Steniotes v Transport Accident Commission
[2021] VCC 1383
•3 September 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01475
| ANDREAS STENIOTES | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
---
JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne (via Zoom hearing) | |
DATE OF HEARING: | 7 February and 12 February 2021 | |
DATE OF JUDGMENT: | 3 September 2021 | |
CASE MAY BE CITED AS: | Steniotes v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1383 | |
REASONS FOR JUDGMENT
---
Subject: TRANSPORT ACCIDENT
Catchwords: Transport accident – serious injury – paragraph (a) of the definition of “serious injury” – injury to the hips and in particular, right hip – pre-existing condition
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Lexa v Transport Accident Commission [2019] VSCA 123; Cardoso v Staff Australia Payroll Services Pty Ltd [2019] VSCA 139; Carbone v Toyota Motor Corp Australia Ltd [2017] VSCA 249; Humphries and Anor v Poljak [1992] 2 VR 129; Mobilio v Balliotis [1998] 3 VR 833; Richards & Anor v Wylie (2001) 1 VR 79; Petkovski v Galletti [1994] 1 VR 436; Peak Engineering & Anor v McKenzie [2014] VSCA 67
Judgment: Proceeding dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R W McGarvie QC with Mr L B R Allan | Carbone Lawyers |
| For the Defendant | Mr D Masel SC with Ms A Bannon | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1By way of Originating Motion filed on 9 April 2020, Andreas Steniotes (“the plaintiff”) seeks leave pursuant to s93(4)(d) of the Transport Accident Act 1986 as amended (“the Act”) to bring common law proceedings to recover damages for a bilateral hip injury and, in particular, the right hip (“the injury”) suffered by him resulting from a transport accident which occurred on or about 2 May 2014 (“the transport accident”).
2The plaintiff gave evidence and was cross-examined. Both parties tendered various documents.[1]
[1] See Annexure “A”
Relevant legal principles
3The Court must not give leave unless it is satisfied, on the balance of probabilities, that “the injury” is a “serious injury” within the meaning of the definition of “serious injury” contained in s93(17) of the Act.[2]
[2] See s93(6) of the Act
4The plaintiff relies on paragraph (a) of the definition of “serious injury” contained in s93(17) of the Act, which reads:
“‘serious injury’ means—
(a) serious long-term impairment or loss of a body function; or
(b) …
(c)severe long-term mental or severe long-term behavioural disturbance of disorder; or
(d) … .”
(my emphasis).
5Although the plaintiff originally sought to rely on paragraph (a) and paragraph (c) of the definition of “serious injury”, the Court was informed at the commencement of the proceeding that there would only be reliance on paragraph (a).[3]
[3] See Transcript (“T”) 3, Lines (“L”) 10-15
6The part of the body said to be impaired for the purposes of paragraph (a) are “the hips” or, alternatively, the right hip.
7No doubt the reason Senior Counsel for the plaintiff opened in such a way was in acknowledgement of the issue as to whether or not bilateral hips is one body function or each hip had to be looked at individually. In general, the Court was referred to Lexa v Transport Accident Commission,[4] and also Cardoso v Staff Australia Payroll Services Pty Ltd[5] and Carbone v Toyota Motor Corp Australia Ltd,[6] both of which concern, in part, whether a worker could rely on bilateral shoulder injuries as one body part. In both cases, the Court effectively took the view that each shoulder injury gave rise to an impairment to a different “body function”.[7]
[4] [2019] VSCA 123
[5] [2019] VSCA 139
[6] [2017] VSCA 249
[7] See Carbone v Toyota Motor Corp Australia Ltd (op cit) at paragraph [59]
8In order to succeed, the plaintiff must prove, on the balance of probabilities:
(a) that the “injury” suffered by him was a result of the transport accident;
(b) the requirements of the test set out in the seminal decision of Humphries and Anor v Poljak,[8] wherein the majority of the then Full Court of Victoria stated:
“Subsection (17) intends a division between injuries with physical consequences and those with mental consequences. The former fall under para (a) and the latter under para (c). It would be anomalous to regard the consequences of mental disturbance or disorder to fall under para (a) when the disturbance or disorder itself fell to be judged by whether they satisfied the criteria of para (c). A ‘functional overlay’ will, we consider, rarely amount to a behavioural disturbance or disorder as that term is used in the legislation.
Now, in the light of the various matters to which we have referred in the foregoing propositions that we have stated or conclusions to which we have come, we think that the task of a judge confronted with the requirement to determine an application made pursuant to subs (4)(d) when reliance is placed upon subs (17)(a) may be stated in the following terms: He is to be affirmatively satisfied (the burden of proof being borne by the applicant) that the injury complained of is in fact a serious injury. To qualify for such a description there must be an impairment or loss of a body function which as a result of the infliction of the injury complained of is both serious and long-term. We think ‘long-term’ is not an expression likely to give rise to difficulty. To be ‘serious’ the consequences of the injury must be serious to the particular applicant. Those consequences will relate to pecuniary disadvantage and/or pain and suffering. In forming a judgment as to whether, when regard is had to such consequence, an injury is to be held to be 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 at least as ‘very considerable’ and certainly more than ‘significant’ or ‘marked’? … .”[9]
[8] [1992] 2 VR 129
[9] (op cit) at 140. See also Mobilio v Balliotis [1998] 3 VR 833
(c) “serious injury” as defined in subparagraph (a), can have its seriousness measured in part by a mental response to a physical impairment; however, a mental disorder cannot of itself constitute or be the producer of the impairment of a body function.[10] In his opening, counsel for the plaintiff indicated that he would also rely on Richards & Anor v Wylie[11] to accommodate what he referred to as a “psychological component”.[12]
[10] See Richards & Anor v Wylie (2001) 1 VR 79
[11] Op cit
[12] See T3, L10-18
9In his opening, Senior Counsel for the plaintiff described how the plaintiff was stationary at a set of traffic lights when he was struck from behind by a car driving about 70 kilometres or so. The plaintiff’s vehicle was launched forward a considerable distance and a seat he was sitting in was broken off and he was flown around the car and lost consciousness.
10In his opening, Senior Counsel for the plaintiff submitted that the hips of the plaintiff were completely asymptomatic prior to the transport accident. One of the doctors did refer to an earlier x-ray which showed some degeneration which, it was submitted, would have been aggravated by the transport accident, giving rise to the symptoms the plaintiff experiences.[13]
[13]See generally Petkovski v Galletti [1994] 1 VR 436
The issues
11When queried as to what were the issues, Senior Counsel for the defendant stated:[14]
(a) That when one examines all of the evidence, the dominant cause of any symptoms suffered by the plaintiff are mediated by psychological mechanisms and not organic mechanisms. In this respect, Richards & Anor v Wylie[15] would require the application to be assessed under paragraph (c) of the definition of “serious injury”, rather than paragraph (a). In any event, if assessed under paragraph (c), it would have to be on the basis that the transport accident was an aggravation of a pre-existing condition and indeed, the extent of any aggravation would not be “severe”;
(b) If, however, the Court was persuaded that there was a dominant physical injury, any consequences to the plaintiff are to be assessed in light of his pre-existing – independently-occurring but pre-existing – impairments as a result and the effects on his quality of life following a work accident in 2003 and ongoing persistent consequences since then. In the circumstances, it was submitted that if the plaintiff sought to submit that the subject transport accident aggravated such pre-existing condition, the extent of such aggravation could not meet the definition of “serious”;
(c) Senior Counsel for the defendant also informed the Court that there were considerable issues as to credit, in the sense of the reliability of the plaintiff’s affidavits, and that I should indicate credit and reliability is very much in issue.[16]
[14] T27, L18 – T29, L23
[15] Op cit
[16] See T30, L20-24
The evidence of the Plaintiff
12The plaintiff relies on two affidavits ꟷ the first sworn on 9 May 2019[17] and a further affidavit sworn on 4 November 2020.[18]
[17] See exhibit 1 at pages 8-16 of the Plaintiff’s Court Book (“PCB”)
[18] See exhibit 1 at pages 17-22 PCB
13The plaintiff gave viva voce evidence that he had the opportunity to read over both of those affidavits in the last day or so and that the contents of those two affidavits were “true and correct”.[19] In his first affidavit, the plaintiff deposes that he was born in July 1943 and is seventy-seven years of age. He lives alone and has two adult children.
[19] T33, L10-16
14The plaintiff used to be a therapeutic masseuse but has been retired for some time.
15As best he can recall, the plaintiff has suffered the following injuries:
(a) In about 1949, he suffered from a hernia to his right groin;
(b) In about 1973, he suffered from a hernia in his left groin;
(c) In about 1975, he suffered from appendicitis and had to undergo an appendicectomy to have his appendix removed;
(d) In about 1994, he suffered from cholesterol;
(e) In about 1995, he suffered from diabetes;
(f) In about 2002, he suffered cholesterol and swelling to his right thyroid gland and also suffered from thrombocytopenia, a deficiency of platelets in his blood, which caused him to suffer from internal bleeding and clotting;
(g) In about 2003, he suffered injury to his right trigger finger and suffered from pain also in his knee, together with neck stiffness and headaches;
(h) He also suffered injury to his spine and back at work and suffered from left hip pain, thoracic spine pain and right disc prolapse, as a result of which he underwent surgery, physiotherapy and massage treatment, for which he received “damages compensation” as a result of the injury suffered while working for Nylex Industrial Products Pty Ltd;
(i) In about 2004, he suffered from panic attacks and heart palpitations;
(j) In about 2005, he suffered from chest pain;
(k) In about 2006 and 2007, he suffered from difficulty swallowing food and liquid. He also suffered from reflux, faintness, numbness in his hands and pain in his left chest. He also suffered from inflammation to his left foot in his plantar fascia, and right foot drop and sciatica to his lower right body.
He had to undergo an operation to his back and has also suffered from excessive enlargement of his breasts and swelling under the left nipple, ringing and buzzing noise in his ears and inflammation to his nose and to the back of his throat. Further, he suffers from pain in his throat, tongue, upper jaw and face, and in addition, suffered from urinary incontinence;
(l) In about 2008, he suffered from depression, gastroparesis, upper oesophageal weakness, tinnitus, insomnia and cervical spine pain. He also had difficulties breathing, swallowing and had problems with his bladder;
(m) In about 2009, he suffered from hypertension, thoracic spine pain, tinnitus and loss of hearing;
(n) In about 2010, he suffered from abdominal pain, hernia to the right groin and oesophageal weakness;
(o) In about 2011, he suffered from insomnia, anaemia and bladder problems, and underwent repair hernia to his right groin and right testicle;
(p) In about 2012, he suffered from vitamin D deficiency;
(q) In about 2013, he suffered from hypertension;
(r) On or about 28 January 2016 and 25 February 2016, he contracted cancer and had to undergo microscopic laser laryngoscopy surgery to remove the squamous cell carcinoma from his right vocal cord;
(s) He generally suffered problems with his bowel and bladder.
16On 2 May 2014, the plaintiff was involved in a transport accident and sustained injury to the following body parts: spine, cervical spine, left shoulder, right shoulder, left hip, right hip and psychological and psychiatric stress, anxiety and depression.
17At the time, the plaintiff was driving a car and was stationary at a set of traffic lights along Dandenong Road when a car driving at about 70 kilometres per hour struck him from behind, as a result of which his seat broke off and together with the seat, he was flung around the car and lost consciousness. When he regained consciousness, he was surrounded by police cars, fire brigades and ambulances. He was admitted to The Alfred hospital and remained there for about four days, during which time he underwent various scans and was diagnosed with “whiplash” and an injury to his “rib”. Afterwards, he had to attend outpatient rehabilitation at the hospital.
18As a result of the transport accident collision, the plaintiff alleges that he has been treated by multiple medical specialists and undergone x-rays, ultrasound, gastroscopy, MRI scans, CT scans and treatment for his transport accident collision injuries.
19At the time of his first affidavit, the plaintiff was seeing a physiotherapist three times a week and has consistently undergone massage treatment to his spine, cervical spine, left shoulder, right shoulder, left hip and right hip, to provide him with temporary relief.
20The plaintiff undertakes exercise classes twice a week as part of a pain management rehabilitation program at the Caulfield Hospital and also an independent gym program. He also undertakes hypnotherapy.
21Due to the pain he suffers, the plaintiff lacks sleep and has to take medication, including duloxetine. He also has to receive ongoing injections to his body, particularly his shoulder, cervical spine and hips, in order to reduce the pain and reduce his bodily functions.
