Waller v Transport Accident Commission
[2016] VCC 1472
•29 September 2016
| IN THE COUNTY COURT OF VICTORIA AT BENDIGO COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-15-05330
| ALAN GEORGE WALLER | Plaintiff |
| v | |
| TRANSPORT ACCIDENT COMMISSION | Defendant |
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JUDGE: | HIS HONOUR JUDGE JORDAN | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | 27 and 28 September 2016 | |
DATE OF SENTENCE: | 29 September 2016 | |
CASE MAY BE CITED AS: | Waller v Transport Accident Commission | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 1472 | |
REASONS FOR JUDGMENT
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Subject: TRANSPORT ACCIDENT
Catchwords: Serious injury application – right shoulder impairment with pain extending into the neck – psychiatric condition
Legislation Cited: Transport Accident Act 1986, s93
Cases Cited:Kelso v Tatiara Meats (2007) 17 VR 592; Haden Engineering v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Aburrow v Network Personnel and WorkSafe Victoria [2013] VSCA 46
Sentence: Leave granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J H Mighell QC with Mr D J N Purcell | Arnold Dallas McPherson |
| For the Accused | Mr W R Middleton QC with Mr R Kumar | Solicitor to the Transport Accident Commission |
HIS HONOUR:
1 This case concerns a transport accident on 5 August 2010. It is a good example of the perennial problem faced by the Court in this jurisdiction. Findings on the medical issues have to be made virtually without ever hearing from a doctor. Brief reports, outdated reports, scant clinical notes, short letters and sometimes hard-to-understand medical opinions, are part and parcel of the material before the Court in this case.
2 The plaintiff has tendered twenty-five medical reports or letters. The defendant has tendered another seven, and that includes a set of clinical notes.[1] None of the authors have been called, so no explanation of their opinions is given, nor any elaboration of the path of reasoning. In the end, I must decide whether leave should be given after only hearing oral evidence from the plaintiff.
[1]Exhibit C and exhibit 1
3 In this application, there is virtually unanimous acceptance of a complaint of shoulder pain extending to the neck. That complaint has been made by the plaintiff from the outset, and it continues. The debate is as to the cause of that pain now, even though there seems to be general acceptance initially, at least, that a soft-tissue strain was suffered in the transport accident. I have to determine whether the plaintiff has discharged the onus of proving a “serious injury” on the probabilities. The defendant submitted the evidence is not sufficiently clear to enable a finding of “serious injury”.
4 It is worth setting out in a little more detail than usual, this man’s life and history prior to the subject accident that occurred over six years ago. It is also worth noting the contrast in his life since that accident.
5 The plaintiff is a man turning forty-nine years next month. He is an uneducated man whose last completed year at school was only Year 9. In spite of this very limited formal education for an English-speaking person, he has had an excellent work record. That record has involved mostly unskilled jobs in different states of Australia. Clearly, some of that work was heavy and at times in harsh environments. The only really skilled position he obtained was after completion of an apprenticeship in his thirties. The apprenticeship was in heavy commercial vehicle mechanics and this led him to work in the mines in outback Western Australia.
6 Predominantly, the plaintiff’s work has been in unskilled positions. In no particular order, his work career for fourteen years or so after leaving school was in factory work, roof tiling, as a spray painter assistant and farm labouring. He was then a stockman in outback Queensland. Then, it was back to a potato factory as a storeman and forklift driver for a couple of years. Factory work in a paint factory followed. Stockman work again was undertaken before working in a bike shop. He then did the apprenticeship already mentioned. Work in the Western Australian mines followed for some four years before moving back to Victoria. He then worked in an abattoir. An emu abattoir job then followed and after that he worked in a piggery. A mushroom farm was his next employment.
7 The plaintiff then became a casual employee working on the roads for Loddon Shire Council in Central Victoria. He impressed the Shire enough that after a probationary period, he was made a permanent employee of the Shire. He performed a mixture of duties as a road-patrol man on country roads in rural Victoria. The plaintiff is a very poor historian as to dates, but it seems he was a permanent Shire employee for several years.
8 The evidence showed a solid income for an unskilled man in regular work. Just looking at the recent years, between 2005 and 2010, his gross income ranged generally between about $40,000 per annum up to over $80,000 per annum.[2] The $80,000 or more was when he was working in outback Western Australian mines. The figure of $43,595 in 2009-2010 represented the last full year with the Shire, immediately prior to being injured.
