Toseski v Transport Accident Commission
[2016] VCC 1046
•22 July 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Suitable for Publication |
SERIOUS INJURY LIST
Case No. CI-15-03412
| KIRIL TOSESKI | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE O'NEILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 22 June 2016 | |
DATE OF JUDGMENT: | 22 July 2016 | |
CASE MAY BE CITED AS: | Toseski v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1046 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – injury to spine and psychological disorder – were the consequences “very considerable”, alternatively “severe”
Legislation Cited: Transport Accident Act 1986, s93(17)
Cases Cited:Transport Accident Commission v Kamel [2011] VSCA 110; De Agostino v Leatch & Transport Accident Commission [2001] VSCA 249; Richards v Wylie (2000) 1 VR 79; Rodda v Transport Accident Commission [2008] VSCA 276; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1
Judgment: Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms J M Forbes QC with Mr A D Newman | Nowicki Carbone |
| For the Defendant | Mr P D Elliott QC with Ms V Nadj | Solicitor to the Transport Accident Commission |
HIS HONOUR:
Preliminary
1 On 15 June 2011, Mr Kiril Toseski was injured when the car he was driving ran off the road and hit a pole (“the accident”). He sustained an injury to his spine and has developed a psychological disorder.
2 Many years before, Mr Toseski had suffered a knee injury and, at the time of the transport accident, was working only seven-and-a-half hours per week as a school crossing supervisor. As a result of the injury suffered in the accident, he claims that he has been unable to continue in that work and a range of recreational, social and domestic duties and activities have been lost.
3 This is an application for leave to bring proceedings pursuant to s93(4)(d) of the Transport Accident Act 1986 (“the Act”) for injury suffered in the accident.
4 The body function said to be impaired is the spine, including the cervical, thoracic and lumbar spines. The application is thus brought under ss(a) of the definition of “serious injury” contained in s93(17) of the Act.
5 Alternatively, Mr Toseski claims to have suffered a permanent severe mental or permanent severe behavioral disturbance or disorder. Specifically, a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood, post-traumatic stress and anxiety symptoms and traumatisation features, and a Chronic Pain Disorder associated with psychological factors. The application is thus also brought under ss(c) of the definition of “serious injury” contained in s93(17) of the Act.
6 Mr Toseski was the only witness called to give evidence and be cross-examined. In addition, affidavits of Mr Toseski and his daughter, Emilijia Toseski, medical and radiological reports, vocational reports and other material were tendered in evidence. I shall not refer to all of that material in the course of this judgment, but rather those parts of the evidence and reports which appear to me to be most relevant and which I have relied upon in coming to the conclusions referred to later in this Judgment. The statutory scheme set forth in the Act which prescribes and regulates applications of this nature, and the principal authorities of the Court of Appeal, are well known, and it is unnecessary for me revisit the various relevant sections and those authorities.
Relevant background
7 Mr Toseski was born in Macedonia in 1948 and is now sixty-seven. He lives with his wife and adult daughter.
8 As a young man he worked in Austria laboring and came to Australia in 1972. He worked in a factory and as a truck driver. He returned to Macedonia in 1978 and lived there for a few years. In 1980, he married and returned to Australia with his wife.
9 He returned to Macedonia in 1986 and came back to Australia in 1997.
10 He worked as a truck driver but that ceased after four years when he injured his left knee. He had surgery to his knee in 1980 and stopped work until he obtained a position with Brimbank City Council in 2010. He says he recovered well from the knee injury and did not experience any significant pain at the time of the accident.[1] He applied for, and received, a disability support pension due to the knee injury. He remained on the pension until 2013, when it became the old age pension.
[1]Plaintiff’s Court Book (“PCB”) 2
11 In 2010, he started work as a crossing supervisor with Brimbank City Council. He worked seven-and-a-half hours a week in total, comprising forty-five minutes in the morning and the afternoon, supervising school students crossing the road.
12 Prior to the accident, Mr Toseski said that his health was relatively good.[2] He had Type II diabetes but managed this with Diabex. He took Cartia for high blood pressure.
[2]PCB 2
13 He was independent and active. He had an affectionate relationship with his wife, and went for walks and to the beach in warmer weather. He socialised with family and friends, and attended dinner dances at Macedonian social clubs and reception centres.
14 He assisted with domestic activities such as sweeping, mopping, vacuuming, and dusting, and sometimes helped with the cooking. He assisted with the shopping, pushing the trolley and carrying shopping bags.[3] He hung out the washing on the line.[4]
[3]PCB 3
[4]PCB 13
15 Mr Toseski maintained a vegetable garden, fruit trees and mowed the lawn. He swam regularly and played social soccer from time to time.[5]
[5]PCB 3
The transport accident, the injury and consequences
16 The accident occurred at about 11.00pm on 15 June 2011, when a car drove towards Mr Toseski’s lane with its high beam lights on. He tried to avoid the oncoming vehicle and drove into a pole. He did not go to hospital and was driven home by a tow truck driver. He saw Dr Ansari, his treating general practitioner, the following day.