22The plaintiff asserts that as a “direct result” of his transport accident, he suffers from stress, anxiety and depression, and regularly sees his psychologist about once a week every three to four weeks for psychological treatment. To treat his depression, he takes antidepressant medication, including agomelatine and duloxetine.
23In particular, as a result of the transport accident, the plaintiff continues to suffer pain, including headaches and body aches, including to his spine, cervical spine, left shoulder, right shoulder, left hip and right hip. He also suffers from arthritis to his hips.
24The plaintiff describes the pain in his right shoulder to be worse than his left, and he also suffers from shaking and numbness in his arms and legs.
25The plaintiff suffers from reduced ability to move his neck and shoulders in all directions as it causes him pain, and also suffers inflammation, tear, bone degeneration, joint problems and stiffness in his back, cervical spine, arms, shoulders and hips.
26On or about 4 December 2014, as a result of the treatment which he received, the plaintiff suffered from a helicobacter pylori infection.
27On or about 31 July 2015, the plaintiff suffered from a urinary tract infection and haematuria. He also suffered from bladder problems.
28On or about 12 October 2015, the plaintiff suffered from dysphonia (a disorder affecting the voice muscles in the larynx).
29The plaintiff asserts that as a result of the transport accident, he suffers from anxiety, depression, stress and trauma. In particular, he asserts that prior to the transport accident, he had the mobility to stand and walk around freely. Now, he is physically restricted and feels pain when undertaking any physical activity, including standing or walking for more than fifteen minutes at a time. He requires constant breaks in order to stop the intense pain that he suffers.
30The plaintiff used to be able to lift and carry objects of a reasonable weight. However, due to the spine, cervical spine, left shoulder, right shoulder, left hip and right hip injuries, he struggles to pick up objects.
31In particular, I set out paragraphs 22 to 31 of the plaintiff’s first affidavit:
“22.I used to be able to look after myself by bathing, dressing and grooming myself. Now, due to my transport accident collision injuries, I suffer difficulty taking care of myself.
23.I used to be able to engage in physical activities including household chores. Now, I am highly restricted due to the pain that I suffer as well as my lack of mobility.
24.I used to be able to undertake domestic duties. I now suffer restrictions in performing daily house chores and daily living activities.
25.l used to be happy and positive, however, now I feel depressed and irritable due to the pain I suffer and my lack of physical capacity.
26.l used to have a restful sleep at night. However, now, due to the pain l suffer, I cannot sleep and often remain awake.
27.I used to be energetic, however, now l feel tired and exhausted all the time and I wonder how I am going to get through the day.
28.I used to be calm and relaxed, however, I now suffer from stress and fear as a result of the transport accident collision. This causes me to suffer from panic attacks, difficulty breathing and I have flashbacks of the incident
29.l used to have the ability to concentrate. Now, due to the stress and fear that l suffer, my thoughts are clouded and unclear.
30.l used to have a healthy appetite. Now, due to stress, l cannot eat properly, l have difficulty swallowing food and suffer various gastrointestinal issues. On this basis, I have to take various nutritional supplements.
31.As a direct result of my transport accident collision injuries, l am getting thoughts of committing suicide.”[20]
[20] See plaintiff’s first affidavit, exhibit 1 at page 15 PCB
32The plaintiff deposes that he has been unable to work since his work injuries in 2003 and he makes no claim for economic loss.
33By way of his second affidavit, the plaintiff deposes that he is currently seventy-seven years of age and continues to suffer the pain and restrictions referred to in his previous affidavit. In particular, he continues to suffer pain and restriction of movement in his spine, neck, both shoulders and both hips due to the injuries he suffered in the transport accident on or about 2 May 2014.
34The plaintiff continues to see his physiotherapist, Mr Peter Rekas, at Active Life Physiotherapy, on a regular basis for treatment of his transport accident-related injuries and also continues to go to the gym at the Caulfield Hospital. He notes that although COVID-19 has temporarily stopped such treatment, this has become very difficult for him as the gym sessions were improving his strength and mobility.
35The plaintiff continues to consult a general practitioner, Dr Neil McNab, on a regular basis, and when he complained to Dr McNab in October 2019 that his pain was worsening and he would often suffer excessive pain when he took deep breaths and lying on his right side at night, Dr McNab prescribed him with Lyrica tablets to help treat these physical injuries. However, he ceased taking Lyrica, 100 milligram, in about September 2020.
36The plaintiff continues to consult with Dr Jason Chou of the Melbourne Pain Group on a regular basis for management of his medication as treatment for his transport-related injuries. Also, he continues to see the pain specialist, Dr Peter Courtney, every few months for shockwave and laser therapy for his hips and shoulders. He also consults Dr Courtney for platelet-rich plasma injections into his hips.
37The plaintiff continues to implement self-care measures such as hot packs, taking hot showers and stretching to try and treat his physical injury. He is required to repeat these remedies at various times throughout any day.
38At the time of the second affidavit, the plaintiff was taking the following medication for treatment of his physical injuries:
(a) Norspan, 40 micrograms per hour transdermal patch;
(b) Carafate, 1 gram;
(c) Motilium, 10 milligrams;
(d) Flomaxtra, 400 micrograms;
(e) Neurontin, 300 milligrams;
(f) OsmoLax, 50 milligrams
(g) Circadin, 2 milligrams;
(h) Panadol soluble, 500-milligram soluble tablets, two tablets every four hours;
(i) Panamax tablets; and
(j) Pariet, 20 milligrams.
39In relation to his psychological injuries, the plaintiff continues to see a psychiatrist, Dr Lev Botvinik, on a monthly basis for treatment and counselling for his “transport related … psychological injuries”.[21]
[21] PCB 19
40The plaintiff continues to see a hypnotherapist, Dr Andrew Fiedler, for hypnotherapy treatment, and that doctor provides treatment and coping mechanisms for his sleep disturbance as a consequence of his transport-related physical and psychological injuries.
41At the time of swearing his second affidavit, the plaintiff was taking duloxetine, 30-milligram tablets, one in the evening, and Valdoxan, 25-milligram tablet, one in the evening, for his psychological injury.
42Paragraphs 14 to 25 of the second affidavit set out the various injuries from which the plaintiff suffers, together with details of the pain and restriction of movement in respect of his spine, neck, shoulders and hips, together with details of his psychological injuries. I set those paragraphs out:
“Physical injuries
14. I continue to suffer from the injuries that arose from the transport accident on or about 2 May 2014. I continue to suffer pain and restriction of movement in my spine, neck, shoulders and hips. l try to do the best I can but I continue to struggle to bend, lift, twist or stoop as a result of my injuries.
15.Simple tasks such as doing the laundry, cooking and cleaning have been very difficult to complete as a consequence of the pain l suffer. I live alone so I feel that l have no choice, but l do such tasks with struggle and difficulty. The restrictions and the impact that these injuries have had on my body and my ability to take care of myself continues to frustrate and anger me. l feel helpless.
16.l continue to suffer restriction of movement in my back and hips which impacts on my ability to go for walks. Since sustaining my transport accident injuries, walking has become difficult, whereas prior to the transport accident I enjoyed walking and trying to stay fit and healthy. My transport accident injuries have restricted my movement and mobility.
17.l continue to struggle to sleep due to the pain I suffer in my hips, back, shoulders and neck. I often have sleepless nights as the pain is overwhelming, causing me to feel tired and fatigued throughout the day as a consequence of my disrupted sleep. I toss and turn during the night, and often wake feeling stiff and in pain. l try not to sleep on my side and to avoid putting pressure on my shoulders and neck.
18.As a consequence of the pain, anxiety and stress I suffer, I try to limit the amount of time I spend on the road. I continue to suffer pain in my neck and shoulder when I am driving, parking my car, reversing or checking blind spots. l also suffer neck pain when I do simple movements such as looking up and down. As such, I only drive when absolutely necessary such as to medical appointments and grocery shopping.
19.I used to enjoy doing the gardening. Now, I limit the amount of gardening due to the bending, squatting, lifting and standing involved. These movements place strain on my back, shoulders, neck and hips. Additionally, using gardening equipment like a garden shovel causes me to suffer severe pain in my shoulders and neck due to the repetitive heaving and pushing actions involved. l now have a gardener who attends my home to perform the gardening works and to mow the lawn for me. Gardening was a way for me to relax and enjoy my spare time. Now, it upsets me that my injuries have impacted my pastime activities.
Psychological injuries.
20.l continue to suffer pain, distress, anxiety and depression arising as a direct result of the transport accident.
21.I continue to suffer panic attacks, anxiety and flashbacks of my transport accident. This causes me to have difficulty with my breathing and l start to panic. l try to take deep breathes to calm myself, but when l do this I suffer pain in my chest, which makes it difficult for me to relax and calm down.
22.I continue to suffer difficulties with my concentration as a consequence of my psychological injuries. I do not read books as much as I used to as it is difficult for me to sit down in the same position and focus on what I am reading due to the pain l suffer. This causes me to become distracted and upset that my life has come to this.
23.Since sustaining my transport accident injuries, it has been difficult for me to put on a smile and to be happy. l try to be happy when I see my children, but they become upset when they see the condition l am in, which in turn causes me to become upset. It makes me depressed that my injuries have also impacted my children. I feel lucky to be alive after the transport accident, but the impact the injuries have had on my life has been profound.
24.l continue to suffer constant fear and anxiety when l am driving on the road. l stress when my car is stationary by the traffic lights which causes me to suffer flashbacks and l fear that I may be hit again.
25.I am 77 years of age. I know l do not have a long future ahead of me. Prior to sustaining my transport accident injuries, l had plans of visiting my family in Cyprus. My transport accident injuries have made it very difficult for me to arrange to travel due to the constant pain l am in. I also would not want my family in Cyprus to see the condition l am in as they remember a happy and energetic man.”[22]
(my emphasis).
[22] See plaintiff’s second affidavit at pages 21-22 PCB
43Ultimately, the plaintiff states that since sustaining his transport accident injuries, he has sought treatment to make a good recovery and there were times when he would feel a little better and then he would be hopeful and optimistic, but then on other days his pain would come back with a vengeance and cause him to become frustrated and angry. He notes that the ongoing pain makes him feel hopeless, despite his attempts at moving forward and engaging with this treatment.
The medical treatment undergone by the Plaintiff
44Initially, I refer to exhibit C, which details reports from both treaters of the plaintiff and medico-legal specialists retained to examine the plaintiff in relation to his so-called work injury arising out of or in the course of his employment with Nylex Industrial Products Pty Ltd on 3 April 2003. The reportage covers the period from approximately late 2006 until about April or May 2013. I have read all such reports.
45In particular, I refer to the report of the general surgeon, the late Professor Vernon Marshall, dated 27 January 2009.[23] I refer to this report in particular, as some of the history given by the plaintiff to Professor Marshall was the subject of cross-examination by Senior Counsel for the defendant.
[23] See exhibit C at pages 67-74 DCB
46Professor Marshall examined the plaintiff on 20 January 2009 at the behest of the WorkCover insurer of Nylex Industrial Products Pty Ltd. Professor Marshall had previously reported on 3 July 2007 and had obtained a history that the plaintiff had suffered a low-back injury on 3 April 2003, causing low-back pain and right-sided sciatica, with right nerve root compression, and disc prolapse. Subsequently, a laminectomy and discectomy were performed in April 2006 at the L5-S1 level. Post-operatively, the plaintiff suffered from bowel and urine problems, Type 2 diabetes treated by diet and medications, persisting low-back pain with evidence of radiculopathy and an incapacity for pre-injury or any other duties.
47In that report, Professor Marshall stated:
“Mr Steniotes continues to have the following problems.
§ Persisting low back pain with numbness in both legs. He has, in particular, frequent right leg pain and pins and needles with electric shock feelings worsening with activity which are persisting and worsening. The pain continues in the low back and in the left and right legs and hips.
§ Retrosternal chest pain and dysphagia. This relates particularly to solid food which sticks with intermittent vomiting and regurgitation of swallowed food 2-3 times a week.
§ Urinary and bowel symptoms. He still has difficulties without the feeling of the need to pass urine or bowels and has to regulate their passage. He has episodes of abdominal pain and sweating in the morning when he passes urine or bowels.
§ Sleep disturbance. He takes Stilnox at night which gives 3 - 3½ hours[’] sleep. He avoids getting up at night if possible and uses a chamber pot to pass urine at night. These measures and his tablets maintain a reasonable control with persisting potential urge incontinence.
§ Breast pain and lump. The lump is less but he remains with left nipple pain.
§ Headaches and dizziness.