[2]Exhibit B
9 What was also clear from the evidence is that he had nothing other than minor illnesses that saw him go to the doctor pre-accident.[3] In particular, there is no evidence or suggestion of any relevant pre-existing right shoulder or neck problems in the past. I mention this work record in some detail because after what was a major road accident on 5 August 2010, that excellent work record has, in effect, permanently ended.
[3]Plaintiff’s Court Book (“PCB”) 60
10 On that day, the plaintiff was a passenger in a work truck when the driver lost control. The truck went over an embankment and rolled. Within minutes the plaintiff developed pain in his dominant right shoulder and in the area adjoining the neck. From then on, until his job was terminated in 2012, he was on incapacity certificates continuously over the next two or so years. He was never cleared for full-time unrestricted duties.[4]
[4]Exhibit A
11 Right shoulder impairment with pain extending into the neck is the subject of the paragraph (a) s93 Transport Accident Act 1986 application before me for leave. There is also an application pursuant to paragraph (c) for a psychiatric condition.
12 After some time off work and a return to the light or modified duties, the plaintiff was told, in February 2012, there were no more modified duties for him at the Shire.[5] His employment was formally ended in October 2012.
[5]PCB 10
13 Prior to the accident, he followed a rural lifestyle. As well as the outdoor Shire work, he enjoyed the active rural pursuits of fishing, archery, gold detecting and cutting his own firewood, as well as other outdoor interests.[6] He lived on a 10-acre farm at Wedderburn, with a range of farm animals he looked after. After the accident, he struggled to maintain the property. I accept the uncontested evidence that prior to his being injured, he was an extremely active man, pursuing a lot of physical interests.[7]
[6]PCB 8
[7]PCB 8-9
14 In 2013, the plaintiff moved to Nanango in rural Queensland.[8] He has been there ever since. He has been unemployed since leaving the Loddon Shire job.
[8]PCB 11
15 I will outline the plaintiff’s treatment journey. He underwent a number of treatment options for the right shoulder condition in Victoria. Initially, he was taken to a doctor and then to the Boort Hospital. He then consulted his own general practitioner, Dr S Issa, within twenty-four hours or so of the accident. That doctor prescribed medication for the shoulder problem and certificates off all duties and, then, later certificates for modified or alternative duties only.[9]
[9]Exhibit A
16 The plaintiff did return to work after the initial period off work, but was unable to cope with pain. For eight months he underwent physiotherapy, but the pain persisted. I will deal more specifically with Dr Issa’s reports later.
17 The plaintiff was then referred to an orthopaedic surgeon, Mr P Burns, in Melbourne. He first saw the plaintiff on 9 November 2010. The surgeon found tenderness in and around the scapula, and an ultrasound reported evidence of supraspinatus tenderness.[10] Mr Burns considered the plaintiff was involved in a significant accident, but there was no bony injury. He diagnosed a soft-tissue problem in and around the scapula, suggesting the pain was of myofascial origin. Obviously surgery was not an option and he advised massage and a stretching and strengthening program that would hopefully see symptoms resolve over time.
[10]PCB 67
18 The plaintiff continued to struggle at work, especially with the driving and lifting. These activities aggravated shoulder pain and they would clearly be part of his duties on the roads in country regions. The situation did not improve. Mentally it was having an effect, and he was referred to a counsellor in late 2010 for tearfulness and depression. Without hearing from Mr Burns, I read his report as describing an organic shoulder injury causing pain.[11]
[11]PCB 67
19 On 7 January 2011, the plaintiff was referred to a second specialist. This was Mr H Williams, orthopaedic surgeon. Further investigations were ordered. Myotherapy was advised, but the myotherapist only visited Wedderburn once per month. Due to that, the plaintiff had further physiotherapy instead of the myotherapy. The shoulder pain persisted. Mr Williams also diagnosed a Myofascial Syndrome affecting the right shoulder.[12] I do not need evidence to tell me that fascia is the soft tissue lining of the muscles in the human body.