17 Dr Ansari noted Mr Toseski had not lost consciousness, but had suffered immediate pain on the left side of his chest. He found tenderness over the left side of the chest, and also the neck and back. He prescribed Panadeine Forte. He ordered a chest x-ray, which was unremarkable. An x-ray of the cervical and thoracic spine reported significant C4-5 and C6-7 disc degeneration with no disc space narrowing.
18 Subsequently, Mr Toseski started to feel anxious and upset and was prescribed Pristiq for depression and Temaze for insomnia.[6] Dr Ansari reported that Mr Toseski:
“… cannot sit, stand or walk for long. At times he gets a stabbing pain in his back. He cannot bend, lift, carry anything heavy, pull, push or twist. He is also unable to concentrate when he gets his headaches. He reports that he only has a few hours of sleep and is therefore quite sleep deprived and fatigued. He is also quite tearful and depressed.”[7]
[6]PCB 21
[7]PCB 22
19 In February 2013, Dr Ansari requested and received approval from the Transport Accident Commission (“TAC”) for psychological counselling.[8]
[8]PCB 20
20 In her report of 5 March 2016, Ms Linda Roglic, psychologist, noted that she initially saw Mr Toseski on 3 April 2013 at the referral of Dr Ansari and has seen him twenty times since. The first five sessions were paid by the TAC and the remainder have been provided on Medicare:
“… The primary reason for not continuing session[s] under the TAC scheme was Mr Toseski’s inability to feel competent to take ownership for structured functional activity for change, and therefore make full consent to the goals of therapy as required under the TAC scheme.”[9]
[9]PCB 27
21 Mr Toseski saw a chiropractor for seven to eight sessions.[10]
[10]PCB 30
22 Presently, Mr Toseski takes Pristiq, an antidepressant, each day to treat anxiety. He also takes Temazepam each night to help with his sleep. He takes Feldene, an anti-inflammatory, and Panadeine Forte for pain every few days. He further claims he gets headaches once or twice a week.
23 He has not attempted a return to work since the accident. He says he could not walk or remain standing at the crossings for extended periods of time because of the pain in his lower back. He could not lift and hold the crossing sign because of his neck and mid-back symptoms.[11] He felt he needed to maintain a safe environment for the children and that he would be distracted by his neck and back pain. He thought being a crossing guard would make him think of the accident too often.[12]
[11]PCB 8
[12]Plaintiff's second affidavit dated 16 March 2016, PCB 12
24 Mr Toseski says that he could not do the work as a crossing supervisor because of:
“… the pain that I’m in and I’m also fearful because, you know, I’m at the school crossing, there are children there.”[13]
[13]Transcript (“T”) 14, Line (“L”)16 – 18
25 He has never tried resuming his duties because:
“I might feel bad if I fall and something happens to me or something happens to the children.
… I’m afraid.”[14]
[14]T35, L15 – 18
26 Mr Toseski was taken to the vocational report of the TAC,[15] where there was a recorded meeting between a consultant, Ms Nicole Hunt, the general practitioner, Dr Ansari, and Mr Toseski on 26 February 2013. Dr Ansari said Mr Toseski would never return to work but, from a physical perspective, he had the ability to return to his work as a crossing supervisor. Despite this, Mr Toseski was recorded as saying that he suffered from headaches and dizziness and did not believe he could return to that employment. In cross-examination, Mr Toseski could not recall this conversation.
[15]PCB 161
27 Mr Toseski claimed in his affidavits that he suffered from constant pain, discomfort and restriction of the movement of his neck. He said it was difficult to turn his head from side to side due to his neck injury, and that the pain was exacerbated when he moved his head suddenly or when he reached his arms above shoulder height. He tended to experience pain and discomfort when he moved his neck or sat down too long in one position. His neck was stiff in the morning. The neck pain radiated up towards his head, causing him to suffer headaches every few days. When he had headaches he got a buzzing sensation that made him feel dizzy. He took Panadeine Forte when he had headaches.[16]
[16]PCB 5
28 He also reported pain, discomfort and restriction in his lower back which was aggravated by sitting, standing or walking for prolonged periods of time. His lower back pain was aggravated by activities that involved crouching, bending or twisting. He struggled to bend over and put on his shoes. He experienced intense stabs in his lower back at the end of the day if he had been active throughout the day.
29 He suffered from constant pain, discomfort and restriction in his mid-back which was aggravated when he sat, stood or walked for prolonged periods of time. The pain was also aggravated by twisting or bending down. He struggled to reach for items above the height of his shoulders.
30 He also reported intermittent pain and discomfort in his chest which was often exacerbated by pushing or pulling heavy objects to and from his chest region. He struggled to lift objects and found it difficult to push the lawn mower.
