Tsilivis v Gordon
[2007] WADC 111
•3 JULY 2007
TSILIVIS -v- GORDON [2007] WADC 111
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WADC 111 | |
| Case No: | CIV:1309/2006 | 5-6 JUNE 2007 | |
| Coram: | COMMISSIONER STEVENSON | 3/07/07 | |
| PERTH | |||
| 50 | Judgment Part: | 1 of 1 | |
| Result: | Damages assessed in the sum of $20,000 | ||
| PDF Version |
| Parties: | IRENE TSILIVIS ANDREW MAURICE GORDON |
Catchwords: | Damages Negligence Motor vehicle accident Personal injuries Assessment of damages Mild soft tissue strain injury to cervical spine Headaches Preexisting rheumatoid arthritis Preexisting recurrent headaches 45yearold working woman |
Legislation: | Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C |
Case References: | Den Hoedt & Anor v Barwick [2006] WASCA 196 Southgate v Waterford (1990) 21 NSWLR 427 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
ANDREW MAURICE GORDON
Defendant
Catchwords:
Damages - Negligence - Motor vehicle accident - Personal injuries - Assessment of damages - Mild soft tissue strain injury to cervical spine - Headaches - Preexisting rheumatoid arthritis - Preexisting recurrent headaches - 45yearold working woman
Legislation:
Motor Vehicle (Third Party Insurance) Amendment Act 1994, s 3C
Result:
Damages assessed in the sum of $20,000
(Page 2)
Representation:
Counsel:
Plaintiff : Mr T Lampropoulos
Defendant : Ms B A Mangan
Solicitors:
Plaintiff : Simon Walters
Defendant : Lavan Legal
Case(s) referred to in judgment(s):
Den Hoedt & Anor v Barwick [2006] WASCA 196
Southgate v Waterford (1990) 21 NSWLR 427
(Page 3)
- COMMISSIONER STEVENSON:
Introduction
1 The plaintiff was born in Greece on 25 April 1962 and is 45 years of age. On 10 April 2005 the plaintiff was injured when the motor vehicle she was driving on Wanneroo Road, Balcatta was "rear-ended" by a vehicle being driven by the defendant. The defendant has admitted liability for the accident. The matter comes on before me for an assessment of damages.
The circumstances of the accident
2 The plaintiff was driving her daughter's motor vehicle, a Mitsubishi Mirage sedan, on Wanneroo Road, Balcatta on Sunday 10 April 2005 at about 4.15 pm. She saw two vehicles in front of her which started to brake because the driver of the front vehicle had decided to do a U-turn. The plaintiff said she put her brakes on and looked in the rear vision mirror. She realised the vehicle behind was going to hit her vehicle so she "grabbed the steering wheel and just hoped for the best". As a result of the collision the plaintiff's vehicle was pushed into the vehicle in front so they "just touched". The plaintiff suffered an injury on her head, which she described as a "scratch". She told those present she did not require an ambulance and was given a lift home. The plaintiff's vehicle was towed away because she was told it was not driveable. Subsequently the insurers advised her that the vehicle should be treated as a "write-off" and that it had a value of about $9,000.
The plaintiff's evidence
3 The plaintiff is a 45-year-old working woman with three children. She migrated to Australia in 1965 with her family and was educated at North Perth Primary School and Perth Modern School before attending a business college where she obtained a secretarial diploma. She obtained her first full-time employment at the age of 16. The plaintiff married her husband in December 1979 and their first child was born in June 1981. Thereafter she and her husband owned and operated a lunch bar in which she worked part-time until the birth of her second child in August 1984. The plaintiff was then "off work" for about eight months before she commenced employment with the Department of Community Development in Midland, and then later in Perth. Her employment was full time and her duties involved administration and clerical work.
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4 In January 1994 the plaintiff gave birth to her third child. About eight weeks later, after blood tests had been obtained, the plaintiff was diagnosed with rheumatoid arthritis. She recalled the onset of the symptoms in the context of breast feeding her child: "All my joints were affected because I couldn't – it was like I was an invalid. I was just laying there. ... I couldn't lift my hands up because I had to breast feed…. [My husband] had to help me out of a chair to get up so I could start walking but once I got up it was okay. I could move my head around that was no problem". She was treated by Dr Colin Bayliss, a rheumatologist. In evidence-in-chief the plaintiff said that after about eight months "everything was fine. I started leading a normal life. I could do my sports, I could do everything that I could do before I actually found out that I had rheumatoid". She said sport involved playing netball three times a week, and, at that time, coaching her daughter's netball team.
5 In 1998 the plaintiff commenced full-time employment at the Dog Swamp Medical Centre, initially as a support person to the practice manager and then as a receptionist. When the practice was sold in April 1999 she and the others moved to a medical centre in Yokine where she worked as a receptionist. After about eight months the plaintiff became the administrator of Next Step, a drug and alcohol authority. She remained in this position until January 2001 when she left to commence employment with Medic Nominees Pty Ltd trading as Delta Health, which became Gemini Medical Services in May 2006. The plaintiff started work at Delta Health on 30 April 2001 as a full-time receptionist and remained in this role until she resigned on 1 March 2007. After about nine months at the practice she was promoted to reception coordinator which involved organising the rosters, billings, patient appointments and wages which she described as essentially "running the whole clinic". At the time there were seven receptionists, and five full-time and three part-time general practitioners. Dr Beinart was one of the full-time medical practitioners. In addition she assisted Dr Galton-Fenzi who she described as "our occupational physician". His consulting rooms were located in the same premises and his patients used the practice's waiting rooms. The main telephone switch was located in the plaintiff's office. As a result she was involved in telephone work because there were seven lines and only four receptionists with a telephone. She assisted at the front desk with patients and often retrieved patient files for the doctors. She described the practice as "very busy" and said that even though it had three waiting rooms, sometimes patients had to wait outside because there were not enough chairs.
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6 The plaintiff was taken home after the accident because she was told her vehicle was not driveable. She said that evening "everything just started getting stiff". The next morning (Monday), although she went to work, she said she was very stiff and could not move. When asked to describe her symptoms she said "I was very stiff, my neck wouldn't move, I had a really bad headache and there was no other – it was mainly from my upper back that was really sore, aching, stiff." Notwithstanding her symptoms the plaintiff went to work and was referred by one of the general practitioners to the Northbridge Physiotherapy Centre for treatment. However, she found after the second session that her symptoms were getting worse. After consulting another general practitioner in the practice, Dr Beinart, she completed the six sessions of physiotherapy but still thought her symptoms were getting worse and not better. In particular, the plaintiff said she was unable to sit for more than half an hour because of back ache, whereas before the accident she was able to sit for about one hour. Deep tissue massages suggested by Dr Beinart assisted the plaintiff initially but then she started to experience numbness in the back of her neck. The plaintiff said she was then advised by Dr Galton-Fenzi to stop the massages on the basis that it was damaging her nerves.
