What the medical records revealed
218In considering these records, attention must be paid to the obvious fact that such records are not prepared for proceedings such as this. Rather, they are a summary of what Mr Gangi then said, recorded by persons who have not been called in the proceedings (see Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 at [8] and Mason v Demasi [2009] NSWCA 227 at [2] - [4]). Nevertheless, the documents do shed some light on what Mr Gangi told those who treated him at the time of the collapse and subsequently, as to what had happened to him, what injuries he had suffered, what treatment he sought and when. I am unable to accept the submission advanced for Mr Gangi that these records, containing as they do various inconsistencies as to the mechanism of his injuries and other matters, can shed no light on the credibility of the evidence which he gave at trial.
219The ambulance report of 14 December 2007 recorded that Mr Gangi had escaped from the truck and scurried out of the quarry, injuring his shoulder. He was taken to hospital where he was treated, but not admitted. The hospital records note an account that he pulled himself out of the truck, injuring his right shoulder. There were no physical injuries recorded, but a headache was noted. The notes also record that the account which he gave a nurse, was that he had hit his shoulder while scurrying up an embankment.
220A report of a senior resident medical officer, Ms Taylor, of the hospital's emergency department, noted that Mr Gangi had run out of the way of the collapse, somehow injuring his right shoulder. Some tenderness in the right shoulder was observed, but x-rays were normal. He was discharged with Panadeine forte.
221Mr Gangi did not see his GP, Dr Nakhle, until 17 December 2007. His notes record pains after a collapse on his truck; soft tissue injuries; grazes on legs etc and face; pains in the right shoulder blade and thoracic spine. Mr Gangi was certified unfit for work for back pain, shoulder pain, trauma, anxiety and neck pain.
222Mr Gangi was referred to a psychiatrist, Dr Newlyn, who recounted a history given on 30 January 2008, that Mr Gangi had differing recollections of what had occurred to him. In one account, Mr Gangi recollected that he was in the vehicle under the plant and in another that he was outside, with the plant crashing down on him. He then reported suffering extreme pain in his right shoulder, as well as pain to his right earlobe, neck, shoulder and in the thoracic region. Dr Newlyn diagnosed post-traumatic stress disorder and considered that Mr Gangi was not fit for his pre-injury duties.
223On 12 March, Dr Nakhle noted that Mr Gangi had developed pains in his neck on the right side, extending to his arms and the middle fingers of his hand. On 27 March, he noted that the pain down the right side of the neck to the arms was severe.
224A CT scan of Mr Gangi's thoracic spin in February 2008 was, however, normal. A CT scan of his cervical spine in March 2008 showed degenerative changes and a minor central disc bulge, but no significant canal or neural exit stenosis. A CT scan of his lumbar spine in April 2008 was also normal. There was no evidence of neural compression, or significant disc bulge or protrusion at any level and disc spaces were preserved.
225Mr Gangi returned to work one to two days in April and two to three days per week on 1 May 2008. His working hours have never increased since then.
226A June 2008 x-ray of his right shoulder was also normal, with no abnormal opacification in the soft tissues found. A June 2008 MRI showed limited sequences, because Mr Gangi declined further scans. There was mild arthropathy in the AC joint and some subdeltoid bursitis, but no tear found.
227Dr Sher, an orthopaedic surgeon, saw Mr Gangi on 19 June 2008. There was then no history recorded as to Mr Gangi having suffered any injury in 2002. The history then noted was that he was out of the truck when the collapse occurred and that on regaining consciousness "he felt as if he had been knocked out with pain in his neck extending from the right ear down the side of the right neck, right shoulder and down the arm." This account does not accord with the earlier reports and records.
228Mr Gangi reported to Dr Sher, however, that he was feeling better than he did initially, but was still suffering continuing pain on the right side of the neck, from the right ear down across the right shoulder blade, right shoulder and down the right arm, to the middle and ring fingers. He also however reported pins and needles in the arm and fingers most of the time, and loss of sensitivity in the middle and ring finger. He also described pain in the front of the shoulder with elevation of the right arm, which he had to do, in order to scrape out cement, and that he did so with considerable pain. He also reported pain down the upper back, finding it difficult when turning his chest.
229Dr Sher noted the consequences of his clinical examination of Mr Gangi. He considered Mr Gangi's condition to have stabilised. He assessed a 12% whole person impairment arising from the accident, excluding psychiatric impairment.
