident.[62] Whether or not that is what he is really saying, the fact remains that his opinion does not support 2003 playing any causative role now.
[61]PCB 80a
[62]PCB 78
70 The last in the long list of treaters relied on is Ms E Dolan, psychologist. She had one session with him in July 2017 in order to assess whether he was an appropriate candidate for a spinal cord stimulator operation. She found he was. Her history is hard to follow as she referred to 2003 but also a car accident “in 2004 and 2015.”[63] She reports on mental health issues and is of no assistance in judging any organic physical consequences from the 2003 work injury.
[63]PCB 82a-82f.DCB 81-85
71 The medico-legal reports from Mr Khan and Professor Bittar have already been referred to. It only remains to say that as I do not accept the plaintiff as a reliable witness on the level of his symptoms with respect to the various traumas and relevant time periods, their reports are not soundly based. They do not result in the requisite proofs being established in regard to the judgment of 2003 consequences now.
72 The defendant’s reports also included reports from psychiatrists Doctors Mendleson, Rose, Hayman and Ingram. The latter two saw him for TAC. Also a psychologist, Debra Smith saw him for TAC regarding the 2009 accident. They do not assist in the present application except to say there was some reliance on them by the defendant as to credit regarding the site and nature of complaints as well as the state of his recovery prior to the 2009 accident. Certain accounts he gave to these doctors adversely impact on credit as they are heavily focussed on transport accident consequences.
73 A Dr B Hocking, specialist in occupational medicine, saw the plaintiff for TAC in August 2009 regarding the March 2009 transport accident. Significantly, all the plaintiff told him about 2003 was “He incurred an injury of the cervical spine. He was treated conservatively and eventually improved to return to work after a year and a half.”[64] This was a very selective, edited history for the ears of a doctor being seen for purposes of a TAC serious injury certificate.
[64]DCB 128
74 In a similar vein when Mr M Fogarty, orthopaedic surgeon, saw Mr Spence for TAC in August 2012 he was given a very brief and unsatisfactory history of neck and back injury in 2003. All he was really told about that was “He said he was not seriously affected by the back injury then and continued to work with the disabled.”[65] Again this added to my view of the plaintiff’s unreliability.
[65]DCB 151
75 The defendant tendered Dr B Kinloch’s July 2009 letter to Mr P Chan.[66] Overall his was an optimistic opinion following a stirring up of neck symptoms in the 2009 accident which would settle over time. The doctor thought Mr Spence would benefit from getting back to work. This letter adds no support to any very considerable consequences in 2018 flowing from 2003. The only history this doctor had was symptoms suffered “since a motor vehicle collision on 11 March 2009.”[67]
[66]DCB 194
[67]DCB 194
76 A more recent report to the defendant was provided by Mr M Dooley, orthopaedic surgeon, in 2017. He was engaged by the defendant’s solicitors in the current application for serious injury. Not surprisingly he was given a much fuller account by Mr Spence of the 2003 work injury than the TAC doctors had been provided. His view was the “ongoing symptoms relate to his naturally occurring degenerative disc disease, the episode of 2003 and the motor vehicle accident. It is difficult to provide apportionment. The episode of 2003 may account for ten to fifteen percent of Mr Spence’s ongoing symptoms.”[68] The word “may” indicates it is not an opinion expressed as a probability and it does not take the plaintiff’s case any further in terms of proofs.
[68]DCB 193
77 In the end I am satisfied that after 2003 he was suffering some spinal pain up to March 2009 but he was able to cope with it. Whatever consequences flowed from that prior to the car accidents and still flow now, if any at all, they have not been proved to be at least very considerable.
78 It follows the application is dismissed.
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