Post-accident medical treatment and assessments
57Exhibit "B" comprised the plaintiff's bundle of medical reports. Exhibit "5" and Exhibit "6" comprised the first defendant's bundle of medical reports. In the paragraphs that follow, I set out a summary of those reports, letters and results of investigations in chronological sequence.
58The plaintiff did not stay in hospital overnight. The Liverpool Hospital notes indicate that at triage, the plaintiff was alert on his arrival at hospital, but he was in pain. Injuries to the left side of the chest and left elbow were noted. CT scans of the plaintiff's neck, chest and abdomen were arranged, and he was treated as if he had sustained fractured ribs because of the injuries to his left flank.
59A pain diagram was filled out in the hospital notes to show the injured areas to be the left side of the chest and the thoracic area of the back. The hospital notes also recorded details of the abrasions to the plaintiff's left elbow, knee and thigh. Tenderness was noted in the left upper quadrant of the plaintiff's abdomen, as well as tenderness in the regions of T5 to T8 and the thoraco-lumbar junction. He plaintiff was given morphine for pain relief.
60On 18 April 2008, whilst in Liverpool Hospital, the plaintiff underwent CT scans of his cervical spine, chest, abdomen and pelvis. Degenerative changes were seen at the level C5/6 with joint space narrowing and spondylitic ridging. Minor degenerative and plate irregularities were noted in the thoracic spine. The lumbar spine was described as being within normal limits. Following his discharge from hospital, the plaintiff then consulted his general practitioner, Dr Greg Natale.
61A chest X-ray taken on 22 April 2008 at the request of Dr Natale revealed a minor fracture of the plaintiff's left 7th rib. A subsequent bone scan reported on 6 May 2008 revealed findings consistent with acute fractures of the left 4th to 9th ribs anteriorly, and the left 4th, 6th and 7th ribs laterally. The images of the bone scan on pages 34 and 35 of Exhibit "B" provide some graphic indication of the location of those rib fractures.
62The plaintiff was referred to and remained under the long-term follow-up care of Dr Ian Gotis-Graham, a specialist rheumatologist and consultant physician.
63On 26 May 2008, Dr Gotis-Graham provided a report setting out an overview of the plaintiff's treatment to that date. He noted that without Tramadol, the plaintiff was experiencing excruciating pain in his left lateral and anterior chest wall. He noted that imaging studies had identified degenerative changes to the plaintiff's mid to lower thoracic spine segments with slight irregularities, including early paramarginal osteophytes. Dr Gotis-Graham identified the plaintiff's problems to be multiple fractures of the left ribs, exacerbation of previously asymptomatic cervical, thoracic and lumbar degenerative disease, and post-traumatic stress disorder ["PTSD"], characterised by difficulty sleeping and nightmares, and daily concerns over the occurrence of the accident. He stated that if the accident had not occurred, the plaintiff would not have had any of these problems.
64Over the ensuing 3 years, Dr Gotis-Graham provided a further 15 reports. These were dated 19 June 2008; 30 July 2008; 10 September 2008; 13 November 2008; 20 November 2008; 19 February 2009; 28 May 2009; 30 July 2009; 30 September 2009; 2 December 2009; 20 July 2010; 9 November 2010; 15 March 2011; 19 July 2011 and 25 July 2011. These reports were variously addressed to the plaintiff's treating general practitioner, the workers' compensation insurer and the plaintiff's solicitor.
65In essence, Dr Gotis-Graham documented the plaintiff's injuries, supervised and followed through with medication, investigations and treatment recommendations, and documented the progress of the plaintiff's condition over time with Dr Natale. He also observed the plaintiff's reactions to medication and counselled the plaintiff about his resistance to taking medications in favour of a more self-disciplined approach to coping with pain.
66On 27 May 2008, Dr Natale wrote to request that the workers' compensation insurer approve an MRI study of the plaintiff's entire spine, and also approve physiotherapy, hydrotherapy, and a psychological assessment with treatment for his PTSD. These modalities were requested "so that we can move forward with Mr Cosmidis' treatment". On 4 June 2008 Dr Natale reiterated the request to the insurer to approve the cost of treatment by a psychologist. Although the plaintiff received treatment from a psychologist, no report on such treatment was tendered by either party.