§ He still has depression of mood and says that he feels a ‘broken man’.”[24]
[24] See exhibit C at pages 69-70 DCB
(my emphasis).
48During physical examination, Professor Marshall noted that the plaintiff took off his socks and outer garments with difficulty. Furthermore, he observed the plaintiff to have a slow antalgic gait, and limp favouring his right leg. He was wearing a Norspan opioid patch on his upper arm. There was no deformity on inspection of the spine and he had taping of the thoracic and lumbar spine done by a physiotherapist. At that time, Professor Marshall diagnosed a work strain low-back soft-tissue injury in 2003, resulting in an operative lumbar discectomy and laminectomy for disc prolapse and right radiculopathy. Persisting mechanical low-back pain with clinically residual right radiculopathy. Chronic Pain Syndrome and associated symptoms as described.
49Professor Marshall considered the plaintiff to be permanently unfit for pre-injury employment or indeed, any suitable employment.
50I also refer to the report of the treating consultant psychiatrist, Dr Lev Botvinik, dated 28 May 2013.[25] Dr Botvinik records that the plaintiff was first referred to him by the general practitioner, Dr Neil McNab, in July 2006 and the first consultation was on 30 August 2006. He notes that he has been the treating psychiatrist since that time, seeing him on a regular basis approximately every three to four weeks. Dr Botvinik initially obtained a history of suffering a low-back injury as a result of the work injury in April 2003 and also has suffered what Dr Botvinik referred to as iatrogenic conditions. At that time, the plaintiff also gave a history of being in dispute with the Victorian WorkCover Authority in respect to certain aspects of his industrial claim.
[25] See exhibit C at pages 112-115 DCB
51In particular, Dr Botvinik records, as at the date of his report, approximately eleven or twelve months prior to the transport accident, that the plaintiff suffers from “severe limitations of mobility, chronic pain in his back and legs, swallowing difficulties, constipation and periodic incontinence, poor sleep and low mood amongst other issues”.[26]
[26] See exhibit C at page 114 DCB
52In his report, Dr Botvinik states, in part:
“My view remains that Mr. Steniotes suffers from a chronic pain disorder and an adjustment disorder with mixed anxiety and depressed mood. The latter has become more severe lately and may now meet the criteria for a major depressive disorder. These are clearly a result of his original work-related injury (prolapsed lumbar disc with many secondary sequelae).
He also suffers from diabetes and hyperlipidaemia, which are not directly caused by his work injury, but which … the injury has a direct impact - for example, Mr. Steniotes is limited in the exercises which he can do to help his diabetes by his back pain.
Mr. Steniotes also complains of a range of other conditions which he feels are sequelae of his original work-related injury. These are mostly outside of my area of expertise to comment on, but reports from relevant specialists may be useful in assessing these.
Andreas does exhibit some obsessional personality traits, which make it harder for him to accept the perceived injustice done to him by the injury, its sequelae and his interactions with his WorkCover agents over the years. This should also be taken into account.
I continue to feel that Mr. Steniotes currently has no capacity for pre-injury duties or any other suitable duties as a result of his physical and psychiatric condition. I do not believe that Mr. Steniotes is currently able to work in paid employment, nor is he likely to in the foreseeable future. This is a result of and is directly contributed to by his compensable injury.
In terms of psychiatric treatment, Mr. Steniotes is likely to require long-term psychiatric care and treatment. He will require ongoing psychoeducation and supportive and other psychotherapy (such as group therapy), as well as requiring antidepressant, analgesic, hypnotic and anxiolytic medications in the long-term. It is outside my area of expertise to comment on what other physical treatments he may require for his injury.
… .”[27]
[27] See Exhibit C at pages 114-115 DCB
53I also refer to the report of Dr Botvinik dated 17 November 2020. In that report, Dr Botvinik notes the history of the transport accident in 2014 and records, amongst other things, that the plaintiff suffered “bilateral hip pain” as a result of the transport accident – but notes that any physical injuries and physical treatments are beyond his expertise.
54Dr Botvinik confirmed that the plaintiff continued to suffer from a Chronic Pain Disorder and an Adjustment Disorder with Mixed Anxiety and Depressed Mood. Again, consistent with his earlier diagnosis. He notes that at times his symptoms were sufficiently severe to meet the diagnostic criteria for a Major Depressive Disorder.
55I also refer to exhibit 3, which consists of The Alfred hospital Discharge Summary dated 2 May 2014 – relating to the subject transport accident – and a letter from Dr David MacDonald dated 27 February 2020, which gives further detail about the plaintiff’s admission to The Alfred hospital on 2 May 2014.
56In his report dated 22 February 2020, Dr MacDonald notes that the plaintiff presented at The Alfred hospital on 2 May 2014 following a motor vehicle accident and complaining of “diffuse tenderness and neck tenderness”, with examination showing no discernible injuries.[28] CT scans of the brain, cervical spine, chest and the pelvis showed no abnormality.
[28] See exhibit 3 at page 104 PCB
57The plaintiff was admitted to the ward under the care of the Trauma Unit and progressed well, being discharged on 6 May 2014, with the Discharge Summary noting that no Trauma follow-up was required.
58Dr MacDonald goes on to note that although the plaintiff had no Trauma follow-up at The Alfred, he did attend the Pain Clinic at the Caulfield Hospital. In this respect, he refers to a letter dated 15 May 2014, where it was noted that the Caulfield Hospital was seeing the plaintiff in relation to chronic pain secondary to a work-related back injury.
59In a further letter dated 29 October 2014, it was noted that in addition to his history of a motor vehicle accident, the plaintiff developed neck and shoulder pain, as well as worsening of his pre-existing back pain.
60Dr MacDonald also notes that the plaintiff has attended the Sleep Clinic, ENT Outpatient Clinic, regarding a squamous cell carcinoma of his vocal cord, and the Urology Clinic regarding the problem of bladder outlet obstruction.
61Initially, I refer to the radiology that the plaintiff has undergone since his transport accident:
(a) On 17 July 2014, his general practitioner, Dr McNab, ordered an x-ray of the pelvis, both hips, both shoulders, chest and sternum.[29] The findings were reported as follows:
[29] See exhibit 9 at pages 24-25 PCB
“Pelvis and Both Hips: Mild loss of central hip joint space bilaterally. No fractures.
Left Shoulder: Some subtle spurring at the inferior glenoid margin consistent with minor chondropathy. Moderate AC joint arthropathy.
Type 2 acromial morphology. Some mineralisation lateral to the left acromion could relate to previous injury at the deltoid origin.
Right Shoulder: Some subtle spurring involving the inferior glenohumeral joint consistent with mild chondropathy. Moderate AC arthropathy. Type 2 morphology with some narrowing of the subacromial arch.
Chest and Sternum: Heart size normal. Blunting of the right costophrenic angle consistent with a small effusion. Degenerative back changes in the thoracic spine with undulating anterior osteophytosis. No appreciable fracture involving the sternum.”
(my emphasis).
(b) On 28 October 2014, the plaintiff’s treating orthopaedic surgeon, Mr David de la Harpe, arranged for the plaintiff to undergo an MRI scan of his lumbar spine.[30] The radiologist was informed that the plaintiff had undergone previous surgery to his lower back. The radiologist concluded:
[30] See exhibit 9 at page 124 PCB
“1. Status post surgery, likely at L5/S1 with multilevel disc degeneration but without focal disc protrusion or significant central or foraminal compromise. Minimal facet joint change at L5/S1.
2. Focal 0.8cm lesion of decreased signal intensity on T2 weighted images in the left iliac wing adjacent to the left sacroiliac joint is not visualised on fat suppressed T2 weighted images and is difficult to visualize on post contrast enhanced fat suppressed T1 weighted images. It is therefore of uncertain clinical significance and bone scan is suggested to assess lesion activity.”
(c) On 14 October 2016, the pain specialist, Dr Chou, arranged for the plaintiff to undergo an ultrasound of his left shoulder.[31] The radiologist concluded that the plaintiff suffered –
[31] See exhibit 9 at page 125 PCB
“Supraspinatus tendinosis. Small to moderate-sized partial tear of the subscapularis tendon.”
(d) On 12 November 2016, the treating general practitioner, Dr McNab, arranged for the plaintiff to undergo an ultrasound of his right lateral hip.[32] It was noted as a clinical indication that the plaintiff had suffered trochanteric bursitis and gluteal tendinopathy since the motor vehicle accident. The findings were reported as follows:
[32] See exhibit 9 at page 126-127 PCB
“The patient did not have any tenderness overlying the greater trochanter. There are mild tendinosis changes involving both gluteus medius and minimus. For the most part the patient complained of groin pain as well as posterior hip pain. His symptoms may derive from the hip joint itself and the patient does believe that the symptoms are coming from the joint. Whilst the patient was in the department self determined x-rays were detected but unfortunately these were not performed.
I believe x-ray of the hip may be in order and if any therapeutic injection were to be tried, I would recommend an intra articular joint injection first … .”
(my emphasis).
(e) On 24 November 2016, the general practitioner, Dr McNab, arranged for the plaintiff to undergo an x-ray of his pelvis and right hip.[33] The radiologist reported as follows:
[33] See exhibit 9 at page 128 PCB
“Comparison made with previous imaging from July 2014. The central hip joints are minimally degenerate bilaterally. The right side has an overall similar appearance to the study of July 2014. There is some mild acetabular marginal spurring. Slight acetabular retroversion noted on the right with neutral acetabular orientation on the left.”
(my emphasis).
(f) On 18 April 2017, the general practitioner, Dr McNab, arranged for the plaintiff to undergo x-rays of his pelvis/both hips, both shoulders and cervical spine. It was noted that the indication for such x-rays was “neck, shoulder and hip pains”.[34] The radiologist recorded the following findings:
[34] See exhibit 9 at page 129 PCB
“Pelvis/Hips Both hips demonstrate mild degeneration. Slight loss of central and posterior centraI hip joint space bilaterally. Deep acetabular sockets noted.
Left Shoulder
Glenohumeral joint congruent. Mild spurring inferior glenoid consistent with some low grade arthrosis. Mild moderate AC arthrosis. Curved under surface acromial morphology.
Right Shoulder Slight spurring involving the inferior glenoid consistent with some low grade arthrosis. Bone island noted within the humeral head.
Mild moderate AC arthrosis with no significant underlying subacromial spur.
Cervical Spine Mild right C4, C5 and C6 foraminal narrowing by endplate spurring. Left foramina shows no significant narrowing. Lower facets are moderately degenerate.”
(my emphasis).
(g) On 11 May 2017, the pain specialist, Dr Chou, arranged for the plaintiff to undergo a whole body bone scan,[35] noting that the clinical history was “SCC of vocal cord, Pain neck, shoulders, sternum and hip”.[36] The radiologist made the following findings:
[35] See exhibit 9 at page 130 PCB
[36] See exhibit 9 at page 130 PCB
“… Very low level increased tracer uptake is seen within mid to lower thoracic vertebral end plates consistent with spondylotic change. There was low level increased tracer uptake also in both acromio-clavicular joints, right greater than left, consistent with osteoarthritis change. Tracer uptake in the remainder of the skeleton was normal. In particular, there was no abnormal tracer uptake within the cervical spine, sternum or hips.
Conclusion: No evidence of metastatic bone disease.”
(my emphasis).
(h) On 1 March 2019, Dr Courtney of the Melbourne Pain Group arranged for the plaintiff to undergo a right shoulder ultrasound.[37] The clinical details included “?rotator cuff pathology”. The radiologist commented:
“Calcific tendonitis of supraspinatus tendon with probable old partial thickness tear.
Bursitis and impingement on abduction.”
[37] See exhibit 9 at page 131 PCB
62The plaintiff relies on a number of reports from his treating general practitioner, Dr McNab.[38] In his report dated 22 October 2019, Dr McNab expressed the opinion that the plaintiff had sustained soft-tissue injuries to his back, shoulders, chest, sternum and hip region as a result of the transport accident on 2 May 2014.
[38] See exhibit 2 at pages 23-41 PCB
63At the time of writing that report, Dr McNab considered that the condition of the plaintiff had stabilised but that he had ongoing symptoms, including pains in the neck, shoulders, hips, ribs and sternum. Although the pains were generally present all the time, they were worse when walking and with some shoulder pain at night.
64In particular, Dr McNab states:
“4. He is currently not working and has not worked since his work related injury in 2003 … He is restricted due to injuries sustained in the MCA, however this is complicated by his back injury in 2003 which has left him stiff and sore in the back.