31 He claimed his sleep was poor but better after he took the prescribed medication. He said he woke early in the morning and found it hard to get back to sleep. He also reported waking during the night due to neck and back pain. He lay awake at night worrying. He often slept on the couch to avoid disturbing his wife. He was tired and lethargic during the day.
32 He found it physically painful to drive and had become an anxious and less confident driver, worried that he would become involved in another car accident.[17] He found it painful to perform over-the-shoulder checks while driving.[18]
[17]PCB 6
[18]PCB13
33 He also reported that he had difficulty in walking for longer than fifteen minutes, as this caused him lower back pain during the walk and in the days following.
34 He no longer went swimming at the pool or beach as he believed these activities would aggravate his back and neck symptoms.[19] However, in cross-examination, he agreed he had probably been advised by those treating him to resume activities including swimming, but had not done so. He had not played soccer since the accident, as he believed the pain in his hip and lower back made running extremely difficult. He agreed that because of the earlier knee injury, he only played soccer for a short time with friends on occasions.
[19]PCB 6
35 He no longer saw his friends and relatives as often as he did before the accident, as sitting for long periods was uncomfortable. He often felt irritable and anxious, which made him feel less like catching up with friends and relatives.
36 He enjoyed seeing his grandchildren regularly.
37 He reported struggling to perform domestic duties such as vacuuming, mowing the lawn, and mopping, as these tasks required him to push and pull. He found it difficult to perform maintenance tasks around the home because of the lack of strength and rotation in his mid and upper back.
38 He could no longer lift heavy shopping bags, and so only shopped for small items.[20] He no longer hangs out the washing as it aggravated his neck pain.[21]
[20]PCB 7
[21]PCB 13
39 He reported that he no longer did any gardening. He found it difficult to bend down and kneel for extended periods of time as this caused pain to his entire back, and the twisting motion involved in using garden tools also caused pain. As a result, most of the fruit trees and plants died.[22] It was put to him in cross-examination there was nothing to prevent him watering the trees, to which he agreed. He said he could not prune them.
[22]PCB 7
40 Mr Toseski experienced depression and lowered mood for some time after the accident and became more frustrated, irritable and angry. This, he said, affected his relationship with his wife.[23] He reported that he was upset and frustrated at the level of his ongoing pain and that his self-esteem was lower.[24]
[23]PCB 14
[24]PCB 14
41 He also became anxious, scared, nervous and panicky, particularly when driving and cars passed in the opposite direction. He anticipated the worst and had flashbacks to the accident on the road.[25]
[25]PCB 8
42 In Mr Toseski’s second affidavit dated 16 March 2016, he said:
“I continued to experience pain as described in my First Affidavit. I continue to experience severe headaches. When these headaches come on, I feel a buzzing sensation and they make me dizzy. I continue to have neck pain, middle back pain, and lower back pain. My lower back pain radiates down into my buttocks, hamstrings and sometimes into both calves. At times, I get a feeling of numbness in both legs. My lower and mid back pain is worse when I stand or walk for prolonged periods. My level of mid and lower back pain is also aggravated by crouching, bending, twisting and is worse at the end of a day in which I have been more active. The pain in my neck makes it difficult to turn my head from side to side and is aggravated by moving my head suddenly or reaching my arms above shoulder height. My neck pain is also aggravated by holding my neck in one position when [I] sit or lie down. I often get stiffness in my neck in the morning, particularly when I first get out of bed or when the weather is colder. I also continue to have pain in my chest as described in my First Affidavit, which is worse when there’s cold weather.
I continue to feel depressed and anxious. I feel down most of the time. I feel worst at night. I lie there and worry about my life and future. I still have occasional nightmares of the accident. I do my best to avoid the accident site, because passing by there brings back memories of the accident. I feel less confident as a driver, but I do continue to drive. I try to drive only in my local area. I think about the circumstances of the accident specifically every three weeks or so. … .”[26]
[26]PCB 11 – 12
43 According to the affidavit of the daughter, her father had changed since the accident. She said he now sits on the couch and watches television. She noted his reaction to pain in his back and neck. His domestic chores around the house are now done by her mother. He used to be active in his garden, growing a range of vegetables, but now it is mostly weeds. Her brother now mows the lawn. He is less active recreationally, and his sleep is affected.
Medical evidence
44 In Dr Ansari’s last report dated 22 March 2016, he wrote that Mr Toseski sustained the following injuries: backache, in his lower and mid-back, neck pain, headaches, chest pain, and anxiety/depression. He also reported:
“Prognosis
The prognosis in this patient’s case remains poor. It is unlikely that he will return to any form of work due to his age, his disability and his lack of skills.
Work Capacity
This patient continues to remain incapacitated for any form of work. This incapacity is likely to continue for the foreseeable future.
Stability of condition & details of further treatment
It is considered that this patient’s condition has stabilised to some degree, however, he will continue to require his medications for pain and depression as well as psychological counselling.