7 After the accident, the plaintiff said she could not concentrate because her headaches "were getting so bad". She agreed in evidence-in-chief that prior to the motor vehicle accident she had suffered from headaches but maintained she was able to manage her headaches. Before the accident if she thought it was a migraine she "would take some Nurofen and after a couple of hours it was gone, but after the accident that wouldn't do it". In re-examination the plaintiff said prior to the accident her migraine headaches "would last half a day, one day. After I had the accident it could go to two or three days". In cross-examination the plaintiff accepted that in 2002 she had recurrent complaints of migraine headaches and used Imigran as a medication. She said she used Imigran during the 12 months prior to the accident, together with Panadol when necessary. However she does not currently use Imigran because her headaches are not as frequent as they were prior to the accident.
8 The plaintiff gave evidence that one morning "about six weeks after the accident" she was unable to put her left shoe on because of pain and swelling in her foot. She said Dr Beinart prescribed anti-inflammatories and referred her to Dr Nicola Cook (her treating rheumatologist since 2001). The proximity of this symptom to the accident was not six weeks, although it is possible the plaintiff did experience some rheumatoid arthritis symptoms in her hands in July 2005 as was suggested to her in
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- cross-examination. However, Dr Beinart did not mention in his report of 1 June 2005 any complaint, or symptoms in the plaintiff's hands or feet, which he expressly attributed to rheumatoid arthritis. But in his report of 12 January 2006 Dr Beinart did note that the plaintiff reported pain and swelling in her left foot on examination on 14 September 2005. This is about five months after the accident. In cross-examination the plaintiff accepted that her medical notes recorded that she complained of a very tender left foot after a lot of dancing at her son's wedding in October 2005. In my opinion, and I find accordingly, this is when Dr Beinart decided to refer the plaintiff to Dr Cook which he in fact did by letter dated 9 November 2005. Dr Cook saw the plaintiff on 15 November 2005, not having seen her since April 2003, and treated her with cortisone injections and oral medication. The plaintiff said that after a period of treatment her rheumatoid symptoms "settled right down".
9 The plaintiff's evidence was that the rheumatoid arthritis symptoms in her left foot, and in fact the whole of her body, ceased completely in October 2006. She said there was no swelling in all her joints, she was free from pain and could walk properly. She said she started to play netball again once a week. In evidence the plaintiff maintained she was advised by Dr Cook in January 2007 to stop taking the Methotrexate and to wean herself off the Arava. She said she did this and that since then she had not taken any medication for her rheumatoid arthritis.
10 The plaintiff said that following the accident stress at work caused her symptoms to get worse but that she kept working up until 15 November 2005 in the hope things would improve. On that date she reduced her working week to a nine-day fortnight. But instead of working seven and a half hours per day she often worked eight and a half hours per day, with the result that her income in fact increased from the previous financial year. The plaintiff said she further reduced her working hours to a four-day week on 7 March 2006 because she found trying to hold the phone on her shoulder "at an angle" while using her hands to make appointments on the computer, and having to reach up for files from the compactuses, was causing her neck to get stiff, and that when she moved around she found standing on her feet too long was putting pressure on her back.
11 At this time, and at the time of the accident, the plaintiff's work duties included answering the phone when necessary, computer work and file retrieval. In cross-examination the plaintiff said that in October 2003 (prior to the accident) her employer engaged an ergonomist who changed her "whole setting in the office" to ensure that her chair, desk and
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- keyboard were correctly set up. This was done because the plaintiff had complained at the time of wrist and tendon soreness which she said was not attributable to her rheumatoid arthritis. The plaintiff accepted in cross-examination that if she had mentioned to her employer that she was having neck problems they would have investigated the cost of a headset. Based on my observation of the witness while giving evidence I find that she did not at any relevant time after the accident complain to her employer about getting a sore neck as a result of the telephone work she did as one part of her duties.
12 In May 2005 Delta Health Group restructured itself and became Gemini Medical Services. The plaintiff's position as a reception coordinator and her duties did not change as a result of the restructure.
13 On 1 March 2007 the plaintiff left the employment of Gemini Medical Services to take up employment with Ampilex Electrical on 6 March 2007 at the request of her husband's cousin who was a part-owner of the business. She did not need to formally apply for the position.
14 The plaintiff's evidence was that the reason she changed her employment was because she wanted "something easier". She gave evidence that "every time" she saw her general practitioner (who also worked in the same practice as the plaintiff) he said her symptoms were not improving because she was "very stressed in the type of work" she was doing and that she should "take it easy". Even though the plaintiff reduced her working week it must be remembered that her work duties were never modified by her employer at any time as a result of the accident (Exhibit 1, p 185) and she did not take any sick leave attributable to her accident injuries after 15 July 2005 (Exhibit 1, p 190). In respect to recorded sick leave the evidence is that no formal record was kept by Gemini Medical Services of the reason for the plaintiff's sick leave. Although the plaintiff gave evidence that she took four days off in the period 30 August 2005 to 2 September 2005 the letter from Gemini Medical Services dated 21 February 2007 records that the plaintiff informed Gemini that the last date for sick leave relating to her accident injuries was on 15 July 2005. I prefer the documentary evidence of Gemini Medical Services in this regard, and find accordingly that the last time off work due to her accident injuries was 15 July 2005.
15 The plaintiff denied in cross-examination that she was induced to join Ampilex Electrical because of the increased hourly rate of pay ($23 to $33) but said that the reason was because she wanted to do a
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- "favour" for a relative who needed someone to run the office. No direct evidence was adduced by the plaintiff from Gemini Medical Services about her alleged inability to cope with her work duties in March 2007 or the manner of her actual performance of her duties prior to her resignation, except of course through the medical evidence of her treating doctors who were associated with the practice.