[12]PCB 17-18
20 The plaintiff was under pressure at work and his supervisor was clearly unhappy with him being on modified duties. He was continually given work outside his medical certificates and restrictions.[13] His usual drive to work was 46 kilometres each way. This was also a significant problem for him. Depression developed against a background of the persisting shoulder pain. Multiple cortisone injections were administered and medication had been prescribed. Lyrica had been ordered by Mr Williams. It is worth noting that Mr Williams had reported muscle spasms as well as severe pains.[14] I infer muscle spasms recorded by an orthopaedic surgeon as an objective sign of a physical problem in the shoulder.
[13]PCB 10
[14]PCB 18
21 Mr Williams described his plaintiff’s condition as presenting a:
“… complex problem with a myofascial syndrome, leading to a chronic pain and muscular dysfunction.”[15]
[15]PCB 17
22 I accept that diagnosis as a description of pain that is of physical origin. The Lyrica did help initially, but in time it became less effective. Muscle spasm and bouts of severe pain were still experienced.
23 A physiotherapy report covers attendances in Bendigo between July 2011 and February 2012.[16] It is now out of date, but clearly the treatment was for a “constant chronic pain” from the whiplash injury with associated muscle spasm, and myofascial pain to the neck and right shoulder regions.[17]
[16]PCB 61-62
[17]PCB 61
24 Since moving to Queensland, the plaintiff has continued to see a couple of general practitioners for continuing prescriptions for which he obtains repeats. No other active treatment is ongoing. I accept the shoulder pain remains and extends into the neck area. I also accept his evidence that:
“The pain is almost constant, with occasional short breaks and a mild to moderate intensity, becoming severe when aggravated by activity, especially continuous activity and lifting.”[18]
[18]PCB 11
25 Over the years it has not really changed. Those years are now upwards of six.
26 The first general practitioner the plaintiff saw in Queensland was Dr M Isbel at Inala; it is a suburb of Brisbane two or more hours from Nanango. Inala is where his mother lives. He first saw Dr Isbel on 31 January 2014. Dr Isbel took a history of the right shoulder area, being the principal problem. He reported:
“… the right shoulder area as the only ongoing injury following the MVA.”[19]
[19]PCB 65
27 The plaintiff told the general practitioner he thought it was a Complex Regional Pain Syndrome that he had, but that does not seem to be accurate on the medical evidence.
28 Although it is understandable that this relatively simple man might think that, as doctors have discussed that diagnosis, as well as “Chronic Pain Syndrome”, he, as a layman, could easily understand this was his diagnosed problem. After hearing the plaintiff, that sort of misunderstanding is highly probable, given his limited comprehension, at times, of even straightforward questions in Court.
29 The Queensland doctor recorded there had been a lack of response to physical therapy and that benefit was obtained from Lyrica, 300 milligrams twice daily, that is, 600 milligrams total per day. A dose of 600 milligrams is the maximum end of the manufacturer’s recommendation as to the daily range of ingestion of Lyrica. The doctor also noted the plaintiff had depressive symptoms related to the accident and the “subsequent chronic pain issues” I accept this brief opinion as basically accurate, in that the chronic pain, which I find has an organic basis, has led to an unfortunate mental reaction that includes depression. This September 2015 report does not say how often the plaintiff has attended this practice in Brisbane, except to say he first came in on 31 January 2014 and the last time he attended at the time of the report was 20 July 2015.
30 Some clinical notes indicate the plaintiff saw another Queensland general practitioner, Dr Robinson, in Nanango. He first saw him on 7 April 2014. Caution has often been expressed about placing too much emphasis on brief computer-driven clinical notes. They could not possibly record all that was said between doctor and patient. They contain so few words that an entire entry can be read in about ten seconds or less. Nevertheless, on that first date, the general practitioner’s notes simply recorded:
“Has neuropathic pain from truck rollover in 2010.”[20]
[20]Defendant’s Court Book (“DCB”) 1
31 There are other entries in 2014 and 2015, and even briefer notations than the one quoted. Prescriptions were given from time to time. I note, on 30 May 2014, “spasm in muscles” recorded, but nothing much else by the doctor. These notes of attendances are so brief that they are virtually non-existent, except for recording an attendance and some prescriptions. They seem to indicate, though, a physical problem, and medication for same in the neck and shoulder region. The doctor, at times, prescribed three medications, and medications included Lyrica.[21]
[21]DCB 1
32 As to present treatment, on the medical evidence, there is really no treatment that is advised. The plaintiff continues on prescription medication, wears a soft collar at times, and generally avoids physical activity that aggravates the shoulder-neck pain. The plaintiff also said:
“If I am having a bad day I lie down and do not do much at all.”[22]
[22]PCB 15
33 I accept the plaintiff’s shoulder pain extending into the neck reaches that level of severity at times. Over the years since the injury was sustained, I also accept his recent statement:
“What has not changed is the level of pain.”[23]
[23]PCB 16
34 I find, on the probabilities, that the plaintiff still suffers permanent right shoulder pain each day, extending to the neck, and still requires medication for that pain. It is a physically-based pain. I do not need to quote the well-established authorities that point to the presence of such daily pain requiring frequent medication as raising a real prospect of a “very considerable” consequence flowing from an impairment of a body function.[24]
[24]See Kelso v Tatiara Meats (2007) 17 VR 592; Haden Engineering v McKinnon (2010) 31 VR 1; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Aburrow v Network Personnel and WorkSafe Victoria [2013] VSCA 46 and other cases.