67On 12 June 2008 the MRI scan of the plaintiff's spine showed abnormalities in the three regions of the spine.
68In the cervical spine, there was a minor level of circumferential bulging of the C5/6 disc annulus without neural encroachment, and as I interpret the report, cervical vertebral osteophyte development encroaching bilaterally on each neural exit foramen, but without nerve root encroachment. At the level C6/7 there was minor posterior bulging of the disc annulus without encroachment.
69In the thoracic spine, a small posterior midline disc protrusion with minor encroachment of the anterior theca and spinal chord was noted at T3/4. A minimal left paracentral disc protrusion but without encroachment was noted at T4/5. A small posterolateral disc protrusion encroaching on the theca but without compromising the neural structures was noted at T9/10. A minor right posterolateral bulging of the annular disc but without encroachment was noted at T10/11.
70In the lumbar spine, changes of disc desiccation and a small left sided posterolateral disc protrusion without encroachment was noted at L5/6.
71On 4 July 2008, Mr Daniel Wainwright, the physiotherapist who was treating the plaintiff reported to Dr Natale that hydrotherapy and manual therapy was leading to some improvement in the plaintiff's movements, and the plan was for this treatment to continue.
72On 17 February 2009, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Val Kirychenko, of Claims Intervention. He is an injury management consultant holding degrees in medicine, engineering and a diploma in musculoskeletal medicine. Dr Kirychenko's report did not include the acknowledgment of the Expert Witness Code. There was no objection to the tender of his report. After liaising with Dr Natale, Dr Kirychenko expressed the opinion that the plaintiff was fit for light office work where he could get up and move around at will, but with minimum lifting up to 2 or 3kg, with no twisting or bending. After discussions with Dr Natale, it was agreed that the plaintiff would be certified to start work 4 hours per day with those identified lifting restrictions. It appears that nothing came of that recommendation as the plaintiff could not cope with attempts at work training commensurate with those recommendations.
73On 24 February 2009, Mr Wainwright reported to Dr Natale that the plaintiff was making slow but definite progress with ongoing physiotherapy, and that his walking and task tolerances were increasing. The plan was for ongoing hydrotherapy and pool activity to continue.
74On 2 April 2009, at the request of the workers' compensation insurer, the plaintiff was examined by Dr Ian Smith, an injury management consultant with qualifications in occupational medicine. At that consultation the plaintiff reported problems with posture, mobility back pain including referred leg pain, difficulty sitting and driving, and difficulty sleeping. The outcome of that consultation was that it was agreed the plaintiff would attempt a return to work for 20 hours per week or 4 hours per day on 5 days per week with qualifications concerning posture, symptoms and proscriptions for twisting and bending activities. Dr Smith indicated that the plaintiff should be regarded as being permanently unfit for his pre-injury occupation.
75On 19 April 2009, Mr Wainwright wrote a report to Dr Natale to inform him that the plaintiff had not progressed well with self-directed rehabilitative exercises and that a more structured and supervised programme was now in place.
76Between 3 June 2009 and 27 August 2009, at the request of the workers' compensation insurer, the plaintiff underwent a vocational assessment, including 9 related follow-up sessions with Ms Samantha Symes, a vocational specialist with qualifications in psychology and business marketing. Her commentary on the plaintiff's attendances noted that the plaintiff often started crying within those sessions. In other sessions he was noted to have been frustrated and agitated. From the description on page 28 of Exhibit "6", it seems the plaintiff was being assisted to look for work. The outcome of those sessions involved a plan to obtain a work trial and to arrange a case conference to discuss progress and working hours. A review date was suggested, but there was nothing further tendered from this expert. It is not clear from the evidence as to whether that further review took place.