16 The plaintiff's employment at Ampilex Electrical was short lived. She started on 6 March 2007 and left after a disagreement with one of the owners on 21 March 2007. Her employment was four days per week and involved clerical administration duties. In evidence-in-chief the plaintiff maintained that she discovered after a short time there was insufficient work for her and that she became bored. In cross-examination she was taken through various alleged matters concerning the disagreement which led to her leaving the job. The details are not relevant for present purposes.
17 Through Job Seek the plaintiff then made four or five applications for employment as a medical receptionist and on 16 April 2007 accepted a position with Stirling Medical Centre as a full-time practice manager. This is her present place of employment and was chosen by her because it is close to her home. In this position her salary is $50,000 per annum and her duties include doing the wages for the general practitioners and staff employed at the practice, paying accounts, accounting entries on the computer, and importantly, from her viewpoint, not dealing with patients unless there is a problem, not making appointments and not doing any filing. Otherwise, she is responsible for ensuring that "the clinic is running smoothly". She said that the practice employs five doctors who work five hour sessions so that there are only one or two doctors present at the same time. The two employed receptionists overlap and there is a cross-over. She is responsible for the banking and this enables her to leave the premises and she is free to move around at any time.
18 The plaintiff described her current symptoms. She finds her upper back "is very stiff". She can not sit for more than an hour without having to move around. She is limited in her ability to do housework and gardening: "If I have to sit there and vacuum, well then I have to rest afterwards. I love my garden. I can't go out and do my gardening because if I sit there and do my gardening then I have to crawl inside and lay for a couple of hours and then get up do something else afterwards". Her evidence was that she used to sit in the garden for two to three hours at a time, now she can't. She has not cleaned the house windows because: "I get stiff raising my hands and trying to clean the windows; I get real
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- sharp pains in my shoulder blades so then I have to stop". At the same time the plaintiff says she has never stopped doing anything, and still does everything. She says her husband has now decided to help her with "the chores" but he will not "do anything outside".
19 The plaintiff says she still has frequent headaches, at least once a week and more frequently depending on the weather. They occur less now than before. She currently takes Nurofen for her headaches. She is also on medication to reduce her anxiety and anti-inflammatories as prescribed by Dr Galton-Fenzi. Any change in the weather aggravates her general symptoms.
20 The plaintiff said in examination-in-chief that she stopped playing netball about three or four weeks ago because it aggravated her symptoms. She maintained that she pushed herself but was unable to sleep due to the pain and stiffness in her shoulders, back and legs as a result of running. She has now decided that she can no longer play netball because throwing the ball causes stiffness in her shoulders and putting her hands up when playing defence makes it even worse. She said that: "my shoulders, my back, my legs, everything was just aggravated".
21 The plaintiff said she does not go to the movies as often as she used to, preferring instead to watch DVD's at home so she can move around. She said she does not go to Greek dances any more and has become moody and can often "snap" at her husband and 13-year-old daughter (the only child living at home) for no reason. She said she tries to see her general practitioner once a month "to make sure everything is going well". She is bulk-billed and pays $32.10 per visit.
22 During cross-examination the plaintiff agreed with counsel that her income had increased incrementally over the period 2000 to 2006 and she was taken to her actual income for the years 2004, 2005 and 2006 being $38,022, $40,913 and $41,845 respectively. During cross-examination the plaintiff accepted that she had a history of headaches and recurrent migraines prior to the accident. She described the symptoms as a result of her rheumatoid arthritis as "all my joints were affected, like an invalid" and she described her stiffness and headaches. The plaintiff accepted the record of her complaints to her medical advisors as recorded by them in their notes as describing the symptoms she experienced from time to time, particularly when her rheumatoid arthritis flared up. Otherwise, she accepted she was symptom free in between these periods. However, she did not accept in cross-examination that all her symptoms were related to her rheumatoid arthritis and she was not pressed in this regard. She said
(Page 10)
- that prior to the accident she was not taking any medication unless it related to a "flare-up of her rheumatoid arthritis". In cross-examination she maintained that the rheumatoid arthritis did not cause her to go to a nine-day and then eight-day working fortnight but rather attributed it to the stiffness in her shoulders and symptoms from the accident.
23 The plaintiff presented as a credible witness and it is clear from her work history that she has maintained full-time employment for most of her working life. This has, in my view, from time to time been affected by the symptoms she has experienced as a result of suffering from rheumatoid arthritis and recurrent headaches, and also to some extent, but in my view a lesser extent, from the symptoms suffered as a result of the injuries sustained as a result of the accident in the period following the accident. Her evidence was given in an open and forthright manner and when appropriate she was prepared to concede the extent of the symptoms she experienced prior to the accident, particularly in relation to her pre-existing headaches and general fatigue. However, it is difficult to discern from her evidence the extent to which she has been affected by symptoms which can be directly attributed to the motor vehicle accident, compared to those which she suffers in any event from time to time from her rheumatoid arthritis and the normal stressors which arise for all employees in their working environment. In my opinion, having observed the plaintiff give evidence, while I accept she was a witness of truth, she was always quick to allocate blame for her symptoms to the accident. In my view she had a tendency to over-exaggerate the degree of her incapacity and the extent of her symptoms. For example, I do not accept that the plaintiff's recent decision to stop playing netball can be attributed, as she suggests, to symptoms which arise solely from her accident injuries. In my view this is extremely unlikely having regard to the nature of the injury, a mild soft tissue strain injury to her cervical spine, the time which has elapsed since the accident, the work duties she has been able to undertake since the accident as against the nature and extent of her rheumatoid arthritis diagnosed in 1994 and its physical manifestations in her hands and feet. Similarly, I am not persuaded that she resigned from Gemini Medical Services in March this year because of her accident injuries.
Dr Michael Beinart
24 Dr Beinart is a general practitioner of 26 years standing and was called by the plaintiff. The first time the plaintiff consulted Dr Beinart for medical treatment was on 17 December 2001. At all material times up until 1 March 2007 Dr Beinart and the plaintiff worked in the same
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- general practice in their different capacities. For the purpose of these proceedings Dr Beinart prepared five reports dated 1 June 2005, 12 January 2006, 11 May 2006, 8 February 2007 and 23 May 2007 (collectively Exhibit 2).
25 In his first report of 1 June 2005 Dr Beinart confirmed that the plaintiff had obtained medical treatment from the practice since June 2001. Dr Beinart also records the plaintiff's past medical history and noted that she had sustained a whiplash neck injury about 16 years ago but claimed to have made a good recovery and also that in 1994 she was diagnosed with rheumatoid arthritis which was currently stable and did not require medication. Dr Beinart noted that the plaintiff saw a colleague of his the day after the accident and was referred for a course of physiotherapy.