230In July 2008, Mr Gangi reported similar symptoms to a sports physician, Dr Cusi, who found Mr Gangi's right shoulder to be normal on examination; he had a good range of flexion and extension of the cervical spine, but side bending to the right was limited and there was hyperactivity of his right paracervical gutter, as well as of the trapezius. Neurological examination was normal. Dr Cusi considered that Mr Gangi had a fairly severe soft tissue injury to the right shoulder and neck, and had developed postural syndrome, with a particularly stiff thoracic spine. He required psychological counselling to continue to help him to manage stress and pain and a specific postural exercise program, as well as stretches . He was prescribed a strict regime of pain relief and anti-inflammatories.
231In August 2008, Mr Gangi reported no change in his symptoms. Dr Cusi found that he was not doing recommended exercises correctly and that it was not surprising that there had been no change. He explained to Mr Gangi that the small changes at two levels in the discs shown by his cervical spine MRI were not significant, but may have triggered a reaction, which had become a vicious circle. No arrangements were made to review him.
232In a report of 11 July 2008, Dr Smith, a consultant psychiatrist, noted that treatment by a psychologist had been of partial assistance to Mr Gangi. The history taken was that prior to the 2007 incident he had been in good health. Dr Smith noted that "[h]e sustained a work related accident in 2002 when his head was struck by metal bar. He was off work approximately one week. There does not appear to be sequelae arising from the injury." A diagnosis of post-traumatic stress disorder was confirmed and further treatment recommended.
233An MRI of Mr Gangi's spine on 29 July found no evidence of fracture, that his spinal cord was normal and mild disc bulges at C3/4 and C5/6.
234Ms Alway, a psychologist practising at the Royal Prince Alfred Pain Management Centre, saw Mr Gangi in September 2008. The pain problem which he then reported was pain in his right ear lobe, which travelled down his neck and spine, across the right shoulder and down his arms to his fingers. He also reported numbness and pins and needles in his fingers at times and that pain was variable. Medication took the bite out of the pain, as did chiropractic treatment, for a time. Mr Gangi described activity-based physiotherapy as not having resulted in a noticeable increase in functioning and that the exercises were difficult to complete, due to pain.
235Mr Gangi was then consulting with a psychologist on a fortnightly basis. His post-traumatic stress disorder was considered to reduce his ability to attend work regularly, because aspects of his work continued to trigger distressing memories of his accident and psychological distress was also triggered by flare-ups in his pain condition, which in turn exacerbated his pain experience. He was then considered to have developed clinical depression, which made it difficult for him to remain hopeful of recovery and placed him at risk of increased long-term disability. A pain management program and ongoing psychological and psychiatric treatment was recommended.
236In September 2008, Mr Gangi also saw Mr Campbell, a physiotherapist at the Royal Prince Alfred Hospital pain management centre. He reported that he had his own TENS machine, which he used occasionally, but that he preferred to use heat and liniment rubbed into the neck and shoulder. He reported that physiotherapy and chiropractic treatment had not provided lasting benefit and that he did not perform exercises he had been provided with, which he found too painful. He was then taking various pain relief and complained of a dull ache from his ear across his shoulder, along the forearm to the base of the 3rd and 4th fingers and from his scapula to the mid to lower lumbar region. There was also a constant sharp pain in the neck and shoulder and frequent headache and mental confusion reported. Movements on physical examination were limited by pain. It was noted that Mr Gangi believed that his problem was due to nerve damage and disk protrusion, as per MRI findings.
237Mr Campbell considered Mr Gangi's work pattern unsustainable. He was then working full days on two to three days per week, interspersed with days of little activity, driven by financial pressure and involving significant psychological stress. He was considered to be suitable for the intensive pain management program, to improve his physical abilities and tolerances, by addressing concerns in behaviour that limited his ability to upgrade his work and to learn new strategies for coping with chronic pain. His work pattern was considered to be locking him into a pattern that he was unlikely to break out of and in time to result in further disability. Attendance at the workplace on a daily basis for limited hours was recommended, but not pursued.
238In November 2008, Mr Gangi reported to Dr Gibson at the Royal Prince Alfred Hospital pain management centre, a history of significant injury in 2002, which resulted in him having headaches for approximately 18 months. He then said that there were also ongoing headaches after the 2007 injury, which Dr Gibson considered appeared to have produced a new pain syndrome. Mr Gangi reported that this pain had a general severity of around 5/10, being exacerbated to 7/10 at work or on exertion. There was also arm pain with severity, generally, of around 2/10, although that increased if he slept on his right side. On examination the right trapezius muscle was tight and tender; there was weak right finger flexion; hand reflexes were reduced on the right-hand side, and there were pinprick sensations.