35 I should say, I have had the considerable advantage of both hearing and observing the plaintiff give evidence over two days. He is a very simple, unsophisticated man who struggled often to understand even basic questions and, generally, the Court process. He had real difficulty following the written word. Often he was even on the wrong page until that was pointed out to him.
36 No doctor really called his genuineness into question in this case. What was called into question, and was the central debate, was the diagnosis in regards to his complaints of shoulder pain going into the neck that almost every doctor considered chronic.
37 I also had no reason to doubt the plaintiff’s genuineness. He was a compliant witness who agreed with suggestions, often quite readily, that were against his interest. As to some facts, his memory was poor. He clearly got things wrong about dates and doctors for example. However, I had no cause to doubt his truthfulness.
38 The plaintiff was reliable, in my view, about a constant pain over the last six years. In Court, he repeatedly pointed to and held his right shoulder, usually around the scapula and on top of the shoulder towards the neck, in describing the major site of his pain.
39 I accept the plaintiff’s evidence that pain is still ongoing and, apart from Lyrica helping somewhat, he has basically not changed over the years. The plaintiff candidly admitted he drinks large amounts of alcohol daily, but “… it is the lowest beer you can get”.[25]
[25]Transcript 83
40 The plaintiff was also forthright about use of cannabis in the past. On the evidence, he probably always has been a regular drinker, but I am satisfied alcohol never hindered or got in the way of his demonstrated work capacity for full-time heavy work over many years prior to the transport accident. On the evidence, alcohol has been consumed in larger amounts since being injured and the plaintiff being on his own, that is, after the accident.[26]
[26]PCB 16
41 The medical reports in this application are copious. They range from reports obtained for WorkCover insurance purposes due to the transport accident occurring in the course of employment, to treaters, to medico-legal opinions requested by both the plaintiff’s solicitors as well as the Transport Accident Commission’ solicitors in regards to this application.
42 I will generally deal with them in the order of treaters and then, roughly, in the chronological order of medico-legal opinions obtained for WorkCover purposes, or for this application against the Transport Accident Commission.
43 Turning to the treaters, I have already made some comments in regard to those doctors.
44 Dr Issa did not see the plaintiff after he left for Queensland in 2013, except for one consultation in July 2016 when the plaintiff was back in Victoria. This general practitioner had given continuous incapacity certificates for two years as unfit for any duties or for only modified or alternative duties. At this return consultation on 6 July 2016, the plaintiff described a list of pain complaints over a large number of areas of the upper body, including the spine, both limbs, and into the hands.[27]
[27]PCB 59
45 Complaints of pain had obviously spread to all sorts of areas not previously noted by the general practitioner in the earlier years. Nevertheless, the first pain area recorded in the list was still the neck and right scapula.[28]
[28]PCB 59
46 The general practitioner’s last word prior to the plaintiff moving to Queensland appeared in a Centrelink Disability Support Pension questionnaire on 6 March 2013, although the last visit recorded on this general practitioner was 19 December 2013.[29] For Centrelink purposes, the doctor was required to list conditions. Condition 1 was a Myofascial Pain Syndrome.[30] The patient was on Lyrica, but only 150 milligrams twice per day, as well as other medications and a treatment plan.[31]
[29]PCB 48-59
[30]PCB 51
[31]PCB 52
47 As to symptoms, the doctor reported:
“Pain is constant right shoulder and arm, hip and right leg. Pain is very severe at times.”[32]
[32]PCB 52
48 The doctor also reported Condition 1 as involving:
“Increasing stiffness and pain in right shoulder area.”[33]
[33]PCB 53
49 Not surprisingly, then, the general practitioner described Condition 2 to Centrelink as being depression.[34]
[34]PCB 54
50 Clearly, by the time the plaintiff returned in July 2016, his complaints of pain were far more widespread. On the probabilities, this reflects that while the shoulder pain into the neck remained constant, there had been a wider Pain Syndrome at play since the time the general practitioner had last seen him.