His current treatment includes Feldene 20mg as an anti-inflammatory medication, Panadeine Forte 500mg for moderate to severe pain, Pristiq 100mg for depression and Temaze 10mg for insomnia. He is also seeing Ms Linda Roglic, a Psychologist.
He recently completed 5 sessions of Medicare funded physiotherapy.
…
Consistency of injuries with the accident
The clinical findings are consistent with the history provided and it is considered that the motor vehicle accident has been a significant contributing factor to this patient’s injuries and has resulted in his incapacity for work.”[27]
[27]PCB 25 – 26
45 Ms Linda Roglic, Mr Toseski’s treating psychologist, in a report dated 5 March 2016, said she had most recently seen him on 10 February 2016. Ms Roglic noted that Mr Toseski presented with notable depression. He gave a history of sleeping poorly, having a poor appetite, loss of enjoyment in either preparing or eating food, total loss of libido, loss of interest in others, reduced socialisation, increased frustration, loss of tolerance and patience, and increased tearfulness. Over the course of treatment he had not recognised any change or improvement.
46 Ms Roglic wrote that before his motor vehicle accident, Mr Toseski’s personal style and perspective was of –
“… ‘positive bias’. This is to say that his natural perceptions were to recognise the positive prior to the negative, and this allowed him to experience a happier self in life generally …
Following his MVA, and the trauma of this experience, Mr Toseski’s perception altered from the positive bias to a ‘negative bias’ making it difficult for him to see or and engage experientially in the positive in any situation he is presented with. This negative bias now dominates his perception and therefore world experience. Some effort has been directed in session to help him re-engage with his positive bias.
Mr Toseski experienced great fear in the moments around the time of impact in his MVA. His cognition ‘I will never see my children again’ implied his realisation of the expectation of his own death. His self-reports of increased startle response (jumpiness), overreactions to general triggers, difficulty with noisy and crowded places and situations are strong indications of hyper-arousal. His reports of being easily reminded of the MVA, feeling like he was back in that space and time, and dreaming of elements of the MVA are indicative of intrusion. Finally Mr Toseski’s loss of tolerance to uncomfortable feelings, his reduced driving, socialisation and activity directly and indirectly or generalised from the original stimulus event are indicative of avoidance which alongside the presence of hyperarousal and intrusion are strongly suggestive of Post Traumatic Stress Disorder.
Mr Toseski is therefore in all likelihood suffering from PTSD with associated Depression and Anxiety.
Prognosis for a positive outcome is guarded.
… Capacitation/Incapacitation from pre-injury employment
The writer cannot state with any confidence that Mr Toseski is able to effectively and safely execute his pre MVA employment activity as a school crossing supervisor. Technically he is competent to execute the function, however, his difficulty in self soothing and managing his discomfort, and his states of hyperarousal and hyper-vigilance may result in judgement error with devastating consequence.
… Mr Toseski appears stable. …
…
… It is not expected that Mr Toseski will significantly benefit from further session[s] at this time.”[28]
[28]PCB 27 – 28
47 Despite being of the view further sessions were unlikely to provide any significant benefit, Ms Roglic has continued to treat Mr Toseski to the present time.
48 Mr Gary Grossbard, orthopaedic surgeon, in a report dated 23 April 2014, said Mr Toseski gave a history of constant pain in the middle of his neck, not helped by anything other than medication. He had headaches every couple of days. He had a buzzing in his head that was also helped by the tablets. He had constant low-back pain – a sharp pain – and he felt it in the middle of his lower back, radiating into the sacral area.
49 Mr Grossbard noted that Mr Toseski held his neck rigidly but had almost full rotation during the examination. He observed a good range of flexion when he was dressing and undressing. There were no neurological abnormalities in the limbs. There was tenderness in the whole of the lumbar spine which was held rigidly. He noted straight-leg raising was 20 degrees on each side but that he could sit on the couch with his knees fully extended and his hips flexed to 90 degrees. He noted restriction of shoulder movement but felt this related to neck and back pain rather than primary shoulder pathology.
50 Mr Grossbard’s opinion was that Mr Toseski had some soft-tissue injuries to his neck and lumbar spine. There was some pre-existing degenerative disease in the cervical spine. The rigidity of the spine over the cervical and lumbar areas was not easily explained by the physical injury alone. Discrepancies between the formal and informal examinations suggested a significant degree of functional input into the clinical findings:
“I believe your client’s situation has been significantly brought about by the motor accident but I would stress the importance of both physical and non-physical elements associated with the accident.
I believe ongoing treatment should remain conservative and should include an exercise programme … I think the likelihood of him re-entering the workforce is negligible largely for the functional reasons rather than purely organic reasons. Clearly this condition is going to affect your client’s ability to undertake many activities, both from an occupational and social aspect.
I would suggest the situation is not likely to change in the foreseeable future and therefore it should be considered stable.