Restricted in - bending, lifting, twisting and stooping
-pushing, pulling or lifting
- overhead activities
- kneeling, squatting or crouching (aggravates hips)
- prolonged sitting, walking or standings (hip and back a problem)
- walking on inclines (or slopes)
- steps on ladders (ladders are prohibited)
The main problems are that he is slow and it is painful. His incapacity is likely to continue.
5. He is not able to work, and will continue to be unable to work.
…
7. He is … [restricted] in relation to social, domestic and recreational activities particularly as he is slow to move, walk and do activities. He rarely gets out socially and he is slow to cook, wash or garden and he has no recreational activities. This will continue in the future.
8.… he is very rest[r]icted in his enjoyment of life and in his general activities. This makes him frustrated and anxious.
…
10. Risk of arthritis no greater than others his age, however he is putting more strain on his joints and soft tissue because of his various problems, including his back problem.
11. He will not require further surgery but may require further shockwave therapy or injections into his shoulders or hips. He does require ongoing physiotherapy, regular gym sessions and regular daily exercises especially for hips, shoulders, neck and back.
12. He is already seeing pain specialist, rehabilitation specialist and psychiatrists.
13. Prognosis. His condition is likely to continue and will worsen if physiotherapy and regular gym sessions are ceased.”[39]
(my emphasis).
[39] See exhibit 9 at pages 39-49 PCB
65In his last report dated 25 September 2020, Dr McNab noted that the plaintiff’s diagnosis remained unchanged and his condition is stable. However, he does note that since 20 July 2020, the plaintiff has had autologous blood injections into his left hip gluteal tendon region and his left hip has been a lot better, and he is considering an injection into the right hip gluteal tendon region.[40]
[40] See exhibit 9 at page 41 PCB
66I again refer to exhibit C, which contained reports from both medico-legal specialists and treaters over the period of time from the work injury leading up to the date of the transport accident on or about 2 May 2014. One of those reports, dated 22 April 2013, is from Dr McNab reporting to the WorkCover insurer of Nylex Industrial Products Pty Ltd.[41] A reading of the report makes clear that he reported to the insurer on 22 May 2012. In the report dated 22 April 2013, he details what the problems were in May 2012, and they consisted of:
[41] See exhibit C at page 106 DCB
“1. Persisting back and leg pains, though better since his surgery and the use of Norspan. He is however very limited in his mobility and ability to manage …
His back pain remains between 5-8/10 but his leg pains have improved since surgery (now 5/10) but he still has numbness in his legs and pain in both legs. He also has ... back pain stiffness and weakness which affects his gait & impinges on other areas …
2.Persisting intermittent faecal and urine incontinence. …
3. Persisting chronic pain with mood disturbances (especially anxiety and panic attacks) under Caulfield pain management clinic and [from a treating] Psychiatrist Dr Botvinik.[42] …
[42]Exhibit C also contains a report from the psychiatrist, Dr Botvinik, dated 28 May 2013. See exhibit C at pages 112-115 DCB
4. Swallowing problems since his operation in April 2006 …
5. Sore throat and swollen tongue since gastroscopy in February [20]07 …
6. Chest pains that have persisted following medical insurance examination which was stressful in 2004.
[Although tested for a heart condition, it was ultimately thought they were musculoskeletal in origin or due to stress.]
7.Diabetes. … .
8.Headache and neck aches since his back injury …
9.Groin hernia. …
10.Prostate involvement. …
11.Hypercholesterolaemia. …
12.Psychiatric injury.
[In this respect, Dr McNab considers that the plaintiff has suffered anxiety, depression, Chronic Pain Syndrome with spreading of his pain, causing him to suffer insomnia as a result of these conditions.]
13.Left nipple gynaecomestia [scil gynaecomastia]. …
14. Shoulder pains. …
15.Eczema [which] is stress related.”
(my emphasis).
67Later in his report, Dr McNab notes that since 22 May 2012, the plaintiff’s back and leg pains have not changed, except that he deteriorates – that is, more pain and stiffness and less able to manage when he has a break from Feldenkrais. Other than some minimal improvement in his urine and faecal incontinence, the conditions referred to earlier have not changed and, in particular, his chronic pain, anxiety and depression continue, with his sleeping worse. The problems with his shoulders and eczema have generally improved with treatment.
68Dr McNab confirmed his view that the plaintiff was unfit for work in any capacity, and that will remain the situation into the future.
69The plaintiff also relies on various reports from the treating doctor, Dr Chou, a consultant in anaesthesia and pain medicine.[43] Dr Chou commenced to treat the plaintiff on 1 March 2016 on referral from the general practitioner, Dr Neil McNab. Dr Chou notes that when he first met the plaintiff in March 2016, the plaintiff was a seventy-five-year-old man who described, on 2 May 2014, he was rear ended in a motor vehicle accident at 70 kilometres an hour. He was taken to The Alfred hospital; however, there were no documented fractures or injuries. The working diagnosis was chronic cervical neck, bilateral shoulder and hip pain, presumed from musculoskeletal in origin as a result of the motor vehicle accident.
[43] See exhibit 4 at pages 44-85 PCB
70Over time, Dr Chou referred the plaintiff for a second opinion from a pain management specialist, Dr Clayton Thomas, and later, Dr Peter Courtney, a specialist in anaesthesia and pain medicine.
71In his first report dated 1 March 2016, Dr Chou reports that an ultrasound of the right hip was undertaken on 29 March 2014 and revealed mild to moderate gluteal tendinopathy with mild trochanteric bursitis.[44]
[44] See exhibit 4 at page 44 PCB
72Dr Chou treated the plaintiff with a variety of drugs, including duloxetine and celecoxib, and also arranged for him to undergo physiotherapy involving the head, neck and left shoulder.
73I also refer to Dr Chou’s report dated 6 June 2016, at which time, under the heading “Progress”, Dr Chou notes that the plaintiff describes predominantly “hip pain, right greater than left”. At that time, Dr Chou described the right hip to be “[s]ymptomatically and functionally similar”.[45]
[45] See exhibit 4 at page 49 PCB
74On 26 July 2017, the plaintiff underwent a bilateral greater trochanteric bursa injection under ultrasound.[46]
[46] Refer to Operation Record, exhibit 4 at page 51 PCB
75In February 2017, Dr Chou requested approval from the Transport Accident Commission for an initial multidisciplinary assessment of the plaintiff to be done at the Victorian Rehabilitation Centre as the plaintiff had “ongoing chronic pain issues with ultrasound evidence of right greater trochanteric bursitis and left shoulder supraspinatus tendonosis”.[47]
[47] See exhibit 4 at page 57 PCB
76On 11 February 2017, Dr Chou obtained a history that the right groin injection under ultrasound for a greater trochanteric bursitis resulted in pain being better for one week and then slowly returning.
77On 24 May 2017, Dr Chou requested approval from the Transport Accident Commission for bilateral suprascapular nerve blocks and also a right-sided greater trochanteric injection to treat the bilateral shoulder pain and the right hip pain.
78On 24 May 2017, Dr Chou reports that the plaintiff underwent a whole body scan on 11 May 2017.[48] Dr Chou noted that the scan revealed very low level increased tracer uptake seen within the mid-thoracic vertebral endplates consistent with spondylitic change. Low-level increase of tracer uptake in both acromioclavicular joints, right greater than left, consistent with osteoarthritic change. In particular, he also noted there was no abnormal tracer uptake within the cervical spine, sternum or hips. (my emphasis).
[48] This is the scan referred to in paragraph 56(g) herein
79On 26 July 2017, Dr Chou notes that the plaintiff had a suprascapular nerve block bilaterally, and right-sided greater trochanter injection. He also provided the plaintiff a pain chart.[49] It is not clear[50] whether the plaintiff fully completed such pain chart.
[49] See exhibit 4 at page 68 PCB
[50] See letter dated 12 June 2018 from Dr Chou – exhibit 4 at page 74 PCB
80On 18 September 2018, Dr Chou sought permission to perform a bilateral pulsed radiofrequency denervation of the suprascapular nerve and bilateral greater trochanteric bursa injections.[51] Such request was seemingly rejected by the Transport Accident Commission.
[51] See exhibit 4 at page 75 PCB
81In a report to the plaintiff’s solicitors dated 27 February 2019, Dr Chou again repeats that the working diagnosis was chronic cervical neck, bilateral shoulder and hip pain, presumed musculoskeletal in origin, as a result of the transport accident. He considered that the chronic pain condition was stabilised and he did not expect it to improve or deteriorate significantly within twelve months.
82Dr Chou considered the plaintiff would never return to any type of work because his physical activities are limited by his chronic pain in the cervical spine, bilateral shoulders and hip region, and this will continue into the foreseeable future.
83In his last report to the plaintiff’s solicitors dated 11 October 2020, Dr Chou states, in part, that he currently sees the plaintiff for “titration of his analgesic medication,” and the plaintiff also sees Dr Peter Courtney “for extracorporeal shockwave therapy and for platelet-rich injections”. Again, he made clear that he did not consider the plaintiff was capable of any type of work and that he was maintaining his activities of daily living and function, with his Chronic Pain Syndrome being stable.[52]
[52] See generally exhibit 4 at page 85 PCB
84Dr Chou referred the plaintiff to Dr Clayton Thomas, who consulted with the plaintiff on 25 October 2016.[53] Dr Clayton Thomas obtained a history of the work-related injury resulting in the laminectomy/discectomy in 2006, and also a history of the transport accident on 2 May 2014.
[53] See his report dated 28 October 2016 – exhibit 5 at page 86 PCB
85Dr Clayton Thomas then went on to state that his “understanding” from the plaintiff was that he had had ongoing chronic pain and that the pain was worsened by the transport accident. At the time of examination, he had widespread pain complaints in both shoulders, hips – right moreso than the left – hip and low back.
86On examination, Dr Clayton Thomas found an absent right ankle jerk, diminished right knee jerk, tenderness over the greater trochanter and hip movements sore in this region but unrestricted.
87Dr Clayton Thomas noted that “trying to untangle these issues was always complex, problematic and difficult”.[54] Dr Clayton Thomas noted that it would be –
“… reasonable to say that patients with significant past pain histories can easily be aggravated after motor vehicle accident[s] and although sometimes these aggravations do … [settle] down, not uncommonly particularly for significant trauma they remained heightened. I accept this but I told him that I was not able to indicate whether that was the case with him with the background information that I had in front of me.”[55]
[54] See exhibit 5 at page 86 PCB
[55] See exhibit 5 at page 86 PCB
88Finally, Dr Clayton Thomas noted that he was not convinced that formal pain management rehabilitation would likely change anything and that he had had various pain complaints for many years but seems to function reasonably well despite them.
89The plaintiff also relies on various reports of the pain specialist, Dr Peter Courtney – such reports consisting of various letters back to the treating general practitioner, Dr McNab, over the period from approximately January 2019 to August 2020.[56]
[56] See exhibit 7 at pages 92-103 PCB
90Dr Courtney records that the plaintiff was referred to him by Dr Jason Chou for a second opinion. When initially seen by Dr Courtney, the plaintiff gave a history of his earlier work accident in 2003 but also gave a history of the transport accident which he alleged resulted in some bilateral ongoing hip and shoulder pain, as well as neck pain and sternal pain. At the time of the initial consultation, he considered his right hip and right shoulder pain to be the worst pains, although he does have problems with chest pain on deep breathing.
91Examination at that time revealed an antalgic gait and a reduced range of movement of both shoulders, with pain more pronounced on the right than the left. Examination revealed bilateral trochanteric tenderness and there was a slight tingling of his right shoulder scapula but no increase with long thoracic nerve testing. The plaintiff appeared to have a full-thickness tear of his supraspinatus.
92After treatment with the plaintiff, Dr Courtney performed some shockwave treatment to his right hip and right shoulder which showed some “early improvement” which Dr Courtney considered to be promising.
93When reviewed on 11 February 2019, the plaintiff informed Dr Courtney that he had some numbness following the shockwave therapy to his right shoulder and right hip and then reduced pain for three days, following which the pain increased before going back to normal.
94Later in February 2019, Dr Courtney advised the treating general practitioner, Dr McNab, that the further shockwave treatment only gave some short-term relief for a few days and thereafter no longer term relief.
95On 28 February 2019, Dr Courtney gave the plaintiff a local anaesthetic injection over the lateral hip. When reviewed on 8 April 2019, Dr Courtney was of the opinion that the plaintiff had shown an improvement in his right shoulder and right hip with respect to increased movement and reduction in pain.