239In November 2008, Mr Gangi also saw the clinical psychologist Ms Cooper, for treatment of post-traumatic stress disorder and major depression. Chronic pain from physical injuries sustained in the accident was then considered to be compounding his difficulty attending work and participating in normal activities. He also reported being at a worksite in October 2008, when a pipe exploded some metres away from him. This made him feel overwhelmed and he was not able to drive his truck back to the plant. He had then been unsuccessful in obtaining another driver of his truck, and could not himself return to work full-time. Further psychological treatment and pain management programs were recommended.
240Dr Harvey-Sutton, a consultant occupational physician, saw Mr Gangi in December 2008. She recorded that Mr Gangi denied "any aches or pains or problems in his neck, upper back, or right arm prior to the accident. He had pains in his neck following a work accident in 2002 when a metal bin hit his head and he suffered a soft tissue damage to the neck. However he said all the symptoms subsided after two to three years."
241The history of the 2007 incident was similar to that given to Dr Sher, namely that he was outside the truck at the time of the collapse and he came to, feeling as if he had been knocked out, with pain in his neck extending from the right ear, down the side of the right neck, right shoulder and down the arm. On discharge from hospital he had pains in his neck, upper back, right shoulder and right arm, including the hand, middle and ring fingers of the right hand, with pins and needles in the whole of the right arm and in the middle and ring fingers.
242Mr Gangi told Dr Harvey-Sutton that he felt better than he did initially, but he still had continuing pain in the areas described. At this time he reported that pain in the shoulder woke him up at night.
243In March 2009, Mr Gangi saw Dr Parmegiani, a consultant psychiatrist. Mr Gangi then gave an account of the 2002 accident, which he said resulted in frequent headaches and depression, but that he returned to work after a few days, continuing to suffer psychological problems, with a depression which eventually resolved. He gave a history of experiencing cervical pain after the 2007 accident, which radiated to his right shoulder, thoracic spine and right arm. Dr Parmegiani considered that his post-traumatic stress disorder would continue to improve with time, taking a further 18 months to two years to resolve. Open-ended treatment was not recommended, as Dr Parmegiani considered that it perpetuates dependence on a therapist and acts as a reminder of the incident. Dr Parmegiani considered that his psychiatric impairment to equate to a whole person impairment of 5%.
244In June 2009, Mr Gangi saw Dr Price for injury management. The history he gave her was of a work-related injury in April 2002, when he was off work for days, but had ongoing headache and neck investigations as well as seeing a psychologist and psychiatrist. There was a financial settlement of $60,000 some years later, after which his condition resolved completely. She recorded that he was then troubled by his neck, right shoulder and upper thoracic spine, with constant pain on the lower part of the neck, radiating across the right shoulder down the right arm, with numbness on the 3rd and 4th digits of the right hand stop. He then rated the pain at 7 to 8 on a scale of 10. He continued to feel depressed and anxious and worried about ongoing pain. Flexion of the neck was full, but extension was limited to 70% of the normal range and rotation to the left and right limited by approximately 30%. Abduction of the right shoulder was to 150 while adduction was to 45.
245Dr Price considered that Mr Gangi could manage work in addition to the three days per week that he was working, given his transferable skills. It was considered that he was fit for full hours of duty, and if he was unable to manage truck driving, he should be able to manage other duties. It was suggested that he could start by employing a truck driver to take up the other two days a week and look at other work options. It was suggested that a rehabilitation provider could assist. This was discussed with Dr Nakhle, who it was noted agreed that if there were other jobs that Mr Gangi could do, he would upgrade the hours on his selected duties certificate. That never occurred.
246In March 2010, cortisone injections into the AC joint provided Mr Gangi with little relief. In June 2010, a bone scan of his neck, back and right arm showed evidence of minor degenerative disease in his cervical spine, with minor facet joint arthritis; mild degenerative arthritis in his hands, wrists, elbows, in the joints and in the hips and mild prominent uptake by the lumbar spinous processes.
247Mr Gangi saw Ms Cooper again in March 2010. He was unable to increase his working days due to pain and was still experiencing anxiety at work, despite participation in a pain management program and cognitive behaviour therapy. Further treatment was recommended.