26 Dr Beinart first reviewed the plaintiff after the accident on 17 May 2005 at which time she complained of a stiff and sore neck. She reported occipitofrontal headaches and bi-frontal tightness across her temples. She also complained of a loss of energy and difficulty coping physically and emotionally at work. He referred her for a course of deep tissue massage therapy. On examination he found her to be uncomfortable, looking pale and tired. Examination of her neck revealed a near full range of movement with discomfort reported on extremes. He records in his report that:
"There was tenderness reported to palpation over the 2nd and 3rd cervical spines as well as tenderness reported to the occipital areas bilaterally. There were tender knots evident along the trapezius muscles bilaterally as well as tenderness to the sternocleidomastoid and pectoral muscles. The temporomandibular joints were also reported as being tender to palpation, more so on the right.
In her feet, there was some tenderness to the scars over the metatarsal heads, bilaterally as well as the areas of the previous neuroma scars.
In her right shoulder, there is tenderness reported over the short head of the biceps tendon with pain reported on resisted flexion of that elbow."
27 Dr Beinart referred to an x-ray of the plaintiff's cervical spine dated 15 April 2004 and the report of Dr Steven Davis that there was mild degenerative disc narrowing at C4/5 and C5/6 with small end plate spurs
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- at C4/5. That report indicated there was no fracture, malalignment or disc space narrowing in the lumbar spine. Dr Beinart's diagnosis in his report of 1 June 2005 was:
"The plaintiff has sustained a cervical strain injury (whiplash associated disorder) in the traffic accident of 10 April 2005. She has evidence of suboccipital neuralgia resulting in headaches, facetal strain injuries in a cervical spine resulting in neck pain and restriction of movement as well as fibromyalgic muscle knots along her cervical and upper thoracic musculature. She also has evidence of mild temporomandibular joint dysfunction."
29 In his report of 12 January 2006 Dr Beinart notes that since his previous report the plaintiff continues to present on a regular near monthly basis with complaints of "neck pain, stiffness, tenderness along the trapezius muscles and headaches". Dr Beinart notes the plaintiff stated that prolonged sitting at her desk with her neck in a fixed position resulted in an increase in her symptoms. He also reported she had ceased physiotherapy and soft tissue massage therapy as she felt it was affording her only short-term relief. She had also ceased using Panadeine Forte and Tramal and remained on Endep to assist with her sleep pattern as well as Nurofen as an analgesic and as an anti-inflammatory.
30 Dr Beinart's report of 12 January 2006 also records that on examination the plaintiff presented "in varying degrees of distress, often pale and unwell, reporting headaches, and neck stiffness". According to him the plaintiff did recognise that emotional stress would increase her symptoms. She continued to report "suboccipital local tenderness, which was resistant to the deposteroid injections to that area". Dr Beinart also said in his report that at presentation on 14 September 2005 the plaintiff reported "severe neck stiffness - like feeling that her neck needed to be pulled apart". She reported that the pain was so severe she was unable to sleep at times, tired easily and felt strained at the end of the day but accepted that the stress at work increased her neck tiredness.
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31 Importantly as already noted above, on 14 September 2005 the plaintiff also reported pain and swelling in the dorsum of her left foot over the previous surgical scar for excision of a neuroma. Her fingers were also swollen and stiff in the morning. Dr Beinart appears to have interpreted the symptoms as being attributable to the plaintiff's rheumatoid arthritis and referred her to her treating rheumatologist, Dr Nicola Cook "who injected the foot with local deposteroid, with a good effect". When reviewed on 9 January 2006 the plaintiff reported that she continued to experience "persistent neck soreness, stiffness and a heavy feeling in her head". At this time she had ceased taking Endep and was taking Nurofen on a regular basis. However, her hands and left foot pain were again prevalent and she had resumed a course of Prednisolone. On examination on 9 January 2006 Dr Beinart found that the plaintiff's "neck movements remained restricted and guarded with tenderness reported to the cervical spine". Dr Beinart advised the plaintiff "to remain as active as possible, to have appropriate rest and exercise and to apply local heat to her neck in the form of a hot water bottle and hot showers. She has been instructed on a series of neck stretches. She continues to take Nurofen on an as needed basis".
32 Dr Beinart's prognosis on 12 January 2006 was that:
"Ms Tsilivis has demonstrated her stoicism and willingness to remain in the workforce. Her condition remains fluctuant, prone to exacerbation and remains at times, physically limiting. The focus of management is to equip her with the understanding and skills to self manage her chronic conditions symptoms, which I expect will continue to recur for some time to come."
33 However, and in my view importantly, in his report of 12 January 2006 Dr Beinart said:
"Her arthritis, after being quiescent for some time, has recently flared up, resulting in her hand and foot symptoms. The stress of the injuries sustained in the motor vehicle accident is likely the precipitant of her flare-up."
34 The opinion expressed by Dr Beinart to the effect that the plaintiff's flare-up of her rheumatoid arthritis was "likely" to have been caused by the injuries sustained in the accident is instructive, and in my opinion colours the objectivity and independence of his evidence for the following reasons. This is because by letter dated 9 November 2005 he expressly asked Dr Cook, the plaintiff's treating rheumatologist since 2001, whether
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- the flare-up was related to the accident. By letter dated 15 November 2005 to Dr Beinart, Dr Cook advised him that in her opinion "it is really impossible to be sure and whilst it is possible, I think it is on balance unlikely" for the reason she then set out. It is noteworthy, in my view, that Dr Beinart expressed a contrary opinion in his letter to the plaintiff's solicitors and made no reference to the opinion of the plaintiff's own treating specialist, which he had sought and obtained.
35 In his report of 11 May 2006 to the plaintiff's solicitors, Dr Beinart says the plaintiff "continued to be reviewed on a near monthly basis. She continues to report neck pain, stiffness and headaches. She continues to experience symptoms in her hands and feet for which she is forced to take steroid medication intermittently". Dr Beinart records that the plaintiff reported her symptoms were aggravated "by long hours at work with her neck held in a flexed position doing computer work resulting in severe tiredness". I note that the complaint, as reported to Dr Beinart is one of "severe tiredness", not of neck or back pain which the plaintiff said was the reason for reducing her working week to four days in March 2006. If the complaint had been the latter then it is likely Dr Beinart would have suggested to the plaintiff that her employer should investigate the possible use of a headset given the cause of the symptoms, especially when the plaintiff's own evidence was that a large amount of the work of the practice was concerned with "workers' compensation injury management" and "corporate services".