…
There is very little movement in the lumbar spine but I was not able to observe a different range of motion between the formal and informal examinations. …
I believe this man’s major impairment relates to his psychological issues and the opinion of an appropriate specialist in this area should be sought.”[29]
[29]PCB 32 – 33
51 Mr Grossbard examined Mr Toseski again in December 2015 and made further observations in a report dated 11 December 2015. He found tenderness, largely in the trapezius area and lateral side of his cervical spine. He measured the flexion at 20 degrees and extension at 20 degrees. Lateral flexion was 20 degrees in each direction, whilst rotation was 20 degrees to the right and 40 degrees to the left. He thought these movements were somewhat greater during the informal examination. He noted tenderness between T12 and L5 in the thoracolumbar spine. He noted virtually no lumbar movement, but there were no neurological abnormalities in the lower limbs. He examined his knees and found there was some patellofemoral crepitus, but this was bilateral and mild. There was no knee joint effusion or muscle wasting.
52 The x-ray of the lumbar spine and pelvis of 4 August 2011 confirmed the presence of an L5-S1 spondylolisthesis, with a 40 per cent slip of L5 on S1. The cervical and thoracic x-rays of 27 June 2011 confirmed degenerative change, particularly at the C4-5 and C6-7 levels, loss of disc height and some intervertebral foramen encroachment at the C4-5 level on the right side.
“My basic opinion about this man is unchanged. This man has suffered soft tissue injuries to his cervical and lumbar spines in the presence of pre-existing change.
…
This man also has ongoing back pain in the presence of significant developmental spondylolisthesis at the lumbosacral level. This was previously asymptomatic and has now become symptomatic. This is a significant reduction in motion, …
This man’s physical injury has been significantly impacted by psychological issues, for which he is seeking psychological support on a regular basis. There are clearly functional aspects to his presentation, as based on the discrepancies I have outlined.
At the age of 66, the likelihood of this man finding any employment is significantly limited.”[30]
[30]PCB 34 – 35
53 Mr Grossbard wrote on 16 May 2016, after having read the report of Dr Manolopoulos, that he and she have said the same thing. He said Mr Toseski did have injuries in the presence of pre-existing change and that the whole clinical situation was being modified by the functional component to which they both refer.[31]
[31]PCB 36
54 Dr Anna Manolopoulos, consultant orthopaedic surgeon, wrote, in a report to the defendant dated 29 April 2016:
“Mr Toseski’s main complaints now consist of neck, mid-thoracic and low back pain with superimposed chest pain on occasion and also the occasional headache. His examination findings suggest that he has some weakness affecting his upper limbs and also his lower limbs with positive tethering signs involving the sciatic nerve bilaterally. The imaging that he has had previously simply demonstrates degenerative changes in both the cervical and lumbar spine. I feel his diagnosis includes a sprain or strain injury of his cervical, lumbar and thoracic spine. I find it difficult to explain a lot of Mr Toseski’s symptoms simply based on organic pathology. Certainly, part of his examination included an examination of the Waddell’s signs, and he is positive for four of these including superficial and diffuse tenderness in non-anatomical areas, positive simulation tests, positive distraction tests and regional disturbances that do not follow any anatomy. I think there also has to be an element of his psychological state affecting his perception of pain.”[32]
[32]PCB 83
55 Dr Manolopoulos was not entirely convinced that the accident was responsible for all of Mr Toseski’s current symptoms. She thought there was a non-organic element involved. She believed there was some psychological overlay for some of his stated areas and disability.[33]
[33]PCB 81 – 83
56 Dr David Weissman, consultant psychiatrist, saw Mr Toseski and prepared a report dated 23 July 2014. He wrote that Mr Toseski’s affect was mildly to moderately depressed and anxious, sad, flat, subdued, restricted in range and intermittently tearful. He noted the content of his thinking revealed mild post- traumatic stress and anxiety symptoms and that Mr Toseski reported mild to moderate mixed reactive depressive and anxiety symptoms. He diagnosed mild primary or direct post-traumatic stress and anxiety symptoms and traumatisation features, and mild to moderate mixed reactive depressive and anxiety symptoms, themes and features:
“● He does not have full-blown Post-Traumatic Stress Disorder however he does have a ‘primary’, direct or non-secondary psychiatric impairment in the order of 6%.
● He is also suffering from a chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate intensity or severity ……..
…
… Mr Toseski is suffering from a mild to moderate group of accident-related psychiatric conditions and mental injuries. …
ØI cannot say that he is totally incapacitated for all work on purely psychiatric grounds alone. However when one considers the claimant’s mild to moderate psychiatric state in combination with his accident-related physical state (outside my area of expertise), on combination with factors considered under the definition of ‘suitable employment’ (including, in particular, the claimant turning 66 in two days’ time), the chances of Mr Toseski being able to return to suitable paid employment on the open labour market place is nil.”[34]
[34]PCB 44 – 45, 48
57 Dr Weissman interviewed Mr Toseski for a second time on 23 November 2015 and prepared a further report. He wrote that Mr Toseski’s psychiatric state was identical to the last time:
“○ Overall, Mr Toseski is still suffering from mild, ‘primary’ or direct post- traumatic stress and anxiety symptoms and traumatisation features, but not a full-blown Post-Traumatic Stress Disorder (PTSD).