248In May 2010, Mr Gangi was assessed by Ms Easley, an Exercise Rehabilitant. To her he reported that at the time of the accident he felt as if he was paralysed on his right side and after multiple scans was diagnosed with soft tissue injury. He reported not finding physiotherapy beneficial and that chiropractic treatment provided relief for only a few hours. He was taking Tramal and/or morphine patches, whilst performing work, as the pain intensified. He then described pain in the right side of his neck, shoulder, down the right arm and into the ring and middle fingers of his right hand, to be a level of 9/10. This pain varied from sharp to aching , requiring him to lie down when it became unbearable. Reported high levels of pain when working above shoulder height were said to be at the level of 10 out of 10. Triggers were raising up above shoulder height and applying pressure. Vocational redirection was proposed, but his psychological issues were considered to prevent an upgrade in return to work activities.
249In June 2010, Mr Gangi participated in a Peak Conditioning upgrading program, in order to restore his confidence to undertake physical activity.
250In September 2010, Mr Gangi saw Dr Russo, a consultant rheumatologist. He then reported being struck on the right shoulder/neck and suffering severe pain in the region. Since then the pain had remained unchanged. It was constant, aggravated by activity, particularly work. The pain was described to be an ache, superimposed with more severe, intense pain of the shoulder and upper thoracic region. Chiropractic treatment provided moderate short-term relief, but physiotherapy aggravated his symptoms. He had recently commenced a gym exercise program and continued taking pain relief and anti-depressant, without obvious benefit. A chronic pain course had not been not very useful.
251On physical examination loss of muscle bulk of the right trapezius was found, as well as weakness of elbow and wrist extension and finger flexion, but with preserved elbow flexion. Injury to his back, most likely involving the lower trunk, which would not have been seen on the MRI scans of the neck were considered to explain radiating pain, weakness and atrophy. Nerve conduction studies to investigate this suspicion were recommended, as well as further pain management treatment.
252Dr Reddel, a consultant neurologist, provided an electrophysiology report, after examining the Mr Gangi on 17 January 2011. He found normal nerve conduction, suggesting any pathology was preganglionic and mild partial denervation changes in the triceps only, in context, he considered most likely due to chronic C7 changes.
253In a report from Peak Conditioning of 17 January, improvement was noted in Mr Gangi's lifting technique, with less over activation of the trapezius and related musculature. He reported an improvement in physical function and general energy levels, but that pain levels remained consistent with pre-program levels. Those pain levels were considered to explain the failure to return to full hours on pre-injury duties, rather than his physical capacity. An upgrade in his current part-time duties medical certificate was recommended, with another day per week then considered to be a reasonable increase and the remaining day to be added, when Dr Nakhle felt Mr Gangi was capable of full-time hours.
254Dr Rimmer, an orthopaedic surgeon, saw Mr Gangi in March 2011. He then gave a history of having injured his cervical spine in 2002, from which he made a full recovery. Mr Gangi brought no investigations with him, despite being asked to do so. He described suffering right-sided neck and shoulder pain after the accident, for which he received extensive physiotherapy initially and then chiropractic treatment, with minimal beneficial effect, as well as cortisone injections into the right shoulder, which made the pain worse. Dr Cusi's treatment, had also been of little to no benefit. He took Tramadol on a daily basis and Durogesic on as needs basis
255He then described suffering a dull constant pain, to the right side of his neck, his right shoulder, radiating along his right upper limb to the dorsal aspect of his right ring and middle fingers. He had limited range of motion in his cervical spine and right shoulder.
256Dr Rimmer found normal alignment of the cervical spine, mildly tender to palpation, but all movements produced pain. There was moderate right-sided cervico-brachial irritation. His right shoulder was symmetrical in position, with no evidence of peri-scapula muscle wasting. Dr Rimmer considered the severe pain Mr Gangi alleged resulted from light palpation, not to be consistent with any known organic pathology. All movements reproduced pain. Dr Rimmer's diagnosis was abnormal illness behaviour.
257Dr Harvey-Sutton saw Mr Gangi again in December 2011. He then described working two to three days per week, but feeling nauseous every morning going to work. However he said that he liked what he did and wanted to continue working as a cement truck driver. Dr Harvey-Sutton noted that Dr Sher had diagnosed a soft tissue injury and that there was no surgery available for his condition and Dr Cusi had advised him that he had just a disc bulge.
258His current status was then said to be continuing pain in the right side of the neck from the ear down into the right shoulder, the right upper arm and forearm, and into the middle fingers. There was always an aching pain present, its severity depending on workload, what he had been doing, and changes in weather. The pains were worse with increased movements such as when he had to do a lot of scraping at work. They were only improved with chiropractic treatment, medication and use of a heat pack. There was also pain in the chest, which Dr Harvey-Sutton considered to be consistent with cervical neck pain.