36 By 11 May 2006 the plaintiff reported to Dr Beinart that she was experiencing fewer headaches and had not recently lost time from work due to her neck symptoms. On examination on 4 May 2006 Dr Beinart found that the plaintiff appeared to be "comfortable but continued to display a guarded, restricted range of neck movements with tenderness to palpation reported over the cervical paraspinal muscles". In his report Dr Beinart said:
"It is now a year post injury and it appears her condition has stabilized. Whiplash associated injuries such as that sustained by Ms Tsilivis tend to run a prolonged and fluctuating course, are prone to frequent exacerbations by stress (both physical and emotional). In my experience and opinion, it is not unusual for such symptoms to remain for 3 – 5 years post injury."
37 On this basis Dr Beinart expressed the opinion that he expected the plaintiff would have "recurrent fluctuations and persisting symptoms which may limit her work capacity for some time to come. Presently in
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- my opinion, she is fit to work full time in the capacity as a medical practice manager although I accept that at times she may require short periods of time away from work and may have to limit her time spent working at a personal computer" (emphasis added). At the time Dr Beinart was of the opinion that the plaintiff's condition had stabilised sufficiently so as to allow settlement of her legal proceedings.
38 Dr Beinart next reported on 8 February 2007. He confirmed that he continued to consult the plaintiff on a near monthly basis, although in cross-examination the point was made that the consultations were not all accident related. In his report Dr Beinart says:
"[S]he has continued to report symptoms relating to injury she sustained in the traffic accident. She consistently reported headaches and soreness between her shoulder blades. She reports her head feeling heavy and of her neck being stiff and sore. She reports particularly being frustrated by the fluctuating nature of her symptoms and the unpredictability particularly her headaches. Although she remains symptomatic, she has recognized that she just 'has to get on with it'."
39 Dr Beinart recorded that on examination on 3 January 2007 the plaintiff displayed "varying degrees of tenderness to the cervical spine as well as tenderness to the suboccipital areas, more pronounced on the left. She displays discomfort on extremes of neck rotation. There are tender muscle knots evident along the trapezius muscles bilaterally". He describes her treatment as applications of heat to her neck area (hot showers and a heat bag). The plaintiff also apparently, on this occasion, stated that she continues to "obtain symptomatic intermittent relief from deep tissue massages". She said she intermittently resorted to taking Oxazepam to assist with regulating her sleep pattern. Dr Beinart stressed to the plaintiff the importance of self-managing her condition through the use of appropriate rest, exercise and medication, which was also the same advice she was given in respect of her rheumatoid arthritis. Dr Beinart notes in his report:
"Presently she manages to attend work on a regular basis, working four days per week and it is my opinion that her work capacity is compromised and will remain so for the foreseeable future.
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- I would encourage her to continue to limit time remaining seated at her personal PC and to take appropriate and frequent rest breaks and to be at all times to be seated ergonomically."
40 In cross-examination Dr Beinart said he did not know that although the plaintiff was working four days per week she was in effect working five days per week by reason of the additional hours worked.
41 Dr Beinart's final report is dated 23 May 2007. He notes that:
"She has continued to attend on a near monthly basis, to report persisting recurring neck pain and stiffness of fluctuating nature. She also reports experiencing headaches. This appears to be brought on at work.
Her rheumatoid symptoms have largely settled. She is presently taking no medication."
42 Dr Beinart noted that on 17 May 2007 that the plaintiff presented in an emotional and distressed state, stating she was "coping, just – only because I have to" and that she was still experiencing fluctuant neck pain and stiffness. On examination on 17 May 2007 Dr Beinart noted that:
"[S]he displayed significant stiffness in her neck with tender muscle knots evident along her trapezius muscles, more pronounced on the right.
It was evident at that time she was suffering from anxiety and was prescribed Lorazepam to take 1 mg twice a day as well as Prexige 200mgs per day."
43 On examination on 22 May 2007 Dr Beinart found the plaintiff was "far more emotionally settled although reporting she was still unable to sleep. She stated her neck remained stiff but was experiencing fewer headaches". Dr Beinart advised the plaintiff's solicitors that in his opinion she was limited in her ability to work and that the fluctuating nature of her condition makes the extent of the disability difficult to quantify. However, he was of the opinion that she is fit and has demonstrated a capacity to work on a full-time basis in a clerical capacity but not to undertake work of a physical nature such as filing medical records. His opinion is that the plaintiff will remain physically limited for 3 - 5 years post accident. He is also of the opinion that "she is fit to return to work of a clerical nature but that she should be ergonomically seated at all times, allowed frequent and appropriate rest breaks and to stretch
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- regularly. She is not fit to undertake filing, particularly working above shoulder height". In short, in his opinion, she is not fit to undertake work of a physical nature. In this regard, in his opinion, she has sustained physical residual disabilities as a result of the motor vehicle injuries which he considers "for the foreseeable future" to be "a 10% loss of full and efficient use of her cervical and thoracic spine". In his opinion her injury is of mild severity. Dr Beinart also believes it is appropriate that she attend her primary care practitioner on a monthly basis for assessment and provision of medication. In his opinion she will require anti-inflammatory medication on an intermittent basis but physiotherapy is not necessary. His view is that her medical costs will amount to $250 per month.
Dr Andrew Harper
44 Dr Harper is an occupational physician and reviewed the plaintiff on two occasions, namely 30 May 2006 and 23 May 2007.
45 In his first report dated 30 May 2006 Dr Harper says the plaintiff told him she developed pain and stiffness in her neck and upper back on the evening of the accident, and that "within 3 - 4 weeks of the accident she developed pain, stiffness and swelling in her left foot due to a flare-up in her rheumatoid arthritis". When reviewed the plaintiff was taking Endep at night, Nurofen and medication for her rheumatoid arthritis, which she said she took intermittently. He also noted that she was playing netball once a week and coached children's netball weekly, although according to the plaintiff's own evidence she had coached at an earlier time. The plaintiff was not receiving physiotherapy and she saw her family doctor monthly. Dr Harper noted the plaintiff had been seen by Dr Cook once since the motor vehicle accident and that there was no planned review. He noted that she described her current symptoms as upper back pain and stiffness and that she experienced pain in the trapezius muscles bilaterally. He recorded:
"Pain is burning with a severity of 6-7/10. Pain occurs 3-4 times per week but may last 1-2 days. Aggravating factors are changes in weather, being really busy at work, stress, intense computer work, long hours of work and static postures such as holding a telephone with her head tilted. She gets relief from medication, massage, heat and rest. Pain spreads to her neck and to the middle back. Despite symptoms, she continues to work."