96In a letter dated 21 July 2020, Dr Courtney informed Dr McNab that over the period of time, the plaintiff had had a number of treatments and that he would have “expected a longer relief by now” and he suggested to the plaintiff that he have an autologous blood injection in the tendons to see whether that would improve things. Later, on 20 August 2020, Dr Courtney informed Dr McNab that there had been “significant improvement in his left hip since the autologous blood injection” and so on that day, he injected both hips with shockwave energy on each side.
97The plaintiff also relies on reports from the physiotherapist, Ms Sarah Goldsmith, dated 27 November 2017 and 1 November 2017.[57]
[57] See exhibit 6 at pages 87-91 PCB
98Ms Goldsmith was involved with the plaintiff when he was at the Victorian Rehabilitation Centre from 21 July 2017 to 25 August 2017. Such a course involved a four-week outpatient pain management program, including physiotherapy, hydrotherapy, occupational therapy and psychology.
99In the report dated 25 September 2017, Ms Goldsmith notes that the plaintiff attended five sessions of physiotherapy and received cortisone injections into both of his hips on 24 July 2017. Ms Goldsmith also notes that at a four-week follow-up, the plaintiff reported an increase in hip pain as the benefit of the injections had worn off.
Medico-legal reports relied on by the Plaintiff
100The plaintiff relies on the following medico-legal reports:
(a) Reports of the orthopaedic surgeon, Mr Peter Moran, who examined the plaintiff on 12 August 2019[58] and on 11 May 2020;[59]
(b) Report of the sports and industrial physician, Dr David Kennedy, who examined the plaintiff on 21 July 2020;[60]
(c) Report from the orthopaedic surgeon, Mr Arshad Barmare, who examined the plaintiff on behalf of the defendant on 2 November 2020.[61]
[58] See exhibit 8 at pages 106-109 PCB
[59] See report dated 9 June 2020, exhibit 8 at pages 110-112 PCB
[60] See report dated 24 August 2020, exhibit 8 at pages 113-121 PCB
[61] See report dated 2 November 2020, exhibit 8 at pages 106-121 PCB
101When first examined by the orthopaedic surgeon, Mr Moran, on 12 August 2019, the plaintiff gave a history of both the industrial accident in 2003 and the subject transport accident on 2 May 2014. In particular, he complained that as a result of the subject transport accident, he has suffered pain in his hips and shoulders, as well as the neck and chest. He also described the treatment he had undergone with Dr Courtney, involving injections and shortwave therapy.
102Examination at that time revealed that the plaintiff had a “somewhat unsteady gait”. In particular, on examination of the hips, Mr Moran found the presence of bilateral gluteal enthesopathy with a negative Trendelenburg test bilaterally. The plaintiff complained of lateral hip pain on the right side with full internal rotation – overall, there was no restriction of movement.
103Mr Moran reviewed various x-rays, particularly those of the hip area.
104In his initial report dated 4 February 2020, Mr Moran, having noted that the plaintiff described a significant transport accident in which his vehicle was rear-ended by a car with sufficient violence to push his vehicle onwards by several metres, noted that:
“The dominant musculoskeletal legacies of this collision have been neck pain, bilateral shoulder pain, and bilateral hip pain.
…
With respect to his hips, there is evidence on xrays taken shortly after injury of mild pre existing medial pole degenerative change in both hips but this was and has remained relatively asymptomatic.
The major issue resulting from the transport accident has been lateral hip pain, the result of tendonitis of the gluteal muscles which support the hip in walking.
There is no evidence of a major structural tearing of the tendons in either hip. The most effective treatment for this condition is conservative treatment with injection of the inflamed segments of tendon with PRP, under ultrasound control.
Corticosteroid injections into the abductor tendons are not effective in dealing with hip pathology, whereas it is very effective in delaying with chronic tendonitis in other areas.
At this stage, more than four years after injury, I would consider that Mr Steniotes[’] injuries have stabilised, although there remains the risk of progression in terms of hip and shoulder pathology which requires ongoing monitoring.”[62]
[62] See exhibit 8 at page 109 PCB
105When Mr Moran later examined the plaintiff on 11 May 2020, the history was given that he did continue to see Dr Courtney for shockwave treatment of his hips and shoulders.
106When queried about his current symptoms, the plaintiff stated that he considered his neck pain and stiffness was perhaps his major worry, with this being associated with headaches and dizziness. Furthermore, he complained of pain in the right shoulder and, to a lesser extent, his left shoulder, in the lower limbs, and persistent right lateral hip pain. He said on some days, he can walk for 500 metres but on others, he is limited to 20 metres at most.
107In particular, he gave a history of undergoing three corticosteroid injections into the right hip.
108Examination generally revealed an antalgic limp, with his right leg in external rotation, with his gait being somewhat unsteady. However, Mr Moran considered this may well be due to his previous lumbar spinal tissue.
109On examination of the right hip, he had signs of chronic gluteal enthesopathy (tendonitis), experiencing pain also with full internal rotation and flexion, suggesting intraarticular inflammation. His Trendelenburg test was negative, indicating that the gluteal tendons had not torn completely.
110Mr Moran was again of the opinion that the plaintiff had experienced persistent right lateral hip pain due to inflammation and damage to gluteal tendons, which facilitate walking and mobilising in general.
111When Dr David Kennedy examined the plaintiff on 21 July 2020, he obtained a history of current complaints and capabilities which included:
“He has pain, aching and stiffness in both hips, worse on the right side, with significant restrictions in the movements of the right and left thigh at the hip joint, worse on the right side, and this causes pain on standing or walking for any length of time and he has problems with stairs and inclines.”[63]
[63] See exhibit 8 at page 116 PCB
112Examination of the hip joints revealed a significant loss of active range of motion, particularly on flexion and abduction, with about a 50 per cent reduction in internal and external rotation, causing significant pain, worse on the right side.
113Dr Kennedy had available to him a variety of medical reports from both treaters and some reports emanating from the defendant.
114Ultimately, Dr Kennedy opined that the plaintiff has sustained injuries to both hip joints, worse on the right side, with what appears to be gluteal tendinitis and trochanteric bursitis with restricted movements of his legs at the hip joints, worse on the right side.
115In this respect, Dr Kennedy, based on the history given to him, accepted that although the plaintiff had not worked since 2003 because of his industrial accident, the transport accident has –
“… significantly restricted his physical capacities and capabilities, affecting activities of daily living and restricting social, domestic and recreational activities, as well as domestic duties and these restrictions will continue for the foreseeable future.”[64]
[64] See exhibit 8 at page 120 PCB
116When the plaintiff was examined by the orthopaedic surgeon, Mr Barmare, on 2 November 2020, the plaintiff gave a history that, following the transport accident, he had pain in both hips and both shoulders, as well as his low back and chest. He also gave a history that thereafter, he has been treated by a variety of specialists for different conditions.
117At the time of the examination, the plaintiff, in relation to his hips, made the following complaints:
“With regard to the hips, he points to the lateral aspect for pain. His walking is affected. Kneeling, squatting and bending are affected. Walking more than 20 minutes he says he feels pain. Lifting is sometimes painful. According to him he feels that his cartilage has some injury in the acetabulum and he feels that, when he is walking. His pain score for the hips is between 7 and 8 and can go up to 10. He does not remember when it really goes up to 10.”[65]
[65] See exhibit 8 at page 10 DCB
118Ultimately, Mr Barmare opined that the plaintiff had suffered bilateral hip trochanteric bursitis with mild osteoarthritic changes. In particular, the following question and answer was posed to Mr Barmare:
“6.Please describe Mr Steniotes’ lifestyle prior to the transport accident on 02.05.2014 and what his current lifestyle is, including but not limited to work, recreation, social interactions, activities of daily living, and significant relationships.
As per Mr Steniotes, he was very active prior to this accident and more active before 2003 when he injured himself at Nylex. From 2003 to 2014 he was not working but he was still doing a bit of gym work. He was quite active in a way from 2003 to 2014. He used to interact with his family and he used to be quite independent but now he cannot do that after the injury in 2014.”[66]
[66] See exhibit 8 at page 12 DCB
119Similarly, Mr Barmare was posed a further question, and answered in the following way:
“9.Do you consider that any non-transport accident related injuries sustained by Mr Steniotes have or still interfere in any way with his work capacity or domestic and leisure activities? If so, please comment on any relevant apportionment of the consequences between the accident related and non-accident related injuries.
Mr Steniotes does not really attribute the incapacity to do his domestic and recreational or leisure activities to his work injuries which he sustained while he was working for Nylex. He was quite active even following those injuries but following this recent motor vehicle accident in 2014 he has not been able to perform to his fullest capacity.”[67]
[67] See exhibit 8 at page 13 DCB
Medico-legal reports relied on by the Defendant
120It is convenient to also refer to the medico-legal reports relied on by the defendant. Such reports include:
(a) Report of the consultant rheumatologist, Dr Tony Kostos, who examined the plaintiff on 30 May 2016;[68]
(b) Medico-legal report from the consultant psychiatrist, Dr Justin Lewis, who examined the plaintiff on 28 October 2020.[69]
[68] See report dated 1 June 2016, exhibit G at pages 127-129 DCB
[69] See report dated 29 October 2020, exhibit A at pages 15-28 DCB
121When seen by Dr Kostos on 30 May 2016, the plaintiff gave a history in relation to his work injuries in 2003 and the transport accident on 2 May 2014. The plaintiff also gave a history of the various treatments he has had since the transport accident.
122Dr Kostos made an examination of the neck, shoulders and thoracolumbar spine. Dr Kostos notes that the plaintiff’s hips could not be examined because movements were restricted.
123In his report dated 1 June 2016, Dr Kostos states:
“This man has a long history of musculoskeletal complaints and originally these related to what was assessed as being a low back injury but clearly there must be some significant doubt about this given the subsequent course of events.
It is quite apparent that he had a long term chronic pain syndrome and in a report from Ms J Banting, Physiotherapist dated 23/05/2011 she also noted ‘strong signs of abnormal illness behaviour’.
The only difference now is that his pain seems to be much more widespread and he still has a chronic pain syndrome with features of abnormal illness behaviour. However it is quite apparent there has been a significant medicalisation of his condition. He carries around his medical records and seems to have become fixated on any radiological abnormality that was found, even though these are completely irrelevant to his presentation.
His condition has been further medicalised by completely ineffective treatment in the form of physiotherapy.
It is quite clear the physiotherapy only provides some temporary muscle relaxation and he has developed a dependence on physiotherapy. This has been detrimental to his progress.
Therefore he does not have any specific injuries as a result of the motor vehicle accident, he simply has pre-existing chronic pain syndrome.
Psychosocial factors predominate in his presentation.
… .”[70]
[70] See exhibit G at page 129 DCB
124When the psychiatrist, Dr Lewis, examined the plaintiff on 28 October 2020, he also obtained a history of the original industrial accident in 2003 and the transport accident on 2 May 2014. In particular, the plaintiff asserted that his pre-existing back and right leg pain – from the industrial accident – was significantly aggravated following the transport accident, together with the onset of new neck pain, bilateral shoulder, and bilateral hip pain.
125Again, in particular, the plaintiff stated to Dr Lewis that the majority of his pain symptoms centred around the transport accident-related injuries, including the neck, shoulder and hip. In particular, he said he was only able to drive short distances consequent to pain symptoms.
126Also, Dr Lewis obtained the history and noted that the plaintiff had been under long-term psychiatric care following the work injury in a setting of chronic pain, physical restrictions, occupational incapacity and poor response to treatment.
127Ultimately, when queried as to what his diagnosis was in relation to any psychiatric condition the plaintiff may have suffered as a result of the transport accident on 2 May 2014, Dr Lewis stated:
“Mr Steniotes presents with an aggravation of a pre-existing Chronic Adjustment Disorder with depressive features.
The Chronic Adjustment Disorder was initially precipitated in the context of an earlier work-related injury in 2003 in a setting of pain, physical restrictions, and occupational incapacity.
The pre-existing Adjustment Disorder was aggravated following a transport accident on 2nd May 2014 in the context of an aggravation of the pre-existing physical injury and new onset pain symptoms.”[71]
[71] See Exhibit A at page 25 DCB
The cross-examination of the Plaintiff
128The plaintiff was extensively cross-examined by Senior Counsel for the defendant. I will not be referring to all of the cross-examination but only to those salient matters relevant to the disposition of the proceeding.
129In general, the plaintiff was cross-examined about the nature and extent of his injuries resulting from the industrial accident in 2003 leading up to the transport accident on 2 May 2014. In particular, the plaintiff was cross-examined about his pain and suffering and restrictions shortly prior to the transport accident and what occurred after the transport accident.