259Dr Harvey-Sutton considered that Mr Gangi's injuries were:
- Cervical spine - neck -musculoligientous strain
- Right shoulder - soft tissue injury
260Dr Harvey-Sutton considered that Mr Gangi's prognosis was guarded and that his condition would not materially change in the future. His physical capacity to perform heavy physical work in the future was limited and that more likely than not, he would not regain the endurance to work full-time.
261Mr Gangi reported that since December 2008 there had been no further accidents, injuries or surgical procedures and that there had been some improvement in his condition, but they had plateaued. Physical inspection revealed no significant wasting or deformity of the upper limbs and a reduction in circumference of the upper arm since the previous assessment, consistent with a reported history of decreased work. There was also mild wasting in the right shoulder joint.
262There were, however, changes found in the range of movement in the shoulder. For example while in 2008, Dr Harvey-Sutton noted normal extension in Mr Gangi's right shoulder of 50%; in 2010 it had reduced to 30%; adduction had reduced from 40% to 30% and internal rotation had reduced from 80% to 60%. There were also changes in the range of neck motion, for example in 2008 rotation to the right was 30°, but it had reduced to 20° in 2010 and to the left it had decreased from 40° to 30°, bending to the right increased from 30° to 40° and lateral moving to the left had increased from 20° to 30°.
263Dr Russo, a consultant rheumatologist, saw Mr Gangi in September 2010 and February 2011. In a report of 28 December 2011, he noted a history of Mr Gangi having been struck on the right shoulder/neck region with subsequent pain in that region extending into the right hand, arm and hand. MRIs and scans had found minor degenerative disease at multiple levels, but whether the changes described were as a result of the accident was difficult to discern. His suspicion was that there were injuries to the soft tissues in the upper shoulder/neck region including neural structures, such as brachial plexus injury, not objectively apparent on imaging studies. He considered that pain in the arm could be referred pain from the injuries to the neck and shoulder. The pain was described to be constant, aggravated by activity, particularly work, which caused more intense pain.
264On physical examination, weakness in elbow extension, wrist extension and finger flexion on the right side in the context of loss of muscle bulk of the right trapezius was found, there was difficulty in performing a large number of functional tasks, such as lifting and a loss of range of motion in the shoulder and cervical spine. The psychological injuries were noted. Dr Russo expected improvement in muscoskeletal injury over time, but the time course was difficult to predict. It was possible that Mr Gangi might have partial or no improvement. He considered further treatment would be beneficial.
265Dr Parmegiani saw Mr Gangi again in March 2012. He noted that his post-traumatic stress disorder had not improved significantly. Chronic pain and financial hardship were considered to have had an in adverse impact on his mental state, perpetuating his disorder. Dr Parmegiani considered, that his psychiatric injuries had stabilised and that there would be no significant improvement expected in the foreseeable future. Mr Gangi had found psychological treatment of limited benefit and that ongoing treatment was not indicated. Allowance should be made for six further sessions to allow termination of therapy. There was no change in the assessment of his whole person impairment.
266Dr Rimmer also saw Mr Gangi again in March 2012. Again, he brought no investigations for review, stating that "he does not have a clue where they are". He then said that the 2002 injury caused right-sided neck pain, which fully resolved after a number of months, on conservative management. He then described the 2007 incident as involving several tonnes of material striking his neck and right shoulder, but he did not lose consciousness. He had sustained injuries to the right side of his neck and right shoulder, with pain radiating along the arm to the wrist level, with numbness in his right middle and ring fingers. He continued to attend a chiropractor for one session a week.
267Mr Rimmer observed Mr Gangi to be in no apparent discomfort, but firm palpation of his cervical spine was mildly tender. There was then no evidence of the cervicobrachial irritation, but his range of right lateral spinal rotation had decreased from 45° in 2011, to 25° in 2012. There was mild tenderness to firm palpation of his right shoulder, but the range of motion had improved with abduction being 120°, rather than 90° in 2011.
268Dr Rimmer had been provided with the surveillance tapes. Mr Gangi was asked to replicate a number of movements which he could be observed performing on the tapes, but he said that he could not do so, without discomfort. Dr Rimmer considered that Mr Gangi's presentation on the video was not consistent with his presentation on examination and that he was exaggerating his symptoms. He did not consider that Mr Gangi still then had any genuine symptoms resulting from the 2007 incident.