46 In relation to headache Dr Harper noted that the plaintiff said her headaches began in her neck and spread to the forehead and temples
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- bilaterally. Pain was described by the plaintiff as throbbing and sometimes associated with nausea. She reported to Dr Harper that the pain in her neck and between her shoulder blades occurred as an extension of her upper back pain. Dr Harper noted that the plaintiff said she was experiencing a lot of "pain, swelling and stiffness" in her foot and hand joints. In particular she was unable at the time to fully flex the left little finger and the right thumb. She also limped intermittently due to her foot symptoms. Dr Harper noted that the plaintiff's upper back symptoms had been stable for the preceding six months, and that the joint symptoms in her hands and foot had continued without significant change from the time of their onset, three to four weeks after the motor vehicle accident.
47 The plaintiff told Dr Harper that prior to the accident her health was "really good" and that she experienced migraines "once every 8-10 months". It is important to note that Dr Harper's opinion was based, in part, on the fact that the plaintiff told him that prior to the motor vehicle accident she had been free of neck and upper back pain, and particularly, that she had been free of any hand and foot symptoms due to her rheumatoid arthritis for a period of four years.
48 On examination on 30 May 2006 Dr Harper found that the plaintiff had normal movements except that her neck movement was slightly reduced with forward flexion being 50 - 75 per cent of normal. He also found that there was a slight reduction in both side flexion and rotation but that neck extension was within normal limits. He found there was tenderness along the length of the cervical spine and along the length of the left side of the neck extending into the trapezius muscle. He found there was some right side of neck tenderness and tenderness in the right trapezius and along the medial border of the left scapula. He also noted on examination that there was some swelling, tenderness and stiffness of the hands and left foot.
49 Based on the history given to him by the plaintiff and his clinical examination Dr Harper was of the opinion that the plaintiff had "sustained strain injuries to the cervical and upper thoracic spine with an exacerbation in her pre-existing rheumatoid arthritis" which he considered "may be the result of the accident". Dr Harper expressed the view that her current work capacity was reduced to some degree and that he would advise against occupations such as a sales assistant due to the standing, driving or any manual occupation. He was also of the opinion that she could expect improvement in her future work capacity which he thought might be compromised as a result of the accident for a further one to two years.
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50 Dr Harper did not attempt to differentiate any incapacity that might have been attributable to the plaintiff's rheumatoid arthritis. Dr Harper was of the opinion that the plaintiff's injury would not result in premature retirement, but that the restrictions would limit her competitiveness in the open workforce to some degree. However, in his opinion in May 2006, he said the plaintiff's condition had stabilized, by which I understand he meant it was unlikely to deteriorate, and that there was no reason why the plaintiff's claim could not be finalized (he was of the same opinion when he saw the plaintiff one year later in May 2007). His recommended treatment was to avoid aggravating activities including stress. He recommended regular exercise in the form of hydrotherapy and pool exercises and suggested she would require further follow-up with her family doctor. He did not express any view on the plaintiff playing netball, especially given her rheumatoid symptoms in hands and feet. It is noteworthy that the plaintiff did not undertake any remediation of a hydrotherapy nature, which Dr Harper noted in his second report 12 months later.
51 Dr Harper reviewed the plaintiff on 23 May 2007. In his report dated 23 May 2007 he noted that the plaintiff had resumed medication for her rheumatoid arthritis. She also had received two injections to her left foot and had continued Mobic and Nurofen, and medication to sleep. On 23 May 2007 the plaintiff said her current treatment was Atavan, Prexige, Mobic, Nexium and Panadol. Dr Harper noted that the plaintiff's medication for rheumatoid arthritis was discontinued in February 2007 but he does not say whether this was the plaintiff's own decision or that of her medical practitioners. In my opinion, having heard the evidence of Dr Cook about the importance of patients with rheumatoid arthritis managing their condition with medication, and having read her report of 22 January 2007 which states that the plaintiff was still using Arava, it is likely the plaintiff has made this decision herself. In cross-examination the plaintiff was not asked if she was currently using any medication for her rheumatoid arthritis.
52 On 23 May 2007 the plaintiff told Dr Harper she was getting upper back pain occurring "3 or 4 times a week continuing for 1 – 2 days", headache (now less frequent occurring once a month but lasting 1 - 2 days), neck and mid-back pain. The plaintiff said that she had experienced pain in her right wrist and tingling in her fingers during the day and also in the right foot. She told Dr Harper that she had been emotionally upset "for the last two months feeling frustrated over what she cannot do and also feeling angry about this". Dr Harper noted, based
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- on what the plaintiff told him, that at present she is feeling 70 per cent better in this regard than she was the previous week.
53 On examination on 23 May 2007 Dr Harper found that the plaintiff:
"[W]as not in any physical distress, but she was tearful in the latter part of the consultation. Her posture was good. Her agility and gait were normal. She sat through the interview without apparent discomfort. On examination of the lumbar spine there was some tenderness over the fourth lumbar spine, but otherwise this aspect of the examination was normal. Shoulder movements were unrestricted. Neck movement was slightly reduced in rotation and flexion. There was tenderness on both sides of her neck extending into the trapezius muscles and there was tenderness along the length of the cervical spine into the proximal thoracic spine to the level of T3. On examination of the left hand there was notable swelling over the proximal interphalangeal joint of the 5th finger but no tenderness. The joint was stiff. There was slight swelling over the PIP joint of the middle finger of the left hand. There was some tenderness over the dorsum of the wrist in the right hand."
54 In his report of 23 May 2007 Dr Harper confirmed his initial opinion that the plaintiff sustained a strain injury to the cervical and upper thoracic spine as a result of the motor vehicle accident. He opined that:
"Her pre-existing rheumatoid arthritis was exacerbated having been dormant for the preceding 4 years. The exacerbation of rheumatoid affected her left foot and is now affecting both hands and possibly the right elbow. In the past her rheumatoid has affected, feet, knees, wrists and elbows, but she has not previously had upper back or neck symptoms."