51 In that regard, I agree the evidence shows that psychological factors are now a major component of the plaintiff’s presentation. However, the evidence also establishes, on the probabilities, that the constant physically-based shoulder pain still remains. I accept it as the primary problem and it has troubled him from the outset.
52 Some early reports from Dr Issa are quite dated and do not warrant detailed discussion. He thought the shoulder pain was a Complex Regional Pain Syndrome, which I accept, these days, is a considered organic condition, but it is a diagnosis not really shared by the majority of doctors across these voluminous reports. The point is, the right shoulder, scapula, and neck injury, with his ongoing pain, were the principal problems and were physical in nature.
53 Of the multiple injuries the general practitioner referred to, the right shoulder and scapula are virtually always first in the list. Whatever the precise diagnosis is, they have required painkilling medication directed to a physically-based problem.[35]
[35]PCB 59
54 The general practitioner stated only last month, quite unequivocally:
“In my opinion, I consider a preponderant contributor to his current presentation is the physical injuries due to the MVA on 5 August 2010 that caused him anxiety and depression.”[36]
[36]PCB 60
55 I take note of the order these conditions are listed in and infer the mental reaction came on top of the physically-caused shoulder pain.
56 In early days, Dr Andrew Miller, occupational health consultant, reported to QBE, the WorkCover insurer of the Shire. I will now deal with his report and the large number of medico-legal reports.
57 On 26 November 2011, some sixteen months after the accident, he diagnosed clear organic injuries. He stated on at least two occasions:
“The worker has sustained chronic soft tissue strain injuries and aggravation of degenerative changes in the cervical spine and shoulders.”[37]
[37]PCB 121-127
58 Dr Miller also said:
“… the underlying pathology appears to be chronic soft tissue strain injuries to his neck and shoulders.”
59 While Dr Miller thought the plaintiff would be able to resume full duties, he added this rider:
“It is possible he may be left with some degree of residual disability as a result of this injury.”[38]
[38]PCB 125
60 On all the evidence, I find that pessimism was well founded. I accept Dr Miller’s opinions as to the organic injuries, including to the right shoulder.
61 Another report to QBE in 2012 was from the psychiatrist, Dr J Wilson. Again, it was in early days, but he reported:
“The worker said his main problem is pain.”[39]
[39]PCB 112
62 He diagnosed:
“There is a myofascial type pain disorder causing widespread pain.”[40]
[40]PCB 112
63 While this specialist is a psychiatrist, I take his report as diagnosing a physically-based shoulder problem. Dr Wilson supported the ongoing use of Lyrica which, in fact, the plaintiff is still taking to this day. Lyrica is clearly directed to a physical injury.