77On 12 June 2009, at the request of his solicitor, the plaintiff was examined by Dr Mathew Giblin, an orthopaedic surgeon. The plaintiff's ongoing complaints in his cervical, thoracic and lumbar spines were noted, including radiated pains in the shoulders and, intermittently, to the legs. Dr Giblin also identified the presence of bilateral carpal tunnel syndrome. He considered all these problems were accident related. Dr Giblin stated that the plaintiff was unfit for work that involved repetitive bending, heavy lifting or prolonged sitting or standing. He recommended a regime of continued treatment and indicated that the plaintiff would need assistance with gardening and domestic tasks.
78On 20 July 2009, at the request of Dr Natale, the plaintiff was tested for carpal tunnel syndrome by Dr David Rail, a consultant neurologist. Dr Rail was of the opinion that there was mild bilateral carpal tunnel syndrome, which was most likely of cervical origin. He suggested continuing with physiotherapy.
79On 20 July 2009, at the request of his solicitor, the plaintiff was examined by Dr Thomas Rosenthal, a consultant occupational physician. Dr Rosenthal noted the plaintiff's ongoing spinal and left leg symptoms. He expressed the opinion that there were significant soft tissue symptoms in the spine and an internal derangement of the left knee. He confirmed there should be restrictions placed on the plaintiff regarding bending, lifting, pulling, pushing, standing, walking, stooping, squatting, crouching, kneeling, manual handling, twisting, and repetitive movements generally. Dr Rosenthal assessed the plaintiff's Whole Person Impairment under the WorkCover Guidelines at 15 per cent. He confirmed that for the foreseeable future, the plaintiff was not fit to return to his former employment as a driver. He also noted there were restrictions with the plaintiff carrying out household tasks.
80On 31 July 2009, Dr Natale provided the solicitor for the plaintiff with an updated summary of the plaintiff's consultations and treatment to that time. This related to some 92 consultations he had with the plaintiff up until that time. His report canvassed the plaintiff's physical and psychological problems since the accident. He confirmed the plaintiff was unable to return to his previous work duties, and was restricted in the duties he could perform. He also confirmed the plaintiff had a need for assistance with domestic tasks.
81On 31 July 2009, at the request of his solicitor, the plaintiff was examined by Dr Michael Diamond, a consultant psychiatrist. In his report of 6 August 2009, Dr Diamond summarised the plaintiff's graphic and agitated account of the events of the accident. He identified the plaintiff's history of feelings of frustration, despair, nightmares, flashbacks, melancholia, tearfulness and pervading sadness at his changed circumstances. Dr Diamond was of the opinion the plaintiff had a melancholic depression, with depressed mood and cognitive impairment. Dr Diamond described the plaintiff as having the conditions of chronic PTSD, and a major depressive disorder with melancholia, needing treatment because these conditions were disabling. He considered that although the plaintiff had been seeing a psychologist for counselling, he needed the assistance of a psychiatrist to deal with the depressive illness that was evident in him. He considered the plaintiff's prognosis to be guarded.
82At page 12 of his report dated 6 August 2009, Dr Diamond summarised the plaintiff's situation as follows:
"At present Mr Cosmidis has no capacity to work as a delivery driver. This is largely as a result of his physical and pain symptoms but his psychological state remains significantly impaired to add to that inability. His capacity to work in any other occupation, profession or employment is impaired significantly at present because of his psychiatric condition. This is again over and above any impairment that results from physical disability or pain. The capacity to work in any employment at present is impaired because of his unrealistic expectation of his performance and the obvious frustration he feels because he is afraid of injuring himself further, being humiliated by failing in his job and because he relies primarily for coping upon avoidance patterns of behaviour where he limits his activities to those areas where he feels relatively safe and secure. It is unrealistic for him to think he can cope in the workplace with those limitations upon him.
He is well engaged within this (sic) family and circle of friends. He is an affable, pleasant man with a long history of good relationships. He is supported by the relationships that continue in this way.
His travel is relatively unimpeded although he is more reliant on his own motor vehicle than on public transport where he feels excessively vulnerable.