55 In his opinion the plaintiff's work capacity is affected by the neck and upper back symptoms although she is capable of full-time work as a practice manager within the limits of restrictions which he described as "reception work combined with filing and the stress which goes with this type of job in a busy practice". In his opinion she remains unfit for work as a sales assistant, driver or manual worker. In his opinion her work capacity "may" continue to be restricted for a further one to two years (which was the same opinion he expressed in May 2006). The restrictions which he believes are current include prolonged sitting, prolonged computer work, prolonged static postures, squatting, prolonged standing
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- and stress. In his opinion these restrictions will reduce her competitiveness in the open workforce and limit the range of occupations open to her to some degree. He does not expect her injuries to cause premature retirement and believes that her condition is sufficiently stable to finalise her claim. In his opinion the residual disability from the motor vehicle accident affecting the neck and proximal thoracic spine is "mild". He considers her emotional disability to be mild and that she has a mild disability from her rheumatoid arthritis which affects both hands. However, he maintained in his report that the exacerbation of the plaintiff's rheumatoid arthritis was attributable to the motor vehicle accident on the basis it was previously in remission for a period of four years (which was not the fact).
56 In summary, Dr Harper's opinion is that the plaintiff suffered a mild strain injury to her cervical and upper thoracic spine, which has resulted in a mild residual disability and that her work capacity may be affected for a further one to two years. He also says the plaintiff has a mild disability as a result of the exacerbation of her previously dormant rheumatoid arthritis.
57 In cross-examination Dr Harper confirmed that he had been told by the plaintiff that she had been free of any symptoms relating to her rheumatoid arthritis for a period of four years prior to the recurrence which occurred after the motor vehicle accident. He regarded this period as "a reasonably long time" and relied upon this information for his opinion that the motor vehicle accident was likely to have caused the recurrence of the rheumatoid arthritis symptoms shortly after the accident. However, Dr Harper accepted that rheumatoid arthritis can flare up spontaneously and maintained that it was the "close proximity to the accident" which caused him to believe there was a nexus. He accepted that current medical science did not know the cause of the disease. It must be remembered that the plaintiff told Dr Harper in May 2006 that the flare-up of her rheumatoid arthritis occurred within three to four weeks after the accident – which, as I have found, was not the case. Dr Harper accepted that the likelihood of the connection was more remote if the plaintiff was in fact not symptom free from her rheumatoid arthritis in the preceding four years prior to the accident. Also Dr Harper conceded in cross-examination that he was not aware that there was a high incidence of recurrence of rheumatoid arthritis following cessation of medication.
58 During cross-examination Dr Harper accepted that he could only "partially" attribute the plaintiff's headaches to the motor vehicle accident
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- to the extent that they occurred after the accident if, as a fact, they had occurred prior to the accident. He also accepted in cross-examination that he had not been aware that the plaintiff had maintained the same number of working hours although she had reduced her attendance to a nine-day fortnight. The revelation of this factor was something which he said he would "weigh up" in the demonstrated capacity as opposed to her actual capacity to perform her work duties. Dr Harper accepted that stress with respect to her work duties and care for her husband at home could cause her rheumatoid arthritis to "flare up", and that he would defer to the relevant specialists on matters of this kind. Dr Harper was also, in expressing his opinions in his 2007 report unaware that the plaintiff had consulted an ergonomist in relation to her work environment prior to the accident. Otherwise, as an occupational physician, in my opinion it is likely he would have queried her statement to him in 2006 that her symptoms were aggravated by "static postures such as holding a telephone with her head tilted". Dr Harper was unaware of the plaintiff's rheumatoid arthritis symptoms in her wrist in the months immediately prior to the motor vehicle accident arising.
59 In re-examination, Dr Harper suggested that it was "most likely, very likely" that the headaches could be attributed to the motor vehicle accident if they became more frequent and longer after the accident. He said in injuries of this type "muscle tension headaches" were common and it was normal symptomology. At the same time in response to counsel for the defendant Dr Harper said headaches are themselves a symptom of migraine headaches and the latter can last up to three days.
60 Dr Harper is a very experienced occupational physician. In my view, some of the opinions he expressed were heavily dependant on the information given to him by the plaintiff. For example, in relation to work capacity his opinion is likely to have been based on an acceptance that the plaintiff was unable to work a full week – the evidence is that he was not aware of the additional hours being worked by the plaintiff. Clearly, the opinion stated by Dr Harper that the plaintiff's flare-up of her rheumatoid arthritis was due to the accident was based on his understanding that she was symptom free for the four years preceding the accident, and that it occurred only three to four weeks after the accident. This history was incorrect, unbeknown to him at the time he wrote his reports.
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Dr Brian Galton-Fenzi
61 Dr Galton-Fenzi is an experienced occupational physician. He has practised in this speciality for 21 years, having qualified as a medical practitioner 28 years ago. Dr Galton-Fenzi prepared three medical reports dated 23 June 2005, 31 July 2005 and 17 May 2007 at the request of the plaintiff's solicitors. He first saw the plaintiff professionally on 23 June 2005. The last occasion was on 17 May 2007. He is a specialist occupational physician and is particularly concerned with muscular skeletal problems and has a special interest in pain management.
62 In his report of 23 June 2005 Dr Galton-Fenzi noted that the plaintiff "stated that she had right upper neck 'numbness' which radiates across the side of her head to behind her eye when she presses over the suboccipital area". He also reported that she experiences "stiffness and heaviness" in the upper right blade area (the trapezii muscles) which is constant in its presence. He said:
"… she had experienced 'numbness' that radiated through to the right upper arm, but that had since settled. Other concerns reported were the onset of 'frontal headaches' which she manages with Nurofen. On critical assessment Dr Galton-Fenzi reported that the plaintiff's cervical spine exhibited a near-normal range of movement on all planes. However, with right sided rotation there was stated 'pulling' ipsilaterally.
On palpation there was stated tenderness over the right cervical C2/3 and to a lesser degree in the midline at cervical levels C3/4 and C5/6 and mildly over the right levator scapulae myotendinous junction with the right scapulae. There was no current tenderness over the greater occipital nerve or in the trapezius muscles.
Examination of the shoulders and upper limbs are entirely normal, although there was stated discomfort in the right upper arm with full elevation and internal rotation of this limb."