…
○ He continues to suffer from a mild to moderate, mixed, reactive depressive and anxiety syndrome, with pain focus, as a consequence of, or secondary to, his accident related-pain, injuries, limitations and restrictions.
○ He has also sustained and developed a chronic Adjustment Disorder with Depressed and Anxious Mood of mild to moderate intensity or severity.”[35]
[35]PCB 56
58 Having read the report of Ms Linda Roglic, Dr Weissman wrote, in a supplementary report dated 29 April 2016, confirming his earlier opinion. He also accepted Ms Roglic’s opinion that one could not state with any confidence that Mr Toseski was able to effectively and safely perform his pre-accident duties as a school crossing supervisor. He attributed this to:
“… a range of accident-related factors including his post-traumatic stress and anxiety symptoms and traumatisation features, his mild to moderate depressive and anxiety symptoms and features, and his subjective/reported difficulties with short-term memory disturbance (and possible concentration impairment/disturbance) – the latter of which is partly contributed to by his psychiatric state (above), medication side effects and physical pain.”[36]
[36]PCB 63
59 Having read the reports of Mr Grossbard, Dr Ansari, and Ms Manolopoulos, Dr Weissman wrote a further supplementary report dated 27 May 2016. He did not alter his opinion of Mr Toseski’s psychological condition. He did however note that it:
“… also indicates that the claimant is probably also suffering from symptoms and features of a Chronic Pain Disorder, associated with psychological factors and a general medical condition, also known as a Somatic Symptom Disorder.”[37]
[37]PCB 66
60 This reinforced Dr Weissman’s opinion that Mr Toseski was totally incapacitated for all work.[38]
[38]PCB 66 – 67
61 Dr David Elder, occupational physician, in a report dated 7 November 2012, observed that, in clinical examination:
“ … The worker was able to turn freely and easily to speak to the interpreter. However cervical movements when formally examined became very restricted. He also demonstrated inconsistent response in examination of his lumbar spine. He demonstrated only very restricted motion in forward flexion but on assisting him up from the examination couch he essentially did a sit up into a sSLR [seated straight leg raise] with no discomfort at all. He was able to demonstrate walking on his heels, toes and squatting. Waddell’s non-organic signs were 4/5 positive with asymmetrical range of motion being inconsistent. He was tender to light touch. Axial compression and simulated rotation tests were positive. That was a collapsing giveaway pattern in all of his musculature when tested. There was no objective abnormality with normal power being consistent with his ability to walk. There was no wasting in the upper or lower extremity musculature … .
…
In summary I would accept the worker would have suffered soft tissue injuries to the axial skeleton. However, his presentation today and very significant adverse psychosocial history suggests that the prolongation of the symptomatology is probably due to non-organic features.”[39]
[39]PCB 70
62 Dr Elder was not convinced that physical therapy would have any benefit. He thought that from a purely objective viewpoint, there was no reason Mr Toseski could not perform his role as a school crossing supervisor for forty-five minutes twice daily for five days per week.[40]
[40]PCB 70-71
63 To Dr Timothy Entwisle, psychiatrist, Mr Toseski described pain and reported falls when he had stabbing pain. He said he was able to go for a walk with his dog for thirty to sixty minutes on a daily basis. He no longer had falls. Dr Entwisle diagnosed an Adjustment Disorder with Depressed and Anxious Mood and some features of traumatisation with the Pain Syndrome. The features of traumatisation were mild.[41] He noted he was still able to drive.
[41]PCB 94
The Plaintiff’s credibility
64 Mr Toseski gave evidence in a relatively straightforward manner. He was vague at times and was unable to recall in any detail the histories he had provided to doctors, the nature and extent of his pre-existing knee injury and various aspects of his employment. A range of relatively minor credit issues were put to him which were of little significance.
65 About nine minutes of surveillance video was tendered in evidence, which showed Mr Toseski walking through a shopping centre in January of this year. There is little in the video to indicate any inconsistency with the histories provided to doctors, and evidence to the Court, although he appeared to move in a relatively free and unaffected manner.
66 What is of significance, however, is the observations of all the consultant specialists who examined Mr Toseski. Rather remarkably, Mr Grossbard, Dr Elder and Ms Manolopoulos all noted significant differences on physical examination when that was formally undertaken, with casual movements in the examination room. Both Ms Manolopoulos and Dr Elder found four out of five non-organic Waddell’s signs upon examination. These examination findings all indicated significant non-organic features.