130As I have recorded, the plaintiff was seventy-seven years of age at the time of the hearing and as described by those acting for him, was “somewhat garrulous”.[72]
[72] See Plaintiff’s Outline of Submissions at paragraph 2
131Initially, the plaintiff was referred to his two affidavits, and the following evidence was given:
Q:“The two affidavits that you have sworn and that you have said to be true and correct, do you say they are the truth, the whole truth and nothing but the truth?---
A:I would like to say yes.
Q:Can you think of anything that you should have said in your affidavits to tell the truth, the whole truth and nothing but the truth that is left out of the affidavits?---
A:Well, it’s been a long time. I did read it recently but my head is not so clear.”[73]
[73] T33, L24 – T34, L1
132The plaintiff was taken to his affidavit where he set out all the physical conditions that he had suffered over his life and, in particular, was queried whether he had another transport accident in 1971, to which he said was the case. He confirmed that notwithstanding such motorcar accident was not referred to in his affidavit material, he was off work for three years, suffered pain in his neck and upper back but received treatment from a chiropractor, Mr Victor Portelli, and within the three years of not working, his neck and back pain was “fixed” by Mr Portelli.
133The plaintiff was then taken to a consultation with his long-term general practitioner, Dr Neil McNab, on 15 April 2002, wherein it was recorded:
“Neck - Motor Car Accident IN 70s and sore since On & off.”[74]
(sic)
[74] DCB 139
134When it was suggested that contrary to his earlier evidence that Mr Portelli had “fixed” the pain, he was referring to such pain at the consultation with Dr McNab.
135After various answers by the plaintiff, the Court stated:
HIS HONOUR:
Q:“Mr Steniotes, I just want you to be clear what’s being said to you. You have been taken to an entry by your general practitioner, seemingly made on 15 April 2002. The doctor has written, amongst other things: ‘Neck, motor car accident in 70s and sore since on and off.’ What’s being put to you is it suggests those words, you told the doctor on 15 April 2002 that since that motor car accident in the 70s your neck has been sore. Not every day but on and off. Is that - - -?---
A:Maybe I don’t say but maybe from the accident but maybe from work.”[75]
[75] T43, L7-17
136The plaintiff was also cross-examined about his industrial accident in 2003 and, in particular, he was taken to his affidavit material where he swore, amongst other things, that the injuries suffered by him in 2003 caused some left hip pain.
137The plaintiff admitted that he suffered badly between 2003 and 2006, at which time he underwent a low-back operation. When queried about the effects of the operation, the following evidence was given:
Q:“After the operation did you continue to experience significant pain in your back?---
A:At some times, yes.
Q:Did you continue to suffer consequences in your legs?---
A:Yes, I did.
Q:And in your hips?---
A:No problem with the hips.
Q:No problem with the hips?---
A:No problem with the hips. The hips, it was an injury from sciatic.
Q:I am not asking you for your medical opinion as a masseuse, I’m asking you about the pain?---
A:The pain that I did have, it was from the sciatica and it continued to give me, even after the operation, until everything settles down.
Q:When did everything settle down?---
A:Within a few years.
Q:So when do you say you were better?---
A:Well before the accident.”[76]
[76] T45, L7-21
138Again, it was put to the plaintiff that problems continued right up to the time of the transport accident, to which the plaintiff stated:
“No. I think they did stop somewhere around 2012, 2013.”[77]
[77] T55, L30-31
139The plaintiff was also cross-examined about some of the evidence in his damages trial in February 2015 relating to the 2003 industrial accident. In particular, the plaintiff was referred to various parts of his evidence-in-chief in the damages claim:
Q:Now, what – I’ll come to the motor car accident in a moment, but prior to the motor car accident what - can you tell the members of the jury about your back and your legs, your low back and your legs? What symptoms did you have, what sort of pain did you have?---
A:My pain is still in my back. My pain is still travelling to my feet. There is a lot of numbness in it. I don’t feel the lower part of my right leg. My left is almost the same. It’s a lot of pain and a lot of suffering. No strength. I can’t even lift my right leg if I’m lying down so I have to pull it up.
Q:Now, if I can just - prior to the injury in April of 2003 could you describe to the members of the jury your activities? What did you do? Well, first of all, how would you describe yourself? Would you have described yourself as a fit person or an active person, or a lounge lizard; what?---
A:I used to have my gym equipment. I used to have my six pack. Yes, I considered myself a very healthy person, yes.
Q:And then - - - ?---
A:More than average human of my age and even younger people.
Q:So, what - as you said that you were a fit and active person, what did you like doing, what activities did you undertake?---
A:Anything from running, bike, weights, lifting, and more than anything I used to go to the end of North Road, if anybody knows where it is. And there, there is a wall against the water, sea water that is, and I used to run there, two or three times up and down, on the rocks like a Gazelle if you want to, or like a hare.
Q:Now, are you able to - what about - I think you’ve said bike riding; where did you bike ride?---
A:In the streets.
Q:Sorry?---
A:In the streets.
Q:In the streets, okay. Now, since the industrial accident, what about your bike riding, running and other activities?---
A:Even - even all the equipment, I gave them away.
Q:That’s the gym equipment, okay. And what about bike riding?---
A:No.
Q:What about weight-lifting and other - - -?---
A:No, no. Not that. No.
Q:What about swimming, do you go swimming?---
A:The last time I was having swimming in – in Bay Street with Dr – the one he give me the injection, I collapse in the water. They pull me out and even though I was with a company physiotherapy, and lucky I was that day, and I’m not able to swim without company, so I used to be a champion underwater swimmer and now, for the last 12 years I didn’t go to the seawater.
Q:Okay. What about standing and sitting? Do you have any difficulties with that?---
A:You probably see me forcing myself to stand today. I did get extra medication to be here. Even this morning I said something to my friend, to the barrister. Yes, I do have problems, yes.
Q:What about your sleep?---
A:The sleep. I used to get some OxyContin and then (indistinct) they stop the OxyContin, they stop the (indistinct) so my sleep – I don’t know if I get any, however I do some – I do have some hypnotherapy. They trying to teach my brain, maybe I can manage to get some sleep. But pains. You lying on one side you are in pain, you move on the other side, you’re –you’re in pain once. You move and the other – and that’s what’s happening. I can put my head here and I’ll find myself on the other side of the bed, or any part of the bed, so - - -
Q:What about domestic activities? Do you live in a house, you live in a flat or what?---
A:I live in a unit.
Q:A unit?---
A:Yes.
Q:I think that you said that you live there by yourself, is that correct?---
A:That’s correct.
Q:So what about your domestic duties such as vacuuming, mopping? Who does that?---
A:That’s what I said I used to vacuum, I used to repair vacuums for some nine years. I do have some vacuum cleaners home. I do my vacuuming whenever I feel right, not when I want to or not when I have to. I do it when I’m able to do. I cook when I’m able to do. If I can’t cook, I go to the shop. But mainly what I’m cooking, at the end of the cooking I put the mixture in so it will become bulldoze, or what do you call it? Nothing standing as solid.”[78]
[78] Trial Transcript 61, L13 – T63, L27
140Later in that proceeding, there was further evidence-in-chief as follows:
Q:“Just before the motor car accident, on 2 May 2014, how was your back?---
A:I had my problems. I had my suffering. I had my suffering on my legs, yes.
Q:At that stage was it getting any better, staying the same or getting worse? This is just prior to the motor car accident?---
A:No, it was not getting any better, it was not getting – it was just surviving with my pains.
Q:Did you have a motor car or were you involved in a motor car accident on 2 May 2014?---
A:Yes I did.
Q:Were you stationary in your motor vehicle?---
A:It was three cars on the road, on a four laned road. The guy in front of me he went through the lights yellow. As soon as he went in, that got him. And I was following, and at the same time I watching when that red lights are going to catch him. And I look in my mirrors and I saw a blood roof of a car.
…
Q:Did you suffer any pain or did you feel any pain anywhere?---
A:He hit me with 80 kilometres an hour.
Q:So - - -?---
A:Yes, I did have some.
Q:Can you tell us where you had the pain? At the start?---
A:At the start, I remember my head went backwards. That’s all I remember. When I come to it, it was five police cars, two ambulance - - -
Q:Yes. That’s – I’m not asking you that, Mr Steniotis (sic). Was an ambulance called?---
A:Yes.
Q:Were you taken to [T]he Alfred Hospital?---
A:Yes.”
[COUNSEL]:
Q:“How many days were you an inpatient at [T]he Alfred Hospital?---
A:Five and a half.
Q:What were your main complaints at the hospital?---
A:It was pain. It’s - - -
Q:Well (sic) you tell the members of the jury where you felt the pain?---
A:Well I had – I had pain up – my worst pain it was whiplash.
Q:That’s in your neck?---
A:Shoulders, yes.
Q:Shoulders and neck?---
A:Shoulders. With my back, I broke my back seat. Yes. It was - - -
Q:What about your - - -?---
A:My whole body has been shaken.
Q:What about – did you have any extra pain in your lower back, at that stage?---
A:At the time, yes.
Q:Did you have any other pain? You said you had pain in your neck, in your shoulders, you had some further pain in your low back. What about your hips?---
A:And the hips. And thoracic vertebrae 7 and 8.”[79]
[79] Trial Transcript 64, L16 – T66, L3
141After that evidence was given, Senior Counsel for the defendant put to the plaintiff his earlier evidence in this trial – that the problems he had from the industrial accident had stopped somewhere around 2012 to 2013, whereas the evidence from his damages claim would suggest they continued right up to the transport accident, to which the plaintiff stated:
“Well, the numbness on my legs, they are still there, but much less of numbness.”[80]
[80] T71, L22-24
142Also, based on his evidence in the damages trial, the plaintiff accepted that his “busy social life”, “terrific parties”, “weddings, dances and christenings” all came to an end following the industrial accident in 2003.
143In particular, the plaintiff was referred to paragraph 20 of his second affidavit, where he states:
“Prior to the traffic collision, I had the mobility to stand and walk around freely. Now, I am physically restricted. I feel pain when undertaking any physical activity including standing or walking for more than 15 minutes at a time. I require constant breaks in order to stop the intense pain that I suffer.”[81]
[81] PCB 14
144When it was put to him, the plaintiff answered:
“Yes. What I was saying, I was getting better.”[82]
[82] T77, L14-15
145After that, the following evidence ensued:
Q:“That’s not what you say. You say: ‘I had the mobility to stand and walk around freely’?---
A:I was getting better in the - - -.”
HIS HONOUR:
Q:“No, Mr Steniotes please listen to me. I will say this one more time. You were asked whether you said those words. They are clearly your words in the affidavit. That’s what you have said. You have said: ‘Prior to the traffic collision I had the mobility to stand and walk around freely.’
A:Right.
So you want the reader of that affidavit to understand that prior to the transport accident you had the mobility to stand and walk around freely. That’s right, isn’t it, that’s what you said?---
A: Yes.”[83]
[83] T77, L16-28
146The plaintiff was then taken to the various entries in medical records and reports covering the period from 2005 – after the work accident – up to just before the transport accident.[84]
[84]These references consisted of: Consultation with Dr Neil McNab on 25 February 2005 (page 168 DCB); consultation with Dr McNab on 26 July 2009 (pages 171-172 DCB); report of Mr Michael Shannon, who examined the plaintiff on 23 October 2006 (pages 47-49 DCB); report of the psychiatrist, Mr Michael Duke, dated 25 October 2006 (page 56 DCB); clinical note of Dr McNab on 20 February 2009 (page 229 DCB) – the plaintiff, according to the note, could only manage walking 200 metres slowly and painfully and he has to stop after 200 metres; clinical note of Dr McNab on 3 April 2009 (page 232 DCB); report of Dr Peter J Selvaratnam, who examined the plaintiff initially on 4 March 2008 then up to 20 May 2008, followed by an examination on 20 September 2010 (see pages 87-90 DCB); clinical note of Dr McNab on 24 February 2011 (pages 264-265 DCB); clinical note of Dr McNab on 15 December 2011 (page 276-277 DCB); clinical note of Dr McNab on 20 September 2012 (page 287-288 DCB); clinical note of Dr McNab on 11 February 2013 (pages 294-295 DCB); clinical note of Dr McNab on 14 June 2013 (pages 301-302 DCB); clinical note of Dr McNab on 28 April 2014 – some five days prior to the transport accident (pages 312-313 DCB)
147A reading of these excerpts clearly demonstrates that over the years up to the transport accident, the plaintiff was having significant difficulties with his legs and low-back pain which in turn inhibited his ability to walk and manoeuvre generally. Furthermore, it is clear also that the excerpts demonstrate deteriorating mental health to the point where he contemplated suicide.