63 Based on his examination of the plaintiff on 23 June 2005 Dr Galton-Fenzi expressed the opinion that the plaintiff was experiencing "a whiplash associated disorder reflected in a right cervical C2/3 facet joint sprain and probably the development of a mild occipital neuralgia and localised pain sensitisation involving the posterior aspect of the right shoulder region (dominant limb)". At the time he prescribed 50 milligrams Tramadol (an analgesic which the plaintiff could use
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- because she was unable to take Codeine). He also suggested the use of Amitriptyline before going to bed (used in low levels to manage pain and to encourage better sleep). Dr Galton-Fenzi was of the opinion that the deep tissue massage was aggravating the right occipital nerve and this sensitised neuralgia should be deterred as it was the likely cause of the "shooting pains" which the plaintiff claimed she was experiencing on the right side of her temple.
64 Dr Galton-Fenzi prepared a further report dated 31 July 2005 in response to specific questions asked of him by the plaintiff's solicitors. It is not clear whether he reviewed the plaintiff again for the purpose of preparing this report or to what extent, if any, he relied upon his own observations of her in the same workplace. He expressed the opinion that her work capacity following the accident "has been compromised to some degree" as the plaintiff continues to take time off work due to headaches (although the last time taken off was 15 July 2005). Dr Galton-Fenzi considered it was significant that the plaintiff had experienced similar "whiplash" symptoms for a period of about two years following a motor vehicle accident 16 years ago. In his opinion this incident was likely to have resulted in an ongoing pain syndrome involving neurogenic sensitisation which he described as increasing the ability of the person to feel pain more readily than would otherwise have been the case. He warned against the plaintiff having extended periods in static positions at a computer keyboard, particularly whilst using a computer "mouse" and also against lifting awkward items, especially above shoulder height which he considered would likely precipitate her symptoms. His opinion at 31 July 2005 was that "her current job remains the most appropriate in regards to the minimising of aggravations. She is in a supervisory role and therefore can manage the tasks of the reception area by delegating when appropriate". In his opinion there was no risk that the plaintiff would have to retire prematurely from the workforce because of her accident injuries. He also considered the plaintiff's condition had stabilised sufficiently to allow finalisation of her claim but noted that in his opinion her symptoms would continue for at least another three years on the basis that there would be slow improvement in terms of severity and frequency of occurrence over this time.
65 On examination on 17 May 2007 Dr Galton-Fenzi noted that the plaintiff stated that she continues to experience "lower neck and upper shoulder stiffness with discomfort extending towards her right shoulder blade particularly when turning her head". She also reported that she continues with headaches which extend from the base of her skull at the back (occipital area) which radiate forwards to her forehead. These were
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- reported to occur intermittently, however he did not note the frequency. The plaintiff also told Dr Galton-Fenzi that in the preceding month she had experienced "numbness" in the fingertips of both her hands. This was apparently most evident on waking in the morning and was reported to continue to at least the mid-morning. He observed that she was able to move flexibly without apparent discomfort. In his opinion her cervical spine movements were acceptable on all planes even though she indicated that she experienced right levator scapulae tightness when she extended her neck bilateral flexion to the right and when she did a right rotation. He found there was no obvious pathology on his assessment of her shoulders and upper limbs. However, he noted she is right handed and said "interestingly there is some reduced movements with external rotation in the left shoulder which is not associated with the medical condition in question. There was no discomfort with these movements although an indication that the right levator scapulae region could be affected by movement of the shoulder's joint".
66 Dr Galton-Fenzi observed that on palpation there was stated mild tenderness over the right levator scapulae myotendinous junction with the superiomedial border of the right scapular; over the right greater rhomboidious muscle; and over the right great occipital nerve at the base of the skull. On this basis, in formulating the nature and extent of the plaintiff's injuries Dr Galton-Fenzi was of the opinion that "she continues to exhibit evidence for a continuation of her whiplash associated disorder with an ongoing intermittent occipital neuralgia and increased pain sensitisation of the right levator scapulae and rhomboidious muscles".
67 In his opinion in order for the plaintiff to continue to work full-time in her role as a medical practice manager she would need to continue with "mild analgesics and intermittent anti-inflammatory medications to ensure that the symptoms do not become too dominant". Notwithstanding this he thought it likely that over the next 18 months to two years the plaintiff may require time off to manage her cervicogenic headaches and generalised neck symptoms. In his opinion the plaintiff should avoid tasks requiring fixed and static positions, particularly in front of a computer unless regular changes of position are possible and activity breaks and alternative duties are interposed. In his opinion the plaintiff was able to undertake her current duties as a medical practice manager but he expected her when under pressure to experience increased symptoms which would need to be managed to avoid exacerbation. When asked about physical residual disabilities Dr Galton-Fenzi explained that the increased sensitisation of the region due to neurogenic (neuropathic) pain is not assessable using current conventional investigations and therefore it
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- accident. For the reasons given the Court is not so satisfied and therefore the amounts of any medication obtained Dallimore's Pharmacy which relate to medication for rheumatoid arthritis must be deducted. For this purpose I am prepared to allow the plaintiff to recover the cost of Nurofen because although the evidence suggests it might have been taken in respect of her rheumatoid arthritis condition it was also prescribed by Dr Beinart to assist the plaintiff to manage her headaches. On this basis the following amounts must be deducted from the plaintiff's claim for special damages: $22.20 (4 May 2006), $30.70 (25 July 2006), $30.70 (15 August 2006), $29.50 (19 September 2006), $30.70 (19 September 2006) and $30.70 (26 October 2006). I allow the two amounts of $50 and $275 which appear to relate to remedial massages which in my opinion are attributable to the plaintiff's accident injuries. The plaintiff claims the sum of $1,077 in respect of invoices received from Gemini Medical Services. Of this amount the plaintiff accepts that $880 needs to be deducted because it relates to the costs of obtaining a medical report. The balance of the claim appears to relate to a review by Dr Beinart of the plaintiff on 17 May 2007. I have considered Dr Beinart's report dated 23 May 2007 and in my opinion the purpose of the review was primarily to prepare a legal medical report for these proceedings as opposed to treatment of the plaintiff. For this reason it is not allowed. Finally, there is a claim for $143 in respect of Dr Cook but in view of my finding that the rheumatoid arthritis flare-up is unrelated to the accident this is not properly claimable as a special damage.
142 For these reasons the total amount of the outstanding special damages for which the plaintiff is entitled to an award is $433.45.
Conclusion
143 The total of the award of damages which the plaintiff is entitled to is $19,269.54. Recognising that assessments of this sort cannot be precise I round the amount up to $20,000.
144 For this reasons I assess and award the plaintiff damages in the total sum of $20,000.
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