64 The orthopaedic surgeon, Associate Professor A Buzzard, examined the plaintiff for QBE in 2013. It was principally an AMA percentage impairment assessment under the Accident Compensation Act 1986. Almost three years after the accident he found other injuries had been suffered, but as to the right shoulder, he thought there was primary pathology in the form of calcific tendonitis.[41]
[41]PCB 98
65 Associate Professor Buzzard queried whether the neck was also causing some shoulder symptoms, but seemed to go away from that view as I read the report. In the end, while the percentage is not relevant, he found a permanent impairment expressed as follows:
“… the objective signs I have elicited today assess as being a 9 per cent whole person impairment with regard to the right shoulder.”[42]
[42]PCB 99
66 Associate Professor Buzzard reached his view assisted by no less than sixteen medical and radiology reports that had been sent to him.[43]
[43]PCB 101
67 Dr D Murphy, consultant physician in rehabilitation medicine, was a medico-legal expert engaged by the plaintiff’s solicitors. He saw the plaintiff in November 2012, almost two-and-a-half years after the accident. He had the advantage of seeing him again in July 2016. In 2012, he diagnosed:
“… myofascial pain syndrome right shoulder region.”[44]
[44]PCB 22
68 The injuries were stable and likely to be permanent. A 10 per cent permanent AMA percentage impairment of the right shoulder was found.[45]
[45]PCB 23
69 In 2016, at the second examination, Dr Murphy found:
“Mr Waller continues to be troubled by a persistent pain in the neck and right shoulder region which is clinically consistent with a chronic soft tissue pain syndrome, such as myofascial pain syndrome.”[46]
[46]PCB 25
70 Again, it was stated that the condition was stable and permanent. Medication was required in terms of ongoing use of analgesics and Dr Murphy did not think physical therapy would benefit the plaintiff.[47] Dr Murphy considered:
“… there remains significant impact on his lifestyle, particularly his ability to be able to manage his domestic activities of daily living and participate in the workforce. Mr Waller will continue to have incapacity for work. His restrictions for work is such that he is not able to undertake lifting of more than 5 kg with the right upper or perform activities which require lifting, pushing, or pulling with the right upper limb.”[48]
[47]PCB 25
[48]PCB 26
71 I accept Dr Murphy’s opinion. It is well reasoned and he had the considerable advantage of seeing the plaintiff twice, with almost four years in between consultations. He then commented a third time, only last month, after some medical material from the defendant was sent to him. Dr Murphy commented as follows:
“In my opinion, on the occasions that I have examined Mr Waller, he has presented quite consistent clinical symptoms and findings that are suggestive of chronic soft tissue pain, which I think fits with myofascial pain disorder. This condition is characterised by the presence of typical and characterised trigger points and tight, taut bands in affected muscles. This condition can last for many years.”[49]
[49]PCB26A
72 While Dr Murphy noted an associated psychiatric problem, he could not have expressed his opinion more clearly when he said:
“In my opinion, Mr Waller’s symptoms and the clinical findings are consistent with an organic cause for his chronic pain.”[50]
[50]PCB 26A
73 I accept Dr Murphy’s reasoned analysis.
74 Mr T Kossmann, orthopaedic surgeon, reported very early on in 2012 for purposes of an AMA percentage impairment assessment. The report does not assist very much. He did find movements in the right shoulder were less than the left.[51]
[51]PCB 70
75 Mr Kossman diagnosed:
“(1) pain and movement restriction across the right shoulder, most likely on the basis of fibromyalgia.
(2) possibly a chronic regional pain syndrome right upper extremity.”[52]
[52]PCB 72
76 Mr Kossman thought the plaintiff needed to be seen by a pain specialist. He thought, as to future work incapacity, a pain specialist or rheumatologist should comment. Whatever the precise diagnoses of the two possible ones that Mr Kossmann alluded to, he found a permanent percentage impairment. That is clearly on a physical basis, and not psychiatric, as I read his report.
77 Dr D Lewis, rheumatologist, also provided a 2012 report, again, for percentage impairment purposes. It is also quite out of date. He thought a soft-tissue injury was suggested to the right shoulder that was now a Chronic Pain Syndrome.[53] He found a very low percentage but, nevertheless, permanent impairment of the right shoulder. This early report does not assist much in judging consequences now, four years later, in 2016.
[53]PCB 77
78 Essentially, this case is a pain case in terms of the debate about diagnosis. The only pain specialist was Dr Clayton Thomas. He was engaged by the plaintiff’s solicitors. He gave an up-to-date report in July 2016. He diagnosed a clear organic cause for the shoulder pain when he saw the plaintiff six years after the accident. He said:
“It would appear that there was some impact to the right shoulder at the time of the motor vehicle accident. There does not appear to be a structural problem at the shoulder per se. It does appear to be the soft tissue supports around the shoulder, muscles, ligaments, and the like. Overall, a chronic pain syndrome along the myofascial type is reasonable here. This seems to be a direct connection with his current condition to the motor vehicle accident of 5 August 2010.”[54]
[54]PCB 86
79 As to the consequences of that injury and impairment, Dr Thomas said:
“Your client’s condition has stabilised; your client has been left with a permanent impairment. He has had full and appropriate treatment, an ongoing exercise program stretching and strengthening the affected area is reasonable. The problem is not degenerative. His residual disability will remain. He has a partial work capacity; he would have difficulty maintaining any physical work unrestricted in a full-time capacity.”[55]
[55]PCB 87
80 I accept this pain expert’s opinion, it is indicative of an ongoing physically-caused constant shoulder pain. It is a pain condition that is stable and chronic. That pain of itself, in my opinion, is a consequence that can be fairly judged as being “at least very considerable” for the plaintiff. Not only is the pain such that it, as a consequence of itself, satisfies the “serious injury” test, but it leads to a permanent loss of the plaintiff’s capacity for physical work, that is, in my view, also very considerable. It has also led to a loss of enjoyment of life consequence in effectively forcing the plaintiff off the rural farm lifestyle he enjoyed. For him, that is a very considerable consequence, being a man with virtually no recreational pursuits other than physical outdoor recreations, as already described. I accept this enjoyment of life has now been lost or impaired to an extent that is at least very considerable for him.