148Following the various excerpts being put to the plaintiff, Senior Counsel for the defendant again referred the plaintiff to paragraph 20 of his second affidavit, where he states:
“Prior to the traffic collision, I had the mobility to stand and walk around freely.”[85]
[85] PCB 14
149The following evidence ensued:
Q:“That’s a lie, isn’t it?---
A:You asked me about that yesterday.
Q:That’s a lie, isn’t it?---
A:No. I couldn’t stand. Compared to what it used to be before, yes, I could stand but for how long, that’s another story.
Q:Mr Steniotes, on your oath, having reviewed the clinical notes and having agreed with me that you had problems walking different distances between 200 and 500 metres, that you had to rest, that it depended on how you were feeling on a particular day, that you had difficulty even getting out of bed, that it took you 90 minutes to get out of the house, how can you possibly tell this judge that it is true to say that: ‘Prior to the traffic collision I had the mobility to stand and walk around freely’? How can you say that?---
A:Well, if you are walking and you are stopping, you are standing freely.”
HIS HONOUR:
Q:Is that your answer? You have sworn this affidavit, Mr Steniotes, and as you have been taken to it a couple of times now, you have accepted the material in it is true and correct and again, it’s your affidavit which you have sworn to be true. It’s not someone else’s words, it’s your words and what you have said is: ‘Prior to the transport collision [in other words, prior to 2 May 2014], I had the mobility to stand and walk around freely.’ What do you mean about ‘freely’; what was your intention to tell people who read that affidavit?---
A:It means if I was stand[ing] to wash my dishes, for argument’s sake, I was standing without a stick or without a chair. I was standing freely in front of the basin to wash my dishes.
Q:You have been taken to various descriptions to your doctor about how your ability to walk was prior to 2 May 2014, where you were having difficulty sometimes walking only small distances, having pains in your legs, all those types of things, do you think that’s an accurate statement to say, ‘I had the mobility to stand and walk around freely’? If I was reading that document for the first time I would read that to mean, ‘I had the ability to stand and walk around freely with no restrictions’?---
A:If I was in the house and I had to walk from one room to the other, I was walking sort of freely.
Q:Okay. Thank you?---
A:Thank you.”
MR MASEL:
Q:“You then continue in the same paragraph to say: ‘Now I am physically restricted. I feel pain when undertaking any physical activity, including standing or walking more than 15 minutes at a time. I require constant breaks in order to stop the intense pain that I suffer’?---
A:That’s okay.
Q:Did you say that?---
A:Yes.
Q:What you are saying in the whole of that paragraph, I suggest, is that before the transport accident you could walk freely, no problem about walking 15 minutes, longer than 15 minutes, no need to take breaks, no pain, but after the transport accident, ‘Well, the most I can do is 15 minutes and I need breaks and I have pain’. That’s what you are saying in the affidavit, isn’t it?---
A:No. I am saying when I was standing in front of my sink, in front of my space to wash my face, to have my shave, I was standing freely. Yes, I may have had the pain - - -.”
HIS HONOUR:
Q:“Mr Steniotes, are you really suggesting that when you said that in your affidavit you were meaning to tell the person who read your affidavit that that meant, ‘I had the mobility to stand and walk around freely when I was doing my shaving’? Is that what was meant? Come on?---
A:If I was inside the home it was much easier than walking.
Q:Thank you?---
A:Thank you.”[86]
[86] T125, L22 – T127, L31
150The plaintiff was also cross-examined about his other assertions as to what flowed from the transport accident and, again, was taken to excerpts prior to the transport accident wherein the very matters of which he was complaining of as a result of the transport accident were clearly being experienced by him prior to that event.
151Ultimately, the plaintiff largely accepted that the matters to which he referred to in his affidavit resulting from the transport accident indeed commenced with the industrial accident, although he maintained in a general way that his condition worsened after the transport accident.
Conclusion
152As I have already recorded, it is incumbent on the plaintiff to prove, as a matter of probability:
(a) that he suffered injury to the right hip or, alternatively, his hips, as a result of the transport accident;
(b) that such injury or injuries resulted in impairment or loss of a body function which, as a result of the infliction of the injury or injuries complained of, is, or are, both serious and long term;
(c) that the “consequences” of the injury, must be serious to the particular applicant, whether they be a pecuniary disadvantage and/or pain and suffering; and
(d) such consequences must be “serious”; that is, when judged by comparison with other cases in the range of possible impairments or losses, be fairly described at least as “very considerable” and certainly more than “significant” or “marked”.
153I consider it very important to have a clear understanding of the injuries suffered by the plaintiff in his work accident in 2003, together with the resultant impairments and restrictions, and the impact of those injuries on his capacity for employment and generally, his pain and suffering, including loss of enjoyment of life.
154I again refer to exhibit C, which includes a large number of medico-legal reports, together with reports from the treating pain physician, Dr Peter Janovic, dated 9 November 2010, the report of the treating general practitioner, Dr Neil McNab, dated 22 April 2013, and the report of the consultant psychiatrist, Dr Lev Botvinik, dated 28 May 2013.
155In particular, I refer to the following:
(a) the report of the general surgeon, the late Professor Vernon Marshall, dated 27 January 2009.[87] I also refer to paragraphs 46 to 49 of this Judgment setting out various aspects of that report;
[87] See exhibit C at pages 57-74 DCB
(b) the report of the treating consultant psychiatrist, Dr Lev Botvinik, dated 28 May 2013.[88] I also refer to paragraphs 50 to 54 of this Judgment which sets out his opinions;
[88] See Exhibit C at pages 112-115 DCB
(c) the report from his treating general practitioner, Dr Neil McNab, dated 22 April 2013, reporting to the WorkCover insurer in relation to the earlier work injury.[89] As pointed out earlier, a reading of that report makes clear that he reported to the insurer on 22 May 2012. The report dated 22 April 2013 is only one year prior to the transport accident and sets out in detail the ongoing and persisting problems that the plaintiff had, in particular, in relation to his back and legs, and also details his significant limitations in his mobility and ability to manage. I refer in particular to paragraphs 66 to 68 of this Judgment, which detail the plaintiff’s injuries, limitations and impairments;
[89] See Exhibit C at page 106 DCB
(d) I also refer to the evidence of the plaintiff given by him during his damages trial in February 2015 and, in particular, to paragraphs 139 to 142 of this Judgment. During his evidence-in-chief during the damages claim, the following question was posed and answer given by the plaintiff:
Q:“Now, what - I’ll come to the motor car accident in a moment, but prior to the motor car accident what - can you tell the members of the jury about your back and your legs, your low back and your legs?
What symptoms did you have, what sort of pain did you have?---
A:My pain is still in my back. My pain is still travelling to my feet. There is a lot of numbness in it. I don’t feel the lower part of my right leg. My left is almost the same. It’s a lot of pain and a lot of suffering. No strength. I can’t even lift my right leg if I’m lying down so I have to pull it up.”[90]
[90] Trial Transcript 64, L16-26
156I have formed the view that leading up to the transport accident on 2 May 2014, the plaintiff had suffered, and was continuing to suffer, chronic pain in a variety of areas of his body but, in particular, in his low back, legs and knees, which impacted on his ability to walk, stand, sit and squat.
157I have also formed the view that his affidavit material, and indeed, at least his initial response to questioning, was a conscious effort to downplay the consequences of his work accident in 2003 and promote what he says he suffered as a result of the transport accident on 2 May 2014.
158Those acting for the defendant submitted that the plaintiff was a “very unreliable witness”. In general, it was submitted that:
“Large and significant parts of his affidavits, history to doctors and oral evidence were revealed to be false or misleading. He repeatedly confabulated or confused consequences of his work accident of 3 April 2003 with consequences of the transport accident the subject of these proceedings which occurred 11 years later on 2 May 2014.”[91]
[91] See defendant’s submissions
159In particular, it was further submitted that the account of the plaintiff was unreliable on issues critical to his application in relation to the following central themes:
(a) The plaintiff contended organic hip injuries – he alleged, inter alia, bilateral hip injuries were sustained in the transport accident, and he relied upon those organic injuries for the purposes of a serious injury application at hearing.[92]
In cross-examination, the plaintiff denied that he had hip injuries or problems prior to the transport accident,[93] before finally conceding to losing energy in the hip area[94] and to having pain in the hip area before the transport accident;[95]
(b) The plaintiff’s ability to walk around freely prior to the transport accident;[96]
(c) In cross-examination, he initially denied any significant walking issues for a period of nine years before the transport accident,[97] before finally conceding that he had significant pain walking around since 2003.[98]
Counsel for the defendant noted that the plaintiff’s case relied heavily on medical opinions which rely on hip pain and walking difficulty in support of the claimed transport accident injury and loss of impairment of hip function;[99]
(d) It was submitted that the plaintiff falsely maintained that he had largely recovered from the work injuries at the time of the transport accident,[100] and later maintained it was more of a day-to-day proposition whether he felt better.[101] The contemporaneous medical records and other documents to which he was taken in cross-examination revealed no corroboration for either proposition.
[92] See the plaintiff’s affidavit at paragraph 11, PCB 13 and the opening of his counsel at T5, L1-14
[93] T45, L11-13; T55, L1-10
[94] T116, L12-14
[95] T124, L2-5
[96] See the plaintiff’s first affidavit at paragraph 20, PCB 15
[97] T78, L1-9
[98] T123, L26-28
[99] Reference was made to the opening at T15-19 and T23, and the medical opinion therein discussed
[100] See cross-examination at T45, L19-21
[101] T157, L6-14
160It was further submitted on behalf of the defendant that the conflation or confusion of the consequences pertaining to the work accident and the transport accident were demonstrated in (but not limited to) the following passages in which the plaintiff, in attempting to explain passages in his affidavits, agreed that multiple paragraphs of his first affidavit and some of his second affidavit more properly described the condition after the work accident as opposed to after the transport accident:
(a) being happy and positive[102] and put on a smile and be happy;[103]
(b) his poor sleep;[104]
(c) his energy levels;[105]
(d) his former calm and relaxed manner;[106]
(e) his ability to concentrate;[107]
(f) his healthy appetite – has “nothing to do with the transport accident”;[108]
(g) having thoughts of suicide;[109]
(h) his enjoyment of gardening;[110]
(i) attempts at seeking treatment and making recovery.[111]
[102] T129, L19-26 and paragraph 25 of the first affidavit at PCB 15
[103] T154, L18-21 and paragraph 23 of the second affidavit at PCB 21
[104] T130, L16-23 and paragraph 26, PCB 15
[105] T130, L24-29 and paragraph 27, PCB 15
[106] T131, L6-8; 19-20 and paragraph 28, PCB 15
[107] T136, L6-10 and paragraph 29, PCB 15
[108] T138, L30-31 and T140, L8-14 and paragraph 30, PCB 15
[109] T141, L12-17 and paragraph 31, PCB 15
[110] T154, L7-12 and paragraph 19 of the second affidavit at PCB 20-21
[111] T156, L29 – T157, L5 and paragraph 26 of the second affidavit at PCB 22
161Those acting for the plaintiff describe the plaintiff as a man who was “somewhat garrulous”, who was doing his best to understand and respond truthfully to what were, in many instances, rather complex questions for a man of his age and intellectual capacities.
162It was acknowledged that the plaintiff’s memory failed him at times, and that some of his answers were improbable given contemporaneous documents. However, in assessing his reliability, the Court must make allowances for the plaintiff’s age and, again, ought recognise that many of the questions he was required to answer were objectively difficult for any person to answer, in that they:
(a) asked the plaintiff to provide answers about a particular state of affairs many years ago; and/or
(b) asked the plaintiff to compare two states of affairs at different times many years ago;
(c) the plaintiff should be regarded as a generally reliable witness with respect to his present situation at least, although with respect to past matters, it is acknowledged that in some instances contemporaneous documents may be more accurate than the plaintiff’s memory. No surveillance film was shown.
163After a consideration of all of the evidence and the competing submissions, I find that the plaintiff was at least an unreliable witness and on occasion, his credibility was brought very much into question. I do find that the evidence was overwhelming that the plaintiff suffered chronic pain to many parts of his body but, in particular, pain in his back and legs, causing severe restriction in his capacity to use his legs for such activities as walking, standing, squatting or sitting.