His ability to carry out activities of daily living is impaired because of his depressed mood state, lack of energy, drive and motivation on a day-today basis despite the fact that he is very keen to demonstrate that he is not an invalid."
83On 10 August 2009 the plaintiff underwent an MRI scan of the left knee which identified subtle cartilage irregularities in the lateral retropatellar facet, which was described as a subtle grade 1 retropatellar chondromalacia.
84On 11 September 2009, the plaintiff was re-examined by Dr Giblin and on 15 September 2009 Dr Giblin admitted him to Sydney Southwest Private Hospital at which time he carried out an arthroscopic debridement of the fat pad of the left knee. The plaintiff was also given steroid treatment to that knee. Dr Giblin continued to review the plaintiff's left knee intermittently until the last appointment on 18 July 2012.
85On 4 December 2009, at the request of his solicitor, the plaintiff was examined by Dr Sheikh Habib, a consultant orthopaedic and trauma surgeon. In his report dated 11 January 2011, Dr Habib diagnosed the plaintiff to have chronic musculo-ligamentous injury to his neck aggravating pre-existing minor degenerative changes, including a discogenic component, chronic musculo-ligamentous injury to the back with a discogenic component at L5/S1, and post-traumatic collateral ligament laxity and patello femoral arthralgia of the left knee. He confirmed the need for the plaintiff to have a range of conservative treatments and for there to be limits on a range of neck, back and left lower limb straining activities. He assessed a Whole Person Impairment at 16 per cent using the WorkCover assessment guidelines.
86On 22 March 2010, at the request of the Motor Accidents Authority, the plaintiff underwent a medical assessment by Dr Angelo Virgona, a consultant psychiatrist and MAS Assessor. Dr Virgona concluded that the plaintiff had suffered a significant psychological disorder following the accident, probably consistent with PTSD. For the purposes of the MAS assessment, Dr Virgona certified the plaintiff to have a chronic adjustment disorder with mixed anxiety and depressed mood.
87On 25 March 2010, at the request of the Motor Accidents Authority, the plaintiff underwent a medical assessment by Dr Bruce Trevitt, a consultant orthopaedic surgeon and MAS Assessor. For the purposes of the MAS assessment process, Dr Trevitt certified that the plaintiff's cervical, chest, thoracic, lumbar and left knee injuries were as a result of the accident in question. He considered the plaintiff's impairments from those injuries to be permanent and unlikely to significantly change. He assessed the plaintiff's Whole Person Impairment to be 12 per cent under MAS assessment guidelines.
88On 16 April 2010, at the request of the worker's compensation insurer, the plaintiff was examined by Dr James Evans, a consultant orthopaedic surgeon. Dr Evans noted the history of current complaints of neck pain and upper and lower back pain, as well as pain in the right knee. Dr Evans thought these areas of discomfort had stabilised, and would not significantly change. Dr Evans disagreed with the suggestion that the plaintiff needed a large amount of future treatment. Dr Evans expressed the view that the plaintiff would be fit for more vigorous activity than was evident at his examination. He said that the plaintiff was fit for work involving driving and lifting up to 10kg. He argued that there was insufficient pathology present to prevent the plaintiff from returning to his pre-injury duties. He noted the plaintiff seemed to have lost his motivation. He considered there were modest changes throughout the plaintiff's spine which are no more than would be expected in a man of the plaintiff's age and doing his type of work.
89The report of Dr Evans refers to "accompanying documentation" that had been provided to him. It is not entirely clear as to what that documentation comprised as there was no accompanying letter of instruction. The body of the report of Dr Evans referred to the series of imaging between 22 April 2008 and 10 August 2009. The context of some comments in the report suggested that Dr Evans had seen materials from Dr Gotis-Graham and Dr Giblin. There is nothing in the report of Dr Evans to suggest that he had been provided with any psychiatric reports from Dr Diamond and Dr Virgona. The comment made by Dr Evans to the effect that the plaintiff seems to have lost motivation for work must be read in that context.