67 In my view, this reflects upon Mr Toseski’s credit. It is one thing to have an honestly held psychological reaction to injury and, on the other hand, quite significant discrepancies in ranges of movement between formal examination and informal observation.
Conclusions
68 I am satisfied Mr Toseski suffered soft-tissue injuries to his neck and lumbar spine in the accident. The injuries were in the nature of aggravation of pre-existing degenerative disease, in particular, at C4-5 and C6-7 in the neck and at L5-S1 in the lumbar spine, where a pre-existing spondylolisthesis was aggravated. Further, I am satisfied that Mr Toseski has suffered a psychological reaction in the nature of an Adjustment Disorder with Anxiety and Depression and with some post-traumatic stress symptoms. There is some complexity to this application, in that there is an overlap as to the consequences arising on the one hand, from the organic injury and, on the other, from the psychological disorder. It is necessary to disentangle the two. Where the impairment of a body function is the product of both organic and mental conditions, it will not fall under subparagraph (a) of the definition of “serious injury” unless it is predominantly the product of the organic condition.[42]
[42]Transport Accident Commission v Kamel [2011] VSCA 110 at paragraphs [65] – [66]
69 However, the measure of the seriousness of an organic injury may, in part, be assessed according to the mental response, providing that does not stray into using the mental injury as a component of the physical injury. It may be used as a guide only to the overall seriousness of the physical injury.[43]
[43]See De Agostino v Leatch & Transport Accident Commission [2001] VSCA 249 at paragraph [54]; Richards v Wylie (2000) 1 VR 79 at paragraphs [17] and [28]; Rodda v Transport Accident Commission [2008] VSCA 276 at paragraph [103] and Transport Accident Commission v Kamel (supra) at paragraphs [61] – [66] and [81]
70 I shall first deal with the consequences of the physical injury. Prior to the accident, Mr Toseski was working as a crossing supervisor for an hour-and-a-half per day, five days per week. He did not return to that employment and has not worked since. He said he is not able to return for a range of reasons, including because of pain in his neck and back and because of a fear that he will be unable adequately to supervise the children. Dr Ansari considered he was unable to do this work because of both psychological and physical conditions. Mr Grossbard thought it was unlikely that he would find employment at the age of sixty-six and that his major impairment was in relation to psychological issues. Dr Elder thought there was no reason, from a physical perspective, that he could not return to work. Ms Manolopoulos thought both physical and psychological issues impacted on his ability to work.
71 According to Dr Ansari’s clinical note of 26 February 2013, he advised Mr Toseski that being a crossing supervisor was not particularly difficult and that, from a physical perspective, he was capable of doing the work. I was unimpressed by Mr Toseski’s failure to even attempt to return to work as a crossing supervisor. It is hardly demanding work and is for a period of only forty-five minutes in the morning and afternoon. Given the inconsistent findings on physical examination by the specialists, I am of the view Mr Toseski has a greater capacity for movement, in particular that which would be required as a crossing supervisor, than his evidence and affidavits would suggest. I am not satisfied his capacity for pre-injury employment is significantly affected from a physical perspective.
72 Mr Toseski also complains of a range of other consequences as a result of physical injury, in particular, ongoing pain in his neck and lumbar spine which requires medication and a reduction in a range of domestic, recreational and social activities.
73 While it would appear from the photographs tendered that his vegetable garden is now overgrown, I do not accept that his injury would cause any restriction in being able to water the garden. I reject his evidence that his fruit trees have died because he cannot pay proper attention to them. I accept, however that he would have encountered some difficulties in weeding and digging to maintain the garden.
74 Mr Toseski claims loss of enjoyment in relation to social soccer. However, he admitted that his involvement was only modest before the accident. That is consistent with him being on a Disability Support Pension with his old injury to his knee. I do not see that as any significant loss.
75 I accept that some of the more arduous household tasks may be beyond him, but I am satisfied he has the ability to do a range of the lighter domestic duties, help with the shopping, go for walks with his wife and dog, and drive his car for shorter distances.
76 Mr Toseski’s treatment over the years has been modest and, aside from some chiropractic and physiotherapy treatment, there has been no specialist intervention, and only attendances on his general practitioner for prescription of medication.
77 I do not accept his evidence as to the consistency and intensity of the pain he says he suffers and the restriction in his neck and spine. That is evidenced by the inconsistent findings on physical examination by all the specialists. His claim that his lower back pain radiates into his buttocks, hamstrings and both calves, is not consistent with the neurological examination and radiological findings. His claim that his neck is stiff and difficult to turn is inconsistent with the examination by Mr Grossbard, where he observed almost full rotation of the neck and a good range of flexion. Similar findings were made by the other doctors.