164In such circumstances, I tend to look for any objective evidence of the plaintiff suffering any injury to his right hip or both hips as a result of the transport accident.
165Turning to the first issue as to whether the plaintiff did suffer any type of injury to his right or both hips as a result of the transport accident, I have come to the view that, on balance, and after some hesitation, it is more probable than not that the plaintiff did suffer a degree of tendinitis in the gluteal muscles and some degree of trochanteric bursitis in both hp joints, but worse on the right side.
166As noted by some of the doctors, the gluteal muscles support the hip in walking.
167Such findings are based on the evidence of the orthopaedic surgeon, Mr Peter Moran, who examined the plaintiff on 12 August 2019 and 11 May 2020, and the reports of the industrial physician, Dr David Kennedy, who examined the plaintiff on 21 July 2020.
168It is also to be noted that Mr Barmare, an orthopaedic surgeon retained on behalf of the defendant, who examined the plaintiff on 2 November 2020, was also of the view that the plaintiff had suffered bilateral hip trochanteric bursitis.
169Of course, the treating general practitioner, Dr McNab, also considered the plaintiff to have suffered some type of injury to his hips, ultimately causing him to refer the plaintiff to Dr Chou, a consultant in anaesthesia and pain medicine. Dr Chou in turn referred the plaintiff to Dr Peter Courtney, a specialist in anaesthesia and pain medicine. Both of these doctors gave various types of treatment to the plaintiff for what was said to be his hip pain – predominantly the right.
170My hesitation initially in accepting such a diagnosis is that there is reference to hip pain prior to the transport accident – which, according to the plaintiff, was more explained by his back injury – and also the original report of injuries following the transport accident, which did not make any reference at that time to a hip injury. Furthermore, it must be borne in mind that following a whole body scan undertaken on 11 May 2017, there was no abnormal tracer uptake within the cervical spine, sternum or hips.
171I should add, when examined by Dr Kostos on 30 May 2016, he records that the plaintiff does not have any specific injuries as a result of the transport vehicle accident but “simply has pre-existing chronic pain syndrome”.[112]
[112] See exhibit G at page 129 DCB
172Although I accept there was a Chronic Pain Syndrome leading up to the transport accident, it is to be noted that Dr Kostos expressly states that he could not examine the plaintiff’s hips because movements were restricted.
173I wish to highlight, in relation to the examinations by Mr Moran, Dr Kennedy and Mr Barmare, that each of them obtained a history in varying degrees as to the position of the plaintiff prior to his transport accident.
174In this respect, Dr Kennedy, based on the history given to him, accepted that although the plaintiff had not worked since 2003 because of the work injury, the transport accident has:
“… significantly restricted his physical capacities and capabilities, affecting activities of daily living and restricting social, domestic and recreational activities, as well as domestic duties and these restrictions will continue for the foreseeable future.”[113]
[113] See exhibit 8 at page 120 PCB
175Similarly, Mr Barmare, when requested to describe the lifestyle of the plaintiff prior to the transport accident on 2 May 2014, and also his current lifestyle, including but not limited to work, recreation, social interactions, activities of daily living, and significant relationships, stated:
“As per Mr Steniotes, he was very active prior to this accident and more active before 2003 when he injured himself at Nylex. From 2003 to 2014 he was not working but he was still doing a bit of gym work. He was quite active in a way from 2003 to 2014. He used to interact with his family and he used to be quite independent but now he cannot do that after the injury in 2014.”[114]
[114] See exhibit 8 at page 12 DCB
176Also, Mr Barmare, when queried whether non-transport accident-related injuries still interfere in any way with his work capacity or domestic or leisure activities, states:
“Mr Steniotes does not really attribute the incapacity to do his domestic and recreational or leisure activities to his work injuries which he sustained while he was working for Nylex. He was quite active even following those injuries but following this recent motor vehicle accident in 2014 he has not been able to perform to his fullest capacity.”[115]
[115] See exhibit 8 at page 13 DCB
177Seemingly, the histories given to the later doctors are similar to what was initially said by the plaintiff during the course of this trial – that is to say, his work injuries had significantly ameliorated over time and that he essentially blamed his transport accident injuries for his “troubles”.
178Although I have accepted that the plaintiff had suffered some degree of pain in the right and, to a lesser extent, left hip, as a result of the transport accident, I am far from satisfied that such “injury” has given rise to impairment with consequences which, when judged by comparison with other cases in the range of possible impairment or losses, can be fairly described at least as at least “very considerable” and certainly more than “significant” or “marked”.
179Although the test set out in Humphries and Anor v Poljak[116] makes clear that the consequences can relate to pecuniary disadvantage and or pain and suffering, there was no issue in this proceeding that the plaintiff relied only on the pain and suffering consequences which he said resulted from the transport accident.
[116] Op cit
180Given the cross-examination and my concerns about his reliability and credibility, I am not satisfied that the pain and suffering consequences, to the extent that they exist, bearing in mind the pre-existing Chronic Pain Syndrome throughout his body, can be seen to satisfy the test set out in Humphries and Anor v Poljak.[117]
[117] Op cit
181As I have found earlier in this Judgment, I am satisfied that the plaintiff, at the time of the transport accident, was severely disabled and, in particular, as a result of his pre-existing injuries flowing from the work injury, and indeed, his Chronic Pain Syndrome, he had great difficulty walking, bending, kneeling or sitting, and had experienced pain through his knees, whatever may be the cause.
182I refer to Peak Engineering Pty Ltd v McKenzie[118] wherein, at paragraph 24, it is stated:
“In my respectful opinion, these grounds must be upheld. In a case of this kind, where two different injuries are concurrently producing pain and suffering consequences for the applicant, it will ordinarily be necessary to make findings about all of the pain and suffering consequences which are operative at the date of the trial. This would seem to be an essential pre-condition to the task of deciding which of the pain and suffering consequences are attributable to which injury. The matters identified in the previous paragraph were all directly relevant to the enquiry in the present case, and needed to be addressed squarely.”
[118] [2014] VSCA 67
183In his ultimate evidence during this proceeding and indeed, in his damages claim in 2016, the plaintiff made clear that the pain and suffering and loss of enjoyment of life which had been caused to him resulted from the work injury in 2003.
184Moreso, taking the pain alone, it is to be remembered that such pain must be seen in the context of the pre-existing Chronic Pain Syndrome where the plaintiff had suffered significant amounts of pain from the work injury up to the time of the transport accident. It is impossible to determine what hip pain the plaintiff now suffers, if any, as a result of the transport accident and what pain is due to the pre-existing and long-existing Chronic Pain Syndrome experienced by the plaintiff since the 2003 work injury.
185In all of the circumstances, the proceeding must be dismissed.
186I will hear the parties on the question of costs.
Annexure “A”
The plaintiff tendered the following material:
Exhibit 1
· Affidavits of the plaintiff, sworn 9 May 2019 and 4 November 2020
(Such material found at pages 8-22 of the Plaintiff’s Court Book (“PCB”)).
Exhibit 2
· Medical reports from the general practitioner, Dr Neil McNab, dated 28 July 2014, 9 January 2015; 10 December 2015; 26 July 2016; 8 August 2016; 24 November 2016; 20 February 2017; 6 March 2017; 22 October 2019 and 25 September 2020
(All such material found at pages 23-41 of the PCB).
Exhibit 3
· The Alfred hospital discharge summary dated 2 May 2014
· Letter from the medico-legal consultant, Dr David MacDonald, dated 27 February 2020
(All such material found at pages 42-43 and 104-105 of the PCB).
Exhibit 4
· Medical reports from the pain consultant, Dr Jason Chou, dated 1 March 2016; 13 March 2016; 29 March 2016; 6 June 2016; 26 July 2016; 13 October 2016; 13 October 2016; 22 November 2016; 11 February 2017; 11 February 2017; 7 May 2017; 24 May 2017; 24 May 2017; 18 July 2017; 19 July 2017; 26 July 2017; 27 September 2017; 20 December 2017; 29 April 2018; 12 June 2018; 18 September 2018; 21 November 2018; 12 February 2019; 27 February 2019 and 11 October 2020
(All such material found at pages 44-85 of the PCB).
Exhibit 5
· Medical report of the rehabilitation and pain specialist, Dr Clayton Thomas, dated 28 October 2016
(Such report found at pages 86-87 of the PCB).
Exhibit 6
· Reports of the physiotherapist, Ms Sarah Goldsmith, dated 27 September 2017 and 1 November 2017
(Such material found at pages 87-91 of the PCB).
Exhibit 7
· Medical reports from the pain specialist, Dr Peter Courtney, dated 14 January 2019; 12 February 2019; 28 February 2019; 16 April 2019; 13 May 2019; 21 June 2019; 25 March 2020; 24 April 2020; 18 May 2020; 21 July 2020; 20 August 2020 and 3 December 2020
(All such material found at pages 92-103 and page 146 of the PCB).
Exhibit 8
· Medical report from the orthopaedic surgeon, Mr Peter Moran, dated 4 February 2020 and 9 June 2020
· Report from the sports and industrial physician, Dr David Kennedy, dated 21 August 2020
· Report from the orthopaedic surgeon, Mr Arshad Barmare, dated 2 November 2020 (commissioned by TAC)
(All such material found at pages 106-121 of the PCB).
Exhibit 9
· X-ray report of the pelvis, both hips and both shoulders, chest and sternum dated 17 July 2014
· MRI scan of the lumbar spine dated 28 October 2014
· Ultrasound of the left shoulder dated 14 October 2016
· Ultrasound of the right hip dated 12 November 2016
· X-ray of the pelvis and right hip dated 24 November 2016
· X-ray of pelvis, both hips, both shoulders and cervical spine dated 18 April 2017
· Whole body bone scan dated 11 May 2017
· Ultrasound of right shoulder dated 1 March 2019
(All such material found at pages 122-131 of the PCB).
The defendant tendered the following material:
Exhibit “A”
· Report from the medico-legal psychiatrist, Dr Justin Lewis, dated 29 October 2020
(Such report found at pages 15-28 of the Defendant’s Court Book (“DCB”)).
Exhibit “B”
· Plaintiff’s Claim Form dated 16 June 2003 in relation to an industrial accident
(Such material found at pages 29-31 of the DCB).
Exhibit “C”
· Medico-legal report of orthopaedic surgeon, Mr Robin Williams, dated 15 July 2006
· Medico-legal report of the endocrinologist, Associate Professor Douglas W Lording, dated 10 October 2006
· Medico-legal report of neurosurgeon, Mr David Brownbill, dated 20 October 2006
· Medico-legal report of orthopaedic surgeon, Mr Michael Shannon, dated 24 October 2006
· Medico-legal report of the psychiatrist, Mr Michael Duke, dated 17 October 2007
· Medico-legal report of the physician, Dr Andrew Jakobovits, dated 9 November 2007
· Report of the treating orthopaedic surgeon, Mr de la Harpe, dated 21 November 2008
· Report of the late Professor Vernon Marshall, general surgeon, dated 27 January 2009
· Medico-legal report of the specialist musculoskeletal physiotherapist, Dr Peter J Selvaratnam, dated 12 October 2010
· Report of treating pain clinician, Dr Peter Janovic, dated 9 November 2010
· Report of medico-legal musculoskeletal physiotherapist, Ms Jane Banting, dated May 2011
· Medico-legal report of the pain specialist, Dr Andrew Muir, dated 18 January 2013
· Report of the treating general practitioner, Dr Neil McNab, dated 22 April 2013
· Medico-legal report of the consultant psychiatrist, Dr Lev Botvinik, dated 28 May 2013.
(All such material found at pages 29-115 of the DCB).
Exhibit “D”
· Medical Panel Opinion dated 18 September 2009
(Such Opinion found at pages 75-86 of the DCB).
Exhibit “E”
· Bundle of WorkCover documents, print date 4 February 2021
(Such material found at pages 116-125 of the DCB).
Exhibit “F”
· Extract of clinical notes of Alfred Health dated 27 August 2012
(Such material found at page 26 of the DCB).
Exhibit “G”
· A report of the consultant rheumatologist, Dr Tony Kostos, dated 1 June 2016
(Such material found at pages 127-129 of the DCB).
Exhibit “H”
· Medical Practitioner Questionnaire dated 11 March 2011 completed by the treating general practitioner, Dr Neil McNab, together with extracts of clinical notes of the Toorak Clinic (Dr McNab)
(Such material found at pages 130-132 of the DCB)
Exhibit “I”
· Pages 60 to 64 of the WorkCover Trial involving the plaintiff in 2015.
- - -
0
5
0