90On 13 April 2011, at the request of the solicitor for Boral, the plaintiff was assessed by Dr Stephen Rimmer, a consultant orthopaedic surgeon. Dr Rimmer stated that his opinion was based entirely upon the objective findings that were identified by him at the time of his consultation with the plaintiff. He observed the plaintiff to be mildly tender to palpation of his cervical and thoracic spines and moderately tender to palpation of the lumbar spine. Dr Rimmer rejected the proposition that the plaintiff's bilateral carpal tunnel syndrome was in any way related to the accident. Dr Rimmer expressed the opinion that the plaintiff was poorly motivated for return to work and exhibited abnormal illness behaviour, a matter that he said was outside his area of expertise. He expressed the opinion that the plaintiff would have recovered from his musculoskeletal injuries by the time of his consultation. He thought the plaintiff was fit to return to his pre-injury employment or was fit to seek any employment of his choice. He considered that the plaintiff was not in need of domestic assistance.
91The report of Dr Rimmer makes no reference to any materials that had been provided to him for the purpose of assisting him with the preparation of his report. Given that Dr Rimmer expressly stated that his opinion was based entirely upon his objective findings, I consider it is safe to conclude that he did not have the benefit of the psychiatric opinions of Dr Diamond and Dr Virgona when stating his own views. His comments to the effect that the plaintiff is poorly motivated and exhibits abnormal illness behaviour have to be viewed in that light, and in the light of the observations of Ms Symes, a psychologist, who documented the plaintiff's distress in her interviews of him. Dr Rimmer indicated that the plaintiff needed support from a psychologist given his view there was nothing physical that prevented the plaintiff from working.
92On 3 May 2011, at the request of the solicitor for the first defendant, the plaintiff was assessed by Dr Ben Teoh, a consultant psychiatrist. Dr Teoh's report of that consultation was not tendered in evidence. There was no explanation regarding the non-tender of that report.
93On 7 July 2011, at the request of his solicitor, the plaintiff was re-assessed by Dr Rosenthal. He recorded a history of continuing neck pain, some hand numbness, back pain, left hip pain and spasm in the left leg, clicking of the left knee, daily nausea, and restrictions with walking and sitting. On examination he noted restricted neck and back movements, marginally restricted shoulder movements, tenderness in the thoracic spine, left knee crepitus, patellar tenderness and medial ligament laxity. He reiterated his previous diagnoses and indicated that Mr Cosmidis had a poor prognosis, with chronic neck, back and left knee problems and psychological problems, all of which were likely to persist. Dr Rosenthal reiterated his recommendations for ongoing treatment. He confirmed the plaintiff had permanent work restrictions and needed some domestic assistance.
94On 18 July 2011, at the request of his solicitors, the plaintiff was reassessed by Dr Giblin who reiterated the previous opinions he had expressed on 29 June 2009 regarding diagnosis, prognosis and treatment. The plaintiff continued to have neck pain, cervico-thoracic pain and low back pain. The plaintiff was noted to have ongoing clicking of his left knee.
95On 5 August 2011, at the request of his solicitors, the plaintiff was reassessed by Dr Diamond. After reviewing some relevant reports and updating his history, Dr Diamond confirmed that the plaintiff now suffered significant chronic impairment secondary to his physical injuries. He revised his diagnosis to that of chronic adjustment disorder with mixed features of depression and anxiety. He thought that substantial recovery would not be achieved. He stated that the psychiatric illness will persist because of the physical impairment, which indicated a poor prognosis, with significant improvement being unlikely over the years to come.
96On 12 August 2011, Dr Natale prepared an updated summary for the plaintiff's solicitor. He confirmed he had seen the plaintiff on a further 26 occasions since his last report. He confirmed that the plaintiff's work, social, sporting, recreational and domestic activities have been curtailed as a consequence of the effects of the accident.
97On 6 September 2011, at the request of his solicitor, the plaintiff was reassessed by Dr Habib, who reiterated his earlier diagnoses and opinions. He added that he felt the prognosis for the plaintiff to further recover from the physical effects of his injuries was being hampered by his mental state.