81 The defendant’s “physical doctors” include Professor R Stark, neurologist. He only saw the plaintiff once, and reported in 2015. He found the plaintiff walked with a bizarre gait. He obviously thought the plaintiff was not a good historian and seemed to give the plaintiff almost some intelligence testing.[56]
[56]DCB 31
82 Professor Stark seemed to accept the plaintiff's complaint of pain but the report is very equivocal. For example he says:
“This man may have suffered a jolting injury.”[57]
[57]DCB 31
83 Professor Stark later said, as to diagnosis, that some diagnoses:
“… imply a pain disorder without significant explanation in terms of organic injury.”[58]
[58]DCB 31
84 Later, Professor Stark said:
“He reports ongoing pain that if taken at face value implies difficulty in returning to the workforce. It is however difficult to know whether this is an accurate representation.”[59]
[59]DCB 31
85 Finally, Professor Stark says quite equivocally:
“The accident could have caused a jolting injury.”
86 In the end, it is not clear whether Professor Stark thinks there was an injury or not. He, unfortunately, only saw the plaintiff once and he had obvious trouble with the plaintiff’s vagueness and his difficulty comprehending questions. In the end, the report does not really assist in determining this application one way or the other.
87 Mr P Boys, orthopaedic surgeon, had the benefit of seeing the plaintiff twice at the request of the defendant. That was in 2015 and in July 2016. He diagnosed a physical basis for the shoulder pain.
88 In 2015, he thought the complaints chronic and diagnosed:
“This gentleman's complaints of pain are low grade but Mr Waller does describe chronic soreness and fatigue around the supporting muscles of the base of the neck and trapezial regions. His complaints are non-specific, reflecting in all probability, a degree of local simple muscle strain.”[60]
[60]DCB 48
89 Mr Boys, in his second report, also found psychological factors were the major component in 2016. I do not, however, conclude or read him as saying that the physical cause has somehow ceased to be the cause of pain. I repeat, again, the comment as to the diagnosis of a “simple muscle strain”. This surgeon seems to be describing a physically-based complaint of pain that, in time, has been overtaken largely by the psychiatric condition. He is not saying, as I understand his opinions, that the physical cause is not still there. What he seems to be saying, as best I can read his report, is that on the probabilities, a secondary psychiatric condition has come into play due to the ongoing organic muscle strain.
90 Dr T Kostos, rheumatologist, saw the plaintiff on one occasion, that was in 2016. It is a relatively brief report. Without hearing from him, I find it hard to follow his reasoning. It is not clear, nor properly set out. He diagnosed a Chronic Pain Syndrome and said:
“He might have suffered some soft tissue bruising at the time of the motor vehicle accident but this would have been expected to resolve in a couple of weeks.”[61][62]
[62]DCB 67
91 Dr Kostos does not say why this is so. He then said “the term soft-tissue injury is not an evidence-based diagnosis”.[63] I do not know what he means by that. Without, in any way, aspiring to any medical qualifications, but sitting in this jurisdiction daily, soft-tissue injuries are diagnosed by doctors repeatedly as extending beyond weeks. Without elaborating, Dr Kostos then makes the statement:
“A muscle strain will settle within a matter of weeks and cannot be the cause of ongoing pain.”[64]
[63]DCB 67
[64]DCB 67
92 This is not explained. It does not seem to me to be supported in any way by evidence or clear reasoning. It reads like something of a motherhood statement.