78 Dr Ansari’s reports may be said to be supportive of the plaintiff, although there is no detail in his opinions and no specific findings on physical examination. I prefer the opinions of the various treating specialists to those of Dr Ansari. In particular, I accept the opinion of Ms Manolopoulos, that Mr Toseski’s spinal symptoms cannot be explained on the basis of any organic pathology. It is significant that he tested positive for four of the five Waddell’s signs.
79 Ms Forbes, for the plaintiff, argued all of the practitioners had found ongoing restriction due to physical injury. I accept that they report some restriction, but assess it as being only mild to moderate.
80 In Haden Engineering Pty Ltd v McKinnon,[44] Maxwell P set out a framework to assess pain and suffering consequences, including an objective assessment of the pain the plaintiff was said to experience and the disabling effect of that pain on a range of activities. While Mr Toseski complains of a range of consequences, including the effect upon his sleep, his relationship with his family, his intimate life and the loss of various activities, I am of the view that his situation is not as significant as his affidavits and evidence would suggest.
[44](2010) 31 VR 1
81 While I accept Mr Toseski does suffer pain and some restriction in his upper and lower spines, I am not satisfied it is such as to cause him the pain, limitation and restriction of his activities as his evidence suggests.
82 In all the circumstances, I do not accept the consequences of physical injury meet the “very considerable” level the authorities have set.
83 Dealing, then, with the psychological injury and its consequences, the test requires an assessment as to whether the psychological disorder is “severe”.
84 Ms Roglic, the treating psychologist, has seen Mr Toseski regularly to the present time. It is somewhat difficult to understand why she keeps treating him when, in her report, she said it is not expected he will gain any significant benefit from further treatment. Her report is, in parts, difficult to understand. She said that the primary reason for her treatment was:
“… Mr Toseski’s inability to feel competent to take ownership for structured functional activity for change, and therefore make full consent to the goals of therapy as required under the TAC scheme.”[45]
[45]PCB 27
85 Ms Roglic referred to Mr Toseski’s personal style and positive bias, which she said had become altered after the accident to a negative bias, which dominated his perception and world experience. She is the only practitioner to find that he suffers from Post-Traumatic Stress Disorder. All in all, I prefer the opinions of the consultant psychiatrists.
86 Dr Weissman diagnosed Mr Toseski as suffering from mild Post-Traumatic Stress and Anxiety symptoms and a mild to moderate Reactive Depression with Depression and Anxiety. He said, further, Mr Toseski was suffering from an Adjustment Disorder with Depressed and Anxious Mood. Initially, he said he was not totally incapacitated for all work on psychiatric grounds unless the accident-related physical condition was added. That opinion appeared to change in his report of April this year when he said that, by reason of his various diagnoses and psychological symptoms, he had no work capacity. It is not entirely clearly how he came to this conclusion.
87 In his final report of May this year, Dr Weissman included a Chronic Pain Disorder as part of the diagnosis, apparently given the opinions of Mr Grossbard and Ms Manolopoulos. Given this late diagnosis and the lack of any real explanation as to how he came to that conclusion, I do not accept Dr Weissman’s opinion as to Chronic Pain Disorder.
88 Dr Entwisle in April this year diagnosed Mr Toseski as suffering from an Adjustment Disorder with Depressed and Anxious Mood with some features of traumatisation with a Pain Syndrome. Dr Entwisle said, despite this, Mr Toseski was able to drive and did so regularly. He thought the features of traumatisation were mild and, from a psychological perspective, he was able to engage in a range of domestic and leisure activities. He did not suggest that, from a psychological perspective, Mr Toseski had any loss of working capacity.
89 Reading the reports of Dr Weissman and Dr Entwisle, and setting aside the different diagnoses made, neither practitioner has said the impact upon Mr Toseski of his psychological injury, is severe.
90 The word “severe”, is a word of stronger force than “serious”. Mr Toseski’s treatment consists of seeing his general practitioner, a psychologist and the prescription of anti-depressant medication. There are no symptoms seen in some psychological conditions or injuries, including hospitalisation, psychotic symptoms and suicidal ideation. Most of the consultant psychiatrists refer to the condition as mild, or mild to moderate.
91 I do not accept that the functional or psychological issues noted by the physical practitioners come to be assessed as part of the psychological injury. Again, it is difficult to accept they represent an honest heightening of pain and restriction when the physical examinations were so inconsistent.
92 I am not satisfied that, from a psychological perspective, Mr Toseski’s capacity to work as a crossing supervisor is affected. I accept that he has become somewhat more anxious, even vigilant, in traffic and, to an extent, suffered some depression as a result of the physical injury. Consequently, his mood has lowered and he is somewhat frustrated, irritable and angry.
93 However, making an objective assessment of these various symptoms and consequences in relation to this particular plaintiff, I am not satisfied they reach the “severe” level the legislation requires. There is no suggestion that the recreational and domestic activities are restricted on psychological grounds.
94 In all these circumstances, I am not satisfied Mr Toseski has suffered a severe psychological disorder.
95 The application fails. I shall make consequent orders.
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