93 A further comment that Dr Kostos makes is quite incomprehensible without hearing from the doctor to explain what he means. He said:
“The problem here is that his condition has become medicalised.”[65]
[65]DCB 67
94 What “medicalised” means is not spelled out. It seems like pure speculation without proper explanation and the reasoning being set out. Is it a criticism of the medicos, or is a criticism of the plaintiff? Does it mean the condition is, in fact, supported medically but not by investigations? He said in his report he had no investigations for some reason. It is a statement just left somewhat up in the air. In the end, I am not assisted by this report without hearing an explanation from Dr Kostos regarding the views and the reasons behind them that I have referred to.
95 I find, on the probabilities, the plaintiff has discharged the onus of proving a “serious injury” on the paragraph (a) right shoulder impairment. The injury is a soft-tissue injury, probably best described as a myofascial problem. The condition is productive of constant and chronic pain. It is long term. It is productive of physically-based pain, extending also into the neck area.
96 Not only is the impairment such that constant pain is endured which, of itself, is a very serious consequence, but it impacts on his earning capacity and enjoyment of life in such a way to be at least very considerable consequences for the plaintiff in their own right.
97 I reach this judgment against the range of possible impairments.
98 In view of my findings, I do not need to discuss the paragraph (c) application in any detail. I will just refer to a number of matters with respect to that.
99 Three psychiatrists have reported. Dr J King saw the plaintiff once, two years ago this January. Professor P Doherty saw the plaintiff in August 2016. Dr M Epstein had the great advantage of seeing the plaintiff in 2012 and then seeing him again in July 2016. He provided a third report on 12 September 2016. His reports are the most detailed, well-reasoned and comprehensive in my opinion. They are easily understood. They contain the most comprehensive histories.
100 As I read the psychiatric reports overall, the thrust of the specialists’ evidence is that the plaintiff has suffered psychological or psychiatric reactions as a result of the physical pain. The evidence from the psychiatrists does not establish that the pain is psychiatric in origin.
101 Dr Epstein saw the plaintiff in 2012 and then in 2016 and, with that advantage, he was then asked the pivotal question only several weeks ago. That question was as to whether the chronic pain was predominantly as a result of the physical injury or psychiatric in terms of his current presentation.
102 Dr Epstein answered, succinctly and clearly:
“This question is not as clear cut as it would seem. This man has chronic pain in the absence of any significant pathology to explain such pain. Current thinking about chronic pain is that it is generally not regarded as a psychiatric condition. Rather, chronic pain reflects some central sensitisation and is not amendable to the usual treatment provided for acute pain such as opiates. As a consequence of chronic pain, no matter what the cause, people experiencing such pain usually develop a depressive condition.”[66]
[66]PCB 44C
103 I take this to mean a physically-based pain has had the consequence of leading to a psychiatric condition. I accept that view.
104 The three opinions from Dr Epstein, as set out in his reports, support my conclusion that the paragraph (a) application as to long-term physical impairment leading to very considerable consequences has been made out.
105 Lest it be thought I have ignored the reports of other psychiatrists, Dr King and Professor Doherty, I will add these very short comments.
106 Dr King referred to, “chronic and quite severe pain”. He found no psychiatric condition, but:
“… largely secondary to his chronic pain and ongoing physical disability caused by the accident.”[67]
[67]PCB 92
107 He ended by saying:
“From a psychiatric point of view, his prognosis will be determined by the prognosis of his physical injuries and chronic pain. It is now some years since his accident and, hence, his current state is likely to continue.”[68]
[68]PCB 93
108 As to alcohol abuse, Dr King thought it was largely to reduce the distress and pain caused by the accident. As I read it, he is speaking of a physical pain.
109 Professor Doherty thought psychiatric factors were a major component to presentation, but he could not find any diagnosable psychiatric condition. He found the plaintiff did not overstate or exaggerate any clinical incapacity. That is how I found the plaintiff as a witness.
110 Professor Doherty is hard to follow as to why and how he comes to the conclusion that there is an “alcohol use disorder” on the history he took. In any event, he does not find a psychiatric condition other than that. I am not satisfied there presently is an alcohol use disorder, as the plaintiff goes about his daily intake of the lowest strength beer.
111 However, if my conclusion on that is wrong, and there is an alcohol use disorder, it needs to be viewed in the absence of any problem with alcohol before the transport accident I find it is something that has come on as a result of the physical pain caused by the physical right shoulder impairment and his attempts to cope with it.
112 For the reasons mentioned, I grant leave to bring proceedings.
113 It is not necessary to comment any further on the paragraph (c) application.
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